In a notable decision, the Oregon Court of Appeals recently declined to allow a defendant to pursue a comparative fault defense in a habitability lawsuit. By way of summary, Ms. Thomas, the Plaintiff, was a tenant in a duplex owned by Dillon Family Limited Partnership, the Defendant. The refrigerator in Plaintiff’s apartment began to leak water leaving puddles that extended into her adjacent living room. Thomas v. Dillon Family Limited Partnership II, 319 Or. App. 429, 420 (2022). Plaintiff indicated that she was having to mop puddles up at least twice a day. Id.
Defendant was made aware of the issue and presented with a representative to conduct an inspection. Id. The Plaintiff believed that at the end of this visit, Defendant had remedied the problem, however, the Defendant recalled calling for a repair service to address the issue, and told the Plaintiff to continue cleaning the puddles until the repair could be done. Id at 430-31. Defendant also remembered telling Plaintiff to be mindful of the puddles so she did not slip and cause an injury to herself. Id at 431. Subsequently, not realizing there would still be puddles from the unrepaired refrigerator, Plaintiff slipped and fell into her kitchen causing multiple injuries to her back and lower body. Id.
Plaintiff filed a lawsuit against the Defendant alleging that it had failed to maintain the premises in a habitable condition as required by ORS 90.320 in the Oregon Residential Landlord Tenant Act (ORLTA) and sought to recover medical expenses related to the injuries in addition to non-economic damages. Id. In their answer, Defendant asserted the defense of comparative fault pursuant to ORS 31.600(2) as the tenant was allegedly negligent in causing her own injuries. Id. Plaintiff filed a Motion to Strike this defense and the trial court agreed with the Plaintiff and disallowed the Defendant from introducing such evidence. Id. Despite the Defendant continuing to petition the court throughout trial to allow the introduction of the defense, the trial court denied same, and further instructed the jury they were not allowed to consider whether the Plaintiff was at fault in causing her own injuries. Id at 432. The jury returned a verdict for the Plaintiff and awarded her economic and non-economic damages. Id. Defendant appealed asserting that the trial court errored when denying his ability to present his comparative fault defense at trial. Id.
In its 2022 opinion, the Court of Appeals saw only one issue that needed to be answered: can a landlord raise the affirmative defense of comparative fault under ORS 31.600(2) when a tenant alleges that their premises contained uninhabitable conditions under ORLTA when it causes personal injuries damages? Id at 433. As this was a novel question , the Court looked to the statutory construction and legislative history of ORS 90.360(2) to determine if the defense was viable. Id.
In first looking at the statutory composition of ORS 90.360(2), the Court found that it limits the damages a tenant may seek as “express and limited” and that a tenant may only recover damages found in the ORLTA chapters of the ORS, including damages for a landlord’s noncompliance with habitability requirements. Id at 435-36. Thus, any damages that a tenant may seek to recover are found exclusively in chapter 90 of the ORS. As such, the Court found that the legislature intended the same to apply to a defense a landlord may use. The legislature did not include language of ORS 31.600(2) in the construction of ORS 90.360 so therefore, the court reasoned the defense of comparative negligence could not be asserted by a landlord to defend against this claim. Id at 436.
The Court further referenced its prior holding in Davis v. Campbell, 144 Or. App. 288 (1996). Here an earlier version of ORS 90.360 was in effect which had no defenses listed for a landlord. Id. In the Davis case, a tenant brought a claim against the landlord after a fire started when the heat penetrated the bricks and deteriorated the grout in the chimney of the tenant’s residence. The landlord was completely unaware of the issue and the tenant never reported any issues. Id. At that time, because defenses were not explicitly laid out in its provisions, the court found that the landlord was liable to the tenant for those damages and the Supreme Court later affirmed this decision. Id at 436-37.
The legislature subsequently amended ORS 90.360 to add specific limited defenses available to a landlord and The Court of Appeals found this instructive in deciding Thomas. Id at 438. It found that because the legislature later added defenses (but not one of comparative fault) those were the only affirmative defenses meant to apply when defending against an ORS 90.360 claim. Id. Based on this, the Court believed that it was not the intent of ORLTA or ORS 90.360 to allow a landlord to raise a comparative fault defense under ORS 31.600. Id. While the defendant tried to show that ORS 31.600 appears to extend broadly to all claims, that position was apparently rejected by the court. Id.
Although various trial court briefs and other secondary materials have generally commented on this decision, as of the date of this publication, no further precedent evaluating or expanding on the court's holding in Dillon has been published – leaving some degree of ambiguity as to the proper scope and application of the holding.