Oregon Bars Comparative Negligence in Certain Residential Tenant Claims

May 24, 2022

Author: Michael Lowry

Comparative negligence is often a key dispute in many claims. Oregon’s Court of Appeals recently limited its use in claims by residential tenants against landlords. 

In Thomas v. Dillon Family Limited Partnership II, the plaintiff rented an apartment from the defendant. During the residency, the refrigerator began to leak. The tenant notified the landlord, who came to check on the problem that same day. The tenant thought the landlord had fixed the problem; the landlord testified he did not fix the problem and told the tenant a repairman would be needed. The next night, the tenant was walking through her darkened apartment when she slipped and fell on water still coming from the refrigerator. A repairman arrived the next day and fixed the problem. 

The tenant filed suit, alleging the landlord failed to maintain the premises in a habitable condition. The landlord attempted to plead comparative negligence, but was barred from doing so. The Court of Appeals concluded that while the landlord could allege the tenant did not mitigate damages, the Oregon Landlord/Tenant Act did not permit the landlord to allege comparative negligence. 

This ruling could influence how Oregon residential tenant claims are assessed. If the tenants’ claims can be tied to a habitability statute rather than common law negligence, then the landlord might not be able to rely on comparative negligence arguments.

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