November 29, 2022

Volume XII, Number 333


November 28, 2022

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Oregon Restates Elements of Ordinary Negligence in Attempted Suicide Case

In many states, an ordinary negligence cause of action requires a plaintiff to prove four elements:

  • The defendant owed a duty to the plaintiff

  • The defendant breached that duty

  • The plaintiff suffered an injury

  • Proof that defendant's breach caused the injury. 

In 1970, Oregon began trying to move away from this expression of negligence, which one decision termed a “verbal crutch.” In Scott v. Kesselring, the Oregon Supreme Court continued this evolution. 


Factually, the defendant had caused a rear-end collision on wet roads while using a hand-held cell phone; she admitted “liability” and moved to exclude evidence of her cell phone use. The plaintiff argued such use was relevant to assessing whether plaintiff’s subsequent suicide attempt was a reasonably foreseeable result of using a hand-held cell phone while driving. The trial court allowed the evidence at trial, a judgment was entered and the defendant appealed. 

A particular status, relationship or standard of conduct can create, define or limit a defendant’s duty, but these factors were not present in this case. Instead, it was an “ordinary negligence claim.” Scott then restated the elements an Oregon plaintiff must meet to prove an ordinary negligence claim: (1) The defendant’s conduct (2) unreasonably (3) created a foreseeable risk (4) to a protected interest (5) of the kind of harm that befell the plaintiff, and (6) that defendant’s conduct in fact caused the harm that plaintiff incurred. 


Having said that, Scott concluded that the defendant’s liability admission did not meet the substance of those elements. She had disputed whether the suicide attempt was foreseeable. “‘Foreseeability’ is an aspect of liability and, although defendant admitted some level of responsibility for the events that led to plaintiff’s injuries,” she disputed foreseeability at trial. “[T]he fact that defendant challenged the foreseeability of the kind of harm that befell the plaintiff – a suicide attempt – meant that the jury was still required to determine whether defendant’s conduct unreasonably created a foreseeable risk of that kind of harm.” This meant the cell phone use evidence was relevant and admissible. 

The importance of Scott seems to be that defendants trying to admit certain facts or elements need to do so with reasonable specificity and in line with the restated elements of negligence. Scott itself noted that the defendant could have admitted foreseeability but then argued her negligent conduct was not a cause in fact of the suicide attempt. 

© 2022 Wilson ElserNational Law Review, Volume XII, Number 276

About this Author

Michael Lowry Las Vegas Retail Manufacturing Attorney Wilson Elser Law Firm

Michael Lowry has an active litigation and defense practice, with clients among the country’s largest and most recognizable brands in several industries, such as retail, restaurant and hospitality, commercial transportation, manufacturing and more. As a member of the firm’s emergency response team, when transportation clients face a catastrophic event, Michael and other members of Wilson Elser’s 24/7 go-team arrive on the scene to help gather and preserve information that may be critical to the client’s defense, as well as liaison at the scene with investigating...