COLLOQUY; THE GOOD NEWS AND THE BAD NEWS ABOUT BUCHLER V. OREGON CORRECTIONS DIVISION Skip over navigation
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Copyright (c) 1993 University of Oregon
Oregon Law Review

COLLOQUY; THE GOOD NEWS AND THE BAD NEWS ABOUT BUCHLER V. OREGON CORRECTIONS DIVISION

Winter, 1993

72 Or. L. Rev. 919

Author

Caroline A. Forell*

Excerpt



IN 1987 the Oregon Supreme Court unanimously redefined Oregon negligence law in "the Fazzolari trilogy," 1 consisting of Fazzolari v. Portland School District No. 1J, 2 Kimbler v. Stillwell, 3 and Donaca v. Curry County. 4 In the years since these cases were decided, the bar and bench have adjusted to the new formula for general claims of negligence: 5 "whether [the defendant's] conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff." 6

In June 1993 the Oregon Supreme Court unanimously rede fined negligence law once more in Buchler v. Oregon Corrections Division. 7 The clear change Buchler made to the Fazzolari trilogy was small, but significant. The Buchler court in three separate opinions 8 stated that foreseeability is no longer purely a fact question for the jury. 9 Instead it is a question deserving close judicial scrutiny to determine whether the risk of harm that defendant's conduct created was "reasonably foreseeable." 10

This change in Oregon negligence law shifts the balance of decisionmaking in difficult negligence cases back in the direction of trial judges. No longer is the aphorism "if it happened, it is for the jury" 11 an accurate description of Oregon negligence law. The reinsertion of reasonableness into the foreseeability equation 12 makes it clear that trial judges can use foreseeability to limit the scope of the risks that defendant's conduct created for which liability will be allowed. Trial judges can therefore exercise their ...
 
 
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