TL;DR: Consumers and tenants had a banner year, while recreational immunity expanded and wrongful death caps remain frustratingly stuck in legal limbo.
Missed our convention presentation on this year’s biggest appellate wins and losses? Whether you were there or not, this dive into Oregon’s appellate decisions will get you up to speed on the cases shaping our practice. Spoiler alert: if you represent consumers or tenants, you’re going to love what happened this year.
Unlawful Trade Practices Act
Oregon’s appellate courts went all-in on consumer protection this year, delivering multiple wins that should make every attorney who does consumer cases take notice.
State v. Living Essentials, 371 Or 23 (2023), on remand 335 Or App 30 (2024). In this case against Living Essentials—the maker of 5-Hour Energy—the Oregon Supreme Court held in 2023 that the UTPA prohibits misrepresentation about the qualities and characteristics of goods or services without regard to materiality of the representation to consumer decision making. This year, the Court of Appeals delivered the sequel—on remand, Living Essentials argued that the representations were “mere puffery” and therefore not subject to challenge under the UTPA. The Court of Appeals held that statements are not “mere puffery” if they are capable of being proven true or false. That includes claims relating to the physical benefits of a product like 5-Hour Energy.
Bohr v. Tillamook County Creamery, 373 Or 343 (2025). This UTPA case is addressed at length in a prior post, which you can find here. In Bohr, Supreme Court held that plaintiffs who allege that they suffered ascertainable loss by paying a “premium” price for products or by purchasing “misbranded” goods that were illegal to sell in the first place are not required to plead that they or members of their proposed class relied on the defendant’s representations. In its analysis, the Supreme Court put some pretty clear guardrails on its 2015 decision in Pearson v. Phillip Morris, 358 Or 88 (2015), clarifying what Pearson does and does not say on the issues of ascertainable loss and reliance in UTPA cases.
Oregon Residential Landlord Tenant Act
The Oregon Supreme Court’s pro-tenant trend hit five straight wins since 2020, with two major victories this year:
KKMH Properties, LLC v. Shire, 373 Or 676 (2025). In this case, the tenant kept 277+ guinea pigs “free range” in a rental property, causing extensive damage that would cost tens of thousands of dollars to repair. The landlord issued a 30-day termination notice stating that “no cure opportunity” was available because the damage was so extensive and costly. The tenant challenged that notice. The question for the Supreme Court, then, was whether landlords must inform tenants of their right to cure violations even when the landlord believes that cure is practically impossible.
The Supreme Court’s message was crystal clear: If tenants have a legal right to cure, landlords must inform them—period. Whether the landlord thinks cure is “practically impossible” is irrelevant. The Court’s reasoning here shows they’re reading the ORLTA as broadly as possible to protect tenants. This prior breakdown of KKMH explores what this means for your cases.
Jackson v. KA-3, 374 Or 1 (2025). Just months after reinforcing cure notice requirements in KKMH Properties, Supreme Court issued another unanimous decision strengthening tenant protections. Here, a falling light fixture in a shared hallway seriously injured a tenant. The question: Do habitability obligations stop at the apartment door? The answer: Nope. Landlords’ habitability duties extend to common areas tenants use to access their units. In other words, safe housing means safe access to housing—see my prior post about Jackson for the broader implications.
The Court of Appeals also joined the party, ruling in favor of tenants in at least one major case:
Holt v. Nicoletti, 341 Or App 748 (2025). When a subtenant was locked out and his property removed, the Court of Appeals held that property owners can be liable for their tenants’ ORLTA violations against subtenants. Watch: A petition for Supreme Court review is likely forthcoming, but for now, landlord liability extends further than many realized.
Recreational Immunity
The evolution of the law on recreational immunity has not been as positive.
Murphy v. City of Cannon Beach, 338 Or App 104 (2025). The plaintiff parked her car at the Tolovana Beach access point in Cannon Beach, intending to stargaze from the beach. She stepped over a cement curb and fell into a beach access ramp, suffering injuries. The Court of Appeals held that her injury arose from her use of the land for recreational purposes – even though she was not stargazing at the moment of her injury – and therefore the government wasn’t liable.
Laxer v. City of Portland, 339 Or App 100, rev den, 373 Or 738 (2025). Here, the injury occurred on a paved access road inside Mt. Tabor City Park. On appeal, the plaintiff argued that the recreational immunity statute did not extend to paved access roads and sidewalks inside a city park. The Court, applying Murphy, held otherwise.
Enforceability of Arbitration Clauses
Cornelio v. Premere Rehab, LLC, 342 Or App 399 (2025). In this wrongful death case, the estate sued the defendant, who provides therapy and rehab services at Bend Transitional Care (BTC), for negligence arising out of the decedent’s death. The defendant moved to compel arbitration on the basis of the decedent’s contract with BTC. The Court of Appeals ruled that the court, not the arbitrator, decides the threshold question of whether an arbitration agreement exists between the parties. More importantly, third parties can’t force arbitration just because they provide services at a facility with arbitration clauses. Watch: a petition for review will likely be filed with the Oregon Supreme Court.
And Durany v. Marjorie House McMinnville, LLC, 335 Or App 501 (2024), reinforced that family members without legal authority can’t bind estates to arbitration agreements.
Wrongful Death Cap
The question everyone asks: What’s happening the wrongful death cap? The (frustrating) answer: we don’t know yet. The Oregon Court of Appeals has two cases under advisement that present constitutional challenges to Oregon’s cap on noneconomic damages in wrongful death cases (ORS 31.710(1)):
Estate of Fisher v. Lee (A181233) was argued in the Court of Appeals in July 2024. Fisher is an appeal from a default judgment entered after a prima facie hearing. The trial court ruled that the estate should be awarded $20 million in noneconomic damages, but capped it at $500,000. Nadia Dahab & John Coletti are counsel for the plaintiff.
Estate of Ritchie v. Helbig (A181405) was argued in the Oregon Court of Appeals in December 2024. Ritchie is an appeal from jury award of $2,108,412 in noneconomic damages, which the trial court capped at $500,000. Travis Eiva and Josh Callahan are counsel for the plaintiff.
Meanwhile, Estate of Gilbert v. The Portland Clinic, No. 21CV18955, delivered a trial court victory, with Judge Alexander in Multnomah County ruling that applying the cap to reduce the jury’s noneconomic damages award of $8,200,000 would violate the remedy clause. The decision is now on appeal. Email me if you need pocket briefing from Gilbert for your next cap challenge.
Amendments to But-For Causation Instruction
Thanks to Amy Bruning’s leadership on the UCJI Committee, we now have an amended but-for causation instruction (UCJI 23.01) that properly reflects the Supreme Court’s holding in Haas v. Estate of Carter. This is a big deal in getting the causation standard correct in injury and wrongful death cases.
Want more content like this straight to your Inbox? I’m moving the blog to substack to make that happen–subscribe here.
Comments for this post are closed.