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Common Sense, Negligence, and Comparative Fault
Saturday, May 27th, 2017

My fortune cookie last week contained the following observation, “Common sense is not so common.” As a personal injury attorney, this resonated with me because I see situations daily where someone’s failure to use common sense has harmed someone else.

Small actions that may seem insignificant at the time, can lead to damaging and costly mistakes. For instance, leaving objects in your car, like a purse, wallet, or laptop, is never a good idea, even if you live in a “good” neighborhood. The temptation may prove too great to a passerby with morals that are not comparable to your own. Even if you have automobile insurance that will cover the loss of items stolen from your vehicle, you probably have a deductible, which means you will have to pay for at least some of the cost to replace the stolen items. Plus, you will have a claim against your insurance policy, which could lead to higher premiums in the future. You will also have to spend time recovering or replacing stolen items, such as a driver’s license, credit cards, data on your laptop, or phone numbers on your mobile phone. Some items, such as photographs stored on a stolen phone or computer, can be lost forever. Is the action worth the risk?

Failing to use your turn signal is another action that may seem minor, but it can cause severe and permanent harm. Other users of the road, including automobile drivers, bicyclists, and pedestrians, base their actions on what you do. If you intend to turn or change lanes, but do not use your turn signal, this could directly lead to property damage and/or personal injury. Moving your finger up or down to activate your turn signal is easy and important. The inaction is not worth the risk of potential harm to a loved one, an innocent third person, or yourself.

If you are sued in Oregon for property damage or personal injury, your actions will be placed under a microscope. To recover money, the person suing you must prove you were negligent. A person is negligent under Oregon law if the person fails to exercise reasonable care, a standard that “is measured by what a reasonable person of ordinary prudence would, or would not, do in the same or similar circumstances.” (Woolston v. Wells, 297 Or 548, 557, 687 P2d 144 (1984).)

If you are injured, and sue someone else for damages, your actions will also be placed under a microscope. Oregon is a modified comparative negligence state, meaning the plaintiff (person suing) can still recover as long as the fault attributed to him or her does not exceed 50% of the total fault. (Oregon Revised Statutes, sections 31.600 – 31.620.) This means, if you are determined to be more than 50% at fault, you will not be able to recover any money for your damages. If you are determined to be less than 50% at fault, any finding of negligence on your part, will reduce your monetary recovery in proportion to the percentage of attributable fault.

Be an exception to my fortune cookie observation, and exercise common sense. Thinking ahead and imagining the possible outcomes of proposed actions can help to avoid costly mistakes.

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