Eclectic Investment, LLC v. Patterson et al.

the Astoria rule of common-law indemnity is a factor determined in the totality of the circumstances, and common-law indemnity is not consistent with severally distributed liability.

Co-defendant (the contractor) excavated a slope and built a retaining wall, which co-defendant, Jackson County inspected and permitted. After a rainstorm, topsoil eroded from the slope constructed by the contractor, and damaged plaintiff’s property. Plaintiff sued for negligence and Jackson County raised an affirmative defense that plaintiff had negligently failed to apply for the construction permit, or to consult an engineer before beginning construction. Jackson County also filed a cross-claim for common-law indemnity against the contractor. At trial, the jury found that because plaintiff was more than 50 percent at fault, that plaintiff may not recover more than the combined fault of the other parties, and entered judgment in favor of defendants. The contractor and Jackson County agreed to arbitrate the indemnity claim, and the arbitrator found against Jackson County’s indemnity claim. Jackson County appealed the arbitrator’s decision and the trial court denied Jackson County’s indemnity claim. Jackson County appealed, and argued that the trial court failed to apply the rule in Astoria v. Astoria & Columbia River R. Co.. The Astoria rule states that an actively negligent party must indemnify a party whose negligence is merely passive. The Court of Appeals held that decisions after Astoria broadened the standard, and that the Astoria rule is a factor determined in the totality of the circumstances, and affirmed the trial court. Jackson County appealed, and the Oregon Supreme Court reviewed the decision for the appropriate legal standard for common law indemnity. The Supreme Court held that because common-law indemnity is not consistent with severally distributed liability, Jackson County’s claim was properly denied. Affirmed.