Mark v. State

18 Citing cases

  1. Mark v. State

    191 Or. App. 563 (Or. Ct. App. 2004)   Cited 10 times
    Holding that, under Oregon law, "[c]onstructive knowledge exists when a person is aware of 'information as would lead a prudent man to believe that the fact existed, and that if followed by inquiry must bring knowledge of the fact home to him'"

    Plaintiffs appealed, and we affirmed in part and reversed in part. Mark v. Dept. of Fish and Wildlife, 158 Or. App. 355, 974 P.2d 716, rev den, 329 Or. 479 (1999) ( Mark I). While we agreed with the trial court that discretionary function immunity precluded any recovery of damages, id. at 369, we also held that, under the Supreme Court's intervening decision in Penland v. Redwood Sanitary Sewer Service Dist., 327 Or. 1, 956 P.2d 964 (1998), plaintiffs were not similarly precluded from obtaining injunctive relief. Mark I, 158 Or App. at 365. Thus, we remanded plaintiffs' private nuisance and public nuisance claims for trial and, if appropriate, the issuance of injunctive relief.

  2. Yates v. U.S. Envtl. Prot. Agency

    Case No. 6:17-cv-1819-AA (D. Or. Sep. 20, 2019)

    Silverton Land acknowledges that landowners who do not themselves engage in activity constituting a nuisance may nevertheless be liable for the acts of third parties that create a nuisance on their land if they "both (1) know that the activity is being carried on and will involve an unreasonable risk of causing the nuisance and (2) consent to the activity or fail to exercise reasonable care to prevent it." Mark v. State Dep't of Fish & Wildlife (Mark I), 158 Or. App. 355, 362-63 (1999) (citing Restatement (Second), Torts §838 (1979)). However, this rule is generally limited to situations where the landowner has the ability to control activities on the land, including the relevant acts of third parties.

  3. Deep Photonics Corp. v. LaChapelle

    282 Or. App. 533 (Or. Ct. App. 2016)   Cited 15 times   1 Legal Analyses
    Noting O.R.S. 31.150(b) "plainly covers statements made or documents submitted in connection with a case after it comes 'under consideration' by a court, such as, for example, pleadings filed with a court or statements made by an attorney or a witness at a hearing

    Thus, where, as here, a defendant's ORCP 21 A(8) challenge is based on a defense to otherwise well-pleaded claims, "[t]hat defense is available on an ORCP 21 A(8) motion only if it appears on the face of the complaint." Mark v. Dept. of Fish and Wildlife , 158 Or.App. 355, 357 n. 1, 974 P.2d 716, rev. den. , 329 Or. 479, 994 P.2d 127 (1999). On review of a grant of dismissal under ORCP 21 A(8), "we accept as true all well-pleaded allegations in the complaint and give plaintiff the benefit of all favorable inferences that may be drawn from the facts alleged."

  4. Beck v. City of Portland

    202 Or. App. 360 (Or. Ct. App. 2005)   Cited 16 times
    Noting that, "the legislature may impose statutory justiciability requirements," for example, "statutory standing requirements, as it has done in numerous statutes"

    Our review of a ruling under ORCP 21 A(8) is based solely on the allegations in the complaint. Mark v. Dept. of Fish and Wildlife, 158 Or App 355, 357 n 1, 974 P2d 716, rev den, 329 Or 479 (1999). However, on a motion to dismiss for lack of subject matter jurisdiction under ORCP 21 A(1), if

  5. Rogers v. Valley Bronze of Oregon

    178 Or. App. 64 (Or. Ct. App. 2001)   Cited 8 times
    In Rogers, we noted that an "appeal from an order granting a motion to dismiss is not one of the limited circumstances in which a defendant may assert a new defense of failure to state ultimate facts constituting a claim."

    ORCP 21 A(8) decisions on a motion to dismiss for failure to state a claim may not be granted on the basis of anything other than the body of the pleadings themselves. See Mark v. State Dept. of Fish and Wildlife, 158 Or. App. 355, 357 n 1, 974 P.2d 716, rev den 329 Or. 479 (1999). A challenge to the legal sufficiency of a claim that requires the court to examine documents other than the pleadings must to be pursued via a summary judgment motion.

  6. Emanuel Displaced Persons Ass'n 2 v. City of Portland

    704 F. Supp. 3d 1088 (D. Or. 2023)   Cited 3 times

    Because the primary responsibility for preventing public nuisances lies with public authorities, a private action to enforce that right requires proof that the plaintiff has suffered or is suffering an injury distinct from the injury suffered by the public at large. Mark v. State Dep't of Fish & Wildlife, 158 Or. App. 355, 360, 974 P.2d 716 (1999). Defendants argue that Plaintiffs have not alleged a public nuisance that has caused any Plaintiff injury distinct from any injury suffered by the public.

  7. Bailey v. Polygon Nw. Co.

    3:22-cv-00292-YY (D. Or. Nov. 23, 2022)

    Mark v. State Dep't of Fish & Wildlife, 158 Or.App. 355, 360 (1999). But as discussed above, plaintiffs' injury is not exactly one in private nuisance, as nuisances generally do not involve trespass, are capable of abatement or enjoinment, and complain of an injury to the personal comfort of dwellers on the land, not an injury to the land itself.

  8. Smith v. Tumalo Irrigation Dist.

    6:20-cv-00345-MK (D. Or. May. 2, 2022)   Cited 1 times

    “A private nuisance is an unreasonable non-trespassory interference with another's private use and enjoyment of land.” Mark v. Dept. of Fish and Wildlife, 158 Or.App. 355, 360, rev. den., 329 Or. 479 (1999).

  9. Hernandez v. Jefferson Cnty. Sheriff's Office

    3:19-cv-01404-JR (D. Or. Nov. 16, 2021)   Cited 1 times

    As plaintiff correctly notes, a “private nuisance is an unreasonable non-trespassory interference with another's private use and enjoyment of land.” Mark v. Dept. of Fish and Wildlife, 158 Or.App. 355, 360 (1999).

  10. Hernandez v. Jefferson Cnty. Sheriff's Office

    Case No. 3:19-cv-1404-JR (D. Or. Jun. 23, 2020)

    The right to recover is in the person whose land is harmed." Drayton v. City of Lincoln City, 244 Or. App. 144, 148 (2011) (quoting Mark v. Dept. of Fish and Wildlife, 158 Or. App. 355, 360 (1999)). To constitute a nuisance, the alleged conduct or action must "substantially and unreasonably interfere[] with the use and enjoyment of [a] plaintiff['s] property."