Elk Creek Management Co. v. Gilbert
303 P.3d 929
Or.2013Background
- This case involves a month-to-month tenancy and a 30-day no-cause termination notice following tenant complaints about the electrical system.
- The owner authorized walk-throughs and, after assessing costs of electrical repairs, terminated the tenancy; the manager issued the termination notice with the owner's instructions.
- Trial court found no retaliation, holding tenants’ complaints did not cause the eviction and noting the owner spent on repairs previously.
- Court of Appeals affirmed, interpreting ORS 90.385 to require injury or intent-to-harm in retaliation claims and suggesting additional dicta about landlord motives.
- The Supreme Court granted review to interpret ORS 90.385 and to resolve whether retaliation requires harm or intent, or merely a causal link to protected activity.
- The court held that retaliation is proven if the landlord acted because of the tenant’s protected activity, without requiring proof of injury or landlord intent to injure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does ORS 90.385 require proof of injury or intent to injure? | Gilbert argued injury/intent required. | Landlord/owner argued no such proofs required. | No; causal connection suffices. |
| What causal standard applies to proving retaliation under ORS 90.385? | Protected activity must be the sole/dominant reason. | Any factor related to the protected activity suffices if it influenced the decision. | Tenant need show the protected activity was a factor that made a difference (not necessarily sole or dominant). |
| Does the statute require that the landlord’s action be taken because of protected activity in all scenarios? | Retaliation requires the landlord’s action to be caused by protected activity. | Actions could be unrelated or only loosely connected to protected activity. | The landlord's action must be because of the tenant’s protected activity. |
| How should the facts of this case be applied under the correct causal standard? | Tenant complaints were a factor; eviction was retaliatory. | Evidence showed business reasons and no conclusively proven link to complaints. | Remand for factual determination under the proper standard; prior rulings reversed. |
Key Cases Cited
- Edwards v. Habib, 397 F.2d 687 (D.C. Cir. 1968) (retaliation defense recognized in housing context)
- Silberg v. Lipscomb, 117 N.J. Super. 491, 285 A.2d 86 (N.J. Super. 1971) (retaliation defense for tenancy evictions in New Jersey)
- Engler v. Capital Management Corp., 112 N.J. Super. 445, 271 A.2d 615 (N.J. Sup. Ct. 1970) (recognition of retaliatory eviction defense)
- Petermann v. International Brotherhood of Teamsters, 174 Cal App 2d 184, 344 P.2d 25 (Cal. App. 1959) (early retaliation/retaliatory conduct analysis)