Jonathan Henderson

shareholder | portland | LICENSED IN Oregon & Washington

“I believe an attorney should be able to successfully make complex legal arguments, but also be able to successfully explain those arguments to the client in plain English.”

Explaining the law in plain English

Jonathan specializes in civil appeals, and handles appellate matters involving a wide range of issues. He also has years of experience arguing motions in Oregon trial courts around the state.

Jonathan has handled dozens of appellate matters in the Oregon and Washington courts of appeal, the Oregon Supreme Court and the Ninth Circuit Court of Appeals, receiving favorable published decisions from each. He was drawn to Davis Rothwell for the breadth of experience it offers, as well as the people-oriented atmosphere.

Jonathan was born in Eugene, Oregon, and raised on a farm in a rural area of the Willamette Valley. He spends his free time reading, gardening, cooking, traveling, and spending time with his family.

 

RECOGNITION:

Education

  • Willamette University College of Law – J.D., cum laude, 2006
  • Portland State University – B.A. Philosophy, 2003

Bar / Court Admissions

  • Oregon State Bar, 2006
  • United States District Court for the District of Oregon, 2007
  • United States Court of Appeals for the Ninth Circuit, 2007
  • Washington State Bar, 2018

Professional & Civic Involvement

  • Frequent presenter at Continuing Legal Education classes on a variety of legal issues

Firm News

Organizational Memberships

  • Member, Executive Committee of the Oregon State Bar Appellate Practice Section
  • Case Notes Editor, Oregon Association of Defense Counsel quarterly, The Verdict

Representative Cases

    Oregon Court of Appeals

  • Nancy Doty, Inc. v. WildCat Haven, Inc., 297 Or App 95, __ P3d __ (2019) (affirming trial court decision dismissing claims against an officer and employee of decedent’s employer on the ground that they were immune from suit under the Workers’ Compensation exclusive remedy statute)
  • Gilbert v. Stancorp Fin. Grp., Inc., 233 Or App 57, 225 P3d 71 (2009) (affirming the trial court order setting aside a default judgment plaintiff’s attorney took while negotiating with the adjuster)
  • 126 NW Native Run Joint Venture v. City of Grants Pass, 247 Or App 354, 271 P3d 154 (2011) (affirming the trial court judgment dismissing the claims as barred by the statute of limitations on a construction defect claim)
  • Capitol Specialty Ins. Corp. v. Chan & Lui, Inc., 248 Or App 674, 274 P3d 238 (2012) (affirming the trial court order on summary judgment dismissing claim against the insurer on a claim relating to insurance coverage regarding wrongful death Dram Shop claim)
  • Amberglen v. Ankrom Moisan Associated Architects, Inc., 249 Or App 333, 278 P3d 141 (2012) (affirming trial court order dismissing the case by enforcing as-is provision in construction contract and ruling that claims are barred by the statute of limitations on construction defect claims)
  • Sunset Presbyterian Church v. Brockamp & Jaeger, Inc., 254 Or App 24, 295 P3d 62 (2012) (reversing trial court judgment that found that the claims were barred by the statute of repose on construction defect claims)
  • Classen v. Arete NW, LLC, 254 Or App 216, 294 P3d 520 (2012) (reversing trial court order dismissing plaintiff’s claims for spoliation of evidence, finding that while Oregon does not recognize the claim, there are claims that plaintiff should have been allowed to plead)
  • PIH Beaverton, LLC v. Super One, Inc., 254 Or App 486, 294 P3d 536 (2013) (Affirming dismissal of third party claim for indemnity as barred by the statute of repose in a construction defect case)
  • Goodwin v. Kingsmen Plastering, Inc., 267 Or App 506, 340 P3d 169 (2014) (reversing trial court judgment dismissing plaintiff’s construction defect claims as barred by the statute of limitations)
  • Riverview Condo. Ass’n v. Cypress Ventures, Inc., 266 Or App 612, 338 P3d 755 (2014) (reversing trial court judgment dismissing plaintiff’s construction defect claims as barred by the statute of limitations)
  • Chapman v. Mayfield, 263 Or App 528, 329 P3d 12 (2014) (Affirming trial court dismissal of negligence claim on the grounds that plaintiff could not establish foreseeability of a unprovoked shooting attack in a Dram Shop case)
  • Liberty Oaks Homeowners Ass’n v. Liberty Oaks, Ltd. Liab. Co., 267 Or App 401, 341 P3d 109 (2014) (affirming trial court dismissal of a construction defect lawsuit on the grounds of mootness, justiciability and statute of limitations)
  • Masood v. Safeco Ins. Co., 275 Or App 315, 365 P3d 540 (2015) (affirming dismissal of claims against a captive insurance agent on the grounds that claim is barred by the economic loss doctrine)
  • Knappenberger v. Davis-Stanton, 271 Or App 14, 351 P3d 54 (2015) (reversing trial court decision granting JNOV to defendant and finding that the defendant had not adequately established a Dormant Commerce clause challenge to Oregon’s statute of limitations tolling statute)
  • Piazza v. Kellim, 271 Or App 490, 354 P3d 698 (2015) (Reversing trial court judgment dismissing wrongful death claim arising out of an unprovoked shooting attack in downtown Portland by finding that the plaintiff had adequately alleged the attack was foreseeable)
  • Jones v. Randle, 278 Or App 39, 373 P3d 1186 (2016) (reversing trial court decision dismissing plaintiff’s claims on the grounds that plaintiff was judicially estopped from asserting claim)
  • Vasquez v. Double Press Mfg., 278 Or App 77, 372 P3d 605 (2016) (affirming trial court order denying motion to apply Oregon’s statutory noneconomic damages cap because it violates the Remedy Clause in the Oregon Constitution)
  • Vasquez v. Double Press Mfg., 288 Or App 503, 406 P3d 225 (2017) (affirming trial court order denying motion to apply Oregon’s statutory noneconomic damages cap because it violates the Remedy Clause in the Oregon Constitution)
  • Wilda v. Roe, 290 Or App 599, 415 P3d 1146 (2018) (Reversing trial court judgment dismissing third party contribution claim against tavern by holding that Oregon’s statutory Dram Shop Act requirements do not apply to a third party contribution claim against the tavern by the intoxicated driver)
  • Eugene Water & Elec. Bd. v. MWH Ams., Inc., 293 Or App 41, 426 P3d 142 (2018) (affirming trial court order declining to enforce an arbitration agreement in a construction contract)
  • Oregon Supreme Court

  • Chapman v. Mayfield, 358 Or 196, 361 P3d 566 (2015) (affirming the Court of Appeals and the trial court’s dismissal of a negligence claim for lack of foreseeability)
  • Goodwin v. Kingsmen Plastering, Inc., 359 Or 694, 375 P3d 463 (2016) (overruling two Court of Appeals decisions and declaring that negligent construction claims are subject to a two-year and not a six-year statute of limitations in Oregon)
  • Piazza v. Kellim, 360 Or 58, 377 P3d 492 (2016) (reversing the trial court’s dismissal of a negligence claim by finding that plaintiff had adequately alleged that a random, unprovoked spree shooting in downtown Portland was foreseeable)
  • Washington Court of Appeals

  • Walla Walla Coll. v. Ohio Cas. Ins. Co., 149 Wash App 726, 204 P3d 961 (2009) (affirming summary judgment in favor of insurer regarding a pollution exclusion in the policy)
  • Ninth Circuit Court of Appeals

  • All were unpublished decisions, so they do not show up on Lexis.
  • Rother v. Lupenko, et al., Nos. 11-35922, 11-35953 (April 12, 2013) (attorney fee dispute following a trial in an employment wage and hour dispute)
  • Rother v, Lupenko, et al., No. 14-35771 (May 18, 2017) (attorney fee dispute following a trial in an employment wage and hour dispute)
  • Alkemade v. Quanta Indemnity, et al., No. 14-35605 (April 20, 2017) (reversing trial court judgment granting summary judgment in favor of insurer in insurance dispute regarding preexisting property damage exclusion)

Notable Trial & Appellate Victories

  • Goodwin v. Kingsmen Plastering, Inc., 359 Or 694, 375 P3d 463 (2016) (Declaring the applicable statute of limitations on a claim for negligent construction): For years, Oregon law was uncertain on which statute of limitations applied to claims for negligent construction. Either the claims were subject to a two-year statute of limitations or a six-year statute of limitations. Trial court decisions went both ways. The uncertainty created headaches for attorneys defending against negligent construction claims, as well as their clients and insurers. Then, in 2014, the Oregon Court of Appeals held in two separate cases that the six-year statute of limitations applied. It reversed judgment in favor of the defendants in each of the cases, one right after the other. One of those cases was Goodwin v. Kingsmen Plastering. I petitioned for review on behalf of the firm’s client in the Goodwin case, and the Supreme Court accepted review. In the Supreme Court I traced the legislative history of both statutes at issue, starting from the pre-statehood territorial code to the present day version of the statutes, and explained why the two-year statute of limitations applies to negligent construction claims, not the six-year statute of limitations. I explained why two separate panels of judges on the Court of Appeals got it wrong. The Supreme Court agreed and held that the two-year statute of limitations applies, and now it is settled law, which lends certainty and predictability to defendants, insurers and defense counsel alike.
  • Chapman v. Mayfield, 358 Or 196, 361 P3d 566 (2015) (Affirming dismissal of a negligence claim arising out of an unprovoked shooting attack by an allegedly intoxicated patron): Oregon common law does not follow the familiar duty-breach-causation-damages negligence formula followed by nearly every other American jurisdiction. Instead, the traditional duty-breach analysis is subsumed in the concept of general foreseeability, and the plaintiff must plead and prove that the defendant’s conduct created a foreseeable and unreasonable risk of legally cognizable harm to the plaintiff and that the conduct in fact caused that kind of harm to the plaintiff. Negligence claims are therefore not subject to a “no duty” defense, as they are elsewhere. Oregon case law also holds that foreseeability is nearly always a question of fact for the jury, so Oregon trial courts do not often grant summary judgment on a negligence claim for lack of evidence of foreseeability, and if they do, usually reverse the judgment of dismissal, holding that there is a disputed issue of fact requiring trial. In Chapman, the plaintiffs were injured when defendant Mayfield opened fire on them while they played poker in a gambling parlor in Gresham, Oregon, on a Saturday evening. The attack was unprovoked and nobody, including Mayfield, was able to offer an explanation for the attack. Mayfield had been drinking at the client’s tavern earlier on the night of the attack. Plaintiffs brought a negligence claim against the tavern, asserting that the tavern had over-served Mayfield, and that this made his attack reasonably foreseeable. We moved for summary judgment on the grounds that the attack was not reasonably foreseeable, even if the tavern had over-served Mayfield, which we also denied. Mayfield had no history of violence or shootings, and the tavern was unaware that he was armed when it served him. Plaintiffs asserted various arguments regarding why service of alcohol to a visibly intoxicated person should make a subsequent unprovoked shooting attack foreseeable. The trial court rejected plaintiffs’ arguments and dismissed the case on summary judgment. The Court of Appeals affirmed the trial court, with a dissent from one judge on the three-judge panel. Plaintiffs petitioned for review and the Supreme Court accepted. The Supreme Court unanimously affirmed the Court of Appeals and the trial court, providing some additional and much-needed guidance on the foreseeability element of a common law negligence claim.
  • PIH Beaverton, LLC v. Super One, Inc., 254 Or App 486, 294 P3d 536 (2013) (Affirming dismissal of third party claim for indemnity by holding that such claims are subject to Oregon’s construction defect statute of repose): Ordinary construction defect claims in Oregon are generally barred by a ten-year statute of repose found in ORS 12.135. For years trial courts held that third party claims for indemnity, by general contractors against subcontractors, were not subject to the statute of repose because the indemnity claim did not arise out of construction. Instead, they held that the claims arose out of the common law. As a result, if a general contractor was sued within the ten-year window, it had years to bring a claim for indemnity against the subcontractors, effectively depriving the subcontractors of the benefits of the statute of repose. On behalf of our subcontractor client, we convinced a trial court to dismiss a third party claim for indemnity against it as barred by the statue or repose. The general contractor appealed, and the Court of Appeals agreed with us, holding that third party claims for indemnity in a construction defect case are subject to the statute of repose in ORS 12.135. The result is that subcontractors in Oregon now have more certainty and predictability because they too get to enjoy the benefits of a statute of repose.
  • Knappenberger v. Davis-Stanton, 271 Or. App. 14, 351 P.3d 54 (2015) (reversed the trial court’s grant of JNOV to client’s adversary, and in so doing, ruled that the trial court erred in its analysis regarding the dormant Commerce Clause of the US Constitution)