Lyons v. Walsh & Sons Trucking Co., Ltd.

• Decision Date: 31 July 2002
• Citation: 183 Or.App. 76,51 P.3d 625
• Parties: William R. LYONS and Barbara A. Lyons, Co-Personal Representatives of the Estate of Scott Alan Lyons, Deceased, Appellants, v. WALSH & SONS TRUCKING CO., LTD., Respondent. Walsh & Sons Trucking Co., Ltd., Third-Party Plaintiff, v. James Eugene May, Jr., Third-Party Defendant.
• Court: Oregon Court of Appeals

51 P.3d 625

183 Or.App. 76

William R. LYONS and Barbara A. Lyons, Co-Personal Representatives of the Estate of Scott Alan Lyons, Deceased, Appellants, v. WALSH & SONS TRUCKING CO., LTD., Respondent.

Walsh & Sons Trucking Co., Ltd., Third-Party Plaintiff, v. James Eugene May, Jr., Third-Party Defendant.

9806-04337; A110332

Court of Appeals of Oregon.

Argued and Submitted May 3, 2002

Decided July 31, 2002.

Meagan A. Flynn, Portland, argued the cause for appellants. With her on the briefs was Preston Bunnel & Stone, LLP.

I. Franklin Hunsaker, Portland, argued the cause for respondent. With him on the brief were Richard J. Whittemare and Bullivant Houser Bailey.

Before HASELTON, Presiding Judge, and LANDAU and ARMSTRONG, Judges.

HASELTON, P.J.

In this personal injury case arising out of a fatal automobile accident, plaintiffs, the parents and co-personal representatives of the estate of Oregon State Police Trooper Scott Lyons, appeal from a jury verdict and judgment in favor of defendant Walsh & Sons Trucking Company. On appeal, plaintiffs argue that the trial court reversibly erred both in admitting evidence describing the fault of Lyons's colleague, OSP Sergeant Rector, and in failing to instruct the jury that Rector's conduct could be considered only if it was the "sole and exclusive" cause of Lyons's death. We affirm.¹ On September 2, 1997, OSP Trooper Chin was patrolling on Crescent Cutoff Road near Gilchrist when he saw a pickup truck skid through a T-intersection and crash down the embankment on the opposite side of the road. In response, Chin pulled his unmarked patrol car off to the side of the eastbound travel lane and activated the car's grille lights.

At the same time, Trooper Lyons and Sergeant Rector were patrolling in the area. They learned about the accident and, with Rector driving their marked OSP Jeep Cherokee, approached the accident from the opposite (westbound) direction. Behind them, also traveling west, was a tractor trailer driven by defendant's employee, William Melillo. As the Jeep approached the accident scene, it began to slow and move gradually onto the westbound shoulder of the road. Melillo continued to approach at more than 50 miles per hour, but moved his truck to the left, partly over the yellow center line. At that point, Rector made a U-turn, turning in front of Melillo towards the opposite side of the road where Chin was parked. Melillo was unable to stop, and his truck struck the Jeep in a "T-bone" fashion. At the time of the collision, the Jeep's blue and red flashing lights were activated, as was its left turn signal. Both Lyons and Rector died as a result of the collision. Later laboratory tests revealed that Melillo had methamphetamine in his system at the time of the collision.

In June 1998, plaintiffs brought this wrongful death action against defendant. Plaintiffs alleged that Melillo had been negligent in numerous particulars, including driving the truck at excessive speed under the circumstances, failing to yield the right-of-way to an emergency vehicle, and driving under the influence of a controlled substance, and that Melillo's negligence had caused Lyons's death.

Before trial, plaintiffs moved to prevent defendant from presenting any "evidence, argument or information that asks the jury to attribute any fault for the accident to the actions of Sergeant Rector." Plaintiffs reasoned as follows: (1) Under ORS 656.018(1), which establishes workers' compensation exclusivity, Rector and the State of Oregon were immune from civil liability. (2) ORS 18.470 precludes "comparison of fault" with immune persons unless the injury is the "sole and exclusive fault" of the immune person. See ORS 18.470(2); ORS 18.470(5).² (3) Thus, any evidence or argument by defendant as to Rector's negligence was irrelevant to the material issues in the case. In addition, plaintiffs sought to exclude, as "unhelpful," opinion evidence by various OSP experts that Rector's U-turn was the "principal contributing factor" in causing the accident. The trial court denied plaintiffs' motions.

The case was tried to a jury in April 2000. During the trial, there were continuing discussions between the court and counsel as to the limitations, if any, on the jury's consideration of Rector's conduct and contribution to the collision. During their case-in chief, plaintiffs argued that the court should give the following precautionary instruction:

"If you find that Sergeant Rector's negligence was the sole and exclusive cause of the accident between the Oregon State Police Jeep and the Walsh truck, then neither defendant Walsh & Sons Trucking nor third-party defendant James May [the driver of the pickup truck that Chin saw skid through the intersection] is liable to the estate of Scott Lyons."

The court declined to do so, reasoning that the proposed instruction

"does suggest, inherent in the way it's phrased, that it puts the burden of proof on the defendant, as opposed to establishing that—putting it the way that—that you've met your burden of proof of showing some negligence by Walsh & Sons and that that negligence was a substantial factor."

In lieu of the instruction sought by plaintiffs, the court gave the following precautionary instruction:

"Sergeant Rector is not a party to this case because, under Oregon law, he and the Oregon State Police are immune from liability for negligence to the estate of Scott Lyons.

"You may, however, consider his actions as part of the overall circumstances existing at the time of this accident in assessing the claims of negligence in this case. If you find that Defendant Walsh & Sons' truck driver was negligent and that his negligence was a substantial factor in causing the accident and the death of Scott Lyons, you will not compare that negligence with any negligence by Sergeant Rector."

At the close of the evidence, plaintiffs proposed three alternative instructions that, while varying in their details, all directed the jury that it should not "weigh or consider" Rector's conduct unless it found that the accident was the "sole and exclusive" result of that conduct.³ The court declined to give any of those variations on the common theme:

"For the reasons we discussed quite robustly on Friday when we were off the record, I was persuaded that to include the language `sole and exclusive' would run too great a risk of suggesting to the jury, notwithstanding the other instructions here, that some burden of proof on that matter has been shifted to the defendant, and, therefore, I'm declining to give it."

Instead, the court instructed the jury as follows:

"As I told you earlier, Sergeant Rector and the Oregon State Police are immune from liability and are not parties to this lawsuit. If you find that defendant Walsh was negligent and that this negligence was a substantial factor in causing the accident and the death of Scott Lyons, you will not compare that negligence with any negligence of Sergeant Rector.

"* * * * *

"You will not compare any negligence of Sergeant Rector and any negligence of Walsh or [third-party defendant] May. Plaintiffs have the burden of proving by a preponderance of the evidence that defendant Walsh was negligent and that this negligence was a cause of the accident and the death of Scott Lyons and their damages.

"* * * In order to be a cause of the injury, an act must be a substantial factor in producing the injury. `Substantial' means important and material, and not insignificant. Many factors or things may operate independently or together to cause an accident. In such case, each may be a cause of the accident, even though the other would have been sufficient to cause the same accident. You need not find that one person's conduct was the sole cause of the accident."

For the same reasons that it rejected plaintiffs' proposed instructions, the court rejected plaintiffs' request that the jury be directed to answer a special interrogatory about whether the collision was caused "solely and exclusively" by Rector's conduct.⁴ Instead, the court chose to give a special verdict form that, without reference to Rector, merely asked:

"Was defendant WALSH & SONS TRUCKING CO., LTD. negligent in one or more of the ways claimed by the plaintiffs and, if so, was such negligence a cause of damage to the plaintiffs?"

The jury answered that question "No" and, thus, returned a verdict in favor of defendant.

On appeal, plaintiffs assign error to the trial court's denial of their motions in limine and refusal to give their requested jury instructions, as well as challenge the adequacy of the jury instructions that were given by the court. Virtually all of those assignments, whether pertaining to the admission of the evidence of Rector's role in the accident or the rejection of the proposed "sole and exclusive fault" instructions and special interrogatory, depend on a common premise: Given ORS 18.470's proscription that "there shall be no comparison of fault" with an immune person, Rector's role in causing the accident was irrelevant, and could not be properly considered, unless it was the "sole and exclusive cause" of the accident. As explained below, we reject that premise.

The validity of plaintiffs' fundamental premise depends on the answer to two questions. First, but for ORS 18.470(2) and (5), would evidence of Rector's conduct be relevant to determining whether defendant is legally responsible for Trooper Lyons's death? Second, if that evidence would otherwise be relevant, do ORS 18.470(2) and (5) somehow operate to alter that result? We consider each question in turn.

A party is liable in negligence only if its conduct was a "substantial factor" in causing the plaintiff's injury. Stoeger v. Burlington Northern Railroad Co., 323 Or. 569, 579-80, 919 P.2d 39 (1996) (identifying negligence and causation as material facts to be determined by the factfinder); Brennen v. City of Eugene, 285 Or. 401, 413, 591 P.2d 719 (1979) (test for legal...