Davis By and Through Davis-Toepfer v. O'Brien

• Decision Date: 06 April 1995
• Docket Number: S,DAVIS-TOEPFE
• Citation: 891 P.2d 1307,320 Or. 729
• Parties: A.J. DAVIS, By and Through Loriepecial Conservator, Petitioner on Review, v. Steven O'BRIEN and Nancy O'Brien, doing business under the assumed name "O'Brien & Sons Logging," Respondents on Review. CC 911478; CA A79007; SC S41621.
• Court: Oregon Supreme Court

Page 1307

891 P.2d 1307

320 Or. 729

A.J. DAVIS, By and Through Lorie DAVIS-TOEPFER, Special Conservator, Petitioner on Review, v. Steven O'BRIEN and Nancy O'Brien, doing business under the assumed name "O'Brien & Sons Logging," Respondents on Review.

CC 911478; CA A79007; SC S41621.

Supreme Court of Oregon In Banc.

Argued and Submitted Jan. 12, 1995.

Decided April 6, 1995.

Edward J. Harri, Salem, argued the cause for petitioner on review. With him on the brief was Michael B. Brink, of Weatherford, Thompson, Quick & Ashenfelter, P.C., Albany.

Joel S. DeVore, of Luvaas, Cobb, Richards & Fraser, P.C., Eugene, argued the cause and filed the brief for respondents on review.

Kathryn H. Clarke, Portland, appeared and filed a brief on behalf of amicus curiae Oregon Trial Lawyers Ass'n.

VAN HOOMISSEN, Justice.

At issue in this case is whether the trial court erred in the manner in which it entered judgment on the jury's verdict for plaintiff. The special verdict assigned 96.5 percent of the fault for plaintiff's injuries to a non-party and 3.5 percent to defendants O'Brien (hereinafter "O'Brien"). The trial court reduced plaintiff's damages recoverable from O'Brien to 3.5 percent of plaintiff's total damages, in the light of the jury's allocation of proportionate fault, and entered judgment accordingly. On appeal, the Court of Appeals affirmed, holding that "plaintiff has failed to preserve or assign as error the predicates for the jury's determination of proportionate fault under ORS 18.480." Davis v. O'Brien, 128 Or.App. 428, 431, 875 P.2d 1193 (1994). For the reasons that follow, we reverse.

In 1989, plaintiff and his sister, Tiara Toepfer, were passengers in a car driven by their grandmother, Eunice Holt, when their car collided with O'Brien's log truck. Holt was killed in the accident. Before filing this action, plaintiff settled with Holt's estate for $100,000.

Plaintiff and his sister, Tiara, filed a complaint against both Holt's estate and O'Brien alleging negligence. Because plaintiff already had settled with the Holt estate, his only claim was against O'Brien. Tiara's claim was against both the Holt estate and O'Brien. Before trial, Tiara settled with the Holt estate and O'Brien, and the trial court entered a judgment of dismissal as to Tiara. Plaintiff then filed an amended complaint, naming only O'Brien, who responded with an affirmative defense that plaintiff's injuries were caused by Holt's negligence.

Before trial, plaintiff moved in limine to exclude evidence of Holt's fault and of his settlement with Holt's estate, arguing that the comparative fault statutes, ORS 18.470-.485, ¹ allow the jury to assess only the relative fault of parties before the court.

Plaintiff relied on this court's decision in Mills v. Brown, 303 Or. 223, 735 P.2d 603 (1987). A degree of uncertainty was added to the argument by the question whether a 1987 legislative amendment to ORS 18.485 had changed the rule of law stated in Mills.

The trial court stated:

"I'm still satisfied that somehow, at least for the purposes of economic damages, there must be a determination by the jury that the defendant did or did not--was or was not is probably the better word, 15 percent at fault in order to allocate the economic damages.

" * * * * *

"This Court rules that, as I've said a moment ago, for the purposes of economic damages, the trier of fact must determine whether or not this defendant is at least 15 percent at fault or not.

"This Court further holds that the question to be put to the jury on economic damages is what are--what are the full amount, and if that criterion of 15 percent is met, then he's severally liable for that.

" * * * * *

"As to the noneconomic damages, as I understand the law, there is joint and several liability. So this defendant may very well be responsible for the full amount with no 15 percent consideration.

"Given those rulings, certainly evidence about the fault of both Mrs. Holt and the driver defendant * * * The fault of those two people's going to have to be talked about."

The trial court and counsel then discussed what to tell the jury about plaintiff's settlement with the Holt estate, and what the appropriate form of verdict would be. When the court stated that the jury would be asked whether Holt was negligent in any respect, plaintiff's counsel objected, stating:

"Now I've got to defend the settling party. There's nobody at trial who's going to be defending that conduct. So as a practical matter to litigants, if this becomes the law statewide, we're all going to have to have settlement agreements that require the settling defendant to stay at trial and defend themselves."

The trial court replied:

"Could be. I can't account for the consequences of what I understand to be the law. You've heard my ruling."

During trial, O'Brien's evidence focused on Holt's fault in causing the accident.

The trial court instructed the jury:

"I instruct you that the parties in this case have stipulated or agreed that the plaintiff, A.J. Davis, bears no fault or negligence, if you will. * * *

"There are two other matters with regard to negligence, or not with regard to it, however you look at it. In this case, if you determine that the plaintiff is entitled to a verdict, you must apportion the percentage of negligence or fault between the drivers of the two vehicles.

"Also in this case, a settlement has occurred between the plaintiff and the estate of Eunice Holt, deceased. You are not to infer from the settlement that the defendants, Steven and Nancy O'Brien, doing business as O'Brien Logging, are or are not liable to plaintiff. I further instruct you that if the ver--your verdict is for the plaintiff, and in accordance with the other instructions I have and will give you, and if you find that plaintiff has been damaged, you are to return a verdict for the full "In order to be a cause of injury, an act or omission must be a substantial factor in producing the injury. A substantial factor is an important or material factor, and not one that is insignificant. Many factors or things may operate either independently or together to cause injury. In such a case, each may be the cause of injury, even though the others would have been sufficient of themselves to cause the same injury. You need not find the conduct of either driver was the only cause of the injury."

amount of plaintiff's damages. Do not reduce the [320 Or. 734] amount of the plaintiff's damages, if any, by reason of the settlement, or by reason of the percentage of negligence on either of the drivers.

The jury returned the following special verdict:

"We the jury, find:

"1. Were defendants, Steven and Nancy O'Brien, doing business as O'Brien & Sons Logging, negligent in one or more of the ways alleged in Plaintiff's complaint, and, if so, was such negligence a cause of damage to Plaintiff?

"ANSWER: Yes (Yes or No)

"If your answer to question 1 is 'no.' your verdict is for the defendants. Your presiding juror should sign this verdict form. Do not answer any more questions. If your answer to question 1 is 'yes,' proceed to question 2.

"2. Was Eunice Holt, the driver of the vehicle in which Plaintiff was a passenger, negligent in one or more of the ways alleged in Defendants' answer, and if so, was such negligence a cause of damage to Plaintiff?

"ANSWER: Yes (Yes or No)

"At least nine of you who answered yes to question 1 must also agree on the answer to question 2 if the answer to question 2 is 'yes'; however, the same nine need not agree on both answers if question 2 is answered 'no.'

"If your answer to question 2 is 'no,' proceed to question 4. Do not answer question 3.

"If your answer to question 2 is 'yes,' proceed to question 3.

"3. What is the percentage of negligence which caused damage to Plaintiff?

                "ANSWER:  Defendants                             3 1/2  %
                                                                ------
                          Driver of Plaintiff's Car             96 1/2  %
                                                                ------
                "(The percentages must total 100%)
                

"At least the same nine of you who agreed on the answer to questions 1 and 2 must also agree on the answer to question 3.

                "4. What are Plaintiff's damages
                "ANSWER:  Economic Damages:                     $ 69,175.00
                                                                -----------
                          Noneconomic Damages:                   125,000.00
                                                                -----------
                

"Do not reduce the damages by reason of the prior settlement or by reason of the percentage of negligence of the drivers because the court will do this when entering judgment."

O'Brien submitted a proposed form of judgment that allowed plaintiff recovery of 3 1/2 percent of the total damages awarded. Plaintiff submitted an alternative form of judgment that would have reduced the damages found by the jury by the amount of the Holt settlement, allowing plaintiff to recover $94,175 from O'Brien. The trial court accepted O'Brien's form of proposed judgment and rejected plaintiff's form. Over plaintiff's objection to the form of judgment submitted by O'Brien, the trial court entered judgment for plaintiff in the sum of $6,794.38 ² plus costs and disbursements.

On appeal, plaintiff assigned as error the trial court's entry of "judgment comparing "We emphasize what this assignment does not do. It does not challenge the trial court's denial of plaintiff's motion in limine pertaining to defendants' presentation of evidence of Holt's fault and defendants' 'proportionate fault' jury arguments based on that evidence. Nor does the assignment challenge the legal sufficiency or propriety of: (1) the instructions directing the jury to fix both Holt's and defendants' percentages of fault; or (2) the verdict form to the same effect. In sum, plaintiff has failed to preserve or assign as error the predicates for the jury's determination of proportionate fault under ORS 18.480.

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