Elan v. Tate
| Decision Date | 12 September 2018 |
| Docket Number | A161744 |
| Citation | 294 Or.App. 76,430 P.3d 179 |
| Parties | David ELAN, Plaintiff-Respondent, v. Alana Lynn King TATE, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Wendy M. Margolis, Portland, argued the cause for appellant. Also on the brief was Cosgrave Vergeer Kester LLP.
Joshua V. Callahan, Clackamas, argued the cause for respondent. Also on the brief was Vivian R. Solomon.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
In this personal injury case, defendant appeals a judgment awarding plaintiff economic and noneconomic damages, contending that plaintiff’s evidence was insufficient to show that plaintiff suffered permanent injury. Consequently, defendant contends, the trial court erred in instructing the jury on permanent injury and presenting the jury with information from mortality tables. We agree with defendant and, accordingly, reverse and remand.1
We summarize all the relevant evidence to evaluate "whether there was some evidence in the record from which the jury could have reached a verdict that was consistent with the [challenged] instruction." Montara Owners Assn. v. La Noue Development, LLC , 357 Or. 333, 349, 353 P.3d 563 (2015) (internal quotation marks omitted); see also id. at 348, 353 P.3d 563 ().
It is undisputed that plaintiff, who was 78 years old at the time of trial, was walking by the road near a curve when the side-view mirror of defendant’s car hit his arm, causing him to spin around and fall down. Plaintiff was taken to a hospital, where he remained overnight. At trial, the parties disputed whose negligence—defendant’s or plaintiff’s—caused plaintiff’s injuries. They also disputed the amount of plaintiff’s damages. The question relevant to our analysis is whether plaintiff presented sufficient evidence to establish that he suffered a head injury
that was permanent. On that subject, plaintiff presented testimony from himself, Barmanche, and Schaible.
Schaible, a physical therapist, testified that plaintiff was referred to her by a doctor because plaintiff returned to the hospital a week after the crash suffering from symptoms of a concussion sustained during the crash.2 Those symptoms included sensitivity to sound, shoulder pain and reduced range of motion in his neck, headaches, vision issues, and "obvious memory and concentration issues." Over several months during which plaintiff received physical therapy, occupational therapy, and speech therapy, he made good progress in his ability to walk and balance. Overall, plaintiff did quite well.
Plaintiff testified about his symptoms after the crash. He also testified that, at the time of trial, 18 months after the crash, he still had headaches, mood problems, and memory issues as a result. After the crash, he felt "goofy" and He explained that, since the crash, he had That problem continued at the time of trial.
Barmanche, a retired emergency room physician, testified that concussion-related symptoms like the symptoms plaintiff experienced after the crash "can last from days to weeks to months to years even following minor concussive events."
Barmanche testified that "[i]t’s really unpredictable about who is going to experience those types of symptoms, when they’re going to come on and how long they’re going to last."
Plaintiff asked the court to instruct the jury on permanent injury and plaintiff’s life expectancy as reflected on mortality tables. Defendant objected, contending that neither Barmanche’s nor Schaible’s testimony showed that plaintiff’s head injury
was a permanent injury. Plaintiff contended that the testimony was sufficient because it showed that The court agreed and instructed the jury as follows:
The jury found that both parties were negligent, apportioned 85 percent of the fault to defendant and 15 percent to plaintiff, and awarded plaintiff economic and noneconomic damages.
Defendant appeals, assigning error to the court’s instruction on permanent injury. Parties are entitled to jury instructions consistent with their theory of the case if the instructions correctly state the law, are based on the pleadings, and are supported by the evidence. Hernandez v. Barbo Machinery Co. , 327 Or. 99, 106, 957 P.2d 147 (1998).
As noted above, here, our task is to evaluate "whether there was some evidence in the record from which the jury could have reached a verdict that was consistent with the instruction." Montara Owners Assn. , 357 Or. at 349, 353 P.3d 563 (internal quotation marks omitted). If there was not, we must determine whether the instruction substantially affected defendant’s rights. Id. at 345, 353 P.3d 563 (citing ORS 19.415(2) ).
A permanent injury is an injury that "will last during the life of the injured person." Skultety v. Humphreys , 247 Or. 450, 455, 431 P.2d 278 (1967). That is different from future pain and suffering, which need not last for the person’s lifetime. Id. at 456, 431 P.2d 278 (). To prove that the defendant’s negligence caused a particular injury, "the evidence must be sufficient to establish that such a causal relationship is reasonably probable and * * * for this purpose testimony that an injurious consequence is ‘possible,’ rather than ‘probable,’ is not sufficient." Feist v. Sears, Roebuck & Co. , 267 Or. 402, 407, 517 P.2d 675 (1973). Thus, the question here is whether plaintiff presented evidence from which the jury could find that it was reasonably probable that plaintiff’s head injury
would last for his lifetime.
We conclude that plaintiff’s evidence did not meet that standard. Although plaintiff presented evidence that his injury persisted at the time of trial and, based on that fact, that it would likely persist for some period into the future, there was no evidence from which the jury could find that it was reasonably probable that plaintiff’s injury would last for his lifetime.
Schaible did not testify at all about the permanency of plaintiff’s injury. Plaintiff himself testified only that his symptoms continued at the time of trial. Barmanche’s testimony indicated that plaintiff was in the 15 percent of people who suffer long-term symptoms after a head injury
like plaintiff’s. Consequently, Barmanche’s testimony provided the jury with a basis on which to find that plaintiff would suffer symptoms "from days to weeks to months to years" after the crash and that the symptoms would last longer than average in plaintiff because of his age. Because the trial took place three years after the crash, plaintiff’s evidence established that he was still suffering symptoms for sometime afterwards. But Barmanche’s testimony provided the jury with no way to evaluate whether plaintiff’s injury would last for the rest of plaintiff’s life rather than for a few more months or a few years. Instead, Barmanche testified that "[i]t’s really unpredictable" "how long [those symptoms are] going to last." From plaintiff’s evidence, the jury could not find that it was reasonably probable that plaintiff’s injury would persist for the rest of his life; any conclusion on that question would be purely speculative.
Plaintiff contends that, notwithstanding his failure to present evidence that his injury would continue for his lifetime, we must assume that an injury that has lasted three years, as his has, is permanent. Plaintiff asserts that, under Supreme Court case law, when "there is no way for a medical expert to predict whether [or] how long [the plaintiff’s] symptoms will last," we instead consider the "length of time" during which the injury has already persisted to decide whether the injury is permanent.
We understand the cases on which plaintiff relies to stand for the principle that a jury can find that an injury is...
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