Haas v. Estate of Carter
| Decision Date | 01 December 2021 |
| Docket Number | A169932 |
| Citation | 316 Or.App. 75,502 P.3d 1144 |
| Parties | Roberta HAAS and Kevin Haas, Plaintiffs-Appellants, v. The ESTATE OF Mark Steven CARTER and State Farm Mutual Automobile Insurance Company, Defendants-Respondents, and Gerald Campbell, Defendant. |
| Court | Oregon Court of Appeals |
Kathryn H. Clarke argued the cause and filed the briefs for appellants.
Leslie A. Kocher-Moar, Portland, argued the cause for respondent The Estate of Mark Steven Carter. Also on the brief was MacMillan, Scholz & Marks, P.C.
Ralph C. Spooner, Salem, argued the cause for respondent State Farm Mutual Automobile Insurance Company. Also on the brief were David E. Smith and Spooner & Much, PC.
Before Lagesen, Presiding Judge, and James, Judge, and Hadlock, Judge pro tempore.
HADLOCK, J. pro tempore This appeal raises issues about two uniform jury instructions regarding causation—the "but for" instruction and the "substantial factor" instruction—that may be given in negligence cases. Here, the underlying litigation related to an automobile collision in which a car driven by defendant Carter struck plaintiffs’ car from the rear. Both plaintiffs later had surgery related to neck and back pain and other symptoms, and they sued Carter in negligence, seeking to recover medical expenses and other damages. Before trial, plaintiffs asked the court to deliver both of the uniform jury instructions related to causation, but the trial court gave only the but-for instruction. The jury returned a defense verdict. On appeal, plaintiffs argue that the court erred when it refused to deliver the substantial-factor jury instruction as a supplement to the but-for instruction. Plaintiffs advocate for a rule that would require a substantial-factor instruction to be given in all cases in which there is evidence that the plaintiffs had underlying conditions that made them more susceptible to injury. We decline to adopt such a rule, and we reject plaintiffs’ contention that the trial court erred by not giving the substantial-factor instruction in this case. Accordingly, we affirm.
We briefly summarize the evidence pertinent to the issue raised on appeal although, when analyzing whether the trial court erred when it declined to give plaintiffs’ requested instruction, we ultimately view the evidence in the light most favorable to plaintiffs. See State v. Heaton , 310 Or. App. 42, 46, 483 P.3d 1209, rev. den. , 368 Or. 637, 496 P.3d 633 (2021) (). It is undisputed that a car driven by defendant Carter struck the back of the stopped car in which plaintiffs were sitting, at a relatively low speed. Plaintiff Roberta Haas experienced pain soon after the collision. Several months later, she was still experiencing pain, sought medical advice, and ultimately had spinal-fusion
surgery. Plaintiff Kevin Haas, who also experienced pain after the collision, had disc-replacement surgery a few years later. Plaintiffs presented medical evidence from which a jury could find that the automobile collision involved speed and forces sufficient to cause the injuries for which plaintiffs later sought surgical and other treatment. Plaintiffs’ evidence also supported their claim that, in fact, the collision did cause those injuries. Defendants presented contrary evidence suggesting that the speed and forces involved in the collision were not sufficient to cause plaintiffs’ injuries.
The record also includes evidence that both plaintiffs had underlying conditions that made them more vulnerable to suffering the types of injuries for which they sought treatment after the collision. In particular, the evidence established that Roberta Haas had had multiple previous spinal surgeries that included removal of vertebrae and implantation of medical hardware. The surgeon who operated on Roberta Haas after the collision deemed the pre-collision condition of her spine to be "a mess." He testified that, given her underlying condition, he would not have been surprised if she presented with the same symptoms that prompted him to perform surgery even in the absence of a car accident. The surgeon agreed with a suggestion by defense counsel that, for a person with Roberta Haas's underlying condition, even a sneeze could have made her symptomatic. Kevin Haas had previous mild injuries to his neck from other automobile accidents that had not required surgery; he also had degenerative symptoms that were not uncommon for people his age.
Plaintiffs sued Carter, alleging that both plaintiffs had suffered harm as a result of Carter's negligence. The suit also included a claim against Roberta Haas's insurer (State Farm Mutual Automobile Insurance Company) for breach of contract, alleging that the insurer had failed to pay all personal injury protection (PIP) benefits that were due.1 The case proceeded to trial.2 Plaintiffs submitted a written request for jury instructions, including two uniform instructions about causation, as follows:
(Boldface in original; footnote omitted.)
In a written memorandum supporting their request for the substantial-factor instruction, plaintiffs relied on the Supreme Court's discussion of causation instructions in Joshi v. Providence Health System , 342 Or. 152, 149 P.3d 1164 (2006). In Joshi , the court explained that the but-for causation instruction applies in most negligence cases and requires "a plaintiff [to] demonstrate that the defendant's negligence more likely than not cause the plaintiff's harm." Id . at 162, 149 P.3d 1164. However, the court also identified three categories of cases involving multiple causes in which the but-for instruction "fails" and a substantial-factor instruction applies, including when "a similar, but not identical result would have followed without the defendant's act." Id . at 161, 149 P.3d 1164 (). Plaintiffs argued that this case falls into that category of cases. Plaintiffs relied on evidence of their underlying conditions to support that argument, contending that "both plaintiffs’ degenerative conditions, and plaintiff Roberta Haas's prior susceptibility to injury, mean that a similar result to that which eventually occurred in this case—a lumbar fusion surgery—might have eventually taken place" even though "the timing of that surgery was directly influenced by" the collision.
At a hearing on the requested jury instructions, the trial court suggested that it was not persuaded by plaintiffs’ argument, viewing their concern about underlying conditions as being "addressed by the infirm condition instruction that you take your plaintiff the way that they are, as opposed to a causation issue where I give a substantial factor instruction." The court also noted its recollection that the substantial-factor instruction applies "when you have multiple actors potentially at the same time." Nonetheless, the court said that it would consider the issue further. Ultimately, the court rejected plaintiffs’ request for the substantial-factor instruction, apparently without further explanation on the record. In keeping with that ruling, the court delivered only a single jury instruction about causation: the but-for instruction.3 The jury returned a verdict for defendants.
On appeal, plaintiffs reiterate their argument that they were entitled to a substantial-factor instruction, which they characterize as supplementing the but-for instruction on causation. Plaintiffs contend that the trial court was wrong when it asserted that the instruction applies only in cases involving multiple tortfeasors. Instead, they assert, the substantial-factor instruction is appropriate in cases involving "multiple factors [that] were actual or potential causes of plaintiffs’ physical conditions." (Emphasis added.)
However, plaintiffs do not identify evidence establishing a way in which some particular event or condition other than the automobile collision caused (or contributed to causing) their injuries. Rather, they assert broadly that "the evidence was *** clear that other causes were or could be involved; those other causes were addressed in the testimony of every expert that testified." Viewed in the context of plaintiffs’ other arguments, it is clear that the "other causes" they reference are plaintiffs’ underlying infirmities.
In response, defendants argue, among other things, that this case does not fall within any of the Joshi categories for which the but-for instruction is inadequate and a substantial-factor instruction is required. That is so, defendants contend, because there is no evidence of multiple causes acting concurrently to bring about an injurious event. In that regard, Carter asserts that "[p]re-existing injuries or conditions are not concurrent causes of injury to which a ‘substantial factor’ standard could apply." (Emphasis in original.) State Farm argues similarly, contending that the evidence established only that plaintiff Roberta Haas had spinal conditions that made her more susceptible to future injury, not that those...
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