Holger v. Irish

• Court: Supreme Court of Oregon
• Writing for the Court: GRABER; UNIS; FADELEY; PETERSON
• Citation: 851 P.2d 1122,316 Or. 402
• Parties: Edith M. HOLGER, Personal Representative of the Estate of Ethel I. Loveall, Deceased, Respondent on Review, v. C. Edwin IRISH, M.D., Petitioner on Review. CC A8910-05814; CA A67769; SC S39414.
• Decision Date: 27 May 1993

Page 1122

851 P.2d 1122 316 Or. 402 Edith M. HOLGER, Personal Representative of the Estate of
Ethel I. Loveall, Deceased, Respondent on Review,
v.
C. Edwin IRISH, M.D., Petitioner on Review. CC A8910-05814; CA A67769; SC S39414. Supreme Court of Oregon,
In Banc. Argued and Submitted Jan. 11, 1993.
Decided May 27, 1993.

Page 1124

[316 Or. 403] Janet M. Schroer, of Schwabe, Williamson, & Wyatt, Portland, argued the cause for petitioner on review. On the petition were Mildred J. Carmack and Karen M. O'Kasey.

Dwight L. Schwab, of Schwab, Hilton & Howard, Portland, and David B. Williamson, of Williamson & Williamson, Portland, argued the cause for respondent on review. Mr. Williamson filed a response for respondent on review.

[316 Or. 404] GRABER, Justice.

This is an action for medical malpractice. Defendant is a surgeon who operated on plaintiff's decedent for colon cancer. During the operation, defendant placed pieces of absorbent gauze, known as laparotomy sponges, in decedent's abdomen; at the end of the surgery, he removed sponges. Two nurses assisting defendant counted the removed sponges and informed him that all the sponges were accounted for. Two years later, a sponge was discovered in decedent's abdomen. It was surgically removed. Nine months later, decedent, who was then 92 years old, died.

Plaintiff, as personal representative of decedent's estate, sued defendant and the hospital employing the nurses who assisted defendant during decedent's surgery. Before trial, plaintiff settled with the hospital. After settling with the hospital, plaintiff amended the complaint to delete all references to the hospital. The second amended complaint alleged only that defendant was negligent. As material here, the amended complaint alleged that defendant "fail[ed] to check and determine that all sponges * * * were removed." The amended complaint did not allege that the nurses were negligent or that they were defendant's agents or employees.

At trial, it was not disputed that the nurses who assisted defendant informed him that all the sponges had been removed from the abdomen of plaintiff's decedent. Plaintiff submitted proposed jury instructions on imputed negligence and respondeat superior. The trial court did not give those instructions.

Plaintiff also moved, before trial, to exclude any mention of her settlement with the hospital. The trial court denied that motion and informed the jury of the settlement to explain why the hospital was not a party at trial. The court later instructed the jury not to take the settlement into account in deciding defendant's liability or in calculating plaintiff's damages, if any. The jury returned a verdict in favor of defendant.

Plaintiff appealed, arguing, among other things, that the trial court erred in refusing to give plaintiff's requested jury instructions on imputed negligence and respondeat superior and that it erred in informing the jury that the hospital [316 Or. 405] had settled with plaintiff. The Court of Appeals reversed and remanded the case for a new trial, holding that "[n]o specific pleading of the vicarious liability theory was necessary" and that the trial court erred in refusing to submit that theory to the jury. Holger v. Irish, 113 Or.App. 290, 292, 834 P.2d 1028 (1992). The court also held that the trial court erred in informing the jury of plaintiff's settlement with the hospital. Id. at 298-99, 834 P.2d 1028. We affirm on different grounds the decision of the Court of Appeals, reverse the judgment of the circuit court, and remand the case to the circuit court for further proceedings.

In considering whether the trial court erred in refusing to give plaintiff's requested jury instructions on imputed negligence and respondeat superior, we first consider whether plaintiff was required specifically to plead a theory of recovery based on vicarious liability. Before the adoption of the Oregon Rules of Civil Procedure, this court held that a pleading similar to the one in this case was sufficient to support a claim for relief based on a theory of vicarious liability.

"The defendant also complains of an instruction given by the court which would authorize the jury to find the defendant responsible for the negligence of the nurse whom he left in charge of the case. It is argued * * * that the complaint does not allege negligence on the part of the nurse * * *. We think * * *

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that when it is sought to hold a defendant for a wrong committed by his servant, it is sufficient to allege that the defendant committed the act without mentioning the servant." Olson v. McAtee, 181 Or. 503, 520, 182 P.2d 979 (1947).

See also Kuhns v. Standard Oil Co., 257 Or. 482, 509, 478 P.2d 396 (1971) (where the plaintiff alleged that the defendant operated a truck terminal and was negligent in certain particulars, the plaintiff was allowed to prove direct operation of the terminal and negligence by the defendant or operation of the terminal by an agent and negligence of that agent); Cascade Warehouse v. Dyer, 256 Or. 377, 379, 471 P.2d 775, 474 P.2d 325 (1970), quoting Masters v. Walker, 89 Or. 526, 529, 174 P. 1164 (1918) ("It is said to be good pleading to allege that 'an act was done by the defendant, and it is competent to prove that averment by showing that the act was really done by an agent of the defendant thereunto duly [316 Or. 406] authorized, or that it was afterward ratified by the defendant.' "). But see Downs v. Nat. Share Corp., 152 Or. 546, 551-53, 55 P.2d 27 (1936) ("It will be observed that an act done through an agent may be averred in any one of three ways: (1) it may be described as the act of a principal without mention of the agency; (2) it may be described as the act of the agent performed on behalf of the principal; or (3) it may be described as the act of the principal performed through the instrumentality of an agent.").

The Oregon Rules of Civil Procedure, including ORCP 18 A, were promulgated in 1978 and took effect on January 1, 1980. ORCP 18 A provides:

"A pleading which asserts a claim for relief * * * shall contain:

"A. A plain and concise statement of the ultimate facts constituting a claim for relief without unnecessary repetition."

Interpreting ORCP 18 A, Davis v. Tyee Industries, Inc., 295 Or. 467, 479, 668 P.2d 1186 (1983), held:

"[W]hatever the theory of recovery, facts must be alleged which, if proved, will establish the right to recover. It is no longer permissible to veil the facts or theory behind a nonfactual pleading for money had and received and thereafter prove any state of facts which, historically, could support recovery on a theory of money had and received."

The court noted that the comment to ORCP 18 A states:

"The Council [on Court Procedures] decided to retain fact pleading as opposed to notice pleading, i.e., to retain a requirement of fairly specific description of facts as opposed to adopting the less specific fact description allowable in federal courts. * * * The necessity of pleading ultimate facts retains the present Oregon requirements of pleading facts at a fairly specific level." Id. at 476, 668 P.2d 1186 (internal quotation omitted; citation omitted).

This court also has noted "that under the Rules of Civil Procedure 'claim for relief' has replaced 'cause of action.' " State ex rel Gattman v. Abraham, 302 Or. 301, 310 n. 6, 729 P.2d 560 (1986). The term "claim for relief" is narrower than the term "cause of action." Id. at 310-11, 729 P.2d 560. The "Oregon rules require a pleader to state 'the ultimate facts constituting a claim for relief,' ORCP 18 A., rather than pleading a [316 Or. 407] form of action." Nearing v. Weaver, 295 Or. 702, 708 n. 5, 670 P.2d 137 (1983).

In Moore v. Willis, 307 Or. 254, 767 P.2d 62 (1988), this court held, in regard to pleading a defendant's negligence, that the Oregon Rules of Civil Procedure require more specificity than the principles previously in effect. The court stated:

"Before the adoption of the Oregon Rules of Civil Procedure, this court had held that a plaintiff need only plead that the defendant acted negligently. Pleading 'negligence' adequately stated the foreseeability element. See, e.g., McEvoy v. Helikson, 277 Or. 781, 787, 562 P.2d 540 (1977). But see Reynolds v. Nichols, 276 Or. 597, 600-01, 556 P.2d 102 (1976) (holding that a complaint alleging that the defendants were negligent did not adequately allege foreseeability). Recent decisions, however, consistently

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have required more than mere allegations of 'negligence.' See Solberg v. Johnson, [306 Or. 484, 490, 760 P.2d 867 (1988) ]; Fuhrer v. Gearhart by the Sea, Inc., 306 Or. 434, 441-42, 760 P.2d 874 (1988); Kimbler v. Stillwell, 303 Or. 23, 28-29, 734 P.2d 1344 (1987). Fuhrer v. Gearhart by the Sea, Inc., supra, upheld the dismissal of a complaint alleging that a resort owner negligently failed to warn guests of the dangers of the surf adjacent to the resort. The court explained:

" '[T]here is no allegation in the complaint that Gearhart knew or should have known of the dangerous condition of the ocean surf. Without knowledge of a dangerous condition or reason to know of the condition, Gearhart could not have foreseen an unreasonable risk of harm. If plaintiff were able to prove all the facts alleged in the complaint, plaintiff would still not have proved one element necessary to recovery, the foreseeability to defendant of an unreasonable risk of harm to persons in plaintiff's position.' 306 Or. at 441 [760 P.2d 874].

"See also 306 Or. at 442-43 [760 P.2d 874] (Jones, J., specially concurring).

"We hold that, under the fact pleading requirement of ORCP 18 A, an allegation of 'negligence,' without more, does not adequately plead the foreseeability element of the tort." 307 Or. at 258-59, 760 P.2d 874 (footnote omitted).

In other words, under ORCP 18 A, a pleader is required to state in what way the defendant allegedly was negligent.

[316 Or. 408] In Lancaster v....