Lasley v. COMBINED TRANSPORT, INC.

• Decision Date: 03 March 2010
• Docket Number: A137222.,060808260
• Citation: 234 Or. App. 11,227 P.3d 1200
• Parties: Clarence D. LASLEY, as personal representative for the Estate of Mark Alan Lasley, Plaintiff-Respondent Cross-Appellant, v. COMBINED TRANSPORT, INC., Defendant-Appellant Cross-Respondent, and Judy Marie Clemmer, Defendant-Respondent, Cross-Respondent.
• Court: Oregon Court of Appeals

227 P.3d 1200

234 Or. App. 11

Clarence D. LASLEY, as personal representative for the Estate of Mark Alan Lasley, Plaintiff-Respondent Cross-Appellant, v. COMBINED TRANSPORT, INC., Defendant-Appellant Cross-Respondent, and Judy Marie Clemmer, Defendant-Respondent, Cross-Respondent.

060808260; A137222.

Court of Appeals of Oregon.

Argued and Submitted July 22, 2009.

Decided March 3, 2010.

Allyson S. Krueger, Portland, argued the cause for appellant — cross-respondent. With her on the briefs were Danny L. Hitt, Jr., and Hitt Hiller Monfils Williams LLP.

Stephen C. Hendricks, Portland, argued the cause for respondent — cross-appellant. With him on the briefs was Hendricks Law Firm, P.C.

Edward L. Daniels, Albany, argued the cause for respondent — cross-respondent. With him on the brief was Law Office of Daniels & Ivers.

Before SERCOMBE, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.^*

BREWER, C.J.

This is an appeal by one of two defendants in a wrongful death action. Defendant Combined Transport appeals from a judgment for plaintiff. The jury found Combined Transport 22 percent at fault and the other defendant, Clemmer, 78 percent at fault. We affirm in part, reverse in part, and remand for a new trial.

Combined Transport is a trucking company that specializes in transporting large loads of glass. While a Combined Transport truck was transporting a load of glass on I-5, 12,000 pounds of glass fell from the truck onto the highway. The glass did not fall on any other vehicles. However, the broken glass covered both lanes of traffic, resulting in northbound traffic being stopped while emergency responders cleared the glass from the highway. The clean-up took about one hour and then traffic began to move again slowly. By that time, though, the traffic was backed up for four miles.

Decedent was operating his vehicle northbound on I-5 in the vicinity of the clean-up process. As decedent's vehicle approached the traffic jam, Clemmer's vehicle struck decedent's vehicle from behind at about 65 miles per hour. Decedent's vehicle, in turn, struck a semi-truck in front of it, and decedent's vehicle instantly caught fire. Decedent died before rescue workers arrived on the scene. Clemmer later pleaded guilty to manslaughter and driving under the influence of intoxicants (DUII).

Plaintiff, decedent's father, brought this wrongful death action against Combined Transport and Clemmer. Plaintiff alleged that both Clemmer and Combined Transport negligently caused decedent's death. Clemmer admitted every allegation in the complaint with the exception of the amount of damages. Combined Transport denied that it was negligent and that its conduct caused decedent's death. Combined Transport also asserted cross-claims against Clemmer for contribution and indemnity.

At trial, the court excluded testimony regarding the criminal charges against Clemmer and her intoxication. Combined Transport made an offer of proof that included medical records showing Clemmer's blood alcohol level on the night of the accident, the names of witnesses who would testify that they observed Clemmer drinking earlier in the evening, and the judgments of conviction against Clemmer arising from this incident and a previous DUII conviction. The trial court allowed testimony from several witnesses who saw Clemmer driving earlier in the evening. The witnesses testified to her excessive speed, tailgating, weaving in and out of her lane, and hitting a concrete barrier. Four witnesses testified that they called 9-1-1 because they were concerned about Clemmer's driving.

At the conclusion of the evidence at trial, Combined Transport moved for a directed verdict, arguing that there was no evidence that the accident was a foreseeable result of Combined Transport's conduct. The trial court denied the motion. The jury found that Combined Transport was negligent and that its negligence caused decedent's death. The jury was asked, "What is the percentage of each party's negligence that caused damage to the plaintiff?" The jury answered 22 percent for Combined Transport and 78 percent for Clemmer.

Combined Transport makes eight assignments of error, which can be assigned to four categories: (1) the trial court erred in denying its motion for a directed verdict, (2) the court erred in striking Combined Transport's cross-claim against Clemmer for contribution, (3) the court erred in excluding evidence of Clemmer's intoxication and of a previous conviction for DUII, and (4) the court erred in admitting evidence that Combined Transport had violated federal trucking regulations and in instructing the jury on negligence per se.

Plaintiff also cross-appeals, making two assignments of error. First, plaintiff argues that the trial court erred in calculating Combined Transport's share of the noneconomic damages. Second, plaintiff asserts that the court erred in admitting evidence of Clemmer's negligent driving at a remote time and distance from the accident.

FORESEEABILITY

We discuss Combined Transport's eighth assignment of error first, because it is potentially dispositive. Combined Transport argues that the trial court erred in denying its motion for a directed verdict on the ground that the evidence did not establish that its conduct foreseeably resulted in decedent's injuries and death.

In reviewing the denial of a motion for directed verdict, we consider the evidence, including any inferences, in the light most favorable to the party that obtained a favorable verdict, and the verdict cannot be set aside "unless we can affirmatively say that there is no evidence from which the jury could have found the facts necessary" to support the verdict. Brown v. J.C. Penney Co., 297 Or. 695, 705, 688 P.2d 811 (1984). "The issue of liability for harm actually resulting from defendant's conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff." Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 17, 734 P.2d 1326 (1987). Foreseeability ordinarily presents questions of fact; however, where no reasonable juror could find that the kind of harm that befell the plaintiff was the foreseeable result of the defendant's negligent act, the harm is unforeseeable as a matter of law. Buchler v. Oregon Corrections Div., 316 Or. 499, 509, 853 P.2d 798 (1993).

In several previous cases, the Supreme Court has concluded that the plaintiff's injury was unforeseeable as a matter of law. In Hawkins v. Conklin, 307 Or. 262, 767 P.2d 66 (1988), the court held that a tavern owner was not liable for injuries caused by a violent patron, because the owner had no knowledge or reason to know of the patron's violent tendencies when she served him alcohol.

In Buchler, a prisoner escaped from custody when the prisoner's work crew supervisor negligently left the keys in the ignition of a transport van. The prisoner then stole a gun from his mother's house 50 miles away and shot the plaintiff with it. The court held that the plaintiff's injury was not foreseeable because the prisoner did not have a history of violence. 316 Or. at 502, 853 P.2d 798.

In Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or. 329, 83 P.3d 322 (2004), an accounting firm negligently completed an audit of the plaintiff's tax returns, knowing that the plaintiff planned to make a public securities offering. As a result of the defendant's negligence, the securities offer was delayed by about six weeks. In that time period, the market declined significantly, and the price at which the plaintiff could offer its shares was measurably lower. Id. at 333, 83 P.3d 322. The court held that the decline in the market, not the defendant's negligence, was the "harm-producing force." Id. at 345, 83 P.3d 322. Accordingly, the court held that the defendant was not liable as a matter of law. Id. at 347, 83 P.3d 322.

However, the Supreme Court recently has cautioned that Buchler and Oregon Steel Mills, Inc., "turned on the specific facts before the court. Neither decision purports to convert every subsequent act of negligence into an `intervening harm-producing force' that will immunize a defendant from responsibility for its own negligence." Bailey v. Lewis Farm, Inc., 343 Or. 276, 289-90, 171 P.3d 336 (2007). The court went on in Bailey to reaffirm its decision in Hills v. McGillvrey, 240 Or. 476, 402 P.2d 722 (1965). In Hills, a fatal automobile accident was caused by a driver losing control of her vehicle after a mechanic installed the wrong part. The mechanic had ordered the correct part, but the supplier negligently sent the wrong one. Then, the mechanic negligently failed to verify that the part that arrived was the right part before installing it. The decedent's estate sued the mechanic and the supplier. The supplier claimed that the injury was not foreseeable and that the mechanic's negligence caused the accident. The court held:

"If it was reasonably foreseeable that some harm to the traveling public could result from the installation of the wrong part on an automobile, and if it was reasonably foreseeable that the mechanic might negligently install on an automobile a part supplied him for such a purpose, then it would follow that there was a duty on the part of the supplier not to supply the mechanic the wrong part."

Id. at 482, 402 P.2d 722. Accordingly, the court concluded that the question whether the supplier's negligence foreseeably resulted in the accident was a triable issue of fact. Id.

Combined Transport argues, first, that decedent's injuries and death did not foreseeably result from Combined Transport's conduct, and, second, that Clemmer's negligence was an intervening harm-producing force that made decedent's injuries and death unforeseeable. In its first argument, Combined Transport contends:

"The decedent was killed four miles from the spill by Clemmer, the drunk driver. The injury occurred one and

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