Mays v. Vejo

Decision Date10 December 2008
Docket NumberC062169CV.,A135680.
Citation224 Or. App. 426,198 P.3d 943
PartiesMarianna MAYS, Plaintiff-Appellant, v. Samira VEJO, Defendant-Respondent.
CourtOregon Court of Appeals

Michael H. Bloom, Lake Oswego, argued the cause for appellant. With him on the briefs was Michael H. Bloom, P.C.

Larry Dawson argued the cause for respondent. With him on the brief was Dawson & Dawson, P.C.

Before HASELTON, Presiding Judge, and ROSENBLUM, Judge, and RIGGS, Senior Judge.


Plaintiff appeals a judgment entered following a trial in which the jury awarded her $3,103.30 in economic damages and $1.00 in noneconomic damages arising from a car accident. Plaintiff advances three assignments of error. First, she assigns error to the trial court's refusal to resubmit the verdict to the jury with a clarifying instruction regarding the award of noneconomic damages. Second, she assigns error to the trial court's denial of her motion for a new trial. In essence, her position as to both the first and second assignments is the same-that because $1.00 constitutes only nominal (no) damages, the jury failed to follow Uniform Civil Jury Instruction (UCJI) 70.04, given by the trial court without objection, thereby rendering the verdict invalid. Because we reverse on the basis of the first two assignments of error, we do not reach plaintiff's third assignment of error, regarding the admissibility of photographs of property damage.

The facts relevant to our review are undisputed. Plaintiff was a passenger in a car that was rear-ended by a car driven by defendant. Defendant admitted liability for the accident and paid for repairs to the car that plaintiff was riding in, but the parties could not agree on the extent of plaintiff's injuries. Both of plaintiff's expert witnesses agreed that the accident caused plaintiff to incur cervical strain, migraine headaches, and ocular migraines. Defendant's expert, Dr. Sean Green, disagreed, noting that plaintiff had suffered from migraine headaches before the accident, that those and her ocular migraines were likely not caused by the accident, and that her neck injury was minor. Green acknowledged that plaintiff's neck injury was likely caused by the accident, that soft tissue neck injuries can cause migraine headaches, and that a minor head injury or trauma can cause an exacerbation of migraine symptoms among individuals already prone to migraines. He further testified that post-traumatic migraine headaches and ocular migraines usually develop within two weeks, and he commented that plaintiff did not seek medical treatment for her ocular migraines until four weeks after the accident.

Plaintiff requested and the trial court gave, without objection from defendant, UCJI 70.04, which states, "If you find that the plaintiff is entitled to recover economic damages, you must award some noneconomic damages." When the court announced the verdict, plaintiff requested that the jury be sent back for further deliberations and that it be reinstructed as to the law regarding returning a verdict for noneconomic damages if the jury awards economic damages. She asserted that an award of $1.00 is an award of nominal damages and, therefore, the jury's verdict was contrary to the law and the jury instruction given by the trial court. The trial court concluded that an award of $1.00 was "some damages" and that the verdict complied with UCJI 70.04. In so ruling, the court stated:

"I think Mr. Dawson [defendant's attorney] is correct in-you know, we told them they had to do some amount and that's the amount they came up with. I suppose the Court of Appeals can correct me if I'm wrong on it, but I'm 51 percent sure I'm right. That's about all I can say at this point."

Plaintiff thereafter moved for a new trial, renewing her argument that the verdict was invalid and contrary to the law of the case as set forth in UCJI 70.04. The trial court denied the motion, and plaintiff filed the present appeal.

As plaintiff asserts, a jury generally may not award economic damages in a negligence action without also awarding some noneconomic damages. See, e.g., Hall v. Cornett, 193 Or. 634, 643-46, 240 P.2d 231 (1952). UCJI 70.04 was promulgated by the Oregon State Bar Committee on Uniform Civil Jury Instructions pursuant to that well-established doctrine. The exception to that general rule can be found in Wheeler v. Huston, 288 Or. 467, 479, 605 P.2d 1339 (1980), in which the Supreme Court held that a jury verdict of economic damages without noneconomic damages may be valid in cases where evidence of the plaintiff's injury is purely subjective, the defendant's evidence indicates that the plaintiff's injury is not caused by the accident, and the objective evidence of a substantial injury is controverted by other competent evidence or could be disbelieved by the jury.1 Because that exception conflicts with the language of UCJI 70.04, the comment associated with the uniform instruction states that the instruction should not be given when the conditions described in Wheeler exist.2

On appeal, plaintiff asserts that the trial court erred in accepting the jury's verdict awarding economic damages with only nominal noneconomic damages. Defendant responds by arguing that the $1.00 in noneconomic damages complied with the instruction to award "some" noneconomic damages if awarding economic damages. In the alternative, defendant asserts that plaintiff invited the error in her closing argument. Defendant also argues that the evidence at trial would have supported a conclusion by the jury that one of the exceptions found in Wheeler applied.

We begin with the last point—that the jury's verdict was valid because one of the Wheeler exceptions applied. The problem with that argument is that defendant failed to object to the uniform instruction— and, consequently, she does not (and cannot) cross-assign error to it now. As the Supreme Court held in Columbia Digger Sand & Gravel Co. v. Ross Island Sand & Gravel Co., 145 Or. 96, 108-09, 25 P.2d 911 (1933), "[i]t is settled law that the charge of the court to the jury, without objections or exceptions thereto, whether right or wrong, becomes the law of the case." In the context of UCJI 70.04 and in keeping with that general principle, we have held that a plaintiff waived her objection to a verdict awarding only economic damages by failing to either request this instruction or move for a directed verdict on the issue. Bass v. Hermiston Medical Center, P.C., 143 Or.App. 268, 273, 922 P.2d 708 (1996). Put simply, "the rule as stated in this instruction, to which both parties agreed, became binding upon both of them as the `law of the case.'" Wampler v. Sherwood, ...

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5 cases
  • Kennedy v. Wheeler
    • United States
    • Oregon Supreme Court
    • December 11, 2014
    ...223 n. 5, 493 P.2d 138 (1972) (when neither party objected to jury instruction, it became the law of the case); Mays v. Vejo, 224 Or.App. 426, 430–31, 198 P.3d 943 (2008) (same).“Thus, we conclude that, in this case, at least the same nine jurors were required to agree on each answer in the......
  • Congdon v. Berg
    • United States
    • Oregon Court of Appeals
    • April 3, 2013
    ...261 Or. 206, 223 n. 5, 493 P.2d 138 (1972); Columbia Co. v. Ross Island Co., 145 Or. 96, 108–09, 25 P.2d 911 (1933); Mays v. Vejo, 224 Or.App. 426, 198 P.3d 943 (2008)rev. den.,346 Or. 213, 208 P.3d 963 (2009), we conclude that the same nine jurors were required to agree on both elements of......
  • Williams v. Funk, 06CV3105CC.
    • United States
    • Oregon Court of Appeals
    • August 5, 2009
    ...rule in Oregon that an award of economic damages must be accompanied by an award of noneconomic damages. Cf. Mays v. Vejo, 224 Or.App. 426, 429-30, 198 P.3d 943 (2008), rev. den., 346 Or. 213, 208 P.3d 963 (2009) (describing, generally, this rule and the exceptions announced in Wheeler, but......
  • Kennedy v. Wheeler
    • United States
    • Oregon Court of Appeals
    • August 28, 2013
    ...223 n. 5, 493 P.2d 138 (1972) (when neither party objected to jury instruction, it became the law of the case); Mays v. Vejo, 224 Or.App. 426, 430–31, 198 P.3d 943 (2008) (same). Thus, we conclude that, in this case, at least the same nine jurors were required to agree on each answer in the......
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