Scott v. Kesselring

• Decision Date: 08 July 2022
• Docket Number: CC CV15110065(SC S068503)
• Citation: 370 Or. 1,513 P.3d 581
• Parties: Michelle SCOTT, Petitioner on Review, v. Leslie KESSELRING and Kesselring Communications, LLC, Respondents on Review.
• Court: Oregon Supreme Court

370 Or. 1

513 P.3d 581

Michelle SCOTT, Petitioner on Review,

v.Leslie KESSELRING and Kesselring Communications, LLC, Respondents on Review.

CC CV15110065(SC S068503)

Supreme Court of Oregon.

Argued and submitted January 13, 2022.

July 8, 2022

Travis Eiva, Eugene, argued the cause and filed the briefs for petitioner on review.

Julie A. Smith, Cosgrave Vergeer Kester LLP, Portland, argued the cause and filed the brief for respondents on review.

James S. Coon, Thomas, Coon, Newton & Frost, Portland, and Kathryn H. Clarke, Portland, filed the amicus curiae brief for Oregon Trial Lawyers Association.

Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson, and Garrett, Justices, and Nakamoto, Senior Judge, Justice pro tempore.^**

WALTERS, C. J.

In this personal injury case, defendant rear-ended plaintiff's vehicle, and plaintiff suffered physical and emotional injuries as a result. Plaintiff claimed that her emotional injuries were so severe that she attempted to take her own life and was hospitalized. Defendant disputed responsibility for that harm on the ground that her conduct did not unreasonably create a foreseeable risk of such harm but argued that the court should exclude certain evidence of her conduct—that, immediately before the collision, she had been using her cellphone—as irrelevant and unfairly prejudicial. Reasoning that evidence of defendant's conduct could affect the jury's determination of the foreseeability question and was not unfairly prejudicial, the trial court denied defendant's motion. After a jury verdict in plaintiff's favor, the trial court entered judgment, and defendant appealed. The Court of Appeals reversed. Scott v. Kesselring , 308 Or.App. 12, 479 P.3d 1063 (2020). For the reasons that follow, we agree with the trial court, affirm the judgment that it entered, and reverse the contrary decision of the Court of Appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from an automobile collision between defendant¹ and plaintiff. We recite the facts as alleged, denied, and admitted in the parties’ pleadings and as adduced at trial. In her amended complaint, plaintiff alleged the following. On the day of the collision, it was raining heavily, and the roads were slick. Defendant knew of those conditions and that other motor vehicle accidents had occurred that day. Defendant used her cellphone to place a non-emergency call to a client and, while doing so, she crashed into the rear of plaintiff's vehicle. Plaintiff alleged that defendant was negligent in one or more of the following particulars:

"a. In failing to keep and maintain a lookout for traffic in front of her;

"b. In driving too fast for circumstances then there existing; and

"c. In following traffic at a distance that was too close in violation of ORS 811.485."

As a result of her negligence, defendant caused plaintiff physical injuries as well as severe emotional distress, including pain, anxiety, and post-traumatic stress. Plaintiff sought $97,505 in past medical expenses, $50,000 in future medical expenses, and $350,000 in noneconomic damages.

In her amended answer, defendant responded as follows. Defendant admitted that she knew that it was raining heavily, that the roads were slick, and that other motor vehicle accidents had occurred that day. Defendant denied plaintiff's allegations that defendant was using her cellphone to place a call and that defendant was negligent in the alleged particulars, but she also reframed the issues and "admitted" that "immediately before the accident, [p]laintiff was slowing in traffic as [defendant] was looking down. When [defendant] looked back up, she was unable to stop in time and rear-ended plaintiff's 2012 Dodge SUV." Defendant also "admitted" that "she is responsible for causing the accident," but "denied" that "she is responsible for causing the full nature and extent of plaintiff's alleged injuries and damages."

Before trial, defendant filed proposed jury instructions and a motion in limine asking the court to exclude all mention of her cellphone use, because "[a]ny evidence regarding [defendant's] alleged cell phone ‘use’ is irrelevant to any issue in this case, as [defendant has] admitted fault. Any probative value of this evidence is substantially outweighed by the risk of unfair prejudice to [d]efendant[ ]. OEC 401, 402 and 403." Defendant's requested jury instructions included one stating that she had "admitted liability," and another on foreseeability, Uniform Jury Instruction 20.03:

"A person is liable only for the reasonably foreseeable consequences of his or her actions. There are two things that must be foreseeable. First, the plaintiff must be within the general class of persons that one reasonably would anticipate might be threatened by the defendant's conduct. Second, the harm suffered must be within the general class of harms that one reasonably would anticipate might result from the defendant's conduct."

At the hearing on defendant's motion in limine , the court questioned the parties about the issues for trial, and, in that context, the parties discussed defendant's requested foreseeability instruction. Plaintiff did not object to the instruction but noted that including a foreseeability instruction would not make sense in the context of an admitted negligence case:

"I can't tell what the defendant is admitting and what the defendant is not admitting. All—there's an air of confusion and avoidance about what the defendant is or is not admitting. Is the defendant admitting that ‘I caused the crash, I caused injury, I caused damage, and it was all foreseeable,’ and the only question is how to compensate the plaintiff.

"Or is the defendant saying, ‘I admit I caused the crash, don't ask me how,’ and then, ‘I get to contest every single other issue of common law negligence beyond that.’ And if that's what the defendant is asking for then plaintiff is asking for the opportunity to demonstrate—to put on proof of all of the elements of common law negligence."

Defendant argued in response that she had admitted "negligence" and that she had "caused injury to plaintiff." Defendant stated that she was contesting "the extent of plaintiff's injuries" and the foreseeability of plaintiff's suicide attempt:

"I am arguing foreseeability. * * *

"* * * * *

"Yes. UCJI 20.03, on the suicide attempt, we have admitted the defendant was negligent. We have admitted the defendant caused injury to plaintiff.

"What we are contesting is the extent of the injuries, and that it was not foreseeable that she would attempt suicide following this accident."

Defendant argued that her use of a cellphone did not affect whether it was "foreseeable" that plaintiff would attempt suicide, making the cellphone use irrelevant and therefore inadmissible. In addition, defendant argued that the cellphone evidence was unfairly prejudicial under OEC 403.

The trial court denied defendant's motion in limine, explaining as follows: "I do consider that the degree of risk * * * bears on the scope of harms that might reasonably be anticipated. I've alluded to that with several of my remarks. And I think [that the cellphone use] is a circumstance here that is germane to that consideration." Among the "remarks" to which the court referred were the following:

"Cellphone use could result in a really bad accident on the freeway so the scope of foreseeability, you know, might even extend to post-traumatic stress, might even extend that far. If you hit somebody hard enough going that fast and you know what, you drive around distracted, there's a degree of foreseeability about the scope of the harm.

"* * * * *

"[I]t becomes a question of foreseeability of harm and scope of harm that a person might anticipate in a context like this.

"* * * * *

"[T]he type of risk that * * * you undertake correlates with the foreseeability of the loss. The greater the disregard, the greater the foreseeability of the loss. *** The more limited in scope the disregard or the negligence, the less foreseeability attaches to the loss.

"* * * * *

"Now, if we're 40 miles over the speed limit, it's different than if we're 20 miles over the speed limit. Both might be negligent, but the one might invoke a scope of loss or harm greater than the other and so foreseeability would seem to attach to such a consideration."

The trial court also concluded that the probative value of the cellphone evidence was not substantially outweighed by unfair prejudice. It allowed voir dire questions regarding cellphone use and allowed evidence about cellphone use at trial "as the backdrop of the circumstances of the accident[, n]ot to dwell on it."

At trial, plaintiff adduced evidence of defendant's conduct without objection. There was testimony that defendant was driving at least 45 miles per hour at the time of the collision, that she was aware that a different collision had occurred in front of her, and that she was driving a loaner car that did not have a hands-free phone set up. Defendant testified that, just before the collision, she had looked down at her cellphone to search for a client contact and place a call.

During trial, plaintiff testified that six months after the accident, she was still experiencing physical pain from the accident, having trouble sleeping, and having difficulty keeping up with normal household activities. As plaintiff testified:

"I wasn't getting better and I wasn't getting better, and I just kept—I just felt like—I was trying to keep up, trying to keep a happy smile on my face, trying to keep up with like, you know, appearances like everything's fine, everything's fine. But inside I wasn't fine. I wasn't fine at all. And it really—I just felt like I was in a downward spiral of pain of hopelessness and despair was how I felt."

On cross-examination, defendant suggested that plaintiff's physical pain had abated by the time of her suicide attempt and that she had acted for an unrelated reason—that she felt unappreciated by her husband—a circumstance that defendant...