Tenbusch v. Linn County

• Decision Date: 31 January 2001
• Parties: Donald W. TENBUSCH, Respondent, v. LINN COUNTY, Appellant, and Mark A. Wagner, Judy L. Bailey, and Jody L. Conn, Defendants. Linn County, Mark A. Wagner, Judy L. Bailey and Jody L. Conn, Third-Party-Plaintiffs, v. Judy L. Bailey, Third-Party-Defendant.
• Court: Oregon Court of Appeals

18 P.3d 419

172 Or.App. 172

Donald W. TENBUSCH, Respondent, v. LINN COUNTY, Appellant, and Mark A. Wagner, Judy L. Bailey, and Jody L. Conn, Defendants.

Linn County, Mark A. Wagner, Judy L. Bailey and Jody L. Conn, Third-Party-Plaintiffs, v. Judy L. Bailey, Third-Party-Defendant.

(97-1647; CA A107142)

Court of Appeals of Oregon.

Argued and Submitted June 20, 2000.

Decided January 31, 2001.

Gerald L. Warren, Salem, argued the cause and filed the briefs for appellant.

Patrick Hadlock, Corvallis, argued the cause for respondent. With him on the brief were Robert G. Ringo, Corvallis, and Ringo, Stuber, Ensor & Hanlock, P. C.

Before EDMONDS, Presiding Judge, and DEITS, Chief Judge,¹ and KISTLER, Judge.

EDMONDS, P.J.

Defendant Linn County appeals from a judgment against it for $100,000 in economic damages. We affirm.

Plaintiff's car collided with Wagner's car, and plaintiff was injured. He brought this action, claiming that overgrown vegetation at an intersection, for which Linn County was responsible, obstructed his view. He sought $175,674.73 in economic damages, and $125,000 in noneconomic damages for his injuries arising out of the car accident. The case was tried to a jury. Before the case was submitted to the jury, the county requested Uniform Civil Jury Instruction (UCJI) No. 76.03, which the trial court gave. UCJI 76.03 states, in relevant part, that "[a]ny defendant whom you find to be at least 15% [at fault/negligent] will be liable for the entire amount of plaintiff's economic damages * * *." (Brackets in original.) In contrast, UCJI 76.03A states in part, "Each [defendant/third-party defendant] is liable only for that portion of the plaintiff's total damages that is equal to the percentage of [negligence/fault] attributed to that defendant/third-party defendant." UCJI 76.03A reflects the amendments made in 1995 to ORS 18.485(2) (see Or Laws 1995, chapter 696) and is the instruction that should have been requested under the law at the time of trial. No party objected to the giving of UCJI 76.03 when it was requested or read to the jury.

After the jury had retired to deliberate, the trial court asked if there were any exceptions to the jury instructions. Plaintiff's lawyer raised one minor exception, as did Wagner's. The county's lawyer said that he had "no exceptions." While the jury was deliberating, plaintiff and Wagner entered into a settlement agreement under ORS 18.455.² The jury was not told of the settlement, pursuant to ORS 18.480(3).³ The jury found that plaintiff suffered $175,674 in economic damage and also determined that the county was 25 percent negligent and Wagner was 75 percent negligent in causing the accident. The court received the verdict without objection from the parties and discharged the jury.

After trial, the court entered judgment against Wagner in the amount of $25,000 pursuant to the settlement agreement. Plaintiff's counsel, recognizing that ORS 30.270⁴ provides a "cap" of $100,000 on economic damages in actions against public bodies, tendered a judgment against the county for economic damages in the amount of $100,000.⁵ The county tendered a judgment that would have made it liable only for $25,000. After hearing argument on the proper form of judgment, the trial court entered plaintiff's proposed judgment. After entry of the judgment, the county filed a motion under ORCP 71 to reduce its liability by 75 percent. The trial court denied defendant's motion, and the county appeals from both the judgment and the denial of its post-judgment motion.

The county first argues on appeal that ORS 18.445 and ORS 18.485 require entry of a judgment that reflects the percentage of liability that the jury found to be attributable to it. Plaintiff responds that the county invited the error about which it complains. ORS 18.445(1) provides:

"[t]he proportional shares of tortfeasors in the entire liability shall be based upon their relative degrees of fault or responsibility. In contribution actions arising out of liability under ORS 18.470, the proportional share of a tortfeasor in the entire liability shall be based upon the tortfeasor's percentage of the common negligence of all tortfeasors."

ORS 18.485 requires that:

"(1) Except as otherwise provided in this section, in any civil action arising out of bodily injury, death or property damage, including claims for emotional injury or distress, loss of care, comfort, companionship and society, and loss of consortium, the liability of each defendant for damages awarded to plaintiff shall be several only and shall not be joint.

"(2) In any action described in subsection (1) of this section, the court shall determine the award of damages to each claimant in accordance with the percentages of fault determined by the trier of fact under ORS 18.480 and shall enter judgment against each party determined to be liable. The court shall enter a judgment in favor of the plaintiff against any third party defendant who is found to be liable in any degree, even if the plaintiff did not make a direct claim against the third party defendant. The several liability of each defendant and third party defendant shall be set out separately in the judgment, based on the percentages of fault determined by the trier of fact under ORS 18.480. The court shall calculate and state in the judgment a monetary amount reflecting the share of the obligation of each person specified in ORS 18.470(2). Each person's share of the obligation shall be equal to the total amount of the damages found by the trier of fact, with no reduction for amounts paid in settlement of the claim or by way of contribution, multiplied by the percentage of fault determined for the person by the trier of fact under ORS 18.480."

ORS 18.445 and ORS 18.485 determine the proportional shares of tortfeasors in the entire liability found by the trier of fact. In the context of this case, the operation of these statutes is necessarily dependent on the jury's determinations made under ORS 18.480. That statute provides, in pertinent part:

"(1) When requested by any party the trier of fact shall answer special questions indicating:

"(a) The amount of damages to which a party seeking recovery would be entitled, assuming that party not be at fault,

"(b) The degree of fault of each person specified in ORS 18.470(2). The degree of each person's fault so determined shall be expressed as a percentage of the total fault attributable to all persons considered by the trier of fact pursuant to ORS 18.470.⁶

"(2) A jury shall be informed of the legal effect of its answer to the questions listed in subsection (1) of this section.

"(3) The jury shall not be informed of any settlement made by the claimant for damages arising out of the injury or death that is the subject of the action."

ORS 18.455 and ORS 18.485 are statutes that contemplate predicate findings by the jury under ORS 18.480. Those findings are part of an integrated statutory process for the entry of a judgment that determines the apportionment of damages. Had the jury been instructed in accordance with UCJI 76.03A, defendant would be entitled to reversal of a judgment that did not comport with ORS 18.485. However, error that is invited is not a ground for reversal. See, e.g., Ingram v. Allen, 273 Or. 890, 544 P.2d 167 (1975)

(where counsel had agreed that the jury should not be instructed on how its findings would affect ultimate liability, it cannot complain on appeal when the trial court refused to answer the jury's inquiry about that issue during deliberations).⁷ Here, the county invited error by requesting UCJI 76.03, error that infected the entire process.

It could be argued that the erroneous instruction to the jury requested by the county comments only on the allocation of negligence between defendants, that the instruction is extraneous to the court's allocation of damages under ORS 18.445 and ORS 18.485 and that the statutes compel entry of a judgment consistent with the jury's findings as to the relative percentages of the defendants' liability as a matter of law and regardless of the instructions. The statutes read in context, however, belie that notion. ORS 18.480(2) contemplates the circumstances where multiple defendants are liable and where the determination of the percentages of fault attributable to each is affixed by the jury in order to ascertain the amount of the damages that will be entered. That is the necessary import of the law when ORS 18.480(2) is read with ORS 18.485(2).

UCJI 76.03 was the vehicle by which the jury was informed of the requirements of both statutes. The county does not argue that the trial court erred in giving UCJI 76.03. It argues that once the erroneous nature of the instruction was brought to the court's attention, the court should have used the percentages found by the jury and entered judgment in accordance with ORS 18.485(2). The problem with Linn County's argument lies in the language of ORS 18.480(2). Once the jury was instructed that the legal effect of finding the county more than 15 percent at fault was that the county would be jointly liable with Wagner for 100 percent of plaintiff's damages and the jury returned a verdict pursuant to those instructions, plaintiffs were entitled to have judgments entered accordingly, in the absence of a request for reconsideration by the jury before it was discharged. It is presumed that juries follow instructions, not disregard them. Holger v. Irish, 316 Or. 402, 420, 851 P.2d 1122 (1993). The verdict expresses the jury's determination that, under the instructions given, the county be held liable for 100 percent of plaintiff's economic damages. The legislature's intent, that the determination of the percentages of liability by the jury be integrated with the ultimate judgment entered, would be frustrated if the county could compel a judgment that is inconsistent with the jury's understanding of the effect of its verdict. That means that the county's...