Scott v. Kesselring, 479 P.3d 1063

Background:

Rear-end collision on a wet freeway; defendant admitted she negligently rear-ended plaintiff but disputed the extent and foreseeability of plaintiff’s injuries (including PTSD and a later suicide attempt).
Defendant had been looking at her cellphone right before the collision; that fact was revealed after the accident and defendant admitted it at deposition.
Plaintiff sought past and future medical costs and large noneconomic damages; plaintiff also moved to add punitive damages, but the trial court excluded punitive damages before trial.
After excluding punitive damages, the trial court nevertheless allowed evidence and voir dire about defendant’s cellphone use, reasoning the manner of negligence bore on the foreseeability and scope of plaintiff’s harms.
The jury awarded $41,000 economic and $200,000 noneconomic damages; defendant appealed, arguing cellphone evidence was irrelevant (OEC 401) and unduly prejudicial (OEC 403).
The Court of Appeals held cellphone-use evidence was not relevant to foreseeability and that admitting it likely affected the verdict; it reversed and remanded.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility under OEC 401: Is evidence that defendant was using a cellphone just before the crash relevant to whether plaintiff’s injuries were foreseeable?	Cellphone use shows the manner and degree of risk undertaken and thus bears on foreseeability and scope of harms.	Cellphone evidence is irrelevant because negligence (fault for the collision) was admitted; the precise means of breach does not make foreseeability of injuries more or less probable.	Evidence of cellphone use was not relevant to foreseeability of plaintiff’s injuries; admission was legal error under OEC 401.
Exclusion under OEC 403: Even if marginally relevant, should the court exclude cellphone evidence as unfairly prejudicial?	N/A at trial (plaintiff argued probative value); on appeal plaintiff defended admission.	Cellphone evidence is inflammatory given public attitudes and its probative value is substantially outweighed by unfair prejudice.	Court did not resolve 403 on appeal because it found OEC 401 error dispositive.
Prejudice/harmlessness: Did admitting the cellphone evidence substantially affect defendant’s rights?	Admission likely influenced jurors (voir dire, opening, testimony, closing) and inflamed sympathy, contributing to large noneconomic award.	Admission was harmless because other evidence established causation and severity.	Admission had some likelihood of affecting the verdict; error substantially affected defendant’s rights, warranting reversal and remand.

Key Cases Cited

State v. Titus, 328 Or 475 (standard for relevance under OEC 401)
State v. Turnidge, 359 Or 364 (OEC 401 requires a rational relationship to provable issues)
State v. Pitt, 352 Or 566 (review of pretrial evidentiary rulings on same record)
Jett v. Ford Motor Co., 335 Or 493 (reversal only for error substantially affecting party’s rights)
Purdy v. Deere & Co., 355 Or 204 (likelihood that jury reached legally erroneous result is relevant to substantial-rights inquiry)
State v. Macnab, 222 Or App 332 (impermissible inferential stacking and excessive inferential leaps)
Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634 (right-for-the-wrong-reason principle for affirmance on alternative grounds)