Scott v. Kesselring, 513 P.3d 581

Defendant rear-ended plaintiff in heavy rain; plaintiff later attempted suicide and alleged severe emotional and physical injuries from the collision.
Plaintiff alleged defendant was distracted by using her cellphone to place a non-emergency call; defendant admitted causing the collision but denied responsibility for the full nature and extent of plaintiff’s injuries and disputed foreseeability of the suicide attempt.
Defendant moved in limine to exclude evidence of cellphone use as irrelevant and unfairly prejudicial; the trial court denied the motion, allowing cellphone evidence as relevant to foreseeability of the harms.
At trial the jury heard evidence that defendant looked down to use a cellphone, was driving at least 45 mph, and struck plaintiff’s vehicle; the jury awarded economic and noneconomic damages to plaintiff.
The Court of Appeals reversed, holding the cellphone evidence irrelevant to foreseeability; the Oregon Supreme Court granted review, reversed the Court of Appeals, and affirmed the trial court judgment.

Issue	Scott's Argument	Kesselring's Argument	Held
Admissibility of defendant’s cellphone use on foreseeability	Cellphone use was relevant because defendant’s conduct was at issue and bears on whether her conduct unreasonably created a foreseeable risk of the kind of harm (including suicide attempt) that befell Scott.	Cellphone evidence was irrelevant because Kesselring admitted causing the collision; only the extent of injury (not the type) remained at issue, so manner of conduct was immaterial and unduly prejudicial.	Evidence of cellphone use was relevant to foreseeability and not unfairly prejudicial; trial court did not err in admitting it.
Effect of defendant’s admission that she caused the crash on foreseeability inquiry	Admission that Kesselring caused the collision did not remove foreseeability from the jury when Kesselring contested whether her conduct made suicide a foreseeable type of harm.	The admission of causing the collision conceded most foreseeability issues, so the jury needed only consider extent of harm (which need not be foreseeable).	An admission of causing the collision did not eliminate the jury’s responsibility to assess foreseeability of the type of harm; foreseeability focuses on the defendant’s conduct and remains a jury question here.

Fazzolari v. Portland Sch. Dist. No. 1J, 303 Or 1 (Or. 1987) (formulates negligence liability as whether defendant’s conduct unreasonably created a foreseeable risk of the kind of harm that befell the plaintiff)
Sloan v. Providence Health Sys.-Or., 364 Or 635 (Or. 2019) (explains Fazzolari reformulation and role of foreseeability and causation)
Piazza v. Kellim, 360 Or 58 (Or. 2016) (describes overlapping roles of foreseeability in negligence and scope of liability)
Chapman v. Mayfield, 358 Or 196 (Or. 2015) (discusses subsequent-conduct cases and evidence required to put foreseeability to a jury)
Wallach v. Allstate Ins. Co., 344 Or 314 (Or. 2008) (clarifies limits on liability where subsequent independent torts affect allocation of responsibility)
Lasley v. Combined Transp., Inc., 351 Or 1 (Or. 2011) (discusses evidentiary effect of admissions and relevance of additional conduct when foreseeability is not contested)
Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or 329 (Or. 2004) (explains requirement of factual or but-for causation)
Winn v. Fry, 77 Or App 690 (Or. Ct. App. 1986) (reiterates rule that defendant takes plaintiff as found for damages extent)