State v. Gerhardt
360 Or. 629
| Or. | 2016Background
- Defendant strangled his wife; while jailed the trial court entered a mandatory no-contact order.
- Defendant repeatedly violated the no-contact order while in custody.
- The victim hired an attorney to enforce the no-contact order and to obtain a permanent protective order, incurring $1,880 in fees.
- At sentencing defendant pleaded guilty; the trial court ordered restitution of $1,880 to cover the victim’s attorney fees.
- The Court of Appeals reversed, holding the criminal act was not a sufficient cause of the attorney fees. The state sought review.
- On review the court considered whether attorney fees qualify as "economic damages" under ORS 137.106 and what causation and foreseeability showfulness the statute requires.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Gerhardt) | Held |
|---|---|---|---|
| Whether attorney fees may be restitutionable "economic damages" under ORS 137.106 | Attorney fees can be awarded as economic damages under ORS 137.106; Ramos rejects categorical exclusion of attorney fees | Argued below that attorney fees are categorically excluded (also reiterated on appeal) | Court of Appeals’ categorical exclusion was rejected previously in Ramos; here defendant conceded fees were recoverable and court affirmed restitution |
| What causation standard governs "resulted in" under ORS 137.106 — but-for or a stronger test | "But-for" causation suffices (per Ramos): damages must not have occurred but for the crime | Urged a stricter test: crime must be sufficient in itself (sole cause) or at least a "but-for-plus" substantial-factor showing | Court: but-for causation satisfies the causation requirement; Ramos rejected a more direct/sole-cause requirement |
| Whether defendant’s later misconduct (no-contact violations) breaks causal link | The state: the initial criminal act was a but-for cause and thus satisfies causation; foreseeability also satisfied | Defendant: later violations, not the strangulation itself, were the proximate cause of attorney fees; argues the initial crime was not the sufficient cause | Court: defendant conceded but-for causation and foreseeability; later conduct pertains to foreseeability analysis, but given concessions restitution was proper |
| Role of foreseeability and preservation of arguments | State: foreseeability is a factual question; the record supports finding fees were reasonably foreseeable consequences of the crime | Defendant: challenged causation standard on appeal but did not preserve all causation/foreseeability arguments at trial | Court: foreseeability ordinarily factual; defendant did not contest foreseeability on review and had effectively conceded it; preservation issue noted but relief foreclosed by concessions |
Key Cases Cited
- State v. Ramos, 358 Or 581 (2016) (establishes that restitution under ORS 137.106 requires factual/but-for causation and that damages be reasonably foreseeable)
- Lasley v. Combined Transport, Inc., 351 Or 1 (2011) (explains "substantial factor" causation where multiple tortfeasors combine to produce harm)
- State v. Wyatt, 331 Or 335 (2000) (appellate courts’ obligation to address preservation issues)
- Fazzolari v. Portland Sch. Dist. No. 1J, 303 Or 1 (1987) (foreseeability ordinarily is a factual question)
- Piazza v. Kellim, 360 Or 58 (2016) (reiterates foreseeability as a facts-dependent inquiry)