Case Information
December 11, 2014 No. 71 IN THE SUPREME COURT OF THE STATE OF OREGON Amber KENNEDY, Petitioner on Review, v.
Kelsey C. WHEELER, Respondent on Review, and Katie HALL, Defendant.
(CC CV080512; CA A149019; SC S061836) En Banc
On review from the Court of Appeals.* Argued and submitted September 16, 2014.
Mark McDougal, Kafoury & McDougal, Portland, argued the cause and filed briefs for the petitioner on review.
Michael T. Stone, Brisbee & Stockton, LLC, Hillsboro, argued the cause and filed the briefs for respondent on review.
Kathryn H. Clarke, Portland, filed a brief for amicus curiae Oregon Trial Lawyers Association.
WALTERS, J.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.
______________ * Appeal from Yamhill County Circuit Court, Carroll J. Tichenor, Judge. 258
Or App 343,
Oregon law requires that “[i]n civil cases three- fourths of the jury may render a verdict.” Article VII (Amended), section 5(7), of the Oregon Constitution; ORCP 59 G(2). In this negligence case, defendant admitted liabil- ity, and a jury of twelve was asked to decide the issues of causation and damages. The jury completed a special verdict form and unanimously agreed that defendant had caused damage to plaintiff. At least three-fourths of the jurors ( i.e. , nine of twelve) also agreed to award plaintiff specific amounts of economic and noneconomic damages. However, the same nine jurors did not agree on the amounts of eco- nomic and noneconomic damages awarded. The trial court accepted the verdict and entered judgment for plaintiff, but the Court of Appeals reversed. Kennedy v. Wheeler , 258 Or App 343, 309 P3d 196 (2013). For the reasons that follow, we conclude that the jury’s verdict met the requirements of Oregon law. We reverse the decision of the Court of Appeals and affirm the judgment of the trial court.
The facts relevant to the issue before us are proce- dural and uncontested. Defendant drove through a stop sign and collided with a car in which plaintiff was a passenger. Plaintiff filed a negligence action, which was tried to a jury of twelve. The trial court instructed the jury that defendant had “admitted liability so that the only issue to be decided by you * * * is the amount of the damages to be awarded to the plaintiff.” The court defined both economic and non- economic damages for the jury and then instructed it that, “[i]f you find that the plaintiff is entitled to recover economic damages, you must award some noneconomic damages.” The court told the jury that it should answer the questions on the verdict form “according to the directions on the form and all the instructions of the court.” The court explained that “[a]t least the same nine jurors must agree on each answer unless the verdict form instructs you otherwise as to a par- ticular question.”
Defendant Wheeler appealed; defendant Hall did not. Thus, when we refer to defendant, we refer only to defendant Wheeler. Plaintiff obtained judgment against two defendants, Wheeler and Hall. As completed by the jury, the verdict form provided as follows:
“For questions 1 and 2, at least the same nine jurors must agree on each of the questions that you answer. “We, the jury, find:
“1. Was defendant Wheeler’s negligence a cause of damage to plaintiff?
“ANSWER: 12 (Yes or No) “If your answer to question 1 is ‘yes,’ proceed to question 2. “If your answer to question 1 is ‘no,’ proceed to question 3. “2. What are plaintiff’s damages resulting from defen- dant Wheeler’s negligence?
“ANSWER: Economic Damages $65,386.48 Noneconomic Damages $300,000.” The court clarified that the number “12” in response to Question 1 indicated that all twelve jurors had agreed on that response. The court then read the verdict form to the parties and asked the presiding juror whether at least nine jurors had answered Question 2; she answered, “yes, sir.” Defendant asked that the jury be polled. When the court asked each juror whether the vote of $65,386 in economic damages was “your vote,” ten jurors said “yes.” Jurors one and three said “no.” When the court asked whether the vote of $300,000 was “your vote,” nine jurors said “yes”; jurors two, three, and twelve said “no.”
The court indicated that it would accept the ver- dict and thanked the jurors for their service. Defendant then asked the court to wait, stating, “I don’t think there’s nine agreeing, if I counted right.” The court stated that it counted ten jurors agreeing on economic damages and nine *4 agreeing on noneconomic damages. The following colloquy then ensued:
“Defendant: I think there were only the same eight, however.
“Court: Pardon? “Defendant: I think there was [ sic ] only eight that were in agreement.
“Court: No, there was [ sic ] nine out of the twelve that voted for the unanimous verdict.” The trial court then discharged the jury. After the jury was discharged, defendant took exception for the record. At that point, defendant explained more fully:
“Defendant: So there are on—looking for nine common people on economic and noneconomic, I add that up as only being eight people who agree.
“Court: I agree with you that there were only eight that answered yes to the same—for the economic and noneco- nomic damages that answered the same way, and if your theory is that the same nine had to vote on both, then that will have to go up for the appeal because I don’t read the statute that—
“Defendant: That’s my objection, so— “Court: Okay. Anyway, I’ve accepted the verdict.” Defendant then filed a written objection to entry of judgment and a motion for new trial, arguing that the ver- dict was invalid under Article VII (Amended), section 5(7), of the Oregon Constitution and ORCP 59 G(2), both of which provide that “[i]n civil cases three-fourths of the jury may render a verdict.” After a hearing, the trial court denied the motion based on two independent “findings.” First, the court found that defendant had failed to make a timely objection to the jury’s verdict. Second, the court found that the jurors’ vote on causation was unanimous, that at least nine of those twelve jurоrs had agreed on the measure of economic damages awarded, and that at least nine of those twelve jurors had agreed on the measure of noneconomic damages awarded. The court concluded that the law did not require the same nine jurors to agree on the amounts of economic and noneconomic damages awarded and that the jurors’ con- currence on causation and damages was therefore sufficient. The court then entered a general judgment providing that trial of the case had resulted in a verdict for plaintiff against defendant. The judgment included a monetary award for the total of the economic and noneconomic damages that the jury had awarded—$365,386.
Defendant appealed, assigning error to the court’s receipt of the verdict and entry of judgment. [2] Defendant argued, as she had below, that the verdict was unconsti- tutional and violated ORCP 59 G(2), that the verdict was therefore invalid, and that the judgment based on that ver- dict must be revеrsed.
In her answering brief, plaintiff asserted both pro- cedural and substantive arguments. She contended that defendant had failed to object to the verdict with sufficient clarity before the jury was dismissed and that the issue was therefore unpreserved. She also argued that Oregon law does not require that the same nine jurors agree on eco- nomic and noneconomic damages. Defendant argued that the court could and should reach the merits of the substan- tive issue that the case presented.
The Court of Appeals rejected plaintiff’s preserva- tion argument, but focused on a different procedural issue— the “law of the case” doctrine—that the court concluded resolved the case in defendant’s favor. The court reasoned as follows:
“Here, the court instructed the jury that at least the
same nine jurors were required to agree on each answer
on the verdict form. As we have explained, that required
at least the same nine jurors to agree on the amounts of
both types of damages. When the court instructed the
jury, apparently without objection, that at least the same
nine jurors were required to agree on the amounts of both
types of damages, that instruction became the law of the
case. [
Congdon v. Berg
, 256 Or App 73, 80-81, 299 P3d
588 (2013)];
see also Fulton Ins. v. White Motor Corp.
, 261
Or 206, 223 n 5,
On review in this court, defendant characterizes the Court of Appeals decision as a decision on subconstitu- tional grounds and adopts its “law of the case” analysis. We begin with that procedural issue and then take up the *6 substantive question whether Oregon law requires that the same nine jurors agree on the specific sums of economic and noneconomic damages awarded.
I. LAW OF THE CASE This court has described the “law of the case” doc- trine as precluding relitigation of an appellate court holding after remand and on subsequent appeal:
“It is a general principle of law and one well recognized in this state that when a ruling or decision has been once made in a particular case by an appellate court, while it may be overruled in other cases, it is binding and conclu- sive both upon the inferior court in any further steps or proceedings in the same litigation and upon the appellate court itself in any subsequent appeal or other proceeding for review.”
State v. Pratt
,
In the law review article cited in Koch , the author explains that “law of the case” is a concept that may arise in a number of different contexts “in which a ruling or decision has been made in a case and the same legal рroblem arises a second time in the same case.” Vestal, 1967 Utah L Rev at 4. In this case, defendant argues that that concept applies not only to preclude relitigation of an appellate court deci- sion on remand but also to preclude reexamination of a trial court decision on a direct appeal. More specifically, in the context of this case, defendant argues that, when instruct- ing the jury, the trial court essentially ruled that the same nine jurors must agree on the sums of economic and non- economic damages awarded; accordingly, therefore, the trial court was required to adhere to that legal determination when the jury returned a verdict that was inconsistent with that ruling. Defendant also contends that the trial court’s decision precludes plaintiff from arguing for a different interpretation of Oregon law on appeal and ties this court’s interpretive hands as well. For the reasons that follow, we hold that the “law of the case” doctrine dоes not apply in these circumstances.
First, we are not persuaded that the trial court actually made a decision that the same nine jurors must *7 agree on the amounts of economic and noneconomic dam- ages awarded. The trial court instructed that the same nine jurors must “agree on each answer” on the verdict form. That form contained two questions. Question 1 asked whether defendant’s negligence was a cause of damage to plaintiff. Question 2 asked the amount of plaintiff’s dam- ages and provided blank spaces for the jury to fill in the amounts of economic and noneconomic damages. Read together, one interpretation of the jury instructions and the verdict form was that they required only that nine of the twelve jurors who answered “yes” to Question 1 also agree on and fill in the blanks in Question 2. Another interpreta- tion, however—that adopted by the Court of Appeals and argued here by defendant—is that the instructions and ver- dict form required that at least the same nine jurоrs who agreed to the sum specified for economic damages (if any) also agree to the sum specified for noneconomic damages (if any). We conclude that that second interpretation is not supported by the record.
In particular, after the court polled the jury, defen- dant told the court that “I don’t think there’s nine agree- ing, if I counted right,” and that “there were only the same eight.” The court responded that “there was [ sic ] nine out of the twelve that voted for the unanimous verdict” and discharged the jury. Thus, it appears that, when the court instructed the jury and received its verdict, it understood its instructions to have the first of the two potential meanings that we have posited— i.e. , that nine of the twelve who voted yes in response to Question 1 must also agree to Question 2. It was only when defendant later stated her exception for the record that the trial court understood defendant’s theory to be that the same nine jurors had to agree on both types of damages. But even then, the court did not understand defen- dant to argue that that requirement arose from the court’s instructions. The court told defendant that if that was her theory, she would have to raise it on appeal, because the court did not understand the “statute” to require such con- currence. Defendant responded that that was her objection. She did not tell the court that, regardless of what a statute, the constitution, or the rules of civil procedure required, the court’s instructions required the same nine jurors to concur on both types of damages. From that record, we cannot con- clude that, when the trial court instructed the jury, it made a deliberate ruling or decision that the same nine jurors must agree on the specific amount of economic and noneco- nomic damages awarded.
Furthermore, even if the trial court had made an
initial determination that the same nine jurors must agree
on economic and noneconomic damages, the trial court was
not precluded from reconsidering that decision after the
jury’s deliberations had begun. A trial court may revise its
instructions to clarify them or to address more specifically
an issue that it previously had addressed more generally.
See State ex rel Harmon v. Blanding
,
Because the trial court’s instructions in this case were susceptible to more than one interpretation and defen- dant did not inform the court of her interpretation or give the court or plaintiff an opportunity to consider whether reinstruction was necessary or appropriate, those instruc- tions do not constitute a ruling of the trial court that estab- lishes the “law of the case.”
Just аs importantly, the “law of the case” doctrine
does not make a trial court’s ruling binding on an appellate
court.
Thompson v. Coughlin
,
That is not to say, of course, that every trial court
ruling is subject to appellate review. Defendant is correct
that, when a party fails to object to a jury instruction, that
party is foreclosed from appealing on the ground that the
instruction was erroneous. Rules of appellate procedure
preclude parties from raising issues on appeal that they
its instructions, and thus, perhaps, invalid, it may have been required to rein-
jurors than number required for verdict answer in the affirmative, jury shall be
struct the jury and to send it out for further deliberations. ORCP 59 G(3) (if fewer
sent out for further deliberations); ORCP 59 G(4) (if verdict is insufficient, it may
be corrected by jury under advice of court, or court may require jury to deliberate
see also Lewis v. Devils Lake Rock Crushing Co.
further); damages, trial court was authorized to reinstruct jury and require further delib-
erations); ,
To support her argument, defendant cites several
cases in which this court has used the term “law of the case”
in explaining its decisions. However, in those cases, the
court did not use the term “law of the case” for the purpose
that defendant urges. Rather, the court used the term to
describe a party’s obligation to preserve an issue for review,
a jury’s obligation to follow the instructions of the court, or
the court’s authority to presume that the jury has done so.
For instance, in
Fulton Ins. v. White Motor Corp
.,
In a footnote commenting on the wording of the excuse instruction, the court used the term “law of the case.” The court stated:
“This formulation of the rule was disapproved in
Ainsworth
v. Deutschman
,
In
Tou Velle v. Farm Bureau Co-op. Exchange
, 112
Or 476,
“Would it be possible for the jury to make a compromise in the matter of damages, or must we find the total amount $786.28 named in the complaint for the plaintiff, or else nothing. Think a verdict could be reached on compromise, but not otherwise.”
Id. at 478. The court answered: “Reach such verdict as you think is right.” Id .
The jury then returned a verdict for one-half of the amount of the uncontested damages. The defendant con- tended that the compromise verdict was invalid and not sup- ported by the evidence. The plaintiff responded that the party against whom damages are awarded cannot contest their insufficiency. This court began its discussion by observing:
“It is well settled that the instructions given by the court
to the jury, without objectiоns or exceptions thereto, become
the law of the case
, and it is consequently the legal duty of a
jury to comply with such instructions, and if they fail to do
so the court may set aside the verdict. * * * Accordingly it is
the general rule that where the court instructs the jury as
to a specific amount of a party’s liability, if he is found to be
liable at all, and the jury disregards the instructions and
brings in a verdict for a different amount, it is the duty of
the court to set aside the verdict and grant a new trial.”
Id
. at 480 (emphasis added);
accord Columbia Co. v. Ross
Island Co.
,
The court could have reached the results that it did
in
Fulton
and
Tou Velle
had it omitted reference to the “law of
the case” and relied on established preservation principles to
decide that a party may not obtain review of an instruction
to which the party has not objected,
Sam’s Texaco
, 314 Or at
663, or that an appellate court must presume that the jury
followed the trial court’s instructions,
Purdy v. Deere and
*11
Company
,
“[a]lthough appellants in their brief on this appeal also cite other cases and authorities and would state these requirements in a somewhat different manner, we believe that the rule as stated in this instruction, to which both The term “law of the case” is best reserved for use in the context in which a party seeks to relitigate an appel- late decision. See Vestal, 1967 Utah L Rev at 21 (discussing application of “law of the case” to preservation issues and concluding that such usage “in reality stands apart from the other situations” in which “law of the case” applies). Use of the term to address other issues may confuse rather than clarify.
In this case, we agree with the Court of Appeals that defendant preserved the issue of the meaning of the provision that “[i]n civil cases three-fourths of the jury may render a verdict.” The “law of the case” doctrine does not limit plaintiff’s argument or this court’s analysis of that issue. Accordingly, we proceed to the substantive question presented.
II. JUROR CONCURRENCE
Article VII (Amended), section 5(7), and ORCP 59
G(2) both provide: “In civil cases three-fourths of the jury
may render a verdict.” Although the text of those provisions
is identical, defendant is correct that our analysis must
begin by looking to the meaning of the rule.
State ex rel
Engweiler v. Felton
, 350 Or 592, 617, 260 P3d 448 (2011)
(court’s practice is to address rule before turning to statute
or constitution). Thus, the initial question that we address
is the intent of the Council on Court Procedures (Council)
when it adopted ORCP 59 G(2).
State v. Vanornum
, 354 Or
614, 620,
parties agreed, became binding upon both of them as the ‘
law of the case
.’
Upon examination of the record, we also believe that there was evidence in
this case from which the jury could have properly found that the require-
ments of the rule as stated in that instruction were satisfied.”
Id.
at 267 (emphasis added). We understand
Wampler
as resting on preservation
principles and deciding that the trial court did not err in evaluating the suffi-
ciency of the evidence under the standard the parties had agreed at trial.
bench or bar.
Further discussion of the preservation issue would not be of benefit to the
To discern the intent of the Council, “we use an
analytical process that parallels the one we use to inter-
pret statutes—that is, we examine text, context, and, if
helpful, legislative history.”
Vanornum
,
In 1978, the Council promulgated the Oregon Rules of Civil Procedure, including ORCP 59 G(2). [7] In adopting ORCP 59 G(2), the Council incorporated verbatim the word- ing of a 1953 statute— former ORS 17.355(1) (1977), repealed by Or Laws 1979 ch 284, § 199. At the time that the 1953 stat- ute was enacted, the Oregon Constitution also permitted, as it does now, three-fourths of a jury to render a verdict. [8]
ORCP 59 G(2) does not define the term “verdict,” but ORCP 61 addresses the issue, defining both “general” and “special” verdicts. [9] ORCP 61 A pertains to general ver- dicts and provides:
the legislature have amended other sections of ORCP 59, but ORCP 59 G(2) has
not been amended.
[7]
ORCP 59 G(2) has remained unchangеd since that time. The Council and
See Ex parte Jack Wessens
tive petition in 1910. Or Laws 1911, p 8, § 5. 589,
“(2) When a general verdict is found in favor of a party asserting a claim for the recovery of money, the jury shall *13 also assess the amount of recovery. A specific designation by a jury that no amount of recovery shall be had complies with this subsection.”
ORCP 61 B permits a court to require a jury to return only a “special verdict in the form of a special written finding upon each issue of fact,” and provides that if the court omits an issue of fact raised by the pleadings or the evidence, the court may make a finding.
The Council derived the text of ORCP 61 from sev- eral sources. In ORCP 61 A(1), defining the term “general verdict,” the Council used wording identical to that used in former ORS 17.405 (1977), repealed by Or Laws 1979, ch 284, § 199, a statute that dated to the Deady Code. [11] Similarly, in the first sentence of ORCP 61 A(2), requiring thаt the jury assess the amount of recovery, the Council incorporated the substance of former ORS 17.425 (1977), repealed by Or Laws 1979 ch 284, § 199, also adapted from the Deady Code. [12] In the second sentence of ORCP 61 A(2), providing that a jury may assess the amount of recovery by designating no amount of recovery, the Council reversed this court’s decision to the contrary in Fischer v. Howard , 201 Or 426, 458, 271 P2d 1059 (1954). See Fredric R. Merrill, Oregon Rules of Civil Procedure: 1984 Handbook 140 (1984) [10] ORCP 61 B provides, in part: “The court may require a jury to return only a special verdict in the form
of a special written finding upon each issue of fact. * * * The court shall give to the jury such explanation and instruction concerning the matter thus sub- mitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires such party demands its submission to the jury. As to an issue omitted without such demand, the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.” 1845-1864). a General Laws of Oregon, Civ Code, ch II, title IV, § 210 , p 191 (Deady 1845-1864). General Laws of Oregon, Civ Code, ch II, title IV, § 211, p 191 (Deady (“The last sentence of 61 A(2) allows a jury properly to return a verdict in favor of a plaintiff asserting a right to recover damages in the amount of ‘zero’ damages. See Fischer v. Howard [.]”). Finally, in ORCP 61 B the Council provided more detailed treatment of special verdicts. Before the adop- tion of ORCP 61 B, former ORS 17.405 provided: “A special verdict is that by which the jury finds the facts only, leaving the judgment to the court.”
From that context, it appears that the parties are cor- rect that a fundamental requirement of ORCP 59 G(2) is that at least three-fourths of the jury must vote in favor of each of the jury’s written findings that form a basis for the trial court’s judgment. Oregon law has long used the word “verdict” to describe both a jury’s pronouncement in favor of one party or the other and its assessment of recovery (a general verdict) and a jury’s written findings (a special verdict). Thus, when a jury’s verdict includes an assessment of a monetary recovery under ORCP 61 A(2), at leаst nine jurors out of twelve must agree on that assessment. Although a jury may be entitled to award zero dollars in damages under ORCP 61 A(2), at least *14 three-fourths of the jurors must vote for that result.
In this case, that fundamental requirement was satisfied. The jury’s verdict was a special verdict. The jury did not make a pronouncement in favor of plaintiff; it made factual findings. At least nine jurors voted in favor of each of those findings, including the assessment of economic and noneconomic damages, and the court entered a judg- ment based on those findings. The judgment provided that the trial had “resulted in a verdict for the plaintiff” against defendant. The judgment also included, in a section labeled “Money award,” a judgment for the total of the economic and noneconomic damages assessed by the jury. Thus, at least three-fourths of the jury voted in favor of each of the written findings included in the jury’s special verdict that formed a basis for the trial court’s judgment.
That does not, however, resolve the question on
which the parties disagree. Defendant argues that ORCP
59 G(2) imposes additional conсurrence requirements and
urges us to consider our prior decisions construing Article
VII (Amended), section 5(7), as further context for our inter-
pretation of the rule. Because the texts of the two provisions
are identical, we agree that such analysis is appropriate.
See
State v. Shaw
,
We begin with
Clark v. Strain
,
On review, the court noted that the jury had ren- dered a general verdict and cited former ORS 17.405 for its understanding that a general verdict is a “pronouncement on all issues.” Id. at 364. The court reasoned that such a verdict must be “a document reflecting the integration of the minds of the jurors to such an extent that it, in fact, constitutes a legal verdict” and that the trial court’s discus- sion with the jurors demonstrated that the jurors’ verdict did not meet that standard. Id. To comport with Article VII (Amended), section 5(7), the court opined, the same legally required number of jurors must agree on the issues neces- *15 sary to support a judgment for the plaintiff—in that case, liability and damages. Id. at 359, 364. The court therefore reversed the trial court’s judgment.
In reaching that cоnclusion, the court discussed a California case, Earl v. Times-Mirror Co. , 185 Cal 165, 196 P 57 (1921), in which the same nine jurors had not agreed on the amounts of compensatory and punitive damages awarded. [13] In Clark , the court distinguished Earl on the basis that the jury’s decisions on the amounts of the two types of damages were “independent.” Id . at 365.
The court later applied
Clark
in considering the
validity of a jury’s special verdict and, in doing so, clarified
the reasoning on which
Clark
rested. In
Munger v. S.I.A.C.
,
jury to render a verdict. Cal Const, art I, § 16 (“[I]n a civil cause three-fourths See of the jury may render a verdict.”). As we will discuss, California’s constitution also permits three-fourths of a distinguished Clark Or 442, 235 P3d 668 (2010), is consistent with that reasoning. There, the court at 460 n 6. Therefore, the determination of whether to award puni- Id. different jury. liability and damages did not preclude retrial of the issue of punitive damages by a and held that the fact that one jury had decided defendant’s tive damages was independent from the determination of liability and damages. Estate of Michelle Schwarz v. Philip Morris Inc. , 348 This court’s decision in 537 “[a]n integrated verdict of the type presented here—one in which the answer to a question is dependent on the answer to a previous question and both are necessary to the deter- mination of the final verdict—does not differ in principle from a general verdict.”
Id . at 423-24.
We assume that when the Council adopted ORCP
59 G(2), it was aware of the court’s decisions in
Clark
and
Munger
and intended that its rule be consistent with the
court’s interpretation of the identically worded constitu-
tional provision.
[15]
Therefore, we understand ORCP 59 G(2)
to require that, when a jury of twelve renders a special ver-
dict and makes written findings in response to questions
posed by the court, (1) at least nine jurors must agree on the
answers that form a basis for the trial court’s judgment; and
(2) the votes of the jurors on those questions must be consis-
tent. That is, the jurors’ answers to questions necessary to a
judgment mаy not demonstrate a logical inconsistency. more broadly than we do and cites three additional cases for her
Munger
and argument that Article VII, section 5(7), requires that same nine jurors agree on
,
Freeman v. Wentworth & Irwin
“all issues determined by the verdict”: 15-16,
As we observed in discussing the identical text of ORCP 59G(2), the text of Article VII (Amended), section 5(7), does not explicitly impose a concurrence requirement other than by declaring that a “verdict” may be reached by the agreement of three-fourths of a jury. And, as we also explained in discussing ORCP 59 G(2), the statutes that were in existence in 1910 when the voters approved Article VII (Amended), section 5(7), used the term “verdict” to mean a jury’s written findings necessary to the court’s judg- ment. Therefore, the constitutional framers likely intended to impose a fundamental requirement that at least three- fourths of the jury must vote in favor of each such finding.
Whether the framers intended to impose additional concurrence requirements is not obvious from the text of that provision. However, the voters’ pamphlet submitted with the measure is instructive. The proponents of the mea- sure stated that “[t]he purpose of this amendment is * * * to prevent mistrials and hung juries, by allowing three- fourths of a jury to render a verdict in civil cases.” Official Voters’ Pamphlet, General Election, Nov 8, 1910, 176-77. The proponents further noted that “[m]any states now allow a majority of the jury in civil cases to render a verdict” and that in such states “[u]sually three-fourths of the jury is required to render a verdict.” Id . at 177. The proponents did not specify which states had adopted such provisions, but our research indicates that fourteen state constitutions per- mitted civil verdicts by non-unanimous juries in 1910. We Const, § 248; Minn Const of 1857, art I, § 4 (five-sixths); Miss Const, art 3, § 31; See Ark Const, art 2, § 7; Cal Const, art I, § 16; Idaho Const, art I, § 7; Ky have not discovered an appellate decision in any of those states that would have been available to the drafters of the Oregon provision in 1910 and that interpreted such provi- sions to require that the same jurors decide all issues neces- sary to the verdict. From the available history, it therefore is probable that the voters intended only to increase the effi- ciency of the court system by permitting jurors to render non-unanimous verdicts, not to impose complex concurrence requirements.
When this court later decided Clark and Munger and interpreted Article VII, section 5(7), to require that the jurors’ findings be consistent, it based those decisions on the need to have a jury’s verdict function as a coherent whole. On further reflection and with greater attention to the his- torical circumstances existing at the time that that provi- sion was adopted, we are not persuaded that it imposes more stringent concurrence requirements than those delineated in Clark and Munger and intended by the Council when it adopted ORCP 59 G(2) .
The final step in our analysis is to apply ORCP
59 G(2) as we have construed it to the facts of this case.
Defendant argues that, even if ORCP 59 G(2) does not
require that the same nine of twelve jurors agree on all writ-
ten determinations that a jury makes, it does require such
*18
concurrence as to the awards of economic and noneconomic
damages because “economic damages are not recoverable
in the absence of an award of noneconomic damages except
in very limited circumstances which arе not present in this
case.” In support of that contention, defendant cites
Wheeler
v. Huston
,
Defendant is incorrect in her understanding of
Wheeler. Wheeler
does not make an award of economic
damages dependent on an award of noneconomic damages.
Rather,
Wheeler
addresses the problem posed by verdicts
in which jurors who disagree about a defendant’s liability
arrive at an improper compromise and award only “special”
Mo Const of 1875, § 22(a) (1900); Mont Const of 1889, art II, § 23; Nev Const, art I,
§ 3; Okla Const, art 2, § 19; SD Const, art VI, § 6; Tex Const, art V, § 13; Utah
Const, art I, § 10; Wash Const, art 1, § 21.
damages.
[18]
In
Wheeler
, the court explained that awards of
only “special” damages had been deemed improper because
they suggested that the jury had “stubbornly adhered to
what was apparently a compromise verdict between some
who found liability and others who found none.”
Id.
at 471
(quoting
Hall v. Cornett
,
“If there is a question whether any general damages were sustаined, the jury may conclude that the plaintiff suffered no general damages but did reasonably incur wage loss and/or medical expense. Such verdicts are valid and include cases in which (a) the plaintiff’s evidence of injury is subjective, (b) there is evidence that the plaintiff’s injuries for which general damages are claimed were not caused by the accident, and (c) the objective evidence of a substantial injury sustained by plaintiff is controverted by other competent evidence, or could be disbelieved by the trier of fact.”
Id. at 479 (emphasis in original).
Here, plaintiff reiterates the criticism leveled at the rule discussed in Wheeler and argues that, because damages are no longer defined as “special” or “general,” but instead are defined as “economic” and “noneconomic,” [19] Wheeler does not represent current law and should be disavowed. However, even if Wheeler is still good law, the improper compromise “general” and “special” damages: In Hoskins v. Scott , 52 Or 271, 278, 96 P 1112 (1908), this court defined “Damages are either general or speсial. General, when they are such as the law implies or presumes to have accrued from the wrong complained of. Special, when they are such as really took place and are not implied by law, and are superadded to general damages arising from an act injurious in itself. * * * The former, being the direct and immediate result of the act complained of, and necessarily arising out of it, can be recovered under the general allegation of damages, without stating their particular nature, or how they arose, because the law implies or presumes such damages to follow the breach of the contract or the act or wrong complained of.” (Internal citations omitted).
ute was enacted in 1987 and renumbered in 2003. (enacting statute as Or Laws 1987, ch 774, § 6 See former ORS 18.560). ORS 31.710 (defining economic and noneconomic damages). That stat- See that it prohibits is neither evident in this case nor a basis for imposing the juror concurrence requirement that defendant urges.
In this case, defendant admitted liability and all twelve jurors determined that defendant’s negligence was a cause of some damage to plaintiff. The remaining issue for the jury’s determination was the specific amounts of the eco- nomic and noneconomic damages plaintiff had suffered. We know, therefore, that the concern addressed in Wheeler— that jurors might have agreed to special or economic dam- ages in spite of a decision that defendant was not liable—is not presented.
Further, we presume that each juror who voted to
award plaintiff economic damages also decided that plaintiff
was entitled to at least some amount of noneconomic dam-
ages. The trial court instructed the jury that “[i]f you find
that the plaintiff is entitled to recover economic damages,
you must award some noneconomic damages,” and we must
presume that the jurors followed that instruction in answer-
ing the first question on the special jury verdict form.
See Purdy
,
Moreover, ORCP 59 G(2) addresses a different con- cern than that which was the subject of the court’s deci- sion in Wheeler. As we have explained, in a case in which a jury enters a special verdict, ORCP 59 G(2) requires that three-fourths of the jury agree on each of its written find- ings and that those findings be logically consistent. Under Clark , when the same nine out of twelve jurors do not agree on liability and damages their findings do not meet that standard. The same logical inconsistency is not apparent, however, when the same nine out of twelve jurors do not agree on the specific amounts of economic and noneconomic damages awarded. The law does not require a jury to award any specific amount of economic or noneconomic damages *20 as a prerequisite to entry of a valid judgment for a plain- tiff. ORCP 61 A(2). And logic does not require a connection between the amount of economic damages and the amount of noneconomic damages awarded.
In this case, at least nine jurors agreed on the sums of economic and noneconomic damages awarded and their verdict does not demonstrate a logical inconsistency simi- lar to those that rendered the verdicts in Clark and Munger invalid. The jury’s verdict did not violate ORCP 59 G(2) or the Oregon Constitution and the trial court was correct to accept it.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is affirmed.
related, in that a greater award of general damages often results in a greater inconsistency, and, at least in this case, the specific amounts of economic and award of noneconomic damages. However, the legal question is one of logical noneconomic damages awarded do not reveal logical inconsistency. Of course, awards of economic and noneconomic damages may be factually