Lead Opinion
In this product liability action, plaintiff appealed a judgment for defendants following a jury trial. The Court of Appeals affirmed without considering the merits of nine of plaintiffs 10 assignments of instructional and eviden-tiary error. Purdy v. Deere and Company,
THE FACTUAL BACKGROUND
This action arose out of an accident involving a young child, Isabelle Norton, who was seriously injured when her father, Kirk Norton, accidentally backed his riding lawnmower into her. The lawnmower, which had been manufactured by defendant Deere and Company, had been designed so that the cutting blades shut off automatically when the lawnmower was driven in reverse. However, by design, the driver could override that safety feature by pressing a button located on the lawnmower’s dashboard. Norton had engaged that override feature when, unbeknownst to him, Isabelle had approached the mower from behind. As a consequence, the cutting blades were operating when Norton backed the lawnmower into his daughter.
Plaintiff, Isabelle’s conservator, brought this action on the child’s behalf against Deere, along with the business that sold the lawnmower to Norton, defendant Ramsey-Waite Company. The complaint — which included claims for strict liability and negligence — alleged that the mower was defective and unreasonably dangerous or had been negligently designed or marketed, in three respects: (1) it provided a mechanism for overriding the automatic shutoff feature, thus allowing the cutting blades to operate when the lawnmower was being driven in reverse; (2) the button for overriding the automatic shutoff feature had been placed on the mower’s dashboard, allowing the driver to mow in reverse without turning around to ascertain whether the path is clear; and (3) it included no warnings or instructions that addressed the safe and proper operation of the lawnmower in reverse.
In their pleadings and at trial, defendants defended on the theory that the mower was not dangerously defective and that defendants had not been negligent in any of the ways that plaintiff had alleged, and that Isabelle’s injuries had been caused by her father’s failure to (1) use the lawnmower in the intended manner and as instructed, (2) keep
At the close of trial, the court submitted a verdict form to the jury that asked the following three questions:
“1. Was Defendant Deere & Company’s lawn mower/ tractor defective and unreasonably dangerous in one or more of the ways alleged by Plaintiff and, if so, was that a cause of injury or damage to Isabelle Norton?
“2. Was Defendant Deere & Company negligent in one or more of the ways alleged by Plaintiff, and, if so, was that a cause of injury or damage to Isabelle Norton?
“3. Was Defendant Ramsey-Waite negligent in one or more of the ways alleged by Plaintiff, and, if so, was that a cause of injury or damage to Isabelle Norton?”
The jury answered “No” to each of the three questions, and the trial court entered judgment for defendants.
Plaintiff appealed, raising 10 assignments of error. Four of the assignments of error asserted that the trial court had erred by excluding testimony from several witnesses about instances in which other children had been injured by Deere riding mowers being driven in reverse. Plaintiff asserted that the testimony of those witnesses was relevant either to show that Deere had notice of the defect that plaintiff had alleged or to show that the mower was defective and dangerous. A fifth assignment of error challenged the trial court’s refusal to admit evidence that Deere marketed small toy riding lawnmowers. In plaintiffs view, that evidence was relevant to show that Deere had advertised its riding lawnmowers as being safe around children, and had affected consumer expectations accordingly. Four more assignments of error challenged jury instructions concerning what constitutes a product defect; those instructions either were given to the jury over plaintiffs objection or were requested by plaintiff but rejected by the trial court. A tenth and final assignment of error concerned the trial court’s ruling that one of defendants’ witnesses — a retired Deere engineer — was qualified to testify as an expert about how long the mower blades would have continued to rotate by sheer momentum, and how far the mower would have travelled in reverse, if the automatic shutoff feature had not been overridden. That testimony was proffered to show that the alleged defect in the mower’s design was not the cause of Isabelle’s injuries because, even if the automatic shut off feature had not been overridden, the mower’s blades still would have been rotating at a high rate of speed when they came into contact with the child.
Confronted with those assignments of error, the Court of Appeals concluded that the last one was the only assignment of error that pertained to the element of causation, as opposed to defendants’ culpability. Purdy,
In so concluding, the Court of Appeals relied on Lyons v. Walsh & Sons Trucking Co., Ltd,
The Court of Appeals concluded that Lyons controls the present case because here, as in Lyons, the jury answered “no” to questions that combined two different elements — culpability and causation — of plaintiffs claims. That is, the format of the verdict form made it impossible to discern — insofar as the jury’s resolution of those two elements was concerned — the rationale for the jury’s verdict. Purdy,
THE PARTIES’ DISPUTE
Plaintiff principally argues that the Court of Appeals’ overall approach to the reversible error analysis was flawed.
Defendants have a different understanding of Lyons and its relevance here. According to defendants, the decision in Lyons represented a straightforward application of a broad principle announced in Shoup — a party claiming trial court error has an affirmative burden under ORS 19.415(2) to show from the trial court record that “the jury made an adverse finding regarding the issue to which [the appellant’s] claims of error are directed.” Defendants argue that, in Lyons, and earlier in Jensen v. Medley,
The parties thus disagree not only about the import and precedential effect of Lyons, but also about the import and effect of other decisions purporting to apply the standard for reversal set out in ORS 19.415(2) to claims of instructional or evidentiary error. To assist the reader in understanding our analysis of Lyons and other pertinent decisions, we provide the following background.
THE LEGAL BACKGROUND
The standard for reversal of a trial court judgment expressed in ORS 19.415(2) has been part of Oregon’s statutory law since territorial days. See Wallach,
To determine whether evidentiary error is a ground for reversal, this court generally has looked to two related standards. The first is the standard in ORS 19.415(2); the second standard is that “[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.” OEC 103(1); see Jett v. Ford Motor Co.,
In Shoup, this court faced a novel issue that implicated ORS 19.415(2). In that case, an elderly woman who was shopping in a store was knocked to the floor when a store employee bumped into her. The woman sued the store, alleging three separate specifications of negligence. The defendant moved to strike one of the specifications of negligence from the jury’s consideration, but the motion was denied. At the end of trial, the jury returned a general verdict for the plaintiff. The defendant appealed, assigning error to the trial court’s refusal to withdraw the challenged specification of negligence from the jury’s consideration. Shoup,
The Court of Appeals concluded that it was required to reverse under ORS 19.415(2), based on the so-called “we can’t tell” rule that this court had announced in Whinston v. Kaiser Foundation Hospital,
For the purpose of determining whether the error at issue in Shoup required reversal, Whinston was not directly on point, because that case had not involved any explicit consideration of the standard set out in ORS 19.415(2). Still, it had obvious implications for that standard, at least in cases involving a specific pattern of circumstances — that is, where multiple specifications of negligence, one of which is invalid, are submitted to the jury in a single, general verdict question. To state the obvious: In such circumstances, a reviewing court cannot tell whether the error in submitting the invalid specification affected the verdict, because the jury might have based its verdict on one of the valid specifications. The Court of Appeals understandably applied that rule in Shoup to hold that, because it could not tell whether the jury had based its verdict on one or more of the valid specifications of negligence, or on the single invalid specification, it must remand for a new trial.
On review in Shoup, this court stated that, when it adopted the “we can’t tell” rule in Whinston, it had failed to consider whether that rule was compatible with the statutory standard for reversal set out in ORS 19.415(2).
“the ‘we can’t tell’ rule, which this court relied upon in some earlier cases and synthesized in Whinston, is inconsistent with ORS 19.415(2). Because that court-made standard conflicts with the standard that the legislature determined for reversal by an appellate court of a trial court judgment, it must give way. In every case, the appellate courts must adhere to the limitation of ORS 19.415(2) and reverse or modify a judgment only if it can be determined from, the record that the error ‘substantially affect [ed] the rights of a party.’”
The court in
The court in Baker held that the erroneous denial of discovery in that case did not require reversal because the requesting party “already knew or had possession of qualitatively the same information as that contained in the denied discovery.”
“In the context of this erroneous discovery ruling, the central issue is whether defendant, before trial, already knew or had possession of qualitatively the same information as that contained in the denied discovery. If such information were known before trial through other sources, the denial of discovery could not substantially have affected defendant’s rights under ORS 19.125(2). That is so because, having already known or been in possession of qualitatively indistinguishable information, defendant could have chosen to pursue or utilize that information in formulating a theory of the case and a strategy of presenting evidence.”
Id. at 593. Thus, in Baker, the denial of discovery could not have had the statutorily required effect on the right that the defendant posited, that is, to formulate and execute a trial theory and strategy. Accordingly, the trial court’s erroneous ruling could not furnish a basis for reversing the judgment.
In the other important case discussed in Shoup, Hernandez, a woodworker who had been injured by a saw brought a product liability action against its manufacturer. The defendant asserted an affirmative defense of comparative fault that alleged 10 separate specifications of the plaintiffs negligence that had contributed to the accident. The plaintiff requested an instruction that limited the kind of conduct that qualified for consideration by the jury as comparative negligence in the circumstances. The trial court declined to give the instruction. After the jury returned a verdict for the defendant, the plaintiff appealed, assigning error to the trial court’s refusal to give the requested instruction. Hernandez,
In Shoup, this court commented on the decisions in Hernandez and Baker:
“[I]n Hernandez, [the court] cited Baker as indirect authority for the proposition that the rights of a party are ‘substantially affected’ if‘the outcome of the case either would have or may have been different had the error not occurred.’ In that regard, Hernandez, like defendant’s argument in this case, takes this court’s statement inBaker out of context. We do not, however, question the conclusion reached by this court in Hernandez. The error in jury instructions at issue in Hernandez was ‘reversible’ under ORS 19.415(2).”
Shortly after it decided Shoup, this court applied ORS 19.415(2) in State v. Pine,
“rely on a more fundamental reason to distinguish Shoup from th[e] case [before it]. *** [I]f the jury had believed defendant’s version of the facts, it nonetheless could have convicted him under the challenged instruction. If *** that instruction incorrectly stated the law, then the jury’s guilty verdict effectively would have convicted defendant of a crime that the legislature did not enact.”
That brings us, finally, to Lyons, the case that the Court of Appeals deemed to be controlling here. In Lyons, the plaintiffs’ decedent, a state trooper, was killed, along with his colleague, Rector, when the police vehicle that Rector was driving and in which the decedent was a passenger was struck by a tractor trailer. The plaintiffs brought a wrongful death action against the company that owned the truck and employed its driver, alleging that the accident was caused by the negligence of the defendant’s employee. Lyons,
In accordance with their view of the effect of that immunity, the plaintiffs sought various instructions admonishing the jury not to “weigh or consider” Rector’s conduct unless it found that it was the “sole and exclusive” cause of the accident. Id. at 323. The trial court declined to give the requested instructions and, instead, instructed the jury not to compare Rector’s fault with the truck driver’s fault. At the close of trial, the court submitted a special verdict form to the jury that combined the issues of negligence and causation into a single, compound question: Whether the defendant was negligent in any of the ways alleged and “and, if so, was such negligence a cause of damage to the plaintiffs.” Id. at 323 (emphasis added). The jury answered “no” to that question, and thus the defendant prevailed.
The plaintiffs unsuccessfully appealed to the Court of Appeals and then sought review before this court, on the grounds that the trial court had erred in giving the comparative fault instruction and in refusing to give the requested “sole and exclusive cause” instruction. Although this court initially allowed review to consider those issues on their merits, it eventually concluded that it could not reach them “because of the nature of the verdict that the jury rendered.” Id. at 324. The court observed that the jury had rendered its verdict on a compound question that made it impossible to tell whether the answer rested (1) on a determination that the defendant was not negligent, or, alternatively, (2) on a determination that the defendant was negligent but that its
The court explained:
“Our inability to determine which ground led the jury to decide as it did is important, because plaintiffs have focused all their arguments in this court on the second part of the question. That is, plaintiffs assert that the instructions that the trial court gave and the evidence that it admitted improperly permitted the jury to consider Rector’s conduct in assessing whether [the defendant’s] conduct was a substantial factor in causing the accident. But such errors by the trial court, if errors they were, are irrelevant if the jury decided the case instead on the pristine proposition that [the defendant] was not negligent.”
“What this court stated in Shoup applies equally to the narrow problem that the form of jury verdict used in the present case poses. This was not a case in which the plaintiff advanced a single factual theory of liability that the form of jury verdict reflected. Nor did this case involve other kinds of asserted trial error, such as a faulty jury instruction, that may call for a different analysis of whether the error ‘substantially affect [s] the rights of a party’ under ORS 19.415(2). The jury verdict could have been based on one of two different rationales that the jury verdict for defendant identified; it is impossible to tell which the jury used. Plaintiffs’ claims of error may or may not be well taken, but they depend on an assumption that the jury’s verdict was based on one rationale only. The present record does not support plaintiffs’ assumption, and because they are asserting error, the consequences of the inadequacy of the record in that respect fall on plaintiffs.”
Id. at 326.
In at least two respects, the court’s explanation of its holding was somewhat opaque. First, the court stated that the plaintiff had not “advanced a single factual theory of liability that the form of jury verdict reflected.” Id. That statement was literally accurate; the plaintiff in Lyons, like the plaintiff in Shoup, had pleaded several factually distinct specifications of negligence. See Lyons,
In Wallach, this court addressed some of the uncertainty that arose out of Lyons. In Wallach, an insured who had been injured in an automobile accident brought an uninsured motorist (UM) action against his insurer. The plaintiff thereafter was involved in two more accidents and, in the UM action, sought to hold the insurer liable for aggravation of the injuries sustained in the first accident that resulted from the second and third accidents. The plaintiff proffered an instruction that was consistent with his aggravation theory, and the trial court gave the instruction despite the insurer’s objection that the instruction erroneously stated the law. The jury returned a verdict awarding significant money damages to the plaintiff. The insurer appealed, asserting that the trial court had erred in giving the “aggravation” instruction. The Court of Appeals agreed with the insurer that the instruction was erroneous and reversed and remanded the case to the trial court. Wallach v. Allstate Ins. Co.,
The plaintiff sought review, arguing that the instruction was correct and that, even if
This court in Wallach distinguished Lyons on the ground that, in Lyons, this court had described that case as one involving a “narrow problem” pertaining to the form of the verdict, not a faulty jury instruction. Wallach,
The court’s decision in Wallach was not unanimous. Noting that the majority had attempted (1) to distinguish Lyons as a case involving an error in the form of the verdict and (2) to limit the holding in Lyons accordingly, the dissent protested that the distinction did not withstand scrutiny. Wallach,
The majority responded that it need not
“decide whether Lyons was correct in positing that the jury verdict form in that case and instructional error present distinct issues for purposes of ORS 19.415(2). This case does not involve a jury verdict form similar to the one in Lyons; it thus provides no occasion for us to decide whether the distinction that the court articulated in Lyons was correct. Rather, it is sufficient for the purposes of this case to reaffirm the general rule stated in Pine, Hernandez, and an unbroken line of cases that, when a trial court incorrectly instructs the jury on an element of a claim or defense and when that incorrect instruction permits the jury to reach a legally erroneous result, a party has established that the instructional error substantially affected its rights within the meaning of ORS 19.415(2).”
Wallach,
THE PROBLEM OF LYONS
To sum up thus far, in Wallach, this court cabined the holding in Lyons to circumstances
As discussed, plaintiff contends that Lyons does not control here. Although plaintiff suggests other reasons why that may be so,
This court does not overrule its prior decisions lightly. As we stated in Farmers Ins. Co. v. Mowry,
“[T]his court’s obligation when interpreting constitutional and statutory provisions and when formulating the common law is to reach what we determine to be the correct result in each case. If a party can demonstrate that we failed in that obligation and erred in deciding a case, because we were not presented with an important argument or failed to apply our usual framework for decision or adequately analyze the controlling issue, we are willing to reconsider the earlier case. Similarly, this court is willing to reconsider cases when the legal or factual context has changed in such a way as to seriously undermine the reasoning or result of earlier cases.”
Id. at 698.
Lyons concerned the meaning and application of a statute, ORS 19.415(2), and our determination whether to reconsider that case here places particular emphasis on the court’s use of the appropriate interpretive framework, which, broadly conceived, would include adequate consideration of the relevant context, including case law interpreting or applying the statute. Mowry, 350 Or at 698. Thus, the criticism that plaintiff has leveled against this court’s decision in Lyons — that, on the questionable premise that the case did not involve a faulty jury instruction, the court in Lyons failed to consider a body of pertinent case law — could be an adequate basis for reconsidering that case.
Notably, this court accepted review in Lyons to address the merits of the plaintiffs assignments of instructional error but, without
We begin by reiterating that the task before the court in Lyons was to determine the meaning of, and apply, a statute. The standard currently codified in ORS 19.415(2) has been a part of this state’s civil and criminal law since the Deady Code. See General Laws of Oregon, Civ Code, ch VI, § 533, p 284 (
As noted, this court construed ORS 19.415(2) in Shoup, and it reached two conclusions that are pertinent here. First, to require reversal under the statute, an error must — in an important or essential manner — have materially or detrimentally influenced a party’s rights; it is insufficient to speculate that the error might have changed the outcome in the case. In that regard, the court said:
“Under the statute, ‘no judgment shall be reversed *** except for error substantially affecting the rights of a party.” (Emphasis added.) The words of ORS 19.415(2) demonstrate that an error must cause something more than the ‘possibility’ of a different result before the appellate court may reverse a judgment. To ‘affect’ means, among other things, ‘to act upon: a: to produce an effect (as of disease) upon * * * b(l): to produce a material influence upon or alteration in * * * (2): to have a detrimental influence on * * * ” Webster’s Third New Int’l Dictionary 35 (unabridged ed 1993). Thus, an error ‘affecting’ a party’s rights is an error that can be said to ‘produce a material influence’ or ‘to have a detrimental influence’ on those rights, and not merely one that ‘might’ have changed the outcome of the case. The use of the adverb ‘substantially’ further limits the type of error that can result in reversal of a judgment. ‘Substantially’ means ‘in a substantial manner,’ and the relevant definition of ‘substantial’ is ‘being of moment: IMPORTANT, ESSENTIAL.’ Id. at 2280.”
Shoup,
“[T]he statute protects the trial court judgment from reversal or modification ‘except for’ error substantially affecting a party’s rights, indicating that reversal of a judgment is the exception, not the rule. The rule embodied in ORS 19.415(2) is neutral as between plaintiffs and defendants; it places the burden to make a record that demonstrates prejudicial error on whichever party loses in the trial court and thenseeks reversal or modification of the judgment on appeal.”
Id. at 173-74.
As noted, defendants argue that, to satisfy those requirements, an appellant must show that the jury actually made an adverse finding on the issue to which the appellant’s claims of error are directed. Plaintiff responds that the effects of the asserted instructional and evidentiary errors on his rights in this case would not necessarily be discernible from the content of a special verdict and, therefore, the generally applicable constructs of the standard set out in ORS 19.415(2) for those types of errors ought to govern here.
A careful reading of the words of the statute in light of this court’s decision in Shoup supports plaintiffs view. Just as the legislature could have conditioned reversal on the mere possibility that an error affected the jury’s decision if it had so intended, it also could have conditioned reversal on a showing that the jury found against the appellant on the particular element of a claim or defense to which the asserted error pertained, if it had meant to impose that requirement. This court rejected the former approach in Shoup, and we reject the latter here, because, it too, fails to correspond to the statutory standard.
That standard asks, instead, whether — in an important or essential manner — the error had a detrimental influence on a party’s rights. Shoup,
In Hernandez, this court referred to “the general rule [that] the parties in a civil action are entitled to jury instructions on their theory of the case if their requested instructions correctly state the law, are based on the current pleadings in the case, and are supported by evidence.” Hernandez,
That approach to analyzing the effect of error under ORS 19.415(2) is consistent with a presumption to which this court has adhered for many years; that is, “[w]e presume that a jury follows a trial court’s instructions.” Wallach
That kind of record-based review is consistent with this court’s statement in Shoup that ORS 19.415(2) “places the burden to make a record that demonstrates prejudicial error on whichever party * * * seeks reversal,” and that that rule applies “in every case.”
“The evidence that plaintiff introduced in support of her negligence claim was straightforward: Plaintiff, her husband, her physician, and the store employee were the only witnesses at trial. There was no dispute that plaintiff was injured when she was struck by the store employee, who was backing up to get out of another shopper’s way. All three specifications of negligence were based on the same evidence, and the jury concluded that plaintiff had proved her negligence claim.”
Id. at 178. In sum, the record showed that there was little likelihood that the jury had found for the plaintiff on the invalid specification without also finding for the plaintiff on one or both of the valid specifications.
Second, the court stated that
“[a] special verdict would have allowed defendant to show the claims or specifications upon which the judgment was based and thus to provide us with a record that would allow us to determine whether the trial court error was prejudicial. See Whinston,309 Or at 359 n 10 (describing benefits of special verdict or interrogatories to jury). In this case, however, defendant objected to plaintiff’s proposed special verdict form, and the court used defendant’s general verdict form.”
Id. at 178-79. Thus, it was significant that the defendant had affirmatively eschewed — by objecting to a theory-specific verdict form — the opportunity to create a record that would have established whether the jury had found for the plaintiff on only the invalid theory of liability. In that circumstance, the court held, the defendant had “not identified anything in the record to demonstrate that the jury based its verdict on [the invalid specification of negligence]” and that the defendant, therefore “[was] unable
That holding constituted a particular application of the standard in ORS 19.415(2) based on the record before the court. The error did not substantially affect the defendant’s rights, because the same evidence applied to all three theories of liability, and there was little likelihood that the jury had based its verdict on the invalid theory alone. And, to punctuate the analysis, the record showed that the defendant had actively prevented the use of a verdict form that would have shown whether the jury had based its verdict on the invalid theory of liability. Accordingly, the defendant was in no position to complain about the error.
Here, the verdict form that the trial court submitted to the jury was not as specific as the type of verdict form to which this court referred to in Shoup. That is, the form in this case required the jury to enter separate verdicts on plaintiffs claims for strict liability and negligence, but it combined the various specifications of liability for each claim into a single verdict on that claim. However, for two reasons, a theory-specific verdict form like the one that the court referred to in Shoup would not necessarily have revealed whether the posited instructional and evidentiary errors in this case adversely influenced the result that the jury reached. First, although plaintiff asserted several theories of liability on each claim, culpability and causation were common elements in each of those theories. In that circumstance, a separate verdict on each theory of liability would not have shown the jury’s findings as to those elements.
Second, for good reason, this court in Shoup was careful to distinguish the problem in that case from circumstances involving instructional error. Where multiple theories of liability are advanced and a challenged jury instruction or evidence applies to one or more (but not all) theories, a verdict showing the jury’s decision on a theory-specific basis might indicate (if, for example, the error pertained only to a theory of liability on which the jury found for the appellant) that the error did not adversely influence the jury’s decision. However, a theory-specific verdict would not necessarily demonstrate whether the converse is true. In the case of instructional error, to show more about the likelihood that the error adversely influenced the jury’s decision, a verdict form would have to create a decision tree setting out the jury’s deliberative path in considerably greater detail. Because jury instructions often apply to single elements of a claim or defense, the verdict form would need to include separate findings with respect to each triable issue of fact to which a disputed instruction might apply. And even that level of detail would not necessarily reveal that (or the extent to which) any particular error substantially affected the appellant’s rights, because, as discussed, that determination — for both instructional and evidentiary error — generally turns on broader, record-based, considerations that are not reflected in the content of a verdict form. See, e.g., Lopez-Minjarez,
Thus, it comes as no surprise that, apart from the import of its holding in Lyons, this court has never suggested that an appellant must have proposed an element-by-element or factual issue-by-issue questionnaire format for a jury verdict to demonstrate the existence of reversible instructional or evidentiary error under ORS 19.415(2).
If the court had taken those decisions into account in Lyons, the answer that the court gave in that case would— and should — have been different. Lyons involved an instructional error problem, and the proper application of the statutory standard for reversal in that case was the familiar one that this court had earlier used in Pine, and later used in Wallach and Lopez-Minjarez. Generally speaking, if a trial court incorrectly instructs the jury on an element of a claim or defense, and — when the instructions are considered as a whole in light of the evidence and the parties’ theories of the case at trial — there is some likelihood that the jury reached a legally erroneous result, a party has established that the instructional error substantially affected its rights within the meaning of ORS 19.415(2). Lopez-Minjarez,
APPLICATION
With that understanding, we return to this case. As discussed, the Court of Appeals concluded that it could not consider nine of plaintiffs 10 assignments of error because, even if established, none of those errors would constitute a ground for reversal. That was so, in the court’s estimation, because, in the absence of a special verdict that separated the issues of culpability and causation, it could not tell whether, after it had rejected the sole claimed error regarding causation, any of the remaining claimed instructional or evidentiary errors (all of which pertained only to the issue of culpability) had affected the jury’s decision. The court concluded that it was bound by this court’s holding in Lyons to apply that construct to all categories of trial court error, including the instructional and evidentiary errors at issue here.
Because we have overruled our holding in Lyons, we reverse and remand to the Court of Appeals to consider plaintiffs remaining assignments of error. If that court concludes that one or more of plaintiffs assignments of error are meritorious, it can then determine whether the error substantially affected plaintiffs rights.
The decision of the Court of Appeals is reversed and the case is remanded to that court for further proceedings.
Notes
Plaintiff’s petition for review presented two questions; the second question challenged the Court of Appeals’ resolution of the single assignment of error that it had addressed on the merits — plaintiff’s assertion that defendant’s expert was not qualified to testify about his reconstruction of the accident. This court declined to review the Court of Appeals’ decision on that issue; it limited review to the question of whether, to establish reversible error, an appellant must demonstrate that an asserted instructional or evidentiary error was necessarily implicated in the jury’s verdict.
The question before the court in Whinston involved the proper disposition of a motion for judgment notwithstanding the verdict in the described circumstances, not whether the error in submitting the one invalid specification to the jury required reversal, Thus, the court did not consider whether the “we can’t tell” rule was compatible with the standard in ORS 19.415(2).
This court discussed Hernandez at length in Wallach. The court observed that, although Hernandez involved an assertion of instructional error, the asserted error was relevant to only one of the plaintiffs 10 specifications of negligence — a circumstance that was parallel to the circumstances in Shoup. The court explained that,
“[bjecause the trial court refused to give the plaintiffs requested instruction, the jury applied an incomplete and thus inaccurate legal rule to the facts, which permitted the jury to reach an erroneous result. That was sufficient, this court held in Hernandez and reaffirmed in Shoup, to say that the instructional error substantially affected the plaintiffs rights and required reversal. That was true even though the jury in Hernandez properly could have based its verdict on the other allegations of negligence and the plaintiff in Hernandez could have memorialized the effect of the trial court’s refusal to give his requested instruction by asking the jury to specify which, if any, of the defendant’s allegations of negligence it relied on in determining the parties’ respective fault.”
Wallach,
In particular, plaintiff argues that the instructional and evidentiary errors that he asserted pertained to the issue of causation as well as to the issue of fault and that, as such, the factual basis for applying the “we can’t tell” standard was not present.
Plaintiff notes that the court had regularly applied a similar construct for evidentiary errors.
Article VII (Amended), section 3, of the Oregon Constitution, provides, in part:
“If the supreme court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial!.]”
Oregon’s constitutional test for affirmance despite error consists of a single inquiry: Is there little likelihood that the particular error affected the verdict? Davis,
The same is true for evidentiary error. If, for example, evidence that was
This court’s decision in Jensen does not undercut the point that we make here. In Jensen, this court concluded that the trial court had erred in giving a jury instruction pertaining to one of two theories of whistleblower liability that the plaintiff had advanced. Jensen,
As noted, since deciding Shoup, this court has continued to apply the “little likelihood that the error affected the result” construct to assignments of evidentiary error. See Davis,
Chief Justice Balmer’s concurrence offers sound practical guidance for creating a record to assist an appellate court in determining whether trial court error was prejudicial. We agree with the Chief Justice that careful practitioners always should consider taking steps' — including, where practical, the thoughtful use of appropriately tailored verdict forms — to create a record that exceeds the requirements of the legal standard set out in ORS 19.415(2).
Concurrence Opinion
concurring.
This case raises the ubiquitous and difficult issue of what an appellate court should do in the face of trial court error: When should error lead to reversal and when, notwithstanding error of some kind, should the judgment below nevertheless be affirmed? The question has vexed appellate court review of criminal and civil cases for centuries and touches on such fundamental concerns as fairness, the protection of constitutional rights, the role of juries, the legitimacy of trial and appellate court processes, and the prudent use of judicial resources. See generally Roger J. Traynor, The Riddle of Harmless Error (1970). Courts have struggled to articulate the appropriate test and, once articulated, to undertake the more nuanced task of applying it to specific cases.
The majority opinion is a useful addition to the ongoing effort of the Oregon appellate courts to articulate and apply the proper test for reversing a trial court judgment when the appellant demonstrates error in the trial court proceedings. I agree with the majority’s analysis and disposition of this case and with its discussion of Shoup v. WalMart Stores, Inc.,
Few legal proceedings are flawless, of course, and to reverse every trial court judgment because there was error of some kind in the proceeding would undermine critical goals of justice, finality, and efficiency. In fact, courts at various times have done just that — reversing convictions because, for example, the indictment charged a defendant with entering a building with the intent to commit “larcey,” and the statute criminalized only entry with intent to commit “larceny,” or when the indictment stated that the offense was “against the peace of the State,” instead of “against the peace and dignity of the State.” Traynor, The Riddle of Harmless Error at 3-4, 85 n 3. Yet to require an appellant to demonstrate that the trial court judgment was “clearly wrong,” as some courts have, see id. at 17-18, 89 n 45, would pose an often insurmountable hurdle for the party seeking reversal and would countenance serious legal error at the trial level.
The Oregon statute providing for appellate review of trial court judgments sets a standard for reversal between those two extremes. It requires a party seeking reversal to demonstrate that trial court error “substantially affect [ed]” the party’s rights, but does not require a showing that the error necessarily led to an incorrect judgment. ORS 19.415(2) puts it this way: “No judgment shall be reversed * * * except for error substantially affecting the rights of a party.” In Shoup, we analyzed and applied that provision, noting that “reversal of a judgment is the exception, not the rule” and that, while the standard for reversal is neutral as between plaintiffs and defendants, “it places the burden to make a record that demonstrates prejudicial error on whichever party loses in the trial court and then seeks reversal or modification of the judgment on appeal.”
The more difficult questions are how to articulate the legal standard — other than simply repeating the words of ORS 19.415(2) — and how to apply it to specific cases. The majority correctly points out that it is not enough for the appellant to argue that the error “possibly” affected the outcome of the case.
So, the bar for the appellant is somewhere above “possibly affected” the result, but below “necessarily affected” the result. Elaborating on Shoup, the majority articulates the statutory standard to be “whether — in an important or essential manner — the error had a detrimental influence on a party’s rights”; the appellate court must “assess [] the extent to which an error skewed the odds against a legally correct result.”
Fortunately, there are other aspects of appellate review that this court routinely considers that make the problem less daunting than it might appear in the abstract. First, we have long recognized that some trial errors are substantial and more likely to have affected the result, while others are less likely to have done so. Evidentiary error, for example, is “not presumed to be prejudicial,” OEC 103(1), and we have relied on that presumption in affirming judgments notwithstanding the erroneous exclusion or admission of evidence. See State v. Gibson,
Moreover, we do not look at trial court errors in the abstract — rather, we examine those errors in the context of the trial record
The approaches just discussed regarding eviden-tiary and instructional error, and the appellate courts’ commitment to reviewing the trial court record, provide some structure to the ORS 19.415(2) inquiry. That difficult inquiry, however, inevitably requires the exercise of some amount of discretion by the appellate court. See Traynor, The Riddle of Harmless Error at 15-17 (discussing discretion in harmless error review).
But litigants need not leave themselves at the mercy of an appellate court trying to determine from the record whether trial court error “affected” the judgment “a little,” “some,” or “a lot.” Special verdict forms, such as the form proposed by the plaintiff (but objected to by the defendant) in Shoup that would have asked the jury to state separately whether it found the defendant negligent based on its own negligence or that of its employee, can greatly assist an appellate court in determining whether error was prejudicial. Verdict forms separating liability, causation, and damages can clearly demonstrate that an error did — or did not — affect the verdict. See ORCP 61 B (authorizing use of special verdict). Interrogatories can separate jury determinations as to the liability of one party among multiple defendants or one claim among multiple claims and can even address issues related to specific evidence, the admissibility of which might become a critical issue on appeal. See ORCP 61 C (authorizing use of interrogatories).
I fully agree with the majority that an appellant need not “prove,” by means of a verdict form or an interrogatory, that the jury based its verdict on improperly admitted evidence or an instruction that turned out to be erroneous. And the majority is correct that attempting to come up with a verdict form or interrogatories that would allow an appellate court to determine whether any particular jury instruction or evidentiary ruling — later asserted to be erroneous — necessarily affected the judgment could, in a complicated case, quickly lead to a complex “decision tree” for the jury’s deliberative path that might create more problems for jurors, parties, and the court than it would solve. See
However, lawyers aware of the difficulty that appellate courts face in determining whether error is prejudicial or harmless — and of the amount of discretion appellate courts inevitably exercise in that area — should consider whether they and their clients would be better off on appeal if they used verdict forms or interrogatories that provided greater insight into the basis for the jury’s verdict. Here, the verdict form consisted of separate questions about products liability and negligence as to Deere and Company and negligence as to Ramsey-Waite Company. However, each question actually was a compound question asking both about a theory of liability (products liability or negligence) and about the very different issue of causation. Because causation was vigorously disputed at trial, it would have made sense for one or all parties to have requested a verdict form that separately addressed that issue.
Similarly, in Lyons v. Walsh & Sons Trucking Co., Ltd.,
As the majority opinion discusses, Lyons v. Walsh & Sons Trucking Co., Ltd,.,