Ore. high court says lower court wrong to exclude evidence

By Jessica M. Karmasek | Oct 6, 2011


SALEM, Ore. (Legal Newsline) - The Oregon Supreme Court said last month that a trial court erred in excluding evidence that a defendant charged in a fatal auto accident was intoxicated at the time.

The Court, in its 31-page opinion filed Sept. 22, decided that evidence of Judy Clemmer's intoxication was not relevant to the issue of whether Combined Transport Inc.'s negligence was a cause of Mark Lasley's death but was relevant to the issue of apportionment of fault.

The plaintiff, the decedent's father Clarence Lasley, sued both Combined and Clemmer after an accident that took his son's life.

On the day Mark Lasley died, a truck owned and operated by Combined lost part of its load of large panes of glass on the I-5 freeway.

During the clean-up, traffic backed up and Mark Lasley was stopped. Clemmer then drove into his pickup, causing leaks in its fuel system. The ensuing fire killed him.

Combined denied that it was negligent and that its conduct foreseeably resulted in Mark Lasley's death.

Clemmer, on the other hand, admitted she was negligent in driving at an unreasonable speed and in failing to maintain a proper lookout and control. She also admitted her negligence was a cause of Mark Lasley's death.

Based on the pleadings, the Multnomah County Circuit Court granted Clarence Lasley's motion in limine to exclude evidence that Clemmer was intoxicated at the time of the collision.

The jury rendered a verdict against both defendants, finding Combined 22 percent at fault and Clemmer 78 percent at fault for the plaintiff's damages.

Combined appealed and the state Court of Appeals reversed, concluding that the trial court had erred in excluding the evidence of Clemmer's intoxication.

The state's high court said to have the jury consider evidence of Clemmer's intoxication in comparing the fault of the parties, either the plaintiff or Combined had to allege those facts.

The plaintiff did not, so the pleading burden fell on Combined.

"Combined Transport did not use the pleading that we now hold was required -- an affirmative defense. However, Combined Transport did allege, in its cross claim, the fact of Clemmer's intoxication and its theory that Clemmer's intoxication should be considered in determining Clemmer's proportional share of liability," Justice Martha L. Walters wrote for the Court.

Combined, the Court said, was incorrect in selecting the pleading that it was required to use, but was correct in recognizing that it must plead those allegations to make Clemmer's intoxication relevant to the jury's determination of comparative fault.

The trial court was correct that a cross-claim for contribution was premature, but it was incorrect that there was no role for Combined's pleading alleging negligence by Clemmer that was not pleaded by the plaintiff, the Court said.

"We think that, in the unique circumstances of this case, the cross-claim that Combined Transport proffered fulfilled the function of an affirmative defense, to put the plaintiff on notice of the theory and facts comprising the defendant's defense," Walters wrote.

Therefore, the evidence was relevant on the issue of the comparative fault of the defendants and the trial court erred in excluding it, the Court said.

However, the evidence of Clemmer's intoxication was not relevant on the issues of causation, liability or damages, it said.

The Court remanded the case for a new trial limited to the degree of fault of each defendant.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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