Kennedy v. Wheeler ( 2014 )

518 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, 309 P3d 196 (2013).
Cite as 356 Or 518 (2014) 519
Plaintiff petitioned for review of a Court of Appeals decision reversing the
trial court’s acceptance of the jury’s verdict. The Court of Appeals held that the
trial court’s jury instructions had established, as the law of the case, that the
same nine of twelve jurors must agree on the amounts of both economic and
noneconomic damages. Because the same nine jurors had not concurred on the
amounts of economic and noneconomic damages, the Court of Appeals reversed.
Held: The decision of the Court of Appeals is reversed. The trial court’s instruc-
tions to the jury did not establish the law of the case. Article VII (Amended),
section 5(7), of the Oregon Constitution and ORCP 59 G(2) both provide: “In civil
cases three-fourths of the jury may render a verdict.” When a jury of twelve ren-
ders a special verdict 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 may not demonstrate a logical inconsistency. However, that requirement
does not mean that the same nine of twelve jurors must concur on the specific
amounts of economic and noneconomic damages. In this case, because all twelve
jurors agreed that defendant’s negligence had caused damages to plaintiff, and
at least nine jurors agreed on the sums of economic and noneconomic damages
awarded, their verdict did not demonstrate a logical inconsistency. The jury’s
verdict therefore met the requirements of Oregon law, and the trial court did not
err in accepting it.
The decision of the Court of Appeals is reversed. The judgment of the circuit
court is affirmed.
520 Kennedy v. Wheeler
WALTERS, J.
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.1
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.”
1
Plaintiff obtained judgment against two defendants, Wheeler and Hall.
Defendant Wheeler appealed; defendant Hall did not. Thus, when we refer to
defendant, we refer only to defendant Wheeler.
Cite as 356 Or 518 (2014) 521
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
agreeing on noneconomic damages. The following colloquy
then ensued:
“Defendant:  I think there were only the same eight,
however.
“Court: Pardon?
522 Kennedy v. Wheeler
“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 jurors 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.
Cite as 356 Or 518 (2014) 523
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 reversed.
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, 493 P2d 138 (1972) (when neither party
objected to jury instruction, it became the law of the case);
Mays v. Vejo, 224 Or App 426, 430-31, 198 P3d 943 (2008)
(same).
“Thus, we conclude that, in this case, at least the same
nine jurors were required to agree on each answer in
the verdict form, including the amounts of economic and
2
Defendant also assigned error to the court’s failure to sustain defendant’s
objection to the verdict, the court’s denial of defendant’s objection to entry of
judgment, and the court’s denial of defendant’s motion for new trial. Defendant’s
arguments in support of those assignments of error are duplicative.
524 Kennedy v. Wheeler
noneconomic damages. It is undisputed that only the same
eight jurors agreed on economic and noneconomic damages.
As a result, the verdict violated Article VII (Amended), sec-
tion 5(7), of the Oregon Constitution, and the court erred in
entering a general judgment based on that verdict.”
258 Or App at 349-50.
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.3
We begin with that procedural issue and then take up the
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, 316 Or 561, 569, 853 P2d 827 (1993) (quoting
Simmons v. Wash. F. N. Ins. Co., 140 Or 164, 166, 13 P2d
366 (1932)). The policies underlying that doctrine “essen-
tially parallel those served by the doctrines of stare decisis
and res judicata * * *, i.e., consistency of judicial decision,
putting an end to litigation of matters once determined, and
preserving the court’s prestige.” Koch v. So. Pac. Transp.
Co., 274 Or 499, 511-12, 547 P2d 589 (1976) (citing Allan D.
3
In that regard, the Court of Appeals decision in this case is somewhat
ambiguous. After concluding that the jury instructions established the “law of
the case,” the court went on to conclude that the verdict violated the Oregon
Constitution. 258 Or App at 350. Although the court may not, therefore, have
decided the case on subconstitutional grounds, the court’s failure to analyze the
meaning of the constitutional provision at issue makes the basis for its decision
somewhat unclear.
Cite as 356 Or 518 (2014) 525
Vestal, Law of the Case: Single-Suit Preclusion, 1967 Utah
L Rev 1 (1967)).
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 problem 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 does not apply in
these circumstances.
First, we are not persuaded that the trial court
actually made a decision that the same nine jurors must
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 jurors who
agreed to the sum specified for economic damages (if any)
526 Kennedy v. Wheeler
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, 292 Or 752, 756, 644
P2d 1082 (1982) (“[A] court is not barred from changing a
ruling which it believes to be erroneous if neither party has
been prejudiced beyond simply ending up on the losing side
Cite as 356 Or 518 (2014) 527
of the ruling.”). Had defendant advised the trial court of
her interpretation of its instructions or had the trial court
understood that its instructions were subject to more than
one interpretation, the trial court would not have been
bound by its prior instructions. It could have revised them
and instructed the jury accordingly.4
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 as importantly, the “law of the case” doctrine
does not make a trial court’s ruling binding on an appellate
court. Thompson v. Coughlin, 329 Or 630, 635 n 5, 997 P2d
191 (2000). In Thompson, the court observed that, although
a ruling from the Court of Appeals operated as “law of the
case” as to the trial court and the Court of Appeals, it did
not bind the Supreme Court, which never had addressed the
issue. See Vestal, 1967 Utah L Rev at 20 (“After all, appellate
courts exist to correct the errors made by inferior courts, so
that it would seem to be illogical to say that a court can
make a legal decision which is not subject to review.”).
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
4
In fact, had the trial court recognized the jury verdict as inconsistent with
its instructions, and thus, perhaps, invalid, it may have been required to rein-
struct the jury and to send it out for further deliberations. ORCP 59 G(3) (if fewer
jurors than number required for verdict answer in the affirmative, jury shall be
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
further); see also Lewis v. Devils Lake Rock Crushing Co., 274 Or 293, 301-02, 545
P2d 1374 (1976) (when jury returned verdict awarding punitive but not general
damages, trial court was authorized to reinstruct jury and require further delib-
erations); Flansberg v. Paulson, 239 Or 610, 612, 399 P2d 356 (1965) (when jury
assessed special damages but not general damages, trial court correctly rejected
verdict and reinstructed jury).
528 Kennedy v. Wheeler
did not raise in the trial court. ORAP 5.45 (error will not
be considered on appeal unless claim was preserved in the
lower court); see also State v. Wyatt, 331 Or 335, 341, 15 P3d
22 (2000) (“Generally, an issue not preserved in the trial
court will not be considered on appeal.”); State ex rel Sam’s
Texaco & Towing v. Gallagher, 314 Or 652, 663, 842 P2d
383 (1992) (if party fails to object to jury instructions before
jury retires, objection is waived). That preservation rule is
not applicable here because plaintiff did not appeal from
the trial court judgment or assign error to the jury instruc-
tions that the trial court gave. Rather, it was defendant
who appealed from the trial court judgment. Consequently,
defendant has not relied and does not rely on ORAP 5.45 or
other preservation rules as a shield against an appeal by
plaintiff. Instead, defendant seeks to use the trial court’s
jury instructions as a sword to keep plaintiff from respond-
ing to defendant’s arguments about the reach of Oregon law
and thereby limit this court’s analysis of that issue.
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., 261 Or 206,
493 P2d 138 (1972), superseded on other grounds by Waddill
v. Anchor Hocking, Inc., 330 Or 376, 8 P3d 200 (2000), the
issue before the court was whether the trial court had erred
in instructing the jury, over the defendant’s objection, that
an administrative rule required drivers to stop and rem-
edy defective conditions in their vehicles. This court agreed
with the defendant that the trial court had erred in giving
the instruction, because there was no evidence in that case
that permitted the jury to find that the defendant knew or
could have known that his truck had developed a danger-
ous condition. Nevertheless, the court held that the error
was harmless. The trial court also had instructed the jury
that compliance with the administrative rule was excused
“if the violation was caused by circumstances beyond the
Cite as 356 Or 518 (2014) 529
operator’s control and if compliance was impossible.” Id. at
223. This court presumed that the jury had followed that
instruction and reasoned that, if the jury had found that
the defendant had violated the administrative rule, the jury
also must have found the violation to be excused: Under the
undisputed evidence, compliance with the rule was impos-
sible. Id. at 224.
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, 251 Or 596, 600, 446 P2d 187 (1968), where
we said the following statement is preferable: ‘* * * a vio-
lation of a statute requiring adequate safety equipment is
excusable if the defect could not have been discovered by
the exercise of the highest degree of care.’ However, nei-
ther party complained of the trial court’s instruction, and
it become the law of the case.”
Id. at 223 n 5 (emphasis added). The court’s purpose in drop-
ping that footnote was to alert the bench and bar that, in
Ainsworth, the court had disapproved the excuse instruction
that the trial court had used in Fulton and that a different
formulation was preferable. However, the court explained,
its decision in Ainsworth did not affect the result that it
reached in Fulton. In Fulton, the parties had not objected to
the wording of the excuse instruction. Therefore, in conduct-
ing its harmless error analysis, this court could presume
that the jury had followed the excuse instruction as given.
In Tou Velle v. Farm Bureau Co-op. Exchange, 112
Or 476, 229 P 83 (1924), this court also used the term “law
of the case” to describe the effect of jury instructions on
jury deliberations. In that contract case, the trial court had
instructed the jury that if it found for the plaintiff, the plain-
tiff’s damages were $786.28 and the jury must fill in that
amount of damages on the verdict form. After the jury had
retired and deliberated, it sent out the following question:
“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
530 Kennedy v. Wheeler
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 objections 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., 145 Or 96, 108-109, 25 P2d 911 (1933).
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
Company, 355 Or 204, 227, 324 P3d 455 (2014) (so stating).5
5
Correctly understood, Wampler v. Sherwood, 281 Or 261, 574 P2d 319
(1978), another case on which defendant relies, is in accord. In Wampler, the
question was whether the trial court had erred in granting a directed verdict for
defendant because there was insufficient evidence to support plaintiff’s allega-
tion that a boundary had been established by “acquiescence” or “practical loca-
tion.” With the agreement of the parties, the trial court had defined those terms
for the jury. On appeal, the parties argued that the court should impose a differ-
ent standard from that which the parties had agreed at trial was appropriate.
This court stated that
“[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
Cite as 356 Or 518 (2014) 531
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.”6 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, 317 P3d 889 (2013); A. G. v. Guitron, 351 Or 465,
479, 268 P3d 589 (2011); Waddill, 330 Or at 382 n 2. After
undertaking that analysis, we then assess whether the
Oregon Constitution imposes additional or more stringent
concurrence requirements.
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.
6
Further discussion of the preservation issue would not be of benefit to the
bench or bar.
532 Kennedy v. Wheeler
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, 354 Or at 620. The
text of ORCP 59 G(2) instructs that a jury’s verdict need
not be unanimous, but may be supported by a vote of three-
fourths of its members. Thus, for a jury of twelve, at least
nine jurors must vote in favor of the jury’s verdict. When a
verdict includes more than one finding, however, ORCP 59
G(2) is less explicit. It could mean that at least nine jurors
must vote in favor of each of the jury’s findings, or it could
mean that the same nine jurors must vote in favor of all or
some subset of those findings. As applied to the facts of this
case, the parties agree that ORCP 59 G(2) requires that at
least nine jurors agree on the answers to each of the ques-
tions posed by the court, including the amounts of economic
and noneconomic damages awarded. The parties disagree,
however, about whether that rule requires that the same
nine jurors agree on the amounts of those two types of dam-
ages. In considering which of those potential meanings the
Council intended, we turn to the rule’s context, including its
enactment history. Vanornum, 354 Or at 620 (so stating).
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:
7
ORCP 59 G(2) has remained unchanged since that time. The Council and
the legislature have amended other sections of ORCP 59, but ORCP 59 G(2) has
not been amended.
8
Article VII (Amended), section 5(7), was added to the constitution by initia-
tive petition in 1910. Or Laws 1911, p 8, § 5. See Ex parte Jack Wessens, 89 Or 587,
589, 175 P 73 (1918) (so stating).
9
ORCP 61 has remained unchanged since the Council promulgated it in
1978.
Cite as 356 Or 518 (2014) 533
“(1)  A general verdict is that by which the jury pro-
nounces generally upon all or any of the issues either in
favor of the plaintiff or defendant.
“(2)  When a general verdict is found in favor of a party
asserting a claim for the recovery of money, the jury shall
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.10
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
that 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.”
11
General Laws of Oregon, Civ Code, ch II, title IV, § 210a, p 191 (Deady
1845-1864).
12
General Laws of Oregon, Civ Code, ch II, title IV, § 211, p 191 (Deady
1845-1864).
534 Kennedy v. Wheeler
(“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 least 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
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 concurrence 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
Cite as 356 Or 518 (2014) 535
are identical, we agree that such analysis is appropriate. See
State v. Shaw, 338 Or 586, 600, 113 P3d 898 (2005) (discuss-
ing prior interpretations of earlier versions of a provision);
Mastriano v. Board of Parole, 342 Or 684, 693, 159 P3d 1151
(2007) (“[W]e generally presume that the legislature enacts
statutes in light of existing judicial decisions that have a
direct bearing on those statutes.”).
We begin with Clark v. Strain, 212 Or 357, 319 P2d
940 (1958). In Clark, the jury rendered a general verdict “in
favor of the plaintiff and against the defendant in the sum of
[$10,000].” Id. at 360. Polling of the jurors revealed that only
eight jurors had agreed both that defendant was liable and
that plaintiff had incurred damages of $10,000. A ninth juror
had agreed that defendant was liable, but had disagreed on
the amount of damages awarded. The trial court announced
that the verdict was 8 to 4 and therefore invalid. The jurors
then corrected the court, explaining that nine jurors had
voted in favor of liability and nine also had voted in favor
of the damages awarded. However, one of the nine who had
voted for the award of damages had voted against liabil-
ity. Despite the fact that that juror’s decision was logically
inconsistent—in that a plaintiff is entitled to damages only
if a defendant is liable—the trial court accepted the verdict.
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-
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 conclusion, 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
536 Kennedy v. Wheeler
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 365.14
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.,
243 Or 419, 414 P2d 328 (1966), the plaintiff had received
a final permanent partial disability award to compensate
him for a 35 percent loss of use of one arm as a result of a
1961 injury. The plaintiff later claimed that he was enti-
tled to an additional award for an aggravation of that injury.
The workers’ compensation board denied the plaintiff’s
claim, and, on the plaintiff’s appeal, the first question to
the jury was whether the plaintiff had suffered an aggra-
vation. Nine jurors answered “yes” to that question. A sub-
sequent question asked the extent of the loss of use that the
plaintiff suffered as a result of the 1961 injury. Nine jurors
answered that the plaintiff had suffered a 70 percent loss
of use. However, two of those nine jurors were among the
jurors who had answered that the plaintiff had suffered no
aggravation at all. The trial court refused to receive the ver-
dict and this court affirmed. This court reasoned that the
decision of the two jurors that the plaintiff had not suffered
an aggravation was inconsistent with their finding that the
plaintiff’s loss of use was greater than the 35 percent estab-
lished in 1961, id. at 422, and that, “[i]f the findings are
inconsistent, a verdict based on them is invalid.” Id. at 426.
The court cited Clark and explained that “[t]he reasons for
requiring a general verdict to be consistent are equally valid
as to special verdicts in which answers to more than one
question are necessary to establish liability.” Id. at 425. The
court concluded that
13
As we will discuss, California’s constitution also permits three-fourths of a
jury to render a verdict. See Cal Const, art I, § 16 (“[I]n a civil cause three-fourths
of the jury may render a verdict.”).
14
This court’s decision in Estate of Michelle Schwarz v. Philip Morris Inc., 348
Or 442, 235 P3d 668 (2010), is consistent with that reasoning. There, the court
distinguished Clark and held that the fact that one jury had decided defendant’s
liability and damages did not preclude retrial of the issue of punitive damages by a
different jury. Id. at 460 n 6. Therefore, the determination of whether to award puni-
tive damages was independent from the determination of liability and damages.
Cite as 356 Or 518 (2014) 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 may not demonstrate a logical inconsistency.16
15
Although defendant agrees with that proposition, she interprets Clark
and Munger more broadly than we do and cites three additional cases for her
argument that Article VII, section 5(7), requires that same nine jurors agree on
“all issues determined by the verdict”: Freeman v. Wentworth & Irwin, 139 Or 1,
15-16, 7 P2d 796 (1932); Schultz v. Monterey, 232 Or 421, 424, 375 P2d 829 (1962);
and Sandford v. Chev. Div. Gen. Motors, 292 Or 590, 613, 642 P2d 624 (1982).
Defendant’s argument is not convincing. In Freeman, only eight jurors voted in
favor of the damages awarded and the court held that nine out of twelve jurors
are required to agree on damages as well as on liability. In Schultz, the court
confronted the same logical inconsistency that was apparent in Clark: at least
one juror who voted against liability also voted in favor of awarding damages. In
Sanford, the court held that the defendant was entitled to have the jurors polled
on their answers to each of the questions they had been asked. The court did not
consider the nature of those questions or whether concurrence on the answers to
those questions would be constitutionally required. Neither those three cases, nor
Clark or Munger, stand for the broader proposition that defendant urges.
16
Plaintiff may disagree with that conclusion. She argues that a party has
a right to have all of the empanelled jurors decide each issue presented and
that Oregon law should not be applied to deprive a party of that right, argu-
ing that a verdict in which nine jurors agreed, for example, on liability and a
different nine jurors agreed on the amount of damages is permissible under
Article VII (Amended), section 5(7). See Fritz v. Wright, 589 Pa 219, 237-39,
907 A2d 1038 (2006) (holding that Pennsylvania Constitution did not require
a “same-juror” rule); Resch v. Volkswagen of America, Inc., 36 Cal 3d 676, 682,
685 P2d 1178 (1984) (“[A] juror who dissented from a special verdict finding
negligence should not be disqualified from fully participating in the jury’s fur-
ther deliberations.”). We need not consider that argument given the result that
we reach in this case.
538 Kennedy v. Wheeler
Before we apply ORCP 59 G(2) to the facts of
this case, however, we must consider whether Article VII
(Amended), section 5(7), imposes additional or more stringent
concurrence requirements than does that rule. Although the
court construed that constitutional provision in Clark and
Munger, it did not fully analyze it under the rubric of Priest
v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992). In Priest, we
explained that in evaluating the meaning of a constitutional
provision, we begin with the “specific wording” of the provi-
sion, then discuss the “case law surrounding it,” and finally
consider the “historical circumstances” of its adoption.
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 1910.17 We
17
See Ark Const, art 2, § 7; Cal Const, art I, § 16; Idaho Const, art I, § 7; Ky
Const, § 248; Minn Const of 1857, art I, § 4 (five-sixths); Miss Const, art 3, § 31;
Cite as 356 Or 518 (2014) 539
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
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 are not present in this
case.” In support of that contention, defendant cites Wheeler
v. Huston, 288 Or 467, 605 P2d 1339 (1980).
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.
540 Kennedy v. Wheeler
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, 193 Or 634, 240 P2d 231 (1952)).
The court noted the difficulty of determining whether a
jury had reached such an improper compromise, but decided
not to abandon the effort. Instead, the court restated and
adhered to the following rule:
“If there is a question whether any general damages
were sustained, 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
18
In Hoskins v. Scott, 52 Or 271, 278, 96 P 1112 (1908), this court defined
“general” and “special” damages:
“Damages are either general or special. 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).
19
See ORS 31.710 (defining economic and noneconomic damages). That stat-
ute was enacted in 1987 and renumbered in 2003. See Or Laws 1987, ch 774, § 6
(enacting statute as former ORS 18.560).
Cite as 356 Or 518 (2014) 541
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, 355 Or at 227 (requiring court to presume that jury
followed trial court’s instructions). Thus, we further pre-
sume that the jurors who disagreed with the noneconomic
damages awarded disagreed only about the particular
amount and not the fact of those damages. The jury verdict
in this case does not demonstrate a compromise verdict in
violation of the rule discussed in Wheeler.
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
542 Kennedy v. Wheeler
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.20
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.
20
Of course, awards of economic and noneconomic damages may be factually
related, in that a greater award of general damages often results in a greater
award of noneconomic damages. However, the legal question is one of logical
inconsistency, and, at least in this case, the specific amounts of economic and
noneconomic damages awarded do not reveal logical inconsistency.