Sodaro v. Boyd ( 2023 )

No. 214 April 26, 2023 511
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Ignatius SODARO,
Plaintiff-Appellant,
v.
Carnetta BOYD,
Defendant-Respondent.
Multnomah County Circuit Court
18CV51752; A174005
Christopher A. Ramras, Judge.
Argued and submitted May 20, 2022.
Kathryn H. Clarke argued the cause and filed the briefs
for appellant.
Andrew D. Glascock argued the cause for respondent.
Also on the brief was Glascock Street Waxler LLP.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
MOONEY, J.
Affirmed.
512 Sodaro v. Boyd
MOONEY, J.
Plaintiff appeals from a judgment entered in his
favor after a jury awarded him money damages for injuries
he sustained in an automobile accident.1 In his sole assign-
ment of error, he asserts that the trial court erred when it
failed to instruct the jury that conduct is a cause of injury
when it is a “substantial factor” in producing it, even though
it is not the only cause. For the reasons explained below,
we conclude that the trial court did not err and, therefore,
affirm.
I. STANDARD OF REVIEW
“We review a trial court’s failure to give a requested
jury instruction for errors of law, and evaluate the evidence
in the light most favorable to the establishment of the facts
necessary to require the instruction.” Ossanna v. Nike, Inc.,
365 Or 196, 199, 445 P3d 281 (2019) (citations omitted).
II. FACTUAL AND PROCEDURAL BACKGOUND
A. The Sudden Stop and The Rear-End Collision
The basic facts about how this motor vehicle acci-
dent occurred are not in dispute. Plaintiff, then 76 years
old, and visiting family in Oregon, was the front seat pas-
senger in an Acura MDX (the SUV) being driven by his
adult son. The collision occurred late one fall evening at the
intersection of the northbound I-5 offramp and Southwest
Wilsonville Road. The SUV had been traveling north on I-5
when it took the exit and then came to a full stop at the red
light at the intersection, waiting to turn left. Defendant was
driving her car, a Ford Focus, and came to a stop behind the
SUV. After the light turned green, the SUV started forward
and then had to stop suddenly for another car that ran the
red light on Wilsonville Road and crossed through the inter-
section. Defendant’s car immediately collided into the rear
of the SUV.2
1
The jury awarded plaintiff total damages in an amount that was less than
two percent of his prayer.
2
We refer to those sequential events as the sudden stop and the rear-end
collision.
Cite as 325 Or App 511 (2023) 513
B. The pleadings
Plaintiff’s amended complaint described the key
events as follows:
“* * * [T]he driver of [plaintiff’s] SUV had to stop for another
car that was crossing within the intersection. While he was
still stopped, [d]efendant collided into the rear of [plain-
tiff’s] Acura MDX. Said collision caused [plaintiff’s] inju-
ries and damages as alleged herein, all of which were rea-
sonably foreseeable.”
Plaintiff alleged that defendant had been negligent in a
number of ways that led to the collision, and he also alleged
that:
“At all times material, [plaintiff] had a bodily condition of
his spine that made him more susceptible to injury than a
person in normal health, and he suffered injury as a result
of that condition.”
Plaintiff sought to hold defendant liable for the damages he
sustained as a result of the injuries caused by defendant’s
alleged negligence. There were no other named defendants.
Defendant filed an answer in which she admitted
that “she was involved in an automobile incident with a
vehicle occupied by the [p]laintiff.” She denied all other alle-
gations and asserted this affirmative defense:
“Some or all of [p]laintiff’s damages were caused by the
negligence of the unidentified driver over which [d]efendant
had no control. Specifically the unidentified driver travel-
ing on Wilsonville Road who ran a red light causing [p]lain-
tiff to make a sudden emergency stop directly in front of
[d]efendant. This sudden emergency stop caused [p]lain-
tiff’s injuries, if any, and caused the collision to occur
between [p]laintiff and [d]efendant.”
C. The trial
The case went to trial three years later. In his
opening remarks to the jury, plaintiff’s counsel described
the force of impact when the Ford Focus collided with the
SUV as more than “an insignificant parking lot type of
impact” and less than “a freeway speed event.” He explained
that even though the impact “wasn’t huge,” plaintiff was
injured. He told the jury that plaintiff had some preexisting
514 Sodaro v. Boyd
medical conditions that left him more susceptible to injury
than a person without those conditions, and that plaintiff
did, in fact, sustain significant injuries in the collision that
required medical treatment.
Plaintiff testified that he heard a pop in his shoul-
der when the SUV came to a quick and sudden stop, but
that he did not recall feeling any pain at that point. He
did, however, experience pain in his neck, middle back,
and shoulder, as well as shortness of breath after the SUV
was struck from behind by defendant’s car. Plaintiff sought
medical treatment at an urgent care clinic the next day. He
received chiropractic treatment while in Oregon and again
upon returning home to Florida. He later sought treatment
from Dr. Smith, a neurosurgeon, and from Dr. Bistline, a
board-certified anesthesia and pain management physician.
Plaintiff testified that he has had neck and back pain con-
tinuously since the day of the collision.
Plaintiff called several witnesses, including Smith,
who offered his professional opinion, based on a reasonable
degree of medical probability, that the rear-end collision
caused injuries to plaintiff’s neck and back that worsened
his underlying conditions, causing plaintiff’s current and
ongoing neck and back pain that, without any additional
treatment, would likely be permanent. Smith testified to
the details of his diagnostic process, which included, among
other things, reviewing a series of pre-accident imaging
studies that showed degenerative changes in plaintiff’s
spine and that led Smith to conclude that, at the time of
the collision, plaintiff was more likely to have developed a
painful condition from being involved in a collision than
someone who did not have similar preexisting conditions.
Smith testified about his treatment recommendations for
plaintiff, which included steroid injections into the facet
joints of the thoracic spine and, eventually, a different
kind of injection for longer-term relief, which helped for a
while. Ultimately, Smith offered plaintiff surgical inter-
vention with an “anterior cervical discectomy and fusion,”
because he did not think that nonsurgical treatment alone
would be enough to relieve plaintiff’s ongoing pain. Plaintiff
declined that surgery for various reasons, including his
advanced age. Smith testified that, in any event, plaintiff
Cite as 325 Or App 511 (2023) 515
would likely require chronic pain management and func-
tional rehabilitation to improve his range of motion and
pain level.
On cross examination, Smith admitted that he did
not know the speed of the vehicles at the moment of impact
and that his chart notes do not reflect that there had been
a hard stop prior to the rear-end collision. He agreed that
the mechanics of a hard stop could cause a neck injury.
When asked if he could “definitively * * * differentiate any
injuries that [plaintiff] sustained in the hard stop versus
the rear-end accident[,]” Smith replied, “No, I don’t think I
can.” On re-direct examination, Smith explained that it was
“probable and most likely” that plaintiff’s injuries stemmed
from the rear-end collision, although it was “a little less
definitive.”
Defendant took the position at trial that the rear-
end collision was caused by the driver who ran the red light,
and not by her. She characterized the collision as a “very
minor rear-end impact” event and she argued that if there
was any injury, it was minor. Any medical expenses beyond
those incurred for limited soft tissue injuries, according
to defendant, were unrelated to the rear-end collision and
were, instead, related to either the sudden stop or plaintiff’s
degenerative neck and back conditions that predated the
event, neither of which were caused by her.
Defendant called Dr. Polin, a neurosurgeon, who
testified that he had examined plaintiff in person, reviewed
pre- and post-collision medical records and imaging stud-
ies, as well as some deposition transcripts. Polin’s opinion
was that plaintiff had suffered sprain and strain injuries,
or soft tissue injuries, to the cervical, thoracic, and lumbar
spine. Polin testified that, absent speculation, he could not
give an opinion about whether the sudden stop, the rear-end
collision, or both had played a role in causing plaintiff’s inju-
ries, although he did testify that plaintiff’s injuries could
have been caused by the sudden stop, the rear-end collision,
or a combination of both. He added that he would defer to
the “biomechanical people” about what the respective forces
of the two events were. Polin testified that the changes
to plaintiff’s facet joints were related to his arthritis and
516 Sodaro v. Boyd
degenerative condition rather than to the collision. It was
Polin’s opinion that the treatment plaintiff had received
through April 4, 2017, which was mostly chiropractic care,
was reasonable and necessary as a result of the events on
the day of the collision.
Defendant also called a biomechanical engineer,
Probst, to testify. Probst conducted a biomechanical evalu-
ation of the rear-end collision, which included consideration
of speed, forces, and movement, and the individual involved.
He testified that there was insufficient force to cause plain-
tiff’s cervical, mid-back, low back, shoulder, disc, or facet
joint injuries. Probst did not evaluate the biomechanics of
the sudden stop, and he did not offer an opinion about the
probability of that stop causing plaintiff’s injuries. However,
when pressed, Probst testified that there would have been
“more motion” with the sudden stop than with the rear-end
collision.
D. The jury instructions – at trial
The parties disagreed on the causation instruction
to be given to the jury. Plaintiff requested that the trial
court give the “substantial factor” instruction, UCJI 23.02:
“Many factors or things may operate either inde-
pendently or together to cause injury. In such a case each
may be a cause of the injury even though the others by
themselves would have been sufficient to cause the same
injury.
“If you find that the defendant’s act or omission was a
substantial factor in causing the injury to the plaintiff, you
may find that the defendant’s conduct caused the injury
even though it was not the only cause. A substantial factor
is an important factor and not one that is insignificant.”
Defendant requested that the trial court provide a “but for”
causation instruction:
“[Defendant’s] conduct is a cause of plaintiff’s injury if
the collision between her car and the * * * SUV would not
have occurred but for that conduct and plaintiff’s injuries
would not have occurred but for that conduct. Conversely,
[defendant’s] conduct is not a cause of plaintiff’s injuries if
those injuries would have occurred without that conduct.”
Cite as 325 Or App 511 (2023) 517
In support of his request for the substantial-factor instruc-
tion, plaintiff argued that although Smith testified that
plaintiff’s injuries were probably caused by the rear-end
collision, Polin testified that plaintiff’s injuries could have
been caused by the sudden stop, the rear-end collision, or a
combination of both.3 Plaintiff also argued that if the jury
found that plaintiff’s injuries were caused by a combina-
tion of the sudden stop and the rear-end collision, and it
only had the but-for instruction on causation, it might try to
apportion the damages between each segment of the event
and award only those apportioned to the rear-end collision,
even though the law would permit them to find that defen-
dant caused all of plaintiff’s damages so long as the rear-
end impact was a substantial factor in causing those inju-
ries. Plaintiff argued that the substantial-factor instruction
would correctly explain that to the jury.
Defendant argued that under Joshi v. Providence
Health System, 342 Or 152, 149 P3d 1164 (2006), use of the
substantial-factor instruction is proper “only in limited sit-
uations involving multiple tortfeasors,” and that the but-for
instruction is the legally correct choice here, because “there
are not multiple alleged tortfeasors involved.” Defendant’s
argument in favor of the but-for instruction and against the
substantial-factor instruction reduced to this: Plaintiff did
not allege that multiple tortfeasors combined to cause his
injuries, and even if he had, defendant would not be liable
for those injuries unless plaintiff proved that his injuries
would not have occurred in the absence of defendant’s negli-
gent conduct.
The trial court, relying primarily on Joshi, noted
that plaintiff had not alleged that two tortfeasors acted in
concert to cause his injuries, and determined that the “but
for” causation instruction was “better suited” for the facts
of this case. Thus, along with other instructions, the court
instructed the jury:
“The Defendant’s conduct is a cause of the Plaintiff’s injury
if the injury would not have occurred but for that conduct.
3
Plaintiff had included both the but-for and substantial-factor instructions
in his proposed jury instructions; however, based on the evidence at trial, plain-
tiff ultimately asked the trial court to instruct the jury with only the substantial-
factor instruction.
518 Sodaro v. Boyd
Conversely, the Defendant’s conduct is not a cause of the
Plaintiff’s injury if that injury would have occurred with-
out that conduct.” 4
Ultimately, plaintiff asked the jury to award dam-
ages for past and future medical expenses in an amount
up to $131,630.57 and noneconomic damages of $250,000.
Defendant suggested to the jury that plaintiff’s damages
would, at most, be for the cost of chiropractic care for a par-
ticular period of time, which cost just under $7,100.00. The
jury found that defendant was negligent, and that her neg-
ligence was “a cause of damages to the plaintiff.” The jury
awarded $4,339.98 for past medical expenses and $2,400.00
for noneconomic damages.
E. The jury instructions – on appeal
On appeal, plaintiff asserts that the trial court
erred by failing to instruct the jury that conduct is a cause
of injury when it is a substantial factor in producing it, even
though it is not the only cause. Plaintiff contends that in a
case such as this one, where the evidence would support a
finding that multiple factors contributed to the injuries for
which plaintiff sought compensation, the proper test for the
causal link between defendant’s negligence and plaintiff’s
injuries is reflected in the substantial-factor instruction.
Plaintiff argues that his requested instruction was a correct
4
The court instructed the jury about plaintiff’s preexisting condition as
follows:
“Damages previous infirm condition. If you find that the Plaintiff has
a bodily condition that predisposed him to be more subject to injury than a
person in normal health, nevertheless, the Defendant would be liable for any
and all injuries and damage that may have been suffered by the Plaintiff as
a result of the negligence of the Defendant. Even though those injuries, due
to the prior condition, have been greater than those that would have been
suffered [by] another person under that same circumstance[ ].
“Damages, aggravation or pre-existing injury or disability. In the present
case, the Plaintiff has alleged that the injury which he sustained as a result
of the negligence of the Defendant, aggravated a pre-existing injury of his.
“In determining the amount of damages, if any, to be awarded [to] the
Plaintiff in this case, you will allow him reasonable compensation for the
consequences of any such aggravation that you find to have taken place as a
result of the Defendant’s negligence. The recovery should not include dam-
ages for the earlier injury, only those that are due to its enhancement or
aggravation.”
Plaintiff did not assign error to the giving of those instructions.
Cite as 325 Or App 511 (2023) 519
statement of the law and that, given how the case was pre-
sented and how defendant argued her defense, the but-for
instruction was legally insufficient. He argues further that
the but-for instruction improperly instructs the jury that
conduct causes injury only if the injury could not otherwise
have occurred, suggesting that defendant’s conduct must
have been the major—or predominant—causative factor.
In response, defendant contends that the court
properly instructed the jury on causation. She asserts that,
based on plaintiff’s theory of causation and the evidence he
presented in support of that theory, neither the sudden stop
nor the pre-existing condition would have caused plaintiff’s
injuries absent defendant’s negligent conduct. Therefore,
according to defendant, the trial court correctly determined
that plaintiff was required to prove that but for the rear-end
collision, he would not have been injured.
III. ANALYSIS
“[J]ury instructions matter.” Ossanna, 365 Or at
221. They matter because they tell the jury “what laws [to
apply] in the case.” Id.Jury instructions must be understandable. The par-
ties are entitled to jury instructions that are “plain, clear,
[and] simple.” Williams et al. v. Portland Gen. Elec., 195 Or
597, 610, 247 P2d 494 (1952). “Where the law is complex, it is
even more important to instruct in clear and simple terms.”
Holbrook v. Amsberry, 289 Or App 226, 248, 410 P3d 289
(2017). Given that each juror brings their own unique set of
life experiences to court, the need for clarity in each partic-
ular case cannot be overstated. For a jury to effectively use
the court’s instructions on the law, its members must be able
to understand those instructions so that they can then cor-
rectly and meaningfully apply the law to the evidence and
reach a legally valid verdict.
Jury instructions must be connected to the case
theories and evidence.
“[A] party is entitled to a jury instruction on its theory of
the case if the requested instruction correctly states the
law, is based on the operative pleadings, and is supported
by the evidence. A trial court, however, is not required to
520 Sodaro v. Boyd
give a requested instruction if another instruction ade-
quately addresses the issue.”
Ossanna, 365 Or at 212-13 (internal quotation marks and
citations omitted).
A. Causation as an Element of a Claim for Negligence in the
Post-Haas Era
We begin with the Supreme Court’s recent decision
in Haas v. Estate of Mark Steven Carter, 370 Or 742, 525
P3d 451 (2023), which issued after the parties briefed and
argued this appeal.5 Although distinguishable on some of
the underlying facts, Haas concerns the same jury instruc-
tions that are at issue here and is controlling authority as
we review those instructions in the context of this case. Our
analysis necessarily applies the law that is now in effect
because “[t]he ‘benchmark’ for error is the law existing as
of the time the appeal is decided.” State v. Jury, 185 Or App
132, 137, 57 P3d 970 (2002), rev den, 335 Or 504 (2003).
Causation “is a purely factual matter” that is dis-
tinct from proximate cause and legal cause, both of which
have been abolished in Oregon. Haas, 370 Or at 748 (quoting
Lasley v. Combined Transport, Inc., 351 Or 1, 6-7, 261 P3d
1215 (2011)). “Causation in fact is established when someone
examining the event without regard to legal consequences
would conclude that the allegedly faulty conduct or condition
in fact played a role in its occurrence.” Id. (internal brackets
and quotation marks omitted). In the court’s discussion of
causation, it expressly agreed that:
“[F]actual causation ‘is not a quest for a sole cause. Probably
it cannot be said of any event that it has a single causal
antecedent; usually there are many.’ ”
Id. at 748 (quoting Fowler V. Harper, Fleming James, Jr., &
Oscar S. Gray, 4 Harper, James and Gray on Torts § 20.2,
100 (3d ed 2007) (emphasis in original)). The question, then,
of whether a defendant’s specific act or failure to act was a
5
In Haas, the plaintiffs’ stopped car was hit by a car driven by the defen-
dant; the plaintiffs brought a negligence action. The plaintiffs had preexisting
conditions, and therefore, according to the plaintiffs, the jury was confronted
with multiple possible causes of the plaintiffs’ neck and back problems—the pre-
existing conditions and the auto collision. 370 Or at 744-46.
Cite as 325 Or App 511 (2023) 521
cause-in-fact of a plaintiff’s harm requires an answer to this
question: would the harm have occurred but for the defen-
dant’s conduct? Id. at 749. Stated another way—would the
harm have occurred in the absence of the defendant’s con-
duct? If the answer to the question—stated either way—is
no, then the defendant’s negligent conduct is a cause of the
injuries. Stated yet another way, if the plaintiff’s injuries
would have occurred in the absence of the defendant’s con-
duct, then the defendant’s conduct was not a cause of those
injuries in the context of a negligence claim.
The fact that more than one event, act, or circum-
stance might play a role in bringing about the injuries is
simply part of the landscape that the jury is tasked with
considering as it evaluates whether, in fact, the defendant
was a cause of the injuries. It is helpful to remember that
cause-in-fact is not the same thing as liability; rather, it is
one element of a negligence claim that, if proven, could lead
to liability. Id. at 749 n 5.
The Supreme Court concluded that the but-for
test for causation applies in most negligence cases, and
that the but-for jury instruction is likewise the appropri-
ate instruction to be given in most cases. Id. at 755, 757-58.
The substantial-factor test, on the other hand, “was devel-
oped primarily for * * * the situation in which the concurrent
conduct of two or more causes combine to create an injury,
and either one of those causes, operating alone, would have
been sufficient to produce the same result.” Id. at 750 (citing
Keeton, Prosser and Keeton on The Law of Torts § 41, 268
(5th ed 1984); Harper, 4 Harper, James and Gray on Torts
§ 20.2, 100-01 (3d ed 2007)). The court explained that the
but-for test does not reduce causation to a single cause:
“[T]here may be many causes of a plaintiff’s harm and
* * * when multiple tortfeasors contribute to that harm, all
may be held liable for it: When an injury would not have
occurred without the combined negligence of many, the
negligence of each is a but-for cause of the resulting injury.”
Id. at 753.
The plaintiffs in Haas, like the plaintiff here, argued
broadly “that a substantial factor instruction is required in
all multiple causation negligence cases and that a but-for
522 Sodaro v. Boyd
instruction does not suffice.” Id. at 757. They also argued,
as does plaintiff here, “that a but-for instruction necessarily
indicates that a defendant cannot be held liable unless the
defendant’s conduct was the sole or predominate cause of the
plaintiffs’ injuries.” Id. The court, in Haas, rejected those
broad assertions, stating that
“[m]ost negligence cases include evidence of multiple causal
factors, and in most cases, a but-for instruction correctly
describes the necessary cause-in-fact relationship. A but-
for instruction does not fail in every multiple causation
case, nor does it implicitly tell a jury that it must find that
the defendant’s conduct was the sole or predominate cause
of the alleged harm.”
Id. at 757-58.
In concluding that the trial court did not err in
declining to give the substantial-factor instruction in Haas,
the Supreme Court found it “significant that plaintiffs [did]
not contend that this [was] one of the exceptional instances
in which the but-for instruction fails[.]” Id. at 758. The plain-
tiffs had not argued that the circumstances in that case
were in any way exceptional or that the facts of that case
were such that the but-for instruction would not correctly
describe the required causal relationship between the defen-
dant’s conduct and the plaintiffs’ injuries. They instead
argued that causation is a “particularly difficult concept”
in cases where there are preexisting medical conditions. Id.
The court acknowledged that a defendant may point their
finger at other parties or causes—the so-called empty chair
defense—in an effort to escape liability but concluded that
“such an argument does not render a but-for instruction
erroneous.” Id. at 759. The court held that a substantial-
factor instruction is not required in all multiple causation
negligence cases and that, under the circumstances of
Haas, it was not error to decline to give that instruction.
Id. at 762-63.
B. Parties are entitled to instructions that properly address
their theory of the case as well as that put forward by
their adversary.
We reject the contention that plaintiff was restricted
to a jury instruction on causation only if it was supported by
Cite as 325 Or App 511 (2023) 523
his complaint or the evidence that he produced during the
trial. As the Supreme Court explained:
“[W]e do not agree that a party is entitled to an instruction
only if that party adduces evidence or makes an argument
material to the requested instruction. A party may be enti-
tled to an instruction that addresses an opposing party’s
evidence or argument.”
Id. at 759 n 13. Although plaintiff named only one defen-
dant here, his pleadings describe the rear-end collision,
the sudden stop, and his preexisting medical conditions.
Plaintiff’s counsel described both segments of the accident
as well as the preexisting conditions in his opening state-
ment and closing argument. Defendant raised an affirma-
tive defense in which she alleged that the sudden stop—not
the rear-end collision—was the cause of plaintiff’s injuries,
and she argued that his preexisting injuries accounted for
much of his pain and related medical care. The sudden stop,
the rear-end collision, and the preexisting injuries were
the subject of much testimony and debate throughout the
trial. Plaintiff was entitled to request jury instructions that
addressed both his theory of the case as well as that put
forward by defendant.
C. The but-for instruction on causation is proper in most
multiple-cause negligence cases.
To the extent that plaintiff argues that all multiple-
cause negligence cases merit giving the substantial-factor
instruction, Haas has squarely rejected that argument and
we, in turn, must do the same. Id. at 758. Such a broad rule
would also be inconsistent with Joshi, where the court stated
that the but-for and substantial-factor standards “produce
the same result in most cases.” 342 Or at 162. But the court
did, in Joshi, describe certain situations in which the but-for
test would fail, requiring that the substantial factor instruc-
tion be given: (1) “where ‘two causes concur to bring about an
event, and either one of them, operating alone, would have
been sufficient to cause the identical result’ ”; (2) “ ‘where a
similar, but not identical result would have followed with-
out the defendant’s act’ ”; and (3) “ ‘where one defendant has
made a clearly proved but quite insignificant contribution to
the result.’ ” Id. at 161 (quoting Prosser and Keeton on The
524 Sodaro v. Boyd
Law of Torts § 41 at 267-68). See also Haas, 370 Or at 750-52
(explaining that while Joshi is distinguishable from Haas
because Joshi was a wrongful death case about the suffi-
ciency of the evidence on causation, it relied on the same
treatise provisions from Prosser and Keeton and agreed that
the substantial-factor standard had not been replaced by
the but-for standard, but rather, those standards apply to
different types of negligence cases).
D. Plaintiff has not argued that exceptional circumstances
warranted the use of the substantial-factor instruction.
Plaintiff did not, and does not, argue that this case
fits into any of the three scenarios, described in Joshi, that
would render the but-for instruction an inadequate or unclear
statement of the law on causation. Plaintiff did argue that
there was a risk that the but-for instruction would confuse
the jury on how to evaluate defendant’s conduct on the ques-
tion of causation. Plaintiff focused on the evidence, which
included, among other things, the testimony of three expert
witnesses, and argued that a jury could conclude that multi-
ple factors or events concurred or combined to cause his inju-
ries. In response, defendant argued that this was the type of
negligence case where the but-for instruction would provide a
clear statement about causation.6 We agree with defendant.
E. It was not error to not give the substantial-factor
instruction.
The remaining arguments made by plaintiff on
appeal do not persuade us that the trial court erred by not
giving the substantial-factor instruction.
6
We note that defense counsel also made this argument:
“So giving [the substantial-factor] instruction, Your Honor, invites the risk
that the jury will render a verdict against my client even if it finds that the
phantom driver’s conduct alone would have been sufficient to cause the harm,
which does not satisfy Plaintiff’s burden.”
But that argument describes one of the Joshi scenarios where the but-for test
would fail, making the substantial-factor instruction a more appropriate choice.
While that would have been an argument more aligned with plaintiff’s posi-
tion, it is clear that plaintiff did not make that argument. Nor did he argue that
this case fits within any of the Joshi scenarios that would support use of the
substantial-factor instruction. And although there are times when inartful argu-
ments are given context and clarity by the arguments they draw in opposition,
that is not the case here.
Cite as 325 Or App 511 (2023) 525
The jury deliberated and returned a verdict on
which it answered the specific question, “Was the defen-
dant’s negligence a cause of damages to the plaintiff?” with
a yes. We reject plaintiff’s contention that because the jury
was instructed only on but-for causation, it would not have
understood that defendant’s conduct would be a cause of
plaintiff’s injuries if the collision had been a substantial
factor, although not necessarily the only factor, in causing
those injuries. Plainly put, the jury found that defendant’s
conduct caused plaintiff’s injuries.
We also reject plaintiff’s argument that because the
jury concluded that the injuries would not have occurred
in the absence of the rear-end collision, it would somehow
conclude that it was to affirmatively apportion damages
between defendant and any other causes, including the
sudden stop. The record does not contain evidence that the
sudden stop was, more probably than not, a cause of plain-
tiff’s injuries. Certainly, no expert offered that opinion to
a reasonable degree of probability. The jury was properly
instructed by the trial court not to decide the case on “guess-
work, conjecture, or speculation.” They were also instructed
on damages, and plaintiff has not, and does not, challenge
those instructions in any way. Given that we presume
juries will follow the court’s instructions, State v. Shinnick,
288 Or App 847, 848-49, 407 P3d 877 (2017), rev den, 362
Or 794 (2018), and given the evidentiary record viewed
in light of Haas, it is difficult to see how the trial court
would have been required to give the substantial-factor
instruction.
Finally, we are not persuaded that the amount of
the jury’s damage award alone reflects that it misunder-
stood the instruction on causation. The jury found that
defendant caused plaintiff’s injuries. Given that it found the
necessary causal link, the more likely explanation for the
low monetary award is that the jury found that the injuries
were not as significant as claimed. Jurors were given a num-
ber of tools to evaluate witness testimony through instruc-
tions that both parties agreed to that might reasonably have
led to the final award. We cannot say, on this record, that
the amount of the award was driven by, or connected to, a
526 Sodaro v. Boyd
misunderstanding of the causation instruction. The trial
court did not err.
Affirmed.