FILED: June 23, 2010

IN THE COURT OF APPEALS OF THE STATE OF OREGON

CLARENCE D. LASLEY,
as personal representative for the
Estate of Mark Alan Lasley,

Plaintiff-Respondent
Cross-Appellant,

v.

COMBINED TRANSPORT, INC.,

Defendant-Appellant
Cross-Respondent,

and

JUDY MARIE CLEMMER,

Defendant-Respondent
Cross-Respondent.

Multnomah County Circuit Court
060808260
A137222

John A. Wittmayer, Judge.

On plaintiff-respondent/cross-appellant's petition for reconsideration filed April 20, 2010.  Opinion filed March 03, 2010.  234 Or App 11, 227 P3d 1200.

Stephen C. Hendricks and Hendricks Law Firm, P.C., for petition.

Before Sercombe, Presiding Judge, and Brewer, Chief Judge, and Armstrong, Judge.

BREWER, C. J.

Reconsideration allowed; former opinion clarified and adhered to as clarified.

BREWER, C. J.

Plaintiff petitions for reconsideration of our opinion in Lasley v. Combined Transport, Inc., 234 Or App 11, 227 P3d 1200 (2010).  We allow the petition for reconsideration, clarify our decision, and adhere to it as clarified. 

Decedent, plaintiff's son, died in a car accident.  Plaintiff then brought negligence claims against two defendants--Combined Transport, a trucking company that spilled a large load of glass onto the roadway causing a four-mile traffic jam, and Clemmer, whose vehicle struck decedent's vehicle as it approached the back of the traffic jam.  Clemmer was intoxicated at the time of the accident; however, that evidence was excluded as irrelevant at trial.  Id. at 14-15.

We held that the evidence of Clemmer's intoxication was relevant for two reasons:  (1) the determination of whether Combined Transport's conduct was a cause-in-fact of decedent's injury and death, and (2) for the apportionment of fault between the two defendants.  Id. at 19-20.  In his petition for reconsideration, plaintiff argues that our holding erroneously conflated the standard for apportionment of fault with that for cause-in-fact.  We allow reconsideration in order to clarify that the evidence of Clemmer's intoxication was relevant to each determination for a separate reason.(1)

The following paragraph from the court's opinion may be the source of plaintiff's confusion:

"Although Clemmer admitted that she was negligent, the jury was required to consider evidence of the circumstances relating to the accident to determine whether Combined Transport's negligence was a substantial factor in causing decedent's death and, if so, to apportion fault between defendants.  Clemmer's intoxication was relevant to those determinations.  See Lyons v. Walsh & Sons Trucking Co., Ltd., 183 Or App 76, 84, 51 P3d 625 (2002), aff'd, 337 Or 319, 96 P3d 1215 (2004) (holding that '[w]hether any particular cause, or any individual actor's conduct, is sufficiently "substantial" to warrant the imposition of liability depends, properly, on a consideration of the whole').  Accordingly, the trial court erred in excluding evidence of Clemmer's intoxication."

Lasley, 234 Or App at 20-21.  We allow reconsideration to clarify the bases for the two conclusions in the foregoing passage.

First, the evidence of intoxication is relevant to the jury's "substantial factor" analysis because it is relevant to the cause of the accident.  There is an adequate factual nexus between the testimony concerning the quality of Clemmer's driving and her consumption of alcohol to allow the jury to make the determination that the alcohol affected her ability to control her vehicle and keep a proper lookout.  That, in turn, could affect the jury's determination of what caused the accident.  Ostrander v. Alliance Corp., 181 Or App 283, 291, 45 P3d 1031, rev den, 335 Or 104 (2002).  Accordingly, Clemmer's intoxication is relevant to the cause-in-fact determination regarding the conduct of Combined Transport, because the jury must consider the "totality of potentially causative circumstances" in making that determination.  Lyons, 183 Or App at 84.

On the other hand, the evidence of intoxication is relevant to the apportionment of fault, because it shows blameworthiness.  The considerations announced in Sandford v. Chev. Div. Gen. Motors, 292 Or 590, 608, 642 P2d 624 (1982), which are quoted in our original opinion, Lasley, 234 Or App at 21-22, regarding the relevance of Clemmer's previous driving history for the purpose of apportionment of fault, were also pertinent to the relevance of Clemmer's intoxication for the same purpose.  The evidence of Clemmer's intoxication shows the degree of Clemmer's departure from the standard of care of a reasonable person, and, accordingly, is a proper consideration for the jury in apportioning fault.

Reconsideration allowed; former opinion clarified and adhered to as clarified.


1. We reject plaintiff's other argument without discussion. 

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