Purdy v. Deere & Company

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In this product liability action, plaintiff appealed a judgment for defendants after a jury trial. The Court of Appeals affirmed without considering the merits of nine of plaintiff's ten assignments of instructional and evidentiary error. Plaintiff contended on appeal that, in so holding, the Court of Appeals misconstrued the standard for reversal in ORS 19.415(2) as it applied to claims of instructional and evidentiary error like those that the court declined to consider. Upon review, the Supreme Court found that the appellate court erred in its reasoning for not considering all of plaintiff's arguments. Accordingly, the Court reversed and remanded this case to the Court of Appeals to address plaintiff's assignments of error.

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Filed: April 17, 2014 IN THE SUPREME COURT OF THE STATE OF OREGON DWIGHT G. PURDY, Conservator for Isabelle Eve Norton, a Minor, Petitioner on Review, v. DEERE AND COMPANY, a foreign corporation; and RAMSEY-WAITE CO., a corporation, Respondents on Review. (CC 160800466; CA A144265; SC S060993) En Banc On review from the Court of Appeals.* Argued and submitted September 20, 2013. Kathryn H. Clarke, Portland, argued the cause and filed the briefs for petitioner on review. With her on the briefs were Don Corson and Travis Eiva. Michael T. Garone, Schwabe, Williamson & Wyatt, PC, Portland, argued the cause and filed the brief for respondents on review. Meagan A. Flynn, Preston, Burnell & Flynn, Portland, and James S. Coon, Swanson, Thomas, Coon & Newton, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association. BREWER, J. The decision of the Court of Appeals is reversed and the case is remanded to that court for further proceedings. Balmer, C.J., concurred and filed and opinion. *Appeal from Lane County Circuit Court, Karsten H. Rasmussen, Judge. 252 Or App 635, 287 P3d 1281 (2012). 1 BREWER, J. 2 In this product liability action, plaintiff appealed a judgment for defendants 3 following a jury trial. The Court of Appeals affirmed without considering the merits of 4 nine of plaintiff's ten assignments of instructional and evidentiary error. Purdy v. Deere 5 and Company, 252 Or App 635, 287 P3d 1281 (2012). The Court of Appeals explained 6 that consideration of those assignments of error would be futile because, even if it 7 determined that the trial court had erred in one or more of the ways that plaintiff asserted, 8 the court could not reverse the trial court's judgment because of the prohibition in ORS 9 19.415(2) that "[n]o judgment shall be reversed or modified except for error substantially 10 affecting the rights of a party." Id. at 639-44. Plaintiff contends that, in so holding, the 11 Court of Appeals misconstrued the standard for reversal in ORS 19.415(2) as it applies to 12 claims of instructional and evidentiary error like those that the court declined to consider. 13 For the reasons that follow, we reverse and remand to the Court of Appeals to address 14 plaintiff's assignments of error. 15 16 THE FACTUAL BACKGROUND This action arose out of an accident involving a young child, Isabelle 17 Norton, who was seriously injured when her father, Kirk Norton, accidentally backed his 18 riding lawnmower into her. The lawnmower, which had been manufactured by defendant 19 Deere and Company, had been designed so that the cutting blades shut off automatically 20 when the lawnmower was driven in reverse. However, by design, the driver could 21 override that safety feature by pressing a button located on the lawnmower's dashboard. 22 Norton had engaged that override feature when, unbeknownst to him, Isabelle had 1 1 approached the mower from behind. As a consequence, the cutting blades were operating 2 when Norton backed the lawnmower into his daughter. 3 Plaintiff, Isabelle's conservator, brought this action on the child's behalf 4 against Deere, along with the business that sold the lawnmower to Norton, defendant 5 Ramsey-Waite Company. The complaint -- which included claims for strict liability and 6 negligence -- alleged that the mower was defective and unreasonably dangerous or had 7 been negligently designed or marketed, in three respects: (1) it provided a mechanism for 8 overriding the automatic shutoff feature, thus allowing the cutting blades to operate when 9 the lawnmower was being driven in reverse; (2) the button for overriding the automatic 10 shutoff feature had been placed on the mower's dashboard, allowing the driver to mow in 11 reverse without turning around to ascertain whether the path is clear; and (3) it included 12 no warnings or instructions that addressed the safe and proper operation of the 13 lawnmower in reverse. 14 In their pleadings and at trial, defendants defended on the theory that the 15 mower was not dangerously defective and that defendants had not been negligent in any 16 of the ways that plaintiff had alleged, and that Isabelle's injuries had been caused by her 17 father's failure to (1) use the lawnmower in the intended manner and as instructed, (2) 18 keep a proper lookout, and (3) ensure that his daughter was properly supervised. 19 Defendants also asserted at trial that any defect or negligence in providing an override 20 feature did not cause Isabelle's injuries because, even if Norton had not used that feature, 21 the blades still would have been rotating at a high rate of speed when the mower and the 22 child came into contact. 2 1 2 At the close of trial, the court submitted a verdict form to the jury that asked the following three questions: 3 4 5 6 "1. Was Defendant Deere & Company's lawn mower/tractor defective and unreasonably dangerous in one or more of the ways alleged by Plaintiff and, if so, was that a cause of injury or damage to Isabelle Norton? 7 8 9 "2. Was Defendant Deere & Company negligent in one or more of the ways alleged by Plaintiff, and, if so, was that a cause of injury or damage to Isabelle Norton? 10 11 12 "3. Was Defendant Ramsey-Waite negligent in one or more of the ways alleged by Plaintiff, and, if so, was that a cause of injury or damage to Isabelle Norton?" 13 The jury answered "No" to each of the three questions, and the trial court entered 14 judgment for defendants. 15 Plaintiff appealed, raising 10 assignments of error. Four of the assignments 16 of error asserted that the trial court had erred by excluding testimony from several 17 witnesses about instances in which other children had been injured by Deere riding 18 mowers being driven in reverse. Plaintiff asserted that the testimony of those witnesses 19 was relevant either to show that Deere had notice of the defect that plaintiff had alleged 20 or to show that the mower was defective and dangerous. A fifth assignment of error 21 challenged the trial court's refusal to admit evidence that Deere marketed small toy riding 22 lawnmowers. In plaintiff's view, that evidence was relevant to show that Deere had 23 advertised its riding lawnmowers as being safe around children, and had affected 24 consumer expectations accordingly. Four more assignments of error challenged jury 25 instructions concerning what constitutes a product defect; those instructions either were 3 1 given to the jury over plaintiff's objection or were requested by plaintiff but rejected by 2 the trial court. A tenth and final assignment of error concerned the trial court's ruling that 3 one of defendants' witnesses -- a retired Deere engineer -- was qualified to testify as an 4 expert about how long the mower blades would have continued to rotate by sheer 5 momentum, and how far the mower would have travelled in reverse, if the automatic 6 shutoff feature had not been overridden. That testimony was proffered to show that the 7 alleged defect in the mower's design was not the cause of Isabelle's injuries because, even 8 if the automatic shut off feature had not been overridden, the mower's blades still would 9 have been rotating at a high rate of speed when they came into contact with the child. 10 Confronted with those assignments of error, the Court of Appeals 11 concluded that the last one was the only assignment of error that pertained to the element 12 of causation, as opposed to defendants' culpability. Purdy, 252 Or App at 648. The 13 Court of Appeals considered and rejected that assignment of error on its merits. Id. at 14 645-48. The court declined to consider plaintiff's remaining assignments of error. The 15 court explained that each question in the verdict form included both the issue of 16 culpability -- either the existence of a defective and unreasonably dangerous product (in 17 the strict liability claims) or a breach of the applicable standard of care (in the negligence 18 claims) -- and the issue of causation. Id. at 642-44. The court reasoned that it therefore 19 could not tell from the verdict form whether the jury had answered "no" to each question 20 because it found that plaintiff had failed to prove that the mower was dangerously 21 defective or that the relevant defendant was negligent, or because it found that plaintiff 22 had failed to prove that the relevant defendant's conduct had caused Isabelle's injuries. 4 1 Id. at 644-45. Because it could not tell whether the asserted errors had affected the jury's 2 verdict, the Court of Appeals concluded that it was required to affirm. Id. at 648. 3 In so concluding, the Court of Appeals relied on Lyons v. Walsh & Sons 4 Trucking Co., Ltd, 337 Or 319, 96 P3d 1215 (2004), where this court had undertaken to 5 apply the standard for reversal in ORS 19.415(2). Expanding on this court's construction 6 and application of that standard in an earlier case, Shoup v. Wal-Mart Stores, Inc., 335 Or 7 164, 61 P3d 928 (2003), this court in Lyons reiterated that a party seeking reversal of a 8 judgment bears the burden of showing from the trial court record that the asserted error 9 substantially affected his or her rights. Lyons, 337 Or at 326. The court further held that, 10 where a compound question on a verdict form asks whether a defendant's conduct failed 11 to meet the relevant standard of care and, if so, whether that failure was the cause of the 12 plaintiff's damages, a single answer of "no" does not reveal whether the jury's answer 13 means no failure to meet the standard of care, or failure to meet the standard of care, but 14 no causation. Id. at 325. In such a situation, the court concluded, if the assignment of 15 error challenges the jury's determination that there was no failure to meet the standard of 16 care, the plaintiff cannot prevail because, even if the assignment is well taken, it is 17 irrelevant (and the error, therefore, harmless) if that failure did not cause injury. Id. at 18 325-26. Likewise, if the assignment of error challenges causation, that argument may be 19 well taken, but it is irrelevant (and the error, therefore, harmless) if there was no failure in 20 the first place. Id. 21 22 The Court of Appeals concluded that Lyons controls the present case because here, as in Lyons, the jury answered "no" to questions that combined two 5 1 different elements -- culpability and causation -- of plaintiff's claims. That is, the format 2 of the verdict form made it impossible to discern -- insofar as the jury's resolution of 3 those two elements was concerned -- the rationale for the jury's verdict. Purdy, 252 Or 4 App at 639-45. Having rejected the single assignment of error that, in its view, related 5 only to the element of causation, the Court of Appeals concluded that considering the 6 remaining assignments of error would be futile, because plaintiff could not eliminate the 7 possibility that the jury had based its answers solely on a finding that plaintiff had failed 8 to establish causation. Id. at 645-48. Accordingly, the Court of Appeals affirmed the 9 judgment in defendants' favor. 10 THE PARTIES' DISPUTE 11 Plaintiff principally argues that the Court of Appeals' overall approach to 12 the reversible error analysis was flawed.1 Plaintiff asserts that, in a long line of cases, 13 this court has concluded that instructional and evidentiary errors, like the ones asserted 14 here, "substantially affect[ed] the rights of a party," ORS 19.415(2), and therefore were 15 grounds for reversal. Plaintiff acknowledges that a different conclusion, focusing on the 16 format and content of the verdict form, "may be inevitable" when multiple specifications 1 Plaintiff's petition for review presented two questions; the second question challenged the Court of Appeals' resolution of the single assignment of error that it had addressed on the merits -- plaintiff's assertion that defendant's expert was not qualified to testify about his reconstruction of the accident. This court declined to review the Court of Appeals' decision on that issue; it limited review to the question of whether, to establish reversible error, an appellant must demonstrate that an asserted instructional or evidentiary error was necessarily implicated in the jury's verdict. 6 1 of liability -- only one of which is shown to be invalid -- are combined into a single 2 question in the verdict form. Plaintiff argues, however, that the statute does not require 3 an appellant to have requested a special verdict form to establish that an instructional or 4 evidentiary error substantially affected the rights of the appellant. Plaintiff contends that, 5 to the extent that this court's decision in Lyons can be understood to hold otherwise, it 6 should be disavowed. According to plaintiff, the reasoning in Lyons is inconsistent with 7 this court's controlling precedent, and it was effectively rejected by this court in Wallach 8 v. Allstate Ins. Co., 344 Or 314, 180 P3d 19 (2008). In short, plaintiff argues that -- 9 contrary to the Court of Appeals' understanding -- whether the asserted instructional and 10 evidentiary errors constitute grounds for reversal is not controlled by Lyons. 11 Defendants have a different understanding of Lyons and its relevance here. 12 According to defendants, the decision in Lyons represented a straightforward application 13 of a broad principle announced in Shoup -- a party claiming trial court error has an 14 affirmative burden under ORS 19.415(2) to show from the trial court record that "the jury 15 made an adverse finding regarding the issue to which [the appellant's] claims of error are 16 directed." Defendants argue that, in Lyons, and earlier in Jensen v. Medley, 336 Or 222, 17 82 P3d 149 (2003), this court indicated that the construct that this court applied in Shoup 18 governs all categories of trial court error, including instructional and evidentiary error. 19 Defendants also observe that -- irrespective of reservations that this court expressed in 20 Wallach about the holding in Lyons -- this court expressly declined to reconsider or 21 overrule Lyons, leaving intact Lyons' specific holding in the context of compound verdict 22 forms. Defendants assert, in short, that Lyons is good law and that its reasoning 7 1 precludes reversal here, because it is impossible to tell whether the jury found against 2 plaintiff on the issues to which his assignments of error are directed. 3 The parties thus disagree not only about the import and precedential effect 4 of Lyons, but also about the import and effect of other decisions purporting to apply the 5 standard for reversal set out in ORS 19.415(2) to claims of instructional or evidentiary 6 error. To assist the reader in understanding our analysis of Lyons and other pertinent 7 decisions, we provide the following background. 8 9 THE LEGAL BACKGROUND The standard for reversal of a trial court judgment expressed in ORS 10 19.415(2) has been part of Oregon's statutory law since territorial days. See Wallach, 344 11 Or at 326 n 12 (discussing earlier versions of ORS 19.415(2)). Over the years, this court 12 has described and applied that standard in a variety of ways, depending on the particular 13 kind of error that was asserted. Before Lyons was decided, this court had taken a 14 generally consistent approach to instructional error. Such error was deemed to be 15 reversible if the instruction directs the jury to apply the wrong rule, and the instructions, 16 considered as a whole and in light of the evidence and the parties' theories of the case, 17 permitted the jury to reach an incorrect result. Wallach¸ 344 Or at 322 (discussing earlier 18 decisions holding that instructions permitting jury to reach legally incorrect result 19 substantially affected a party's rights); Hernandez v. Barbo, 327 Or 99, 107-08, 957 P2d 20 147 (1998) (giving erroneous instruction substantially affected appellant's rights because 21 it probably created erroneous impression of the law that permitted the jury to reach an 22 incorrect result); Waterway Terminals v. P.S. Lord, 256 Or 361, 370, 474 P2d 309 (1970) 8 1 2 (same). To determine whether evidentiary error is a ground for reversal, this court 3 generally has looked to two related standards. The first is the standard in ORS 19.415(2); 4 the second standard is that "[e]rror may not be predicated upon a ruling which admits or 5 excludes evidence unless a substantial right of the party is affected." OEC 103(1); see 6 Jett v. Ford Motor Co., 335 Or 493, 497, 72 P3d 71 (2003) (so holding). In making those 7 determinations, this court ordinarily has held that an error in admitting or excluding 8 evidence does not require reversal if there is little likelihood that the error affected the 9 verdict. See, e.g., State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003) (applying that 10 11 construct for reversal in criminal case). In Shoup, this court faced a novel issue that implicated ORS 19.415(2). In 12 that case, an elderly woman who was shopping in a store was knocked to the floor when a 13 store employee bumped into her. The woman sued the store, alleging three separate 14 specifications of negligence. The defendant moved to strike one of the specifications of 15 negligence from the jury's consideration, but the motion was denied. At the end of trial, 16 the jury returned a general verdict for the plaintiff. The defendant appealed, assigning 17 error to the trial court's refusal to withdraw the challenged specification of negligence 18 from the jury's consideration. Shoup, 335 Or at 166-67. The Court of Appeals agreed 19 with the defendant that the challenged specification should not have been submitted to 20 the jury, but it noted that the jury had returned a general verdict that might have been 21 based on one or the other of the remaining specifications of negligence, neither of which 22 had been challenged. Id. at 167. 9 1 The Court of Appeals concluded that it was required to reverse under ORS 2 19.415(2), based on the so-called "we can't tell" rule that this court had announced in 3 Whinston v. Kaiser Foundation Hospital, 309 Or 350, 788 P2d 428 (1990). In Whinston, 4 the court had held, in an appeal involving a trial court's ruling on a motion for judgment 5 notwithstanding the verdict (JNOV) that, "[i]f the court cannot determine whether the 6 verdict was based on a [specification] supported by the evidence or on one unsupported 7 by the evidence, the result is a new trial." Whinston, 309 Or at 359. 8 For the purpose of determining whether the error at issue in Shoup required 9 reversal, Whinston was not directly on point, because that case had not involved any 10 explicit consideration of the standard set out in ORS 19.415(2). Still, it had obvious 11 implications for that standard, at least in cases involving a specific pattern of 12 circumstances -- that is, where multiple specifications of negligence, one of which is 13 invalid, are submitted to the jury in a single, general verdict question. To state the 14 obvious: In such circumstances, a reviewing court cannot tell whether the error in 15 submitting the invalid specification affected the verdict, because the jury might have 16 based its verdict on one of the valid specifications. The Court of Appeals understandably 17 applied that rule in Shoup to hold that, because it could not tell whether the jury had 18 based its verdict on one or more of the valid specifications of negligence, or on the single 19 invalid specification, it must remand for a new trial. 20 On review in Shoup, this court stated that, when it adopted the "we can't 10 1 tell" rule in Whinston, it had failed to consider whether that rule was compatible with the 2 statutory standard for reversal set out in ORS 19.415(2).2 Shoup, 335 Or at 170. With 3 that question squarely before it, the court began its analysis by rejecting the defendant's 4 defense of the rule -- that, in any case posing a "we can't tell" problem, the mere 5 possibility that the jury based its verdict on an invalid specification of liability establishes 6 that the appellant's rights were "substantially affected" within the meaning of ORS 7 19.415(2). The court explained that the "outcome might have been different" construct 8 appeared to be more lenient than the standard set out in ORS 19.415(2). The court 9 concluded that 10 11 12 13 14 15 16 17 "the 'we can't tell' rule, which this court relied upon in some earlier cases and synthesized in Whinston, is inconsistent with ORS 19.415(2). Because that court-made standard conflicts with the standard that the legislature determined for reversal by an appellate court of a trial court judgment, it must give way. In every case, the appellate courts must adhere to the limitation of ORS 19.415(2) and reverse or modify a judgment only if it can be determined from the record that the error 'substantially affect[ed] the rights of a party.'" 18 335 Or at 174 (emphasis added). Applying that holding to the case before it, the court 19 concluded that the record -- in particular, the verdict form -- did not show that the jury 2 The question before the court in Whinston involved the proper disposition of a motion for judgment notwithstanding the verdict in the described circumstances, not whether the error in submitting the one invalid specification to the jury required reversal, Thus, the court did not consider whether the "we can't tell" rule was compatible with the standard in ORS 19.415(2). 11 1 had based its verdict on the invalid specification of negligence. Therefore, the court 2 reasoned, the defendant had not shown that the trial court's error in submitting that 3 specification to the jury had substantially affected the defendant's rights. Id. at 178-79. 4 In that context, the court suggested, the problem could have been avoided by using a 5 special verdict form: "A special verdict would have allowed defendant to show the 6 claims or specifications upon which the judgment was based and thus to provide us with 7 a record that would allow us to determine whether the trial court error was prejudicial." 8 Id. at 178. 9 The court in Shoup made particular mention of two cases that bear on our 10 discussion here, and which we now describe briefly. The first was Baker v. English, 324 11 Or 585, 932 P2d 57 (1997), where this court applied the statutory standard for reversal in 12 the context of an erroneous discovery ruling; the second was Hernandez, where this court 13 applied the statutory standard to instructional error. 14 The court in Baker held that the erroneous denial of discovery in that case 15 did not require reversal because the requesting party "already knew or had possession of 16 qualitatively the same information as that contained in the denied discovery." 324 Or at 17 593. As pertinent here, the court acknowledged that it often had determined whether an 18 error required reversal by inquiring whether the error permitted the jury to reach an 19 erroneous verdict. The court explained, however, that although that inquiry was helpful 20 in some cases, "[the court's] focus in this and all similar cases is the statutory test set forth 21 in ORS 19.415(2): 'No judgment shall be reversed or modified except for error 22 substantially affecting the rights of a party.'" Id. at 592-93. The court concluded that the 12 1 2 3 4 5 6 7 8 9 10 discovery error in that case did not satisfy the statutory standard: "In the context of this erroneous discovery ruling, the central issue is whether defendant, before trial, already knew or had possession of qualitatively the same information as that contained in the denied discovery. If such information were known before trial through other sources, the denial of discovery could not substantially have affected defendant's rights under ORS 19.125(2). That is so because, having already known or been in possession of qualitatively indistinguishable information, defendant could have chosen to pursue or utilize that information in formulating a theory of the case and a strategy of presenting evidence." 11 Id. at 593. Thus, in Baker, the denial of discovery could not have had the statutorily 12 required effect on the right that the defendant posited, that is, to formulate and execute a 13 trial theory and strategy. Accordingly, the trial court's erroneous ruling could not furnish 14 a basis for reversing the judgment. 15 In the other important case discussed in Shoup, Hernandez, a woodworker 16 who had been injured by a saw brought a product liability action against its manufacturer. 17 The defendant asserted an affirmative defense of comparative fault that alleged ten 18 separate specifications of the plaintiff's negligence that had contributed to the accident. 19 The plaintiff requested an instruction that limited the kind of conduct that qualified for 20 consideration by the jury as comparative negligence in the circumstances. The trial court 21 declined to give the instruction. After the jury returned a verdict for the defendant, the 22 plaintiff appealed, assigning error to the trial court's refusal to give the requested 23 instruction. Hernandez, 327 Or at 102-05. On review, this court concluded that the 24 instruction was proper and that the trial court's refusal to give it could have affected the 25 jury's verdict on one of the ten specifications of comparative negligence. Id. at 112. The 26 court further concluded that the error required reversal under the construct described in 13 1 Baker, 324 Or at 590, and Waterway Terminals, 256 Or at 370, because the jury "may 2 have based its comparative fault assessment on a misperception of the evidence resulting 3 directly from the court's failure to give plaintiff's requested jury instruction." Id. Thus, in 4 Hernandez, this court held that instructional error had "substantially affect[ed]" the 5 appellant's rights within the meaning of ORS 19.415(2), where, based on the record in 6 that case, the trial court's refusal to give a valid instruction permitted the jury to reach an 7 erroneous verdict. 8 9 10 11 12 13 14 15 16 In Shoup, this court commented on the decisions in Hernandez and Baker: "[I]n Hernandez, [the court] cited Baker as indirect authority for the proposition that the rights of a party are 'substantially affected' if 'the outcome of the case either would have or may have been different had the error not occurred.' In that regard, Hernandez, like defendant's argument in this case, takes this court's statement in Baker out of context. We do not, however, question the conclusion reached by this court in Hernandez. The error in jury instructions at issue in Hernandez was 'reversible' under ORS 19.415(2)." 17 335 Or at 172 n 2. Viewed in the context of the overall discussion in Shoup, that 18 comment is most logically understood to mean that the generally-applied construct for 19 determining whether instructional error is a basis for reversal under ORS 19.415(2) is not 20 a universal proxy for the statutory standard, but that its application in Hernandez was 21 correct. That is how this court interpreted it in Wallach. 344 Or at 323-24. 22 Shortly after it decided Shoup, this court applied ORS 19.415(2) in State v. 23 Pine, 336 Or 194, 82 P3d 130 (2003). In Pine, the defendant appealed his conviction for 24 third-degree assault, arguing that the trial court had erred by instructing the jury that, to 25 be convicted of that offense, the defendant himself need not have caused physical injury 14 1 to the victim. The state countered that, under Shoup, any error in giving the instruction 2 was not a ground for reversal, because the verdict was supported by evidence that the 3 defendant himself had caused physical injury to the victim. On review, this court 4 acknowledged that Shoup might be distinguishable on the ground that it was a civil, not a 5 criminal, case, but the court instead chose to "rely on a more fundamental reason to 6 distinguish Shoup from th[e] case [before it]. * * * [I]f the jury had believed defendant's 7 version of the facts, it nonetheless could have convicted him under the challenged 8 instruction. If * * * that instruction incorrectly stated the law, then the jury's guilty 9 verdict effectively would have convicted defendant of a crime that the legislature did not 10 enact." 336 Or at 200 (emphasis added). 11 That brings us, finally, to Lyons, the case that the Court of Appeals deemed 12 to be controlling here. In Lyons, the plaintiffs' decedent, a state trooper, was killed, along 13 with his colleague, Rector, when the police vehicle that Rector was driving and in which 14 the decedent was a passenger was struck by a tractor trailer. The plaintiffs brought a 15 wrongful death action against the company that owned the truck and employed its driver, 16 alleging that the accident was caused by the negligence of the defendant's employee. 17 Lyons, 337 Or at 321-22. The plaintiffs asserted -- and the defendant did not dispute -- 18 that, if Rector had been negligent, he and his employer, the Oregon State Police, were 19 immune from liability to the plaintiffs under the exclusive remedy provision of the 20 workers' compensation statutes. Id. at 322. 21 22 In accordance with their view of the effect of that immunity, the plaintiffs sought various instructions admonishing the jury not to "weigh or consider" Rector's 15 1 conduct unless it found that it was the "sole and exclusive" cause of the accident. Id. at 2 323. The trial court declined to give the requested instructions and, instead, instructed 3 the jury not to compare Rector's fault with the truck driver's fault. At the close of trial, 4 the court submitted a special verdict form to the jury that combined the issues of 5 negligence and causation into a single, compound question: Whether the defendant was 6 negligent in any of the ways alleged and "and, if so, was such negligence a cause of 7 damage to the plaintiffs." Id. at 323 (emphasis added). The jury answered "no" to that 8 question, and thus the defendant prevailed. 9 The plaintiffs unsuccessfully appealed to the Court of Appeals and then 10 sought review before this court, on the grounds that the trial court had erred in giving the 11 comparative fault instruction and in refusing to give the requested "sole and exclusive 12 cause" instruction. Although this court initially allowed review to consider those issues 13 on their merits, it eventually concluded that it could not reach them "because of the 14 nature of the verdict that the jury rendered." Id. at 324. The court observed that the jury 15 had rendered its verdict on a compound question that made it impossible to tell whether 16 the answer rested (1) on a determination that the defendant was not negligent, or, 17 alternatively, (2) on a determination that the defendant was negligent but that its 18 negligence had not caused the plaintiff's damages. Id. at 325. 19 20 21 22 23 24 The court explained: "Our inability to determine which ground led the jury to decide as it did is important, because plaintiffs have focused all their arguments in this court on the second part of the question. That is, plaintiffs assert that the instructions that the trial court gave and the evidence that it admitted improperly permitted the jury to consider Rector's conduct in assessing 16 1 2 3 4 whether [the defendant's] conduct was a substantial factor in causing the accident. But such errors by the trial court, if errors they were, are irrelevant if the jury decided the case instead on the pristine proposition that [the defendant] was not negligent." 5 337 Or at 325. This court referred to the holding in Shoup that a party seeking reversal of 6 a judgment bears the burden of making a record that demonstrates prejudicial error, and 7 then held: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 "What this court stated in Shoup applies equally to the narrow problem that the form of jury verdict used in the present case poses. This was not a case in which the plaintiff advanced a single factual theory of liability that the form of jury verdict reflected. Nor did this case involve other kinds of asserted trial error, such as a faulty jury instruction, that may call for a different analysis of whether the error 'substantially affect[s] the rights of a party' under ORS 19.415(2). The jury verdict could have been based on one of two different rationales that the jury verdict for defendant identified; it is impossible to tell which the jury used. Plaintiffs' claims of error may or may not be well taken, but they depend on an assumption that the jury's verdict was based on one rationale only. The present record does not support plaintiffs' assumption, and because they are asserting error, the consequences of the inadequacy of the record in that respect fall on plaintiffs." Id. at 326. 23 In at least two respects, the court's explanation of its holding was somewhat 24 opaque. First, the court stated that the plaintiff had not "advanced a single factual theory 25 of liability that the form of jury verdict reflected." Id. That statement was literally 26 accurate; the plaintiff in Lyons, like the plaintiff in Shoup, had pleaded several factually 27 distinct specifications of negligence. See Lyons, 337 Or at 322 (describing the plaintiff's 28 multiple theories of negligence). However, the "two different rationales that the jury 29 verdict form identified" in Lyons -- culpability and causation -- had no obvious 30 connection to the circumstance that the plaintiff had pleaded multiple theories of liability. 17 1 Rather, those different "rationales" were common elements (as opposed to "theories of 2 liability") in each of the specifications of negligence. Second, the court's explanation 3 suggested that the case did not involve "other kinds of asserted trial error, such as a faulty 4 jury instruction, that may call for a different analysis of whether the error 'substantially 5 affect[s] the rights of a party,'" even though the plaintiff's fundamental position on appeal 6 was that the trial court had improperly instructed the jury. 7 In Wallach, this court addressed some of the uncertainty that arose out of 8 Lyons. In Wallach, an insured who had been injured in an automobile accident brought 9 an uninsured motorist (UM) action against his insurer. The plaintiff thereafter was 10 involved in two more accidents and, in the UM action, sought to hold the insurer liable 11 for aggravation of the injuries sustained in the first accident that resulted from the second 12 and third accidents. The plaintiff proffered an instruction that was consistent with his 13 aggravation theory, and the trial court gave the instruction despite the insurer's objection 14 that the instruction erroneously stated the law. The jury returned a verdict awarding 15 significant money damages to the plaintiff. The insurer appealed, asserting that the trial 16 court had erred in giving the "aggravation" instruction. The Court of Appeals agreed 17 with the insurer that the instruction was erroneous and reversed and remanded the case to 18 the trial court. Wallach v. Allstate Ins. Co., 206 Or App 137, 145, 135 P3d 404 (2006). 19 The plaintiff sought review, arguing that the instruction was correct and 20 that, even if it was not, the Court of Appeals was bound by Lyons to affirm, because the 21 defendant had failed to show that the asserted error actually affected the verdict. The 22 plaintiff argued that the defendant had failed to make the required showing because the 18 1 challenged instruction was relevant only to the claimed aggravation damages sustained in 2 the second and third accidents, and the jury's award may have been based solely on the 3 injuries that resulted from the first accident. 4 This court in Wallach distinguished Lyons on the ground that, in Lyons, this 5 court had described that case as one involving a "narrow problem" pertaining to the form 6 of the verdict, not a faulty jury instruction. Wallach, 344 Or at 328. The court noted that, 7 in an unbroken line of cases preceding Lyons, this court had determined whether 8 instructional error had "substantially affected" the rights of a party under ORS 19.415(2) 9 by asking whether, based on the instructions read as a whole, the erroneous instruction 10 told the jury to apply the wrong legal rules to a claim or defense and, if so, whether, in 11 light of the trial court record, the error permitted the jury to reach a legally erroneous 12 outcome. Wallach, 344 Or at 326. The court further observed that it had applied the 13 same construct of the statutory standard in two instructional error cases, Hernandez and 14 Pine, where verdicts could have been based on alternative theories of liability or guilt that 15 would have been unaffected by the instructional error. Id. at 323-26.3 In the absence of 3 This court discussed Hernandez at length in Wallach. The court observed that, although Hernandez involved an assertion of instructional error, the asserted error was relevant to only one of the plaintiff's ten specifications of negligence -- a circumstance that was parallel to the circumstances in Shoup. The court explained that, "[b]ecause the trial court refused to give the plaintiff's requested instruction, the jury applied an incomplete and thus inaccurate legal rule to the facts, which permitted the jury to reach an erroneous result. That was sufficient, this court held in Hernandez and reaffirmed in Shoup, to say that the 19 1 an indication that the court in Lyons had meant to overrule Hernandez and Pine, this 2 court in Wallach applied the construct of the statutory standard that the court had applied 3 in those two cases. Id. at 328, 330. 4 The court's decision in Wallach was not unanimous. Noting that the 5 majority had attempted (1) to distinguish Lyons as a case involving an error in the form of 6 the verdict and (2) to limit the holding in Lyons accordingly, the dissent protested that the 7 distinction did not withstand scrutiny. Wallach, 344 Or at 341-42 (Durham, J., 8 dissenting). The dissent opined that the underlying problem in Lyons was an erroneous 9 jury instruction and that, because the court had applied the "we can't tell" standard for 10 reversal against the appellant in that case, it was bound to apply the same standard to the 11 instructional error in Wallach. Id. 12 13 14 15 The majority responded that it need not "decide whether Lyons was correct in positing that the jury verdict form in that case and instructional error present distinct issues for purposes of ORS 19.415(2). This case does not involve a jury verdict form similar to the one instructional error substantially affected the plaintiff's rights and required reversal. That was true even though the jury in Hernandez properly could have based its verdict on the other allegations of negligence and the plaintiff in Hernandez could have memorialized the effect of the trial court's refusal to give his requested instruction by asking the jury to specify which, if any, of the defendant's allegations of negligence it relied on in determining the parties' respective fault." Wallach, 344 Or at 325 (citations omitted; emphasis added). 20 1 2 3 4 5 6 7 8 9 10 11 in Lyons; it thus provides no occasion for us to decide whether the distinction that the court articulated in Lyons was correct. Rather, it is sufficient for the purposes of this case to reaffirm the general rule stated in Pine, Hernandez, and an unbroken line of cases that, when a trial court incorrectly instructs the jury on an element of a claim or defense and when that incorrect instruction permits the jury to reach a legally erroneous result, a party has established that the instructional error substantially affected its rights within the meaning of ORS 19.415(2)." Wallach, 344 Or at 329. THE PROBLEM OF LYONS To sum up thus far, in Wallach, this court cabined the holding in Lyons to 12 circumstances involving a particular kind of verdict form. Without reconsidering the 13 holding in Lyons, this court in Wallach concluded that, because the case before it did not 14 involve a similar verdict form, the holding in Lyons was not controlling. This court's 15 holding in Wallach therefore permitted the bench and bar to infer that Lyons does govern 16 the analysis in instructional error cases that do involve such a verdict form. That is 17 precisely the conclusion that the Court of Appeals reached in this case when it decided 18 that, in the absence of a special verdict form that eliminated the possibility that the jury's 19 verdict was based solely on the issue of causation, it could not consider plaintiffs' claims 20 of instructional and evidentiary error, all of which were concerned with elements of 21 culpability. Purdy, 252 Or App at 642 n 2. As a consequence, the ongoing vitality of 22 Lyons looms prominently in our review. 23 As discussed, plaintiff contends that Lyons does not control here. Although 21 1 plaintiff suggests other reasons why that may be so,4 his primary thesis is that Lyons was 2 wrongly decided. Plaintiff asserts that, before Lyons, this court consistently had held that 3 instructional error required reversal of a trial court judgment if the error permitted the 4 jury to reach a legally erroneous result.5 Plaintiff further observes that Shoup did not 5 involve instructional or evidentiary error and that this court in Shoup took pains to 6 distinguish instructional error from the kind of error presented in that case. Shoup, 335 7 Or at 172 n 2. Finally, plaintiff argues that, although the court in Wallach expressly 8 declined to overrule Lyons, it did, in effect, limit the holding in Lyons to its own 9 procedural posture. Plaintiff nevertheless asserts that Lyons was wrongly decided, even 10 in the supposedly narrow circumstances in which it arose. 11 This court does not overrule its prior decisions lightly. As we stated in 12 Farmers Ins. Co. v. Mowry, 350 Or 686, 698, 261 P3d 1 (2011), "[s]tability and 13 predictability are important values in the law." Because of the importance of those 14 values, we will not overrule prior decisions "simply because the personal policy 15 preferences of the members of the court may differ from those of our predecessors who 16 decided the earlier case." Id. (internal quotation marks omitted). We set out the 4 In particular, plaintiff argues that the instructional and evidentiary errors that he asserted pertained to the issue of causation as well as to the issue of fault and that, as such, the factual basis for applying the "we can't tell" standard was not present. 5 Plaintiff notes that the court had regularly applied a similar construct for evidentiary errors. 22 1 governing considerations in Mowry: 2 3 4 5 6 7 8 9 10 11 "[T]his court's obligation when interpreting constitutional and statutory provisions and when formulating the common law is to reach what we determine to be the correct result in each case. If a party can demonstrate that we failed in that obligation and erred in deciding a case, because we were not presented with an important argument or failed to apply our usual framework for decision or adequately analyze the controlling issue, we are willing to reconsider the earlier case. Similarly, this court is willing to reconsider cases when the legal or factual context has changed in such a way as to seriously undermine the reasoning or result of earlier cases." Id. at 698. 12 Lyons concerned the meaning and application of a statute, ORS 19.415(2), 13 and our determination whether to reconsider that case here places particular emphasis on 14 the court's use of the appropriate interpretive framework, which, broadly conceived, 15 would include adequate consideration of the relevant context, including case law 16 interpreting or applying the statute. Mowry, 350 Or at 698. Thus, the criticism that 17 plaintiff has leveled against this court's decision in Lyons -- that, on the questionable 18 premise that the case did not involve a faulty jury instruction, the court in Lyons failed to 19 consider a body of pertinent case law -- could be an adequate basis for reconsidering that 20 case. 21 Notably, this court accepted review in Lyons to address the merits of the 22 plaintiff's assignments of instructional error but, without consulting the parties in that 23 case, decided that it could not reach those assignments of error because of the inherent 24 ambiguity of the verdict that the jury had rendered. The court's analysis of the issue was 25 sparse; it consisted of (1) a brief quotation setting out the primary holding of Shoup, 26 unaccompanied by any explanation of the procedural circumstances in which that holding 23 1 arose; (2) a conclusion that Shoup applied equally to "the narrow problem that the form 2 of jury verdict used in the present case poses" -- presumably a reference to the facts that 3 the verdict form asked the jury to answer a two-part question and that the court could not 4 tell which part of the question had driven the jury's answer; and (3) a statement that the 5 case did not involve "other kinds of asserted trial error, such as faulty jury instructions, 6 that may call for a different analysis." Lyons, 337 Or at 326. As discussed, because the 7 particular error that the appellant had asserted was that the jury instructions were faulty, 8 the court's statement was questionable. Also as discussed, the court did not directly 9 consider the line of cases that set out and applied a different construct of the standard for 10 reversal in the context of asserted instructional error. Those concerns provide sufficient 11 grounds for reconsidering the analysis applied in that case. See Mowry, 350 Or at 693 12 (stating pertinent considerations for decision whether to reexamine precedent). We now 13 turn to that task. 14 We begin by reiterating that the task before the court in Lyons was to 15 determine the meaning of, and apply, a statute. The standard currently codified in ORS 16 19.415(2) has been a part of this state's civil and criminal law since the Deady Code. See 17 General Laws of Oregon, Civ Code, ch VI, § 533, p 284 (Deady 1845-1864) (providing 18 that, in civil appeals, the judgment "shall only be reversed or modified for errors 19 substantially affecting the rights of the appellant"); General Laws of Oregon, Crim Code, 20 ch XXIII, § 246, pp 482-83 (Deady 1845-1864) (providing that, in criminal appeals, the 21 court "must give judgment, without regard to * * * technical errors, defects or exceptions 22 which do not affect the substantial rights of the parties"). 24 1 As noted, this court construed ORS 19.415(2) in Shoup, and it reached two 2 conclusions that are pertinent here. First, to require reversal under the statute, an error 3 must -- in an important or essential manner -- have materially or detrimentally influenced 4 a party's rights; it is insufficient to speculate that the error might have changed the 5 outcome in the case. In that regard, the court said: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 "Under the statute, 'no judgment shall be reversed * * * except for error substantially affecting the rights of a party." (Emphasis added.) The words of ORS 19.415(2) demonstrate that an error must cause something more than the 'possibility' of a different result before the appellate court may reverse a judgment. To 'affect' means, among other things, 'to act upon: a: to produce an effect (as of disease) upon * * * b(1): to produce a material influence upon or alteration in * * * (2): to have a detrimental influence on * * *." Webster's Third New Int'l Dictionary 35 (unabridged ed 1993). Thus, an error 'affecting' a party's rights is an error that can be said to 'produce a material influence' or 'to have a detrimental influence' on those rights, and not merely one that 'might' have changed the outcome of the case. The use of the adverb 'substantially' further limits the type of error that can result in reversal of a judgment. 'Substantially' means 'in a substantial manner,' and the relevant definition of 'substantial' is 'being of moment: IMPORTANT, ESSENTIAL.' Id. at 2280." 21 Shoup, 335 Or at 173. Second, the statute imposes a burden on the party asserting an 22 error to demonstrate that the error had the required prejudicial effect. In that regard, the 23 court said: 24 25 26 27 28 29 30 31 32 "[T]he statute protects the trial court judgment from reversal or modification 'except for' error substantially affecting a party's rights, indicating that reversal of a judgment is the exception, not the rule. The rule embodied in ORS 19.415(2) is neutral as between plaintiffs and defendants; it places the burden to make a record that demonstrates prejudicial error on whichever party loses in the trial court and then seeks reversal or modification of the judgment on appeal." Id. at 173-74. As noted, defendants argue that, to satisfy those requirements, an appellant 25 1 must show that the jury actually made an adverse finding on the issue to which the 2 appellant's claims of error are directed. Plaintiff responds that the effects of the asserted 3 instructional and evidentiary errors on his rights in this case would not necessarily be 4 discernible from the content of a special verdict and, therefore, the generally applicable 5 constructs of the standard set out in ORS 19.415(2) for those types of errors ought to 6 govern here. 7 A careful reading of the words of the statute in light of this court's decision 8 in Shoup supports plaintiff's view. Just as the legislature could have conditioned reversal 9 on the mere possibility that an error affected the jury's decision if it had so intended, it 10 also could have conditioned reversal on a showing that the jury found against the 11 appellant on the particular element of a claim or defense to which the asserted error 12 pertained, if it had meant to impose that requirement. This court rejected the former 13 approach in Shoup, and we reject the latter here, because, it too, fails to correspond to the 14 statutory standard. 15 That standard asks, instead, whether -- in an important or essential manner - 16 - the error had a detrimental influence on a party's rights. Shoup, 335 Or at 172-73. It 17 does not pretend to measure mathematical probabilities; rather, it assesses the extent to 18 which an error skewed the odds against a legally correct result. This court's previous 19 decisions that have applied the standard to instances of instructional and evidentiary error 20 generally indicate that little likelihood is not enough, but more -- that is, "some" or a 21 "significant" likelihood that the error influenced the result -- will suffice for reversal. See 22 State v. Lopez-Minjarez, 350 Or 576, 587, 260 P3d 439 (2011) (because "erroneous 26 1 instruction had no significant likelihood of affecting the jury s verdict" on a charge, it did 2 not substantially affect defendant's rights); see also Davis, 336 Or at 29 n 7 ("under [ORS 3 19.415(2)] the analysis whether an appellate court must affirm a judgment despite trial 4 error is similar to the analysis that Article VII (Amended), section 3, requires.").6 5 In Hernandez, this court referred to "the general rule [that] the parties in a 6 civil action are entitled to jury instructions on their theory of the case if their requested 7 instructions correctly state the law, are based on the current pleadings in the case, and are 8 supported by evidence." Hernandez, 327 Or at 106. The court in Hernandez concluded 9 that, because the trial court refused to give the plaintiff's requested instruction, the jury 10 applied an incomplete and inaccurate legal rule to the facts, which, in the context of the 11 record as a whole, permitted the jury to reach a legally incorrect outcome; accordingly, 12 the error substantially affected the appellant s rights. Id. at 112; see also Wallach¸ 344 13 Or at 329 (erroneous instruction that permitted jury to find defendant liable for damages 14 for which it was not liable, as well as damages for which it was liable, substantially 15 affected defendant's rights); Pine, 336 Or at 209-10 (instruction that permitted jury to 6 Article VII (Amended), section 3, of the Oregon Constitution, provides, in part: "If the supreme court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial[.]" Oregon's constitutional test for affirmance despite error consists of a single inquiry: Is there little likelihood that the particular error affected the verdict? Davis, 336 Or at 32. 27 1 convict defendant based on facts contrary to statute defining crime substantially affected 2 defendant's rights). 3 That approach to analyzing the effect of error under ORS 19.415(2) is 4 consistent with a presumption to which this court has adhered for many years; that is, 5 "[w]e presume that a jury follows a trial court's instructions." Wallach 344 Or at 326. It 6 does not mean, however, that all or most instructional error substantially affects a party's 7 rights for the purposes of ORS 19.415(2). "A jury instruction does not constitute 8 reversible error unless it prejudiced the defendant when the instructions are considered as 9 a whole." State v. Bowen, 340 Or 487, 516, 135 P3d 272 (2006), cert den, 549 US 1214 10 (2007). Moreover, in making that determination, the court not only considers the 11 instructions as a whole, it considers the instructions in the context of the evidence at trial 12 and the parties' theories of the case with respect to the various charges, claims, and 13 defenses at issue. Lopez-Minjarez, 350 Or at 578 (2011) (to assess whether error in 14 instructing jury substantially affected appellant's rights on various charges involved, "it is 15 important to describe both sides' respective evidence and theories of the case"); see also 16 State v. Phillips, 354 Or 598, 613, 317 P3d 236 (2013) (erroneous failure to give jury 17 concurrence instruction did not substantially affect defendant's rights because, "on the 18 facts in this case, the factual findings necessary to find defendant liable on one theory 19 either subsumed or were the same as the factual findings on the other theory"); U.S. 20 National Bank v. Boge, 311 Or 550, 566, 814 P2d 1082 (1991) (giving erroneous 21 instruction regarding standard of conduct substantially affected plaintiff's rights because 22 "[t]he standard for [plaintiff's] conduct was the central issue to be decided," and error 28 1 permitted jury to reach incorrect result).7 2 That kind of record-based review is consistent with this court's statement in 3 Shoup that ORS 19.415(2) "places the burden to make a record that demonstrates 4 prejudicial error on whichever party * * * seeks reversal," and that that rule applies "in 5 every case." 335 Or at 173-74. As noted, in Shoup, this court concluded that the 6 defendant was "unable to show that the trial court's error [in allowing the invalid 7 specification to go to the jury] substantially affected [its] rights." Id. at 179. In so 8 holding, the court relied on two factors in the record. First, the court noted that identical 9 evidence applied to all three specifications of negligence in that case, two valid and one 10 11 12 13 14 15 16 17 invalid: "The evidence that plaintiff introduced in support of her negligence claim was straightforward: Plaintiff, her husband, her physician, and the store employee were the only witnesses at trial. There was no dispute that plaintiff was injured when she was struck by the store employee, who was backing up to get out of another shopper's way. All three specifications of negligence were based on the same evidence, and the jury concluded that plaintiff had proved her negligence claim." 18 Id. at 178. In sum, the record showed that there was little likelihood that the jury had 19 found for the plaintiff on the invalid specification without also finding for the plaintiff on 7 The same is true for evidentiary error. If, for example, evidence that was erroneously admitted related to a central issue in the case, then it is more likely that the error substantially affected the jury's decision. See State v. Marrington, 335 Or 555, 566, 73 P3d 911 (2003) (concluding that the error could have affected the verdict because the evidence related to a central factual issue in the case). 29 1 2 3 4 5 6 7 8 9 one or both of the valid specifications. Second, the court stated that "[a] special verdict would have allowed defendant to show the claims or specifications upon which the judgment was based and thus to provide us with a record that would allow us to determine whether the trial court error was prejudicial. See Whinston, 309 Or at 359 n 10 (describing benefits of special verdict or interrogatories to jury). In this case, however, defendant objected to plaintiff's proposed special verdict form, and the court used defendant's general verdict form." 10 Id. at 178-79. Thus, it was significant that the defendant had affirmatively eschewed -- 11 by objecting to a theory-specific verdict form -- the opportunity to create a record that 12 would have established whether the jury had found for the plaintiff on only the invalid 13 theory of liability. In that circumstance, the court held, the defendant had "not identified 14 anything in the record to demonstrate that the jury based its verdict on [the invalid 15 specification of negligence]" and that the defendant, therefore "[was] unable to show that 16 the trial court's error substantially affected [the] defendant's rights." Id. at 178-79. 17 That holding constituted a particular application of the standard in ORS 18 19.415(2) based on the record before the court. The error did not substantially affect the 19 defendant's rights, because the same evidence applied to all three theories of liability, and 20 there was little likelihood that the jury had based its verdict on the invalid theory alone. 21 And, to punctuate the analysis, the record showed that the defendant had actively 22 prevented the use of a verdict form that would have shown whether the jury had based its 23 verdict on the invalid theory of liability. Accordingly, the defendant was in no position 24 to complain about the error. 25 Here, the verdict form that the trial court submitted to the jury was not as 30 1 specific as the type of verdict form to which this court referred to in Shoup. That is, the 2 form in this case required the jury to enter separate verdicts on plaintiff's claims for strict 3 liability and negligence, but it combined the various specifications of liability for each 4 claim into a single verdict on that claim. However, for two reasons, a theory-specific 5 verdict form like the one that the court referred to in Shoup would not necessarily have 6 revealed whether the posited instructional and evidentiary errors in this case adversely 7 influenced the result that the jury reached. First, although plaintiff asserted several 8 theories of liability on each claim, culpability and causation were common elements in 9 each of those theories. In that circumstance, a separate verdict on each theory of liability 10 11 would not have shown the jury s findings as to those elements. Second, for good reason, this court in Shoup was careful to distinguish the 12 problem in that case from circumstances involving instructional error. Where multiple 13 theories of liability are advanced and a challenged jury instruction or evidence applies to 14 one or more (but not all) theories, a verdict showing the jury's decision on a theory- 15 specific basis might indicate (if, for example, the error pertained only to a theory of 16 liability on which the jury found for the appellant) that the error did not adversely 17 influence the jury s decision. However, a theory-specific verdict would not necessarily 18 demonstrate whether the converse is true. In the case of instructional error, to show more 19 about the likelihood that the error adversely influenced the jury's decision, a verdict form 20 would have to create a decision tree setting out the jury's deliberative path in 21 considerably greater detail. Because jury instructions often apply to single elements of a 22 claim or defense, the verdict form would need to include separate findings with respect to 31 1 each triable issue of fact to which a disputed instruction might apply. And even that level 2 of detail would not necessarily reveal that (or the extent to which) any particular error 3 substantially affected the appellant's rights, because, as discussed, that determination -- 4 for both instructional and evidentiary error -- generally turns on broader, record-based, 5 considerations that are not reflected in the content of a verdict form. See, e.g., Lopez- 6 Minjarez, 350 Or at 584-91 (determining effect of instructional error on appellant's rights 7 by examining evidence and parties' theories as to each charge); Jett, 335 Or at 500-01 8 (evidentiary error was harmless under ORS 19.415(2) and OEC 103(1) because "ample 9 evidence in the record made the same point that" the appellant sought to make by 10 introducing the excluded evidence). 11 Thus, it comes as no surprise that, apart from the import of its holding in 12 Lyons, this court has never suggested that an appellant must have proposed an element- 13 by-element or factual issue-by-issue questionnaire format for a jury verdict to 14 demonstrate the existence of reversible instructional or evidentiary error under ORS 15 19.415(2).8 In particular, this court in Shoup did not suggest that, in every circumstance, 8 This court's decision in Jensen does not undercut the point that we make here. In Jensen, this court concluded that the trial court had erred in giving a jury instruction pertaining to one of two theories of whistleblower liability that the plaintiff had advanced. Jensen, 336 Or at 238-39. The jury returned a verdict for the plaintiff, but the verdict form did not distinguish between the two theories of liability; thus, this court was unable to determine on the defendant's appeal whether the jury's verdict had been based on the theory of liability to which the erroneous instruction applied. Id. at 240. In affirming the judgment, we treated the error in giving the instruction as analogous to the problem of submitting an invalid specification of liability to the jury. See Strawn v. 32 1 the effect of an error on an appellant's rights must (or even could) be shown through the 2 use of a special verdict. Nor did this court in Shoup purport to disavow previous 3 decisions in which it had applied ORS 19.415(2) to assignments of instructional or 4 evidentiary error. 5 If the court had taken those decisions into account in Lyons, the answer that 6 the court gave in that case would -- and should -- have been different. Lyons involved an 7 instructional error problem, and the proper application of the statutory standard for 8 reversal in that case was the familiar one that this court had earlier used in Pine, and later 9 used in Wallach and Lopez-Minjarez. Generally speaking, if a trial court incorrectly 10 instructs the jury on an element of a claim or defense, and -- when the instructions are 11 considered as a whole in light of the evidence and the parties' theories of the case at trial - 12 - there is some likelihood that the jury reached a legally erroneous result, a party has 13 established that the instructional error substantially affected its rights within the meaning 14 of ORS 19.415(2). Lopez-Minjarez, 350 Or at 584-91; Wallach, 344 Or at 329; Pine, 336 15 Or at 200, 210.9 That is so, logic dictates, even if it cannot be definitively shown that the Farmers Ins. Co., 350 Or 336, 370, 258 P3d 1199 (2011) (describing holding in Jensen as "affirming judgment, despite erroneous jury instruction on one of plaintiff's theories of liability, where defendant did not challenge another basis for liability."). This court in Lyons did not discuss Jensen, nor was there a reason to do so. Unlike in Jensen, there was no indication in Lyons that the plaintiff's assignment of instructional error in that case applied to one or more, but fewer than all, of the plaintiff's theories of negligence. 9 As noted, since deciding Shoup, this court has continued to apply the "little likelihood that the error affected the result" construct to assignments of evidentiary error. 33 1 jury did base its verdict on the erroneous instruction or if a more elaborate, element-by- 2 element verdict form might have shown that the jury did not base its verdict on the 3 erroneous instruction. Thus, the fact that the verdict form in Lyons did not pose separate 4 questions for the jury to answer on particular factual elements of plaintiff's multiple 5 theories of liability did not require a different construct of the statutory standard in that 6 case. We therefore disavow and overrule our contrary holding in Lyons.10 7 APPLICATION 8 With that understanding, we return to this case. As discussed, the Court of 9 Appeals concluded that it could not consider nine of plaintiff's ten assignments of error 10 because, even if established, none of those errors would constitute a ground for reversal. 11 That was so, in the court's estimation, because, in the absence of a special verdict that 12 separated the issues of culpability and causation, it could not tell whether, after it had 13 rejected the sole claimed error regarding causation, any of the remaining claimed 14 instructional or evidentiary errors (all of which pertained only to the issue of culpability) 15 had affected the jury's decision. The court concluded that it was bound by this court's See Davis, 336 Or at 32 (applying construct). 10 Chief Justice Balmer's concurrence offers sound practical guidance for creating a record to assist an appellate court in determining whether trial court error was prejudicial. We agree with the Chief Justice that careful practitioners always should consider taking steps -- including, where practical, the thoughtful use of appropriately tailored verdict forms -- to create a record that exceeds the requirements of the legal standard set out in ORS 19.415(2). 34 1 holding in Lyons to apply that construct to all categories of trial court error, including the 2 instructional and evidentiary errors at issue here. 252 Or App at 642. 3 Because we have overruled our holding in Lyons, we reverse and remand to 4 the Court of Appeals to consider plaintiff's remaining assignments of error. If that court 5 concludes that one or more of plaintiff's assignments of error are meritorious, it can then 6 determine whether the error substantially affected plaintiff's rights. 7 8 9 10 The decision of the Court of Appeals is reversed and the case is remanded to that court for further proceedings. BALMER, C. J., concurring. This case raises the ubiquitous and difficult issue of what an appellate court 11 should do in the face of trial court error: When should error lead to reversal and when, 12 notwithstanding error of some kind, should the judgment below nevertheless be affirmed? 13 The question has vexed appellate court review of criminal and civil cases for centuries 14 and touches on such fundamental concerns as fairness, the protection of constitutional 15 rights, the role of juries, the legitimacy of trial and appellate court processes, and the 16 prudent use of judicial resources. See generally Roger J. Traynor, The Riddle of 17 Harmless Error (1970). Courts have struggled to articulate the appropriate test and, once 18 articulated, to undertake the more nuanced task of applying it to specific cases. 19 The majority opinion is a useful addition to the ongoing effort of the 20 Oregon appellate courts to articulate and apply the proper test for reversing a trial court 21 judgment when the appellant demonstrates error in the trial court proceedings. I agree 22 with the majority's analysis and disposition of this case and with its discussion of Shoup 35 1 v. Wal-Mart Stores, Inc., 335 Or 164, 61 P3d 928 (2003) and ORS 19.415(2). I write 2 separately to emphasize several aspects of the task at hand and to suggest at least some 3 ways that a party seeking to reverse a trial court judgment can provide assistance to the 4 appellate court. 5 Few legal proceedings are flawless, of course, and to reverse every trial 6 court judgment because there was error of some kind in the proceeding would undermine 7 critical goals of justice, finality, and efficiency. In fact, courts at various times have done 8 just that -- reversing convictions because, for example, the indictment charged a 9 defendant with entering a building with the intent to commit "larcey," and the statute 10 criminalized only entry with intent to commit "larceny," or when the indictment stated 11 that the offense was "against the peace of the State," instead of "against the peace and 12 dignity of the State." Traynor, The Riddle of Harmless Error at 3-4, 85 n 3. Yet to 13 require an appellant to demonstrate that the trial court judgment was "clearly wrong," as 14 some courts have, see id. at 17-18, 89 n 45, would pose an often insurmountable hurdle 15 for the party seeking reversal and would countenance serious legal error at the trial level. 16 The Oregon statute providing for appellate review of trial court judgments 17 sets a standard for reversal between those two extremes. It requires a party seeking 18 reversal to demonstrate that trial court error "substantially affect[ed]" the party's rights, 19 but does not require a showing that the error necessarily led to an incorrect judgment. 20 ORS 19.415(2) puts it this way: "No judgment shall be reversed * * * except for error 21 substantially affecting the rights of a party." In Shoup, we analyzed and applied that 22 provision, noting that "reversal of a judgment is the exception, not the rule" and that, 2 1 while the standard for reversal is neutral as between plaintiffs and defendants, "it places 2 the burden to make a record that demonstrates prejudicial error on whichever party loses 3 in the trial court and then seeks reversal or modification of the judgment on appeal." 335 4 Or at 173-74.11 Moreover, when a party seeks reversal of a jury verdict, the Oregon 5 Constitution imposes a further barrier by barring "re-examin[ation]" of any fact tried to a 6 jury, "unless the court can affirmatively say there is no evidence to support the verdict." 7 Or Const, Art VII (Amended), § 3. The obvious and intended (and salutary) effect of 8 those legal principles is to place a thumb on the scale in favor of the trial court judgment. 9 The more difficult questions are how to articulate the legal standard -- other 10 than simply repeating the words of ORS 19.415(2) -- and how to apply it to specific 11 cases. The majority correctly points out that it is not enough for the appellant to argue 12 that the error "possibly" affected the outcome of the case. ___Or at ___ (slip op at 26, 13 lines 8-14). Except for the most trivial of errors, it almost always can be argued that an 14 error at trial -- in evidence admitted or excluded, in an instruction given or not given, in a 11 As the majority opinion discusses, Lyons v. Walsh & Sons Trucking Co., Ltd., 337 Or 319, 96 P3d 1215 (2004), extended the logic of Shoup beyond its proper scope. That result perhaps can be traced in part to the comment in Shoup that ORS 19.415(2) places on the appellant the "burden to make a record that demonstrates prejudicial error." Shoup, 335 Or at 173-74. As the majority points out, that statement should not be taken to mean that the appellant must ensure that the appellate court can determine from the record that the error necessarily or actually affected the judgment. Rather, it asserts the unsurprising point that the appellate court will conduct its review as to whether the error "substantially affect[ed]" the appellant's rights based on the record before it -- and if the record includes nothing that would permit the appellate court to reach that conclusion, the result will be affirmance. The appellant bears that risk. 3 1 comment by a judge, attorney, or witness that should not have been made -- "possibly" 2 affected the outcome. Nor, as the majority states, must the appellant show that the jury 3 actually found against the appellant on the claim or defense to which the error pertained. 4 Id. Lacking access to the jury room or the individual and group decision making 5 processes that occur there, parties and courts rarely will be able to determine whether the 6 error actually had an effect on the verdict. To set the bar that high would be inconsistent 7 with ORS 19.415(2), which does not require a party to demonstrate that it would have 8 prevailed, absent the error, but only that the error "substantially affect[ed]" its rights. 9 So, the bar for the appellant is somewhere above "possibly affected" the 10 result, but below "necessarily affected" the result. Elaborating on Shoup, the majority 11 articulates the statutory standard to be "whether -- in an important or essential manner -- 12 the error had a detrimental influence on a party's rights"; the appellate court must 13 "assess[] the extent to which an error skewed the odds against a legally correct result." 14 ___Or at ___ (slip op at 26, lines 15-18). That is not like a preponderance of the 15 evidence test to determine whether a plaintiff in a civil case has met its burden of 16 showing that a particular assertion or fact was "more likely true than not." "Some" 17 likelihood -- more than "a little" -- that the error influenced the result is required, id. (slip 18 op at 26, lines 18-21), but "how much" more will depend on factual and legal issues in 19 the case as determined from the trial court record. The majority, correctly in my view, 20 eschews a more precise quantification of the probability that the error affected the result. 21 Of course, the critical task is applying the statutory standard to the record in a particular 22 case. 4 1 Fortunately, there are other aspects of appellate review that this court 2 routinely considers that make the problem less daunting than it might appear in the 3 abstract. First, we have long recognized that some trial errors are substantial and more 4 likely to have affected the result, while others are less likely to have done so. Evidentiary 5 error, for example, is "not presumed to be prejudicial," OEC 103(1), and we have relied 6 on that presumption in affirming judgments notwithstanding the erroneous exclusion or 7 admission of evidence. See State v. Gibson, 338 Or 560, 575-77, 113 P3d 423, cert den, 8 546 US 1044 (2005) (citing OEC 103(1) and concluding that improperly admitted 9 evidence was not prejudicial). Similarly, when considering a claim of instructional error, 10 we do not look at the challenged instruction in isolation, but rather examine the 11 instructions as a whole to determine whether they accurately state the law. State v. 12 Oatney, 335 Or 276, 290, 66 P3d 475 (2003), cert den, 540 US 1151 (2004). If the 13 instructions as a whole provide a complete and accurate statement of the law sufficient 14 for the jury to properly decide the issues before it, an appellate court is unlikely to find 15 that a claimed instructional error was prejudicial and to reverse a judgment on that 16 ground. See State v. Bowen, 340 Or 487, 516-17, 135 P3d 272 (2006), cert den, 549 US 17 1214 (2007) (concluding that, because instructions considered as a whole included 18 complete and correct statements of the law necessary to decide the charges, fact that 19 instructions perhaps should have been given in different sequence and that lesser- 20 included offense instruction should have been given in connection with aggravated 21 murder charge, rather than intentional murder charge, was not prejudicial). 22 Moreover, we do not look at trial court errors in the abstract -- rather, we 5 1 examine those errors in the context of the trial record as a whole, including the parties' 2 claims and defenses, the evidence admitted and excluded, the parties' theories of the case, 3 and the instructions. This court was able to reach the result it did in Shoup only after 4 considering those factors. Shoup, 335 Or at 178-79. As the majority notes, in both civil 5 and criminal cases, this court has generally engaged in that kind of contextual, record- 6 based review to assess whether error is prejudicial. ___Or at ___ (slip op at 28-29, lines 7 10-22, 1; slip op at 32, lines 1-10) (discussing cases). 8 9 The approaches just discussed regarding evidentiary and instructional error, and the appellate courts' commitment to reviewing the trial court record, provide some 10 structure to the ORS 19.415(2) inquiry. That difficult inquiry, however, inevitably 11 requires the exercise of some amount of discretion by the appellate court. See Traynor, 12 The Riddle of Harmless Error at 15-17 (discussing discretion in harmless error review). 13 But litigants need not leave themselves at the mercy of an appellate court 14 trying to determine from the record whether trial court error "affected" the judgment "a 15 little," "some," or "a lot." Special verdict forms, such as the form proposed by the 16 plaintiff (but objected to by the defendant) in Shoup that would have asked the jury to 17 state separately whether it found the defendant negligent based on its own negligence or 18 that of its employee, can greatly assist an appellate court in determining whether error 19 was prejudicial. Verdict forms separating liability, causation, and damages can clearly 20 demonstrate that an error did -- or did not -- affect the verdict. See ORCP 61 B 21 (authorizing use of special verdict). Interrogatories can separate jury determinations as to 22 the liability of one party among multiple defendants or one claim among multiple claims 6 1 and can even address issues related to specific evidence, the admissibility of which might 2 become a critical issue on appeal. See ORCP 61 C (authorizing use of interrogatories). 3 I fully agree with the majority that an appellant need not "prove," by means 4 of a verdict form or an interrogatory, that the jury based its verdict on improperly 5 admitted evidence or an instruction that turned out to be erroneous. And the majority is 6 correct that attempting to come up with a verdict form or interrogatories that would allow 7 an appellate court to determine whether any particular jury instruction or evidentiary 8 ruling -- later asserted to be erroneous -- necessarily affected the judgment could, in a 9 complicated case, quickly lead to a complex "decision tree" for the jury's deliberative 10 path that might create more problems for jurors, parties, and the court than it would solve. 11 See ___Or___ (slip op at 31-32, lines 18-22, 1-5) (discussing limitations of verdict 12 forms). 13 However, lawyers aware of the difficulty that appellate courts face in 14 determining whether error is prejudicial or harmless -- and of the amount of discretion 15 appellate courts inevitably exercise in that area -- should consider whether they and their 16 clients would be better off on appeal if they used verdict forms or interrogatories that 17 provided greater insight into the basis for the jury's verdict. Here, the verdict form 18 consisted of separate questions about products liability and negligence as to Deere and 19 Company and negligence as to Ramsey-Waite Company. However, each question 20 actually was a compound question asking both about a theory of liability (products 21 liability or negligence) and about the very different issue of causation. Because causation 22 was vigorously disputed at trial, it would have made sense for one or all parties to have 7 1 2 requested a verdict form that separately addressed that issue. Similarly, in Lyons v. Walsh & Sons Trucking Co., Ltd., 337 Or 319, 96 3 P3d 1215 (2004), the court was confronted with a verdict form that asked the compound 4 question of whether the defendant was negligent and, if so, whether its negligence was a 5 cause of the plaintiff's damages. The jury answered "no." 337 Or at 323. Causation was 6 a key issue at trial and the subject of assignments of error related to instructions and a 7 requested interrogatory. Yet the compound question posed to the jury prevented the court 8 from determining whether the jury had concluded that the defendant was not negligent or 9 that the defendant, although negligent, did not cause the plaintiff's damages. Again, 10 simply separating the question of liability from the question of causation on the verdict 11 form would have provided substantial assistance to the appellate courts in seeking to 12 determine whether any trial court errors had "substantially affect[ed]" the judgment. In 13 appropriate cases, lawyers can assist their clients, and the fair and efficient administration 14 of justice, by crafting verdict forms and interrogatories that will help appellate courts 15 determine when trial court errors should result in reversal. See Traynor, The Riddle of 16 Harmless Error at 23 (advocating use of special verdicts and interrogatories). 17 18 8

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