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Kennedy v. Wheeler

Court of Appeals of Oregon

August 28, 2013

AMBER KENNEDY, Plaintiff-Respondent,
v.
KELSEY C. WHEELER, Defendant-Appellant, and KATIE HALL, Defendant

Argued and submitted on January 22, 2013.

Yamhill County Circuit Court CV080512 Carroll J. Tichenor, Judge.

Michael T. Stone argued the cause and filed the briefs for appellant.

Mark G. McDougal argued the cause for respondent. Natalie McDougal filed the brief or respondent.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.

DUNCAN, J.

Plaintiff filed a negligence action against defendant, seeking recovery for injuries arising out of an automobile accident involving both parties. The jury found defendant liable and awarded plaintiff both economic and noneconomic damages. After the jury was polled, it became evident that only the same eight jurors agreed on economic and noneconomic damages. On appeal, as before the trial court, defendant argues that, for the verdict to be valid, at least the same nine jurors were required to agree on liability, economic damages, and noneconomic damages. Thus, defendant argues, the trial court erred in receiving the verdict and entering the general judgment. Following our recent opinion in Congdon v. Berg, 256 Or.App. 73, 299 P.3d 588 (2013), we conclude that, because the court gave the jury instructions and a verdict form that indicated that at least the same nine jurors were required to agree as to economic and noneconomic damages, that became the law of the case, and the court erred in receiving the jury's verdict when only the same eight jurors agreed on liability, economic damages, and noneconomic damages. We therefore reverse and remand.

Under the Oregon Constitution, in civil cases, "three-fourths of the jury may render a verdict." Or Const, Art VII (Amended), § 5(7); ORCP 59 G(2). When, as here, there is a twelve-person jury, the same nine or more jurors must agree on every interdependent element of a particular claim against a particular defendant. Sandford v. Chev. Div. Gen. Motors, 292 Or 590, 613, 642 P.2d 624 (1982) ("[T]he same jurors must constitute the three-fourths majority that finds every separate element required for the verdict.").

The relevant facts are procedural and undisputed. Plaintiff and defendant were involved in an automobile accident, and plaintiff subsequently filed suit against defendant for negligence, seeking to recover damages for injuries that she alleged arose out of that incident.[1] Plaintiff alleged that defendant's negligence caused her economic damages of $85, 804.94, representing medical expenses and wage loss; and noneconomic damages of $400, 000, representing pain and suffering. In her answer, defendant admitted that she had proceeded through a stop sign, resulting in a collision with other vehicles--including the vehicle in which plaintiff was a passenger--but denied all other allegations in plaintiff's complaint.

The case went to trial on April 26, 2011. At the close of evidence, on April 29, 2011, the trial court read instructions to the jury, including the instruction that "[a]t least the same nine jurors must agree on each answer unless the verdict form instructs you otherwise as to a particular question."[2] In addition, as relevant here, the verdict form that the court gave the jury stated as follows:

"For questions 1 and 2, at least the same nine jurors must agree on each of the questions that you answer.
"We, the jury, find:
"1. Was defendant Wheeler's negligence a cause of damage to ...

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