Kennedy v. Wheeler

518 December 11, 2014 No. 71

IN THE SUPREME COURT OF THE

STATE OF OREGON

Amber KENNEDY,

Petitioner on Review,

v.

Kelsey C. WHEELER,

Respondent on Review,

and

Katie HALL,

Defendant.

(CC CV080512; CA A149019; SC S061836)

En Banc

On review from the Court of Appeals.*

Argued and submitted September 16, 2014.

Mark McDougal, Kafoury & McDougal, Portland, argued

the cause and filed briefs for the petitioner on review.

Michael T. Stone, Brisbee & Stockton, LLC, Hillsboro,

argued the cause and filed the briefs for respondent on

review.

Kathryn H. Clarke, Portland, filed a brief for amicus curiae

Oregon Trial Lawyers Association.

WALTERS, J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is affirmed.

______________

*  Appeal from Yamhill County Circuit Court, Carroll J. Tichenor, Judge. 258

Or App 343, 309 P3d 196 (2013).

Cite as 356 Or 518 (2014) 519

Plaintiff petitioned for review of a Court of Appeals decision reversing the

trial court’s acceptance of the jury’s verdict. The Court of Appeals held that the

trial court’s jury instructions had established, as the law of the case, that the

same nine of twelve jurors must agree on the amounts of both economic and

noneconomic damages. Because the same nine jurors had not concurred on the

amounts of economic and noneconomic damages, the Court of Appeals reversed.

Held: The decision of the Court of Appeals is reversed. The trial court’s instruc-

tions to the jury did not establish the law of the case. Article VII (Amended),

section 5(7), of the Oregon Constitution and ORCP 59 G(2) both provide: “In civil

cases three-fourths of the jury may render a verdict.” When a jury of twelve ren-

ders a special verdict and makes written findings in response to questions posed

by the court, (1) at least nine jurors must agree on the answers that form a basis

for the trial court’s judgment; and (2) the votes of the jurors on those questions

must may not demonstrate a logical inconsistency. However, that requirement

does not mean that the same nine of twelve jurors must concur on the specific

amounts of economic and noneconomic damages. In this case, because all twelve

jurors agreed that defendant’s negligence had caused damages to plaintiff, and

at least nine jurors agreed on the sums of economic and noneconomic damages

awarded, their verdict did not demonstrate a logical inconsistency. The jury’s

verdict therefore met the requirements of Oregon law, and the trial court did not

err in accepting it.

The decision of the Court of Appeals is reversed. The judgment of the circuit

court is affirmed.

520 Kennedy v. Wheeler

WALTERS, J.

Oregon law requires that “[i]n civil cases three-

fourths of the jury may render a verdict.” Article VII

(Amended), section 5(7), of the Oregon Constitution; ORCP

59 G(2). In this negligence case, defendant admitted liabil-

ity, and a jury of twelve was asked to decide the issues of

causation and damages. The jury completed a special verdict

form and unanimously agreed that defendant had caused

damage to plaintiff. At least three-fourths of the jurors

(i.e., nine of twelve) also agreed to award plaintiff specific

amounts of economic and noneconomic damages. However,

the same nine jurors did not agree on the amounts of eco-

nomic and noneconomic damages awarded. The trial court

accepted the verdict and entered judgment for plaintiff, but

the Court of Appeals reversed. Kennedy v. Wheeler, 258 Or

App 343, 309 P3d 196 (2013). For the reasons that follow,

we conclude that the jury’s verdict met the requirements of

Oregon law. We reverse the decision of the Court of Appeals

and affirm the judgment of the trial court.

The facts relevant to the issue before us are proce-

dural and uncontested. Defendant drove through a stop sign

and collided with a car in which plaintiff was a passenger.1

Plaintiff filed a negligence action, which was tried to a jury

of twelve. The trial court instructed the jury that defendant

had “admitted liability so that the only issue to be decided

by you * * * is the amount of the damages to be awarded

to the plaintiff.” The court defined both economic and non-

economic damages for the jury and then instructed it that,

“[i]f you find that the plaintiff is entitled to recover economic

damages, you must award some noneconomic damages.” The

court told the jury that it should answer the questions on

the verdict form “according to the directions on the form and

all the instructions of the court.” The court explained that

“[a]t least the same nine jurors must agree on each answer

unless the verdict form instructs you otherwise as to a par-

ticular question.”

1

Plaintiff obtained judgment against two defendants, Wheeler and Hall.

Defendant Wheeler appealed; defendant Hall did not. Thus, when we refer to

defendant, we refer only to defendant Wheeler.

Cite as 356 Or 518 (2014) 521

As completed by the jury, the verdict form provided

as follows:

“For questions 1 and 2, at least the same nine jurors

must agree on each of the questions that you answer.

“We, the jury, find:

“1.  Was defendant Wheeler’s negligence a cause of

damage to plaintiff?

“ANSWER: 12 (Yes or No)

“If your answer to question 1 is ‘yes,’ proceed to question 2.

“If your answer to question 1 is ‘no,’ proceed to question 3.

“2.  What are plaintiff’s damages resulting from defen-

dant Wheeler’s negligence?

“ANSWER:  Economic Damages $65,386.48

Noneconomic Damages $300,000.”

The court clarified that the number “12” in response to

Question 1 indicated that all twelve jurors had agreed on

that response. The court then read the verdict form to the

parties and asked the presiding juror whether at least nine

jurors had answered Question 2; she answered, “yes, sir.”

Defendant asked that the jury be polled. When the court

asked each juror whether the vote of $65,386 in economic

damages was “your vote,” ten jurors said “yes.” Jurors one

and three said “no.” When the court asked whether the vote

of $300,000 was “your vote,” nine jurors said “yes”; jurors

two, three, and twelve said “no.”

The court indicated that it would accept the ver-

dict and thanked the jurors for their service. Defendant

then asked the court to wait, stating, “I don’t think there’s

nine agreeing, if I counted right.” The court stated that it

counted ten jurors agreeing on economic damages and nine

agreeing on noneconomic damages. The following colloquy

then ensued:

“Defendant:  I think there were only the same eight,

however.

“Court: Pardon?

522 Kennedy v. Wheeler

“Defendant:  I think there was [sic] only eight that were

in agreement.

“Court:  No, there was [sic] nine out of the twelve that

voted for the unanimous verdict.”

The trial court then discharged the jury. After the

jury was discharged, defendant took exception for the record.

At that point, defendant explained more fully:

“Defendant:  So there are on—looking for nine common

people on economic and noneconomic, I add that up as only

being eight people who agree.

“Court:  I agree with you that there were only eight that

answered yes to the same—for the economic and noneco-

nomic damages that answered the same way, and if your

theory is that the same nine had to vote on both, then that

will have to go up for the appeal because I don’t read the

statute that—

“Defendant:  That’s my objection, so—

“Court:  Okay. Anyway, I’ve accepted the verdict.”

Defendant then filed a written objection to entry of

judgment and a motion for new trial, arguing that the ver-

dict was invalid under Article VII (Amended), section 5(7),

of the Oregon Constitution and ORCP 59 G(2), both of which

provide that “[i]n civil cases three-fourths of the jury may

render a verdict.” After a hearing, the trial court denied the

motion based on two independent “findings.” First, the court

found that defendant had failed to make a timely objection

to the jury’s verdict. Second, the court found that the jurors’

vote on causation was unanimous, that at least nine of

those twelve jurors had agreed on the measure of economic

damages awarded, and that at least nine of those twelve

jurors had agreed on the measure of noneconomic damages

awarded. The court concluded that the law did not require

the same nine jurors to agree on the amounts of economic

and noneconomic damages awarded and that the jurors’ con-

currence on causation and damages was therefore sufficient.

The court then entered a general judgment providing that

trial of the case had resulted in a verdict for plaintiff against

defendant. The judgment included a monetary award for the

total of the economic and noneconomic damages that the

jury had awarded—$365,386.

Cite as 356 Or 518 (2014) 523

Defendant appealed, assigning error to the court’s

receipt of the verdict and entry of judgment.2 Defendant

argued, as she had below, that the verdict was unconsti-

tutional and violated ORCP 59 G(2), that the verdict was

therefore invalid, and that the judgment based on that ver-

dict must be reversed.

In her answering brief, plaintiff asserted both pro-

cedural and substantive arguments. She contended that

defendant had failed to object to the verdict with sufficient

clarity before the jury was dismissed and that the issue was

therefore unpreserved. She also argued that Oregon law

does not require that the same nine jurors agree on eco-

nomic and noneconomic damages. Defendant argued that

the court could and should reach the merits of the substan-

tive issue that the case presented.

The Court of Appeals rejected plaintiff’s preserva-

tion argument, but focused on a different procedural issue—

the “law of the case” doctrine—that the court concluded

resolved the case in defendant’s favor. The court reasoned as

follows:

“Here, the court instructed the jury that at least the

same nine jurors were required to agree on each answer

on the verdict form. As we have explained, that required

at least the same nine jurors to agree on the amounts of

both types of damages. When the court instructed the

jury, apparently without objection, that at least the same

nine jurors were required to agree on the amounts of both

types of damages, that instruction became the law of the

case. [Congdon v. Berg, 256 Or App 73, 80-81, 299 P3d

588 (2013)]; see also Fulton Ins. v. White Motor Corp., 261

Or 206, 223 n 5, 493 P2d 138 (1972) (when neither party

objected to jury instruction, it became the law of the case);

Mays v. Vejo, 224 Or App 426, 430-31, 198 P3d 943 (2008)

(same).

“Thus, we conclude that, in this case, at least the same

nine jurors were required to agree on each answer in

the verdict form, including the amounts of economic and

2

Defendant also assigned error to the court’s failure to sustain defendant’s

objection to the verdict, the court’s denial of defendant’s objection to entry of

judgment, and the court’s denial of defendant’s motion for new trial. Defendant’s

arguments in support of those assignments of error are duplicative.

524 Kennedy v. Wheeler

noneconomic damages. It is undisputed that only the same

eight jurors agreed on economic and noneconomic damages.

As a result, the verdict violated Article VII (Amended), sec-

tion 5(7), of the Oregon Constitution, and the court erred in

entering a general judgment based on that verdict.”

258 Or App at 349-50.

On review in this court, defendant characterizes

the Court of Appeals decision as a decision on subconstitu-

tional grounds and adopts its “law of the case” analysis.3

We begin with that procedural issue and then take up the

substantive question whether Oregon law requires that the

same nine jurors agree on the specific sums of economic and

noneconomic damages awarded.

I.  LAW OF THE CASE

This court has described the “law of the case” doc-

trine as precluding relitigation of an appellate court holding

after remand and on subsequent appeal:

“It is a general principle of law and one well recognized

in this state that when a ruling or decision has been once

made in a particular case by an appellate court, while it

may be overruled in other cases, it is binding and conclu-

sive both upon the inferior court in any further steps or

proceedings in the same litigation and upon the appellate

court itself in any subsequent appeal or other proceeding

for review.”

State v. Pratt, 316 Or 561, 569, 853 P2d 827 (1993) (quoting

Simmons v. Wash. F. N. Ins. Co., 140 Or 164, 166, 13 P2d

366 (1932)). The policies underlying that doctrine “essen-

tially parallel those served by the doctrines of stare decisis

and res judicata * * *, i.e., consistency of judicial decision,

putting an end to litigation of matters once determined, and

preserving the court’s prestige.” Koch v. So. Pac. Transp.

Co., 274 Or 499, 511-12, 547 P2d 589 (1976) (citing Allan D.

3

In that regard, the Court of Appeals decision in this case is somewhat

ambiguous. After concluding that the jury instructions established the “law of

the case,” the court went on to conclude that the verdict violated the Oregon

Constitution. 258 Or App at 350. Although the court may not, therefore, have

decided the case on subconstitutional grounds, the court’s failure to analyze the

meaning of the constitutional provision at issue makes the basis for its decision

somewhat unclear.

Cite as 356 Or 518 (2014) 525

Vestal, Law of the Case: Single-Suit Preclusion, 1967 Utah

L Rev 1 (1967)).

In the law review article cited in Koch, the author

explains that “law of the case” is a concept that may arise in

a number of different contexts “in which a ruling or decision

has been made in a case and the same legal problem arises

a second time in the same case.” Vestal, 1967 Utah L Rev at

4. In this case, defendant argues that that concept applies

not only to preclude relitigation of an appellate court deci-

sion on remand but also to preclude reexamination of a trial

court decision on a direct appeal. More specifically, in the

context of this case, defendant argues that, when instruct-

ing the jury, the trial court essentially ruled that the same

nine jurors must agree on the sums of economic and non-

economic damages awarded; accordingly, therefore, the trial

court was required to adhere to that legal determination

when the jury returned a verdict that was inconsistent with

that ruling. Defendant also contends that the trial court’s

decision precludes plaintiff from arguing for a different

interpretation of Oregon law on appeal and ties this court’s

interpretive hands as well. For the reasons that follow, we

hold that the “law of the case” doctrine does not apply in

these circumstances.

First, we are not persuaded that the trial court

actually made a decision that the same nine jurors must

agree on the amounts of economic and noneconomic dam-

ages awarded. The trial court instructed that the same

nine jurors must “agree on each answer” on the verdict

form. That form contained two questions. Question 1 asked

whether defendant’s negligence was a cause of damage to

plaintiff. Question 2 asked the amount of plaintiff’s dam-

ages and provided blank spaces for the jury to fill in the

amounts of economic and noneconomic damages. Read

together, one interpretation of the jury instructions and the

verdict form was that they required only that nine of the

twelve jurors who answered “yes” to Question 1 also agree

on and fill in the blanks in Question 2. Another interpreta-

tion, however—that adopted by the Court of Appeals and

argued here by defendant—is that the instructions and ver-

dict form required that at least the same nine jurors who

agreed to the sum specified for economic damages (if any)

526 Kennedy v. Wheeler

also agree to the sum specified for noneconomic damages

(if any). We conclude that that second interpretation is not

supported by the record.

In particular, after the court polled the jury, defen-

dant told the court that “I don’t think there’s nine agree-

ing, if I counted right,” and that “there were only the same

eight.” The court responded that “there was [sic] nine out

of the twelve that voted for the unanimous verdict” and

discharged the jury. Thus, it appears that, when the court

instructed the jury and received its verdict, it understood its

instructions to have the first of the two potential meanings

that we have posited—i.e., that nine of the twelve who voted

yes in response to Question 1 must also agree to Question 2.

It was only when defendant later stated her exception for the

record that the trial court understood defendant’s theory to

be that the same nine jurors had to agree on both types of

damages. But even then, the court did not understand defen-

dant to argue that that requirement arose from the court’s

instructions. The court told defendant that if that was her

theory, she would have to raise it on appeal, because the

court did not understand the “statute” to require such con-

currence. Defendant responded that that was her objection.

She did not tell the court that, regardless of what a statute,

the constitution, or the rules of civil procedure required, the

court’s instructions required the same nine jurors to concur

on both types of damages. From that record, we cannot con-

clude that, when the trial court instructed the jury, it made

a deliberate ruling or decision that the same nine jurors

must agree on the specific amount of economic and noneco-

nomic damages awarded.

Furthermore, even if the trial court had made an

initial determination that the same nine jurors must agree

on economic and noneconomic damages, the trial court was

not precluded from reconsidering that decision after the

jury’s deliberations had begun. A trial court may revise its

instructions to clarify them or to address more specifically

an issue that it previously had addressed more generally.

See State ex rel Harmon v. Blanding, 292 Or 752, 756, 644

P2d 1082 (1982) (“[A] court is not barred from changing a

ruling which it believes to be erroneous if neither party has

been prejudiced beyond simply ending up on the losing side

Cite as 356 Or 518 (2014) 527

of the ruling.”). Had defendant advised the trial court of

her interpretation of its instructions or had the trial court

understood that its instructions were subject to more than

one interpretation, the trial court would not have been

bound by its prior instructions. It could have revised them

and instructed the jury accordingly.4

Because the trial court’s instructions in this case

were susceptible to more than one interpretation and defen-

dant did not inform the court of her interpretation or give

the court or plaintiff an opportunity to consider whether

reinstruction was necessary or appropriate, those instruc-

tions do not constitute a ruling of the trial court that estab-

lishes the “law of the case.”

Just as importantly, the “law of the case” doctrine

does not make a trial court’s ruling binding on an appellate

court. Thompson v. Coughlin, 329 Or 630, 635 n 5, 997 P2d

191 (2000). In Thompson, the court observed that, although

a ruling from the Court of Appeals operated as “law of the

case” as to the trial court and the Court of Appeals, it did

not bind the Supreme Court, which never had addressed the

issue. See Vestal, 1967 Utah L Rev at 20 (“After all, appellate

courts exist to correct the errors made by inferior courts, so

that it would seem to be illogical to say that a court can

make a legal decision which is not subject to review.”).

That is not to say, of course, that every trial court

ruling is subject to appellate review. Defendant is correct

that, when a party fails to object to a jury instruction, that

party is foreclosed from appealing on the ground that the

instruction was erroneous. Rules of appellate procedure

preclude parties from raising issues on appeal that they

4

In fact, had the trial court recognized the jury verdict as inconsistent with

its instructions, and thus, perhaps, invalid, it may have been required to rein-

struct the jury and to send it out for further deliberations. ORCP 59 G(3) (if fewer

jurors than number required for verdict answer in the affirmative, jury shall be

sent out for further deliberations); ORCP 59 G(4) (if verdict is insufficient, it may

be corrected by jury under advice of court, or court may require jury to deliberate

further); see also Lewis v. Devils Lake Rock Crushing Co., 274 Or 293, 301-02, 545

P2d 1374 (1976) (when jury returned verdict awarding punitive but not general

damages, trial court was authorized to reinstruct jury and require further delib-

erations); Flansberg v. Paulson, 239 Or 610, 612, 399 P2d 356 (1965) (when jury

assessed special damages but not general damages, trial court correctly rejected

verdict and reinstructed jury).

528 Kennedy v. Wheeler

did not raise in the trial court. ORAP 5.45 (error will not

be considered on appeal unless claim was preserved in the

lower court); see also State v. Wyatt, 331 Or 335, 341, 15 P3d

22 (2000) (“Generally, an issue not preserved in the trial

court will not be considered on appeal.”); State ex rel Sam’s

Texaco & Towing v. Gallagher, 314 Or 652, 663, 842 P2d

383 (1992) (if party fails to object to jury instructions before

jury retires, objection is waived). That preservation rule is

not applicable here because plaintiff did not appeal from

the trial court judgment or assign error to the jury instruc-

tions that the trial court gave. Rather, it was defendant

who appealed from the trial court judgment. Consequently,

defendant has not relied and does not rely on ORAP 5.45 or

other preservation rules as a shield against an appeal by

plaintiff. Instead, defendant seeks to use the trial court’s

jury instructions as a sword to keep plaintiff from respond-

ing to defendant’s arguments about the reach of Oregon law

and thereby limit this court’s analysis of that issue.

To support her argument, defendant cites several

cases in which this court has used the term “law of the case”

in explaining its decisions. However, in those cases, the

court did not use the term “law of the case” for the purpose

that defendant urges. Rather, the court used the term to

describe a party’s obligation to preserve an issue for review,

a jury’s obligation to follow the instructions of the court, or

the court’s authority to presume that the jury has done so.

For instance, in Fulton Ins. v. White Motor Corp., 261 Or 206,

493 P2d 138 (1972), superseded on other grounds by Waddill

v. Anchor Hocking, Inc., 330 Or 376, 8 P3d 200 (2000), the

issue before the court was whether the trial court had erred

in instructing the jury, over the defendant’s objection, that

an administrative rule required drivers to stop and rem-

edy defective conditions in their vehicles. This court agreed

with the defendant that the trial court had erred in giving

the instruction, because there was no evidence in that case

that permitted the jury to find that the defendant knew or

could have known that his truck had developed a danger-

ous condition. Nevertheless, the court held that the error

was harmless. The trial court also had instructed the jury

that compliance with the administrative rule was excused

“if the violation was caused by circumstances beyond the

Cite as 356 Or 518 (2014) 529

operator’s control and if compliance was impossible.” Id. at

223. This court presumed that the jury had followed that

instruction and reasoned that, if the jury had found that

the defendant had violated the administrative rule, the jury

also must have found the violation to be excused: Under the

undisputed evidence, compliance with the rule was impos-

sible. Id. at 224.

In a footnote commenting on the wording of the

excuse instruction, the court used the term “law of the case.”

The court stated:

“This formulation of the rule was disapproved in Ainsworth

v. Deutschman, 251 Or 596, 600, 446 P2d 187 (1968), where

we said the following statement is preferable: ‘* * * a vio-

lation of a statute requiring adequate safety equipment is

excusable if the defect could not have been discovered by

the exercise of the highest degree of care.’ However, nei-

ther party complained of the trial court’s instruction, and

it become the law of the case.”

Id. at 223 n 5 (emphasis added). The court’s purpose in drop-

ping that footnote was to alert the bench and bar that, in

Ainsworth, the court had disapproved the excuse instruction

that the trial court had used in Fulton and that a different

formulation was preferable. However, the court explained,

its decision in Ainsworth did not affect the result that it

reached in Fulton. In Fulton, the parties had not objected to

the wording of the excuse instruction. Therefore, in conduct-

ing its harmless error analysis, this court could presume

that the jury had followed the excuse instruction as given.

In Tou Velle v. Farm Bureau Co-op. Exchange, 112

Or 476, 229 P 83 (1924), this court also used the term “law

of the case” to describe the effect of jury instructions on

jury deliberations. In that contract case, the trial court had

instructed the jury that if it found for the plaintiff, the plain-

tiff’s damages were $786.28 and the jury must fill in that

amount of damages on the verdict form. After the jury had

retired and deliberated, it sent out the following question:

“Would it be possible for the jury to make a compromise in

the matter of damages, or must we find the total amount

$786.28 named in the complaint for the plaintiff, or else

530 Kennedy v. Wheeler

nothing. Think a verdict could be reached on compromise,

but not otherwise.”

Id. at 478. The court answered: “Reach such verdict as you

think is right.” Id.

The jury then returned a verdict for one-half of the

amount of the uncontested damages. The defendant con-

tended that the compromise verdict was invalid and not sup-

ported by the evidence. The plaintiff responded that the party

against whom damages are awarded cannot contest their

insufficiency. This court began its discussion by observing:

“It is well settled that the instructions given by the court

to the jury, without objections or exceptions thereto, become

the law of the case, and it is consequently the legal duty of a

jury to comply with such instructions, and if they fail to do

so the court may set aside the verdict. * * * Accordingly it is

the general rule that where the court instructs the jury as

to a specific amount of a party’s liability, if he is found to be

liable at all, and the jury disregards the instructions and

brings in a verdict for a different amount, it is the duty of

the court to set aside the verdict and grant a new trial.”

Id. at 480 (emphasis added); accord Columbia Co. v. Ross

Island Co., 145 Or 96, 108-109, 25 P2d 911 (1933).

The court could have reached the results that it did

in Fulton and Tou Velle had it omitted reference to the “law of

the case” and relied on established preservation principles to

decide that a party may not obtain review of an instruction

to which the party has not objected, Sam’s Texaco, 314 Or at

663, or that an appellate court must presume that the jury

followed the trial court’s instructions, Purdy v. Deere and

Company, 355 Or 204, 227, 324 P3d 455 (2014) (so stating).5

5

Correctly understood, Wampler v. Sherwood, 281 Or 261, 574 P2d 319

(1978), another case on which defendant relies, is in accord. In Wampler, the

question was whether the trial court had erred in granting a directed verdict for

defendant because there was insufficient evidence to support plaintiff’s allega-

tion that a boundary had been established by “acquiescence” or “practical loca-

tion.” With the agreement of the parties, the trial court had defined those terms

for the jury. On appeal, the parties argued that the court should impose a differ-

ent standard from that which the parties had agreed at trial was appropriate.

This court stated that

“[a]lthough appellants in their brief on this appeal also cite other cases and

authorities and would state these requirements in a somewhat different

manner, we believe that the rule as stated in this instruction, to which both

Cite as 356 Or 518 (2014) 531

The term “law of the case” is best reserved for use

in the context in which a party seeks to relitigate an appel-

late decision. See Vestal, 1967 Utah L Rev at 21 (discussing

application of “law of the case” to preservation issues and

concluding that such usage “in reality stands apart from the

other situations” in which “law of the case” applies). Use of

the term to address other issues may confuse rather than

clarify.

In this case, we agree with the Court of Appeals

that defendant preserved the issue of the meaning of the

provision that “[i]n civil cases three-fourths of the jury may

render a verdict.”6 The “law of the case” doctrine does not

limit plaintiff’s argument or this court’s analysis of that

issue. Accordingly, we proceed to the substantive question

presented.

II.  JUROR CONCURRENCE

Article VII (Amended), section 5(7), and ORCP 59

G(2) both provide: “In civil cases three-fourths of the jury

may render a verdict.” Although the text of those provisions

is identical, defendant is correct that our analysis must

begin by looking to the meaning of the rule. State ex rel

Engweiler v. Felton, 350 Or 592, 617, 260 P3d 448 (2011)

(court’s practice is to address rule before turning to statute

or constitution). Thus, the initial question that we address

is the intent of the Council on Court Procedures (Council)

when it adopted ORCP 59 G(2). State v. Vanornum, 354 Or

614, 620, 317 P3d 889 (2013); A. G. v. Guitron, 351 Or 465,

479, 268 P3d 589 (2011); Waddill, 330 Or at 382 n 2. After

undertaking that analysis, we then assess whether the

Oregon Constitution imposes additional or more stringent

concurrence requirements.

parties agreed, became binding upon both of them as the ‘law of the case.’

Upon examination of the record, we also believe that there was evidence in

this case from which the jury could have properly found that the require-

ments of the rule as stated in that instruction were satisfied.”

Id. at 267 (emphasis added). We understand Wampler as resting on preservation

principles and deciding that the trial court did not err in evaluating the suffi-

ciency of the evidence under the standard the parties had agreed at trial.

6

Further discussion of the preservation issue would not be of benefit to the

bench or bar.

532 Kennedy v. Wheeler

To discern the intent of the Council, “we use an

analytical process that parallels the one we use to inter-

pret statutes—that is, we examine text, context, and, if

helpful, legislative history.” Vanornum, 354 Or at 620. The

text of ORCP 59 G(2) instructs that a jury’s verdict need

not be unanimous, but may be supported by a vote of three-

fourths of its members. Thus, for a jury of twelve, at least

nine jurors must vote in favor of the jury’s verdict. When a

verdict includes more than one finding, however, ORCP 59

G(2) is less explicit. It could mean that at least nine jurors

must vote in favor of each of the jury’s findings, or it could

mean that the same nine jurors must vote in favor of all or

some subset of those findings. As applied to the facts of this

case, the parties agree that ORCP 59 G(2) requires that at

least nine jurors agree on the answers to each of the ques-

tions posed by the court, including the amounts of economic

and noneconomic damages awarded. The parties disagree,

however, about whether that rule requires that the same

nine jurors agree on the amounts of those two types of dam-

ages. In considering which of those potential meanings the

Council intended, we turn to the rule’s context, including its

enactment history. Vanornum, 354 Or at 620 (so stating).

In 1978, the Council promulgated the Oregon Rules

of Civil Procedure, including ORCP 59 G(2).7 In adopting

ORCP 59 G(2), the Council incorporated verbatim the word-

ing of a 1953 statute—former ORS 17.355(1) (1977), repealed

by Or Laws 1979 ch 284, § 199. At the time that the 1953 stat-

ute was enacted, the Oregon Constitution also permitted, as

it does now, three-fourths of a jury to render a verdict.8

ORCP 59 G(2) does not define the term “verdict,”

but ORCP 61 addresses the issue, defining both “general”

and “special” verdicts.9 ORCP 61 A pertains to general ver-

dicts and provides:

7

ORCP 59 G(2) has remained unchanged since that time. The Council and

the legislature have amended other sections of ORCP 59, but ORCP 59 G(2) has

not been amended.

8

Article VII (Amended), section 5(7), was added to the constitution by initia-

tive petition in 1910. Or Laws 1911, p 8, § 5. See Ex parte Jack Wessens, 89 Or 587,

589, 175 P 73 (1918) (so stating).

9

ORCP 61 has remained unchanged since the Council promulgated it in

1978.

Cite as 356 Or 518 (2014) 533

“(1)  A general verdict is that by which the jury pro-

nounces generally upon all or any of the issues either in

favor of the plaintiff or defendant.

“(2)  When a general verdict is found in favor of a party

asserting a claim for the recovery of money, the jury shall

also assess the amount of recovery. A specific designation

by a jury that no amount of recovery shall be had complies

with this subsection.”

ORCP 61 B permits a court to require a jury to return only

a “special verdict in the form of a special written finding

upon each issue of fact,” and provides that if the court omits

an issue of fact raised by the pleadings or the evidence, the

court may make a finding.10

The Council derived the text of ORCP 61 from sev-

eral sources. In ORCP 61 A(1), defining the term “general

verdict,” the Council used wording identical to that used

in former ORS 17.405 (1977), repealed by Or Laws 1979,

ch 284, § 199, a statute that dated to the Deady Code.11

Similarly, in the first sentence of ORCP 61 A(2), requiring

that the jury assess the amount of recovery, the Council

incorporated the substance of former ORS 17.425 (1977),

repealed by Or Laws 1979 ch 284, § 199, also adapted from

the Deady Code.12 In the second sentence of ORCP 61 A(2),

providing that a jury may assess the amount of recovery by

designating no amount of recovery, the Council reversed this

court’s decision to the contrary in Fischer v. Howard, 201

Or 426, 458, 271 P2d 1059 (1954). See Fredric R. Merrill,

Oregon Rules of Civil Procedure: 1984 Handbook 140 (1984)

10

ORCP 61 B provides, in part:

“The court may require a jury to return only a special verdict in the form

of a special written finding upon each issue of fact. * * * The court shall give

to the jury such explanation and instruction concerning the matter thus sub-

mitted as may be necessary to enable the jury to make its findings upon each

issue. If in so doing the court omits any issue of fact raised by the pleadings

or by the evidence, each party waives the right to a trial by jury of the issue

so omitted unless before the jury retires such party demands its submission

to the jury. As to an issue omitted without such demand, the court may make

a finding; or, if it fails to do so, it shall be deemed to have made a finding in

accord with the judgment on the special verdict.”

11

General Laws of Oregon, Civ Code, ch II, title IV, § 210a, p 191 (Deady

1845-1864).

12

General Laws of Oregon, Civ Code, ch II, title IV, § 211, p 191 (Deady

1845-1864).

534 Kennedy v. Wheeler

(“The last sentence of 61 A(2) allows a jury properly to return

a verdict in favor of a plaintiff asserting a right to recover

damages in the amount of ‘zero’ damages. See Fischer v.

Howard[.]”). Finally, in ORCP 61 B the Council provided

more detailed treatment of special verdicts. Before the adop-

tion of ORCP 61 B, former ORS 17.405 provided: “A special

verdict is that by which the jury finds the facts only, leaving

the judgment to the court.”

From that context, it appears that the parties are cor-

rect that a fundamental requirement of ORCP 59 G(2) is that

at least three-fourths of the jury must vote in favor of each

of the jury’s written findings that form a basis for the trial

court’s judgment. Oregon law has long used the word “verdict”

to describe both a jury’s pronouncement in favor of one party

or the other and its assessment of recovery (a general verdict)

and a jury’s written findings (a special verdict). Thus, when a

jury’s verdict includes an assessment of a monetary recovery

under ORCP 61 A(2), at least nine jurors out of twelve must

agree on that assessment. Although a jury may be entitled to

award zero dollars in damages under ORCP 61 A(2), at least

three-fourths of the jurors must vote for that result.

In this case, that fundamental requirement was

satisfied. The jury’s verdict was a special verdict. The jury

did not make a pronouncement in favor of plaintiff; it made

factual findings. At least nine jurors voted in favor of each

of those findings, including the assessment of economic

and noneconomic damages, and the court entered a judg-

ment based on those findings. The judgment provided that

the trial had “resulted in a verdict for the plaintiff” against

defendant. The judgment also included, in a section labeled

“Money award,” a judgment for the total of the economic and

noneconomic damages assessed by the jury. Thus, at least

three-fourths of the jury voted in favor of each of the written

findings included in the jury’s special verdict that formed a

basis for the trial court’s judgment.

That does not, however, resolve the question on

which the parties disagree. Defendant argues that ORCP

59 G(2) imposes additional concurrence requirements and

urges us to consider our prior decisions construing Article

VII (Amended), section 5(7), as further context for our inter-

pretation of the rule. Because the texts of the two provisions

Cite as 356 Or 518 (2014) 535

are identical, we agree that such analysis is appropriate. See

State v. Shaw, 338 Or 586, 600, 113 P3d 898 (2005) (discuss-

ing prior interpretations of earlier versions of a provision);

Mastriano v. Board of Parole, 342 Or 684, 693, 159 P3d 1151

(2007) (“[W]e generally presume that the legislature enacts

statutes in light of existing judicial decisions that have a

direct bearing on those statutes.”).

We begin with Clark v. Strain, 212 Or 357, 319 P2d

940 (1958). In Clark, the jury rendered a general verdict “in

favor of the plaintiff and against the defendant in the sum of

[$10,000].” Id. at 360. Polling of the jurors revealed that only

eight jurors had agreed both that defendant was liable and

that plaintiff had incurred damages of $10,000. A ninth juror

had agreed that defendant was liable, but had disagreed on

the amount of damages awarded. The trial court announced

that the verdict was 8 to 4 and therefore invalid. The jurors

then corrected the court, explaining that nine jurors had

voted in favor of liability and nine also had voted in favor

of the damages awarded. However, one of the nine who had

voted for the award of damages had voted against liabil-

ity. Despite the fact that that juror’s decision was logically

inconsistent—in that a plaintiff is entitled to damages only

if a defendant is liable—the trial court accepted the verdict.

On review, the court noted that the jury had ren-

dered a general verdict and cited former ORS 17.405 for its

understanding that a general verdict is a “pronouncement

on all issues.” Id. at 364. The court reasoned that such a

verdict must be “a document reflecting the integration of

the minds of the jurors to such an extent that it, in fact,

constitutes a legal verdict” and that the trial court’s discus-

sion with the jurors demonstrated that the jurors’ verdict

did not meet that standard. Id. To comport with Article VII

(Amended), section 5(7), the court opined, the same legally

required number of jurors must agree on the issues neces-

sary to support a judgment for the plaintiff—in that case,

liability and damages. Id. at 359, 364. The court therefore

reversed the trial court’s judgment.

In reaching that conclusion, the court discussed a

California case, Earl v. Times-Mirror Co., 185 Cal 165, 196

P 57 (1921), in which the same nine jurors had not agreed

536 Kennedy v. Wheeler

on the amounts of compensatory and punitive damages

awarded.13 In Clark, the court distinguished Earl on the

basis that the jury’s decisions on the amounts of the two

types of damages were “independent.” Id. at 365.14

The court later applied Clark in considering the

validity of a jury’s special verdict and, in doing so, clarified

the reasoning on which Clark rested. In Munger v. S.I.A.C.,

243 Or 419, 414 P2d 328 (1966), the plaintiff had received

a final permanent partial disability award to compensate

him for a 35 percent loss of use of one arm as a result of a

1961 injury. The plaintiff later claimed that he was enti-

tled to an additional award for an aggravation of that injury.

The workers’ compensation board denied the plaintiff’s

claim, and, on the plaintiff’s appeal, the first question to

the jury was whether the plaintiff had suffered an aggra-

vation. Nine jurors answered “yes” to that question. A sub-

sequent question asked the extent of the loss of use that the

plaintiff suffered as a result of the 1961 injury. Nine jurors

answered that the plaintiff had suffered a 70 percent loss

of use. However, two of those nine jurors were among the

jurors who had answered that the plaintiff had suffered no

aggravation at all. The trial court refused to receive the ver-

dict and this court affirmed. This court reasoned that the

decision of the two jurors that the plaintiff had not suffered

an aggravation was inconsistent with their finding that the

plaintiff’s loss of use was greater than the 35 percent estab-

lished in 1961, id. at 422, and that, “[i]f the findings are

inconsistent, a verdict based on them is invalid.” Id. at 426.

The court cited Clark and explained that “[t]he reasons for

requiring a general verdict to be consistent are equally valid

as to special verdicts in which answers to more than one

question are necessary to establish liability.” Id. at 425. The

court concluded that

13

As we will discuss, California’s constitution also permits three-fourths of a

jury to render a verdict. See Cal Const, art I, § 16 (“[I]n a civil cause three-fourths

of the jury may render a verdict.”).

14

This court’s decision in Estate of Michelle Schwarz v. Philip Morris Inc., 348

Or 442, 235 P3d 668 (2010), is consistent with that reasoning. There, the court

distinguished Clark and held that the fact that one jury had decided defendant’s

liability and damages did not preclude retrial of the issue of punitive damages by a

different jury. Id. at 460 n 6. Therefore, the determination of whether to award puni-

tive damages was independent from the determination of liability and damages.

Cite as 356 Or 518 (2014) 537

“[a]n integrated verdict of the type presented here—one in

which the answer to a question is dependent on the answer

to a previous question and both are necessary to the deter-

mination of the final verdict—does not differ in principle

from a general verdict.”

Id. at 423-24.

We assume that when the Council adopted ORCP

59 G(2), it was aware of the court’s decisions in Clark and

Munger and intended that its rule be consistent with the

court’s interpretation of the identically worded constitu-

tional provision.15 Therefore, we understand ORCP 59 G(2)

to require that, when a jury of twelve renders a special ver-

dict and makes written findings in response to questions

posed by the court, (1) at least nine jurors must agree on the

answers that form a basis for the trial court’s judgment; and

(2) the votes of the jurors on those questions must be consis-

tent. That is, the jurors’ answers to questions necessary to a

judgment may not demonstrate a logical inconsistency.16

15

Although defendant agrees with that proposition, she interprets Clark

and Munger more broadly than we do and cites three additional cases for her

argument that Article VII, section 5(7), requires that same nine jurors agree on

“all issues determined by the verdict”: Freeman v. Wentworth & Irwin, 139 Or 1,

15-16, 7 P2d 796 (1932); Schultz v. Monterey, 232 Or 421, 424, 375 P2d 829 (1962);

and Sandford v. Chev. Div. Gen. Motors, 292 Or 590, 613, 642 P2d 624 (1982).

Defendant’s argument is not convincing. In Freeman, only eight jurors voted in

favor of the damages awarded and the court held that nine out of twelve jurors

are required to agree on damages as well as on liability. In Schultz, the court

confronted the same logical inconsistency that was apparent in Clark: at least

one juror who voted against liability also voted in favor of awarding damages. In

Sanford, the court held that the defendant was entitled to have the jurors polled

on their answers to each of the questions they had been asked. The court did not

consider the nature of those questions or whether concurrence on the answers to

those questions would be constitutionally required. Neither those three cases, nor

Clark or Munger, stand for the broader proposition that defendant urges.

16

Plaintiff may disagree with that conclusion. She argues that a party has

a right to have all of the empanelled jurors decide each issue presented and

that Oregon law should not be applied to deprive a party of that right, argu-

ing that a verdict in which nine jurors agreed, for example, on liability and a

different nine jurors agreed on the amount of damages is permissible under

Article VII (Amended), section 5(7). See Fritz v. Wright, 589 Pa 219, 237-39,

907 A2d 1038 (2006) (holding that Pennsylvania Constitution did not require

a “same-juror” rule); Resch v. Volkswagen of America, Inc., 36 Cal 3d 676, 682,

685 P2d 1178 (1984) (“[A] juror who dissented from a special verdict finding

negligence should not be disqualified from fully participating in the jury’s fur-

ther deliberations.”). We need not consider that argument given the result that

we reach in this case.

538 Kennedy v. Wheeler

Before we apply ORCP 59 G(2) to the facts of

this case, however, we must consider whether Article VII

(Amended), section 5(7), imposes additional or more stringent

concurrence requirements than does that rule. Although the

court construed that constitutional provision in Clark and

Munger, it did not fully analyze it under the rubric of Priest

v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992). In Priest, we

explained that in evaluating the meaning of a constitutional

provision, we begin with the “specific wording” of the provi-

sion, then discuss the “case law surrounding it,” and finally

consider the “historical circumstances” of its adoption.

As we observed in discussing the identical text of

ORCP 59G(2), the text of Article VII (Amended), section

5(7), does not explicitly impose a concurrence requirement

other than by declaring that a “verdict” may be reached by

the agreement of three-fourths of a jury. And, as we also

explained in discussing ORCP 59 G(2), the statutes that

were in existence in 1910 when the voters approved Article

VII (Amended), section 5(7), used the term “verdict” to

mean a jury’s written findings necessary to the court’s judg-

ment. Therefore, the constitutional framers likely intended

to impose a fundamental requirement that at least three-

fourths of the jury must vote in favor of each such finding.

Whether the framers intended to impose additional

concurrence requirements is not obvious from the text of

that provision. However, the voters’ pamphlet submitted

with the measure is instructive. The proponents of the mea-

sure stated that “[t]he purpose of this amendment is * * *

to prevent mistrials and hung juries, by allowing three-

fourths of a jury to render a verdict in civil cases.” Official

Voters’ Pamphlet, General Election, Nov 8, 1910, 176-77. The

proponents further noted that “[m]any states now allow a

majority of the jury in civil cases to render a verdict” and

that in such states “[u]sually three-fourths of the jury is

required to render a verdict.” Id. at 177. The proponents did

not specify which states had adopted such provisions, but

our research indicates that fourteen state constitutions per-

mitted civil verdicts by non-unanimous juries in 1910.17 We

17

See Ark Const, art 2, § 7; Cal Const, art I, § 16; Idaho Const, art I, § 7; Ky

Const, § 248; Minn Const of 1857, art I, § 4 (five-sixths); Miss Const, art 3, § 31;

Cite as 356 Or 518 (2014) 539

have not discovered an appellate decision in any of those

states that would have been available to the drafters of the

Oregon provision in 1910 and that interpreted such provi-

sions to require that the same jurors decide all issues neces-

sary to the verdict. From the available history, it therefore

is probable that the voters intended only to increase the effi-

ciency of the court system by permitting jurors to render

non-unanimous verdicts, not to impose complex concurrence

requirements.

When this court later decided Clark and Munger

and interpreted Article VII, section 5(7), to require that the

jurors’ findings be consistent, it based those decisions on the

need to have a jury’s verdict function as a coherent whole.

On further reflection and with greater attention to the his-

torical circumstances existing at the time that that provi-

sion was adopted, we are not persuaded that it imposes more

stringent concurrence requirements than those delineated

in Clark and Munger and intended by the Council when it

adopted ORCP 59 G(2).

The final step in our analysis is to apply ORCP

59 G(2) as we have construed it to the facts of this case.

Defendant argues that, even if ORCP 59 G(2) does not

require that the same nine of twelve jurors agree on all writ-

ten determinations that a jury makes, it does require such

concurrence as to the awards of economic and noneconomic

damages because “economic damages are not recoverable

in the absence of an award of noneconomic damages except

in very limited circumstances which are not present in this

case.” In support of that contention, defendant cites Wheeler

v. Huston, 288 Or 467, 605 P2d 1339 (1980).

Defendant is incorrect in her understanding of

Wheeler. Wheeler does not make an award of economic

damages dependent on an award of noneconomic damages.

Rather, Wheeler addresses the problem posed by verdicts

in which jurors who disagree about a defendant’s liability

arrive at an improper compromise and award only “special”

Mo Const of 1875, § 22(a) (1900); Mont Const of 1889, art II, § 23; Nev Const, art I,

§ 3; Okla Const, art 2, § 19; SD Const, art VI, § 6; Tex Const, art V, § 13; Utah

Const, art I, § 10; Wash Const, art 1, § 21.

540 Kennedy v. Wheeler

damages.18 In Wheeler, the court explained that awards of

only “special” damages had been deemed improper because

they suggested that the jury had “stubbornly adhered to

what was apparently a compromise verdict between some

who found liability and others who found none.” Id. at 471

(quoting Hall v. Cornett, 193 Or 634, 240 P2d 231 (1952)).

The court noted the difficulty of determining whether a

jury had reached such an improper compromise, but decided

not to abandon the effort. Instead, the court restated and

adhered to the following rule:

“If there is a question whether any general damages

were sustained, the jury may conclude that the plaintiff

suffered no general damages but did reasonably incur

wage loss and/or medical expense. Such verdicts are valid

and include cases in which (a) the plaintiff’s evidence of

injury is subjective, (b) there is evidence that the plaintiff’s

injuries for which general damages are claimed were not

caused by the accident, and (c) the objective evidence of a

substantial injury sustained by plaintiff is controverted by

other competent evidence, or could be disbelieved by the

trier of fact.”

Id. at 479 (emphasis in original).

Here, plaintiff reiterates the criticism leveled at the

rule discussed in Wheeler and argues that, because damages

are no longer defined as “special” or “general,” but instead are

defined as “economic” and “noneconomic,”19 Wheeler does not

represent current law and should be disavowed. However,

even if Wheeler is still good law, the improper compromise

18

In Hoskins v. Scott, 52 Or 271, 278, 96 P 1112 (1908), this court defined

“general” and “special” damages:

“Damages are either general or special. General, when they are such

as the law implies or presumes to have accrued from the wrong complained

of. Special, when they are such as really took place and are not implied by

law, and are superadded to general damages arising from an act injurious

in itself. * * * The former, being the direct and immediate result of the act

complained of, and necessarily arising out of it, can be recovered under the

general allegation of damages, without stating their particular nature, or

how they arose, because the law implies or presumes such damages to follow

the breach of the contract or the act or wrong complained of.”

(Internal citations omitted).

19

See ORS 31.710 (defining economic and noneconomic damages). That stat-

ute was enacted in 1987 and renumbered in 2003. See Or Laws 1987, ch 774, § 6

(enacting statute as former ORS 18.560).

Cite as 356 Or 518 (2014) 541

that it prohibits is neither evident in this case nor a basis for

imposing the juror concurrence requirement that defendant

urges.

In this case, defendant admitted liability and all

twelve jurors determined that defendant’s negligence was a

cause of some damage to plaintiff. The remaining issue for

the jury’s determination was the specific amounts of the eco-

nomic and noneconomic damages plaintiff had suffered. We

know, therefore, that the concern addressed in Wheeler—

that jurors might have agreed to special or economic dam-

ages in spite of a decision that defendant was not liable—is

not presented.

Further, we presume that each juror who voted to

award plaintiff economic damages also decided that plaintiff

was entitled to at least some amount of noneconomic dam-

ages. The trial court instructed the jury that “[i]f you find

that the plaintiff is entitled to recover economic damages,

you must award some noneconomic damages,” and we must

presume that the jurors followed that instruction in answer-

ing the first question on the special jury verdict form. See

Purdy, 355 Or at 227 (requiring court to presume that jury

followed trial court’s instructions). Thus, we further pre-

sume that the jurors who disagreed with the noneconomic

damages awarded disagreed only about the particular

amount and not the fact of those damages. The jury verdict

in this case does not demonstrate a compromise verdict in

violation of the rule discussed in Wheeler.

Moreover, ORCP 59 G(2) addresses a different con-

cern than that which was the subject of the court’s deci-

sion in Wheeler. As we have explained, in a case in which

a jury enters a special verdict, ORCP 59 G(2) requires that

three-fourths of the jury agree on each of its written find-

ings and that those findings be logically consistent. Under

Clark, when the same nine out of twelve jurors do not agree

on liability and damages their findings do not meet that

standard. The same logical inconsistency is not apparent,

however, when the same nine out of twelve jurors do not

agree on the specific amounts of economic and noneconomic

damages awarded. The law does not require a jury to award

any specific amount of economic or noneconomic damages

542 Kennedy v. Wheeler

as a prerequisite to entry of a valid judgment for a plain-

tiff. ORCP 61 A(2). And logic does not require a connection

between the amount of economic damages and the amount

of noneconomic damages awarded.20

In this case, at least nine jurors agreed on the sums

of economic and noneconomic damages awarded and their

verdict does not demonstrate a logical inconsistency simi-

lar to those that rendered the verdicts in Clark and Munger

invalid. The jury’s verdict did not violate ORCP 59 G(2) or

the Oregon Constitution and the trial court was correct to

accept it.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is affirmed.

20

Of course, awards of economic and noneconomic damages may be factually

related, in that a greater award of general damages often results in a greater

award of noneconomic damages. However, the legal question is one of logical

inconsistency, and, at least in this case, the specific amounts of economic and

noneconomic damages awarded do not reveal logical inconsistency.