Or. Rev. Stat. § 31.600(2) requires that the trier of fact compare the fault of the claimant with the fault of any party against whom recovery is sought, the fault of third party defendants who are liable in tort to the claimant, and the fault of any person with whom the claimant has settled. Or. Rev. Stat. § 31.605 provides that when requested by any party the trier of fact shall answer special questions indicating the degree of fault of each person specified in § 31.600(2). Because the comparative fault statutes require that comparison, all evidence that may bear on that comparison is potentially relevant. That does not answer the question, however, whether a defendant that intends to rely on a specification of negligence not pleaded by a plaintiff must affirmatively plead those facts to make them admissible.
The Circuit Court granted petitioner father's motion in limine to exclude evidence that respondent driver was intoxicated at the time of the collision. Respondent trucking company was found to be 22 percent at fault and the driver 78 percent at fault. The Oregon Court of Appeals reversed, concluding that the trial court erred in excluding the evidence of the driver's intoxication. The father petitioned for review.
Had defendant company proferred evidence that showed that, because the driver was intoxicated, she inevitably would have killed decedent, even if his pickup had not been stationary.
The supreme court noted that the company did not proffer evidence that showed that, because the driver was intoxicated, she inevitably would have killed decedent, even if his pickup had not been stationary. Because the fact of the driver's intoxication would not have made her conduct more significant or the company's conduct less significant in the causation analysis, it was not relevant to that issue. The company did not allege in its cross-claim that it had paid more than its proportional share of liability or sought a money judgment against the driver. It should have included those allegations in its answer as an affirmative defense. The cross-claim that the company proffered fulfilled the function of an affirmative defense,Or. R. Civ. P. 19. The defect in designating the pleading as a cross-claim rather than an affirmative defense did not affect the father's substantial rights. However, the evidence of the driver's intoxication was not relevant on the issues of causation, liability, or damages.
The judgment was reversed and remanded to the circuit court for a new trial limited to the degree of fault of each defendant expressed as a percentage of the total fault attributable to each defendant.