Scott v. Kesselring

                                       12

      Argued and submitted September 27, 2018, reversed and remanded
                            December 16, 2020


                        Michelle SCOTT,
                      Plaintiff-Respondent,
                                v.
                     Leslie KESSELRING
              and Kesselring Communications, LLC,
                     Defendants-Appellants.
                Clackamas County Circuit Court
                     CV15110065; A163709
                                  

    In this personal injury action resulting from a rear-end car accident, defendant appeals from a judgment awarding damages to plaintiff. Defendant admitted that she negligently caused the car accident that injured plaintiff; however,
defendant disputed the amount of damages claimed. Before trial, defendant
sought to exclude from the jury’s consideration evidence of the precise reason
that she was negligent in her driving—that she was looking at her cellphone in
the moments before the accident. The trial court denied that motion. Held: The
challenged evidence was not relevant to an issue before the jury and, thus, the
trial court erred in admitting it. That error requires reversal because it affected
defendant’s substantial rights.
    Reversed and remanded.



    Douglas V. Van Dyk, Judge.
   Julie A. Smith argued the cause for appellants. Also on
the briefs was Cosgrave Vergeer Kester LLP.
   Travis Eiva argued the cause and filed the briefs for
respondent.
  Before Ortega, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.*
    Ortega, P. J.
    Reversed and remanded.
    Egan, C. J., dissenting.


______________
   * Egan, C. J., vice Garrett, J. pro tempore.
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           ORTEGA, P. J.
         In this personal injury action resulting from a
rear-end car accident, defendant1 appeals from a judgment awarding plaintiff $41,000 in economic damages and
$200,000 in noneconomic damages. Defendant admitted
that she negligently caused the car accident that injured
plaintiff; however, defendant disputed the amount of damages claimed. Before trial, defendant sought to exclude from
the jury’s consideration evidence of the precise reason that
she was negligent in her driving—that she was looking at
her cellphone in the moments before the accident. The trial
court denied that motion, concluding that the evidence was
relevant to the issue of whether plaintiff’s injuries were
reasonably foreseeable, and defendant assigns error to that
denial. We conclude that the challenged evidence was not
relevant to an issue before the jury and, thus, that the trial
court erred in admitting it. We also conclude that the error
affected defendant’s substantial rights. Accordingly, we
reverse and remand.2 Based on that disposition, we do not
address defendant’s other assignments of error.
        We first set out the undisputed underlying facts and
the record developed at the hearing on defendant’s motion in
limine. We discuss additional facts that pertain to whether

     1
       Defendant Kesselring Communications, LLC, is also party to this appeal,
having admitted that it was vicariously liable for defendant Kesselring’s fault in
causing the accident. For ease of reading, we refer jointly to both defendants as
“defendant.”
     2
       Plaintiff raises a conditional cross-assignment of error on appeal that we
reject as an impermissible cross-assignment, because it seeks reversal of the
court’s dismissal of her claim for punitive damages, which is more than seeking
a reversal of an intermediate ruling of the court. See Truck Insurance Exchange
v. Friend, 

, 528 n 2, 

 (2012), rev den, 

 (2013)
(a party could not raise by cross-assignment a challenge to a dismissal of one of
his counterclaims because it sought modification of and reversal of part of the
judgment and not reversal of an intermediate ruling); Samuel v. King, 

, 

, rev den, 

 (2003) (cross-appeal is necessary
where a party’s argument, if successful, “would yield relief different from that
afforded under the trial court’s judgment”); see also DeMendoza v. Huffman, 

, 

 (2002) (punitive damages are not a “remedy” under
Article I, section 10, of the Oregon Constitution, but a way of “vindicating society’s interest in punishing and deterring especially egregious conduct”). As a
result, plaintiff was required to bring a cross-appeal to challenge the trial court’s
ruling, and we cannot address plaintiff’s argument through a cross-assignment
of error.
14                                            Scott v. Kesselring

the trial court’s error affected defendant’s substantial rights
in the analysis of that issue below.
         Defendant and plaintiff were involved in a car accident on a freeway when defendant rear-ended plaintiff. At
the time of the accident, it was raining, and the road was
slick. Just before the accident, defendant looked at her cellphone to find a contact number for a client. Plaintiff alleged
that, as a result of the accident, she suffered neck, back,
shoulder, and leg injuries, and that she suffered from post-traumatic stress and anxiety that led her to attempt suicide less than six months after the accident. She sought
$97,505 in past medical expenses, $50,000 in future medical
expenses, and $350,000 in noneconomic damages. Plaintiff
also moved to amend her complaint to add a claim for punitive damages, as permitted by ORS 31.752, which the trial
court allowed.
         Defendant admitted that she rear-ended plaintiff
and that immediately before the accident she was looking
at her cellphone. She also admitted that she was responsible
for causing the accident. However, she denied that she was
responsible “for causing the nature and extent of plaintiff’s
alleged injuries and damages.” Specifically, defendant contested the extent of plaintiff’s injuries and argued that it
was not foreseeable that plaintiff would attempt suicide following the accident.
         Before trial, defendant moved the court to exclude
punitive damages from the jury’s consideration and, if that
motion were granted, to also exclude from the jury’s consideration evidence that defendant had been using her cellphone at the time of the accident.
        The court granted defendant’s motion to exclude
punitive damages. In considering the motion, the court
engaged plaintiff’s counsel in the following colloquy:
        “THE COURT: … And what I understand the evidence to be … is that the defendant was … monkeying
     with her cellphone. She was looking down, she was looking for a phone number, she was looking for a number to
     call …, and because she was looking down, boom, she hit
     the person from behind. And I don’t expect the evidence to
     show anything any different than basically that.
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       “But—am I correct?
      “[PLAINTIFF]: Other than the circumstances under
   which she did this, which was driving on a freeway at freeway speeds, in a very wet and rainy day, where the roads
   were slick, things she knew about, and she also knew that
   there was another car crash directly north of where she was
   driving that she saw before she reached for her telephone.
       “…
      “THE COURT: Okay. So against that backdrop of facts
   as it’s represented to me by the plaintiff, could a reasonable jury conclude that that is a reckless and outrageous
   indifference to a highly unreasonable risk of harm with a
   conscious indifference to the health[,] safety and welfare of
   others.”
Based on those facts, the court granted defendant’s motion
to exclude punitive damages, concluding that a reasonable
juror could not find that defendant acted with the requisite
mental state.3
         Based on that ruling, defendant asked the court
to consider its motion to exclude any evidence or mention
(including in voir dire) that she was using her cellphone in
the moments before she rear-ended plaintiff’s car. Defendant
argued that, without punitive damages, the evidence was
not relevant to any issue before the jury; because she had
already admitted fault for the accident, what she was doing
at the time of the accident was immaterial. Defendant also
argued that, even if the evidence was relevant, it should be
excluded under OEC 403, because its probative value was
substantially outweighed by unfair prejudice due to “the
inflammatory nature of her looking at a cellphone and what
certain jurors may think about that.”
         Plaintiff countered that why the crash occurred
was relevant because defendant was not admitting anything
other than her negligence in causing the collision. The court
rejected that line of thought, but then offered the following
argument for plaintiff:
    3
      Under ORS 31.730(1), for a person to be liable for punitive damages, that
person must have either acted with “malice” or with a “reckless and outrageous
indifference to a highly unreasonable risk of harm and … with a conscious
indifference to the health, safety and welfare of others.”
16                                              Scott v. Kesselring

         “But you alluded though perhaps causation or foreseeability of damages or you know, maybe stretching the scope
     of damages, might be affected by something having to do
     with the manner of the accident occurring.
        “[PLAINTIFF]: Correct.
        “THE COURT: So let’s talk about those, you know,
     foreseeability, for example, with a cellphone, could have a
     really bad accident. Cellphone use could result in a really
     bad accident on the freeway so the scope of foreseeability,
     you know, might even extend to post-traumatic stress,
     might even extend that far. If you hit somebody hard enough
     going that fast and you know what, you drive around distracted, there’s a degree of foreseeability about the scope of
     harm. Is that what your argument would be?”
         Defendant responded by asserting again that,
because she had admitted that “she failed to exercise the care
of a reasonably prudent person under the circumstances[,]
… any evidence of what she was doing, how she breached
that standard, is irrelevant.” Defendant further articulated
her OEC 403 challenge that, “due to all the attention in the
media, and people’s perceptions of cellphone use while driving, the fact that she looked down at her cellphone could be
inflammatory, so I think the probative value of that type of
evidence is substantially outweighed by the risk of unfair
prejudice.”
         The court then asked plaintiff how the type of risk
undertaken could correlate with the foreseeability of loss.
Plaintiff responded that it was relevant because not saying
how defendant was negligent “takes away the emphasis of,
you know, this wasn’t a bump from behind, a simple mistake, this was a conscious choice. Here was a choice by the
defendant to stop behaving like a reasonable driver and to
be distracted intentionally.”
         During further colloquy with the parties, defendant
clarified that she was contesting foreseeability of the extent
of plaintiff’s claimed injuries and her suicide attempt, and
she noted that she would testify to driving 45 miles per hour
at the time of the accident, which was more slowly than
the speed limit, and thus there was conflicting evidence of
speed. Defendant also pointed out that plaintiff did not even
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learn until defendant’s deposition that defendant had been
using her cellphone at the time of the collision, so the fact
of defendant’s cellphone use did not make plaintiff’s post-traumatic stress more or less foreseeable.
         The court then denied defendant’s motion, explaining its ruling as follows:
       “I do consider that the degree of risk that … is undertaken bears on the scope of harms that might reasonably
   be anticipated. I’ve alluded to that with several of my
   remarks. And I think that is a circumstance here that is
   germane to that consideration. The jury is being asked to
   decide what might be within the scope of trauma that a
   person might experience as a result of a certain category of
   negligent conduct, then the nature of that conduct becomes
   a fact of consequence and is relevant.
      “And the question then remains whether the probative
   value is substantially outweighed by the danger of unfair
   prejudice.
      “In some respects, I think this issue that we’re talking
   about, the foreseeability of such things as post-traumatic
   stress or a suicide event, are important in this case, it’s a
   big deal in this case. It may seem remote in terms—if you
   analyze it only in terms of foreseeability. And the defense
   is well-positioned to argue that it’s not something that a
   person would reasonably anticipate.
      “But given the risk that was undertaken, and that a
   reasonable juror could consider that that risk was a high
   one it seems to me that post-traumatic stress associated
   with a high risk is something that a person could reasonably anticipate.
      “…
       “So I’m going to allow the [voir dire] questions around
   cellphone use. And I anticipate allowing some portion of
   the evidence to describe—some part of the evidence to
   describe that a cellphone—that there was monkeying with
   the cellphone, as the backdrop of the circumstances of the
   accident. Not to dwell on it, …—I mean, negligence is
   admitted.
      “So I don’t—I want to be mindful that there’s a point
   at which these examinations could be calculated only to
18                                            Scott v. Kesselring

     inflame, and probative value at a point may be substantially outweighed by the danger of unfair prejudice.
        “But I anticipate that the circumstances of the accident
     will be admissible given the foreseeability of the specific
     types of harm, post-traumatic stress in particular.”
         At the conclusion of the trial, the jury awarded
plaintiff $41,000 in economic damages and $200,000 in noneconomic damages. Defendant appeals the judgment reflecting those awards and assigns error to the trial court’s ruling
on its motion in limine to exclude evidence of her cellphone
use at the time of the accident, arguing that the trial court
erred under both OEC 401 and OEC 403.
        We review the trial court’s relevancy determination under OEC 401 for legal error and its determination
under OEC 403 for an abuse of discretion. State v. Titus,

, 

 (1999). Because defendant
challenges a pretrial ruling, we evaluate that ruling “on the
basis of the same record that the trial court relied on in
making the challenged ruling.” State v. Pitt, 

, 

 (2012). As explained below, we conclude
that the trial court erred under OEC 401, because the challenged evidence was not relevant to an issue in the trial.
Thus, we do not address whether the court abused its discretion under OEC 403.
         Under OEC 401, evidence is relevant if it has “any
tendency to make the existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” That is
“a relatively low threshold of relevance.” Pitt, 

n 5. “OEC 401 requires a ‘rational relationship’ between the
evidence offered ‘and the substantive issues properly provable in the case.’ ” State v. Turnidge (S059155), 

, 

 (2016), cert den, ___ US ___, 

(2017) (quoting State v. Guzek, 

, 

(1995)). Plaintiff, as the proponent of the evidence at issue,
had the burden to demonstrate its relevance. Pitt, 

.
        The basis of the trial court’s ruling was that the evidence that defendant was using her cellphone was relevant
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because the “degree of risk” undertaken is relevant to “the
scope of harms that might reasonably be anticipated.” The
trial court further stated that, if “[t]he jury is being asked
to decide what might be within the scope of trauma that a
person might experience as a result of a certain category of
negligent conduct, then the nature of that conduct becomes
a fact of consequence and is relevant.” On appeal, plaintiff defends the trial court’s ruling.4 Thus, we must decide
whether the precise reason that defendant was negligent—
that she was using her cellphone moments before colliding
with plaintiff’s car—is relevant to the question of whether
“the particular harm that befell” plaintiff—physical and
emotional trauma—was foreseeable. We conclude that it is
not.
         There is no logical connection between the evidence
that defendant was using her cellphone in the moments
before the accident and the foreseeability of plaintiff’s
injuries, in particular her post-traumatic stress and suicide attempt. Plaintiff did not know that defendant was
using her cellphone until well after the collision occurred.
Thus, there was no logical connection presented by plaintiff between the fact of defendant’s cellphone use and the
type or degree of emotional trauma or stress that plaintiff
experienced because of the accident; that is, plaintiff did not

     4
       Plaintiff also argues that the cellphone evidence was “relevant to prove
the severity of the collision … and the added emotional distress to plaintiff
upon learning of the reckless behavior of defendant to use the phone[.]” We reject
those arguments, because plaintiff did not assert either as a basis for relevance
below, the court did not articulate either as a basis for its ruling, and plaintiff
does not request that we exercise our discretion to affirm the trial court under
our “right for the wrong reason” principles. However, because the dissent takes
up arguments presented by plaintiff with regard to the severity of the collision—
specifically, the arguments that the evidence is relevant because it shows that
defendant was looking at her cellphone and was not aware of her speed and did
not brake before she hit plaintiff—we do address them as necessary to respond to
the dissent.
     Additionally, plaintiff argues that the trial court was “right for the wrong
reason,” because the cell phone evidence was relevant to prove plaintiff’s punitive
damages claim and the trial court erred in taking punitive damages from the
jury’s consideration. We reject that argument as improper, because it does not
provide a basis on which to affirm the trial court. See Outdoor Media Dimensions
Inc v. State of Oregon, 

, 

 (2001) (“[T]he ‘right for the
wrong reason’ principle permits a reviewing court—as a matter of discretion—to
affirm the ruling of a lower court on an alternative basis when certain conditions
are met.” (Emphasis added.)).
20                                         Scott v. Kesselring

experience any different trauma because she later learned
that the driver who hit her was using a cellphone.

         There also is no logical connection between defendant’s cellphone use and whether plaintiff’s claimed injuries
were a foreseeable consequence of the accident. Defendant
could have been distracted by any one of numerous reasons;
the fact that the thing that distracted her was her cellphone
does not make it more or less probable that plaintiff’s injuries would be a foreseeable consequence. That is, defendant’s
cellphone use is not relevant because whether or not the
injuries to plaintiff are foreseeable is due to the nature of
the accident itself and not that defendant was using her cellphone when the accident occurred. Plaintiff did not articulate, and the trial court’s ruling did not contain, any logical
connection between defendant’s cellphone use and an issue
that was before the jury—whether plaintiff’s injuries were
a foreseeable consequence of the accident. Thus, the trial
court erred in admitting the evidence of defendant’s cellphone use and allowing plaintiff to bring it up during voir
dire and throughout the trial.

         The dissent argues that the evidence of defendant’s
cellphone use moments before the collision is relevant to the
disputed speed that defendant was traveling and whether
she braked before the collision, and that the speed of travel
and absence of braking is relevant to whether plaintiff’s
injuries were foreseeable. Even setting aside for the moment
that that theory of relevance was not asserted below, see 308
Or App at 19 n 4, we reject it on its merits. First, the dissent
asserts that the evidence was relevant with regard to defendant’s credibility because it casts doubt on her speed estimate and suggests that she probably did not brake before the
accident. We are mindful, however, that defendant did not
dispute the severity of the crash; defense counsel confirmed
defendant’s admission to traveling 45 miles per hour at the
time of the collision. At no point in the pretrial hearing—
the only record before us on this issue—did plaintiff suggest
that there was any dispute about the severity of the crash or
that defendant had claimed that she was not looking down
or had braked. More importantly, plaintiff did not seek to
admit the evidence as relevant to defendant’s credibility.
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Rather, plaintiff treated the evidence as directly relevant to
the damages deserving of compensation.

         Second, even assuming a factual dispute about the
severity of the crash as posited by the dissent, the record
still lacks a logical connection between that premise and
the foreseeability of plaintiff’s injuries. The only reasonable
inference that can be drawn from the evidence that defendant was looking at her cellphone and the severity of the
crash is that she was uncertain of her precise speed before
she hit (keeping in mind that plaintiff was not seeking to
introduce the evidence as relevant to defendant’s credibility). That inference alone has no logical connection to the
foreseeability of plaintiff’s injuries. What cannot be reasonably inferred from the cellphone evidence is each link in the
chain of impermissible inferences that is required to get
from that one reasonable inference to some kind of logical
connection to foreseeability. See, e.g., State v. Macnab, 

, 

 (2008) (“[W]e have described
an impermissible inference as one that ‘requires too great
an inferential leap,’ State v. Lopez–Medina, 

, 

 (1996), and one that requires a ‘stacking of inferences’ that is ‘too speculative.’ State v. Piazza, 

, 

 (2000).”). Those impermissible
inferences are, at a minimum, that, because defendant was
uncertain of her speed, she therefore was traveling faster
than 45 miles per hour; rear-end car collisions at speeds
faster than that cause more severe injuries and stress; and
therefore, plaintiff’s injuries (including her post-traumatic
stress) were a more probable consequence of the collision
because defendant was looking at her cellphone. Because
those necessary inferences cannot reasonably be made from
the evidence that defendant was using her cellphone in the
moments before the accident—and plaintiff offered no argument or other evidence at the pretrial hearing that could
complete the chain of reasonable inferences—the cellphone
evidence is not relevant to the foreseeability of plaintiff’s
claimed injuries in the manner posited by the dissent.

        Our inquiry does not end there; we cannot reverse
on that evidentiary error unless the error substantially
affected defendant’s rights. Jett v. Ford Motor Co., 

                                         Scott v. Kesselring

493, 497, 

 (2003); ORS 19.415(2) (“No judgment
shall be reversed or modified except for error substantially
affecting the rights of a party.”); OEC 103(1) (“Error may not
be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]”).
“Evidentiary errors substantially affect a party’s rights
and, therefore, require reversal ‘when the error has some
likelihood of affecting the jury’s verdict.’ ” Yoshida’s Inc. v.
Dunn Carney Allen Higgins & Tongue, 

,

 (2015), rev den, 

 (2016) (quoting Dew
v. Bay Area Health District, 

, 

(2012)); see also Purdy v. Deere and Co., 

, 

 (2014) (“If … there is some likelihood that the jury
reached a legally erroneous result, a party has established
that the instructional error substantially affected its rights
within the meaning of ORS 19.415(2).”).

         Our review of the record persuades us that there
is “some likelihood” that the admission of the cellphone
evidence affected the jury’s determination of plaintiff’s
damages. Beginning with voir dire, plaintiff asked potential jurors how they felt about drivers who use cellphones
while driving, and several potential jurors voiced opinions
about how unsafe such conduct was. During opening statements, direct examination of defendant, and direct examination of plaintiff, plaintiff brought up and emphasized
that defendant was on her cellphone at the time of the accident. Particularly during questioning of defendant, plaintiff
asked many questions about defendant’s use of her cellphone
and whether it caused the collision.

         During closing arguments, plaintiff again placed
emphasis on defendant’s cellphone use, stating, “Is it reasonably foreseeable that you could kill someone on [a] highway doing what [defendant] did? Absolutely it is.” and that
“maybe technically she wasn’t breaking the law [by using
her cellphone]. But was she breaking the law of common
sense and human nature and reasonable responsibility for
everyone driving on the highway? And that’s not even a
question that needs to get answered.” Plaintiff also argued
that defendant’s cellphone use while driving was a reason to
compensate plaintiff:
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   “I wrote it down [what defense counsel said], ‘The defendant’s taken responsibility for touching her cellphone.’
   My response to that is, ‘Big deal. Taking responsibility
   for touching the phone—for touching your cellphone does
   nothing for [plaintiff].’ The defendant needs to be responsible for all the harm that she caused. That’s what taking
   responsibility means, right? That’s what taking responsibility means. If we taught our kids about responsibility, we
   teach them to take responsibility for everything that they
   caused, not just for the act of touching their cellphone.
       “And she—and through the course of this I got the
   impression, and maybe you did as well, she’s sorry that she
   did it, but she’s sorry that she did it not because of the harm
   she caused. She’s sorry that she did it because it caused
   her to be here, and she’s sorry that she did it because of
   how it might make her look. … She’s not sorry that she
   hurt [plaintiff]. She’s sorry that she ended up in this situation by touching her cellphone. And that’s a very different
   thing.
      “…
       “Now, [defense counsel] gets a chance to tell—on behalf
   of her client to step up and tell you how defendant is finally
   going to accept responsibility for all the harm that she
   caused when she stopped looking where she was driving
   and picked up her phone, to unlock it and search for a contact at a freeway speed on a wet and rainy highway in a car
   that she wasn’t familiar[,] with another car crash right in
   front of her. So it’s her turn to tell you how the defendant’s
   finally going to accept responsibility for that.”
The evidence that defendant used her cellphone had the
potential to inflame the sympathies of the jury for plaintiff;
indeed, plaintiff sought to use the evidence to make that
very appeal to influence the jury’s damages determination—
it was a central theme in plaintiff’s closing arguments.
         In that light, and given the large noneconomic
damage award by the jury relative to its economic damages
award, there is some likelihood that the evidence had an
effect on the jury’s verdict, and, thus, the court’s error in
admitting that evidence substantially affected defendant’s
rights. Accordingly, we reverse and remand.
         Reversed and remanded.
24                                              Scott v. Kesselring

           Egan, C. J., dissenting.
         I respectfully dissent because I would conclude that
plaintiff met her burden in establishing that defendant’s use
of her cellphone in the moments before a motor vehicle collision was relevant. However, before I address plaintiff’s relevancy argument, I first address whether plaintiff preserved
her contention that the cellphone evidence was relevant to
prove the severity of the collision. I briefly restate material
details of the record for purposes of preservation:
        “THE COURT: So let’s talk about those, you know,
     foreseeability, for example, with a cellphone, could have a
     really bad accident. Cellphone use could result in a really
     bad accident on the freeway so the scope of foreseeability,
     you know, might even extend to post-traumatic stress,
     might even extend that far. If you hit somebody hard enough
     going that fast and you know what, you drive around distracted, there’s a degree of foreseeability about the scope of
     harm. Is that what your argument would be?
       “[PLAINTIFF]: That’s part of it. That’s a good argument, thank you, yeah.
        “…
       “THE COURT: … I mean, if we go 90 [mph] there’s
     more risk than if we go 70 in a 50.
        “[PLAINTIFF]:      I—yes.
        “THE COURT: Now, if we’re 40 miles over the speed
     limit, it’s different than if we’re 20 miles over the speed
     limit. Both might be negligent, but the one might invoke a
     scope of loss or harm greater than the other and so foreseeability would seem to attach to such a consideration.”
The court concluded that the cellphone evidence was relevant, stating that,
         “I do consider that the degree of risk that under—is
     undertaken bears on the scope of harms that might reasonably be anticipated. I’ve alluded to that with several of
     my remarks. And I think that is a circumstance here that
     is germane to that consideration. The jury is being asked
     to decide what might be within the scope of trauma that a
     person might experience as a result of a certain category of
     negligent conduct, then the nature of that conduct becomes
     a fact of consequence and is relevant.”
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         The majority states that “plaintiff did not assert”
that the cellphone evidence was relevant to the severity of
the crash. 308 Or App at 19 n 4. I disagree that preservation requirements are, or should be, so narrow and strict
that the colloquy restated above is inadequate to meet the
policies that underlie preservation. See Drake v. Alonso,

, 

 (2017) (noting that the
policies that underlie preservation are “fairness, notice to
the opposing party, and efficient judicial administration”).
Here, the court and plaintiff began a colloquy about how
the speed that a person is driving might affect the “scope
of loss or harm.” Additionally, that colloquy involved how
distracted driving and varying speed might create greater
harm. At one point, the court explicitly said: “Cellphone use
could result in a really bad accident.” The majority’s reasoning does not comport with our policies of preservation,
which, “[u]ltimately, … is a practical one,” State v. Parkins,

, 

 (2009), that requires “procedural fairness to the parties and to the trial court.” Peeples
v. Lampert, 

, 

 (2008). Those policies are met in the colloquy reiterated above.
          The majority also states that “the court did not
articulate” that the cellphone evidence was relevant to prove
the severity of the collision as a basis for its ruling. 308 Or
App at 19 n 4. However, in the court’s ruling it stated, not
only was the evidence relevant to the element of foreseeability, but it “alluded” to why it was relevant with “several of
[the court’s] remarks.” The majority ignores the “remarks,”
to which the court referred in its ruling. In reviewing the
court’s “remarks,” many of them discussed whether higher
speeds and distracted driving would support a reasonable
inference that would aid the jury in determining the severity of the crash. For the above stated reasons, I would conclude that plaintiff’s contention is preserved.
         As I would conclude that argument is preserved,
I next address whether the cellphone evidence is relevant.
The trial court stated, and I agree, that the evidence of
defendant’s cellphone use moments before the crash is relevant to the disputed speed that defendant was travelling.
When a driver is distracted, that calls into question that
driver’s estimate of his or her speed. That distraction here is
26                                                     Scott v. Kesselring

relevant to the element of foreseeability in two ways. First,
the credibility of defendant’s testimony may make the jury
view that testimony as having less probative value. For
instance, a jury may reasonably infer that because defendant was looking down, she is actually uncertain of what
speed she was travelling. From that, the jury may additionally infer that defendant was travelling “freeway speeds.”1
Second, the cellphone evidence is relevant because it may
allow an inference that defendant did not brake as the crash
occurred. Either inference would support plaintiff’s theory
that this collision was a high-impact collision and undermines the credibility of defendant’s testimony that she was
traveling at 45 mph. Furthermore, because, as defendant
admitted, there was “conflicting evidence” about her speed,
the cellphone evidence was relevant to a disputed fact in
evidence. The question thus reduces to whether there is a
“logical connection” between the foreseeability of the harms
that plaintiff suffered and the disputed speed that defendant was travelling.
         Any effect on defendant’s credibility may, as a consequence, allow the jury to infer that defendant was trying
to diminish the foreseeability of some of the alleged damages by stating that she was travelling at a rate slower than
the speed limit. When a driver is distracted, and the sole
expected testimony about the driver’s speed is from that
driver, that person’s credibility becomes part-and-parcel of
the speed, and, accordingly, the foreseeability of damages.
That is especially true when a defendant argues, as here,
that they are going below the speed limit. In cases like this,
the testimony is relevant to defendant’s attempt to diminish

    1
      To be sure, I am uncertain of what plaintiff means by “freeway speeds.”
However, it is clear from the record that the court understood that plaintiff
was referring to speeds greater than 45 mph, and, based on the common understanding of the usual speed of travel on interstate freeways and our standard of
review, we further infer from the record that the court understood plaintiff to
be referring to speeds of 55 mph or greater. See State ex rel OHSU v. Haas, 

, 

 (1997) (stating that we review “the record in a manner
consistent with the trial court’s ruling under OEC 104(1) and assume that the
trial court found facts consistent with its final conclusion”); see also Dodge v.
Tradewell Stores Inc., 

, 

 (1970) (“It is not necessary to establish by the direct testimony of witnesses the existence of every fact
in a lawsuit. The jury is entitled to draw inferences from matters of common
knowledge.”).
Cite as 

 (2020)                                              27

what damages that she is liable for. Thus, we need not know
the exact speed that defendant was travelling to understand
the scope of harms defendant was liable. Rather, defendant’s cellphone use gives rise to the inference that she was
travelling at “freeway speeds,” which is a link in the chain
for a jury to determine whether defendant’s testimony concerning her liability is credible and the connection that has
to the conduct that gives rise to the scope of defendant’s
liability—her speed.
         Next, the cellphone evidence is relevant because it
may allow an inference that she did not brake as the crash
occurred. As defendant was looking down when the crash
occurred, that supports a reasonable inference that defendant did not slow down. Consequently, a juror could reasonably infer what type of injuries are foreseeable from a highspeed, or low-speed collision. In comparing a range of speeds,
if a driver is going, for instance, 30 mph and then rear-ends
a vehicle in front of them, it is reasonable to infer that the
person would not have serious physical or mental injuries.2
On the other hand, if a crash occurs at 60 mph, the reasonably foreseeable injuries to that person would be potentially
very different—a person may become seriously injured or
maimed, die, or the same may happen to a co-occupant of
the vehicle. Either the physical pain or emotional pain from
the crash can cause serious emotional harm, and it is not too
unreasonable that a person might attempt suicide from the
stress of the crash, the trauma from the crash, or the mental
anguish from the physical injuries.
         Applying that analogy here, it shows the relevancy
of a change in speed to the foreseeability of damages. If defendant attempted to brake, some change in speed could occur.
Even a small difference in speed could support an inference
of greater harm to plaintiff. As relevance is a “very low” bar,
the evidence is relevant to allow the jury to weigh the evidence and make their own inferences regarding defendant’s
rate of speed. See State v. Turnidge (S059156), 

, 

 (2016), cert den, ___ US ___, 

      I am, of course, not stating that a serious injury cannot occur at lower
speeds. Rather, I am only relaying one of many possible inferences that a jury
might make in interpreting the evidence.
28                                        Scott v. Kesselring

569 (2017) (“The threshold for admissibility under [the] relevancy standard is ‘very low’—as long as the evidence, based
on logic and experience, can support a reasonable inference
that is material to the case, then the evidence is sufficiently
relevant to be admissible, even if that is not the only inference that the evidence would support.” (Citing State v. Titus,

, 

 (1999).)). Furthermore, the
jury can reasonably infer what injuries—including severe
emotional distress—are reasonably foreseeable from that
speed. That is, even if the evidence does not conclusively
make a connection to what exact speed defendant was travelling, the cellphone evidence is relevant to the “conduct”
that was at issue in creating the injury—defendant’s speed.
Thus, there was a logical connection between defendant’s
use of her cellphone, her speed, and what injuries would be
reasonably foreseeable.
         The majority concludes that those inferences, from
which the factfinder could have made are unpreserved.
However, “[o]n review for error of law, we view the record in
a manner consistent with the trial court’s ruling under OEC
104(1), accepting reasonable inferences that the trial court
could have made.” Goldsborough v. Eagle Crest Partners,
Ltd., 

, 

 (1992) (emphasis added).
I would conclude that plaintiff need not preserve every inference a factfinder could make; rather, in accordance with our
precedent, I would conclude that those reasonable inferences
are reviewable.
        Accordingly, I respectfully dissent.