S053702, Opinion — Wallach v. Allstate Ins. Co.

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Argued and submitted January 3, 2007, decision of Court of Appeals affirmed;
judgment of circuit court reversed, and case remanded to circuit court for further
proceedings March 20, 2008

Michael E. WALLACH,
Petitioner on Review,
v.

ALLSTATE INSURANCE COMPANY,
an Illinois corporation,
aka Allstate Indemnity Company,
Respondent on Review.
(CC 99-3671-L4(7); CA A124340; SC S053702)
180 P3d 19

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CJS, Appeal and Error § 216.

# En Banc

On review of the decision of the Court of Appeals .*

G. Jefferson Campbell, Medford, argued the cause and
filed the brief for petitioner on review.

Edward H. Talmadge, of Frohnmayer, Deatherage, Pratt,
Jamieson, Clarke & Moore, PC, Medford, argued the cause
and filed the brief for respondent on review. With him on the
brief was Bernard S. Moore, Medford.

KISTLER, J.

The decision of the Court of Appeals is affirmed. The judg-
ment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

Durham, J., dissented and filed an opinion.

\* Appeal from Jackson County Circuit Court, Mark Schiveley, Judge. 206 Or
137, 135 P3d 404 (2006).

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# KISTLER, J.

Plaintiff suffered injuries in three separate automo-
bile accidents. During the trial on the first accident, the court
instructed the jury that it could hold defendant Allstate
Insurance Co., responsible for any "enhancement or aggra-
vation of plaintiff's injuries caused by the subsequent acci-
dent[s]" if the enhancement or aggravation would not have
occurred but for the first accident. On appeal, the Court of
Appeals held that the trial court erred in giving that instruc-
tion, reversed the trial court's judgment, and remanded for a
new trial. Wallach v. Allstate Ins. Co., 206 Or App 137, 135
P3d 404 (2006). We allowed plaintiff's petition for review and
now affirm the Court of Appeals decision.

Plaintiff purchased automobile insurance from
defendant Allstate. Afterwards, plaintiff was involved in
three automobile accidents. The first accident occurred on
October 24, 1997. An unidentified truck (referred to as a
"phantom vehicle" in Allstate's policy) caused plaintiff's vehi-
cle to swerve, injuring plaintiff. Because the person driving
the truck was unidentified and thus unavailable, plaintiff
sought to recover his damages from Allstate under both the
uninsured motorist (UM) provision1 and the personal injury
protection (PIP) provision2 of his policy. Allstate denied lia-
bility under both provisions, and plaintiff filed this action
against Allstate on October 22, 1999, alleging that Allstate
had breached those provisions.

The second accident occurred on August 6, 1999, a
few months before plaintiff filed this action. Plaintiff had
stopped at a red light when another car "rear-ended" his car.
The third accident occurred on August 2, 2002, before the
trial on this action began. Plaintiff had stopped at a red light
when yet another car "rear-ended" his car.

1 Under the UM provision, Allstate promised to pay plaintiff "those damages
which an insured person is legally entitled to recover from the owner or operator of
[a phantom vehicle] because of bodily injury sustained by an insured person."

2 Under the PIP provision, Allstate promised to pay plaintiff certain specified
expenses that either were incurred within a year of the accident or for a limited
period of time.

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At the trial on the first accident, plaintiff contended
that Allstate was liable for the injuries resulting from the
first accident and also for any aggravation of those injuries
resulting from the second and third accidents.3 Plaintiff sub-
mitted a special jury instruction to that effect,4 and Allstate
filed a written objection. Among other things, Allstate con-
tended that the trial court should not give plaintiff's
requested instruction because "the subsequent motor vehicle
accidents are not accidents which would have occurred but
for the original injury" and also because it was "not foreseea-
ble that a plaintiff would meet with subsequent motor vehicle
accidents." Finally, Allstate argued that plaintiff's requested
instruction would make it "liable for injuries attributable to
the second motor vehicle accident for which [it] is not liable."

Despite that objection, the trial court gave an
instruction that repeats, in substantial part, the special jury
instruction that plaintiff had requested. The trial court
instructed the jury:

"The contract entered into by the plaintiff and the
defendant sets forth that the defendant will provide cover-
age for all the natural [,] direct and proximate consequences
of the wrongful acts of the driver of the phantom vehicle.

"If you find that the plaintiff was injured by those acts in
the accident of October 24th, 1997 and then had a subse-
quent accident in which the plaintiff suffered further injury
which would not have occurred, but for the original injury,
the defendant may then be held liable for the enhancement

3 On review, Allstate does not dispute that it was liable under the UM and PIP
provisions for the injuries that plaintiff suffered as a result of the first accident.
The only issue is whether Allstate is responsible for aggravation damages resulting
from the second and third accidents.

\+ Plaintiff's requested jury instruction number 10 stated:

"In an action to recover damages for personal injuries the person wrong-
fully causing the personal in juries of another is liable for all the natural, direct
and proximate consequences of his wrongful act or omission. When the injured
person meets with a subsequent accident which would not have occurred but
for the original in jury, the defendant may be held liable for the enhancement of
plaintiff's damages caused by the subsequent accident. In this case, therefore,
if you determine that any of the Plaintiff's injuries resulting from any subse-
quent motor vehicle accident after October 24, 1997 would not have occurred
but for the Plaintiff's original injuries sustained in the October 24, 1997 acci-
dent, then you may award Plaintiff damages for any such enhancement or
aggravation to the Plaintiff caused by any such subsequent accident."

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or aggravation of plaintiff's injuries caused by the subse-
quent accident.

"The defendant's liability would apply only to the inju-
ries you attribute to the accident of October 24th, 1997 and
to any enhancement or aggravation of those injuries, not to
any new injuries suffered by plaintiff in any subsequent
accident."

After the court gave that instruction, Allstate excepted to it,
reasoning that "this is not the type of case where the first
accident caused the second and third accidents; and, there-
fore, that instruction should not have been given[.]" The jury
returned a verdict awarding plaintiff $50,000 in damages for
Allstate's breach of the UM provision and $25,000 in dam-
ages for Allstate's breach of the PIP provision.

Allstate appealed from the resulting judgment,
arguing, among other things, that the trial court erred in
instructing the jury that Allstate was liable to the extent that
the second and third accidents aggravated any injuries that
plaintiff sustained in the first accident. The Court of Appeals
agreed that the instruction was erroneous. It reasoned that
the instruction was either confusing or incorrect because it
appeared to permit the jury to award damages for injuries
arising out of the second and third accidents if the jury found
"but for" causation only. Wallach, 206 Or App at 144. The
court also noted that the instruction referred to proximate
cause when it should have referred to foreseeability. Id.
Because the court concluded that those errors were not harm-
less, it reversed the trial court's judgment and remanded for
further proceedings. Id. at 145.

On review, plaintiff argues that the Court of Appeals
erred in three respects. He contends initially that Allstate
failed to preserve its objection to the instruction. Plaintiff rec-
ognizes that Allstate objected to the instruction. He contends,
however, that Allstate did not object on the grounds on which
the Court of Appeals relied. As noted above, however,
Allstate filed a written memorandum objecting to plaintiff's
special requested jury instruction on the ground, among
other things, that the second and third accidents were not
foreseeable. As also noted, the trial court's instruction
tracked in substantial part the special requested instruction

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to which Allstate objected, and Allstate renewed its objection
when it excepted to the instruction that the trial court gave.
Allstate preserved the issues that it has raised on appeal and
on review. See Beall Transport Equipment Co. v. Southern
Pacific, 335 Or 130, 137, 60 P3d 530 (2002) (describing pres-
ervation requirements for jury instructions).

Having concluded that Allstate preserved its objec-
tions to the instruction, we turn to the question whether that
instruction correctly stated the law. The instruction consists
of three sentences. The first sentence purports to recite the
terms of the insurance contract under which plaintiff's claims
against Allstate arise.5 The second sentence sets out the oper-
ative legal principle; it tells the jury what it must find before
Allstate "may * * * be held liable." That sentence provides:

"If you find that the plaintiff was injured by those acts in
the accident of October 24th, 1997 and then had a subse-
quent accident in which the plaintiff suffered further injury
which would not have occurred, but for the original injury,
the defendant may then be held liable for the enhancement
or aggravation of plaintiff's injuries caused by the subse-
quent accident."

The third sentence limits the second. It clarifies that Allstate
is liable for the injuries resulting from the first accident and
for "any enhancement or aggravation of those injuries, [but]
not [for] any new injuries suffered by plaintiff in any subse-
quent accident."

The trial court's instruction is erroneous in two sep-
arate but related respects. First, the instruction is at odds
with the general rule that a defendant is liable only for
the foreseeable consequences of his or her negligence. See
Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 17, 734
P2d 1326 (1987) (holding that, unless a status, relationship,
or standard of conduct "creates, defines, or limits the defen-
dant's duty, the issue of liability for harm actually resulting

5 The first sentence recites that Allstate and plaintiff entered into a contract
under which Allstate promised to "provide coverage for all the natural[,] direct and
proximate consequences of the wrongful acts of the driver of the phantom vehicle."
It is unclear from the court's instructions whether the first sentence refers to the
UM provision, the PIP provision, or both. The instruction does not refer specifically
to either provision, and neither provision contains the promise that the instruction
recites.

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from [the] defendant's conduct properly depends on whether
that conduct unreasonably created a foreseeable risk to a pro-
tected interest of the kind of harm that befell the plaintiff")."
Under the trial court's instruction, the jury could hold
Allstate liable for all aggravation damages that were causally
connected to the first driver's negligence no matter how
unforeseeable those damages were. Such unlimited liability
is contrary to Oregon negligence law.

Not only is the trial court's instruction contrary to
the general rule on negligence, but it is also inconsistent with
the specific application of that rule in Ferrante v. August, 248
Or 16, 432 P2d 167 (1967). In Ferrante, the plaintiff had
injured her back in an automobile accident as a result of the
defendant's negligence. Id. at 17. Several months later, as
her back was improving, she "felt a very sharp pain in her
back as she was getting out of her chair." Id. at 18. The plain-
tiff's doctor testified that the injury had weakened the plain-
tiff's back and that the later injury she experienced on getting
out of the chair was a foreseeable consequence of her weak-
ened back and thus the earlier accident. Id.

On that evidence, this court held that the plaintiff
could recover both for the injury that she originally suffered
as a result of the accident and also for the later back sprain.
Id. at 22-23. The court reasoned that, given the doctor's tes-
timony, the jury reasonably could find that "but for the orig-
inal injury the [later] back sprain * * * would not have
occurred and that the latter injury was the natural and prob-
able consequence of the former." Id. at 22; see also Restate-
ment (Second) of Torts § 460 (1965) (stating similar rule).7
Although we would now use the phrase "foreseeable conse-
quence" rather than "natural and probable consequence," see
Fazzolari, 303 Or at 14 (explaining that foreseeability rather

6 Plaintiff does not argue that a status, relationship, or standard of conduct
permitted the jury to hold Allstate liable for any aggravation damages that
resulted from the second and third accidents without regard to whether those dam-
ages were a foreseeable consequence of the first accident.

7 Section 460 of the Restatement provides:

"If the negligent actor is liable for an injury which impairs the physical condi-
tion of another's body, the actor is also liable for harm sustained in a subse-
quent accident which would not have occurred had the other's condition not
been impaired, and which is a normal consequence of such impairment."

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than proximate cause is the measure of a defendant's liabil-
ity), the important point is that the court in Ferrante not only
required a causal connection between the original negligent
act and the later injury that resulted in increased pain but it
also required that the later injury be a foreseeable conse-
quence of the original negligence. The trial court's instruction
in this case erroneously omitted that limitation.

The instruction was incorrect in a second, related
respect. Under Oregon law, a tortfeasor is responsible to the
extent that his or her negligence aggravates a preexisting
condition. See Stubbs v. Mason, 252 Or 547, 551, 450 P2d 773
(1969) (so holding); Dodson v. Lemon, 197 Or 444, 449, 253
P2d 900 (1953) (same). It follows that, in this case, if the sec-
ond tortfeasor aggravated a preexisting condition and if the
second accident was not a foreseeable consequence of the
first, then the law allocates responsibility for any aggrava-
tion of plaintiff's preexisting condition to the second tort-
feasor, not the first. The trial court's instruction, however,
told the jury that it could hold the first tortfeasor liable for
any aggravation damages that the second accident caused
without regard to whether the second accident was a foresee-
able consequence of the phantom driver's negligence.

Plaintiff has not argued that either the second or
third accident was a foreseeable consequence of the phantom
driver's negligence, nor is there any evidence in the record
that would permit a reasonable juror to draw that inference.
Accordingly, we agree with Allstate that, on this record, the
trial court should not have instructed the jury that it could
hold Allstate liable for any aggravation damages resulting
from the second and third accidents. We note that the other
courts that have considered this issue agree that, when the
second accident is not a foreseeable consequence of the first,
the defendant involved in the first accident is not liable for
any aggravation of the plaintiff's injuries that the second
accident causes. See, e.g., Hashimoto v. Marathon Pipe Line
Co., 767 P2d 158, 160-61 (Wyo 1989); Bruckman v. Pena, 29
Colo App 357, 487 P2d 566 (1971); Armstrong v. Bergeron,
104 NH 85, 178 A2d 293 (1962) (all so holding).8

8 This case is a relatively common successive accident case in which the two
accidents are not causally related. As explained above, in such cases, the first

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The final issue is whether the erroneous instruction
substantially affected Allstate's rights. See ORS 19.415(2)
(providing that "[n]o judgment shall be reversed or modified
except for error substantially affecting the rights of a party").
On that issue, we note that the trial court's instruction gave
the jury the wrong legal rule to apply. The instruction told
the jury that it could hold Allstate liable for damages for
which the jury could not, on this record, hold it legally
responsible. Allstate observes that, when an instruction tells
the jury to apply the wrong legal rule and the erroneous
instruction permits the jury to reach an incorrect result, this
court consistently has held that the error substantially
affects the party's rights. See, e.g., Honeywell v. Sterling
Furniture Co., 310 Or 206, 211-12, 797 P2d 1019 (1990)
(instructingjury that part of a punitive damages award could
go to a crime victim's fund encouraged jury to award damages
for the wrong reason); Fairbrother v. Rinker, 274 Or 525,
529-30, 547 P2d 605 (1976) (instruction that erroneously
permitted jury to consider defendant's financial condition in
assessing damages was reversible error because it could
have prejudiced plaintiff's chance of recovery); Waterway
Terminals v. P. S. Lord, 256 Or 361, 370, 474 P2d 309 (1970)
(stating general principle).

Plaintiff responds that this court's decision in Shoup
v. Wal-Mart Stores, Inc., 335 Or 164, 61 P3d 928 (2003),
altered that longstanding rule. Plaintiff contends that, after
Shoup, an appellate court must affirm a jury's verdict unless
the party who objected to the instruction can demonstrate
that the erroneous instruction affected the verdict. In that
connection, plaintiff notes that the jury could have based its
damages award in this case solely on the injuries resulting
from the first accident without including any aggravation

tortfeasor ordinarily will be responsible for the damages that the first accident
causes, and the second tortfeasor will be responsible for the damages that the sec-
ond accident causes (including damages for aggravating a preexisting injury).
When there is a disputed issue of fact, the jury will have to determine which in ju-
ries each accident caused. When, in the less frequent successive accident case, the
second accident is a foreseeable consequence of the first, the first tortfeasor will be
responsible for all the damages that both accidents cause (not just aggravation
damages), subject to whatever statutory or common-law rights of contribution the
first tortfeasor might have against the second tortfeasor. See Fowler V. Harper,
Fleming James, Jr., and Oscar S. Gray, 4 Harper, James and Gray on Torts § 20.3,
138 (3d ed 2007) (stating general rule).

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damages from the second and third accidents. Plaintiff con-
tends that, because Allstate cannot show otherwise, this
court must affirm the jury's verdict even though the court
told the jury to apply an incorrect legal rule in determining
the amount of plaintiff's damages.

The holding in Shoup is not as far reaching as plain-
tiff perceives. The plaintiff in Shoup alleged three specifica-
tions of negligence. 335 Or at 166-67. The trial court submit-
ted all three specifications to the jury, even though it should
have granted the defendant's motion to withdraw one of
those specifications. Id. at 167-68. The trial court then cor-
rectly instructed the jury on negligence, after which the jury
returned a general verdict finding the defendant negligent.
Id. at 167.

The verdict form did not identify which specification
or specifications the jury relied on in finding the defendant
negligent, and the question before this court was whether it
could say that the trial court's error in submitting one of
three specifications of negligence to an otherwise correctly
instructed jury substantially affected the defendant's rights.
Faced with that question, this court held that, without some
basis for saying that a correctly instructed jury had relied
solely on the invalid specification of negligence, it could not
say that the error had substantially affected the defendant's
rights; that is, the court could not say that the jury had not
based its verdict on the other two specifications of negligence
that were properly before it. Id. at 176, 179.9

This court was careful in Shoup to distinguish
instructional error from the particular species of error that
was at issue in that case. In reviewing prior cases, this court
observed that, although its earlier decision in Hernandez v.
Barbo Machinery Co., 327 Or 99, 957 P2d 147 (1998), may
have stated the standard for reversible error too broadly, the
decision had correctly held that the instructional error in

9 The court framed its holding in Shoup narrowly. It stated:

"[W]e hold today that appellate courts, to act within statutory limitations, may
not apply the 'we can't tell' rule to order a new trial in a case involving a judg-
ment on a general verdict based on multiple specifications, one of which is
invalid, if there is evidence to support another, valid specification."

335 Or at 176.

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that case had substantially affected the plaintiff's rights.
Shoup, 335 Or at 172 n 2. After questioning the way in which
the court had articulated the legal standard in Hernandez,
the court stated in Shoup: "We do not, however, question the
conclusion reached by this court in Hernandez. The error in
jury instructions at issue in Hernandez was 'reversible' under
ORS 19.415(2)." Id.

Because the instructional error in Hernandez marks
the limit of Shoup's holding, we describe that case briefly.
Hernandez was a products liability case. The defendant in
that case raised the affirmative defense of comparative fault,
alleging that the plaintiff had been negligent in ten respects.
327 Or at 102-03. The plaintiff requested an instruction that
would have told the jury that certain types of negligence are
not sufficient to establish comparative fault in a products lia-
bility case. Id. at 103-04. Specifically, the instruction would
have told the jury that negligence that consists of an "unob-
servant, inattentive, ignorant, or awkward failure to discover
or to guard against the defect that goes toward making the
product dangerously defective" is not sufficient to establish
comparative fault. Id. at 104.

The trial court refused to give the requested instruc-
tion, and the jury returned a verdict finding that the plaintiff
was 50.5 percent and the defendant 49.5 percent at fault. Id.
at 104-05. On review, this court held that the trial court erred
in refusing to give the requested instruction and that the
error substantially affected the plaintiff's rights. Id. at 112-
13. On the latter point, the court observed that nine of the ten
allegations of negligence alleged that the plaintiff had "know-
ingly encountered" a risk of injury and that those allegations,
if proved, would be sufficient to establish comparative fault.
Id. at 110-11. One specification, however, alleged only that
the plaintiff had acted negligently in standing on a slippery
surface (sawdust) when he used the defendant's product, and
the court observed that a properly instructed jury could have
found that the plaintiff's negligence in standing on the saw-
dust consisted only of an "unobservant, inattentive, ignorant
or awkward failure" to discover or guard against the defec-
tive product. Id. at 112.

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Because the trial court refused to give the plaintiff's
requested instruction, the jury applied an incomplete and
thus inaccurate legal rule to the facts, which permitted the
jury to reach an erroneous result. That was sufficient, this
court held in Hernandez and reaffirmed in Shoup, to say that
the instructional error substantially affected the plaintiff's
rights and required reversal. Hernandez, 327 Or at 112-13;
Shoup, 335 Or at 172 n 2. That was true even though the jury
in Hernandez properly could have based its verdict on the
other allegations of negligence and the plaintiff in Hernandez
could have memorialized the effect of the trial court's refusal
to give his requested instruction by asking the jury to specify
which, if any, of the defendant's allegations of negligence it
relied on in determining the parties' respective fault.

In State v. Pine, 336 Or 194, 82 P3d 130 (2003), the
court confirmed the distinction that it noted in Shoup. In
Pine, this court held that a defendant could be held liable for
third-degree assault only ifhe or she "caused" physical injury
to the victim; that is, the "defendant either must have
inflicted physical injury directly himself or herself, or must
have engaged in conduct so extensively intertwined with
infliction of the injury that such conduct can be found to have
produced the injury." Id. at 207. The trial court, however, had
instructed the jury that a defendant could be guilty of third-
degree assault if the defendant merely had aided another
person who caused physical injury to the victim. Id. at 209.
Under the trial court's instruction, the jury could have found
the defendant in Pine guilty of third-degree assault without
finding the direct causal connection that the third-degree
assault statute required.

On review, the state argued that, under Shoup, this
court should affirm even though the statute required that the
defendant cause the physical injury. Id. at 199. The state rea-
soned that there was evidence from which the jury could have
found that the defendant had directly inflicted the injury
rather than merely aiding another person who inflicted the
injury. Id. It followed from Shoup, the state reasoned, that
the defendant could not establish that the erroneous instruc-
tion had substantially affected his rights. Id.

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In rejecting the state's argument, this court declined
to rely on "procedural differences between civil and criminal
proceedings." Id. at 200. Rather, it relied on "a more funda-
mental reason" to distinguish the effect of the error in Shoup
from the effect of the instructional error before it. Id. The
court reasoned that, if the jury had believed the defendant's
version of the facts rather than the state's, the instruction
permitted the jury to convict the defendant in violation of the
statute defining the crime of third-degree assault. Id. Accord-
ingly, the court held that the instructional error required
reversal. Id. at 210.

The instruction in Pine, like the instruction in this
case, was too broad. It permitted the jury to find the defen-
dant in Pine guilty for conduct that did not constitute the
charged crime, as well as for conduct that did.1º In holding
that the instructional error in Pine substantially affected the
defendant's rights, this court did not specify how the instruc-
tional error in Pine differed from the error in Shoup. The
answer seems apparent, however: We presume that a jury
follows a trial court's instructions, DeMaris v. Whittier, 280
Or 25, 31, 569 P2d 605 (1977), and giving the jury an errone-
ous legal rule11 to decide an element of the state's case in Pine
substantially affected the defendant's rights. To be sure, it
was possible that the jury in Pine might have landed on a
legally permissible answer despite having been given an
incorrect instruction. But that possibility was too slight for
this court to say in Pine that the error did not substantially
affect the defendant's rights. No other conclusion explains
this court's holdings in Pine, Hernandez, and an unbroken
line of cases holding that an erroneous instruction substan-
tially affects a party's rights, all of which were decided in
light of the standard currently codified in ORS 19.415(2).12

10 Similarly, the instruction in this case permitted the jury to find Allstate lia-
ble for damages for which it was not liable, as well as damages for which it was
liable.

11 In deciding whether an instruction is erroneous, a court must consider the
challenged instruction in the context of all the other instructions. See, e.g., State v.
Oatney, 335 Or 276, 290, 66 P3d 475 (2003), cert den, 540 US 1151 (2004) (stating
proposition). In referring to an "incorrect instruction" or "erroneous legal rule," we
refer to an instruction that, when read in the context of the other instructions, inac-
curately states the law regarding an element of a claim or defense.

12 The standard currently codified in ORS 19.415(2) has been a part of this
state's civil and criminal law since the Deady Code. See General Laws of Oregon,

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The dissent reasons that this court's decision in
Lyons v. Walsh & Sons Trucking Co., Ltd., 337 Or 319, 96
P3d 1215 (2004), requires a different conclusion. We do not
read Lyons as broadly as the dissent does. Lyons arose out of
an automobile accident in which a police officer died. 337 Or
at 321. There was evidence that the police car in which the
officer had been a passenger had turned in front of the defen-
dant's oncoming truck. Id. at 322. The plaintiffs submitted
three proposed jury instructions, each of which would have
told the jury essentially that it "should not 'weigh or consider'
[the] conduct [of the other officer who drove the police car]
unless the jury found that the accident had been the 'sole and
exclusive' result of that [officer's] conduct." Id. at 323. The
trial court declined to give that instruction, instructed the
jury that it could not compare the officer's and the defen-
dant's negligence, if any, and submitted a special verdict
form to the jury that asked:

"Was defendant * * * negligent in one or more of the ways
claimed by the plaintiff and, if so, was such negligence a
cause of damage to the plaintiffs?"

Id. The jury answered that question "no," resulting in a judg-
ment in the defendant's favor. Id.

On appeal, the Court of Appeals affirmed the trial
court's judgment, holding that the plaintiffs' requested
instructions had not correctly stated the law. Id. at 324. On
review, this court affirmed but on a different ground. This
court noted that the special verdict form asked a compound
question and that the jury's answer could have reflected its
conclusion either that the defendant had not been negligent
or that the defendant's negligence had not caused the plain-
tiff's harm. Id. at 325. The plaintiffs did not argue that the
trial court had instructed the jury incorrectly on negligence;
they only challenged its instructions on causation. Id.

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The instructions thus provided two alternate paths
by which the jury could have answered "no" to the question
on the special verdict form. One was a correct statement of
the law; the other was an incorrect statement of the law, in
the plaintiffs' view. Because the jury could have based its
answer on the special verdict form on the correct instructions
regarding negligence, this court held that it could not say
that any error in instructing the jury on causation had sub-
stantially prejudiced the plaintiffs' rights. As the court
explained in Lyons, "[w]hat this court stated in Shoup applies
equally to the narrow problem that the form of jury verdict
used in the present case poses." Id. at 326.

The court was careful in Lyons to distinguish the
"narrow problem" that the jury verdict form posed in that
case from "other kinds of asserted trial error, such as a faulty
jury instruction." Id. The court explained:

"This was not a case in which the plaintiff advanced a single
factual theory of liability that the form of jury verdict
reflected. Nor did this case involve other kinds of asserted
trial error, such as a faulty jury instruction, that may call
for a different analysis of whether the error 'substantially
affect[s] the rights of a party' under ORS 19.415(2). The
jury verdict could have been based on one of two different
rationales that the jury verdict form identified; it is impos-
sible to tell which the jury used. Plaintiffs' claims of error
may or may not be well taken, but they depend on an
assumption that the jury's verdict was based on one ration-
ale only."

Id. (brackets in original). The foregoing explanation makes
clear that the court in Lyons understood that the jury verdict
form in that case and a faulty jury instruction present dis-
tinct issues for the purposes of ORS 19.415(2). Nothing
in Lyons suggests that the court intended to overrule
sub silentio its holding in Pine less than a year earlier, its
reaffirmation of Hernandez in Shoup, or an unbroken line of
cases before Shoup holding that an incorrect instruction sub-
stantially prejudices a party's rights.

The dissent reasons that, despite what this court said
in Lyons, the underlying problem in Lyons was the jury
instruction and that, if the court applied Shoup to the
instructional error in Lyons, we should apply it to the instruc-
tional error here as well. In essence, the dissent reasons that

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the distinction that the court drew in Lyons does not with-
stand scrutiny and that Lyons' holding cannot be limited to
the "narrow problem that the form of jury verdict used in
[that] case pose[d]." We need not decide whether Lyons was
correct in positing that the jury verdict form in that case and
instructional error present distinct issues for the purposes of
ORS 19.0415(2). This case does not involve a jury verdict
form similar to the one in Lyons; it thus provides no occasion
for us to decide whether the distinction that the court articu-
lated in Lyons was correct. Rather, it is sufficient for the pur-
poses of this case to reaffirm the general rule stated in Pine,
Hernandez, and an unbroken line of cases that, when a trial
court incorrectly instructs the jury on an element of a claim
or defense and when that incorrect instruction permits the
jury to reach a legally erroneous result, a party has estab-
lished that the instructional error substantially affected its
rights within the meaning of ORS 19.415(2).

In this case, the trial court incorrectly instructed the
jury on the damages for which Allstate was liable. That error
substantially affected Allstate's rights. Although the trial
court's judgment must be reversed, the question that
remains is whether the erroneous instruction affected only
the jury's award for the breach of the UM provision or
whether it also affected the jury's award for the breach of the
PIP provision. We turn to that issue.

As noted, plaintiff sued Allstate for breach of con-
tract. He alleged that Allstate had failed to pay sums that it
owed him under both the PIP and the UM provisions of his
insurance policy. Ordinarily, one might expect that any
aggravation damages that plaintiff experienced as a result of
the second and third accidents, which occurred two and five
years respectively after the first accident, would not be
included within any award of PIP damages. (The insurance
policy, for instance, limits PIP coverage for medical expenses
to certain reasonable and necessary medical expenses
incurred within one year of the accident.) However, in defin-
ing plaintiff's rights under the PIP and UM provisions of his
policy, the trial court instructed the jury generally that plain-
tiff had a right to recover up to $25,000 in economic damages
under the PIP provision and up to $100,000 in noneconomic
damages under the UM provision; that is, the trial court
instructed the jurors that they should allocate any damages

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between the two breaches based on the nature of the
damages.13

Given those instructions and the instruction on
aggravation damages, the jury could have included medical
costs that plaintiff incurred after the second accident in the
award of PIP damages; that is, the trial court's instructions
erroneously permitted the jury to find that the second acci-
dent aggravated injuries that plaintiff sustained in the first
accident and to assess PIP damages against Allstate for the
medical costs that plaintiff incurred to treat those aggra-
vated injuries. Because the trial court's erroneous instruction
on aggravation affected both the jury's award of damages for
breaching the PIP provision and its award for breaching the
UM provision, neither damages award can stand.

The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

DURHAM, J., dissenting.

The legal question that divides the majority and this
dissent is straightforward: If the trial court has delivered an
arguably erroneous jury instruction, should this court grant
a new trial if the appellant can show only that the challenged
instruction might have affected the appellant's rights but
cannot show that the instruction did affect those rights? In
my view, an appellant fails to show the requisite harm from
instructional error by demonstrating only that the jury might
have applied the instruction in returning its verdict. Because
the majority grants a new trial here even though the appel-
lant can show only that the jury might have used the chal-
lenged instruction in returning its verdict, I dissent.

This case requires this court to apply ORS 19.415(2),
which provides that "[n]o judgment shall be reversed or mod-
ified except for error substantially affecting the rights of a
party."" This court has held, recently and repeatedly, that a

13 Neither party assigned error to these instructions, even though they do not
appear to reflect accurately plaintiff's rights under the PIP and UM provisions. We
do not commend these instructions. We note them only to explain our conclusion
that the effect of the trial court's erroneous instruction on aggravation damages
was not limited to the jury's award of damages for the breach of the UM provision.

1 This court must give a consistent interpretation to the legal requirement in
ORS 19.415(2) that a legal error have a substantial effect on the rights of any party

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trial error does not amount to an "error substantially affect-
ing the rights of a party" under ORS 19.415(2) if the record
demonstrates only that the error might have affected the
appellant's rights.

In Shoup v. Wal-Mart Stores, Inc., 335 Or 164, 61
P3d 928 (2003), the court devoted an extensive analysis to the
then-extant court-created rule that allowed the reversal of a
judgment if the appellate court could not determine ("we
can't tell") whether the particular trial error had led the jury
to return an erroneous verdict. Following that analysis, the
court held that awarding a new trial on appeal when the rec-
ord showed only that the assigned error might have affected
the outcome was not consistent with ORS 19.415(2). Rather,
the court decided that that statute requires this court to

that wishes to challenge the error because substantially the same requirement
appears in several other areas of Oregon law. ORS 40.025(1), which codifies OEC
103(1), provides:

"Evidentiary error is not presumed to be prejudicial. Error may not be
predicated upon a ruling which admits or excludes evidence unless a substan-
tial right of the party is affected[.]"

(Emphasis added.)

ORCP 12 B provides, in part:

"The court shall, in every stage of an action, disregard any error or defect
in the * * * proceedings which does not effect the substantial rights of the
adverse party."

(Emphasis added.)

Finally, Article VII (Amended), section 3, of the Oregon Constitution provides,
in part:

"If the supreme court shall be of opinion, after consideration of all the mat-
ters thus submitted, that the judgment of the court appealed from was such as
should have been rendered in the case, such judgment shall be affirmed, not-
withstanding any error committed during the trial; or if, in any respect, the
judgment appealed from should be changed, and the supreme court shall be of
opinion that it can determine what judgment should have been entered in the
court below, it shall direct such judgment to be entered in the same manner
and with like effect as decrees are now entered in equity cases on appeal to the
supreme court."

Under settled Oregon law, those quoted provisions require a showing that legal
error actually affects a substantial right of a party before the court will grant relief
from the error. See, e.g., Scanlon v. Hartman, 282 Or 505, 511, 579 P2d 851 (1978)
("To warrant reversal the ruling of the trial court must be not only erroneous, but
prejudicial[ ]" (citing Edward, Guardian, v. Hoevet, 185 Or 284, 200 P2d 955
(1949)). However, the majority's new standard, requiring a new trial where there is
only a possibility that the error affected the appellant's rights, places that settled
Oregon law in doubt.

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grant a new trial if, but only if, the record shows that an error
occurred and that the error did affect the outcome:

"The words of ORS 19.415(2) demonstrate that an error
must cause something more than the 'possibility' of a differ-
ent result before the appellate court may reverse a judg-
ment. * ** Thus, an error 'affecting' a party's rights is an
error that can be said to 'produce a material influence' or 'to
have a detrimental influence' on those rights, and not
merely one that 'might' have changed the outcome of the
case. The use of the adverb 'substantially' further limits the
type of error that can result in reversal of a judgment. 'Sub-
stantially' means 'in a substantial manner,' and the rele-
vant definition of 'substantial' is 'being of moment: IMPOR-
TANT, ESSENTIAL.'

"Those definitions indicate how far defendant's proposed
'outcome might have been different' standard is from the
standard set out in ORS 19.415(2). The possibility that an
error might have resulted in a different jury verdict is insuf-
ficient under the statute."

Id. at 173 (emphases in original; citation omitted).

In Lyons v. Walsh & Sons Trucking Co., Ltd., 337 Or
319, 96 P3d 1215 (2004), the plaintiffs in a wrongful death
case appealed from a judgment for the defendant based on a
special jury verdict. The plaintiffs sought a new trial, claim-
ing on appeal that the trial court, in instructing the jury, had
misinterpreted former ORS 18.470 (2001), renumbered as
ORS 31.600 (2003), regarding comparative fault. This court,
however, independently examined the record and deter-
mined that it could not reach the plaintiffs' instructional
error issue. Instead, this court determined that the jury had
simply answered "no" to a compound question on the special
verdict form regarding the subjects of negligence and causa-
tion and that, as a result, the court could not tell if the jury's
defense verdict rested on a permissible or an arguably imper-
missible ground. This court stated:

"Our inability to determine which ground led the jury to
decide as it did is important, because plaintiffs have focused
all their arguments in this court on the second part of the
question. That is, plaintiffs assert that the instructions that
the trial court gave and the evidence that it admitted
improperly permitted the jury to consider [police officer]

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Rector's conduct in assessing whether [defendant] Walsh's
conduct was a substantial factor in causing the accident.
But such errors by the trial court, if errors they were, are
irrelevant if the jury decided the case instead on the pris-
tine proposition that Walsh was not negligent."

Id. at 325 (footnote omitted). The court quoted ORS 19.415(2)
and recounted that Shoup had "explained that that statute
requires more than speculation concerning whether an
alleged error affected a jury's verdict[.]" Id. Then, in a pas-
sage that has particular relevance to this case, the court
stated:

"The jury verdict could have been based on one of two dif-
ferent rationales that the jury verdict form identified; it is
impossible to tell which the jury used. Plaintiffs' claims of
error may or may not be well taken, but they depend on an
assumption that the jury's verdict was based on one ration-
ale only. The present record does not support plaintiffs'
assumption, and, because they are asserting error, the con-
sequences of the inadequacy of the record in that respect
fall on plaintiffs. * ** That is, plaintiffs cannot show, on
this record, that any of the alleged errors about which they
complain 'substantially affect[ed]' their rights. Plaintiffs
thus cannot prevail here."

Id. at 326 (citation omitted). I will return to the rationale in
Lyons later in this opinion.

With the foregoing review of the court's current
interpretation of ORS 19.415(2) in mind, I turn to a review of
the pertinent facts of this case. It is necessary to do so,
because the majority opinion discusses the facts in a manner
that downplays or ignores certain facts that undermine its
stated result, thus impeding rather than aiding this court's
assessment of the underlying legal question.

We must review the record in the light most favor-
able to the party who prevailed below, plaintiff. This is an
action for breach of the uninsured motorist (UM) and per-
sonal injury protection (PIP) provisions of the automobile
insurance policy that defendant sold to plaintiff. Defendant's
automobile insurance policy provided coverage for injuries
caused by a "phantom" vehicle, which is one type of "unin-
sured" vehicle. In particular, the policy provides coverage for

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wrongful acts of the driver of an uninsured vehicle. Plaintiff
may recover damages for breach of contract against defen-
dant by demonstrating, among other things, that defendant
refused to pay the benefits of the policy, and that plaintiff had
a viable tort claim against the phantom vehicle driver and
could have obtained a favorable judgment against him. Vega
v. Farmers Ins. Co., 323 Or 291, 306, 918 P2d 95 (1996).

Plaintiff suffered serious personal injuries and
incurred significant medical expenses as the result of an
automobile accident with an unidentified "phantom" truck on
October 24, 1997. I refer in this opinion to that event as the
"first accident."

Plaintiff had a second automobile accident, and also
suffered personal injuries, on August 6, 1999. Plaintiff had a
third automobile accident on August 2, 2002, and suffered
additional personal injuries. Those accidents occurred before
this case went to trial. Plaintiff developed the theory, and
later claimed in court, that the damages that he suffered in
the second and third accidents were the natural, direct, and
foreseeable consequences of the first accident and, thus,
defendant was liable under its UM "phantom vehicle" cover-
age for the damages that plaintiff suffered in the second and
third accidents. I refer to those damages, as does the major-
ity, as "aggravation" damages. Defendant asserted that it
had no liability for any damages, including aggravation dam-
ages arising from the second and third accidents.

The trial court, prior to trial, had granted a partial
summary judgment in plaintiff's favor on the question
whether a "phantom vehicle," within the meaning of defen-
dant's policy, had caused plaintiff's injuries in the first acci-
dent. That decision narrowed the questions that the jury was
required to determine at trial. We may summarize those
issues as follows:

1\. What were plaintiff's monetary damages resulting from
the first accident on October 24, 1997, if any?

2\. Were the damages that plaintiff suffered in the second
and/or third accidents a consequence of the acts of the
driver of the phantom vehicle? If so, what is the amount
of those aggravation damages?

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Each party submitted proposed jury instructions on
those subjects. The trial court rejected the jury instructions
submitted by the parties and, instead, drafted its own, as
follows:

# "SUBSEQUENT ACCIDENTS-AGGRAVATION OF PRIOR INJURIES

"The contract entered into by the plaintiff and the defen-
dant sets forth that the defendant will provide coverage for
all the natural, direct and proximate consequences of the
wrongful acts of the driver of the phantom vehicle. If you
find that the plaintiff was injured by those acts in the acci-
dent of October 24, 1997, and then had a subsequent acci-
dent in which the plaintiff suffered further injury which
would not have occurred but for the original injury, the
defendant may then be held liable for the enhancement or
aggravation of plaintiff's injuries caused by the subsequent
accident.

"Defendant's liability would apply only to the injuries you
attribute to the accident of October 24, 1997, and to any
enhancement or aggravation of those injuries, not to any
new injuries suffered by plaintiff in any subsequent
accident."

It is clear that the court's instruction authorized the jury to
award damages for injuries that plaintiff suffered in the first
accident. The instruction additionally authorized the jury to
award aggravation damages if the jury found that, during
the second and third accidents, plaintiff suffered "further
injury which would not have occurred but for the original
injury" received in the first accident. The last sentence of the
court's instruction emphasized, to the point of redundancy,
the compound nature of the jury's authority: the jury could
find defendant liable only for injuries incurred in the first
accident. Separately, the jury also could find defendant liable
for "any enhancement or aggravation of those injuries" in the
second and third accidents, but could not award damages for
"any new injuries suffered by plaintiff" in the later accidents.
It is important to recognize that the jury instruction correctly
did not require the jury to award damages for any of plain-
tiff's accidents, and correctly permitted the jury, if it so
desired, to award damages solely for the first accident and to

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refuse to award any aggravation damages for the second and
third accidents.

Defendant objected to the instruction. Significantly,
defendant did not object to the instruction insofar as it per-
mitted the jury to hold defendant liable for injuries incurred
by plaintiff during the first accident. Rather, defendant con-
tended that the instruction should not grant the jury the
additional authority to award aggravation damages on the
basis of any injuries suffered by plaintiff during the second
and third accidents. It is only the latter contention regarding
the court's instruction that defendant pursues before this
court. I assume without deciding that defendant's latter con-
tention about the court's instruction is correct.

The parties and the court submitted a form of gen-
eral verdict to the jury. The jury returned the general verdict,
awarding plaintiff $50,000 and $25,000 in damages for
breach of the UM and PIP insurance provisions, respectively.
Because the parties and the court employed a general verdict
only, the record does not indicate whether the jury based its
award solely on the injuries plaintiff suffered during the first
accident or, instead, on some combination of those original
injuries plus other injuries suffered by plaintiff during the
second and third accidents (or either of them). That is, noth-
ing in the record signals whether the jury actually awarded
any damages for any aggravation of plaintiff's injuries that
the second or third accidents may have caused. What is clear
from the record is that the jury had before it sufficient evi-
dence to return its entire general verdict award in plaintiff's
favor on the basis of the injuries that plaintiff suffered in the
first accident alone, and no party argues to the contrary. That
fact is central to any proper consideration of the assigned
error on appeal, yet the majority fails to acknowledge it.

The majority states that "the trial court's instruction
gave the jury the wrong legal rule to apply. The instruction
told the jury that it could hold Allstate liable for damages for
which the jury could not, on this record, hold it legally
responsible." 344 Or at 322. That statement addresses the
first step in any instructional error inquiry: Did the chal-
lenged instruction state the law erroneously? However, the
instructional error dispute here concerns only the instruction

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regarding aggravation damages that plaintiff allegedly suf-
fered in the second and third accidents discussed above. As
noted, I assume for purposes of discussion that the instruc-
tion permitting the jury to award aggravation damages for
the second and third accidents was erroneous. The majority
commits error in failing to acknowledge that the instruc-
tional error dispute here concerns only the authorization to
award aggravation damages for the second and third
accidents.

The majority then proceeds to the second analytical
step: Did the arguably erroneous instruction affect the out-
come of the case? The correct rule in that regard appears in
Waterway Terminals v. P. S. Lord, 256 Or 361, 370, 474 P2d
309 (1970), a case that the majority cites but fails to quote:

"As a result, cases should not be reversed upon instructions,
despite technical imperfections, unless the appellate court
can fairly say that the instruction probably created an erro-
neous impression of the law in the minds of the jurymen
which affected the outcome of the case."

(Emphasis added.) The emphasized portion of that rule does
not permit reversal of a jury's verdict for instructional error if
the appellant shows only that the error might have affected
that party's rights.

Instead of asking the correct question-whether the
instruction regarding aggravation damages affected the ver-
dict in this case-the majority, quoting Allstate's arguments,
twists the applicable legal standard to allow reversal if the
challenged instruction merely "permits" an erroneous result:

"Allstate observes that, when an instruction tells the jury to
apply the wrong legal rule and the erroneous instruction
permits the jury to reach an incorrect result, this court con-
sistently has held that the error substantially affects the
party's rights."

344 Or at 322. For that proposition, the majority cites three
cases, none of which supports the majority's altered rule, and
one of which, Waterway Terminals, contradicts it.

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The majority's alteration of the correct rule is mis-
leading and distorts the proper application of ORS 19.415(2)
in this case. We must assume, of course, that the jury care-
fully listened to and followed all the court's instructions, and
awarded damages in conformity with its view of the evidence.
However, it did so only to the extent that the instructions per-
mitted it to do so. Because the jury returned only a general
verdict and because the challenged jury instruction stated
the jury's authority to award damages in a compound man-
ner, as described above, we can only speculate about whether
the jury's award includes any sum for aggravation damages
due to the second and third accidents. The majority errs in
refusing to acknowledge that the record does not demon-
strate that the jury awarded any sum for aggravation dam-
ages in response to the portion of the court's instruction that
defendant challenges.

Can this court, on the present record, reach and
decide defendant's claim that the court's instruction errone-
ously permitted the jury to consider awarding aggravation
damages for plaintiff's injuries received in his second or third
accidents? This court's extensive analysis in Shoup and
Lyons of the meaning of ORS 19.415(2) indicates that the
answer is "no." Lyons, in particular, illuminates the proper
analytical path here. According to Lyons, because neither the
general verdict nor any other part of the record here shows
that the jury's damages award includes aggravation dam-
ages for the second and third accidents, defendant's chal-
lenge to the instruction rests entirely on an unproven
assumption that the jury did award aggravation damages.
Defendant is the party who is asserting error and requesting
relief from the judgment below. As Lyons held, "the conse-
quences of the inadequacy of the record in that respect fall on
the appealing party," here, defendant.2 Defendant cannot
demonstrate, as ORS 19.415(2) requires, that the error of

2 The following passage from Shoup, quoted in Lyons, is especially pertinent
here:

""The rule embodied in ORS 19.415(2) is neutral as between plaintiffs and
defendants; it places the burden to make a record that demonstrates prejudi-
cial error on whichever party loses in the trial court and then seeks reversal or
modification of the judgment on appeal.'"

Lyons, 337 Or at 326 (quoting Shoup, 335 Or at 174).

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which it complains "substantially affect[ed]" its rights. Thus,
ORS 19.415(2) prevents this court from granting affirmative
relief to defendant.

Lyons recognized that this court's rationale in
Shoup, which concerned the submission to a jury of both per-
missible and impermissible claims of injury, also applies
when a jury verdict form reports a valid jury verdict but pro-
vides an unclear answer about how the jury resolved the
case. Specifically, the Lyons court, on its own motion,
declined to reach the claimed instructional error because the
jury's verdict form did not demonstrate with clarity that the
jury had based its verdict on the assertedly erroneous portion
of the challenged instruction. In the course of its discussion,
the court included the following sentence:

"Nor did this case involve other kinds of asserted trial
error, such as a faulty jury instruction, that may call for a
different analysis of whether the error 'substantially
affect[s] the rights of a party' under ORS 19.415(2)."

Lyons, 337 Or at 326.3 That sentence recognizes the obvious:
different kinds of asserted trial error may call for different
analysis. That includes, of course, asserted errors in a jury
instruction. However, that sentence is not a holding that the
court will not apply ORS 19.415(2) in cases, like Lyons and
this case, where an appealing party's claim of harm from an
allegedly erroneous jury instruction is not shown clearly in
the record.

The majority also attempts to distinguish Shoup on
the ground that Shoup categorically differentiated other
cases involving asserted errors in jury instructions, citing
the court's analysis, in a footnote, of Hernandez v. Barbo
Machinery Co., 327 Or 99, 957 P2d 147 (1998). Shoup, 335 Or
at 172 n 2. Hernandez, decided five years before Shoup, had
applied the then-accurate standard under ORS 19.415(2),

3 The quoted sentence from Lyons is ambiguous and probably erroneous and
misleading. Contrary to that sentence, the plaintiff in Lyons did seek to challenge
an assertedly erroneous jury instruction. The court declined to address that
assigned error because the record on appeal, including the special verdict returned
by the jury, failed to demonstrate that the allegedly faulty instruction in fact
affected the jury's verdict. Thus, properly analyzed, Lyons does identify a circum-
stance in which this court, in applying ORS 19.415(2), should decline to address a
challenge to an arguably erroneous jury instruction.

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that a party's rights were substantially affected by a trial
error-there, an erroneous jury instruction-if the outcome
either would have or may have been different had the error
not occurred. The correctness of Hernandez's application of
that standard in 1998 was not an issue before the court in
Shoup. Nevertheless, this court stated in the footnote in
question: "We do not, however, question the conclusion
reached by this court in Hernandez. The error in jury instruc-
tions at issue in Hernandez was 'reversible' under ORS
19.415(2)." Shoup, 335 Or at 172 n 2.

Those two sentences may be debated from several
viewpoints. However, it is not debatable that they are quite
conclusory and provide no analysis whatever to support their
accuracy. Moreover, the second sentence constitutes only
dictum and does not represent an authoritative holding of the
court. Again, the majority overblows the significance of the
two sentences in a footnote by stating that the instructional
error in Hernandez "marks the limit of Shoup's holding[,]"
344 Or at 324, and that Shoup "reaffirmed" the Hernandez
court's conclusion that instructional error alone substantially
affects a party's rights under ORS 19.415(2) if the error "may
have" led to a different outcome. Id. at 325.

Finally, the majority cites State v. Pine, 336 Or 194,
82 P3d 130 (2003). In Pine, the defendant appealed from a
criminal conviction for third-degree assault under ORS
163.165(1)(e). He argued that the trial court had erred in
instructing the jury by allowing a conviction without proof
that the defendant himself had caused any physical injury to
the victim but, instead, merely had aided another in causing
the injury. After the parties briefed the case, but before oral
argument, the state brought Shoup, which this court decided
earlier the same year, to the court's attention. The state con-
tended that there was some evidence in the record that defen-
dant in fact had personally caused physical injury to the vic-
tim. Thus, according to the state, the defendant could not
establish that he had been prejudiced by the alleged instruc-
tional error in the trial court. This court distinguished
Shoup, responding that, even if the jury had believed defen-
dant's version of the facts, the instructional error would have
led to a conviction for a nonexistent crime. Id. at 200. After
examining the statute in question in light of the defendant's

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version of the facts, the court stated, inconsistently, that the
instructional error "would have affected the outcome of the
case. That is so, because the jury could have convicted defen-
dant of third-degree assault under the instruction even if it
found that he had not caused physical injury to [the victim]
\* *. " Id. at 210 (emphases added). The opinion in Pine did
not confront the inconsistency of its conclusions that, on the
one hand, the instructional error affected the outcome of the
case and, on the other hand, the error could have affected the
outcome.

Apart from that analytical inconsistency, the Pine
opinion must be viewed in context. The criminal trial in Pine
occurred long before Shoup was decided, and the steps that
the defendant's trial counsel took to preserve the error at the
trial were sufficient under the rules of criminal procedure
that existed at that time. Had Shoup predated the trial, com-
petent counsel with notice of that case might have taken
additional steps to confirm the existence of prejudice from the
court's instruction.

However, even if we conclude that Pine's "possibility
of prejudice" discussion did reflect the court's view in that
criminal case, that establishes only that this court has writ-
ten inconsistently in deciding Pine, Shoup, and Lyons. There
are good reasons to follow the more explicit discussion of the
issue by this court in Shoup and Lyons.

As Lyons in particular emphasized, the core problem
in cases of this kind does not concern the allegedly erroneous
instruction. Instead, the problem concerns the deficiencies
and ambiguities in an appellate record that simply fails to
show that the challenged instruction affected the outcome of
the case. Shoup and Lyons hold that the appealing party has
the responsibility to make an adequate record regarding the
existence of genuine prejudice from the asserted trial error or
suffer the consequences. In this case, the majority simply
ignores the consequence that it imposed in Lyons. It is illogi-
cal for the majority to claim that its result here is consistent
with the rationale in Lyons.

In a final confusing twist, the majority purports to
distinguish the Lyons case on the ground that it involved a
form of jury verdict, not a claimed faulty jury instruction, as

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here. But the problem in Lyons was not that the form of the
jury verdict contained an error-indeed, the special jury ver-
dict format was not erroneous-but instead that neither the
verdict form nor any other part of the record demonstrated
that the jury in fact had applied the challenged jury instruc-
tion in reaching its verdict (i.e., that the challenged instruc-
tion affected the outcome of the jury's verdict). That is pre-
cisely the argument that plaintiff makes in this case, and the
court should give the same answer here that it gave in Lyons.
Thus, the majority relies on a distinction without a real
difference.

By asserting that Lyons is distinguishable, rather
than explaining or overruling the holding in Lyons, the
majority asserts to the trial bench and bar that both this case
and Lyons, despite their logically inconsistent results, are the
law of Oregon. The majority's response will lead to needless
and expensive litigation about whether, under the conflicting
results in this case and in Lyons, an appellate court can
decide that an asserted error in part of a compound jury
instruction warrants a new trial.

In a challenge to only a part of a jury's compound
authority to return a verdict, ORS 19.415(2) requires a show-
ing on review that the challenged aspect of the jury's author-
ity affected the verdict. In assessing whether such an error
requires reversal, it should not matter to the court whether
the trial court explained the jury's compound authority in a
jury instruction (as here) or in a special verdict form (as in
Lyons). This court should not have two opposite standards for
reversible error that depend only on the particular proce-
dural device that the trial court selected in describing the
jury's compound authority. Yet that is precisely the import of
the majority's assertion that Lyons is distinguishable from
this case.

This court should not have two substantively differ-
ent standards for granting relief under ORS 19.415(2): one
for cases involving claimed errors in jury instructions, in
which a showing of potential prejudice to the appellant's
rights will suffice, and a different one for cases involving
other claimed trial errors, in which only a showing of actual

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prejudice will suffice.4 Defendant stands in the same posi-
tion, as a matter of legal analysis, as the plaintiffs in Lyons
who sought review of an allegedly erroneous instruction
regarding comparative negligence. The appealing party in
each case asks this court to make the same unwarranted
assumption that the jury in fact employed the challenged
part of the jury instructions in rendering its verdict. This
court refused to address the asserted instructional error in
Lyons because the record did not show that the jury actually
based some part of its verdict on the challenged instruction.
This court, as noted, should give the same answer to defen-
dant here that it gave to the appealing parties in Lyons. ORS
19.415(2) has the same meaning for both cases. Because the
majority fails to apply ORS 19.415(2) in the same way that it
applied that statute in Lyons, I respectfully dissent.

4 The confusion resulting from the conflicting results here and in Lyons should
lead prudent trial counsel to protect their appellate records wherever possible by
requesting the use of special verdict interrogatories that identify precisely a jury's
possible application of any challenged jury instruction in reaching a verdict. Addi-
tionally, trial counsel should carefully examine proposed special jury verdict forms,
and revise or eliminate passages that express in a compound manner the jury's
authority to determine issues surrounding liability, damages, or affirmative
defenses.