Lasley v. Combined Transport, Inc.

Filed: September 22, 2011

IN THE SUPREME COURT OF THE STATE OF OREGON

CLARENCE D. LASLEY,
as Personal Representative for the ESTATE OF
MARK ALAN LASLEY,
Petitioner on Review,
v.

COMBINED TRANSPORT, INC.,
Respondent on Review,
and

JUDY MARIE CLEMMER,
Respondent on Review.

(CC 0608-08260; CA A137222; SC S058762)

En Banc

On review from the Court of Appeals.*

Argued and submitted May 2, 2011.

Stephen C. Hendricks of Hendricks Law Firm, P.C., Portland, argued the cause
and filed the brief for petitioner on review.

Allyson S. Krueger of Hitt Hiller Monfils Williams, LLP, Portland, argued the
cause and filed the brief for respondent on review Combined Transport.

Lindsey H. Hughes of Keating Jones Hughes, P.C., Portland, filed the brief for
amicus curiae Oregon Trucking Associations, Inc.

Shenoa L. Payne of Haglund Kelley Jones & Wilder, LLP, Portland, filed the brief
for amicus curiae Oregon Trial Lawyers Association.

WALTERS, J.

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.

DEMUNIZ, C.J., filed a dissenting opinion, in which Durham J., joined.
 *Appeal from Multnomah County Circuit Court, John Wittmayer, Judge. 234 Or
App 11, 227 P3d 1200, adh'd to on recons, 236 Or App 1, 237 P3d 859 (2010).
 1 WALTERS, J.

2 In this case we decide evidentiary and pleading questions that arose in the

3 trial of a multi-defendant negligence case. Plaintiff, decedent's father, brought this case

4 against defendants Combined Transport, Inc. (Combined Transport) and Judy Clemmer

5 (Clemmer). On the day that decedent died, a truck owned and operated by Combined

6 Transport lost part of its load of large panes of glass on the I-5 freeway. During the

7 clean-up, traffic backed up and decedent was stopped. Clemmer drove into decedent's

8 pickup, causing leaks in its fuel system. The ensuing fire killed decedent. Combined

9 Transport denied that it was negligent and that its conduct foreseeably resulted in

10 decedent's death. Clemmer admitted that she was negligent in driving at an unreasonable

11 speed and in failing to maintain a proper lookout and control. Clemmer also admitted

12 that her negligence was a cause of decedent's death. Based on the pleadings, the trial

13 court granted plaintiff's motion in limine to exclude evidence that Clemmer was

14 intoxicated at the time of the collision. The jury rendered a verdict against both

15 defendants, finding Combined Transport 22 percent at fault and Clemmer 78 percent at

16 fault for plaintiff's damages.

17 Combined Transport appealed and the Court of Appeals reversed,

18 concluding that the trial court had erred in excluding the evidence of Clemmer's

19 intoxication. The Court of Appeals held that that evidence was relevant to two issues:

20 "Although Clemmer admitted that she was negligent, the jury was
21 required to consider evidence of the circumstances relating to the accident
22 to determine whether Combined Transport's negligence was a substantial
23 factor in causing decedent's death and, if so, to apportion fault between
24 defendants. Clemmer's intoxication was relevant to those determinations.

1
 1 See Lyons v. Walsh & Sons Trucking Co., Ltd., 183 Or App 76, 84, 51 P3d
2 625 (2002), aff'd, 337 Or 319, 96 P3d 1215 (2004) (holding that '[w]hether
3 any particular cause, or any individual actor's conduct, is sufficiently
4 "substantial" to warrant the imposition of liability depends, properly, on a
5 consideration of the whole'). Accordingly, the trial court erred in excluding
6 evidence of Clemmer's intoxication."

7 Lasley v. Combined Transport, Inc., 234 Or App 11, 20-21, 227 P3d 1200, adh'd to on

8 recons, 236 Or App 1, 237 P3d 859 (2010). On reconsideration, the Court of Appeals

9 clarified its opinion:

10 "First, the evidence of intoxication is relevant to the jury's
11 'substantial factor' analysis because it is relevant to the cause of the
12 accident. There is an adequate factual nexus between the testimony
13 concerning the quality of Clemmer's driving and her consumption of
14 alcohol to allow the jury to make the determination that the alcohol affected
15 her ability to control her vehicle and keep a proper lookout. That, in turn,
16 could affect the jury's determination of what caused the accident.
17 Ostrander v. Alliance Corp., 181 Or App 283, 291, 45 P3d 1031, rev den,
18 335 Or 104 (2002). Accordingly, Clemmer's intoxication is relevant to the
19 cause-in-fact determination regarding the conduct of Combined Transport,
20 because the jury must consider the 'totality of potentially causative
21 circumstances' in making that determination. Lyons,183 Or App at 84.

22 "On the other hand, the evidence of intoxication is relevant to the
23 apportionment of fault, because it shows blameworthiness. The
24 considerations announced in Sandford v. Chev. Div. Gen. Motors, 292 Or
25 590, 608, 642 P2d 624 (1982), which are quoted in our original opinion,
26 Lasley, 234 Or App at 21-22, regarding the relevance of Clemmer's
27 previous driving history for the purpose of apportionment of fault, were
28 also pertinent to the relevance of Clemmer's intoxication for the same
29 purpose. The evidence of Clemmer's intoxication shows the degree of
30 Clemmer's departure from the standard of care of a reasonable person, and,
31 accordingly, is a proper consideration for the jury in apportioning fault."

32 236 Or App at 4.

33 We allowed plaintiff's petition for review. For the reasons we shall explain,

34 we decide that evidence of Clemmer's intoxication was not relevant to the issue of

2
 1 whether Combined Transport's negligence was a cause of decedent's death but was

2 relevant to the issue of apportionment of fault. We affirm the decision of the Court of

3 Appeals, reverse the judgment of the circuit court, and remand to the circuit court for

4 further proceedings.

5 I. CAUSATION

6 We begin with the question of whether evidence of Clemmer's intoxication

7 was relevant on the issue of causation. Plaintiff's argument that it was not proceeds as

8 follows: (1) Clemmer admitted causation, therefore the only causal issue before the jury

9 was whether Combined Transport's negligence also was a substantial factor in causing

10 decedent's death; (2) whether Combined Transport's negligence was a cause of decedent's

11 death is an independent question that does not depend on Clemmer's negligence; and

12 therefore (3) why Clemmer drove erratically and struck decedent's pickup was irrelevant.

13 Combined Transport parts ways with plaintiff at the second step of

14 plaintiff's argument. Combined Transport asserts that this court has not adopted and

15 should not adopt a rule that the causation of each tortfeasor must be decided "in total

16 isolation, separate and apart from the conduct of any co-tortfeasors, and without regard to

17 all of the circumstances that contributed to the plaintiff's injury." To determine whether

18 Combined Transport's conduct was a "substantial," as opposed to an "insignificant,"

19 factor in causing decedent's harm, Combined Transport contends that all of the evidence

20 concerning the events that led to that harm, including Clemmer's intoxication, was

21 admissible. Alternatively, Combined Transport argues, "[g]iven the nature and severity

22 of Clemmer's speed and drunk driving, Combined Transport was entitled to introduce

3
 1 evidence that Clemmer was going to cause the harm no matter what." (Emphasis in

2 original.) Why Clemmer drove erratically and struck defendant's pickup also was

3 relevant for that purpose.

4 In making those arguments, both parties accept the premise that, when the

5 negligence of multiple tortfeasors combines to produce harm, each tortfeasor whose

6 negligence was a cause of the harm may be held liable. Hills v. McGillvrey, 240 Or 476,

7 482-83, 402 P2d 722 (1965). The parties also agree that it is factual, not legal cause, at

8 issue in this case. This court has abolished not only the terms but also the concepts of

9 "proximate" and "legal" cause. Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336

10 Or 329, 340, 83 P3d 322 (2004); Simpson v. Sisters of Charity of Providence, 284 Or

11 547, 555, 588 P2d 4 (1978); McEwen v. Ortho Pharmaceutical, 270 Or 375, 385 n 7, 528

12 P2d 522 (1974). When a defendant's negligence is a factual cause of harm to the

13 plaintiff, the defendant is subject to liability to the plaintiff as long as the harm that the

14 plaintiff suffered was a reasonably foreseeable result of the defendant's negligence.

15 Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 17, 734 P2d 1326 (1987). Thus, the

16 concept of causation (determined as a purely factual matter) is a separate concept from

17 that of liability (determined by foreseeability and not by "proximate" or "legal" cause).

18 Although Combined Transport argued at trial that decedent's death was not

19 a foreseeable consequence of Combined Transport's negligence, we do not understand

20 Combined Transport to argue on appeal that Clemmer's intoxication was relevant to the

21 issue of foreseeability or that the "substantial factor" test permits evidence of intoxication

22 to determine "proximate" or "legal" cause. Combined Transport acknowledges, correctly,

4
 1 that the "substantial factor" test is a test of factual cause as explained by this court in

2 Sandford v. Chev. Div. Gen. Motors, 292 Or 590, 606, 642 P2d 624 (1982):

3 "Causation in Oregon law refers to causation in fact, that is to say, whether
4 someone examining the event without regard to legal consequences would
5 conclude that the allegedly faulty conduct or condition in fact played a role
6 in its occurrence."

7 See also Simpson, 284 Or at 561 (approving jury instruction using "substantial factor" test

8 to determine physical cause of harm); Stewart v. Jefferson Plywood Co., 255 Or 603, 606,

9 469 P2d 783 (1970) (using "substantial factor" when discussing "cause in fact"

10 connection); Babler Bros. v. Pac. Intermountain, 244 Or 459, 463, 415 P2d 735 (1966)

11 (noting that, in most negligence cases, "the factual inquiry whether the actor's conduct

12 was a substantial factor in producing the harm is relatively uncomplicated"); Dewey v.

13 A.F. Klaveness & Co., 233 Or 515, 541, 379 P2d 560 (1963) (phrasing the causation

14 standard as whether the defendant's conduct was a "substantial factor" in physically

15 producing the injury).

16 What Combined Transport does argue is that the "substantial factor" test is

17 intended to rule out, as a factual cause of harm, an act that is minimally significant in the

18 causal chain of events. Combined Transport contends that the "substantial factor" test

19 expresses a "concept of relativity" that permits a jury to consider the degree to which the

20 conduct of a particular defendant was a factor in causing the harm and to relieve a

21 defendant of liability if its conduct was insignificant or insubstantial when compared to

22 the conduct of others. In support of that contention, Combined Transport cites the

23 Restatement (Second) of Torts § 433 comment d (1977), which provides, in part:

5
 1 "Some other event which is a contributing factor in producing the harm
2 may have such a predominant effect in bringing it about as to make the
3 effect of the actor's negligence insignificant and, therefore, to prevent it
4 from being a substantial factor."

5 Combined Transport does not demonstrate, however, that this court has

6 adopted that comment, or that approach, as the law of Oregon.1 Combined Transport

7 begins with a citation to McEwen, 270 Or at 407-21, for the proposition that the conduct

8 of multiple defendants must be analyzed together to determine whether each defendant's

9 conduct was a cause of the plaintiff's harm. That proposition is correct. In McEwen, the

10 court considered the conduct of both defendants in the causation analysis and explained

11 that the plaintiff need not show that each defendant's negligence was

12 "sufficient to bring about plaintiff's harm by itself; it is enough that [each
13 defendant] substantially contributed to the injuries eventually suffered by
14 [the plaintiff.]"

15 Id. at 418. McEwen does not, however, stand for the additional proposition that, in every

16 multi-defendant case, the jury is entitled to relieve a defendant of liability if its

17 contribution to the plaintiff's injuries was insignificant when compared to the contribution

18 of another defendant.

19 In Smith v. J.C. Penney Co., 269 Or 643, 525 P2d 1299 (1974), the court

20 rejected one codefendant's request for a jury instruction that would have permitted just

21 such a comparison. In that case, one defendant, the owner of a service station, started a

1
We note that the Restatement (Second) has been superseded by the
Restatement (Third) of Torts (2005) and that the comment on which Combined Transport
relies has been deleted.

6
 1 fire in its waiting room, where the plaintiff happened to be standing. The second

2 defendant supplied flammable fabric that was used to construct the coat that the plaintiff

3 was wearing. Id. at 646. The court permitted the jury to consider the conduct of each

4 defendant in determining whether the conduct of each or both contributed to the

5 plaintiff's injuries. However, the court rejected the gas station's request for an instruction,

6 pursuant to the Restatement (Second) of Torts § 433 comment d, that the jury should

7 determine whether the fabric supplier's conduct had such a predominant effect in bringing

8 about the injuries that it made the gas station's conduct "insignificant" and therefore not a

9 cause of the plaintiff's injuries. Id. at 659. The court stated that the principle reflected in

10 comment d was not applicable to the facts presented because "[t]he jury would have to

11 find that [the gas station owner's] conduct was a substantial factor in causing an injury to

12 the plaintiff of some extent." Id. at 660. The court did not adopt comment d as the law of

13 Oregon or describe the circumstances in which it might be appropriate to permit a jury to

14 relieve a defendant of liability because the effect of its conduct was relatively

15 insignificant in the causal chain of events.

16 The other cases on which Combined Transport relies -- Joshi v. Providence

17 Health System, 342 Or 152, 149 P3d 1164 (2006), and Furrer v. Talent Irrigation

18 District, 258 Or 494, 466 P2d 605 (1971) -- were not multi-defendant cases. Joshi was a

19 malpractice case in which the court held that the plaintiff was not permitted to adduce

20 expert testimony that, if the defendant had taken certain actions, the decedent would have

21 had a 30 percent greater chance of an improved outcome. The court was not called on to

22 decide, and did not decide, that, even if the defendant's conduct was a cause of the

7
 1 decendent's death, the defendant could not be held liable if its conduct was relatively

2 insignificant.

3 In Furrer, the trial court instructed the jury as follows:

4 "'If you find from the preponderance of the evidence that defendant
5 was negligent in at least one of the particulars charged in plaintiff's
6 amended complaint, and further find from a preponderance of the evidence
7 that the negligence of the defendant was a substantial factor in causing
8 damage to plaintiff, the defendant would be liable for all the damages you
9 find the plaintiff has suffered even though the acts of others might also
10 have contributed to said damage.'"

11 258 Or at 510. One of the defendant's objections to that instruction was that the court had

12 erred in failing to further define the term "substantial factor." In discussing that

13 objection, the court stated that

14 "[t]he term 'substantial factor' expresses a concept of relativity which is
15 difficult to reduce to further definiteness. Little, if anything, can be done
16 with words to help the jury decide how much causal relationship must exist
17 between conduct and damage before it constitutes a basis for recovery."

18 Id. at 511. The court concluded that further explanation would not materially enlighten

19 the jury and that the trial court had not erred. Id. at 511-12. Like Joshi, Furrer did not

20 present the issue of whether, in every multi-defendant case, a jury is entitled to compare

21 the significance of the defendants' conduct.

22 It may be possible to imagine a circumstance in which one defendant's act

23 is a factual cause of a plaintiff's harm in the sense that the harm would not have occurred

24 absent the defendant's conduct, but in which that defendant's conduct is so insignificant,

25 when contrasted with the conduct of a second defendant, that the first defendant's conduct

26 should not be deemed a cause of the plaintiff's harm. However, for the reasons that we

8
 1 shall explain, that circumstance is not presented here, and, therefore, we do not address

2 it.2

3 In this case, both the conduct of Clemmer and the conduct of Combined

4 Transport were substantial factors in contributing to decedent's death. Clemmer admitted

5 that her conduct in driving her car into decedent's pickup with such force that leaks in its

6 fuel system caused the pickup to ignite was a substantial factor in causing decedent's

7 death. The jury found that Combined Transport's conduct in spilling a load of glass

8 panes on the freeway caused decedent to bring his pickup to a stop. Based on expert

9 testimony that, had decedent been moving at or close to the speed limit when Clemmer

10 hit him, the impact of the collision would not have been as great, decedent's truck would

11 not have ignited, and decedent would not have died, the jury found that Combined

12 Transport's conduct also was a substantial factor in causing decedent's death. The

13 additional fact that Combined Transport sought to prove -- that Clemmer was intoxicated

14 at the time of the collision -- could not make Clemmer's conduct any more significant or

15 Combined Transport's conduct any less significant in that causation analysis.

16 Combined Transport's primary argument -- that evidence of Clemmer's

17 intoxication could establish that her conduct was more significant in the causation

18 analysis -- confuses causation and negligence. In deciding whether a defendant's act is a

19 factual cause of a plaintiff's harm, the effect of the defendant's conduct, and not whether

2
For the position that cause is not a relative concept, see the Restatement
(Third) of Torts § 26.

9
 1 that conduct fell below the expected standard of care, is the relevant consideration. So,

2 for instance, if Clemmer had been sober, driving at a reasonable rate of speed, keeping a

3 proper lookout, and maintaining control of her car on the night of decedent's death, and if

4 she had, nevertheless, collided with decedent's stationary pickup with such force that the

5 truck ignited and decedent died, Clemmer's conduct would have been a cause of his

6 death. That would be so even though Clemmer was not negligent and could not be held

7 liable to plaintiff.

8 In this case, Clemmer admitted that her conduct -- colliding with decedent's

9 pickup -- had the effect of killing him. Evidence that Clemmer was under the influence

10 of alcohol when she engaged in that conduct could not make its causal effect any greater.

11 Evidence that Clemmer was under the influence of alcohol could prove an additional way

12 in which Clemmer deviated from the standard of care; it could not prove an additional

13 way in which Clemmer contributed to the chain of events that caused decedent's death.

14 Combined Transport argues, alternatively, that evidence of Clemmer's

15 intoxication was relevant to demonstrate that Combined Transport's conduct was less

16 significant in the causation analysis. Combined Transport contends that it was entitled to

17 prove that, because Clemmer was intoxicated, she would have collided with decedent's

18 pickup and killed him, even if he had not been stopped on the freeway. In other words,

19 Combined Transport contends that evidence of Clemmer's intoxication was relevant to

20 prove that Combined Transport's conduct did not contribute to decedent's death at all; the

21 collision and death would have occurred even if decedent had been travelling at or near

22 the speed limit.

10
 1 Although Combined Transport's alternative argument may have merit in the

2 abstract, it fails on the record before us. Combined Transport did not proffer evidence

3 that showed that, because Clemmer was intoxicated, she inevitably would have killed

4 decedent, even if his pickup had not been stationary.

5 In the offer of proof that it submitted in opposition to plaintiff's motion in

6 limine, Combined Transport asserted that a qualified expert physician would testify to

7 Clemmer's blood alcohol level at the time of the collision, would testify that Clemmer

8 was so intoxicated that she was in a "'near medical 'stupor,'" and would testify that

9 "intoxication was the cause of the accident and if Clemmer were not intoxicated, the

10 accident would not have occurred." Combined Transport asserted that two lay witnesses

11 who were drinking alcohol with Clemmer before the collision would testify to the amount

12 of alcohol that Clemmer drank before she got in her car and that they "believed that

13 Clemmer should not [have been] driving due to her intoxication." Combined Transport

14 also asserted that 11 lay witnesses saw Clemmer driving and also "believed that her

15 erratic and reckless driving was the result of intoxication."

16 The trial court excluded all evidence of Clemmer's intoxication, but

17 permitted the 11 lay witnesses to describe Clemmer's excessive speed and the erratic

18 manner in which she drove. Many of those witnesses were themselves on the freeway,

19 many in moving vehicles. Clemmer did not collide with any of them, although some

20 testified that she "almost" did. The evidence that the court permitted did not demonstrate

21 that Clemmer would have caused the collision and decedent's death even if decedent had

22 been travelling at or near the speed limit. The evidence that the court excluded -- that

11
 1 Clemmer was intoxicated when she drove at that excessive speed and in that erratic

2 manner -- would not have supplied the missing connection.

3 Because the fact of Clemmer's intoxication would not have made

4 Clemmer's conduct more significant or Combined Transport's conduct less significant in

5 the causation analysis, it was not relevant to that issue. We proceed to the issue of

6 whether evidence of Clemmer's intoxication was, nevertheless, relevant to the issue of the

7 apportionment of fault under ORS 31.600.

8 II. APPORTIONMENT OF FAULT

9 When a trier of fact determines that multiple defendants were negligent and

10 that the conduct of each was a cause-in-fact of the plaintiff's harm, the trier of fact is then

11 required to determine the relative fault of the defendants and to apportion the plaintiff's

12 damages between them on that basis. ORS 31.600(2). Plaintiff concedes that, under

13 Sandford, 292 Or at 600-08, the trier of fact is required to compare the degree to which

14 each defendant deviated from the standard of care and is therefore "blameworthy."

15 Plaintiff asserts, however, that in this case the only evidence of Clemmer's

16 blameworthiness that the jury was entitled to consider was evidence material to the

17 specifications of negligence that plaintiff pleaded and that Clemmer admitted. Plaintiff

18 alleged, and Clemmer admitted, that Clemmer was negligent in driving at an excessive

19 speed and in failing to keep a proper lookout and control of her car. Plaintiff did not

20 allege that Clemmer was negligent in driving while intoxicated. Therefore, plaintiff

21 contends, Clemmer's intoxication was not material to a comparison of the fault of the

22 parties as framed by the pleadings.

12
 1 Combined Transport counters that it filed two pleadings that permitted the

2 introduction of evidence of Clemmer's intoxication on the issue of her relative fault: (1)

3 its answer that included a general denial, and (2) a cross-claim against Clemmer for

4 contribution that included affirmative allegations that Clemmer was negligent in driving

5 under the influence of intoxicants. Alternatively, Combined Transport asks that, if this

6 court decides that Combined Transport was required to affirmatively plead the fact of

7 Clemmer's intoxication but that a cross-claim for contribution was not the appropriate

8 vehicle to do so, we construe its cross-claim as an affirmative defense.

9 The Court of Appeals did not specifically address those pleading issues.

10 The Court of Appeals simply concluded that evidence of Clemmer's intoxication was

11 relevant to apportion fault between defendants. Lasley, 234 Or App at 20.

12 For the reasons that follow, we hold that, in a comparative negligence case,

13 a defendant that seeks to rely on a specification of negligence not alleged by the plaintiff

14 to establish a codefendant's proportional share of fault must affirmatively plead that

15 specification of negligence and do so in its answer as an affirmative defense and not in a

16 cross-claim for contribution. In the special circumstances that this case presents, we

17 construe Combined Transport's cross-claim as an affirmative defense alleging that

18 Clemmer deviated from the standard of care by driving under the influence of intoxicants

19 and decide that evidence of Clemmer's intoxication was material and relevant.

20 We begin by discussing Combined Transport's argument that evidence of

21 Clemmer's intoxication was admissible under its general denial. Combined Transport

22 argues that Oregon's comparative fault statutes require the jury to compare the fault of the

13
1 parties and, therefore, make all facts relevant to that comparison admissible. ORS

2 31.600(2) requires that the trier of fact "compare the fault of the claimant with the fault of

3 any party against whom recovery is sought, the fault of third party defendants who are

4 liable in tort to the claimant, and the fault of any person with whom the claimant has

5 settled."3 ORS 31.605 provides that "[w]hen requested by any party the trier of fact shall

6 answer special questions indicating * * * [t]he degree of fault of each person specified in

7 ORS 31.600(2)."4 Because the comparative fault statutes require that comparison, we

3
ORS 31.600(2) provides:

"The trier of fact shall compare the fault of the claimant with the
fault of any party against whom recovery is sought, the fault of third party
defendants who are liable in tort to the claimant, and the fault of any person
with whom the claimant has settled. The failure of a claimant to make a
direct claim against a third party defendant does not affect the requirement
that the fault of the third party defendant be considered by the trier of fact
under this subsection. Except for persons who have settled with the
claimant, there shall be no comparison of fault with any person:

"(a) Who is immune from liability to the claimant;

"(b) Who is not subject to the jurisdiction of the court; or

"(c) Who is not subject to action because the claim is barred by a
statute of limitation or statute of ultimate repose."
4
ORS 31.605(1) provides:

"When requested by any party the trier of fact shall answer special
questions indicating:

"(a) The amount of damages to which a party seeking recovery
would be entitled, assuming that party not to be at fault.

"(b) The degree of fault of each person specified in ORS 31.600(2).

14
 1 agree with Combined Transport that all evidence that may bear on that comparison is

2 potentially relevant. That does not answer the question, however, whether a defendant

3 that intends to rely on a specification of negligence not pleaded by a plaintiff must

4 affirmatively plead those facts to make them admissible.

5 In this case, plaintiff alleged that Clemmer was negligent in driving at an

6 excessive speed and in failing to maintain a proper lookout and control of her vehicle.

7 Plaintiff also could have alleged, as a separate, additional, specification of negligence,

8 that Clemmer was negligent in driving under the influence of intoxicants. See Winn v.

9 Gilroy, 296 Or 718, 720, 681 P2d 776 (1984) (in wrongful death action, plaintiff alleged

10 that defendant was negligent in several particulars, including driving while intoxicated);

11 ORS 813.010 (making it a crime to drive under the influence of intoxicants). However,

12 without pleading those ultimate facts in his complaint, plaintiff would not have been

13 permitted to rely on evidence of those facts to establish Clemmer's liability. See ORCP

14 18 A (requiring plaintiff to plead 'ultimate facts constituting a claim for relief'); Holger v.

15 Irish, 316 Or 402, 407, 851 P2d 1122 (1993) (pleader required to allege way in which

16 defendant was negligent); Rauw v. Huling and Sparks, 199 Or 48, 64, 259 P2d (1953)

17 (evidence incompetent to establish act of negligence plaintiff did not allege).

18 When a defendant seeks to avoid liability to the plaintiff by asserting that

The degree of each person's fault so determined shall be expressed as a
percentage of the total fault attributable to all persons considered by the
trier of fact pursuant to ORS 31.600."

15
 1 the plaintiff or another tortfeasor should be held responsible for the plaintiff's damages,

2 Oregon law also anticipates that the defendant will alternatively plead the facts on which

3 it relies. When a defendant contends that the plaintiff was at fault, the defendant must

4 affirmatively plead "comparative or contributory negligence" in its answer as an

5 affirmative defense. ORCP 19 B.5

6 When a defendant contends that a tortfeasor who has not been joined in the

7 action or with whom the plaintiff has settled was at fault, the defendant must file a third-

8 party complaint against the tortfeasor or otherwise affirmatively allege the fault of that

9 tortfeasor. ORS 31.600(3). That statute provides:

10 "A defendant who files a third party complaint against a person
11 alleged to be at fault in the matter, or who alleges that a person who has
12 settled with the claimant is at fault in the matter, has the burden of proof in
13 establishing [that the other person was at fault and that that fault was a
14 contributing cause to injury or death]."

15 (Emphases added.)

5
ORCP 19 B provides:

"In pleading to a preceding pleading, a party shall set forth
affirmatively accord and satisfaction, arbitration and award, assumption of
risk, comparative or contributory negligence, discharge in bankruptcy,
duress, estoppel, failure of consideration, fraud, illegality, injury by fellow
servant, laches, license, payment, release, res judicata, statute of frauds,
statute of limitations, unconstitutionality, waiver, and any other matter
constituting an avoidance or affirmative defense. When a party has
mistakenly designated a defense as a counterclaim or a counterclaim as a
defense, the court on terms, if justice so requires, shall treat the pleading as
if there had been a proper designation."

(Emphasis added.)

16
 1 When a defendant contends that a codefendant was at fault, the defendant

2 also must affirmatively allege the unpleaded fault of the codefendant. As noted, ORCP

3 19 B requires that a party set forth affirmatively allegations of "comparative negligence."

4 That requirement is not limited to allegations of the comparative negligence of a plaintiff.

5 In addition, ORCP 19 B requires a defendant to set forth affirmatively "any other matter

6 constituting an avoidance or affirmative defense."

7 A general denial is required to "fairly meet the substance of the allegations

8 denied." ORCP 19 A. Therefore, a general denial does not put at issue facts that a

9 plaintiff has not pleaded. Deering v. Alexander, 281 Or 607, 613, 576 P2d 8 (1978),

10 describes the distinction between a general denial and an affirmative defense:

11 "Under Oregon pleading rules, evidence which controverts facts
12 necessary to be proved by plaintiff may be shown under a general denial.
13 * * *. However, where the defendant desires to present evidence which
14 does not directly controvert a fact necessary to be established by plaintiff, it
15 is a new matter which must be pleaded as an affirmative defense."

16 (Internal citations omitted.) This court has defined "new matter" as consisting of "a

17 statement of facts different from those averred by the plaintiff and not embraced within

18 the judicial inquiry into their truth." Hubbard v. Olsen-Roe Transfer Co., 110 Or 618,

19 627, 224 P 636 (1924). When a defendant seeks to avoid liability for the damages that a

20 plaintiff claims by asserting that a codefendant engaged in more blameworthy negligent

21 conduct not pleaded by the plaintiff, the defendant relies for that defensive posture on

22 facts different from those averred by the plaintiff.

23 In combination, ORS 31.600(3) and ORCP 19 B establish that a defendant

24 must, in some way, affirmatively plead a specification of negligence on which it intends

17
1 to rely, and that has not been pleaded by the plaintiff, to establish the fault of a

2 codefendant. A general denial will not permit a defendant to adduce evidence of a

3 codefendant's unpleaded negligence to avoid liability to the plaintiff.

4 We next address Combined Transport's argument that a defendant may

5 affirmatively plead the negligence of a codefendant in a cross-claim for contribution.

6 The current comparative negligence scheme provides that the proportional share of fault

7 of each tortfeasor will be determined in the negligence action brought by the plaintiff.

8 ORS 31.805(1).6 However, that was not always the case.7 In 1971, the contribution

6
ORS 31.805(1) provides:

"The proportional shares of tortfeasors in the entire liability shall be
based upon their relative degrees of fault or responsibility. In contribution
actions arising out of liability under ORS 31.600, the proportional share of
a tortfeasor in the entire liability shall be based upon the tortfeasor's
percentage of the common negligence of all tortfeasors."
7
In 1971, the legislature adopted the first comparative fault statute, which
abolished contributory negligence as a complete bar to recovery. Or Laws 1971, ch 668,
§ 1 (Spec Sess). Under that statute, the plaintiff's fault was compared with that of the
defendant, and the plaintiff's recovery was diminished by his or her own proportion of
fault, provided that the plaintiff's fault was not greater than the defendant's.

In 1995, the legislature amended that statute to its current form. The
legislature added a section that detailed the parties that were to be included in the
comparison of fault and provided, in part:

"(2) The trier of fact shall compare the fault of the claimant with the
fault of any party against whom recovery is sought, the fault of third party
defendants who are liable in tort to the claimant, and the fault of any person
with whom the claimant has settled. The failure of a claimant to make a
direct claim against a third party defendant does not affect the requirement
that the fault of the third party defendant be considered by the trier of fact
under this subsection."

18
1 statute permitted contribution amongst co-tortfeasors based on their pro rata share of

2 liability.8 The legislature amended both the comparative fault and the contribution

3 statutes in 1975.9 The legislature amended the comparative fault statute to permit the

Former ORS 18.470 (1997), renumbered as ORS 31.600 (2003).
8
The original version of former ORS 18.440 provided, in part:

"(1) Except as otherwise provided in this Act, where two or more
persons become jointly or severally liable in tort for the same injury to
person or property or for the same wrongful death, there is a right of
contribution among them even though judgment has not been recovered
against all or any of them.

"(2) The right of contribution exists only in favor of a tortfeasor who
has paid more than his pro rata share of the common liability, and his total
recovery is limited to the amount paid by him in excess of his pro rata
share. No tortfeasor is compelled to make contribution beyond his own pro
rata share of the entire liability."

Or Laws 1971, ch 665, § 1 (Spec Sess).
9
The amendments to the comparative fault statutes provided for a
comparison of fault between any party, including multiple defendants:

"Contributory negligence shall not bar recovery in an action by any
person * * * to recover damages for death or injury to person or property if
the fault attributable to the person seeking recovery was not greater than the
combined fault of the person or persons against whom recovery is sought,
but any damages allowed shall be diminished in the proportion to the
percentage of fault attributable to the person recovering. This section is not
intended to create or abolish any defense."

Or Laws 1975, ch 599, § 1 (Spec Sess) (italicized portions removed, emphasis omitted).

The amendments to the contribution statute provided that a tortfeasor was
liable in contribution only for its proportional, not its pro rata, shares. The relevant part
of that statute provided:

"(1) Except as otherwise provided in this section, where two or more

19
 1 trier of fact to compare the fault of all parties. The legislature amended the contribution

2 statute to reflect that co-tortfeasors were entitled to contribution for any amount in excess

3 of their "proportional share" of liability.

4 At that time, liability was joint and several, and a plaintiff could collect a

5 judgment in its entirety from any one of the defendants. The defendants then could

6 engage in litigation between themselves to allocate ultimate responsibility for payment.

7 See DeMaris v. Whittier, 280 Or 25, 27, 569 P2d 605 (1977); Case v. McKinnis, 107 Or

8 223, 213 P 422 (1923) (illustrating proposition).

9 In 1995, the legislature again changed the comparative negligence scheme.

10 Or Laws 1995, ch 696, §§ 1-5 (Spec Sess). The current law reflects those changes. Most

11 significantly, for our discussion, the legislature eliminated joint and several liability. Or

12 Laws 1995, ch 696, § 5 (Spec Sess).10 Now, under ORS 31.610, liability is several only;

persons become jointly or severally liable in tort for the same injury to
person or property or for the same wrongful death, there is a right of
contribution among them even though judgment has not been recovered
against all or any of them. There is no right of contribution from a person
who is not liable in tort to the claimant.

"(2) The right of contribution exists only in favor of a tortfeasor who
has paid more than his proportional share of the common liability, and his
total recovery is limited to the amount paid by him in excess of his
proportional share. No tortfeasor is compelled to make contribution
beyond his own proportional share of the entire liability."

Or Laws 1975, ch 269, § 1 (Spec Sess) (italicized portions removed, emphases omitted).
10
Former ORS 18.485, renumbered as ORS 31.610, provided for joint and
several liability. In 1987, the legislature amended that statute to provide that
noneconomic damages were several only. Or Laws 1987, ch 774, § 7. In 1995, the

20
1 a tortfeasor is responsible only for its percentage of fault as determined in the action

2 brought by the plaintiff.11

legislature amended the statute to abolish joint liability for all civil actions "arising out of
bodily injury, death or property damage[.]" Or Laws 1995, ch 696, § 5 (Spec Sess).
11
ORS 31.610 provides, in part:

"(1) Except as otherwise provided in this section, in any civil action
arising out of bodily injury, death or property damage, including claims for
emotional injury or distress, loss of care, comfort, companionship and
society, and loss of consortium, the liability of each defendant for damages
awarded to plaintiff shall be several only and shall not be joint.

"(2) In any action described in subsection (1) of this section, the
court shall determine the award of damages to each claimant in
accordance with the percentages of fault determined by the trier of fact
under ORS 31.605 and shall enter judgment against each party determined
to be liable. The court shall enter a judgment in favor of the plaintiff
against any third party defendant who is found to be liable in any degree,
even if the plaintiff did not make a direct claim against the third party
defendant. The several liability of each defendant and third party
defendant shall be set out separately in the judgment, based on the
percentages of fault determined by the trier of fact under ORS 31.605. The
court shall calculate and state in the judgment a monetary amount reflecting
the share of the obligation of each person specified in ORS 31.600(2). Each
person's share of the obligation shall be equal to the total amount of the
damages found by the trier of fact, with no reduction for amounts paid in
settlement of the claim or by way of contribution, multiplied by the
percentage of fault determined for the person by the trier of fact under ORS
31.605.

"(3) Upon motion made not later than one year after judgment has
become final by lapse of time for appeal or after appellate review, the court
shall determine whether all or part of a party's share of the obligation
determined under subsection (2) of this section is uncollectible. If the court
determines that all or part of any party's share of the obligation is
uncollectible, the court shall reallocate any uncollectible share among the
other parties. The reallocation shall be made on the basis of each party's
respective percentage of fault determined by the trier of fact under ORS

21
1 When the legislature made that change, it did not amend or repeal the

2 contribution statute. Thus, under Oregon's current comparative negligence scheme, no

3 tortfeasor is liable for more than its percentage of fault, and that percentage of fault is

4 determined in the original negligence action brought by the plaintiff. ORS 31.610(2);

5 ORS 31.805. A defendant cannot bring a contribution action to seek a different

31.605. The claimant's share of the reallocation shall be based on any
percentage of fault determined to be attributable to the claimant by the trier
of fact under ORS 31.605, plus any percentage of fault attributable to a
person who has settled with the claimant. Reallocation of obligations under
this subsection does not affect any right to contribution from the party
whose share of the obligation is determined to be uncollectible. Unless the
party has entered into a covenant not to sue or not to enforce a judgment
with the claimant, reallocation under this subsection does not affect
continuing liability on the judgment to the claimant by the party whose
share of the obligation is determined to be uncollectible.

"(4) Notwithstanding subsection (3) of this section, a party's share of
the obligation to a claimant may not be increased by reason of reallocation
under subsection (3) of this section if:

"(a) The percentage of fault of the claimant is equal to or greater
than the percentage of fault of the party as determined by the trier of fact
under ORS 31.605; or

"(b) The percentage of fault of the party is 25 percent or less as
determined by the trier of fact under ORS 31.605.

"(5) If any party's share of the obligation to a claimant is not
increased by reason of the application of subsection (4) of this section, the
amount of that party's share of the reallocation shall be considered
uncollectible and shall be reallocated among all other parties who are not
subject to subsection (4) of this section, including the claimant, in the same
manner as otherwise provided for reallocation under subsection (3) of this
section."

(Emphases added.)

22
 1 determination of its percentage of fault. A contribution action serves only to permit a

2 defendant who has "paid more" than its "proportional share of the common liability" to

3 obtain contribution from another person who is also liable for the same injury or death.

4 ORS 31.800(2).12

5 Because a defendant's liability is several only and the defendant is not

6 obligated to pay more than its proportional share of liability, it seems that the

7 circumstances in which a defendant will pay more than its proportional share and,

8 therefore, have a reason to seek contribution from a codefendant will be quite limited.

9 However, ORS 31.800(2) continues to permit a claim for contribution should those

10 circumstances exist. And, should those circumstances exist, a defendant could use a

11 cross-claim to assert a claim for contribution against a codefendant. ORCP 22 B defines

12 a cross-claim as a claim "existing in favor of the defendant asserting the cross-claim and

13 against another defendant, between whom a separate judgment might be had in the

14 action[.]" A defendant who "has paid" its proportional share could seek a separate

15 judgment against a codefendant for the excess amount of its payment and do so by means

12
ORS 31.800(2) provides:

"The right of contribution exists only in favor of a tortfeasor who has
paid more than a proportional share of the common liability, and the total
recovery of the tortfeasor is limited to the amount paid by the tortfeasor in
excess of the proportional share. No tortfeasor is compelled to make
contribution beyond the proportional share of the tortfeasor of the entire
liability."

(Emphasis added.)

23
 1 of a cross-claim.

2 A cross-claim for contribution is not, however, perfectly adapted for use by

3 defendant to allege that a co-defendant is at fault for the plaintiff's damages and should be

4 held liable, not to the defendant, but to the plaintiff. In that instance, the defendant does

5 not seek a separate judgment against the codefendant as required by ORCP 22 B. Even

6 so, the comparative negligence statutes indicate that such a pleading may be permitted.

7 As noted, when a plaintiff does not join a tortfeasor as a defendant, the comparative

8 negligence statutes permit the named defendant to file a third-party complaint against the

9 tortfeasor. ORS 31.600(3). In that instance, the third-party defendant will not be liable

10 to the defendant but, potentially, will be liable to the plaintiff. However, ORCP 22 C(1)

11 restricts third-party claims to circumstances in which a third party "is or may be liable to

12 the third party plaintiff." Thus, although ORCP 22 C(1) indicates that a third-party claim

13 is designed for the circumstance in which the third-party defendant is or may be liable to

14 the third-party plaintiff, ORS 31.600(3) permits a defendant to file a third-party

15 complaint to allege that a third-party defendant is at fault and potentially liable to the

16 plaintiff. ORS 31.600(2) specifically provides that the fact that a plaintiff is not a party to

17 the third-party claim does not prevent the trier of fact from comparing the fault of the

18 third-party defendant in the action brought by the plaintiff.13

13
ORS 31.600(2) provides that "[t]he failure of a claimant to make a direct
claim against a third party defendant does not affect the requirement that the fault of the
third party defendant be considered by the trier of fact[.]"

24
 1 Thus, the legislature anticipated that a defendant could file a third-party

2 complaint against a tortfeasor who would not be liable to the defendant but who could,

3 instead, be liable to the plaintiff. Whether the legislature intended to permit a defendant

4 to make a cross-claim against a codefendant who would not be liable to the defendant

5 but, instead, would be liable to the plaintiff, is unclear.

6 Neither an affirmative defense nor a cross-claim for contribution is ideally

7 designed as a mechanism for a defendant to plead the negligence of a codefendant that is

8 not pleaded by the plaintiff and thereby to avoid or reduce the defendant's liability to the

9 plaintiff. An affirmative defense is directed at a plaintiff, not at a codefendant. A cross-

10 claim for contribution is directed at a codefendant and is not designed to avoid liability to

11 a plaintiff. On balance, however, we think that an affirmative defense is the pleading

12 mechanism that a defendant should use. The use of an affirmative defense is consistent

13 with the terms of ORCP 19 B, whereas the use of a cross-claim for contribution would

14 require modification of the terms of ORCP 22 B(1) and ORS 31.800. We hold that a

15 defendant that does not allege that it has paid more than its proportional share of liability

16 and that does not seek a separate judgment against a codefendant for the amount of that

17 excess payment, but that instead seeks to avoid paying the full damages that a plaintiff

18 has alleged on the basis that a codefendant is more at fault in a way that was not alleged

19 by the plaintiff, must plead the specification of negligence on which the defendant relies

20 as an affirmative defense in its answer to the plaintiff's complaint and not in a separate

21 cross-claim against the codefendant.

22 In this case, Combined Transport did not allege in its cross-claim that it had

25
 1 paid more than its proportional share of liability or seek a money judgment against

2 Clemmer. Combined Transport alleged that Clemmer was driving under the influence of

3 intoxicants and sought to have Clemmer "contribute such amount as is proportionate to

4 her share." Combined Transport should have included those allegations in its answer as

5 an affirmative defense. Because it did not, Combined Transport requests that we

6 construe its cross-claim as an affirmative defense under ORCP 12. We now turn to that

7 argument.

8 Important to resolution of that issue is an understanding of the pleadings

9 that Combined Transport filed and the rulings that the trial court made. In its answer to

10 plaintiff's complaint, Combined Transport included an affirmative defense and two cross-

11 claims. In the affirmative defense, Combined Transport alleged that Clemmer had

12 pleaded guilty to second-degree manslaughter and driving under the influence of

13 intoxicants and had been determined to have recklessly killed decedent and to have been

14 legally intoxicated. Therefore, Combined Transport alleged, both plaintiff and Clemmer

15 were precluded from claiming that Clemmer was not negligent, reckless, or intoxicated.

16 In its first cross-claim for common-law indemnity, Combined Transport alleged that

17 plaintiff's damages were caused by Clemmer's "active and gross negligence and criminal

18 conduct" in driving while intoxicated. Combined Transport alleged that its negligence, if

19 any, was passive and that, because Clemmer was primarily responsible for decedent's

20 death, Combined Transport was entitled to common-law indemnity from Clemmer. In its

21 second cross-claim for contribution, Combined Transport alleged that the negligent

22 conduct of Clemmer contributed to plaintiff's damages and that Combined Transport was

26
 1 entitled to recover from Clemmer an amount equal to Clemmer's proportional share of

2 fault, as determined by the court.

3 Plaintiff filed a motion to strike Combined Transport's affirmative defense

4 and cross-claims or, alternatively, to bifurcate any issues relating to Clemmer's reckless

5 or intoxicated behavior to a separate trial. The court granted the motion to strike the

6 affirmative defense.14 The parties stipulated that the indemnity cross-claim would be

7 tried to the court and that no evidence would be admissible on that claim that would not

8 be admissible on the underlying complaint. On that basis, the trial court deferred ruling

9 on the motion to strike the cross-claim for indemnity.

10 The trial court then inquired as to the function of Combined Transport's

11 cross-claim for contribution. Combined Transport responded, as we understand it, that

12 the jury would be required to receive all of the evidence of the relative fault between the

13 defendants, including recklessness and intoxication, and after it did so, a contribution

14 claim would only arise if there was a post-judgment reallocation of obligations pursuant

15 to ORS 31.610(3).15 Otherwise, Combined Transport indicated, "as far as affecting the

16 trial, other than supplementing -- giving a defendant the opportunity to supplement the

14
Combined Transport does not assign error to that ruling.
15
Under ORS 31.610(3), if a tortfeasor cannot pay its proportional share of
the judgment, that portion of the judgment can be reallocated to the other tortfeasors
under certain circumstances. Those tortfeasors who had to pay more than their
proportional share after the reallocation have an action for contribution from the
nonpaying tortfeasor. Therefore, the claim for contribution does not accrue until the
payment has been reallocated.

27
 1 claims of relative fault in the case, I don't believe that it plays an independent role with

2 the jury." Plaintiff argued that a cross-claim for contribution was premature because it

3 only exists in favor of a tortfeasor who has paid more than a proportional share of the

4 common liability. "It is not," plaintiff argued, "a platform for changing the pleadings."

5 Saying, "I think that's right," the trial court granted plaintiff's motion to strike Combined

6 Transport's second cross-claim for contribution.

7 Later in the pretrial proceedings, after the trial court had ruled that evidence

8 of Clemmer's intoxication was not relevant and granted plaintiff's motion in limine

9 precluding admission of that evidence, Combined Transport filed a motion for leave to

10 file an amended answer with an amended cross-claim for contribution. In the amended

11 cross-claim that it proffered with its motion, Combined Transport alleged that Clemmer

12 was negligent in seven particulars, including driving under the influence of intoxicants.

13 Combined Transport also alleged that Clemmer should be required to "contribute such

14 amount as is proportionate to her share[.]" In considering Combined Transport's motion,

15 the court explained that, when it had granted plaintiff's earlier motion to strike Combined

16 Transport's cross-claim, it had done so for a reason that "had nothing to do with the

17 pleading of the contribution claim, but more had to do with the role that a contribution

18 claim plays or doesn't play in the context of this litigation, where the jury is going to be

19 deciding the relative negligence or fault, * * * if any, between the two defendants." The

20 court said that, because Clemmer had admitted negligence and causation, she was 100

21 percent responsible for plaintiff's damages, less any responsibility that the jury assessed

22 to Combined Transport. Therefore, the court reasoned, there was no need for the cross-

28
 1 claim that Combined Transport proffered. Combined Transport responded that it was

2 seeking to file the amended pleading "so that we have a clear pleading setting forth

3 exactly what it is that we would intend to plead and prove in this case." The court then

4 brought the discussion to a close, stating that it was denying Combined Transport's

5 motion to amend its cross-claim because "the jury is going to be answering this question

6 anyway."

7 The case then proceeded to trial on plaintiff's complaint, Clemmer's answer

8 admitting negligence and causation, and Combined Transport's answer denying

9 negligence and causation and asserting a cross-claim for indemnity to be tried to the court

10 on the same evidence relevant to the trial of the issues presented by the complaint.16 On

11 appeal to the Court of Appeals, Combined Transport assigned error to the ruling of the

12 trial court striking its cross-claim. Without explicitly addressing that issue, the Court of

13 Appeals decided that evidence of Clemmer's intoxication was relevant to the issue of

14 apportionment of fault.

15 ORS 31.600 requires the jury to compare the fault of the parties, but, for the

16 reasons that we have explained, a defendant who wishes to have the jury consider the

17 unpleaded negligence of a codefendant in making that comparison is required to plead the

18 facts establishing that negligence. The fact that the codefendant has accepted liability

19 based on the facts alleged by the plaintiff does not eliminate that requirement. Thus, in

16
On October 2, 2007, in a post-trial hearing, the trial court denied the cross-
claim for indemnity, and Combined Transport does not challenge that ruling.

29
 1 this case, to have the jury consider evidence of Clemmer's intoxication in comparing the

2 fault of the parties, either plaintiff or Combined Transport had to allege those facts.

3 Plaintiff did not do so, and the pleading burden fell on Combined Transport.

4 Combined Transport did not use the pleading that we now hold was

5 required -- an affirmative defense. However, Combined Transport did allege, in its cross-

6 claim, the fact of Clemmer's intoxication and its theory that Clemmer's intoxication

7 should be considered in determining Clemmer's proportional share of liability.

8 Combined Transport was incorrect in selecting the pleading that it was required to use,

9 but was correct in recognizing that it must plead those allegations to make Clemmer's

10 intoxication relevant to the jury's determination of comparative fault. The trial court was

11 correct that a cross-claim for contribution was premature, but it was incorrect that there

12 was no role for Combined Transport's pleading alleging negligence by Clemmer that was

13 not pleaded by plaintiff. A pleading was necessary to make Clemmer's intoxication

14 material and to allow the jury to consider that conduct in comparing the fault of Clemmer

15 and Combined Transport.

16 We think that, in the unique circumstances of this case, the cross-claim that

17 Combined Transport proffered fulfilled the function of an affirmative defense, viz., to put

18 the plaintiff on notice of the theory and facts comprising the defendant's defense. See

19 Ritter v. Beals et al., 225 Or 504, 517-18, 358 P2d 1080 (1961) (affirmative defense must

20 inform plaintiff of what defendant intends to prove). ORCP 12 requires a court, "in every

21 stage of an action," to "disregard any error or defect in the pleadings or proceedings

22 which does not affect the substantial rights of the adverse party." See also Bank of Calif.

30
 1 Nat. Ass'n v. Schmaltz, 139 Or 163, 171, 9 P2d 112 (1932) (courts not controlled by

2 construction that parties place on pleadings). At the time of trial in this case, the pleading

3 that Combined Transport was required to use was unclear, and Combined Transport's

4 cross-claim apprised plaintiff of the facts on which it intended to rely and the purpose of

5 those facts. In that narrow circumstance, the defect in designating the pleading as a

6 cross-claim rather than as an affirmative defense did not affect the substantial rights of

7 plaintiff. Because Combined Transport affirmatively alleged the fact of Clemmer's

8 intoxication and its theory that Clemmer's intoxication should be used in determining the

9 relative fault of the parties, the evidence that Combined Transport proffered on that issue

10 was relevant on the issue of the comparative fault of the defendants and the trial court

11 erred in excluding it.

12 However, for the reasons we have stated, the evidence of Clemmer's

13 intoxication was not relevant on the issues of causation, liability, or damages. Therefore,

14 we remand the case for a new trial limited to the degree of fault of each defendant

15 "expressed as a percentage of the total fault" attributable to each defendant. ORS

16 31.605(1)(b).

17 The decision of the Court of Appeals is affirmed. The judgment of the

18 circuit court is reversed, and the case is remanded to the circuit court for further

19 proceedings.

31
 1 DE MUNIZ, C. J., dissenting.

2 Evidence adduced in the course of a civil trial does not arise in a vacuum.

3 It is circumscribed by the content of the parties' respective pleadings, a fact that requires

4 litigants in Oregon to plead the ultimate facts on which their claims are based. See ORCP

5 18 A (pleadings must contain a "plain and concise statement of the ultimate facts

6 constituting a claim for relief "); see also Welch v. Bancorp, 296 Or 208, 221, 675 P2d

7 172 (1984) ("The necessity of pleading ultimate facts retains the present Oregon

8 requirements of pleading facts at a fairly specific level.") (internal quotation marks

9 omitted). As explained in greater detail below, the pleadings -- including those that set

10 out affirmative defenses -- declare and control the issues to be determined at trial, at once

11 providing the parties with notice concerning the key facts that each side will attempt to

12 prove while establishing boundaries for the trial court in determining the relevance of the

13 evidence offered. Here, Combined Transport's deficient pleading -- not trial court error --

14 was the only factor that kept evidence of Clemmer's intoxication from the jury. The

15 majority's efforts to say otherwise not only does a disservice to the trial court's expertise,

16 but effectively kicks one hundred years of Oregon pleadings law to the curb without

17 explanation. Because defendant's cross-claim for contribution cannot be construed as an

18 affirmative defense, I respectfully dissent.

19 The majority agrees with the basic premise that a cross-claim for

20 contribution cannot be viewed as an affirmative defense. Indeed, it writes:

21 "We hold that a defendant that does not allege that it has paid more than its
22 proportionate share of liability and that does not seek a separate judgment
23 against a co-defendant for the amount of that excess payment, but that

1
 1 instead seeks to avoid paying the full damages that a plaintiff has alleged
2 on the basis that a co-defendant is more at fault in a way that was not
3 alleged by the plaintiff, must plead the specification of negligence on which
4 the defendant relies as an affirmative defense in its answer to the plaintiff's
5 complaint and not in a separate cross-claim against the co-defendant."

6 ___ Or at ___ (slip op at ___ ). The majority goes on to acknowledge that Combined

7 Transport should have included the allegations of Clemmer's intoxication in its answer as

8 an affirmative defense. ___ Or at ___ (slip op at ___ ). The majority, however,

9 nevertheless concludes that, at the time, that particular legal tenet was "unclear" as a

10 matter of Oregon law. ___ Or at ___ (slip op at ___ ). The resulting lack of clarity, the

11 majority posits, created "unique circumstances" that now require this court to

12 transmogrify Combined Transport's cross-claim for contribution into an affirmative

13 defense under ORCP 12. ___ Or at ___ (slip op at ___ ). At the end of the day, that

14 decision is, for the reasons that follow, simply wrong.

15 Oregon's Pleading Requirements Are Clear

16 As a threshold matter, it is important to note that there is little that is

17 unclear about the Oregon pleading requirements at issue here, or the consequences for

18 failing to adhere to those rules. In this state, a party's pleadings matter and have for some

19 time:

20 "It is a theory long in use in the practice of law that the pleadings declare
21 and control the issues to be determined and the relations that the parties
22 bear to each other."

23 Warner v. Synnes, 114 Or 451, 459-60, 235 P 305 (1925). See also Wold v. City of

24 Portland, 166 Or 455, 470-71, 112 P 2d 469 (1941) (citing Warner for the proposition

25 that an action tried on pleadings of negligence could not be overturned on appeal under

2
 1 unpleaded theory of nuisance). In particular, a party's pleadings set the boundaries for

2 evidence that can be admitted at trial. See Cutsforth v. Kinzua Corp., 267 Or 423, 428-

3 29, 517 P2d 640 (1973) (plaintiff could not present evidence to support allegation of

4 negligence that was properly stricken from the pleading); Laird C. Kirkpatrick, Oregon

5 Evidence § 401.03, 141-42 (5th ed 2007) (relevance depends on allegations pleaded by

6 the parties).

7 A fundamental component of the overall pleading process is, of course, the

8 pleading of affirmative defenses. In Ritter v. Beals, 225 Or 504, 517-18, 358 P2d 1080

9 (1961), this court outlined the purpose of such pleadings:

10 "A pleading of an affirmative defense has two functions. It must inform the
11 plaintiff of facts which the defendant will prove. It must also give the trial
12 court a pleading foundation for the taking of testimony and ultimately for
13 instructing the jury."

14 A defendant who seeks to extend the boundaries of relevancy initially established by a

15 plaintiff's pleadings must affirmatively set forth in its answer the additional facts on

16 which he or she seeks to rely, thereby making the facts relevant for trial purposes.

17 In Oregon, failure to do so has long had negative outcomes for those

18 seeking to advance unpleaded defenses on appeal. In 1905, for example, the Oregon

19 Supreme Court decided Thayer v. Buchanan, 46 Or 106, 79 P 343 (1905), an action to

20 foreclose on a mortgage. In his response to the complaint against him, the defendant had

21 asserted that part of the principal covered by the mortgage had been fraudulently

22 confessed without his authorization or knowledge by the plaintiff representing himself as

23 the defendant's lawyer in a separate matter. The trial court found in favor of the plaintiff,

3
 1 and on appeal, the defendant took a different tack, arguing that the mortgage note

2 encompassed certain usurious elements that were illegal. In affirming the trial court's

3 judgment, this court concluded that the pleadings below were dispositive with regard to

4 the validity of the newly proffered defense:

5 "Some usurious items may have been included in the settlement, and
6 it looks very much as if such was the case, which would not in themselves
7 support the note; but, as we have previously had occasion to observe, the
8 pleadings set out no such defense, and we are therefore powerless to help
9 the defendant, even on account of such demands."

10 Id. at 110 (emphasis added). See also Wolf v. Hougham, 62 Or 264, 125 P 301 (1912) (in

11 contract action for sale of hops, trial court instruction disregarding unpleaded defense

12 was correct; defendant could not avail himself of defense not clearly stated in his answer,

13 although it appeared by his evidence).

14 In a nutshell, what was clear shortly after the turn of the last century

15 remains clear today: Combined Transport was obliged to plead Clemmer's intoxication

16 as an affirmative defense in order to have the jury consider that evidence. The process

17 for doing so is not a secret. In Hawkins v. City of La Grande, 315 Or 57, 62-63, 843 P2d

18 400 (1992) this court outlined the provisions for pleading an affirmative defense:

19 "The relevant pleading rules call for defenses to be pleaded. Oregon Rules
20 of Civil Procedure (ORCP) 13 A provides:

21 "'The pleadings are the written statements by the parties of the facts
22 constituting their respective claims and defenses.'

23 "ORCP 19 B provides, in part:

24 "'In pleading to a preceding pleading, a party shall set forth
25 affirmatively accord and satisfaction, arbitration and award,
26 assumption of risk, * * * and any other matter constituting an
27 avoidance or affirmative defense. * * *'

4
 1 "ORCP 21 A provides, in part:

2 "'Every defense, in law or fact, to a claim for relief in any pleading,
3 whether a complaint, counterclaim, cross-claim or third party claim,
4 shall be asserted in the responsive pleading thereto * * *. (Emphasis
5 added.)'"

6 Despite the roadmap provided for it in Hawkins, however, Combined

7 Transport did not plead an affirmative defense under ORCP 19 B. It opted, instead, to

8 submit a cross-claim for contribution, which the trial court struck as premature.

9 The majority apparently concludes that the trial court erred in doing so; I disagree.

10 The Prejudgment Cross-claim For Contribution Was Properly Stricken

11 A cross-claim for contribution is not a substitute for a properly pleaded

12 affirmative defense. Today, the right to seek contribution is largely a relic of Oregon's

13 past as a state that once recognized joint and several liability. After Oregon abandoned

14 that doctrine in favor of several liability for claims involving bodily injury, death, and

15 property damage,1 the applicability of a contribution claim has since been confined to a

16 limited set of circumstances. In that regard, ORS 31.800(2) provides:

17 "The right of contribution exists only in favor of a tortfeasor who has
18 paid more than a proportional share of the common liability, and the total
19 recovery of the tortfeasor is limited to the amount paid by the tortfeasor in
20 excess of the proportional share. No tortfeasor is compelled to make
21 contribution beyond the proportional share of the tortfeasor of the entire
22 liability."

23 Under the statute, the gravamen of a contribution action is that a tortfeasor "has paid"

1
ORS 31.610(1) provides generally that, for multiple defendants in such
cases, "the liability of each defendant for damages awarded to plaintiff shall be several
only and shall not be joint."

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 1 more than his or her "proportional share" of damages. Faced with that circumstance, a

2 tortfeasor may enforce contribution in either a "separate action" regardless of whether

3 judgment has been entered or not, ORS 31.810(1), or by motion upon notice to all the

4 parties after "a judgment has been entered in an action against two or more tortfeasors for

5 the same injury or wrongful death," ORS 31.810(2). As a result, a contribution claim has

6 nothing to do with determining the fault of the parties; it is solely a procedural

7 mechanism to allow damages to be collected fairly.

8 Taken together, ORS 31.800 and ORS 31.810 support the proposition that

9 an action for contribution is relevant prior to judgment only in a separate proceeding or, if

10 undertaken in the same proceeding, after a judgment has been entered. At the time that

11 Combined Transport sought to have its cross-claim made part of the pleadings in this

12 case, however, no judgment had been rendered and no damages had been paid; indeed,

13 the trial on plaintiff's claims had yet to begin. Consequently, it was altogether

14 appropriate for the trial court to strike the cross-claim as premature. Combined

15 Transport's subsequent attempt to amend its contribution request did nothing to change

16 the premature nature of that claim: At the end of the day it remained a pretrial attempt to

17 initiate a matter that could only be brought post-judgment or in a separate proceeding.

18 Consequently, it warranted the same response. The trial court did not err in either ruling.

19 The majority, of course, has a different view. It ultimately concludes that

20 the only problem with Combined Transport's cross-claim for contribution was its

21 defective designation as such rather than as an affirmative defense. ___ Or at ___ (slip

22 op at ___ ). It sets about to fix that problem by resort to ORCP 12 B, which provides:

6
 1 "The court shall, in every stage of an action, disregard any error or
2 defect in the pleadings or proceedings which does not affect the substantial
3 rights of the adverse party."

4 See ___ Or at ___ (slip op at ___ ). The majority is untroubled by the resulting

5 transformation, concluding that Combined Transport's contribution claim effectively

6 "fulfilled the function of an affirmative defense, viz., to put the plaintiff on notice of the

7 theory and facts comprising the defendant's defense." ___ Or at ___ (slip op at ___ ). I

8 again disagree.

9 This Court is Precluded From Construing Combined Transport's Cross-claim For
10 Contribution As An Affirmative Defense
11
12 It is important to understand that the majority's reliance on ORCP 12 in this

13 case is incorrect as a matter of Oregon law. As a general rule, the Oregon Rules of Civil

14 Procedure are applicable only in the trial courts. In Lincoln Loan Co. v. City of Portland,

15 335 Or 105, 110, 59 P3d 521 (2002), this court held that "'the ORCP apply only in trial

16 courts.'" (quoting McCarthy v. Oregon Freeze Dry, Inc., 327 Or 84, 89, 957 P2d 1200,

17 adh'd to on recons, 327 Or 185, 957 P2d 1207 (1998)); see also Robinson v. Lamb's

18 Wilsonville Thriftway, 332 Or 453, 459, 31 P3d 421 (2001) (stating that the rules of civil

19 procedure "are rules to be applied to actions in trial courts") (emphasis in original).

20 Although rules of civil procedure have indeed been incorporated into this court's

21 procedural framework, we have done so only after expressly making those provisions

22 part of the Oregon Rules of Appellate Procedure. See, e.g., ORAP 1.40 (expressly

23 adopting the provisions of ORCP 17); ORAP 8.05 (doing the same for ORCP 34). We

24 have yet to do the same with regard to ORCP 12.

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 1 Even if it was proper for the court to invoke ORCP 12 B in this case -- and

2 it is not -- the majority nevertheless misapplies the rule here. Under its plain text, the

3 pleading problem to be corrected by ORCP 12 B must constitute an "error or defect";

4 neither are present here. In Mulier v. Johnson, 332 Or 344, 29 P3d 1104 (2001), the

5 defendant had moved for summary judgment but had failed to allege a right to attorney

6 fees under ORCP 68 C(2)(b). This court held that the defendant's complete failure to

7 plead a right to attorney fees was not an "error or defect" under ORCP 12 B:

8 "As we have explained, the words 'error' and 'defect' in ORCP 12 B
9 reflect the legislature's intent that a party must attempt to comply with the
10 mandatory requirements of the rules of civil procedure if that party is to
11 benefit from the provisions of ORCP 12 B. A complete failure to allege the
12 right to attorney fees in a motion under ORCP 68 C(2)(b) does not
13 demonstrate an attempt to comply with the requirements of that rule."

14 Id. at 350 (internal citation omitted; emphasis added). The same is true in this case. If a

15 party wishes to present evidence of comparative negligence as an affirmative defense,

16 ORCP 19 B requires such a pleading. One's abject failure to do so might be categorized

17 as many things but, as Mullier makes clear, it is not a defect that can be corrected by

18 ORCP 12 B.

19 In sum, the trial court did not err in this matter. Combined Transport's

20 cross-claim for contribution was not relevant at the time it was brought, and the trial court

21 correctly granted plaintiff's motion to strike. While ORCP 12 A directs that "[a]ll

22 pleadings shall be liberally construed with a view of substantial justice between the

23 parties," the majority has resurrected and rewritten the stricken pleading at issue here --

24 not construed it -- in order to make out an affirmative defense in this matter. The

8
1 majority errs in doing so. Consequently, I would affirm the judgment.

2 For the reasons cited above, I respectfully dissent.

3 Durham, J., joins this dissenting opinion.

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