concurring.
I join the opinion of the court. I write separately only to express reasons, in addition to those expressed by the court, why, in my view, it was reversible error for the trial *416court to inform the jury of the existence of plaintiffs settlement with the hospital. The issue of what information or evidence should be presented to the jury and how a jury should be instructed when a plaintiff settles with one or more tortfeasors who are jointly and severally liable1 and another tortfeasor remains as a defendant in the lawsuit is of obvious interest to the bench, bar, and litigants.
In this case, plaintiff, the personal representative of decedent’s estate, sued Good Samaritan Hospital and Medical Center (the hospital) and Dr. Irish (defendant) for negligence. Before trial, plaintiff settled with the hospital. In conjunction with the settlement,2 plaintiff executed a covenant not to sue or enforce judgment pursuant to ORS 18.455.3 Plaintiff then amended her complaint to eliminate all references to the hospital. The case was tried on a second amended complaint that made no mention of the hospital in the title or body of the complaint. The second amended complaint did not allege that the nurses who assisted defendant during defendant’s operation on plaintiffs decedent for colon cancer were negligent. Plaintiffs second amended complaint named only defendant as a party and alleged only that defendant was negligent.
Before trial, plaintiff moved to exclude any mention of her settlement with the hospital. The trial court denied the motion. Immediately after the jury was empaneled, the trial *417court told the jury about the existence of plaintiffs settlement with the hospital.4
In final argument to the jury, defendant’s lawyer mentioned plaintiffs settlement with the hospital.5 After final arguments of the lawyers and before the jury retired, the trial court, in its charge to the jury, again told the jury to not take the existence of plaintiffs settlement with the hospital into account in deciding defendant’s liability or in calculating the amount of plaintiffs damages, if any.
Whether it was proper for the trial court to inform the jury about plaintiffs settlement with the hospital for the purpose of satisfying supposed jury curiosity depends, in effect, on whether evidence of the settlement offered for that purpose was admissible at trial.6
Admission of compromise or settlement evidence is governed by the provisions of the Oregon Evidence Code. OEC 408, which concerns compromise and offers to compromise, provides in pertinent part:
“(l)(a) Evidence of * * * accepting * * * a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.
*418“(2)(b) [The rule stated in] [s]ubsection (1) of this section also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness [or] negating a contention of undue delay * *
The policy underlying the rule of exclusion in OEC 408 is to encourage non-litigious resolution of disputes.7 See Legislative Commentary to OEC 408, reprinted in Kirkpatrick, Oregon Evidence 190 (2d ed 1989).
OEC 408, a general rule of nondisclosure, makes it clear that evidence of a compromise or settlement is not admissible “to prove liability for or invalidity of the claim or its amount,” but may be admissible for “another purpose,” such as proving bias or prejudice of a witness, or negating a contention of undue delay. When evidence of a compromise or settlement is offered for “another purpose,” it must, however, satisfy all of the other rules of evidence. This is so because OEC 408(2)(b) states that OEC 408(1) “does not require exclusion,” clearly implying that other rules of evidence may.8 To be admissible, proffered evidence of compromise or settlement offered for “another purpose” must, therefore, be relevant under OEC 401 and must not be barred by OEC 402.9 Moreover, if the probative value of the compromise or settlement evidence for the purpose it is offered is substantially outweighed by the danger of unfair prejudice, or other factors listed in OEC 403, the trial court may, in its discretion, exclude the evidence.10
*419Evidence of plaintiffs settlement with the hospital, offered to satisfy supposed jury curiosity as to why the hospital was not a party defendant in the lawsuit, was not “relevant,” as that term is defined in OEC 401 and, therefore, was inadmissible under OEC 402. OEC 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
The function of the doctrine of relevancy is to require that there be some rational relationship between the item of evidence offered by a litigant and the legal rule on which that litigant claims a right to recover. 22 Wright and Graham, Federal Practice and Procedure: Evidence 37, § 5164 (1978). As the Legislative Commentary to OEC 401, reprinted in Kirkpatrick, supra, at 104 (citing James, Relevancy, Probability and the Law, 20 Cal L Rev 689, 696 n 15 (1941)), states, “ ‘[rjelevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case.” A decision as to whether an item of evidence is relevant, therefore, depends on the context in which the decision arises and the use that is to be made of the item of evidence in question.
Under OEC 401, an offered item of evidence may be excluded as irrelevant for either of two quite distinct reasons: (1) because it is not probative (i.e., it does not have any tendency to prove or disprove, or to make more probable or less probable) of the fact or proposition at which it is directed, or (2) because that fact or proposition at which the item of evidence is directed is not provable in the case, i.e., is not “of consequence [‘material’] to the determination of the action.” Whether or not a fact or proposition is provable in the case is determined not by the rules of evidence, but by the applicable substantive law and the pleadings in the case. State v. Clowes, 310 Or 686, 691-92, 801 P2d 789 (1990).
In this tort case, based on a claim of negligence, the jury’s duty was to decide whether defendant, the non-settling tortfeasor, was liable for plaintiffs decedent’s injuries and death and, if so, to find plaintiffs total damages.11 It was the *420function of the trial court, on application of defendant after verdict, to reduce the amount of such verdict by the amount of the settlement resulting from the execution of the covenant made by plaintiff with the hospital. Because the court deducts the amount of the settlement from the jury’s verdict, there was no need for the jury to have knowledge of the hospital’s (the absent joint tortfeasor’s) settlement.
Informing the jury of plaintiffs settlement with the hospital might have a tendency to satisfy supposed jury speculation as to why the hospital was not a party defendant. But satisfying supposed jury curiosity as to why the hospital was not a party defendant is not in and of itself a fact or proposition that is “of consequence [‘material’] to the determination” of plaintiffs tort action against defendant based on negligence and is not a basis for introducing the evidence under OEC 408.12 In this case, however, the trial judge mentioned the settlement to the jury before any evidence was introduced, i.e., before any context was developed that could have created its relevance.
In its charge to the jury, the trial court told the jury, “Do not decide this case on guesswork, conjecture, or speculation.”13 We presume that juries follow the court’s instructions. DeMaris v. Whittier, 280 Or 25, 31, 569 P2d 605 (1977); Fulton Ins. v. White Motor Corp., 261 Or 206, 223, 493 P2d 138 (1972) (citing decisions of this court). To inform the jury of plaintiffs settlement with the hospital because the trial court thought that the jury would wonder why the hospital *421was not a party in the case is incongruent with the instruction that the trial court gave and that we presume the jury followed, i.e., not to base its decision on guesswork, conjecture, or speculation.
Admission of information or evidence of settlement to satisfy the jury’s supposed curiosity as to why certain • persons in a multiple-party situation were not named as defendants in a lawsuit would have the potential to emasculate the rule of exclusion set forth in OEC 408 and thereby to undermine the public policy underlying the rule that favors and encourages compromise and settlement of disputes. Admission of such evidence for such an irrelevant purpose would, for example, discourage parties in multiple-tortfeasor situations from engaging in settlement discussion with one of several jointly and severally liable tortfeasors because they could be prejudiced in other proceedings with the remaining non-settling tortfeasors.
Even if we were to assume, arguendo, that evidence of plaintiffs settlement with the hospital offered to satisfy supposed jury curiosity as to why the hospital was not a party defendant was relevant in plaintiffs claim against defendant, whatever probative value such evidence might have was substantially outweighed by the danger of unfair prejudice and other factors set forth in OEC 403.
Withholding from the jury information or evidence concerning a plaintiffs settlement or covenant not to sue or enforce judgment with one or more joint tortfeasors in a trial or proceeding against a remaining joint tortfeasor defendant avoids or reduces potential unfair prejudice to both the plaintiff and the defendant. Informing or allowing evidence of such a settlement or covenant could seriously jeopardize the plaintiffs right to a fair trial. A jury’s knowledge of such a settlement or covenant is potentially prejudicial to a plaintiff because the jury may either (1) consider the settlement or covenant as proof that the settling tortfeasor is the responsible party and the remaining defendant should be exculpated, or (2) reduce the plaintiffs award of damages based on abelief that the plaintiff was already compensated by the settlement or covenant.
*422Where the issue of liability is closely contested, a jury’s verdict is not infrequently the result of compromise of the varying views of the jurors. Jurors may agree to a verdict for the defendant on concluding that the plaintiff has already been compensated for her injuries.
Conversely, a settlement with one alleged joint tortfeasor could suggest liability on a non-settling alleged tortfeasor.
Withholding information or evidence of such a settlement or covenant from the jury, however, (1) focuses the jury on the crucial questions of liability and full compensation, (2) prevents the jury from being confused or misled by its knowledge of the settlement or covenant, and (3) promotes fair verdicts that are consistent with the evidence presented.
In sum, information or evidence concerning an out-of-court settlement with one or more tortfeasors who are jointly and severally liable is not admissible for the purpose of satisfying supposed jury curiosity as to why a particular party is not a party defendant in a lawsuit. Such information or evidence is not relevant under OEC 401 and, therefore, is inadmissible under OEC 402. Assuming, arguendo, that the evidence is relevant, whatever probative value such evidence may have is substantially outweighed by the potential for unfair prejudice to the parties and the danger of confusing or misleading the jury.
For reasons stated above, the trial court erred in informing the jury of the settlement. That error substantially affected a right of plaintiff. Accordingly, plaintiff is entitled to a new trial. See ORS 19.125(2) (before an error can be the basis for appellate reversal of a judgment, it must substantially affect the rights of the party against whom it was given); OEC 103(1) (“[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected”).
Fadeley, J., joins in this opinion.A joint tort occurs when the behavior of two or more tortfeasors is such that it “is proper to treat the conduct of each as the conduct of the others.” 3 Harper, James and Gray, the Law of Torts 1 (2d ed 1986). When a joint tort occurs, the tortfeasors are jointly and severally — or entirely — liable for the harm resulting. Id.
For a discussion of three general types of settlement (release, covenant not to sue, and covenant not to execute), see Hamlin, 1 Torts § 15.18 (Oregon CLE 1992).
The legal effect of a covenant not to sue or not to enforce judgment is stated in ORS 18.455(1):
“(1) When a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death or claimed to be liable in tort for the same injury or the same wrongful death:
“(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the covenant, or in the amount of the consideration paid for it, whichever is the greater; and
“(b) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.”
The trial court told the jury:
“I want to instruct you there has been a settlement between the plaintiff and Good Samaritan Hospital, and Good Samaritan is no longer in this case.
“Now, jurors, what is important is that you are not to infer from the settlement that the defendant Dr. Irish is or is not liable to the plaintiff. The settlement does not change the legal issues between these parties. It has nothing to do with your function. You’re simply being informed of that so you understand why Good Samaritan Hospital is not involved in the case at this stage.”
In final argument, defendant’s lawyer told the jury:
“The judge told you at the start of the trial, and he’s going to tell you at the end, that Good Samaritan Hospital has settled. You haven’t heard a word from [plaintiffs lawyer]. The judge will tell you they’ve settled * *
In effect, the trial court took judicial notice for adjudicative purposes of the fact of the settlement between plaintiff and the hospital. See OEC 201(a)-(g) (judicial notice of adjudicative facts); Strong, Judicial Notice, in Evidence 3-3, § 3.2 (Oregon CLE1986) (suggesting a possible definition of judicial notice “as the assumption by a court of a fact without requiring traditional evidentiary support of that fact”); id. at 3-4, § 3.3 (“[¡judicial notice of an adjudicative fact is a substitute for proving a fact that is provable by ordinary evidentiary means”).
The benefits of such a policy include the reduction of court congestion and of expenditures for courts by unnecessary or protracted litigation.
See 23 Wright and Graham, Federal Practice and Procedure: Evidence, 261 and 261 n 2 (1980) (making similar observation as to last sentence in FRE 408, the federal counterpart to OEC 408).
OEC 402 provides:
“All relevant evidence is admissible, except as otherwise provided by the Oregon Evidence Code, by the Constitutions of the United States and Oregon, or by Oregon statutory and decisional law. Evidence which is not relevant is not admissible.”
See State ex rel Juv. Dept. v. Beasley, 314 Or 444, 449-50, 840 P2d 78 (1992) (discussion of OEC 402).
OEC 403 provides that, “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.”
In its instructions to the jury, the trial court stated, “if your verdict is for the *420plaintiff, and you find that the plaintiff has been damaged, you are to return a verdict for the full amount of plaintiffs damages.”
If satisfying jury curiosity were a proper basis for admitting evidence or informing the jury about a settlement, it would arguably follow that many other items about which the jury might be curious would be admissible for the purpose of satisfying jury curiosity, e.g., information or evidence as to whether a party is or is not insured, information or evidence as to whether a party took subsequent remedial measures to correct a problem, information or evidence as to why an attorney objected to certain evidence or why the judge ruled as he or she did, information or evidence as to what information is redacted from an exhibit admitted in evidence, and information or evidence about what evidence was suppressed. The jury simply must be assumed to follow the instruction that they are not to speculate about those items about which they might be curious.
This quote is now contained in Uniform Civil Jury Instruction 1.01. UCJI No. 1.01 (1992).