Scott v. Kesselring

“[T]he issue of liability for harm actually resulting from defendant’s conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.” Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 17 (1987).

Plaintiff appealed appellate court’s decision to reverse and remand. Plaintiff assigned error to appellate court’s holding that Defendant’s cellphone use was inadmissible as irrelevant to determining foreseeability. Both parties stipulated to material facts around Defendant’s rear-ending Plaintiff’s car, but Defendant denied allegations of using her cellphone immediately prior to the accident. Defendant alleged the foreseeability of risk of harm was a question for the jury and that evidence of Defendant’s cellphone use was irrelevant to a factual determination. “[T]he issue of liability for harm actually resulting from defendant’s conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.” Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 17 (1987). The Court reasoned that “[d]ifferent conduct may create different risks of harm,” and the jury should be permitted to weigh Defendant’s precise actions to determine whether Defendant “unreasonably created a foreseeable risk.” The Court found that Defendant’s conduct was relevant in considering the level of risk created to the resulting harm experienced by Plaintiff. The Court reviewed admission of cellphone use for discretionary abuse and reasoned the trial court’s decision to present full facts to the jury was not “particularly unfair,” and “it could be unfair not to do so.” The Court held the trial court did not abuse its discretion in allowing the cellphone use to be admitted. Reversed decision of Court of Appeals. Affirmed judgment of circuit court.