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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).

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WALTERS, J. In this case we decide evidentiary and pleading questions that arose in the trial of a multi-defendant negligence case. Plaintiff, decedent's father, brought this case against defendants Combined Transport, Inc. (Combined Transport) and Judy Clemmer (Clemmer). On the day that decedent died, a truck owned and operated by Combined Transport lost part of its load of large panes of glass on the I-5 freeway. During the clean-up, traffic backed up and decedent was stopped. Clemmer drove into decedent's pickup, causing leaks in its fuel system. The ensuing fire killed decedent. Combined Transport denied that it was negligent and that its conduct foreseeably resulted in decedent's death. Clemmer admitted that she was negligent in driving at an unreasonable speed and in failing to maintain a proper lookout and control. Clemmer also admitted that her negligence was a cause of decedent's death. Based on the pleadings, the trial court granted plaintiff's motion in limine to exclude evidence that Clemmer was intoxicated at the time of the collision. The jury rendered a verdict against both defendants, finding Combined Transport 22 percent at fault and Clemmer 78 percent at fault for plaintiff's damages. Combined Transport appealed and the Court of Appeals reversed, concluding that the trial court had erred in excluding the evidence of Clemmer's intoxication. The Court of Appeals held that that evidence was relevant to two issues: "Although Clemmer admitted that she was negligent, the jury was required to consider evidence of the circumstances relating to the accident to determine whether Combined Transport's negligence was a substantial factor in causing decedent's death and, if so, to apportion fault between defendants. Clemmer's intoxication was relevant to those determinations. 1

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See Lyons v. Walsh & Sons Trucking Co., Ltd., 183 Or App 76, 84, 51 P3d 625 (2002), aff'd, 337 Or 319, 96 P3d 1215 (2004) (holding that '[w]hether any particular cause, or any individual actor's conduct, is sufficiently "substantial" to warrant the imposition of liability depends, properly, on a consideration of the whole'). Accordingly, the trial court erred in excluding evidence of Clemmer's intoxication." Lasley v. Combined Transport, Inc., 234 Or App 11, 20-21, 227 P3d 1200, adh'd to on recons, 236 Or App 1, 237 P3d 859 (2010). On reconsideration, the Court of Appeals clarified its opinion: "First, the evidence of intoxication is relevant to the jury's 'substantial factor' analysis because it is relevant to the cause of the accident. There is an adequate factual nexus between the testimony concerning the quality of Clemmer's driving and her consumption of alcohol to allow the jury to make the determination that the alcohol affected her ability to control her vehicle and keep a proper lookout. That, in turn, could affect the jury's determination of what caused the accident. Ostrander v. Alliance Corp., 181 Or App 283, 291, 45 P3d 1031, rev den, 335 Or 104 (2002). Accordingly, Clemmer's intoxication is relevant to the cause-in-fact determination regarding the conduct of Combined Transport, because the jury must consider the 'totality of potentially causative circumstances' in making that determination. Lyons,183 Or App at 84. "On the other hand, the evidence of intoxication is relevant to the apportionment of fault, because it shows blameworthiness. The considerations announced in Sandford v. Chev. Div. Gen. Motors, 292 Or 590, 608, 642 P2d 624 (1982), which are quoted in our original opinion, Lasley, 234 Or App at 21-22, regarding the relevance of Clemmer's previous driving history for the purpose of apportionment of fault, were also pertinent to the relevance of Clemmer's intoxication for the same purpose. The evidence of Clemmer's intoxication shows the degree of Clemmer's departure from the standard of care of a reasonable person, and, accordingly, is a proper consideration for the jury in apportioning fault." 236 Or App at 4. We allowed plaintiff's petition for review. For the reasons we shall explain, we decide that evidence of Clemmer's intoxication was not relevant to the issue of

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whether Combined Transport's negligence was a cause of decedent's death but was relevant to the issue of apportionment of fault. We affirm the decision of the Court of Appeals, reverse the judgment of the circuit court, and remand to the circuit court for further proceedings. I. CAUSATION We begin with the question of whether evidence of Clemmer's intoxication was relevant on the issue of causation. Plaintiff's argument that it was not proceeds as follows: (1) Clemmer admitted causation, therefore the only causal issue before the jury was whether Combined Transport's negligence also was a substantial factor in causing decedent's death; (2) whether Combined Transport's negligence was a cause of decedent's death is an independent question that does not depend on Clemmer's negligence; and therefore (3) why Clemmer drove erratically and struck decedent's pickup was irrelevant. Combined Transport parts ways with plaintiff at the second step of plaintiff's argument. Combined Transport asserts that this court has not adopted and should not adopt a rule that the causation of each tortfeasor must be decided "in total isolation, separate and apart from the conduct of any co-tortfeasors, and without regard to all of the circumstances that contributed to the plaintiff's injury." To determine whether Combined Transport's conduct was a "substantial," as opposed to an "insignificant," factor in causing decedent's harm, Combined Transport contends that all of the evidence concerning the events that led to that harm, including Clemmer's intoxication, was admissible. Alternatively, Combined Transport argues, "[g]iven the nature and severity of Clemmer's speed and drunk driving, Combined Transport was entitled to introduce 3

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evidence that Clemmer was going to cause the harm no matter what." (Emphasis in original.) Why Clemmer drove erratically and struck defendant's pickup also was relevant for that purpose. In making those arguments, both parties accept the premise that, when the negligence of multiple tortfeasors combines to produce harm, each tortfeasor whose negligence was a cause of the harm may be held liable. Hills v. McGillvrey, 240 Or 476, 482-83, 402 P2d 722 (1965). The parties also agree that it is factual, not legal cause, at issue in this case. This court has abolished not only the terms but also the concepts of "proximate" and "legal" cause. Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or 329, 340, 83 P3d 322 (2004); Simpson v. Sisters of Charity of Providence, 284 Or 547, 555, 588 P2d 4 (1978); McEwen v. Ortho Pharmaceutical, 270 Or 375, 385 n 7, 528 P2d 522 (1974). When a defendant's negligence is a factual cause of harm to the plaintiff, the defendant is subject to liability to the plaintiff as long as the harm that the plaintiff suffered was a reasonably foreseeable result of the defendant's negligence. Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 17, 734 P2d 1326 (1987). Thus, the concept of causation (determined as a purely factual matter) is a separate concept from that of liability (determined by foreseeability and not by "proximate" or "legal" cause). Although Combined Transport argued at trial that decedent's death was not a foreseeable consequence of Combined Transport's negligence, we do not understand Combined Transport to argue on appeal that Clemmer's intoxication was relevant to the issue of foreseeability or that the "substantial factor" test permits evidence of intoxication to determine "proximate" or "legal" cause. Combined Transport acknowledges, correctly, 4

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that the "substantial factor" test is a test of factual cause as explained by this court in Sandford v. Chev. Div. Gen. Motors, 292 Or 590, 606, 642 P2d 624 (1982): "Causation in Oregon law refers to causation in fact, that is to say, whether someone examining the event without regard to legal consequences would conclude that the allegedly faulty conduct or condition in fact played a role in its occurrence." See also Simpson, 284 Or at 561 (approving jury instruction using "substantial factor" test to determine physical cause of harm); Stewart v. Jefferson Plywood Co., 255 Or 603, 606, 469 P2d 783 (1970) (using "substantial factor" when discussing "cause in fact" connection); Babler Bros. v. Pac. Intermountain, 244 Or 459, 463, 415 P2d 735 (1966) (noting that, in most negligence cases, "the factual inquiry whether the actor's conduct was a substantial factor in producing the harm is relatively uncomplicated"); Dewey v. A.F. Klaveness & Co., 233 Or 515, 541, 379 P2d 560 (1963) (phrasing the causation standard as whether the defendant's conduct was a "substantial factor" in physically producing the injury). What Combined Transport does argue is that the "substantial factor" test is intended to rule out, as a factual cause of harm, an act that is minimally significant in the causal chain of events. Combined Transport contends that the "substantial factor" test expresses a "concept of relativity" that permits a jury to consider the degree to which the conduct of a particular defendant was a factor in causing the harm and to relieve a defendant of liability if its conduct was insignificant or insubstantial when compared to the conduct of others. In support of that contention, Combined Transport cites the Restatement (Second) of Torts

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