## Facts

- A Combined Transport truck lost part of its load—large panes of glass—on Interstate 5, prompting cleanup and a traffic backup.
- Mark Alan Lasley (decedent) was stopped in the resulting traffic when Judy Marie Clemmer rear-ended his pickup.
- The collision damaged the pickup’s fuel system and caused a fire that killed the decedent.
- Clemmer admitted negligence (unreasonable speed and failure to maintain lookout/control) and admitted her negligence caused the death.
- Combined Transport denied negligence and denied that its conduct foreseeably resulted in the death.
- Evidence existed that Clemmer was intoxicated at the time of the collision.
- Before trial, the court excluded intoxication evidence based on pleadings after granting plaintiff’s motion in limine.
- The jury allocated fault 78% to Clemmer and 22% to Combined Transport, and judgment was entered accordingly.
- On appeal by Combined Transport, the Court of Appeals reversed, concluding the intoxication evidence should not have been excluded.

## Issues

1. Whether evidence that a co-defendant driver was intoxicated was relevant to whether a trucking company’s alleged negligence was a factual cause of the decedent’s death.
2. Whether that intoxication evidence was relevant to the jury’s apportionment of comparative fault between defendants.
3. Whether, when the plaintiff did not plead intoxication, a defendant seeking to use intoxication to increase a co-defendant’s share of fault must plead intoxication as an affirmative defense, and whether the defendant’s pleadings provided adequate notice in this case.

## Decision

- The Oregon Supreme Court affirmed the Court of Appeals, reversed the circuit court’s judgment, and remanded.
- The court held intoxication evidence was not relevant to factual causation as to Combined Transport’s alleged negligence.
- The court held intoxication evidence was relevant to comparative-fault apportionment because it bore on the degree of the driver’s fault.
- The court stated that, as a general rule, a defendant relying on new factual matter about a co-defendant (not pleaded by plaintiff) to reduce its own comparative-fault share must plead those facts as an affirmative defense.
- Despite the general rule, the court construed Combined Transport’s contribution counterclaim, in the circumstances, as the functional equivalent of an affirmative defense because it provided notice that intoxication would be used to argue comparative fault.

## Legal Principles

- Relevance for causation focuses on whether each actor’s conduct was a factual cause of the harm; evidence bearing only on how blameworthy an actor was (e.g., intoxication) may be irrelevant to factual causation.
- Comparative-fault apportionment requires comparing “fault” (degree of departure from the standard of care), not merely causal contribution; intoxication may be relevant to that comparison.
- In multi-defendant comparative-fault cases, a defendant generally must plead as an affirmative defense any additional facts about a co-defendant’s misconduct that were not alleged by the plaintiff but are used to shift a greater share of fault to the co-defendant.
- Courts may treat a pleading (such as a contribution counterclaim) as the functional equivalent of an affirmative defense when, in context, it gave adequate notice of the factual theory to be used for comparative-fault allocation.

## Conclusion

The court distinguished between evidence relevant to factual causation and evidence relevant to comparative-fault allocation, holding that intoxication did not affect causation but could affect fault apportionment, and it clarified that unpleaded facts used to shift comparative fault generally must be asserted affirmatively, while allowing notice-based construction of pleadings in this case on remand.


Lasley v. Combined Transp., Inc., 351 Or. 1, 261 P.3d 1215 (Or. 2011)