United States District Court,

E.D. New York.

Daniel DWYER, Plaintiff,

v.

DEUTSCHE LUFTHANSA, AG, and Quantem Aviation Services, Inc., Defendants.

No. 04-CV-3184 (ADS)(AKT).

 

Feb. 24, 2010.

 

ARTHUR D. SPATT, District Judge.

 

Daniel Dwyer (“Dwyer”) brought this diversity action against Deutsche Lufthansa, AG and Quantem Aviation Services, Inc. (collectively “the Defendants”) seeking compensatory damages for personal injuries he sustained when the tractor-trailer he was driving crashed into a guardrail. Following a two-week trial, a jury returned a verdict in Dwyer’s favor, awarding him: (1) $2 million for past pain and suffering; (2) $3 million for future pain and suffering; (3) $90,980 for lost earnings; and (4) $434,115 for loss of future earnings.

 

The Defendants have moved, pursuant to Federal Rule of Civil Procedure 59 (“Fed. R. Civ.P.”), for an order setting aside the jury’s verdict, claiming that the $5 million award for past and future pain and suffering is excessive as a matter of law. In the alternative, the Defendants request a new trial solely on the issue of damages. For the reasons that follow, the Court will grant the Defendants’ motion for a new trial unless Dwyer accepts a remittitur of the award.

 

I. BACKGROUND

 

In August of 2003, Dwyer was employed as a commercial truck driver for Century Express, a New York truckingcompany. Lufthansa, an airline, operated a warehouse facility at the Washington-Dulles International Airport where its employees and agents loaded trucks with various goods that required transportation. On August 29, 2003, Dwyer arrived at Dulles Airport to pick up 6,500 pounds of fiber optic cable that he was scheduled to deliver to New York. Upon his arrival, Lufthansa’s agents loaded the freight onto Dwyer’s truck.

 

Dwyer testified that because he was concerned that the heavy coil was loaded on the truck in a way that would make it unstable, he requested that the truck be reloaded. After an attempt to reload the freight, a Lufthansa representative told Dwyer that he did not have the proper equipment for the job. Nevertheless, Dwyer decided to begin the trip back to New York. That evening, while driving through Maryland, Dwyer felt the coil fall over in the truck, causing the vehicle to vibrate and shake. This caused Dwyer to lose control of the truck which then crashed into a guardrail and overturned at the side of the highway. Dwyer was extricated from the truck and transported by helicopter to the University of Maryland Shock and Trauma Center in Baltimore where he was treated for his injuries.

 

Dwyer commenced this lawsuit on July 27, 2004, alleging that the accident resulted from the improper loading of the coil. After significant discovery and motion practice, the case was reassigned to this Court and proceeded to a jury trial on May 5, 2009. The only medical testimony presented to the jury was offered by Dwyer’s treating orthopedist, Dr. Omid S. Barzideh.

 

Dr. Barzideh testified that the most severe injury Dwyer suffered was a fractured right femur. Tr. 691. Dr. Barzideh noted that the fracture occurred near the end of the femur at the right knee. Tr. 694. This injury required a surgery in which plates and screws were inserted into his femur. Tr. 695. Dr. Barzideh predicted that, as a result of the injury, Dwyer was likely to develop posttraumatic arthritis, a condition that would eventually require him to undergo surgical removal of the plates and screws and a total knee replacement. Tr. 712-13.

 

Dr. Barzideh further testified that Dwyer sustained herniations in his neck and spine. Dr. Barzideh noted that an MRI on Dwyer’s left shoulder indicated he suffered anterior and posterior labral tears as well as impingement and AC joint degeneration that left him with considerable shoulder pain. Tr. 698. Dr. Barzideh also testified that Dwyer suffered from pain in his hip, Tr. 701-2, and bilateral carpal tunnel syndrome. Tr. 704-5. Dr. Barzideh described his first consultation with Dwyer as follows:

 

He was complaining of pain to his left hand, his left arm, his left shoulder, his cervical spine, his lumbar spine, his thoracic spine, his right hip, right knee. He was complaining of balance problems, weakness. He was miserable.

 

Tr. 703-4.

 

In addition, Dr. Barzideh testified that Dwyer was taking various prescribed narcotics in order to manage his severe pain. Tr. 707-8. Dr. Barzideh also testified that he believed Dwyer was clinically depressed. Tr. 706. According to Dr. Barzideh, Dwyer is physically incapable of gainful employment and will require extensive medication, physical therapy, and ambulatory aids for the remainder of his life. Tr. 716.

 

In his testimony, Dwyer explained that his injuries have left him sedentary and caused him to gain one hundred pounds. Tr. 139. Dwyer testified that he is only able to walk with a cane, Tr. 143, and that he suffers from pain in his hip, shoulder, neck, and back. Tr. 135, 137. Dwyer further testified that his injuries prevent him from leisure activities he enjoyed before the accident and more basic day to day tasks. Tr. 144.

 

After a two-week trial, the jury determined that the Defendants were negligent in loading Dwyer’s tractor-trailer and that their negligence was a proximate cause of his accident. However, the jury also found that Dwyer’s own negligence contributed to the accident and, in apportioning liability, assigned him 80% of the total fault. The jury awarded Dwyer: (1) $2 million for past pain and suffering; (2) $3 million for his future pain and suffering; (3) $90,980 for lost earnings to date; and (4) $434,115 for loss of future earnings. The Defendants now claim that the $5 million awarded for past and future pain and suffering is excessive as a matter of law.

 

II. DISCUSSION

 

A. Fed.R.Civ.P. 59

 

Pursuant to Fed.R.Civ.P. 59, “[t]he court may, on motion, grant a new trial on all or some of the issues-and to any party … for any reason for which a new trial has heretofore been granted in an action at law in federal court …” Fed.R.Civ.P. 59(a)(1)(A). In this Circuit, where a trial court finds that a jury award is excessive, it has the discretion to order a new trial on the issue of damages or, pursuant to the practice of remittitur, condition the denial of a motion for a new trial on the plaintiff’s acceptance of a reduced amount in damages. Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir.1998); see Earl v. Bouchard Transp. Co., Inc., 917 F.2d 1320, 1328 (2d Cir.1990) (quoting Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 49 (2d Cir.1984)) (explaining that remittitur “ ‘is the process by which a court compels a plaintiff to choose between reduction of an excessive verdict and a new trial.”).

 

The practice of remittitur has two laudable purposes. First, it enables “the parties to avoid the delay and expense of a new trial when a jury award is intrinsically excessive.” Earl, 917 F.2d at 1328. Second, the practice minimizes “the extent of judicial interference with a matter that is otherwise within the jury’s domain.” Id.

 

However, in order to decide whether remittitur is appropriate, a trial court must determine whether the verdict is excessive. The Supreme Court teaches that a federal district court sitting in a diversity case should apply state law standards in deciding a motion challenging a jury verdict as excessive. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 437 n. 22, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). In New York, this standard is set by N.Y. C.P.L.R. § 5501(c), which provides that the state’s appellate division “shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.” (emphasis added).

 

In order to determine whether an award “deviates materially from what would be reasonable compensation,” courts look to awards in comparable cases. The Court’s exhaustive review of other New York jury verdicts in similar cases reflects that the $5 million award for past and future pain and suffering in this case is excessive as a matter of law:

 

Marcoux v. Farm Service and Supplies, Inc., 290 F.Supp.2d 457 (S.D.N.Y.2003): The Plaintiff, a 50 year old nurse, was injured when a tractor-trailer struck the car she was driving. The Plaintiff’s injuries included a fractured left femur and left distal radius affecting her wrist and right foot. As with Dwyer, the Plaintiff underwent open reduction surgery to repair her femur. The Plaintiff subsequently required a second surgery on her femur where the bone was stabilized with screws and wires. She also had surgery to prevent blood clots from traveling to her legs and to stabilize her fractured foot and wrist. Although her fractures healed properly, the Plaintiff continued to experience pain in her foot, hip and wrist. She was unable to walk without a cane and was completely unable to return to work as a nurse. A jury awarded her $800,000 for past pain and suffering and $1,000,000 for future pain and suffering. The Defendant challenged the verdict under Rule 59. After a review of awards in similar cases, the Court determined that the jury’s verdict was not excessive.

 

Starr v. Cambridge Green Homeowners Ass’n, Inc., 300 A.D.2d 779, 751 N.Y.S.2d 640 (3d Dep’t 2002): The Plaintiff fell off a wet roof, fracturing his femur, an injury that required the insertion of a surgical pin. He also sustained a fractured heel, wrist, and hip. A medical expert testified that he experienced swelling and pain in his heel. He further testified that the Plaintiff was likely to require hip replacement surgery. In addition, the expert noted that he was likely to develop arthritis in his wrist. Although the Plaintiff was able to return to work, his hours were restricted and he was no longer capable of working as a roofer. A jury awarded the Plaintiff $528,000 for past pain and suffering and $750,000 for 29 years of future pain and suffering. The Appellate Division found that this award was not excessive.

 

*4Kirby v. Turner Const. Co., 286 A.D.2d 618, 730 N.Y.S.2d 314 (1st Dep’t 2001): The Plaintiff suffered “serious injuries” to his hip, back and spine in an accident at a construction site. Although the Court did not elaborate on the Plaintiff’s injuries, it did note that he faced a lifetime of constant pain and severe limitations that would necessitate spinal fusion surgery and a total hip replacement. The trial court reduced the jury’s verdict for past and future pain and suffering from $4 million to $2 million and the Appellate Division affirmed.

 

Young v. Tops Markets, Inc., 283 A.D.2d 923, 725 N.Y.S.2d 489 (4th Dep’t 2001): The Plaintiff fell from a height of 18 feet at work, sustaining injuries to his right femur, spinal column, pelvis and right knee. A jury awarded him $1.5 million for four and one half years of past pain and suffering and $5.5 for 25 years of future pain and suffering. On appeal, the Appellate Division reduced the award to $1 million for past pain and suffering and $2.5 million for future pain and suffering.

 

Carl v. Daniels, 268 A.D.2d 395, 702 N.Y.S.2d 279 (1st Dep’t 2000): A 12 year-old girl was involved in an unspecified accident in which she sustained a severe fracture of her left femur. The injury required three surgeries and was likely to require surgery in the future. The injury left her with chronic pain. A jury awarded her $4 million for past pain and suffering and $3 million for future pain and suffering. The trial court reduced her award to $1.5 million for past pain and suffering and $1 million for future pain and suffering. On appeal, the Appellate Division increased the award to $2,300,000 for past pain and suffering and $2,500,000 for future pain and suffering.

 

Lind v. City of New York, 270 A.D.2d 315, 705 N.Y.S.2d 59 (2d Dep’t 2000): The Plaintiff was riding her bicycle when she was struck by a bus that knocked her underneath one of its wheels. She sustained massive crush injuries including a bilateral pubic bone pelvic fracture, laceration and avulsion of the peritoneum, fractures of the lumbar vertebrae, and fractured ribs. A jury returned a verdict awarding her $7,500,000 for past pain and suffering and $5,000,000 for future pain and suffering. On appeal, the Appellate Division indicated that it would grant the City a new trial if the Plaintiff did not accept $1.5 million for past pain and suffering and $1.25 million for future pain and suffering.

 

Boshnakov v. Bd. of Educ., 277 A.D.2d 996, 996, 716 N.Y.S.2d 520 (4th Dep’t 2000): The Plaintiff fell 20 feet from a mechanical lift, landing in the seats of an elementary school auditorium. As a result of the fall, he sustained “serious” injuries to his ankles and left knee. In light of the Plaintiff’s expected life span (27 years), his “unremitting pain and the need for further surgery,” the Court declined to reduce the $2 million jury award for future pain and suffering.

 

Avery v. Williams, 267 A.D.2d 264, 700 N.Y.S.2d 715 (2d Dep’t 1999): The Plaintiff was a passenger in a car that was struck by an armored vehicle. The Second Department’s decision does not provide any details concerning the Plaintiff’s injuries. However, according to the New York Jury Verdict Reporter, Volume XVI, Issue 11, the Plaintiff sustained a fractured left femur that required open reduction surgery. The Plaintiff claimed that she suffered damage to her right knee as well. There was a dispute at trial about whether the accident caused her carpal tunnel and whether she could return to work. A jury returned a verdict awarding her $1,500,000 for past pain and suffering and $1,000,000 for future pain and suffering. On appeal, the Appellate Division reduced the award to $450,000 for past pain and suffering and $300,000 for future pain and suffering.

 

*5Meng v. Dember, et al., No. 103506/95, 2000 WL 33706496 (N.Y . Sup.Ct.2000): The Plaintiff was struck by a car that drove over a curb. The Plaintiff fractured her left femur, an injury that required the insertion of a pin and a rod in her leg. She also sustained a degloving injury from the crease of her knee to the calf that left her with a marked deformity. She also suffered from peroneal nerve damage that caused drop foot and dysesthesia. A jury awarded her $1 million for past pain and suffering and $2 million for future pain and suffering.

 

The Court appreciates that “ ‘[a]ssigning dollar amounts to pain and suffering is an inherently subjective determination,” and one that is “peculiarly within the province of the jury.” Marcoux, 290 F.Supp.2d at 478 (quoting Pahuta v. Massey-Ferguson, Inc., 997 F.Supp. 379, 385 (W.D.N.Y.1998)). The Court also recognizes that the facts of each case are different and there may be case-specific variables that reasonably lead a jury to award a higher or lower amount in damages. However, based on the Court’s review of comparable cases, it is apparent that the jury’s $5 million award for past and future pain and suffering in this case was excessive. In the Court’s view, this award deviates materially from what would be reasonable compensation. In these cases, the plaintiffs sustained a range of injuries that were comparable to the injuries suffered by Dwyer and yet the award for pain and suffering in this case exceeds even the extreme high end of the damages spectrum. See Carl, 268 A.D.2d 395, 702 N.Y.S.2d 279 (awarding 4.8 million in pain and suffering damages to a 12 year old girl).

 

Nevertheless, the Court believes that an award of $1 million for past pain and suffering and $2 million for future pain and suffering is within the realm of reasonable verdicts for a case involving these injuries. The jury heard compelling medical testimony from Dr. Barzideh and persuasive testimony from Dwyer himself. Given the severity of Dwyer’s injuries, a $3 million total award for pain and suffering would be consistent with the other approved verdicts the Court has reviewed. See Earl, 917 F.2d at 1330 (explaining that “a district court should remit the jury’s award only to the maximum amount that would be upheld by the district court as not excessive.”).

 

III. CONCLUSION

 

The Court has determined that the $5 million award for pain and suffering was excessive. This leaves Dwyer with a choice: he can either accept the reduced award or decide to proceed to a new trial on the sole issue of damages. Dwyer shall inform the Court in writing of his decision within 10 days of the date of this order.

 

Should Dwyer choose to accept this remittitur, the parties are directed to submit letters to the Court within 20 days explaining whether and to what extent the award for future pain and suffering should be discounted to reflect its present value. In the event that Dwyer elects a new trial on the issue of damages, the parties are directed to contact the Court to schedule a trial date.

 

*6SO ORDERED.

Court of Appeals of Oregon.

Clarence D. LASLEY, as personal representative for the Estate of Mark Alan Lasley, Plaintiff-Respondent Cross-Appellant,

v.

COMBINED TRANSPORT, INC., Defendant-Appellant Cross-Respondent,

and

Judy Marie Clemmer, Defendant-Respondent, Cross-Respondent.

060808260, A137222.

 

Argued and Submitted on July 22, 2009.

Decided March 3, 2010.

 

Multnomah County Circuit Court.

 

Before SERCOMBE, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.FN*

 

BREWER, C.J.

 

This is an appeal by one of two defendants in a wrongful death action. Defendant Combined Transport appeals from a judgment for plaintiff. The jury found Combined Transport 22 percent at fault and the other defendant, Clemmer, 78 percent at fault. We affirm in part, reverse in part, and remand for a new trial.

 

Combined Transport is a truckingcompany that specializes in transporting large loads of glass. While a Combined Transport truck was transporting a load of glass on I-5, 12,000 pounds of glass fell from the truck onto the highway. The glass did not fall on any other vehicles. However, the broken glass covered both lanes of traffic, resulting in northbound traffic being stopped while emergency responders cleared the glass from the highway. The clean-up took about one hour and then traffic began to move again slowly. By that time, though, the traffic was backed up for four miles.

 

Decedent was operating his vehicle northbound on I-5 in the vicinity of the clean-up process. As decedent’s vehicle approached the traffic jam, Clemmer’s vehicle struck decedent’s vehicle from behind at about 65 miles per hour. Decedent’s vehicle, in turn, struck a semi-truck in front of it, and decedent’s vehicle instantly caught fire. Decedent died before rescue workers arrived on the scene. Clemmer later pleaded guilty to manslaughter and driving under the influence of intoxicants (DUII).

 

Plaintiff, decedent’s father, brought this wrongful death action against Combined Transport and Clemmer. Plaintiff alleged that both Clemmer and Combined Transport negligently caused decedent’s death. Clemmer admitted every allegation in the complaint with the exception of the amount of damages. Combined Transport denied that it was negligent and that its conduct caused decedent’s death. Combined Transport also asserted cross-claims against Clemmer for contribution and indemnity.

 

At trial, the court excluded testimony regarding the criminal charges against Clemmer and her intoxication. Combined Transport made an offer of proof that included medical records showing Clemmer’s blood alcohol level on the night of the accident, the names of witnesses who would testify that they observed Clemmer drinking earlier in the evening, and the judgments of conviction against Clemmer arising from this incident and a previous DUII conviction. The trial court allowed testimony from several witnesses who saw Clemmer driving earlier in the evening. The witnesses testified to her excessive speed, tailgating, weaving in and out of her lane, and hitting a concrete barrier. Four witnesses testified that they called 9-1-1 because they were concerned about Clemmer’s driving.

 

At the conclusion of the evidence at trial, Combined Transport moved for a directed verdict, arguing that there was no evidence that the accident was a foreseeable result of Combined Transport’s conduct. The trial court denied the motion. The jury found that Combined Transport was negligent and that its negligence caused decedent’s death. The jury was asked, “What is the percentage of each party’s negligence that caused damage to the plaintiff?” The jury answered 22 percent for Combined Transport and 78 percent for Clemmer.

 

Combined Transport makes eight assignments of error, which can be assigned to four categories: (1) the trial court erred in denying its motion for a directed verdict, (2) the court erred in striking Combined Transport’s cross-claim against Clemmer for contribution, (3) the court erred in excluding evidence of Clemmer’s intoxication and of a previous conviction for DUII, and (4) the court erred in admitting evidence that Combined Transport had violated federal trucking regulations and in instructing the jury on negligence per se.

 

Plaintiff also cross-appeals, making two assignments of error. First, plaintiff argues that the trial court erred in calculating Combined Transport’s share of the noneconomic damages. Second, plaintiff asserts that the court erred in admitting evidence of Clemmer’s negligent driving at a remote time and distance from the accident.

 

FORESEEABILITY

 

We discuss Combined Transport’s eighth assignment of error first, because it is potentially dispositive. Combined Transport argues that the trial court erred in denying its motion for a directed verdict on the ground that the evidence did not establish that its conduct foreseeably resulted in decedent’s injuries and death.

 

In reviewing the denial of a motion for directed verdict, we consider the evidence, including any inferences, in the light most favorable to the party that obtained a favorable verdict, and the verdict cannot be set aside “unless we can affirmatively say that there is no evidence from which the jury could have found the facts necessary” to support the verdict. Brown v. J.C. Penney Co., 297 Or. 695, 705, 688 P.2d 811 (1984). “[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, 734 P.2d 1326 (1987). Foreseeability ordinarily presents questions of fact; however, where no reasonable juror could find that the kind of harm that befell the plaintiff was the foreseeable result of the defendant’s negligent act, the harm is unforeseeable as a matter of law. Buchler v. Oregon Corrections Div., 316 Or. 499, 509, 853 P.2d 798 (1993).

 

In several previous cases, the Supreme Court has concluded that the plaintiff’s injury was unforeseeable as a matter of law. In Hawkins v. Conklin, 307 Or. 262, 768 P.2d 66 (1988), the court held that a tavern owner was not liable for injuries caused by a violent patron, because the owner had no knowledge or reason to know of the patron’s violent tendencies when she served him alcohol.

 

In Buchler, a prisoner escaped from custody when the prisoner’s work crew supervisor negligently left the keys in the ignition of a transport van. The prisoner then stole a gun from his mother’s house 50 miles away and shot the plaintiff with it. The court held that the plaintiff’s injury was not foreseeable because the prisoner did not have a history of violence. 316 Or. at 502, 853 P.2d 798.

 

In Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or. 329, 83 P.3d 322 (2004), an accounting firm negligently completed an audit of the plaintiff’s tax returns, knowing that the plaintiff planned to make a public securities offering. As a result of the defendant’s negligence, the securities offer was delayed by about six weeks. In that time period, the market declined significantly, and the price at which the plaintiff could offer its shares was measurably lower. Id. at 333, 83 P.3d 322. The court held that the decline in the market, not the defendant’s negligence, was the “harm-producing force.”   Id. at 345, 83 P.3d 322. Accordingly, the court held that the defendant was not liable as a matter of law. Id. at 347, 83 P.3d 322.

 

However, the Supreme Court recently has cautioned that Buchler and Oregon Steel Mills, Inc., “turned on the specific facts before the court. Neither decision purports to convert every subsequent act of negligence into an ‘intervening harm-producing force’ that will immunize a defendant from responsibility for its own negligence.” Bailey v. Lewis Farm, Inc., 343 Or. 276, 289-90, 171 P.3d 336 (2007). The court went on in Bailey to reaffirm its decision in Hills v. McGillvrey, 240 Or. 476, 402 P.2d 722 (1965). In Hills, a fatal automobile accident was caused by a driver losing control of her vehicle after a mechanic installed the wrong part. The mechanic had ordered the correct part, but the supplier negligently sent the wrong one. Then, the mechanic negligently failed to verify that the part that arrived was the right part before installing it. The decedent’s estate sued the mechanic and the supplier. The supplier claimed that the injury was not foreseeable and that the mechanic’s negligence caused the accident. The court held:

 

“If it was reasonably foreseeable that some harm to the traveling public could result from the installation of the wrong part on an automobile, and if it was reasonably foreseeable that the mechanic might negligently install on an automobile a part supplied him for such a purpose, then it would follow that there was a duty on the part of the supplier not to supply the mechanic the wrong part.”

 

Id. at 482, 402 P.2d 722. Accordingly, the court concluded that the question whether the supplier’s negligence foreseeably resulted in the accident was a triable issue of fact. Id.

 

Combined Transport argues, first, that decedent’s injuries and death did not foreseeably result from Combined Transport’s conduct, and, second, that Clemmer’s negligence was an intervening harm-producing force that made decedent’s injuries and death unforeseeable. In its first argument, Combined Transport contends:

 

“[T]he decedent was killed four miles from the spill by Clemmer, the drunk driver. The injury occurred one and one half hours after the spill; and a full half hour after the road was reopened. The remoteness of the decedent to Combined Transport’s accidental spill, in time and space, placed him outside the ‘class of persons’ foreseeably injured by it.”

 

We disagree. The evidence showed that 12,000 pounds of glass fell onto the highway. A jury reasonably could find that it was foreseeable that a traffic jam would result from a spill of such a magnitude on a major interstate highway. Multiple experts testified at the trial that rear-end collisions are common when traffic is stopped on an interstate highway. Furthermore, an accident reconstruction expert testified that the most dangerous part of a traffic jam is always the back, wherever that might be in relation to the place and time where the traffic jam begins. It follows that a reasonable juror could find that decedent’s injuries and death were foreseeable in these circumstances. Accordingly, the trial court did not err in denying Combined Transport’s motion for directed verdict on that ground.

 

In its second argument, Combined Transport asserts that here, as in Buchler and Oregon Steel Mills, Inc., the evidence showed that an intervening harm-producing force caused the accident. Plaintiff counters that this is not an “extreme case” in which the court could decide that no reasonable factfinder could determine that the harm was foreseeable. Najjar v. Safeway, Inc., 203 Or.App. 486, 492, 125 P.3d 807 (2005). We agree with plaintiff. Although the evidence showed that Clemmer was speeding and did not slow down before striking decedent’s vehicle, an accident reconstruction expert also testified that the accident would not have been as severe if decedent’s vehicle had not been slowed or stopped. Considering the evidence that rear-end collisions are common in traffic jams and distracted drivers are common on the roadways, a reasonable juror could find that, in these circumstances, Clemmer’s actions were not the kind of intervening harm-producing force that would sever the causal link between the glass spill and the harm that befell decedent. Therefore, the trial court did not err in denying Combined Transport’s motion for a directed verdict.

 

EVIDENCE OF INTOXICATION AND NEGLIGENT DRIVING

 

Combined Transport’s second assignment of error is that the trial court erred in granting, over Combined Transport’s objection, plaintiff’s and Clemmer’s first motions in limine and by excluding all evidence of Clemmer’s intoxication. The court ruled that the excluded evidence was irrelevant, because plaintiff had not alleged that Clemmer was intoxicated. Combined Transport asserts that the evidence was relevant because the jury had to decide whether Combined Transport’s conduct was a substantial factor in causing the accident, and it had to apportion fault between defendants. Combined Transport contends that the jury had to consider all relevant evidence in making those determinations, and evidence of Clemmer’s intoxication was relevant both to establish causation and to determine the respective percentages of fault attributable to Clemmer and Combined Transport.

 

We have previously held that evidence of intoxication is relevant in vehicular negligence cases where there is a nexus between the asserted negligence and the consumption of alcohol. Ostrander v. Alliance Corp., 181 Or.App. 283, 291, 45 P.3d 1031,rev den,335 Or. 104, 59 P.3d 1279 (2002). However, plaintiff and Clemmer argue that, because Clemmer admitted that she was negligent, evidence of her intoxication was not relevant to any disputed issue of fact. See Blankenship v. Union Pacific Railroad Co., 87 Or.App. 410, 412, 742 P.2d 680 (1987), rev den,305 Or. 21, 749 P.2d 136 (1988) (holding that it was error for the trial court to admit evidence of the defendant’s negligence where the only issue at trial was damages). Combined Transport argues that this case is distinguishable from Blankenship because, here, plaintiff’s damages were not the only disputed factual issue, and, although Clemmer admitted her negligence, the jury still had to decide the issues of causation with regard to Combined Transport and to apportion fault under ORS 31.600 and 31.605. We agree with Combined Transport.

 

*5Evidence is relevant if it has a “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.” OEC 401. The question of whether evidence is relevant under OEC 401 is reviewed for errors of law. State v. Titus, 328 Or. 475, 481, 982 P.2d 1133 (1999). However, to provide a basis for reversal or modification of a judgment, any evidentiary error must substantially affect a party’s rights. Jett v. Ford Motor Co. ., 335 Or. 493, 500, 72 P.3d 71 (2003); see alsoORS 19.415(2) ( “No judgment shall be reversed or modified except for error substantially affecting the rights of a party.”); OEC 103(1) (“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]”).

 

In a negligence claim, the plaintiff’s burden includes presenting evidence of “cause in fact,” by showing either that the defendant’s conduct was the “but-for” cause of the plaintiff’s harm or, in the case of multiple potential causes, that it was a “substantial factor” in bringing about the harm. Joshi v. Providence Health System, 342 Or. 152, 161-62, 149 P.3d 1164 (2006); Magnuson v. Toth Corp., 221 Or.App. 262, 266, 190 P.3d 423 (2008).

 

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. See Lyons v. Walsh & Sons Trucking Co., Ltd., 183 Or.App. 76, 84, 51 P.3d 625 (2002), aff’d,337 Or. 319, 96 P.3d 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.

 

[10] Plaintiff argues that, “[e]ven if excluding the intoxication evidence might be error, the error was not prejudicial.” Plaintiff contends that there was sufficient evidence of Clemmer’s negligent driving to infer that the jury must have determined that she was impaired. We disagree.

 

The assumption that the jury inferred that Clemmer was intoxicated is purely speculative. Evidence of Clemmer’s intoxication likely would have influenced the jury’s determination of causation and apportionment of fault. Therefore, the error in excluding the evidence of Clemmer’s intoxication substantially affected Combined Transport’s rights and requires remand for a new trial.   Jett, 335 Or. at 500, 72 P.3d 71.

 

[11][12][13] In its third assignment of error, Combined Transport argues that the trial court erred in excluding evidence of Clemmer’s past driving history, including a previous DUII conviction. Combined Transport conceded at trial that that evidence would not be relevant if evidence of Clemmer’s intoxication at the time of the accident was excluded. The trial court agreed and excluded the evidence. On appeal, Combined Transport argues that Clemmer’s previous DUII conviction and completion of a diversion program, including a required class about the dangers of drunk driving, were relevant to her culpability, which, in turn, was relevant to the apportionment of fault. Plaintiff and Clemmer argue that that evidence only showed blameworthiness, which was not at issue and that the evidence was unduly prejudicial even if relevant. We disagree.

 

“ ‘[A]pportionment is on the basis of fault or blame. This involves a comparison of the culpability of the parties, meaning by culpability not moral blame but the degree of departure from the standard of a reasonable man. * * * Negligence ranges from the least blameworthy type, namely, inadvertence and negligent errors of judgment up to the state where knowledge or more complete knowledge supervenes and the negligence of obstinacy, self-righteousness or reckless is reached. The factfinder must be told then under our statute, it should give consideration to the relative blameworthiness of the causative fault of the claimant and of the defendant.’ “

 

Sandford v. Chev. Div. Gen. Motors, 292 Or. 590, 608, 642 P.2d 624 (1982) (quoting Wing v. Morse, 300 A.2d 491, 500 (Me.1973)). The same principle applies to the apportionment of fault between joint tortfeasors. ORS 31.805 (“The proportional shares of tortfeasors in the entire liability shall be based upon their relative degrees of fault or responsibility.”).

 

The challenged evidence was relevant to show the degree of Clemmer’s departure from the standard of care of a reasonable person.

 

OEC 404(3) provides:

 

“Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

 

(Emphasis added.) Here, Combined Transport sought to introduce evidence of Clemmer’s previous DUII conviction and her completion of the diversion program to show her knowledge of the dangers of drunk driving. The excluded evidence was relevant for that purpose. Nonetheless, the evidence could be excluded if it is unduly prejudicial under OEC 403. The trial court excluded the evidence on relevance grounds under OEC 401 and, accordingly, did not make a determination under OEC 403. On remand, the court should make that determination in the first instance.

 

CONCLUSION

 

The trial court did not err in denying Combined Transport’s motion for a directed verdict on the issue of foreseeability. The trial court also did not err in admitting evidence of Clemmer’s negligent driving on the night of the accident. However, the court did err in excluding evidence of Clemmer’s intoxication and her prior conviction for DUII, and the exclusion of that evidence was prejudicial. Accordingly, we reverse and remand for a new trial. Because we reverse and remand for a new trial, we need not address the parties’ remaining assignments of error.

 

On appeal, affirmed in part, reversed in part and remanded for a new trial; cross-appeal dismissed as moot.

 

FN* Brewer, C. J., vice Edmonds, P. J.

 

Although Combined Transport’s argument mentions Clemmer’s intoxication, that evidence was not admitted at trial, and, accordingly, we do not consider it for purposes of this assignment of error.

 

Combined Transport also assigns error to the court striking its cross-claim for contribution against Clemmer. Combined Transport’s arguments appear to be premised on the understanding that the cross-claim was necessary to establish a basis in the pleadings for the admission of evidence of Clemmer’s intoxication and criminal conduct. Given our disposition of the evidentiary assignments of error, the fact that the cross-claim was dismissed without prejudice, and the fact that any fault will be allocated proportionally to Clemmer and Combined Transport under ORS 31.600 regardless of a cross-claim, we do not reach that assignment of error.