57 Trial Lawyer • Fall 2022 while driving is relevant to the question of whether that conduct unreasonably created a foreseeable risk of the kind of harm that befell the plaintiff. Scott v. Kesselring, 370 Or 1 (2022), Walters, C.J. The plaintiff was represented by Travis Eiva. Jim Coon and Kathryn Clarke filed an amicus brief on behalf of OTLA. The plaintiff sued the defendants for physical injuries and emotional distress she suffered from a car collision, including distress that led to the plaintiff ’s later suicide attempt. Before trial, the defendants moved in limine for an order excluding evidence the defendant was using her cellphone at the time of the collision, arguing that such evidence was irrelevant or, in the alternative, unfairly prejudicial. The trial court denied the motion, allowing the evidence, but the Court of Appeals reversed, holding that evidence of the defendant’s conduct was not relevant to the question of whether the plaintiff ’s suicide attempt was foreseeable. The Supreme Court held the evidence was relevant to the question of foreseeability. The court explained that a defendant found liable for a plaintiff ’s harm is liable for the full extent of the harm, even if it is much greater than may have been anticipated. The court concluded that evidence the defendant was using a cell phone at the time of the collision was relevant to the foreseeability of the plaintiff ’s suicide attempt — a question the defendants had put as an issue at trial. By putting their conduct at issue, defendants made the entirety of that conduct, including the cellphone use, relevant. A private contractor providing healthcare services at a county jail is a “place of public accommodation” within the meaning of ORS 659A.400 and can be subject to liability under Oregon’s Public Accommodations Act. Abraham v. Corizon Health, Inc., 389 Or 735 (2022); Walters, C.J. Garrett, J. contractually required, among other things, a three-person arbitration panel, that the parties pay their equal share of fees and panel compensation, which arbitrators had no authority to allocate or apportion. The provisions also imposed an absolute bar to arbitration unless a claimant timely served a written demand within 90 days of the claim and arbitration proceeded within 120 days thereafter. Lastly, arbitrators were expressly prohibited from entering an award which altered, amended, or modified any term or condition of the contract, including the provision stating “[u]nder no circumstances shall Driver be deemed an employee.” The defendants moved the trial court to compel arbitration under the DSA which the trial court granted. Because the plaintiff was unemployed, could not afford either the DSA’s specified costs of arbitration, the filing fees or to pursue his individual wage claim without the benefit of a class action, the plaintiff sought and obtained the trial court’s judgment of dismissal for purposes of an appeal. After the plaintiff filed his opening brief in 2016, the defendants sought and obtained a dismissal of the appeal, which the Oregon Supreme Court thereafter reversed. On remand, and prior to the filing of the defendants’ answering brief, the defendants entered into a consent judgment with the U.S. Secretary of Labor which deemed the DSA’s independent contractor terms illegal and unenforceable under federal labor laws. The Court of Appeals next issued its decision in this case and concluded that the consent decree had no bearing on whether the arbitration provisions were enforceable. The court determined those provisions were not unconscionable because nothing prevented the arbitrators from applying Oregon’s wage and hour laws to the plaintiff’s claims as an employee. Prior to that Court of Appeals decision, the U.S. Supreme Court decided New Prime Inc. v. Oliveira, holding that before a court may order arbitration under the Federal Arbitration Act (FAA), it must first determine whether the contract sets forth a relationship that is exempted from the FAA or contains arbitration provisions that are unconscionable. The U.S. Supreme Court clarified, for the first time, that its decision includes, not only traditional contracts of employment with transportation workers exempted from the FAA, but those setting forth independent contractor relationships, such as that here. The plaintiff sought and obtained review of the Court of Appeals decision and with the OTLA Amicus Committee, directed the Supreme Court’s attention to both the binding consent judgment deeming the DSA invalid and unenforceable, and the U.S. Supreme Court’s decision in New Prime Inc. exempting transportation workers from the FAA. The Oregon Supreme Court determined neither case was particularly compelling. The court concluded the plaintiff had failed to preserve the argument that the transportation worker exception to the FAA applied, raising it for the first time on review (once the New Prime Inc. decision had issued). The court determined the FAA applies, prevents consideration of the DSA as a whole and limits the court’s consideration to whether the arbitration provisions were unconscionable. The court next concluded that when the arbitration provisions were read together with the DSA’s savings clause, nothing prevents the arbitrator from applying Oregon law to the plaintiff’s individual wage claim as an employee. The court made no mention of whether the contract, its arbitration provisions or the practicality of pursuing relatively small wage claims without the benefit of class proceedings, served to deny access to justice for this plaintiff or those similarly situated. In a negligence case, evidence that the defendant was using her cell phone See Sheets 58
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