46 Trial Lawyer • Spring 2022 protected by that statute, and that the plaintiff’s emotional distress was of a type that the statute was enacted to prevent (because a broadly recognized purpose of insurance is to provide economic and financial peace of mind to the insured). Significantly, the court recognized that the Supreme Court had rejected in dictum a statutory liability (aka statutory tort) claim based on the same statute, but held this did not doom the viability of a negligence per se claim. Claim for negligent infliction of emotional distress lies where employer negligently hires or supervises coworker who spies on plaintiff in employer’s bathroom. I.K. & C.K. v. Banana Republic, LLC, 317 Or App 249 (2022); Landau, S.J. The plaintiffs were represented by Barbara Long and Rebecca Cambreleng. Ashley Vaughn filed the amicus brief for OTLA. In these two cases, the plaintiffs worked at Banana Republic and came to learn their co-worker had been spying on them when they used the employee bathroom. They sued Banana Republic for negligent hiring and supervision of the co-worker, who had done the same thing at a prior employer, seeking damages for emotional distress. The trial courts in both cases dismissed the claims. The Court of Appeals reversed, holding the plaintiffs had a legally protected interest in being free from the negligently caused emotional trauma of being video recorded while using a private restroom. The court cited the right to privacy (particularly in the bathroom) that has been recognized in common law, the state constitution and criminal statutes. The court recognized it was the co-worker who had spied on the plaintiffs, but held the employer was liable because they had negligently failed to protect the plaintiffs’ right to privacy. The court also held this right was socially important enough to warrant protection by the law. “But-for” causation instruction sufficient in most negligence actions and “substantial-factor” instruction not required in cases involving plaintiffs with preexisting conditions. Haas v. Estate of Carter, 316 Or App 75 (2021), Hadlock, J. Kathryn H. Clarke represented the plaintiff. The plaintiffs in this case, both susceptible to injury because of preexisting conditions, were injured when the defendant rear-ended their vehicle. The plaintiffs both required surgeries to address spinal injuries following the collision and subsequently brought this negligence action against the defendant and their insurer, State Farm. At trial, the evidence addressed the plaintiffs’ respective susceptibilities to injury due to underlying conditions, the speed and force of the collision being sufficient to cause the plaintiffs’ injuries and the collision being the cause of the plaintiffs’ injuries. Consistent with that evidence, the plaintiffs argued they were entitled to uniform jury instructions on “previous infirm condition,” and, under Joshi, the “but-for” as well as the “substantial factor” causation instructions. The trial court declined to give the substantial factor causation instruction and the jury delivered a defense verdict. The plaintiffs appealed. On appeal, the Court of Appeals affirmed the judgment. The court reasoned that Joshi provides that the but-for test of causation applies in most negligence cases. While the court recognized Joshi further discussed applying the substantial-factor test of causation in multiple tortfeasor cases and cases involving multiple causes of harm, the court concluded the plaintiffs on appeal did not “point to evidence regarding any mechanism by which either plaintiff’s underlying infirm conditions caused their injuries, symptoms, or need for surgery.” The court further noted that, not only Sheets Continued from p 45
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