No. 74 November 25, 2016 629

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

SCOTT B. GERHARDT,

Respondent on Review.

(CC 12P3329; CA A152760; SC S063612)

On review from the Court of Appeals.*

Argued and submitted September 20, 2016.

Keith L. Kutler, Assistant Attorney General, Salem, 

argued the cause and filed the brief for petitioner on 

review. Also on the brief were Ellen F. Rosenblum, Attorney 

General, Paul L. Smith, Deputy Solicitor General, and Cecil 

A. Reniche-Smith, Senior Assistant Attorney General.

Morgen E. Daniels, Deputy Public Defender, Salem, 

argued the cause and filed the brief for respondent on review. 

Also on the brief was Ernest G. Lannet, Chief Defender.

Erin K. Olson, Law Office of Erin K. Olson, P.C., Portland, 

filed the brief for amici curiae S.G. (crime victim), National 

Crime Victim Law Institute, and Oregon Crime Victims Law 

Center. Also on the brief were Margaret Garvin, Portland, 

and Rosemary W. Brewer, Portland.

Before, Balmer, Chief Justice, and Kistler, Walters, 

Landau, Baldwin, and Brewer, Justices, and Shorr, Justice 

pro tempore.**

LANDAU, J.

The decision of the Court of Appeals is reversed. The restitution order of the trial court is affirmed.

______________

** Appeal from Polk County Circuit Court, Monte S. Campbell, Judge. 273 

Or App 592, 359 P3d 519 (2015).

** Nakamoto, J., did not participate in the consideration or decision of this 

case.
630 State v. Gerhardt

Case Summary: In a claim for restitution after defendant’s conviction for 

strangling his wife, the trial court awarded the victim restitution for the attorney 

fees she incurred to obtain a permanent protective order. The Court of Appeals 

reversed the trial court’s decision and the state petitioned for review. Held: (1) 

To justify an award of restitution for attorney fees, the defendant’s criminal conduct must have been a but-for cause of those fees and the fees must have been 

a reasonably foreseeable consequence; and (2) because defendant had conceded 

both that his conduct was a but-for cause of the victim’s attorney fees and that 

attorney fees were not unforeseeable as a matter of law, the trial court correctly 

awarded the victim restitution for her attorney fees.

The decision of the Court of Appeals is reversed. The restitution order of the 

trial court is affirmed.
Cite as 360 Or 629 (2016) 631

LANDAU, J.

Defendant was convicted of strangling his wife. At 

sentencing, the trial court awarded the victim restitution 

for attorney fees that she incurred to enforce a no-contact 

order that the court had previously entered while defendant was in jail as well as to obtain a permanent protective 

order. The issue in this case is whether those attorney fees 

may be awarded as restitution under ORS 137.106(1)(a), 

which authorizes restitution when a person is convicted of a 

crime “that has resulted in economic damages.” The Court 

of Appeals concluded that they may not be awarded and 

reversed. State v. Gerhardt, 273 Or App 592, 359 P3d 519 

(2015). We conclude that, because defendant concedes that 

the attorney fees were caused by his conduct and were a 

reasonably foreseeable result of that conduct, the trial court 

did not err in awarding restitution for those fees. We therefore reverse the Court of Appeals.

The relevant facts are not in dispute. Defendant 

was arrested and charged for strangling his wife. The trial 

court entered a no-contact order under ORS 135.247(2), 

which provides that, when a defendant is charged with a 

crime that constitutes domestic violence, the court must 

“enter an order prohibiting the defendant from contacting or 

attempting to contact the victim, either directly or through 

a third party, while the defendant is in custody.”

While in jail, defendant repeatedly violated the 

no-contact order. The victim hired an attorney to help her 

enforce the no-contact order and to obtain a permanent protective order under the Family Abuse Prevention Act, ORS 

107.700 to 107.735, incurring expenses of $1,880.

Defendant ultimately pleaded guilty to the strangulation charge, and the trial court ordered him to pay 

restitution in the amount of $1,880 for the victim’s attorney’s fees. Defendant objected to an award of restitution. 

He argued that attorney fees of any sort are not the type of 

damages that are contemplated under the statute authorizing an award of restitution. Defendant reasoned that ORS 

137.106(1)(a) authorizes restitution for “economic damages,” 

which the relevant statutes provide has the meaning given 

in ORS 31.710(2)(a). That statute, in turn, defines “economic 
632 State v. Gerhardt

damages” as “objectively verifiable monetary losses,” including charges necessarily incurred for a number of specified 

services. Defendant argued that, because legal services are 

not among the list of services that qualify, attorney fees 

are not economic damages for which restitution is available 

under ORS 137.106(1)(a). The trial court rejected defendant’s argument and awarded restitution in the amount of 

$1,880.

Defendant appealed, arguing that the trial court 

erred in awarding restitution. He offered two arguments in 

support. First, he reprised his contention that attorney fees 

are “not the type of damages” that may be recovered under 

the statutes. Second, he argued that, even if attorney fees 

are the type of damages that may be the subject of a restitution award, the particular attorney fees incurred in this 

case were not, because they were not incurred as a “result” 

of the criminal charge of strangulation. Rather, defendant 

argued, the victim’s attorney fees were incurred as a result 

of defendant’s violation of the no-contact order.

The state argued that, although defendant had preserved his contention that attorney fees are not the sort of 

damages for which restitution may be ordered, he did not 

preserve his alternate contention that, even if attorney fees 

may sometimes be awarded, they could not be in this case 

because of an absence of a causal relationship between his 

crime and the fees incurred. In any event, the state argued, 

the fees were incurred as a result of defendant’s conduct in 

strangling the victim.

The Court of Appeals agreed with defendant’s argument concerning the causal relationship between a crime 

and economic damages that may be awarded as restitution. 

The court concluded that, although defendant’s conduct in 

strangling the victim “was a necessary predicate” for the 

necessity of hiring an attorney, it “was not sufficient to cause 

the victim to incur the attorney fees.” Gerhardt, 273 Or App 

at 595. In the court’s view, “it was defendant’s conduct after

he committed the crime that led the victim to conclude that 

she needed to hire an attorney,” not the crime itself. Id. 

(emphasis in original). The court did not address the state’s 

contention that defendant had not preserved that argument; 
Cite as 360 Or 629 (2016) 633

nor did it address defendant’s argument that attorney fees 

are categorically excluded as “economic damages” under the 

restitution statute. Its decision did prompt a dissent, though, 

which took issue with the majority’s decision to require a 

“sufficient” cause in excess of “but for” causation to justify 

an award of restitution. Id. at 600-04 (Flynn, J., dissenting).

The state sought review. In the meantime, this 

court decided State v. Ramos, 358 Or 581, 588, 358 P3d 446 

(2016). In that case, the court rejected the argument that 

attorney fees are categorically excluded from restitution 

awards. Id. at 602. It further held that, under ORS 137.106, 

whether a crime “result[s] in” economic damage is a function 

of two considerations. First, there must be factual causation. 

Ramos, 358 Or at 593. Factual causation is established if 

the economic damages would not have occurred but for the 

defendant’s crime. Id. at 593 n 6. The court noted the possibility that a different type of causation—“substantial factor” 

causation—might apply, but the court reserved that question 

for another day, given the nature of the parties’ arguments 

in that case. Id. at 586 n 3. Second, any economic damages 

awarded as restitution under ORS 137.106 must have been a 

reasonably foreseeable consequence of the defendant’s crime. 

Id. at 603-04. The court rejected the contention that the test 

should be more demanding than reasonable foreseeability 

and that, instead, the court should require that economic 

damages be “direct.” Id. at 597.

Following this court’s decision in Ramos, the parties in this case submitted briefs and arguments in light 

of the principles set out in that opinion. For its part, the 

state argues that the disposition of this case is straightforward. There is no dispute that, but for defendant’s act of 

strangling the victim, the attorney fees would not have been 

incurred, and it is equally undisputed that the incurring of 

those fees was a reasonably foreseeable consequence of his 

crime. Under Ramos, the state concludes, the award of restitution was proper.

Defendant does not contest that the attorney fees 

were incurred, at least in a but-for sense, as a result of his 

crime. Nor does he contend that, as a matter of law, the fees 

were not a reasonably foreseeable consequence of that crime. 
634 State v. Gerhardt

Instead, defendant argues that the court should interpret 

ORS 137.106 to require more than but-for causation. As 

defendant sees it, Ramos “left open” the type of causation 

that the statute contemplates. Defendant proposes that 

the court address the issue in this case and conclude that 

restitution is appropriate only if his crime is “sufficient in 

itself to cause the victim’s damages,” that is, only if no other 

causal factor may contribute to the damages. In this case, 

defendant argues, his crime of strangling the victim was not 

the sole cause of her attorney fees; rather, it was his subsequent conduct of violating the no-contact order that caused, 

at least in part, the victim to incur the fees.

Defendant further argues that, if the court rejects 

his sole-cause proposal, it should adopt as an alternative 

requirement that the state must prove that, “in addition 

to being a ‘but-for’ cause of the damages, the criminal conduct was a substantial factor in bringing about the victim’s 

harm.” Defendant, however, uses the term “substantial factor” to suggest what he calls a “‘but-for’-plus” test. As defendant uses the term, “substantial factor” causation would 

require that, when a crime is one of multiple causes of economic damages, that crime must be a relatively more significant component in the series of causal events. In this case, 

he argues, although his crime may have been a but-for cause 

of the victim’s attorney fees, the more significant link in the 

chain of causation was his subsequent conduct in violating 

the no-contact order.

At the outset, we are confronted by a problem of 

preservation. State v. Wyatt, 331 Or 335, 346-47, 15 P3d 22 

(2000) (appellate courts always have obligation to address 

preservation). In this case, none of the arguments that defendant asserts to us were asserted to the trial court. As we 

have noted, the sole argument that defendant offered to the 

trial court was that attorney fees of any sort categorically 

are not the type of economic damages that may be the subject of a restitution award. He made no mention of causation 

or foreseeability. Had defendant raised those matters, the 

state might have made a different record, which could have 

obviated the need for any appeal. Only in the most general 

sense did defendant put in issue whether the attorney fees 
Cite as 360 Or 629 (2016) 635

in this case were a “result” of his criminal conduct within 

the meaning of ORS 137.106.

But we need not determine whether that was sufficient to preserve his claim, however. Even assuming that it 

was, defendant’s concessions foreclose the relief he seeks.

As we have explained, under Ramos, whether a crime 

has “resulted in” economic damages under ORS 137.106 is a 

function of two considerations, namely, causation and foreseeability. We begin with causation. Causation is satisfied if 

the crime is a but-for cause of the economic damages. Ramos, 

358 Or at 593. And defendant has conceded that his criminal act was a but-for cause of the victim’s attorney fees. To 

the extent that defendant argues for a standard requiring a 

more direct causal connection, we rejected that argument in 

Ramos. Id. at 597.

Defendant’s argument that we should employ 

a “substantial factor” test likewise is unavailing. As we 

understand it, defendant uses the term “substantial factor” 

in a way that is foreign to the ordinary use of the term and 

to the manner in which we referred to it in Ramos. When we 

use the term “substantial factor” in the causation context, it 

refers to cases in which “the negligence of multiple tortfeasors combines to produce harm,” and each tortfeasor may be 

liable as a factual cause of the injury. Lasley v. Combined 

Transport, Inc., 351 Or 1, 6, 261 P3d 1215 (2011). Defendant 

uses the term in a different sense, one that involves weighing the relative role of different causes in a chain of events 

and evaluating the extent to which the existence of the other 

causes attenuates the connection between an initial crime 

and resulting economic damages. As shown by our discussion of the issue in Ramos, that is not a problem of causation; 

rather, it is addressed in the consideration of the foreseeability of the damages. 358 Or at 597-99.

We turn, then, to foreseeability. Foreseeability ordinarily poses a question of fact. See Piazza v. Kellim, 360 Or 

58, 69-70, 377 P3d 492 (2016) (“The concept of foreseeability 

embodies a prospective judgment about a course of events; it 

‘therefore ordinarily depends on the facts of a concrete situation’ and, if disputed, is a jury question.” (Quoting Fazzolari 
636 State v. Gerhardt

v. Portland School Dist. No. 1J, 303 Or 1, 4, 734 P2d 1326 

(1987).)). In this case, as we have noted, defendant does not 

argue that, on the record before it, the trial court could not 

find that the victim’s attorney fees were a foreseeable consequence of his crime. In light of the concession, we need not 

address further that component of the analysis.

In short, Ramos holds that restitution may be 

awarded under ORS 137.106 if defendant’s crime was a 

factual cause of the victim’s economic damages and those 

damages were the reasonably foreseeable consequence of 

the crime. In this case, defendant concedes that his crime 

was a but-for cause of the victim’s attorney fees and that 

those fees were a reasonably foreseeable consequence of that 

crime. Consequently, the trial court did not err in awarding 

restitution, and the Court of Appeals erred in holding to the 

contrary.

The decision of the Court of Appeals is reversed. 

The restitution order of the trial court is affirmed.