Transport 22 percent at fault and Clemmer 78 percent at fault for plaintiffs damages. Combined Transport appealed and the Court of Appeals reversed, concluding that the trial court had erred in excluding the evidence of Clemmer’s intoxication. The Court of Appeals held that that evidence was relevant to two issues: “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 P3d 625 (2002), aff'd, 337 Or 319, 96 P3d 1215 (2004) (<HOLDING>). Accordingly, the trial court erred in
holding that criminal conduct of third party is not superseding cause that relieves negligent actor from liability when criminal conduct is foreseeable result of actors negligence holding that where there has been no settlement or judgment of liability regarding the underlying claim any imposition of liability is not so immediate as to warrant declaratory relief on the issue of indemnification holding that the evidence supports the conclusion that individual issues of fact predominate with respect to whether defendants product benefitted or harmed any particular person since it would require consideration of each particular plaintiffs medical history holding that massachusetts statute did not create a sufficiently close nexus between private hospital and the state to warrant labeling private actors state actors holding that wlhether any particular cause or any individual actors conduct is sufficiently substantial to warrant the imposition of liability depends properly on a consideration of the whole