Bogue v. McKibben

• Decision Date: 31 May 1977
• Citation: 278 Or. 483,564 P.2d 1031
• Parties: Dick E. BOGUE, Personal Representative of the Estate of Terri Lynn Bogue, Respondent, v. Michael George McKIBBEN and Barbara Falk, Appellants.
• Court: Oregon Supreme Court

Page 1031

564 P.2d 1031

278 Or. 483

Dick E. BOGUE, Personal Representative of the Estate of Terri Lynn Bogue, Respondent, v. Michael George McKIBBEN and Barbara Falk, Appellants.

Supreme Court of Oregon.

Argued and Submitted April 8, 1977.

Decided May 31, 1977.

Carrell F. Bradley, Hillsboro, argued the cause for appellants. With him on the briefs were Schwenn, Bradley & Batchelor, Hillsboro.

John L. Hemann, Salem, argued the cause for respondent. With him on the brief were Garrett, Seideman & Hemann, Salem.

Before DENECKE, C.J., and HOLMAN, TONGUE, BRYSON and LENT, JJ.

BRYSON, Justice.

Plaintiff brought this action as personal representative to recover damages for the wrongful death of his minor child. The accident occurred when the deceased was a guest in a motor vehicle driven by defendant Michael McKibben and owned by defendant Barbara Falk. The jury found for defendant Falk and against defendant McKibben. McKibben appeals from the judgment entered against him.

Miss Bogue died of injuries sustained when the vehicle collided with a utility pole at the intersection of Croisan Creek Road South (Croisan Creek) and Madrona Avenue South (Madrona) in Salem, Oregon. Madrona runs generally in an east-west direction and terminates in a 'T' intersection with Croisan Creek. Vehicles proceeding west on Madrona must turn either north or south at the intersection, and those vehicles turning to the north are permitted to do so without stopping. A stop sign controls traffic turning south on Croisan Creek off of Madrona. Another stop sign requires traffic proceeding north on Croisan Creek to stop at the Madrona intersection.

Defendant first assigns as error the trial court's denial of his motion for directed verdict and contends the plaintiff failed to produce evidence from which the jury could infer that defendant McKibben was guilty of gross negligence.

If evidence is found from which reasonable men could conclude that defendant's conduct falls within the definition of gross negligence, the case must go to the jury. This is true 'in spite of the fact that were we called upon to make a decision as jurors we might conclude from the evidence that the defendant was not liable.' Williamson v. McKenna, 223 Or. 366, 392, 354 P.2d 56, 68 (1960).

The evidence, viewed most favorably for plaintiff, is as follows. Madrona, for more than a quarter of a mile, runs downhill to the scene of the accident. A resident on the upper part of Madrona testified that her attention was called to the vehicle 'because of the extra acceleration at my house, like a hot-rod type acceleration'; that halfway down the hill on Madrona the car was going '60' miles per hour. Another eyewitness testified the car was going 'thirty-five to forty miles an hour' when it crossed Croisan Creek Road and struck the power pole. The skid marks, depicted by photographs, show defendant drove to the left of the center line on Madrona in his attempt to negotiate the turn.

Defendant was unfamiliar with the road; however, the weather was clear and dry and the intersection and stop sign at the foot of Madrona were clearly visible at a distance of one-quarter mile. Defendant had been told by one of the passengers in the vehicle that he would have to turn right at the bottom of the hill and was further warned of the intersection by a 'Stop Ahead' sign located 494 feet before the point where Madrona meets Croisan Creek.

Defendant testified that he had experienced brake problems prior to the accident. Defendant's sister, in her statement to the police, stated that defendant had complained to her the day before the accident that the vehicle's brakes were grabbing.

ORS 30.115 prohibits actions by guests in the absence of proof that the accident was intentional or caused by the defendant's gross negligence or intoxication. ORS 30.115(2) defines gross negligence as follows:

"Gross negligence' refers to negligence which is materially greater than the mere absence of reasonable care under the circumstances, and which is characterized by conscious indifference to or reckless disregard of the rights of others.'

In Williamson v. McKenna, supra, this court equated 'gross negligence' with the concept of 'reckless disregard of the rights of others' as defined in 2 Restatement (Second) of Torts 587, § 500 (1965), which provides:

'The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.' ¹

Comment A to that section further explains the nature of the conduct required for recklessness as follows:

'* * * It must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent. It must involve an easily perceptible danger of death or substantial physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence.' Id. at 588.

In Hill v. Garner, 277 Or. 641, 646, 561 P.2d 1016, 1019 (1977), we noted that

'* * * in order to show gross negligence it is incumbent upon the plaintiff to prove that defendant's conduct, when measured objectively, reveals 'a state of mind indicative of an indifference to the probable consequences of one's acts.' This state of mind has been described as an 'I don't care what happens' attitude. Bottom v. McClain, 260 Or. 186, 489 P.2d 940 (1971) at 191--92. * * *'

This court has been hesitant to allow gross negligence cases to reach the jury where the only evidence is that defendant entered a corner at an excessive speed, lost control and crashed. Brown v. Bryant, 250 Or. 196, 197, 440 P.2d 231, 232 (1968); Holman v. Barksdale et al, 223 Or. 452, 354 P.2d 798 (1960). In Brown v. Bryant, supra, we held as a matter of law that '(t)he conduct of the defendant in attempting an approximately 90 degree turn at 35 to 40 miles per hour is evidence of negligence, but it will not suffice to establish gross negligence.'

However, the instant case has elements not present in Brown v. Bryant, supra, and Holman v. Barksdale, supra. There is evidence from which a jury could conclude that this was not a case of mere inadvertence or inattention. The good visibility of the intersection and presence of warning signs as well as the warnings of his passenger all support the conclusion that defendant must have been aware that he was proceeding downhill and approaching an intersection at which he would have to either stop or make a sharp right turn. The car was heavily loaded with four adults and a child in addition to the driver and skidded 89 feet before striking the pole. A jury could find from the evidence that despite this knowledge, the defendant accelerated halfway down the hill to the intersection, reaching a speed of approximately 60 miles per hour. It could further infer from the skid marks that defendant intended to make a wide turn by driving to the left of the center line of Madrona. Finally, the evidence is conclusive that defendant knew that his brakes were malfunctioning and had a tendency to grab.

Defendant's appreciation of the condition of his vehicle is relevant, independent of any causation issues, as evidence of his mental state at the time of the accident and as a measure of the dangerousness of his conduct. A driver who approaches a sharp corner at 35 to 40 miles per hour may be merely negligent if his vehicle is designed and equipped for such driving, but may be considered to be grossly negligent if, measured objectively, he knew or should have known that it was in a defective condition.

We conclude that evidence was presented from which a jury could reasonably conclude that defendant knowingly elected to accelerate the vehicle towards the intersection to a speed which a reasonable man would realize created an unreasonable risk of physical harm to his passengers substantially greater than that which would render his conduct negligent. This is particularly true considering defendant's knowledge of the malfunctioning brakes and the load factor in his car when going downhill. We conclude the trial court did not err in denying defendant's motion for a directed verdict.

The dissent describes the majority as getting 'back in the business of tinkering with what constitutes gross negligence' and concludes 'that Williamson, as subsequently interpreted, is dead * * *.'

Williamson v. McKenna, supra, was a herculean effort to settle the issue herein discussed and remains a bellwether case. Whenever this court must determine what facts constitute a reasonable man's reckless disregard of the safety of others, there will occasionally be a grey area of difficulty. The question remains as to when a case goes to the jury for determination on the issue of gross negligence.

Since Williamson there have been several cases wherein the court has disagreed as to what constitutes gross negligence. See, for instance, Sherman v. McAllister, 265 Or. 630, 509 P.2d 1176 (1973); Amundson v. Hedrick, 253 Or. 185, 452 P.2d 308 (1969); Burghardt v. Olson, 223 Or. 155, 349 P.2d 792, 354 P.2d 871 (1960)-- reconsidered after Williamson v. McKenna, supra.

No two cases are alike. The majority does not overrule Williamson wherein this court adopted the rule as stated in 2 Restatement (Second) Torts, § 500, Supra, for application in gross negligence guest-passenger cases. We regard this opinion as a proper application of the rule set forth in the Restatement (Second) of Torts § 500, Supra.

Defendant next contends that the court 'erred in instructing the jury that the statutorily designated speed of 20 mph when approaching and traversing a blind intersection...