Cervantes v. Mattson

JurisdictionOregon
PartiesLorenzo CERVANTES, Appellant, v. Robert MATTSON, Respondent. L83-2802; CA A41628.
Citation752 P.2d 1293,90 Or.App. 574
CourtOregon Court of Appeals
Decision Date20 April 1988

Dean Heiling, Roseburg, argued the cause for appellant. With him on the briefs was Heiling & Morrison, P.C., Roseburg.

Rod Carter, Eugene, argued the cause for respondent. On the brief were Louis L. Kurtz and Luvaas, Cobb, Richards & Fraser, P.C., Eugene.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

DEITS, Judge.

Plaintiff was injured when the automobile in which he was a passenger collided with a vehicle driven by defendant. Both vehicles were traveling southbound on Highway 99. Defendant attempted to pass the automobile in which plaintiff was riding by pulling into the northbound lane and increasing speed to approximately 55 miles per hour. The accident occurred in an intersection when plaintiff's driver attempted to turn left. At trial, plaintiff moved for a directed verdict on the issue of liability. He contends that defendant violated former ORS 487.205(1)(c), 1 which prohibited driving on the left side of the center of a two-way road "[a]t any intersection or railroad grade crossing." Plaintiff argues that defendant was therefore guilty of statutory negligence and that, because he offered no evidence from which it could be found that he was acting "as a reasonably prudent person under the circumstances," a directed verdict was appropriate. Barnum v. Williams, 264 Or. 71, 78, 504 P.2d 122 (1972). The trial court denied the motion, and the jury found, by special interrogatory, that defendant was not negligent. Plaintiff appeals and assigns as error the denial of his directed verdict motion. We reverse.

Defendant does not argue on appeal that he was not in violation of the statute. His contention is that he offered sufficient evidence of reasonable conduct to permit the trier of fact to find that he was not negligent. Defendant points to evidence that the

"turning vehicle did not signal to make a left turn and defendant did not know about plaintiff's intention to turn left.[ 2 Moreover, the record shows the road was clear and dry, visibility was good, the roadway was straight with no obstructions, there was no on-coming traffic, there was no solid yellow 'no passing' line in defendant's lane and the intersection was a 'T' intersection comprised of a major north/south highway and a small residential access road."

Defendant relies, inter alia, on Barnum v. Williams, supra, where the court said "We consider the present state of the law to be that if a party is in violation of a motor vehicle statute, such a party is negligent as a matter of law unless such party introduces evidence from which the trier of fact could find that the party was acting as a reasonably prudent person under the circumstances. We so hold regardless of whether the circumstances do or do not include facts which the law regards as an emergency.

"Another way of stating this is that the violation of a motor vehicle statute creates a presumption of negligence. When the evidence establishes that a party has violated a motor vehicle statute, such a party has the burden of producing evidence that, nevertheless, he was acting reasonably. Without such evidence the party is negligent as a matter of law. Raz v. Mills, 231 Or 220, 226-227, 372 P2d 955 (1962).

"If the party having such burden produces no evidence of reasonable conduct or the court finds the evidence produced is insufficient to prove reasonable conduct, the court must find the party negligent as a matter of law. If the party produces evidence which the court determines raises a question of fact whether the party acted reasonably, despite violation of the statute, then, the question of the party's negligence is for the jury."

See also Mariman v. Hultberg, 82 Or.App. 535, 728 P.2d 919 (1986).

We agree with defendant that plaintiff...

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1 cases
  • MAQUIEL v. Adkins
    • United States
    • Oregon Court of Appeals
    • June 27, 2001
    ...an emergency or other circumstance that made compliance with the statute unreasonable, difficult, or dangerous. Cervantes v. Mattson, 90 Or.App. 574, 577, 752 P.2d 1293 (1988). The Supreme Court's essential holding in Barnum was that, despite a motor vehicle code violation, fault is for the......
3 books & journal articles
  • §33.3 Liability Per Se
    • United States
    • Torts (OSBar) Chapter 33 Negligence Per Se, Statutory Torts, and Statutory Duties
    • Invalid date
    ...courts also use the term statutory negligence to describe such a negligence count. See, e.g., Cervantes v. Mattson, 90 Or App 574, 576, 752 P2d 1293 (1988); Maquiel v. Adkins, 175 Or App 43, 55, 27 P3d 1050 (2001). See also UCJI No. 20.03. NOTE: The Oregon Supreme Court has not expressly ad......
  • §33.2 Commonalities
    • United States
    • Torts (OSBar) Chapter 33 Negligence Per Se, Statutory Torts, and Statutory Duties
    • Invalid date
    ...use a focused federal or state statute as the basis of a count of liability per se. See, e.g., Cervantes v. Mattson, 90 Or App 574, 577, 752 P2d 1293 (1988) (negligence per se). Courts may also use a focused statute that broadens duties to expand the scope of common-law torts. See Cain v. R......
  • §13.2 Common Law, Statutory Liability, and Negligence Per Se
    • United States
    • Torts (OSBar) Chapter 13 Vehicle Collisions
    • Invalid date
    ...that no harm would result from his [or her] uncompelled, deliberate violation of the statute." Cervantes v. Mattson, 90 Or App 574, 577, 752 P2d 1293 (1988). §13.2-3 Statutory Liability A statute may be the basis for liability if it is intended to protect a person of a specified class from ......

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