Freund v. DeBuse

• Citation: 506 P.2d 491,264 Or. 447
• Parties: Harold E. FREUND, Appellant, v. James DeBUSE, Respondent.
• Decision Date: 15 February 1973
• Court: Oregon Supreme Court

Page 491

506 P.2d 491

264 Or. 447

Harold E. FREUND, Appellant, v. James DeBUSE, Respondent.

Supreme Court of Oregon.

Argued and Submitted Oct. 9, 1972.

Decided Feb. 15, 1973.

Raymond J. Conboy, Portland, argued the cause for appellant. With him on the brief were Pozzi, Wilson & Atchison and Brian L. Welch, Portland.

J. Laurence Cable, Portland, argued the cause for respondent. With him on the brief were Souther, Spaulding, Kinsey, Williamson & Schwabe, Gordon Moore and Ridgway K. Foley, Jr., Portland.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, HOWELL and BRYSON, JJ.

DENECKE, Justice.

The plaintiff alleged he was injured when the car he was driving was struck in the rear by defendant's pickup. The defendant testified the collision occurred because his brakes unexpectedly failed. The jury returned a verdict for the defendant and plaintiff appeals.

The plaintiff contends the trial court erred in failing to instruct the jury that the defendant was liable. The basis of plaintiff's motion was that the defendant was negligent per se because his brakes were not 'adequate to control the movement of and to stop and hold such (his) vehicle' and his brakes were not 'maintained in good working order,' all in violation of ORS 483.444. The defendant's testimony was that after the collision he 'tore apart' his wheel and found a broken brake drum which was the cause of the brake failure.

Just weeks ago in Barnum v. Williams, 96 Or.Adv.Sh. 89, 504 P.2d 122 (1972), we expressed the difficulty this court has had in the application of the negligence per se doctrine. The Barnum case involved an 'operational' motor vehicle statute, driving on the 'wrong side' of the road. We held '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.' 96 Adv.Sh. at 95, 504 P.2d at 126. The issue here is whether this rule also should be applied to violations of motor vehicle equipment statutes. We hold it should.

Initially, the law of Oregon was that violation of a statute setting the standard required for motor vehicle equipment was negligence per se. We stated that it was negligence per se although the violator might have acted as a reasonably prudent person. Nettleton v. James, 212 Or. 375, 386, 319 P.2d 879 (1958). In the same case, however, we stated that if the violation of the equipment statute was because of a 'latent defect' the operator might not be liable.

In McConnell v. Herron, 240 Or. 486, 493, 402 P.2d 726 (1965), in which the defendant had defective brakes, we departed from the strict negligence per se doctrine. We stated:

'* * * We are now of the opinion that the motor vehicle code was not intended to eliminate the element of fault from the law of torts. * * *.

'Accordingly, we apply to equipment defects the same rule we have applied in the past to operational errors. Liability in both situations is based upon fault rather than upon a theory of absolute liability. * * *.' 240 Or. at 491, 402 P.2d at 729.

We did not, however, 'apply to equipment defects the same rule we have applied in the past to operational errors.' Instead, we adopted a rule somewhere between the rule applicable to operational errors and our former rule for equipment statute violations. We stated a party would be excused from a violation of an equipment statute if he could prove 'that his noncompliance was caused by circumstances beyond his control and that it was impossible, regardless of his degree of care, for him to comply with the statute.' 240 Or. at 491, 402 P.2d at 729.

We were quickly called upon to apply the standard applied in McConnell v. Herron, supra (240 Or. 486, 402 P.2d 726), to violations of both equipment and operational statutes. In Pozsgai v. Porter, 249 Or. 84, 86--88, 435 P.2d 818 (1968) we acknowledge that we were applying a different negligence per se rule for violations of equipment statutes than for violations of operational statutes. We admitted that 'theoretically' there may be 'no justification for the rule of McConnell which treats the violation of safety equipment statutes differently than the violation of operational statutes.' 249 Or. at 87--88, 435 P.2d at 819.

In Ainsworth v. Deutschman, 251 Or. 596, 446 P.2d 187 (1968), we held that the statement of the rule in McConnell v. Herron, supra (240 Or. 486, 402 P.2d 726), for violations of the equipment statutes was incorrect. We adopted the suggested language in Pozsgai v. Porter, surpa (249 Or. 84, 435 P.2d 818), and stated that violations of equipment statutes would not be negligence per se if such violations could not be avoided by the exercise of the highest degree of care, although it was not 'impossible, regardless of the degree of care he might have exercised, for him to comply with the statute.' 240 Or. at 490, 402 P.2d at 728.

There is no logical or empirical basis for treating violations of vehicle equipment statutes differently than vehicle operational statutes and our experience has taught us that attempts to preserve any distinction have resulted in confusion.

McConnel v. Herron, supra (240 Or. 486, 402 P.2d 726), and Ainsworth v. Deutschman, supra (251 Or. 596, 446 P.2d 187), are overruled insofar as they hold that violations of vehicle equipment statutes are negligence per se unless the violator can establish that the violation occurred despite his exercise of a standard of care higher than that of a reasonably prudent person. We hold, as we did in Barnum v. Williams, supra (96 Adv.Sh. 89, 504 P.2d 122), 'that if a party is in violation of a motor vehicle (equipment) 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.' 96 Adv.Sh. at 95, 504 P.2d at 126.

The next question is whether the evidence introduced by the defendant is sufficient for a jury to find that the defendant acted as a reasonably prudent person despite his violation of the...