Greist v. Phillips

• Decision Date: 08 June 1994
• Docket Number: L-1
• Citation: 128 Or.App. 390,875 P.2d 1199
• Parties: Mary A. GREIST, as personal representative of the estate of Peter Maurice Greist, Deceased, Appellant-Cross-Respondent, v. Nicky Don PHILLIPS and Lightning Transportation, Inc., a Tennessee corporation, Respondents-Cross-Appellants. Nicky Don PHILLIPS and Lightning Transportation, Inc., a Tennessee corporation, Third-Party Plaintiffs-Respondents-Cross-Appellants, v. Elizabeth B. TRIPP, Third-Party Defendant-Cross-Respondent, and Mary A. Greist, individually, Third-Party Defendant-Appellant-Cross-Respondent. 90-1879-; CA A76287.
• Court: Oregon Court of Appeals

Page 1199

875 P.2d 1199

128 Or.App. 390

Mary A. GREIST, as personal representative of the estate of Peter Maurice Greist, Deceased, Appellant-Cross-Respondent, v. Nicky Don PHILLIPS and Lightning Transportation, Inc., a

Tennessee corporation, Respondents-Cross-Appellants.

Nicky Don PHILLIPS and Lightning Transportation, Inc., a Tennessee corporation, Third-Party Plaintiffs-Respondents-Cross-Appellants, v. Elizabeth B. TRIPP, Third-Party Defendant-Cross-Respondent, and Mary A. Greist, individually, Third-Party

Defendant-Appellant-Cross-Respondent.

90-1879-L-1; CA A76287.

Court of Appeals of Oregon.

Argued and Submitted April 15, 1994.

Decided June 8, 1994.

Kathryn H. Clarke, Portland, argued the cause for appellant-cross-respondent. With her on the briefs were Maureen Leonard, Portland, and Robert A. Berst, Seattle, WA.

Hugh B. Collins, Medford, and Ridgway K. Foley, Jr., Portland, argued the cause for respondents-cross-appellants. With them on the briefs were M. Elizabeth Duncan and Foley & Duncan, P.C., Portland.

Daniel L. Harris, Ashland, argued the cause for third-party defendant-cross-respondent and joined in the appellants' reply brief and answering brief on cross-appeal.

Adam Kimmell, Portland, filed an amicus curiae brief.

Before ROSSMAN, P.J., and De MUNIZ and LEESON, JJ.

De MUNIZ, Judge.

Plaintiff, the personal representative of her son's estate, brought this action for wrongful death. On June 14, 1989, plaintiff, her son and Tripp, aunt of the decedent, were returning to Oregon from California over the Siskiyou Pass in a Volkswagen Vanagon. Defendant Phillips was also travelling north over the pass, driving a five-axle truck and trailer owned by defendant Lightning Transportation, Inc. The truck and trailer had a gross weight of more than 75,000 pounds. The truck had bad brakes. ¹ About 4:30 p.m., as Phillips was descending from the pass, the truck lost its brakes. Phillips moved into the passing lane, and, about six miles below the crest of the summit, rear-ended plaintiff's van. The van was propelled forward and overturned, skidding to a stop 595 feet from the point of impact. The truck was unable to stop for almost three miles. The decedent, who was 10 months old, was killed when he was thrown out of the van.

In this action, plaintiff sought compensation for the parents' loss of their child's society and companionship and for pecuniary loss to the decedent's estate. Defendants then filed a third-party action against Tripp and plaintiff, individually, and Tripp counterclaimed against defendants for damages for personal injuries.

The jury returned a verdict finding defendants solely at fault for decedent's death. It awarded plaintiff $100,000 for economic damages and $750,000 to each surviving parent. The trial court then applied ORS 18.560, holding that the statute imposed a single limit of $500,000 for noneconomic damages. It reduced plaintiffs' noneconomic damage award from $1,500,000 to $500,000. The jury found Tripp five percent at fault and awarded her $29,323 for economic damages and $50,000 for noneconomic damages. On plaintiff's appeal, we reverse and remand. On defendants' cross-appeal, we affirm.

We begin with the cross-appeal. Defendants first assign error to the trial court's refusal to give their requested instruction regarding plaintiff's statutory duty to use a child restraint seat. ORS 811.210 makes it an offense for a person to operate a motor vehicle while any child under one year of age is not secured with a child safety system.

Defendants presented evidence that plaintiff's van was equipped with a child restraint device in good working order, but that decedent was not in the device. After the accident, the safety seat was intact and undamaged. A passenger in a vehicle that had followed plaintiff's van for several miles testified that he had observed a "little person romping around" in the back of the van. There was testimony that, if decedent had been properly fastened in the safety seat, he would not have been ejected from the car and would not have been killed.

Plaintiff's evidence was that decedent had been in his car seat for most of the journey, but, shortly before the accident, Tripp, who was sitting with decedent in the back seat, had taken him from the seat because he had become fussy. Tripp did not consult plaintiff before doing so. Tripp claimed that she was holding decedent on her lap when the collision occurred.

Defendants argue that the trial court's refusal to give their requested instruction ² deprived them of a "major theme" of their case, i.e., that plaintiff's failure to use the required and available child restraint seat constituted negligence per se, which caused decedent's fatal injuries. However, the version of ORS 811.210(3) in effect when the accident occurred and when the action was filed provided:

"A violation of this section shall not be considered under any circumstances to be negligence nor shall evidence of such a violation be admissible in any civil action."

On November 6, 1990, the voters approved an initiative measure that required adults, as well as children, to use seat belts and eliminated former ORS 811.210(3). The new law became effective on December 6, 1990. Trial here began in June, 1992. Defendants contend that the statute in effect at the time of trial controls.

The new law did not contain a retroactive provision, see Whipple v. Howser, 291 Or. 475, 632 P.2d 782 (1981), and the parties argue that application of the new law depends on whether it is procedural or substantive. Changes in law that affect substantive rights are not applied retroactively, but procedural changes can be. Joseph v. Lowery, 261 Or. 545, 547, 495 P.2d 273 (1972). Defendants argue that the change in ORS 811.210 was nothing more than a change in a rule of evidence and, therefore, that the change was procedural.

We agree with plaintiff that, although at first glance the statutory change might appear to be procedural, it is not. Defendants' requested instruction told the jury that plaintiff was negligent for violating ORS 811.210. That use of the statute was precisely what former subsection (3) prohibited.

In a situation analogous to the statutory change here, the Supreme Court refused to apply the new law of comparative negligence to behavior that predated the law:

"[I]n the absence of an indication to the contrary, legislative acts should not be construed in a manner which changes legal rights and responsibilities arising out of transactions which occur prior to the passage of such acts." Joseph v. Lowery, supra, 261 Or. at 551, 495 P.2d 273.

The 1990 repeal of former ORS 811.210(3) changed the rights and responsibilities of drivers in terms of their potential civil liability. The trial court did not err in refusing to give defendants' requested instruction.

Defendants next assign error to the court's refusal to withdraw from the jury two allegations of negligence that were based on two federal regulations: "lack of a working speedometer" and "the 70-hour rule." ³ Federal law requires a commercial truck to have an operating speedometer at all times. 49 CFR § 393.82. It also prohibits a truck driver from being on duty for more than 70 hours in any period of eight consecutive days. 49 CFR § 395.3.

Defendants do not dispute that a statute or rule is relevant to establish the standard of care owed by defendants. Hansen v. Abrasive Engineering and Manufacturing, 317 Or. 378, 386, 856 P.2d 625 (1993); Shahtout v. Emco Garbage Co., 298 Or. 598, 601, 695 P.2d 897 (1985). The gist of their argument, however, is that, even where a plaintiff invokes a violation of a statute or rule to establish a breach of the general duty of due care, there must be "independent proof" that the violation caused the injury. They contend that plaintiff failed to prove that causal connection here.

The defendant in Faber v. Asplundh Tree Expert Co., 106 Or.App. 601, 810 P.2d 384, rev. den. 312 Or. 80, 816 P.2d 610 (1991), made a similar argument. There, the plaintiffs sought damages for losses to their tree crops after the defendant applied herbicides to a right-of-way that was adjacent to the plaintiffs' tree nursery. The defendant assigned error to the trial court's admitting into evidence labels from herbicide containers. Its position was that

"the labels were only conditionally relevant and that no evidence was offered to connect them to the conditional fact. OEC 104(2). Defendant also contends that the evidence was confusing and misleading. The thesis of defendant's arguments is that, although the labels may have been probative of negligence, there was no showing that defendant's failure to follow the labels was a cause of damage. Defendant explains:

" 'The trial court's example of the drunk driver is, in fact, an example of conditionally relevant evidence. Evidence of the driver's intoxication * * * is received only because the court expects evidence that the intoxication was a cause of the injury. Admittedly, evidence of driving while intoxicated proves negligence. Nevertheless, the evidence is nothing more than conditionally relevant until there is additional evidence to support a finding that the negligence was a cause of the rear-end accident.

" 'Here, the situation is much the same. The herbicide labels could have been received subject to the condition the plaintiffs later prove that a violation of the labels' directives caused [the plaintiffs'] damage.' (Emphasis defendant's.)" 106 Or.App. at 607, 810 P.2d 384.

We rejected the defendant's argument:

"That analogy demonstrates the opposite of the proposition that defendant would have us derive. The ultimate relevance of the driver's intoxication in the example does not depend on a showing that intoxication caused injury; it turns on a showing that the negligence that the intoxication tends to prove was causal. Similarly, here, the labels support a finding of negligence, and the negligence was...