Johnson v. Tilden

• Decision Date: 19 April 1977
• Citation: 562 P.2d 1188,278 Or. 11
• Parties: Kathleen A. JOHNSON, through her guardian ad litem, Sandra Johnson, Respondent, v. Patrick James TILDEN, Appellant. . *
• Court: Oregon Supreme Court

Page 1188

562 P.2d 1188

278 Or. 11

Kathleen A. JOHNSON, through her guardian ad litem, Sandra Johnson, Respondent, v. Patrick James TILDEN, Appellant.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted Oct. 4, 1976.

Decided April 19, 1977.

R. M. Atkinson, Legal Aid Service, Portland, argued the cause and filed the briefs for appellant.

No appearance for respondent.

Charles D. Burt, Oregon Trial Lawyers Ass'n, Salem, filed a brief as amicus curiae. On the brief were J. Michael Alexander, and Brown, Burt & Swanson, P.C., Salem.

HOLMAN, Justice.

The case for decision presents the single issue whether the comparative fault statute, ORS 18.470, ¹ applies to cases governed by the guest passenger statute, ORS 30.115. ²

The guest passenger statute provides that a person who is injured while being transported as a guest in a motor vehicle shall not have a cause of action against the vehicle's owner or operator, 'unless the accident was intentional on the part of the owner or operator or caused by his gross negligence or intoxication.' In the present case plaintiff's action was premised on defendant's gross negligence and intoxication. We have construed this statute to intend that contributory negligence by the passenger be a defense to the host's gross negligence. Zumwalt v. Lindland, 239 Or. 26, 396 P.2d 205 (1964).

The comparative fault statute provides that in an action to recover for personal injury or property damage, 'contributory negligence shall not bar recovery * * * if the fault attributable to the person seeking recovery was not greater than the combined fault of the person or persons against whom recovery is sought * * *.' In such a case the plaintiff is to recover damages diminished in proportion to his or her fault.

In the present case the trial court instructed the jury on comparative fault and refused to give defendant's requested instruction that contributory negligence on the part of the plaintiff would be a bar to recovery. The jury returned a verdict finding the fault attributable to each party to be 50 percent. The trial court then entered judgment for plaintiff passenger in the amount of one-half of her total stipulated damages. Defendant, the host driver, appeals, assigning as error the submission of comparative fault issues to the jury.

Although the transcript is not before us, the parties have stipulated that 'the court's instructions were appropriate if the comparative fault statute applies in guest statute situations.' We assume, therefore, that the jury was properly instructed that plaintiff, in order to have a cause of action, must prove that the accident was caused by defendant's gross negligence or intoxication. By its terms, the comparative fault statute covers cases tried on these theories. 'Gross negligence' is defined in the guest passenger statute to mean

'* * * 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.'

ORS 18.470 provides that the plaintiff's contributory negligence does not bar recovery when the defendant's 'fault' is equal to or greater than the plaintiff's fault. In the context in which it is used here, the term 'fault,' when given its ordinary meaning, includes driving while intoxicated or in a grossly negligent manner.

Defendant contends, however, that the application of comparative fault principles in a guest passenger case is inconsistent with the policies underlying the guest passenger statute, as recognized in the decisions of this court, especially Zumwalt v. Lindland, supra. In that case, decided before the enactment of this state's first comparative fault statute, the plaintiff contended that because he could not recover without a showing that the defendant was grossly negligent, his recovery should not be barred by ordinary contributory negligence but should be barred only by a showing of gross negligence on his part. We rejected this argument, relying in part upon precedent and in part upon a 'legislative history that suggests in the strongest possible way that the Legislative Assembly intended to give host drivers as much immunity from liability as constitutionally possible.' 239 Or. at 33, 396 P.2d at 209. We briefly reviewed that legislative history and concluded:

'* * * Presented with the legislature's obvious solicitude for the host driver, we would be less than realistic to assume that the legislature intended to permit guest passengers to recover despite their contributory negligence.' 239 Or. at 34, 396 P.2d at 209.

As pointed out, the legislature has, since we made that statement, enacted the comparative fault statute which appears, by its terms, to permit partial recovery by negligent guest passengers.

Defendant points out that the comparative fault statute contains no express reference to guest passenger cases, or to actions based on gross negligence, and argues that the clear legislative intent to protect host drivers, recognized in Zumwalt, should prevail over the general terms of ORS 18.470. The legislative history of the statute does not support this argument.

The original version of ORS 18.470, enacted in 1971, provided for diminished recovery for a contributorily negligent plaintiff in an action 'to recover damages for negligence.' ³ At that time, as now, 'gross negligence' for purposes of the guest passenger statute was defined as 'negligence which is materially greater than the mere absence of reasonable care,' and which is characterized by 'conscious indifference to or reckless disregard of the rights of others.' We will assume, without deciding, that 'gross negligence' as so defined is sufficiently unlike ordinary negligence to make the 1971 version of ORS 18.470 inapplicable to guest passenger cases on the reasoning that they are not actions 'to recover damages for Negligence.'

In 1975, however, the legislature amended ORS 18.470 to eliminate the quoted language and to provide for diminished recovery based upon a comparison of plaintiff's fault with the Fault of the defendant. The legislative history indicates that this change was a very deliberate one.

The original version of SB 797, which was enacted into law as 1975 Oregon Laws ch. 599, would have amended ORS 18.470 as follows:

'Contributory negligence, including assumption of the risk, shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or injury to person or property if such negligence contributing to the injury was not [DELETED: as great as] [ADDED: greater than] the negligence [ADDED: or gross negligence] of the person [ADDED: or persons] against whom recovery is sought * * *.'

On recommendation of the House Judiciary Committee SB 797 was revised to include the present provisions of ORS 18.470. As part of this revision, the reference to 'negligence or gross negligence' was deleted and replaced by the reference to defendant's 'fault.'

Representative Frohnmayer, who spoke in support of the revisions, furnished the committee with a memorandum summarizing this change, as follows:

'Apportionment of damages is expressly extended to all actions to recover damages for injury to persons or property in which contributory negligence may properly be asserted as a defense.' (Footnotes...