Maulding v. Clackamas County
| Decision Date | 29 November 1976 |
| Citation | 27 Or.App. 571,557 P.2d 41 |
| Parties | Edwin M. MAULDING, Jr., Respondent, v. CLACKAMAS COUNTY, a political subdivision of the State of Oregon, Appellant. |
| Court | Oregon Court of Appeals |
Edward H. Warren, Portland, argued the cause for appellant. With him on the briefs were Donald E. Hershiser and Hershiser, Mitchell & Warren, Portland.
Raymond R. Bagley, Jr., Oregon City, argued the cause for respondent. With him on the brief were Jack, Goodwin & Urbigkeit, Oregon City.
Before SCHWAB, C.J., and FORT and THORNTON, JJ.
The defendant county appeals from the circuit court's denial of its motion for a directed verdict and from the court's order setting aside judgment on the jury verdict in favor of the defendant and granting the plaintiff's motion for a new trial.
On May 5, 1973, plaintiff allegedly fell into a 'dump box' while unloading refuse at the Clackamas County-Sandy Transfer Station, a refuse disposal facility open to the public. Plaintiff brought an action at law against the county for damages for personal injuries sustained from the fall. The plaintiff's amended complaint alleged:
'V
'That the proximate cause of said fall and the injuries sustained by plaintiff was the negligence of the defendants and each of them in one or more of the following particulars, to-wit:
'1. In failing to install and maintain a brow log or other fixture to prevent persons from falling from the unloading area into the disposal area.
'2. In failing to give adequate or any warning that the premises were slippery.
Prior to submission of the case to the jury, defendant moved for a directed verdict on the ground that the allegations of negligence were all matters of discretion for which the county is immune. The court denied the motion. Defendant then moved that the court remove from the jury's consideration each of the allegations of negligence. The court granted this motion as to allegations (1) and (3), but denied it as to allegation (2).
The plaintiff requested that the jury be instructed in accordance with Oregon State Bar Uniform Jury Instructions numbers 11.51, 11.52, 11.53 and 11.54 on the issue of comparative negligence. The court gave these instructions as requested. The plaintiff did not take an exception to them. The parties now concede that these instructions were erroneous in light of an amendment to ORS 18.470, which had become effective on September 13, 1975, changing the law to provide that when the parties are equally negligent, the plaintiff may recover half his damages. Oregon Laws 1975, ch. 599, § 1. 1
The jury returned a verdict in favor of the defendant on October 2, 1975.
On October 16, 1975, plaintiff moved for a new trial on the following grounds:
'1. That the Court in instructing the jury on comparative negligence, set forth the law as it existed prior to October 1, 1975. As of October 1, 1975, the law was changed to provide that in a 50/50 situation of negligence between plaintiff and defendant, the plaintiff may recover 50% Of his damages. If the Court will recall, the jury specifically asked what the situation would be if the negligence on the part of each party was 50%. The Court instructed the jury that the plaintiff could not recover under these circumstances. That was incorrect, and an error at law under the provisions of ORS 18.470 as amended by the 1975 legislature. See attached copy.
On October 22 a judgment order on the jury verdict in favor of defendant was filed. On October 29 a hearing was held on the plaintiff's motion for a new trial, and on November 4 a memorandum opinion was filed which stated that the motion should be granted on the grounds set forth in paragraph 1 of the motion, and requested that plaintiff's counsel submit an order in conformance with the opinion. The court's order granting the new trial was filed on November 24, more than 30 days after the filing of the judgment, and stated:
'THIS MATTER having come on for hearing on the 29th day of October, 1975 On plaintiff's Motion to set aside the verdict and grant a new trial, plaintiff appearing by and through Alan R. Jack, of his attorneys, and defendant appearing by and through Donald Hershiser, of its attorneys, and The Court having heard arguments on behalf of each of the parties and being fully advised in the premises, and Based upon the following reasons, allows plaintiff's motion:
'(1) On the date of trial an amendment of ORS 18.470 enacted by the 1975 Legislature as Senate Bill 797 had become effective. This law permitted plaintiff to recover if his percentage of fault was not greater than defendant's percentage of fault.
'(2) The Court instructed the jury, according to ORS 18.470, prior to said amendment, which in effect provided that plaintiff could only recover if his percentage of fault was not as great as that of defendant. Such instruction was repeated at the jury's request during their deliberations. Such Instruction was contrary to the existing law and was prejudicial to the plaintiff's rights.
'(3) The Court was unaware of the amendment and apparently counsel for both parties were also unaware of the amendment.
Defendant appeals, assigning as error (1) the court's granting of a new trial, and (2) the court's denial of defendant's motion for a directed verdict.
We deal first with the question whether the new trial was properly granted.
ORS 17.610 provides for the granting of a new trial on the motion of a litigant:
'A former judgment may be set aside and a new trial granted On the motion of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:
'* * *
'(7) Error in law occurring at the trial, And excepted to by the party making the application.' (Emphasis supplied.)
ORS 17.630 provides for the granting of a new trial on the motion of the court:
(Emphasis supplied.)
The Oregon Supreme Court in Beglau v. Albertus, 272 Or. 170, 536 P.2d 1251 (1975), has recently stated that there are three categories of cases where a new trial may be granted for prejudicial error:
'* * * (1) Cases in which such orders have allowed motions for new trials based upon grounds specified in ORS 17.610, including 'error in law occurring at the trial, and excepted to by the party making the application'; (2) Cases in which trial courts have granted new trials upon their 'own motion'; and (3) Cases in which new trials were granted because of substantial and prejudicial error to which no proper exception or objection was taken, but which were raised by motion for new trial, rather than by a trial court on its own motion * * *.' 272 Or. at 181--82, 536 P.2d at 1257. (Footnotes omitted.)
Under the facts in Beglau the court held:
272 Or. at 182, 536 P.2d at 1257.
Applying the reasoning of Beglau to the case at bar, we find that this case clearly does not fall within categories (1) or (2). The new trial was not properly granted pursuant to ORS 17.610(7) because of plaintiff's failure to except to the instructions given on comparative negligence. Neither was the new trial properly granted on the court's own motion, pursuant to ORS 17.630, because the court failed to comply with the requirements that (1) the order state that the court is acting on its own motion, and (2) the order be made within 30 days after the filing of the judgment. Here the order stated that it 'allows plaintiff's motion' and was not timely filed. Although a memorandum opinion that the plaintiff's motion should be granted was timely filed, 'a memorandum opinion of the...
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Maulding v. Clackamas County
...for defendant, but the trial court granted plaintiff's motion for a new trial. The Court of Appeals reversed the trial court, 27 Or.App. 571, 557 P.2d 41 (1977), and plaintiff At the trial plaintiff requested and the court gave the Oregon State Bar Uniform Instruction on Comparative Neglige......