Morehouse v. Haynes

• Decision Date: 19 May 2011
• Docket Number: (CC 0609–09915; CA A136871; SC S058725).
• Citation: 350 Or. 318,253 P.3d 1068
• Parties: Francis Dale MOREHOUSE, Petitioner on Review,v.James Colin HAYNES, Respondent on Review.
• Court: Oregon Supreme Court

350 Or. 318

253 P.3d 1068

Francis Dale MOREHOUSE, Petitioner on Review,

v.James Colin HAYNES, Respondent on Review.

(CC 0609–09915; CA A136871; SC S058725).

Supreme Court of Oregon.

Argued and Submitted March 3, 2011.Decided May 19, 2011.

On review from the Court of Appeals.^*Kathryn H. Clarke, Portland, argued the cause for petitioner on review. Jess M. Glaeser, Portland, filed the brief.Ralph C. Spooner, Spooner & Much, P.C., Salem, argued the cause for respondent on review. Dan R. Schanz and Melissa J. Ward filed the brief.Kathryn H. Clarke, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.Before DE MUNIZ, Chief Justice, and DURHAM, BALMER, KISTLER, WALTERS, and LINDER, Justices.^**BALMER, J.

The issue in this case is whether the record before the trial court on summary judgment shows that there was no genuine issue of material fact that would provide a basis for a reasonable juror to find that defendant drove recklessly. Plaintiff was injured when his car collided with defendant's car. Plaintiff brought this action seeking economic and noneconomic damages. Because plaintiff was driving without insurance at the time of the collision, an Oregon statute bars him from recovering noneconomic damages unless he can prove that defendant's conduct that caused plaintiff's injuries met the statutory definition of reckless driving. See ORS 31.715(1), (5)(c) (so providing). Defendant moved for partial summary judgment on plaintiff's claim for noneconomic damages, and the trial court granted the motion, holding that no reasonable juror could conclude that defendant had driven recklessly. The parties settled the claim for economic damages, and the trial court, based on its summary judgment order, entered a general judgment in favor of defendant. Plaintiff appealed and, in a divided en banc opinion, the Court of Appeals affirmed. Morehouse v. Haynes, 235 Or.App. 482, 234 P.3d 1024 (2010). For the reasons that follow, we reverse and remand to the trial court.

We take the facts from the summary judgment record and view those facts and all reasonable inferences that may be drawn from them in the light most favorable to plaintiff, the nonmoving party. Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or. 329, 332, 83 P.3d 322 (2004). Plaintiff was driving north on Highway 219 between Newberg and Hillsboro, and defendant was driving south on the same road when defendant's car crossed into the oncoming lane of traffic and struck plaintiff's car on a sharp curve. A yellow cautionary sign preceded the curve as defendant approached, showing a 90–degree turn to the left, followed by a 90–degree turn to the right.¹ A smaller yellow cautionary sign below the sign depicting the turns suggested a speed of 25 miles per hour.² Following the cautionary signs, and before the second turn (the right turn), three separate rectangular warning signs with right-hand arrows indicated the sharpness of that turn. The posted speed limit on Highway 219 is 45 miles per hour. As defendant was making the right turn, his car crossed the center line and collided with plaintiff's car.

The officer who took defendant's statement after the collision recorded that defendant

“said that he was going up the hill at 45 to 50 mph as he entered the curve. He looked down to attend his radio and when he looked up he was heading over the center line. He tried to brake but slid across into the opposite lane.”

At his deposition, defendant testified that he had traveled the same route between Hillsboro and Newberg approximately 20 times in the month preceding the collision. Defendant stated that he knew that the portion of the road where the collision occurred was twisty and curvy and that he was aware that slow moving farm vehicles, bicycles, pedestrians, and other passenger vehicles used the highway. Regarding the curve where the collision occurred, defendant did not recall the sharpness of the curve from his previous trips on Highway 219 nor did he recall the cautionary speed sign, although he did remember seeing the right-hand arrows indicating the sharpness of the curve.

Regarding the collision itself, defendant testified:

“I was driving along and at the speed limit, and I looked down. I looked down for a second. I looked up and I realized the curve was coming up. I didn't feel it was a dire situation at all. I put the brakes on. I saw a curve develop. I was going in tangent with the curve and my brakes, and that's when I went across the line * * *.”

Plaintiff, who admits that he was driving uninsured at the time of the collision, brought this action seeking economic and noneconomic damages. As noted, defendant filed a motion for partial summary judgment, asserting that ORS 31.715 barred plaintiff from recovering noneconomic damages because plaintiff was driving while uninsured.³ Plaintiff responded that he could recover noneconomic damages under the exception set out in ORS 31.715(5)(c), which allows a plaintiff to recover noneconomic damages if the defendant was driving recklessly. The trial court granted defendant's motion, holding that no reasonable juror could conclude that defendant's driving was reckless, and subsequently entered judgment for defendant.

The Court of Appeals affirmed in a divided en banc opinion. The majority began by describing the applicable statutory scheme. Under ORS 31.715(1), an uninsured motorist may not recover noneconomic damages for injuries caused by another driver unless certain exceptions apply. One exception allows an uninsured plaintiff to recover noneconomic damages if the defendant was driving in a way that constitutes a violation of ORS 811.140,⁴ which prohibits reckless driving.⁵ A defendant violates ORS 811.140 if he or she “recklessly drives a vehicle upon a highway * * * in a manner that endangers the safety of persons or property.” The definition of “recklessly,” for purposes of ORS 811.140, is taken from the criminal code and focuses on whether the person is “aware of and consciously disregards a substantial and unjustifiable risk.” ORS 161.085(9).

The majority next observed that no appellate case had previously applied the “reckless driving” exception to the ban on the recovery of noneconomic damages in ORS 31.715. In the absence of directly relevant case law, the majority relied on cases evaluating claims brought under Oregon's now-defunct guest passenger statute, which barred a guest passenger's claim against the driver unless the driver's conduct constituted gross negligence. See ORS 30.115 (1977), amended by Or. Laws 1979, ch. 866, § 7. Gross negligence and recklessness were synonymous under the guest passenger statute. Williamson v. McKenna, 223 Or. 366, 387–89, 354 P.2d 56 (1960). Under the definition of “recklessly” enacted by the legislature in 1971 as part of a general revision of the criminal code—and used by ORS 811.140 as the mental state for reckless driving—recklessness requires a higher mental state than gross negligence did under the guest passenger statute. See State v. Hill, 298 Or. 270, 279, 692 P.2d 100 (1984) (so stating). To be “reckless,” a defendant must be “aware of and consciously disregard[ ]” the applicable risk. ORS 161.085(9). The majority reasoned that if specific conduct did not rise to the level of gross negligence in the guest passenger cases, then similar conduct could not be reckless under the higher statutory standard. Morehouse, 235 Or.App. at 487, 234 P.3d 1024.

The majority then examined two guest passenger cases where this court determined that the defendant's conduct did not rise to the level of gross negligence. In Burghardt v. Olson, 223 Or. 155, 349 P.2d 792, adh'd to on recons., 223 Or. 155, 354 P.2d 871 (1960), this court overturned a jury verdict for the plaintiff because evidence that the defendant exceeded the suggested speed limit by 20 miles per hour around a gentle curve that the defendant had driven several times before was not sufficient to prove gross negligence. Id. at 206–07, 354 P.2d 871. Similarly, in Bland v. Williams, 225 Or. 193, 357 P.2d 258 (1960), the defendant was speeding on a foggy night when he took his eyes off the road to adjust his radio. The defendant drove off the road and crashed, and his passenger brought an action against him for damages. Id. at 195–96, 357 P.2d 258. The summary judgment record indicated that the defendant had caused the accident by adjusting his radio; no evidence suggested that either speed or fog played a role. Although the defendant was heedless of the risks of adjusting the radio while driving, the evidence was insufficient to prove gross negligence. Id. at 199, 357 P.2d 258.

Based on Bland and Burghardt, the majority in this case determined that defendant exhibited the same sort of heedlessness by taking his eyes off the road and exceeding the recommended speed coming into the turn. Specifically, the majority determined that Bland was directly on point because the primary cause of the accident in that case—the defendant taking his eyes off the road to adjust the radio—was the same conduct at issue in this case. Thus, if adjusting the radio could not prove gross negligence as a matter of law in Bland, then defendant's conduct could not prove recklessness, a higher standard, on the similar facts in this case. Morehouse, 235 Or.App. at 490, 234 P.3d 1024. The majority concluded:

“Defendant failed to drive with reasonable care by keeping his eyes on the road, which is to say defendant was negligent. Defendant's negligent driving, however, was not reckless driving.”

Id.

The dissent argued that the question of recklessness should have gone to the jury, because defendant's knowledge of the road, his speed, and his decision to adjust the radio as he entered the curve could lead a reasonable juror to conclude that defendant was aware of, and consciously disregarded, the substantial and unjustifiable risk of crossing the center line and colliding with an oncoming...