Smith v. Barry

• Decision Date: 04 December 1978
• Docket Number: No. A7604-05542,A7604-05542
• Citation: 37 Or.App. 319,587 P.2d 483
• Parties: Nellie B. SMITH, Appellant, v. Lillyan A. BARRY, Respondent. ; CA 10748.
• Court: Oregon Court of Appeals

Page 483

587 P.2d 483

37 Or.App. 319

Nellie B. SMITH, Appellant, v. Lillyan A. BARRY, Respondent.

No. A7604-05542; CA 10748.

Court of Appeals of Oregon.

Argued and Submitted Oct. 23, 1978.

Decided Dec. 4, 1978.

Robert R. Schneider, Portland, argued the cause for appellant. On the brief was James M. Pippin, Portland.

Denny Z. Zikes, Portland, argued the cause for respondent. With him on the brief were Dennis N. Freed, and Fellows, McCarthy, Zikes & Kayser, P. C., Portland.

Before SCHWAB, C. J., and LEE and RICHARDSON, JJ.

RICHARDSON, Judge.

This appeal is from an order granting defendant's motion for summary judgment. ¹ Plaintiff's cause of action involves the guest passenger statute ² and she contends there was sufficient evidence of gross and reckless conduct, based upon a series of negligent acts, to create an issue of material fact as to whether the defendant was grossly negligent.

There are two prerequisites which must be met before the remedy of summary judgment is appropriate: (1) There must be no dispute as to material fact; and (2) based on the undisputed facts, the moving party must be entitled to judgment as a matter of law. The difficulty here arises because of the ephemeral nature of the concept of gross negligence. It is neither a wholly factual nor wholly legal construct. Only when reasonable men cannot differ as to the sufficiency of the evidence does gross negligence become a question of law. Steinbock v. Schiewe, 330 F.2d 510, 512 (9th Cir. 1964); Storm v. Thompson, 155 Or. 686, 695, 64 P.2d 1309 (1937).

The issue here is whether the uncontested facts, as presented, were insufficient as a matter of law to establish gross negligence. If the facts do not support a finding of gross negligence as a matter of law, then summary judgment for defendant is an appropriate remedy.

The leading case in this state on gross negligence is Williamson v. McKenna, 223 Or. 366, 354 P.2d 56 (1960). In 1961 the legislature amended the definition of gross negligence in the guest passenger statute to accord with that set forth in Williamson. ³ The Williamson decision further stands for the proposition that a combination of negligent acts may constitute gross negligence. Plaintiff asserts that the facts establish a series of negligent acts, and that the issue of whether they constitute the requisite mental state would be a matter for the jury to decide.

There is no dispute concerning the events as they occurred. Defendant, aged 81, was transporting three elderly friends, including plaintiff, to a luncheon meeting. The day was clear and the street was in optimum driving condition. She was traveling east on S. W. Montgomery Drive in Portland, which is at that point downhill with two sweeping curves, followed by a straight stretch at the end of which is a hairpin turn. Defendant had driven this particular stretch of road many times in the past. Her vehicle, a 1967 Ford, was in good mechanical condition. As defendant passed through the second curve her vehicle began to pick up speed and she crossed the center line. At the entrance of the hairpin turn she noticed a vehicle parked near the edge of the road. She failed to negotiate the curve, her automobile increased speed, left the road, ran up an embankment, struck a sign post, then hit the parked vehicle and ran into a hedge. It is inferable that defendant stepped on the accelerator rather than the brakes when her vehicle left the road. She estimated her speed at 25-30 miles per hour prior to her losing control.

We have reviewed the cases in which a combination of negligent acts was alleged to have established gross negligence and find that the essence of those decisions is that in order to support such a claim, the negligent acts taken together must show a reckless state of mind on the part of defendant.

In Bottom v. McClain, 260 Or. 186, 489 p.2d 940 (1971), the defendant was driving a Corvette on a highway at night. Plaintiff, a passenger, complained several times of defendant's driving. Because of his excessive speed defendant failed to negotiate a curve, which was marked with a sign designating a speed of 40 miles per hour. Defendant's skid marks were measured at 246 feet. From the end of the skid marks the vehicle traveled 143 feet, and then spun around to where the rear of the vehicle struck a highway devider and culvert. It finally came to rest 57 feet later when it collided with a power pole. Under these facts, especially noting the disregarded protests of the passengers, the court reversed a judgment N. o. v. for defendant and stated that the jury could have found defendant's driving as a whole to be grossly negligent.

In State v. Betts, 235 Or. 127, 132, 384 P.2d 198, 7 A.L.R.3d 1445 (1963), the court addressed a similar issue under the negligent homicide statute. ⁴ Defendant's vehicle left the road when, at 90 miles per hour, he attempted to make a curve which was marked with a designated speed of 45 miles per hour. A passenger had earlier warned him of his erratic driving. There was also evidence that defendant was intoxicated. The court held that a jury could determine that defendant was criminally negligent.

Burrows v. Nash, 199 Or. 114, 123-24, 259 P.2d 106 (1953), involved a rear-end collision at a busy intersection. The accident happened on a stormy New Year's Eve. Defendant was driving at a highly excessive speed, failed to maintain proper lookout and made no attempt to control his car. The court found that a jury could infer gross negligence from those facts.

In an earlier decision, Keefer v. Givens, 191 Or. 611, 614-20, 232 P.2d 808 (1951), the court found the evidence sufficient for a jury to find gross negligence from the entire course of defendant's conduct. His car went out of control on a wet night after he and some friends left a tavern where they had consumed alcoholic beverages. The windows of his vehicle were steamed over and only one windshield wiper was operative. Defendant was weaving in and out of traffic at excessive speeds. At the time of the accident he was searching for a bottle opener in the glove compartment on the opposite side of the vehicle.

In Turner, Adm'r, v. McCready et al., 190 Or. 28, 54-56, 222 P.2d 1010 (1950), the defendant was driving 50 miles per hour on the left side of a loose gravel surfaced road. There was a cloud of dust so thick that visibility was 40 feet or less. He collided head on with a lumber truck. The court concluded those facts combined could cause reasonable men to infer gross negligence.

On the other hand, the following cases found the series of negligent acts to be insufficient to establish gross negligence as a matter of law. Gonzalez v. Curtis et ux, 217 Or. 561, 564-66, 339 P.2d 713 (1959), affirmed a judgment N. o. v. in favor of defendant, who on a clear day collided with the rear of a log truck at the apex of a hill. He claimed the sun was in his eyes. The court found that although the accident was preceded by several acts of ordinary negligence they did not show a foolhardy attitude on the part of the driver.

Similarly, in McNabb v. DeLaunay et al., 223 Or. 468, 471-72, 354 P.2d 290 (1960), when defendant collided with a parked highway repair truck, the court found that his failure to decrease his speed after passing the warning signs, failure to observe the flagman, and failure to keep his vehicle under control were the result of his improper lookout and did not add up to a reckless state of mind. The directed verdict for defendant was affirmed.

The court in Williamson v. McKenna, supra, held defendant's negligent acts of failure to keep proper watch for...