State v. Gutierrez-Medina

• Decision Date: 06 June 2019
• Docket Number: SC S065297
• Citation: 365 Or. 79,442 P.3d 183
• Parties: STATE of Oregon, Respondent on Review, v. Jorge GUTIERREZ-MEDINA, Petitioner on Review.
• Court: Oregon Supreme Court

365 Or. 79

442 P.3d 183

STATE of Oregon, Respondent on Review,

v.Jorge GUTIERREZ-MEDINA, Petitioner on Review.

SC S065297

Supreme Court of Oregon.

Argued and submitted September 10, 2018.

June 6, 2019

Joshua B. Crowther, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for the petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Deputy Defender.

Cecil A. Reniche-Smith, Assistant Attorney General, Salem, argued the cause and filed the brief for the respondent on review. Also on the brief were Ellen Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Rosalind M. Lee, Rosalind Manson Lee LLC, Eugene, filed the brief for amicus curiae Oregon Criminal Defense Lawyers Association.

Erin K. Olson, Law Office of Erin Olson PC, Portland, filed the brief for amici curiae National Crime Victim Law Institute and Oregon Crime Victims Law Center. Also on the brief were Margaret Garvin, National Crime Victim Law Institute, Portland, and Amy C. Liu.

Nadia H. Dahab, Stoll Berne PC, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association. Also on the brief was Travis Eiva.

Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson and Garrett, Justices.^**

FLYNN, J.

The legislature has directed that a person who is convicted of a crime that resulted in "economic damages" to a victim must pay the victim restitution in "the full amount of the victim’s economic damages as determined by the court." ORS 137.106(1)(a). In this case, defendant was convicted of driving under the influence of intoxicants and assault in the third degree after striking a pedestrian with his car, and the trial court ordered him to pay almost $ 155,000 in restitution for the victim’s medical expenses. We allowed review to consider whether the trial court erred in refusing to apply the civil law defense of comparative fault to reduce the amount of economic damages that defendant would be required to pay as restitution. We conclude that defendant’s conviction for third-degree assault establishes a degree of culpability for which the defense of comparative fault would be unavailable in a civil action. Thus, at least under the circumstances of this case, the trial court correctly refused to reduce the amount of restitution by the victim’s alleged comparative fault.

I. BACKGROUND

Defendant was driving under the influence of intoxicants late at night when he struck the victim, who had walked onto the road in a dark area that was not marked for pedestrian crossing. He pleaded guilty to one count of driving under the influence of intoxicants and one count of assault in the third degree, but he resisted the state’s request for restitution in the amount of the victim’s full medical bills. Defendant offered evidence that the victim’s own negligence was the primary cause of the collision and urged the trial court to apply the civil doctrine of comparative fault to reduce the requested restitution.¹ The trial court refused to consider the victim’s alleged negligence and ordered defendant to pay the requested restitution.

The Court of Appeals affirmed the judgment of the circuit court, holding that the text of the restitution statute expressly precludes the court from applying comparative fault principles to apportion damages. State v. Gutierrez-Medina , 287 Or. App. 240, 246, 403 P.3d 462 (2017). This court allowed review, and we now affirm the decision of the Court of Appeals, albeit on a different ground. We conclude that defendant’s conviction for third-degree assault establishes that he was aware that he was using a deadly or dangerous weapon in a way that created a substantial risk of serious physical injury and that he consciously disregarded that risk. Therefore, defendant’s conviction for third-degree assault establishes that he acted with a culpable mental state for which the doctrine of comparative fault would not be available in a civil action. Because we hold that the defense of comparative fault would be unavailable to defendant in a hypothetical civil action for the same injury, we decline to address the Court of Appeals’ conclusion that ORS 137.106 precludes trial courts from reducing the amount of restitution when the victim is partly at fault for the injury.

II. DISCUSSION

The circuit court ordered defendant to pay restitution under ORS 137.106(1), which provides:

"When a person is convicted of a crime * * * that has resulted in economic damages, the district attorney shall investigate and present to the court * * * evidence of the nature and amount of the damages. * * * If the court finds from the evidence presented that a victim suffered economic damages, in addition to any other sanction it may impose, the court shall enter a judgment or supplemental judgment requiring that the defendant pay the victim restitution in a specific amount that equals the full amount of the victim’s economic damages as determined by the court."

Defendant does not dispute that he was convicted of a crime that resulted in economic damages. He also does not dispute that the evidence supports the trial court’s finding that the victim incurred economic damages, in the form of medical expenses, in the amount that the court ordered as restitution. Defendant contends, however, that he was entitled to reduce his restitution obligation by proving that the victim was also at fault for the injury that required the medical care.

Defendant argues that the legislature intended to incorporate the civil law defense of "comparative fault" into the determination of "economic damages" that a criminal defendant must pay as restitution. Defendant relies on several cases in which this court stated that civil law concepts perform a significant role in a trial court’s determination of "economic damages" for purposes of imposing restitution. In particular, defendant points to State v. Ramos , 358 Or. 581, 368 P.3d 446 (2016), in which this court explained "that the legislature’s cross-reference to the definition of ‘economic damages’ applicable in civil actions, and the legislature’s purpose in creating the restitution procedure as a substitute for a civil proceeding, make civil law concepts relevant to our interpretation of ORS 137.106." Id. at 594, 368 P.3d 446. We concluded in Ramos that the amount of "economic damages" for purposes of imposing restitution is limited by the civil law concept that a defendant is liable only for damages that are "reasonably foreseeable." Id. at 596, 368 P.3d 446. In State v. Islam , 359 Or. 796, 800, 377 P.3d 533 (2016), this court again looked to limitations on the damages that a plaintiff can recover in a civil action to determine that the amount of restitution that the defendant would be required to pay to the local retailer from whom the defendant stole a pair of jeans must be measured by the wholesale value, not the retail value, of the jeans. Defendant argues that the statutory defense of comparative fault, ORS 31.600(1), is another limitation on the amount of economic damages that the legislature intended to incorporate into the concept of "economic damages" that a criminal defendant must pay as restitution. From that premise, defendant concludes that the trial court erred in refusing to consider his evidence of the victim’s fault.

There is another step in the analysis, however. To reach defendant’s desired conclusion, his argument requires us to accept his minor premise that, in a hypothetical civil action against him for causing the same injury, the defense of comparative fault would be available to reduce his liability. The premise is not sound. As we shall explain, the statutory defense of civil comparative fault is available only to defendants who act with a degree of culpability for which the common law defense of contributory negligence would have been available. The common law defense based on a plaintiff’s contributory negligence was not available to a defendant who acted with a culpability greater than what the common law considered to be "gross negligence"—conduct that was either "wanton" or intentional. And, in pleading guilty to third-degree assault, defendant necessarily admitted to elements that would require a hypothetical civil jury to conclude that defendant’s culpability fell within the range of "wanton" conduct. Thus, even if we assume that the legislature intended to incorporate the civil law defense of comparative fault into the calculation of criminal restitution under ORS 137.106, the defense would be unavailable to a defendant who commits third-degree assault in the manner that defendant did.

A. Comparative fault applies only to fault of the type to which contributory negligence would have been a defense.

Before 1971, Oregon recognized the common law defense of contributory negligence, under which some plaintiffs whose own negligence contributed to their injuries to any extent were barred from recovering damages. The 1971 legislature abandoned contributory negligence and adopted instead a statutory defense that is now called "comparative fault," under which some plaintiffs whose claims previously would have been defeated by contributory negligence could now recover a proportionate share of their damages. Towe v. Sacagawea, Inc. , 357 Or. 74, 107, 347 P.3d 766 (2015) (citing Or. Laws 1971, ch. 668, § 1); former ORS 18.470 (1971). As originally enacted, former ORS 18.470 (1971) provided that contributory negligence would not bar recovery if the negligence of the person seeking recovery was not as great as the negligence of the person against whom recovery was sought, but that any damages allowable would be diminished in proportion to the amount of negligence of the person recovering.

In 1975, the legislature amended the statute to, among other things, substitute the word "fault" for the word "negligence." Former ORS 18.470 (1975) ; Or. Laws 1975, ch. 599, § 11. Although the title of the statute continued to use the phrase ...