Stovall v. Perius

• Jurisdiction: Oregon
• Parties: David STOVALL, Respondent-Cross-Respondent, v. David John PERIUS, Respondent-Cross-Appellant, City of Portland, a municipal corporation, Appellant-Cross-Respondent. ; CA A22509.
• Citation: 659 P.2d 393,61 Or.App. 650
• Docket Number: No. A8003-01179,A8003-01179
• Court: Oregon Court of Appeals
• Decision Date: 26 April 1983

Page 393

659 P.2d 393

61 Or.App. 650

David STOVALL, Respondent-Cross-Respondent, v. David John PERIUS, Respondent-Cross-Appellant City of Portland, a municipal corporation, Appellant-Cross-Respondent.

No. A8003-01179; CA A22509.

Court of Appeals of Oregon.

Argued and Submitted Nov. 15, 1982.

Decided Feb. 16, 1983.

Reconsideration Denied April 1, 1983.

Review Denied April 26, 1983.

Ridgway K. Foley, Jr., Portland, argued the cause for appellant-cross-respondent, City of Portland. With him on the briefs were Rhona Friedman, Deputy City Atty., and Schwabe, Williamson, Wyatt, Moore & Roberts, Portland.

Raymond J. Conboy, Portland, argued the cause for respondent-cross-respondent, David Stovall. With him on the brief were Jan Thomas Baisch, and Pozzi, Wilson, Atchison, Kahn & O'Leary, Portland.

Timothy N. Brittle, Portland, argued the cause for respondent-cross-appellant, David Perius. With him on the brief was Acker, Underwood & Smith, Portland.

Before GILLETTE, P.J., and WARDEN and YOUNG, JJ.

GILLETTE, Presiding Judge.

In this personal injury action involving two defendants, the jury found the City of Portland (City) 75 percent at fault. The City assigns four errors, each concerning jury instructions. Defendant Perius (Perius), whom the jury found seven percent at fault, cross-appeals, raising two questions about jury instructions and one about the calculation of damages. We find no error and affirm.

On the night of his injury, plaintiff attended a party at a home on S.W. Taylor's Ferry Road in Washington County. The house was on a portion of the road that runs generally in an east-west direction. Shortly before 1 a.m., plaintiff and a friend, Mekulich, went out to Mekulich's car, which was parked on the shoulder of the westbound lane. They opened the trunk, deposited some beer bottles, closed the trunk and began to return to the house. As Portland police officer George Carl drove past in the eastbound lane, he noticed plaintiff and Mekulich "hurriedly close the trunk and rush away." Thinking their actions suspicious, he immediately halted his vehicle and left it in the eastbound lane with the motor running and the high beam headlights on. He then called for plaintiff and Mekulich to stop and return to the car. As Carl stood with plaintiff and Mekulich by the side of the road, Perius approached by car from the east and crashed into the Mekulich vehicle. Plaintiff was injured in the collision.

Plaintiff brought suit against both the City and Perius. The complaint predicated the City's liability on the allegedly negligent actions of Carl in leaving his vehicle parked in the middle of a traffic lane with its high beam headlights on. Perius was alleged to be negligent because he was driving carelessly and under the influence of intoxicating liquor when he crashed into the Mekulich vehicle. The case was tried to a jury. Both defendants argued that plaintiff acted negligently by failing to heed Carl's warning to stand off the road, ¹ by failing to maintain an adequate lookout and by remaining on the traveled portion of the highway in a place of danger. Each defendant also argued that the other was solely responsible for the accident.

The jury returned a verdict assessing plaintiff's damages at $206,069 and finding the City 75 percent at fault, plaintiff 18 percent at fault and Perius seven percent at fault. Because the Oregon Tort Claims Act, ORS 30.270(1)(b), limited the City's liability to $100,000, the trial judge reduced the judgment against the City to that amount. Judgment against Perius was entered in the amount of $14,424.83. This appeal and cross-appeal followed.

DEFENDANT CITY'S APPEAL

The City first contends that the trial court erred in giving jury instructions based upon a statute that is not applicable to the facts of this case. The instruction states:

" * * * The statutes of the State of Oregon require that the operator of a vehicle reduce his high beam or bright lights to low beam when an oncoming vehicle approaches within 500 feet."

The court also told the jury that proof of failure to comply with the statutes would constitute proof of negligence.

The statutory basis for the quoted instruction, ORS 483.428, provides in pertinent part:

" * * * Whenever a motor vehicle is being operated on a street or highway during the times specified in ORS 483.402(1), the driver shall use a distribution of light or composite beam directed sufficiently high and of such intensity so as to reveal persons and vehicles on such street or highway at a safe distance in advance of the vehicle, subject to the following requirements and limitations:

"(1) Whenever the driver of a vehicle approaches an oncoming vehicle within 500 feet he shall use a distribution of light or composite beam so aimed that the glaring rays are not projected into the eyes of the oncoming driver.

" * * * " (Emphasis supplied.)

The City argues that this statute does not apply to the facts of this case because, at the time Perius was allegedly blinded by the lights of the police vehicle, the vehicle was not being "operated," Officer Carl was not a "driver" and the vehicle was not "approaching" an oncoming car. To support its argument, the City quotes the definition of "driver" contained in ORS 487.005(5) ² and cites cases for the proposition that a person is a "driver" only if his vehicle is in motion or occupied by him. State v. Martinelli, 6 Or.App. 182, 485 P.2d 647, rev. den. (1971) (holding that a person is "driving" only if his vehicle is in motion); State of Oregon v. Smith, 198 Or. 31, 255 P.2d 1076 (1953) (stating that " 'drive' means '[t]o urge on and direct the motions or course of * * * an automobile * * *.' "). With respect to the verb "approach," which is not defined in the statute, the City argues that its strong connotations of forward movement require the adoption of a "common sense definition" incorporating the notion of forward movement.

We agree with the City that the statute, read narrowly, does not apply to the facts of this case, because Carl was not "driving" at the relevant moment and his car was not "approaching" the Perius' vehicle. But we refuse to read the statute so narrowly.

It is a fundamental tenet of statutory construction that, whenever possible, a statute should be construed in a manner that avoids absurd and unreasonable results. Hollinger v. Blair/Dickson, 270 Or. 46, 53-54, 526 P.2d 1015 (1974). As the Supreme Court said in Pacific P. & L. v. Tax Com., 249 Or. 103, 110, 437 P.2d 473 (1968):

" * * * [I]t is the duty of a court in construing a statute to ascertain the intention of the Legislature and to refuse to give literal application to language when to do so would produce 'an absurd or unreasonable result,' but, rather, 'to construe the act, if possible, so that it is a reasonable and workable law and not inconsistent with the general policy of the Legislature * * *.' " (Citations omitted.)

The clear purpose of ORS 483.428 is to prevent accidents that are likely to occur if the driver of one motor vehicle is temporarily blinded by the high beam headlights of another. ³ If the statute is construed in the manner urged by the City, a motor vehicle operator will escape liability for accidents caused by the precise menace that the statute addresses if he was not moving forward at the moment that his headlights blinded the oncoming driver. It would be patently absurd to hold a driver liable for an accident that occurred as he was moving toward an intersection with his high beam headlights on but not to hold him liable for creating the same danger simply because he had reached the intersection and stopped when the accident occurred. The only reasonable way to construe ORS 483.428 is to read it, as the trial court did, to apply to all vehicles, moving or stationary, displaying high beam lights on a street or highway. The trial court's instruction was not error.

The City next contends that the trial court erred by instructing the jury that an Oregon statute makes it unlawful for a driver to stop, stand or park a motor vehicle on a public highway without also instructing the jury that the statute excuses compliance with its provisions when a "police officer performs an official duty."

The court's instruction was based on ORS 487.580(1). ⁴ The City's argument is based on subsection (4) of the same statute, which states that subsection (1) "shall not apply to vehicles * * * when the driver's disregard thereof is * * * in compliance with law * * *." According to the City, because police officers are "mandated by the very nature of their job to investigate what they reasonably believe is suspicious activity," Carl's stop to investigate plaintiff's activities was "in compliance with law."

Although we can find no legislative history on this point, we do not believe that this case presents the type of situation that legislature intended to cover by its use of the phrase "in compliance with law." Our conclusion is supported by the fact that another statute, ORS 487.075, expressly provides for situations when a police officer, in discharge of his duty, may stop his vehicle in a street or highway. That statute provides:

"(1) The driver of an emergency vehicle, * * * when in the pursuit of an actual or suspected violator of the law * * * is subject to the privileges and conditions set forth in this section.

"(2) The driver of the emergency vehicle may:

"(a) Park or stand, in disregard of a statute, regulation or ordinance prohibiting that parking or standing [including ORS 487.580];

" * * *

"(3)(a) The privileges granted to the driver of an emergency vehicle in paragraphs (a), (c) or (d) of subsection (2) of this section apply only when the driver * * * is making use of a visual signal meeting the requirements of ORS 483.423(1)(c) [blue revolving or flashing lamps] and 483.432(5) and (6) [flashing red lights].

" * * *

"(d) The driver of an emergency * * * police vehicle, is not required...