Tower v. Schwabe
| Decision Date | 24 October 1978 |
| Citation | 585 P.2d 662,284 Or. 105 |
| Parties | Victoria TOWER, Appellant, v. Paul SCHWABE, Respondent. TC A76-06-07726; SC 25548. |
| Court | Oregon Supreme Court |
J. Bradford Shiley, Portland, argued the cause and filed a brief for appellant.
Elizabeth K. Reeve, Portland, argued the cause for respondent. With her on the brief were James F. Spiekerman, Ridgway K. Foley, Jr., and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.
Before DENECKE, C. J., and HOLMAN, HOWELL and LENT, JJ.
This is an action for damages for personal injuries allegedly suffered by plaintiff while a passenger in a motor vehicle as a result of the negligent acts of defendant driver. Plaintiff appeals from a judgment for defendant entered by the trial court after it sustained a demurrer to plaintiff's complaint and plaintiff refused to plead further.
Plaintiff's complaint alleges that she was a guest passenger in an automobile driven by defendant when a collision occurred in British Columbia causing her injury. Plaintiff did not allege that defendant was grossly negligent or intoxicated while operating the vehicle. For the purposes of the demurrer, plaintiff and defendant entered into a stipulation of facts which stated that plaintiff and defendant were citizens and residents of Oregon, that they left Oregon by automobile for the purpose of a trip to among other places, British Columbia, and that at the time of the collision they were returning to Oregon. British Columbia does not have a guest passenger statute and therefore a passenger who brings an action against a host under its law need only establish ordinary negligence to recover. In contrast, Oregon has a guest passenger statute which will bar plaintiff's claim unless the defendant was grossly negligent or intoxicated. ORS 30.115.
The issue is whether Oregon law or British Columbia law is applicable. In Casey v. Manson Constr. Co., 247 Or. 274, 428 P.2d 898 (1967), this court adopted the Restatement (Second) Conflict of Law's "most significant relationship" approach to choice of law problems in the torts area. In Erwin v. Thomas, 264 Or. 454, 458, 506 P.2d 494, 496 (1973), we stated as follows:
"Where, in the particular factual context, the interests and policies of one state are involved and those of the other are not (or, if they are, they are involved in only a minor way), reason would seem to dictate that the law of the state whose policies and interests are vitally involved should apply; or, if those of neither state are vitally involved, that the law of the forum should apply, * * *."
This would be considered by some authorities as a determination whether a conflict exists and by others as a means of determining a conflict which does exist. See the discussion in Erwin v. Thomas preceding the quoted excerpt. In any event, it is necessary to examine the interests and policies involved in the present case of both British Columbia and Oregon for the purpose of determining whether both have a substantial interest because, if one or the other has no such interest, it is unnecessary to proceed further.
By enacting the guest passenger statute, Oregon's legislature reduced the duty of care a driver owes a passenger while they are participating in a host-guest relationship. If tort litigation arises out of this special relationship, the legislature has weighted the law in favor of the defendant driver. This court has identified the policy underlying ORS 30.115 as protection of a generous and hospitable host from being held liable for injuries at the instance of an ungrateful guest. Duerst v. Limbocker, 269 Or. 252, 256, 525 P.2d 99 (1974). This policy of the protection of Oregon hosts, absent countervailing contrary interests of British Columbia outweighing it, applies in the present case no less than it would have applied if the accident had occurred in Oregon.
Plaintiff urges that British Columbia also has a vital interest in having its law apply to the facts of this case. Plaintiff notes that prior to 1969 British Columbia also had a guest passenger statute but that in that year Parliament repealed the statute and re-established the common law standard of care between motor vehicle drivers and their passengers. Plaintiff argues that the purpose of the repeal was to re-establish a higher standard of conduct for drivers on the streets and highways of...
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...whether either state has a substantial interest in having its law applied. See Lilienthal, 395 P.2d at 547-48; Tower v. Schwabe, 284 Or. 105, 585 P.2d 662, 663 (1978). In the absence of a significant interest by more than one state, the law of the only state with a substantial interest is a......
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...conduct state, that state had no interest because its guest statute favored the out-of-state defendant. 156. See, e,g., Tower v. Schwabe, 585 P.2d 662, 663-64 (Or. 1978). 157. De Aguilar, 47 F.3d at 1414 (5th Cir. 1995) (applying Texas law); Reich, 432 P.2d at 730-31; Olmstead, 377 N.W.2d a......
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