Wootten v. Dillard

• Citation: 592 P.2d 1021,286 Or. 129
• Parties: Gerald A. WOOTTEN, Respondent, v. Michael W. DILLARD, Appellant. TC A7602 01683; SC 25239.
• Decision Date: 03 April 1979
• Court: Oregon Supreme Court

Page 1021

592 P.2d 1021

286 Or. 129

Gerald A. WOOTTEN, Respondent, v. Michael W. DILLARD, Appellant.

TC A7602 01683; SC 25239.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 6, 1978.

Decided April 3, 1979.

A. Thomas Cavanaugh, Portland, argued the cause for appellant. With him on the briefs were Richard C. Pearce and A. Thomas Cavanaugh, P. C., Portland.

Eric C. Larson, of Larson & Sharp, Gresham, argued the cause and filed a brief for respondent.

LENT, Justice.

This is an action for damages for personal injuries brought by a guest against his host driver. Defendant appeals from a judgment on a jury verdict for plaintiff. The primary issue is whether there is evidence from which the jury could find that plaintiff's injuries resulted from gross negligence on the part of the defendant. We find there is and affirm.

For some 18 years now the parties and the courts have been wont, in cases governed by the guest passenger law, to commence analysis with Williamson v. McKenna, 223 Or. 366, 354 P.2d 56 (1960). Whenever this court (or the trial court) decides a close case against the host, the court is accused of not being true to the precepts of Williamson. We believe it is of some value, therefore, to examine just what that case requires of judges and juries.

The facts in Williamson were governed by what was then ORS 30.110:

"No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against the owner or operator for injury, death or loss, in case of accident, unless the accident was intentional on the part of the owner or operator or caused by his gross negligence or intoxication or his reckless disregard of the rights of others."

After reviewing quite comprehensively an array of cases construing similar statutes and our own, this court rejected the concept that "gross negligence" could be identified as a separate form of conduct from that of "recklessness," which was equated with the statutory language, "reckless disregard of the rights of others." ¹ The opinion stated that the concept of recklessness:

"can be Roughly isolated by us and by the trial judges and juries in the administration of the guest statute." (emphasis added)

The court went on in Williamson to delineate the elements of recklessness by "adopt(ing)" the definition of "reckless disregard of the safety of another" ² found in 2 Restatement, Torts, § 500. ³

Following the decision in Williamson, the legislature in 1961 repealed ORS 30.110, the guest passenger law construed in that case, and enacted in its stead what is now codified as ORS 30.115:

"No person transported by the owner or operator of a motor vehicle, * * * as his guest without payment for such transportation, shall have a cause of action for damages against the owner or operator for injury, death or loss, in case of accident, unless the accident was intentional on the part of the owner or operator or caused by his gross negligence or intoxication. As used in this section:

" * * *

"(2) 'Gross negligence' refers to negligence which is materially greater than the mere absence of reasonable care under the circumstances, and which is characterized by conscious indifference to or reckless disregard of the rights of others."

There has been little discussion in our cases since that time as to whether the enactment of ORS 30.115 had any effect on the adoption of § 500. Gray v. Galantha, 235 Or. 521, 385 P.2d 746 (1963), apparently involved facts occurring prior to the enactment of ORS 30.115. The opinion assumes without discussion that "gross negligence" has the same meaning under both ORS 30.110 and 30.115. Chard v. Rios, 238 Or. 74, 393 P.2d 156 (1964) involved facts which occurred after the effective date of ORS 30.115, and the opinion erroneously states:

" * * * That decision (Williamson ) gave to the term 'gross negligence,' as it occurs in ORS 30.115, the meaning found in § 500, Restatement of the Law of Torts. * * * " 238 Or. at 77, 393 P.2d at 157.

Disregarding the error in identification of the statute number, we read the opinion to assume, again without discussion, that the statutory change worked no variation in meaning. Bottom v. McClain, 260 Or. 186, 489 P.2d 940 (1971), without discussion, expressly states that the change in statute did not change the rule of Williamson.

"The many cases discussing the problem (sufficiency of the evidence to establish gross negligence) are too extensive to cite in full, but Williamson, supra, is generally considered the anchor case with a comprehensive analysis of gross negligence in Oregon. ORS 30.110 was repealed and replaced by ORS 30.115 to reflect the Williamson language regarding gross negligence. * * * " 260 Or. at 191, 489 P.2d at 942.

Since we have not had the benefit of any adversarial briefing to the contrary, therefore, we shall continue to assume that the Restatement definition of reckless disregard of the safety of another applies to determination by judge or jury of the existence under the evidence of gross negligence on the part of the host in a case involving a claim for damages for personal injuries.

In these cases the host invariably contends that Williamson has established some knife-edge which may be precisely used to separate out those cases which should be taken from the jury. As a majority of this court quite recently recognized, that just is not so. Bogue v. McKibben, 278 Or. 483, 489, 564 P.2d 1031, 1034 (1977):

"The dissent describes the majority as getting 'back in the business of tinkering with what constitutes gross negligence' and concludes 'that Williamson, as subsequently interpreted, is dead * * *'

"Williamson v. McKenna, supra, was a herculean effort to settle the issue herein discussed and remains a bellwether case. Whenever this court must determine what facts constitute a reasonable man's reckless disregard of the safety of others, There will occasionally be a grey area of difficulty. (emphasis added) * * *

" * * *

"No two cases are alike. The majority does not overrule Williamson wherein this court adopted * * * § 500 * * *. We regard this opinion as a proper application of the rule * * * "

Williamson, itself, acknowledges there is no such knife-edge. First, as we have already noted in a quotation, the concept of recklessness may only be "roughly isolated" by judge and jury; moreover,

" * * * Since we are dealing here with a question of the quantum of fault it is obvious that we cannot expect to find a rule or standard that can be applied with any precision; the most that we can hope for is a clear statement of the factors or elements which must characterize the host's conduct in order to permit recovery." Williamson v. McKenna, supra, 223 Or. at 372, 354 P.2d at 59.

Speaking just two months before Bogue v. McKibben, supra, a unanimous court through the same author as in Bogue, but deciding in favor of the host's contention that the evidence was insufficient, reaffirmed our allegiance to Williamson.

"The elements of gross negligence under the statute have been discussed at length in two prior opinions, Bottom v. McClain, 260 Or. 186, 489 P.2d 940 (1971), and Williamson v. McKenna, 223 Or. 336 (sic) 354 P.2d 56 (1960). Nothing is to be gained by repeating those discussions here. We note only that in order to show gross negligence it is incumbent upon the plaintiff to prove that defendant's conduct, when measured objectively, reveals 'a state of mind indicative of an indifference to the probable consequences of one's acts.' This state of mind has been described as an 'I don't care what happens' attitude. Bottom v. McClain, supra, at 191-92 (489 P.2d 940). * * * "

Defendant assigns as error the failure to grant his motions for nonsuit and directed verdict. Both assignments raise the issue of whether there is evidence from which the jury should be permitted to find that the defendant operated his vehicle in a grossly negligent manner and thereby injured plaintiff.

Defendant asserts that in deciding this issue the court is required to make a two step analysis. He contends that the court must first determine whether the evidence is of a quality which will permit a finding of gross negligence under the statute, and if so, whether the quantum of evidence is sufficient to cause reasonable minds to differ as to the ultimate facts established by the evidence. Attempting to clarify these contentions he states:

" * * * The courts administer the law and the jury determines fact from evidence. Before the jury may receive the evidence for their consideration, the court must evaluate the evidence as to legal merit framed by the issues. The court must decide whether the correct type of evidence exists upon which the jury is entitled to act. A tremendously important concept of American jurisprudence is lost if we adopt a line of reasoning that any conflict in evidence creates a jury question and the prevailing party is entitled on appeal to all favorable implications from the evidence."

We agree with defendant that a jury question is not necessarily created by just any conflict in evidence, but we further respond that the prevailing party in this action at law is most definitely entitled on appeal to all favorable inferences (implications?) which may be drawn from the evidence and further that all conflicts in the evidence are deemed to have been resolved in favor of the prevailing party. See, for example, Shepler v. Weyerhaeuser Company, 279 Or. 477, 484, 569 P.2d 1040 (1977). We agree that the court has the function of deciding whether there is evidence upon which the jury is entitled to act. That is not to say, however, that the court must be persuaded that the host was grossly negligent. We might be completely unpersuaded were it our function to weigh the evidence, but we are yet compelled to submit the case if there is evidence from which reasonable minds could conclude that the host...