The opinion
O’CONNELL, J.,
specially concurring.
It is evident from our cases, including the more recent ones, that our interpretation of the guest statute, OES 30.110, has not been entirely consistent. Note: 33 Or L Rev 216 (1954). Perhaps any further effort to clarify the matter will simply lead to further confusion, but the need for a consistent application of the statute is so great that I venture to express my views in the hope that they might suggest a solution.
To establish a stable position in the treatment of cases under the guest statute we must reach some measure of agreement as to the standard of conduct which we conceive the statute to describe by the language “gross negligence” and “reckless disregard of the rights of others.” One would be naive to assume that anything more than a rough guide could be devised by which to test the facts in the host-guest cases. But if we cut a crude pattern only, and follow it, the lawyers and the trial judges would at least have something to guide them in dealing with this type of case.
I think that a part of the solution will be found in a clearer statement of the problem which confronts us in the application of the guest statute. Our statute, *175 like the guest statutes in most states, is phrased in terms of categories of fault. It speaks in the language of degrees of negligence, i.e., “gross negligence” which, according to the classification from which it is borrowed, is a category of negligence greater than ordinary negligence. It also speaks of “reckless” conduct which is sometimes regarded as a part of the negligence classification and sometimes as a separate type of fault. See State v. Wilcox, 216 Or 110 , 337 P2d 797 (1959). It is now pretty nearly universally recognized in respectable legal circles that one cannot divide negligence into degrees. Negligence is negligence, whether the conduct involves the failure to exercise great or slight care, or any gradation in between, if, under the circumstances there is a duty to the plaintiff. Brown, The Law of Personal Property (2ded) p 327; 2 Harper and James, The Law of Torts, §16.13; Prosser on Torts (2ded), p 147; Salmond on the Law of Torts (11th ed), p 511. It is proper, of course, to postulate principles of liability upon the basis of the amount of care which, as a matter of policy, should be exercised in various circumstances. This is the underlying theory implied in the guest statute.
If the statute were applied in accordance with its language, we would be expected to draw a line in each case between ordinary and gross negligence. Since, as pointed out above, there is no such thing as gross negligence, the court cannot make the distinction suggested and the best that it can do is to translate gross negligence to mean “great negligence” as Mr. Justice Ltjsk did in Rogers, Administrator v. Southern Pac. Co., 190 Or 643 , 227 P2d 979 (1951), and attempt to find some practical criterion which *176 will permit us to draw a line on the scale of fault where we think that it will carry out the purpose or purposes of the guest statute. This is what we have tried to do in our previous guest cases. Finding it impossible to make distinctions on the scale of fault at the lower level, we looked higher on the scale for a more aggravated type of fault which, by leaving a wide chasm between it and “ordinary” fault, could be more readily differentiated in applying the guest statute. Thus, it is seen that the elimination of the less serious instances of aggravated fault intended to be included in the term “gross negligence,” resulted not simply from an effort to state the legislative policy of the guest statute, but from the necessity of finding a workable test of fault. The widest gulf and the clearest distinction could have been established by requiring the guest to prove that his host intentionally injured him. Taylor v. Taug, 17 Wash2d 533, 136 P2d 176 (1943); Parker v. Taylor, 196 Wash 22, 81 P2d 806 (1938); Carufel v. Davis, 188 Wash 156, 61 P2d 1005 (1936); Shea v. Olson, 185 Wash 143, 53 P2d 615 , 111 ALR 998 , affirmed 186 Wash 700, 59 P2d 1183 , 111 ALR 998 (1936).
Next lower on the scale is an area of fault which has gone by various legal names (“wilful,” “wanton,” “reckless”) and which can be generally characterized by the actor’s consciousness of risk. This area is sometimes described as negligence and sometimes as something distinct from negligence. State v. Wilcox, supra; Prosser on Torts (2d ed), p 150; 2 Harper and James, The Law of Torts, § 16.15. The feature which is thought to distinguish it from “ordinary” negligence is the actor’s state of mind. 2 Eestatement, Torts, §500, comment g; Elliott, Degrees of Negligence, 6 *177 So Cal L Rev 91, 143 (1933). Here again language can be fashioned to describe gradations of fault within this area itself. The most blameworthy conduct would be that involved in a situation in which the driver-host, having actual knowledge of a high probability of serious harm to his guest, intentionally elects to expose the guest to the unreasonable risk. For convenience we might describe this conduct as reckless conduct Type I. It is frequently described as “wilful” conduct, or “wanton” conduct, or as “wilful and wanton” conduct. 2 Restatement, Torts, § 500 describes it as “reckless” conduct. See Note: Distinguishing Wilful Misconduct, Wanton Misconduct, and Negligence, 18 U Cinc L Rev 319 (1949); Note: Appleman, Wilful and Wanton Conduct in Automobile Guest Cases, 13 Ind L J 131 (1937). According to some adjudicated cases the language is strong enough to indicate that this is the character of the driver’s fault which must be established by the guest. Clarke v. Storchak, 384 Ill 564, 52 NE2d 229 , 322 US 713 , 64 S C 1270, 88 LE 1555 (1944). See: Tighe v. Diamond, 149 Ohio St 520, 80 NE2d 122 , 82 NE2d 99 (1948); Granflaten v. Rohde, 66 S D 335, 283 NW 153 (1938). In some states, it would seem, this standard of conduct is set as the minimum for recovery by the requirement that the guest must prove that the driver engaged in a continued and persistent course of action, sometimes referred to as the “persistent course of action test.” Note: 37 Tex L Rev 358 (1958). It should be noted that if the driver did not have knowledge of the risk the test for reckless conduct Type I is not met by showing that there were facts 1m own to the driver from which he should realize the danger to his guest. The latter type of conduct may be referred to as reckless conduct Type II. It applies an objec *178 tive test of fault and is easier for the guest to establish than the subjective test for reckless conduct Type I.
If Type I conduct is the test of fault, the guest would have to produce evidence to show that he warned the driver of the danger, or that the driver had actual knowledge from some other source that danger was being encountered. Perhaps no jurisdiction consistently adheres to such a test, and probably all courts recognize that the requisite consciousness of risk “may be inferred from manifestly dangerous conduct.” 2 Harper and James, The Law of Torts, § 16.15, p. 955, note call 27. Turner v. McCready, 190 Or 28 , 222 P2d 1010 (1950) clearly states that the inference may be drawn. Mr. Justice Brand said, “The element of recklessness may, under some circumstances, be inferred from evidence of the driver’s conduct in the light of conditions and of what he must have known.” 190 Or 28, 54 .
It is likely that a part of the confusion in the guest cases arises out of the fact that the distinction between the two types of reckless conduct described above is not kept in mind. And even if the distinction is seen, a variation in the application of the objective test described in reckless conduct Type II will result if the court changes its attitude from time to time as to the amount of evidence necessary to draw the inference that the driver had reason to know of facts which would lead a reasonable man to realize the danger. It is possible that this has caused some of the variation in the application of our own guest statute.
It has become common practice to express the test of fault in this state in terms of an “I don’t *179 care attitude” on the part of the driver. This phrase has the virtue of expressing a legal idea in language which can be understood by the jury. But I believe that its generality encourges “passing judgment in bulk” (Green, Judge and Jury, p 156) and, moreover, its emphasis on the idea of the consciousness of the risk has led us to overlook on occasions the other elements of the test which are equally, if not more, important.
The full consciousness that a risk is to be encountered will not result in reckless conduct if the probability of harm is slight, or if the probability is great but the harm which will probably result is not serious. This can be illustrated by reference to the facts in the present case.
There is no difficulty in finding that defendant was conscious of a risk when she approached the curve. From her previous use of the particular highway she knew that the curve was there, its character and the speed indicated by the highway sign as the safe speed to negotiate the curve. The ingredient which is lacking is the high degree of probability that serious harm would result. It is common knowledge that curves are frequently negotiated safely at speeds which exceed the indicated speed posted by the highway department. We are entitled to recognize that rounding a curve at a speed twenty miles in excess of the indicated speed of 45 miles per hour does not, in itself, show that there is involved a high probability of serious harm. Stated in another way, upon the basis of such facts alone there is not a sufficient warning of danger to characterize the conduct as reckless.
Had it been shown in this case that the curve was sharp, or that there were defects in the highway, or *180 construction equipment in the road, or other circumstances known to the defendant which would increase the risk of harm, the case in all probability would present sufficient facts to warrant submitting it to the jury. There were no such facts here.
I believe that the variations in our treatment of the guest statute in previous cases can be attributed in large measure to the use of general language in the test for fault (such as expressing the test in the formula of an “I don’t care attitude”) which suggests clearly enough the idea that the defendant must be conscious of the risk but conveys little more than that, and de-emphasizes and perhaps sometimes even results in eliminating the other ingredients in the test for reckless conduct. I think that we would establish and maintain a reasonably consistent position in the guest cases if we would subject each case to a test which recites all of the elements of reckless conduct as we understand that term. I would accept as the test the definition set out in 2 Restatement, Torts, § 500 at p 1293. That section reads:
“The actor’s conduct is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves <a high degree of probability that substantial harm will result to him.”
This section has been adopted in some states in applying their guest statute. DeLoss v. Lewis, 78 Cal App2d 223, 177 P2d 589 (1947); Espeland v. Green, 74 S D 484, 54 NW2d 465 (1952)
*181 The adoption, of the Restatement definition is not likely,to giye.ns any significantly better guidance in dealing with- the guest cases unless we are careful in each case . to apply the definition with reference to each of -the-, elements it contains. As the comment appended to ,2 Restatment, Torts, § 500 explains, we are testing for conduct which involves “ a high degree of chance that serious harm will result from it to anyone who is within range of its effect”; it must involve “an easily perceptible danger”; the danger perceived must be a danger of “substantial bodily harm or death”; the circumstances must be such that “the risk so created is unreasonable”; the driver must act or fail to act “knowing or having reason to know” of facts which would lead a reasonable man to realize “the highly dangerous character of his conduct.”
Further, I believe that we need to guard against losing sight of the purpose for which we are seeking a definition of fault. The definition we accept is not an end in itself; it is a part of the process of interpreting the guest statute. The question of the amount of care that must be exercised, or the degree of fault which must be found to impose liability under the guest statute cannot be decided abstractly. It must be related in some way to the purpose for which the guest statute was enacted. Without the guest statute the host driver would be liable to his guest for injuries arising out of ordinary negligence. The legislature decided that a different policy is applicable when an automobile guest sues his host.
It is generally recognized that this type of statute was intended to “scotch ‘the proverbial ingratitude of the dog that bites the hand that feeds him’ and to put a barrier in the way of vexatious litigation.” 2 *182 Harper and James, The Law of Torts, p 961. The statute leaves to the judicial system the task of administering this policy as each case is presented and the decision as to whether particular conduct is or is not reckless must be made with reference to that policy. It is possible that a part of the lack of cohesion in the guest cases results from the failure to anchor the definitions of gross negligence, reckless conduct and similar terms to the statutory purpose and in the failure to judge the driver’s case with this legislative policy as a guide.
Whatever test we apply, there will always be the problem of keeping our function distinct from that of the jury. Our sole task is to determine whether there are sufficient facts in the particular case before us from which the jury can reasonably find that the accident was caused by defendant’s reckless conduct. The temptation here is to leave to the jury the difficult task of drawing a line between ordinary misconduct and reckless conduct. See Rinkevich v. Coeling, 344 Mich 493 , 74 NW2d 12 (1955), noted in 34 U Det L J 169 (1956). But we are charged with the duty of interpreting the guest statute and of establishing what we conceive to be the minimum amount of fault which can still characterize the conduct as reckless within the meaning of the statute. In setting that minimum we must not read into the statute our own view of the policy which should govern host-guest litigation or automobile litigation generally; we must attempt to find the legislative objectives which prompted the legislation. No sharply defined legislative policy can be discerned, but the strong language of fault in the statute and our understanding of the setting in which host-guest legislation was drafted gives us a fair *183 intuition -with which, to work. But cf., Burrell, A New Approach to the Problem of Wilful and Wanton Misconduct, 1949 Ins Law J 716.
With the shift in ideas of the basis for liability from fault to compensation which seems to be prevalent, not only in the jury room but in respectable legal circles as well, the application of the statute in the terms of its original purpose serves to accentuate the difference in treatment between the automobile guest and others in the adjudication of their respective claims. Green, Traffic Victims, Tort Law and Insurance, passim; 2 Harper and James, The Law of Torts, passim; Note: 35 Dicta 179 (1958). Perhaps the time has come when the jury should be permitted to treat automobile guests in the same manner as it treats other injured plaintiffs; but that change must come from the legislature, not from us.
In my opinion there was not sufficient evidence in the present case from which the jury could justifiably conclude that defendant’s conduct was reckless within the meaning of ORS 30.110. Therefore, I concur.