finding “attendance at a sports or recreational activity such as scuba diving school falls within” the activities considered as arising directly out of the family relationship
How later courts described this case
- finding “attendance at a sports or recreational activity such as scuba diving school falls within” the activities considered as arising directly out of the family relationship
Written by the judges who cited it.
The opinion
WARREN, P. J.,
concurring.
I generally concur with the holding of the majority that the recreational activity described in this case falls within protected parental conduct. I also agree that, as a consequence, defendants must prove that plaintiffs’ conduct *85 toward their child was “palpably unreasonable,” i.e., grossly negligent, before they may be held liable in contribution.
Based on the majority’s discussion of the law, however, I disagree that the third-party complaint states a cause of action. Although defendants may be able to present evidence that would justify a properly instructed jury in concluding that plaintiffs were grossly negligent, there is no allegation to that effect. However, because that issue was not raised below or on appeal and can be cured on remand by an amendment to the third-party complaint, I join with the majority. See Hendgen v. Forest Grove Community Hospital, 98 Or App 675, 678 , 780 P2d 779 (1989). 1
Where plaintiffs’ liability is for negligence and defendants’ for gross negligence, our decision in DeYoung v. Fallon, 104 Or App 66 , 798 P2d 1114 (1990), indicates that the different levels of fault may be compared. By inference, that would apply to this claim for contribution. The question how relative fault is to be weighed by the jury has not been decided.