# Martin v. Yunker

> Court of Appeals of Oregon · June 9, 1993 · 121 Or. App. 77

URL: https://www.frixlaw.com/law-library/cases/9580490

## Case

- **Full name:** Ralph G. MARTIN and Betty R. Martin, Co-Personal Representatives of the Estate of David R. Martin, Deceased, Plaintiffs, v. Roger YUNKER, Dba Roger’s Pacific Watersports, and Kenneth L. Dickman, Third-Party Plaintiffs - Appellants, v. Ralph G. MARTIN and Betty R. Martin, Husband and Wife, Third-Party Defendants - Respondents; Roger YUNKER, Dba Roger’s Pacific Watersports, and Kenneth L. Dickman, Appellants. v. Ralph G. MARTIN and Betty R. Martin, Husband and Wife, Respondents
- **Court:** Court of Appeals of Oregon
- **Decided:** June 9, 1993
- **Citations:** 121 Or. App. 77; 853 P.2d 1332; 1993 Ore. App. LEXIS 948
- **Precedential status:** Published
- **Opinion:** Concurrence by Warren
- **Judges:** Warren, Edmonds, Landau
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9580490

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9580490. Public record. Not legal advice.