Bogue v. McKibben

HOLMAN, J.,

dissenting.

The court is again back in the business of tinkering with what constitutes gross negligence. Prior to 1960 this court had evolved a pattern, by the process of adjudicating factual situations, by which one who regularly engaged in litigation could, with some degree of success, prognosticate results in a given set of circumstances. Upon this scene burst the decision of Williamson v. McKenna, 223 Or 366 , 354 P2d 56 (1960), which, following a complete reexamination of the subject, described gross negligence (previously described as greater or more than ordinary negligence) as being the equivalent of what was described in Section 500 of 2 Restatement of the Law of Torts (1934) as reckless conduct, which, in turn, was equated with "wanton or wilful misconduct.” This description did very little to enlighten, except that the words "wanton or wilful misconduct,” in the factual context in which they were used, told the bench and bar that in order for conduct to constitute gross negligence, there must exist much greater foolhardiness than had previously been the case.

As recounted in Williamson , its decision was the result of a series of gross negligence cases which had come to the court and about which there had been disagreement. At the same time Williamson was before the court, there were two department cases *494 which had been set for rehearing. See Secanti v. Jones et al, 223 Or 598 , 349 P2d 274 , 355 P2d 601 , and Burghardt v. Olson, 223 Or 155 , 349 P2d 792 , 354 P2d 871 (1960). The change in the law brought about by this trilogy of cases is best illustrated by what happened in Secanti . This was a case in which a 17-year-old, out with his girl friend late at night, ran a plainly visible stop sign and collided with a fully lighted vehicle, traveling on the intersecting street, which had been in plain sight for a considerable period of time. The original opinion held that there was sufficient evidence of gross negligence to go to the jury and reasoned thusly:

"The evidence recited would have been sufficient to permit the jury to find that the defendant must have seen both the stop sign and the other car and decided that he would take the chance of beating the car through the intersection. In other words, it could be inferred that he was confronted with an observable obvious hazard and despite ample opportunity to avoid it, decided to accept the hazard.

❖ sfc

"The facts and the circumstances of this case require us to consider that the defendant entered into an intersection immediately in front of an approaching automobile without reducing his speed, without heeding a stop sign, and when there was no obstruction or impairment of visibility and with an inferable consciousness of the hazard. It was necessary for the jury to decide if these circumstances demonstrated a reckless disregard of plaintiffs safety. [Citations.]” 223 Or at 602-05.

This was the fairly standard way of treating gross negligence up to that time; however, upon rehearing, it was held that there was insufficient evidence of gross negligence to go to the jury.

Because of excessive speed, defendant in the present case was unable, while driving another’s car, to negotiate a curve on a road he had never driven before but which curve it could be inferred he knew was there since it was posted and he had been told of it. In the words of the majority opinion,

*495 «* * * There js evidence from which a jury could conclude that this was not a case of mere inadvertence or inattention. The good visibility of the intersection and presence of warning signs [also present in Secanti\ as well as the warnings of his passenger [warning of the curve made sometime before reaching it and not shown to have been induced by his speed] all support the conclusion that defendant must have been aware that he was proceeding downhill and approaching an intersection at which he would have to either stop or make a sharp right turn. The car was heavily loaded with four adults and a child in addition to the driver and skidded 89 feet before striking the pole. A jury could find from the evidence that despite this knowledge, the defendant accelerated half way down the hill to the intersection, reaching a speed of approximately 60 miles per hour [600 feet from the intersection]. It could further infer from the skid marks that defendant intended to make a wide turn by driving to the left of the center line of Madrona. Finally, the evidence is conclusive that defendant knew that his brakes were malfunctioning and had a tendency to grab.

"Defendant’s appreciation of the condition of his vehicle is relevant, independent of any causation issues, as evidence of his mental state at the time of the accident and as a measure of the dangerousness of his conduct. A driver who approaches a sharp comer at 35 to 40 miles per hour may be merely negligent if his vehicle is designed and equipped for such driving, but may be considered to be grossly negligent if, measured objectively, he knew or should have known that it was in a defective condition.

"We conclude that evidence was presented from which a jury could reasonably conclude that defendant knowingly elected to accelerate the vehicle towards the intersection to a speed which a reasonable man would realize created an unreasonable risk of physical harm to his passengers substantially greater than that which would render his conduct negligent. This is particularly tme considering defendant’s knowledge of the malfunctioning brakes and the load factor in his car when going downhill. We conclude the trial court did not err in denying defendant’s motion for a directed verdict.”

The parallel in reasoning between the original *496 opinion in Secanti and the above excerpt in the majority opinion is striking. From given evidence defendant must have known of the danger — he did not heed it; he therefore deliberately encountered it — he was grossly negligent. Every person who ever failed to negotiate a curve he knew was there or every person who ever ran a plainly visible stop sign and thereupon collided with a plainly visible vehicle would fit the same reasoning. Decisions subsequent to Williamson have regularly held that nonsuits were proper in guest cases of this kind and have allowed recovery only in situations in which the negligence was truly horrendous — something which would fall in the "Oh, my God!” category. What had been a fairly steady volume of successful gross negligence cases slowed to a trickle. As a matter of curiosity, the writer of this dissent examined the last 20 bound volumes of the Oregon Reports 1 and found only nine cases in which plaintiffs right to recovery upon gross negligence was upheld. Five of them involved the consumption of alcohol; 2 three involved truly shocking facts; 3 and in one case the issue of gross negligence was conceded and not raised on appeal. 4

The divergence of the present decision from the cases decided in the past 17 years is illustrated by Brown v. Bryant, 250 Or 196 , 440 P2d 231 (1968), in which the defendant unsuccessfully attempted a 90-degree turn at 35 to 40 miles per hour (the same speed at which the present curve was attempted), and which case the court gave the courtesy of a per curiam opinion. The majority attempts to distinguish Brown by pointing out that in the present case there was good *497 visibility, defendant knew the curve was there (so also in Brown), there were four adults in the car and the brakes were bad. No one blamed the accident on the brakes. The simple truth is that in both cases the vehicles were attempting to make a similar curve at a similar speed and neither one made it. The relevant facts can be dressed up with verbiage, but that does not change them.

It is apparent that a majority of the present personnel of this court are more nearly of a mind with the opinions as they existed before Williamson and that Williamson , as subsequently interpreted, is dead, although the majority have not seen fit to give it a public burial. The writer of this dissent couldn’t care less whether guest cases are treated as they were prior to Williamson or as the majority of the court now propose to treat them. However, from the standpoint of stability and predictability, such changes are regrettable and should be avoided. The law should not be changed with the length of the chancellor’s nose. The change brought about by Williamson was not in the interest of stability and neither is the present change. The situation before us is not one in which a change in the interpretation of the law is dictated by prior faulty reasoning or because the reason for such a law is no longer valid due to a change in values or in other societal conditions. Whatever the legislature intended by this statute, that intention has remained constant; it is only the court which vacillates, as evidenced by its interpretations through the years.

The kind of change represented here is not in the best interest of stable and predictable results. It is a change without a rationale. I therefore dissent.

Denecke, C. J., joins in this dissent.

254 Oregon to 273 Oregon inclusive.

Gatten v. Widman, 269 Or 112 , 523 P2d 1007 (1974); Jenson v. Spencer, 269 Or 411 , 525 P2d 153 (1974); Trotter v. McKellip, 265 Or 334 , 509 P2d 31 (1973); Gray v. Warren, 263 Or 38 , 500 P2d 711 (1972); McIntosh v. Lawrance, 255 Or 569 , 469 P2d 628 (1970).

Lochard v. Vosika, 267 Or 213 , 515 P2d 1320 (1973); Sherman v. McAllister, 265 Or 630 , 509 P2d 1176 (1973); Bottom v. McClain, 260 Or 186 , 489 P2d 940 (1971).

Cheyne v. Deike, 270 Or 58 , 526 P2d 557 (1974).