16 Trial Lawyer • Fall 2022 language in liability policies for bodily injury to exclude coverage for intentional or criminal acts. Negligent versus wanton defendants Recent Oregon cases provide solid authority for prohibiting a jury (or a court) from applying comparative fault principles to apportion damages when vulnerable road users are injured by wanton tortfeasors. In State v. Gutierrez-Medina, 365 Or 79 (2019), the victim was a pedestrian who was struck in the roadway at night and injured by the defendant, an intoxicated driver. The defendant driver pleaded guilty to driving under the influence of intoxicants and third-degree assault. At trial, he contested restitution by presenting expert testimony that it was the victim’s own negligence that was the primary cause of the crash. The defendant asked the court to apply the civil Vulnerable Road Users Continued from p 15 doctrine of comparative fault in his effort to reduce the damages awarded as restitution to the victim in the criminal case. The trial court refused to consider the victim’s alleged negligence and ordered the defendant to pay the victim’s medical expenses as restitution. The Oregon Court of Appeals affirmed the trial court’s ruling. The Oregon Supreme Court affirmed the decision of the Court of Appeals, but on a different ground. The Supreme Court examined the statutory defense of comparative fault set forth inORS 31.600(1)1 and found this defense was only available to “defendants who act with a degree of culpability for which the common law defense of contributory negligence would have been available.” In common law, a defendant who acted with a greater degree of culpability than “gross negligence” was considered to act “wantonly” or “intentionally.” And, the Supreme Court reasoned, because the defendant pleaded guilty to third-degree assault, the criminal defendant “necessarily admitted to elements that would require a hypothetical civil jury to conclude the defendant’s culpability fell within the range of ‘wanton’ conduct.” Consequently, the court held the defendant who committed third-degree assault against the pedestrian victim, in the manner that he did, was precluded as a matter of law from asking the court to apportion fault to reduce the victim’s damages. On October 2, 2022, the Oregon Court of Appeals followed GuitierrezMedina stating: It is beyond dispute at this point that a plaintiff may assert that a defendant was negligent, while also asserting that the defendant acted recklessly2, in the hopes of not only prevailing on the negligence claim, but also cutting of the defense of comparative fault. Miller v. Agripac, Inc., 322 Or App 202, 221 (2022). In Miller, the defendant assigned error to the trial court’s “recklessness” instruction as relevant to the defense of comparative fault, arguing that it was inconsistent with plaintiff’s claims and contrary to Oregon law. In concluding that the “recklessness” instruction was properly given and legally correct, the court stated: In the world of torts, there are four categories of “conduct” into which an “infinite” number of factual situations may be placed: (1) simple negligence; (2) gross negligence; (3) an aggravated form of negligence that is often described as “wanton” or “reckless” conduct; and (4) intentional misconduct. GutierrezMedina, 365 Or at 86-87. Historically, only defendants who committed simple or gross negligence (the first two categories) could use the defense of contributory negligence against a plaintiff who had contributed to his or her own injury. Id. at 87. Defendants who acted in a “wanton” manner (the third category) could not use the defense of
RkJQdWJsaXNoZXIy MTY1NDIzOQ==