Pozsgai v. Porter

O’CONNELL, J.,

specially concurring.

We have now developed out of the negligence per se doctrine in this state the strange conclusion that the violation of a safety equipment statute is negligence per se of one type and the violation of an “operational” statute is negligence per se of another type. It would be interesting to know the basis for the distinction. Certainly it is not stated in the majority opinion or in any of our previous cases from which the present rule was. spawned.

In my dissent in McConnell v. Herron, 240 Or 486, 494, 402 P2d 726, 730 (1965), I expressed the view *90that the doctrine which treats the violation of a statute as negligence per se is indefensible and should be abolished. The court having chosen to retain the doctrine, I do not propose to re-argue the matter. But something further should be said in criticism of the distinction which the court now makes between safety-equipment statutes and operational statutes in applying the negligence per se doctrine.

The distinction seems to be that if the defendant violates a safety equipment statute he can be excused from the violation only “if it was beyond his power to comply by the exercise of the highest degree of care”, whereas if the defendant violates an operational statute he can be excused from the violation “by showing that he could not or should not have complied by the exercise of reasonable care.” I take this to mean that a defendant who violates a safety equipment statute has a heavier burden in explaining why he should be excused from the violation than a defendant who violates an operational statute.

Why should the burden in the two cases be different? The only justification for treáting the violation of a statute as negligence per se is on the ground that the statute sets a legislative standard the violation of which is to be deemed negligence as á matter of law. Consistency would require us to also look to the legislative intent for the purpose of determining the circumstances under which the defendant would be excused from the violation of the statute. The court does not suggest any reason why the legislature would have intended to impose a higher standard in establishing an excuse for the violation of an equipment statute than for the violation of an operational statute. I, myself, am unable to think of any ground for the distinction.

*91We might also ask ourselves in passing why a plaintiff who rests his case on the violation of a statute should have the advantage that comes from shifting the burden upon the defendant to show why he should be excused from the violation of the statute, an advantage not enjoyed by a plaintiff who alleges the violation of a court-made standard.

It is also appropriate to again put the question raised in the dissent in McConnell. What is meant by the court’s statement that the defendant must prove that “his noncompliance was caused by circumstances beyond his control and that it was impossible, regardless of his degree of care, for him to comply with the statute.” McConnell v. Herron, supra 240 Or at 491. I still think that the trial bench and the bar will not know what standard this purports to establish.

Confusion lurks in another aspect of the present case. It is the same confusion identified by Mr. Justice Denegre in his dissent in the McConnell case. When plaintiff bases his case on the violation of an operational statute, does the burden of proof shift to the defendant to show that the violation was “beyond his control” and that it was “impossible” for him to comply with the statute, or does the defendant escape this burden simply by showing that he acted as a reasonable man and therefore the statute is inapplicable? And if defendant may do the latter, is there any meaning to the doctrine in its application to operational statutes?

All of this confusion would vanish if we abolished the formula making the violation of a statute negligence per se.

Denegre, J., concurs in this opinion.