concurring in part; dissenting in part.
I concur in the majority’s decision, except its holding that the granting of defendant’s motion for a directed verdict on plaintiffs gross negligence count was harmless error. The error was prejudicial, because the jury attributed 50 percent of the fault to plaintiff, resulting in a judgment for her for only 50 percent of the amount that the jury found to be her damages.
Before the comparative fault statute, ORS 18.470, was enacted, contributory negligence was not a defense to a tort claim based on gross negligence. Fassett v. Santiam Loggers, Inc., 267 Or 505, 517 P2d 1059 (1973). An exception to that rule, and the only exception, so far as I know, was that a plaintiffs contributory negligence was a complete bar to an *73action under the guest-passenger statute. Former ORS 30.115. Under that statute, a guest passenger in an automobile could not recover from the owner or operator, unless the injury was intentional by the owner or operator or was caused by his gross negligence or intoxication. In Zumwalt v. Lindland, 239 Or 26, 396 P2d 205 (1964), the court reasoned that, because the legislature intended by enactment of the statute to afford substantial protection to host drivers, the legislature intended that contributory negligence by a passenger be a defense to a host’s gross negligence.
After comparative fault became the law, the Supreme Court was asked to decide whether it applies to cases governed by the guest-passenger statute. The court reviewed the legislative history of ORS 18.470 and concluded:
“It is our opinion that [ORS 18.470] was intended from the outset to provide that comparative fault principles were to apply in actions premised on gross negligence, and that the revision which substituted the term ‘fault’ for the reference to ‘negligence or gross negligence’ was designed not to exclude actions based on gross negligence, but rather to include such actions, as well as any other actions based on tortious conduct, however described, in which contributory negligence is an appropriate defense” Johnson v. Tilden, 278 Or 11, 17, 562 P2d 1188 (1977). (Emphasis supplied.)
It seems clear that the court’s conclusion was that the amended statute was intended to include any actions based on tortious conduct, however described, in which contributory negligence is an appropriate defense. Given that conclusion, and because contributory negligence had been held to be a defense under the guest-passenger statute, the court held that, under ORS 18.470, “ordinary contributory negligence on the part of a guest passenger will remain a partial defense, one which results in a diminished recovery rather than in no recovery at all.” 278 Or at 18.
I do not agree with the majority that that case holds that the legislature intended to extend comparative fault to all actions based on gross negligence. 104 Or App at 69. My conclusion is buttressed by the last sentence of ORS 18.470, which the majority ignores: “This section is not intended to create or abolish any defense.” To apply the section to actions based on gross negligence, to which contributory negligence was not a defense before the statute was enacted, would be to *74create a defense that did not exist before the statute was enacted. Accordingly, I would hold that the granting of a directed verdict on plaintiffs gross negligence claim was prejudicial error.
Because I cannot say that the jury would have found that defendant was grossly negligent, I would reverse and remand.