NO. 82-324
I N THE SUPREllE COURT O THE STATE O MOPJTAPJA
F F
1983
RITA DERENBURGER, G u a r d i a n Ad L i t e m
o f RAYMOND DEMNBURGER, a m i n o r ,
P l a i n t i f f and Respondent,
IIURBERT J O H N LUTEY,
Defendant and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e T h i r d J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f Deer Lodge,
The H o n o r a b l e R o b e r t J . Boyd, J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
Lyrnan II. Eennett, 111, a r g u e d , Bozeman, P.lontana
For Respondent:
P o o r e , Roth & R o b i n s o n , B u t t e , Montana
Rick Anderson & Urban Roth a r g u e d , B u t t e
Submitted: March 2 4 , 1983
Decided: November 1 7 , 1 9 8 3
Filed:
NOV 11 7983
Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Appellant Hurbert Lutey appeals a Deer Lodge County
jury verdict awarding Raymond Derenberger, respondent,
$110,000 in damages he suffered in an automobi-le accident.
Respondent was riding as a passenger in his own vehicle which
the appellant was driving. We reverse and remand.
On November 5, 1979, Ray Derenberger, Hurb Lutey and
their girlfriends went to a movie in Anaconda. They drove in
Ray's vehicle. Prior to and during the movie, Ray, Hurb and
one of the girls consumed approximately eighteen beers. At
about 10:OO p.m., before the movie was over, Ray and Hurb
left the theater to purchase more beer. Initially, Ray
drove; however, upon Hurb's request, he relinquished control
of the vehicle to Hurb. There was testimony indicating that
Ray told Hurb to "see what it [the car] would do." Hurb
testified that they were going quite fast through town.
The vehicle was traveling down Park Street, through a
25 m.p.h. zone, at approximately 55 to 60 miles per hour.
The car crossed some railroad tracks that were laid on a
grade higher than Park Street, causing the car to raise
somewhat, possibly even leave the ground. Hurb lost control
of the vehicle, and it struck a house on 1100 East Park. At
the time of the accident, the road was drv and the record
indicates that the car was in good condition.
As a result of the accident, Ray suffered a severe
brain concussion which caused organic brain damage, broken
facial bones, a broken arm, a broken leg and several scrapes
and lacerations. Hurb pleaded guilty to driving while
intoxicated and was fined $300. At the time of the accident
Ray was sixteen yers old and Hurb was nineteen.
Ray's mother brought an action for Ray as his guardian
ad litem. She alleged that Hurb's reckless, gross, willful
and wanton negligence in driving the vehicle caused Ray's
injuries.
At trial, Ray's lawyer introduced evidence that Hurb
had pleaded guilty to two separate charges of "endangering
the welfare of children" by supplying them with intoxicating
beverages. Hurb's counsel made a motior - limine to prevent
in
admission of this evidence on the grounds of irrelevance and
prejudice. In response to the motion, Ray's counsel stated:
"Your Honor, we are asking for punitive
damages in this case. The two incidents
I wish to put in evidence throuqh
cross-examination if he admits
independently that the Defendant one
month earlier had been arrested for
buying intoxicating beverages for an
underage girl, some 16 years of age,
and in an automobile. He plead guilty
to that offense and was fined $75.00.
Approximately one month after this
accident, when obviously he purchased
intoxicating beverages for a minor, he
again was charged with, convicted and
plead guilty to the same offense. 1
:
submit to the Court that under the
criteria which relate to and the
material facts which relate to the
issue of punitive damages, that the
actions of the Defendant on both the
occasion in question and like conduct
are close enough in time to show in
effect a total disregard for the type
of conduct he engaged in that eveninq,
i.e., purchasing intoxicating beverages
for a minor, is relevant on that issue
as going to the amount of damages and
the willfulness and wantonness of that
conduct on that particular evening."
The motion was denied and the evidence was admitted.
By special verdict the jury found that Hurb was guilty
of willful or wanton misconduct. They also found that Ray
was contributorily negligent in the amount of 25 percent.
However, the court instructed the jury that if Hurb's
misconduct was willful or wanton, ordinary contributory
negligence would not reduce Ray's recovery (Instruction No.
14). Thus, the jury awarded $100,000 in total damages and
$10,000 in punitive damages.
Hurb Lutey brings this appeal and raises two issues for
our consideration:
1. Was it error for the District Court to instruct the
jury that respondent's recovery should not be reduced by his
contributory negligence if the appellant is guilty of wil-lful
or wanton misconduct?
2. Was i t error for the District Court to allow the
.
admission of evidence regarding the appel-lant's guilty pleas
to charges of supplying liquor to minors?
Lutey first argues that the District Court erred by
instructing the jury that Derenberger's recovery could not be
reduced by his own contributory negligence if they found
Lutey guilty of willful or wanton misconduct. He contends
that the legislative enactment of the comparative negligence
doctrine abolished this rule; thus, Derenberger's own
contributory negligence should reduce his recovery. Support
for this is found in the fact that the harshness of the
all-or-nothing rule has been eliminated by comparative
negligence. Further, plaintiffs can recover punitive
damages, which cannot be reduced by their own negligence.
Derenberger asserts that Montana has always
distinguished ordinary or gross negligence from willful or
wanton misconduct. Hence, the use of the word "negliqence"
in the comparative negligence statute indicates that the
legislature did not intend a comparison between plaintiff's
negligence and defendant's willful misconduct to reduce
plaintiff's recovery.
We hold that the comparative negligence statute does
not contemplate a comparison between ordinary negligence and.
willful or wanton misconduct.
The comparative negligence statute mandates that the
negligence of the plaintiff does not bar recovery so long as
it is not greater than that of the defendant. However, his
recovery is reduced by his own contributory negligence.
Section 27-1-702, MCA. The statute reads:
"Contributory negligence shall not bar
recovery in an action by any person or his
legal representative to recover damages
for negligence resulting in death or
injury to person or property if such
negligence was not greater than the
negligence of the person against whom
recovery is sought, but any damages
allowed shall be diminished in the
proportion to the amount of negligence
attributable to the person recovering."
The definition of negligence is found in section
1-1-204(4), MCA, which reads:
"'Neglect', 'negligence', 'negligent', and
'negligently' denote a want of the
attention to the na.ture or probable
consequences of the act or omission that a
prudent man would ordinarily give in
acting in his own concerns."
On the other hand, the term "will.fully" has a different
meaning. It is defined in section 1-1-204(5), MCA:
"'Willfully', when applied to the intent
with which an act is done or omitted,
denotes a purpose of willingness to commit
the act or make the omission referred to.
It does not require any intent to violate
the law, to injure another, or to acquire
any advantage."
Furthermore, section 27-1-701, MCA, separately
establishes that one is liable for willful acts as well as
negligent acts. The statute reads:
"Everyone is responsible not only for the
results of his willful acts but also for
an injury occasioned to amother by his
want of ordinary care or skill in the
management of his property or person
except so far as the latter has willfully
or by want of ordinary care brought the
injury upon himself."
The defense clause of this statute does not change our
decision a-s we interpret it to limit a comparison of
plaintiff's acts only when defendant has committed acts of a
similar kind. When section 27-1-701, MCA, accompanied
contributory negligence, this Court held that a plaintiff's
ordinary contributory negligence would not bar recovery for
injuries from the defends-nt ' s willful or wanton misconduct.
Wollaston v. Burlington Northern, Inc. (Mont. 1980), 612 P.2d
1277, 37 St.Rep. 1015; Mallory v. Cloud (1975), 167 Mont.
115, 535 P.2d 1270; Mihelich v. Butte Electric Railway Co.,
et al. (1929), 85 Mont. 604, 281 P. 540. Further, under
comparative negligence, this would remain so because section
27-1-702, MCA, mandates a comparison of negligence, which we
find is separate and distinct from willful or wanton
misconduct.
The Nevada Supreme Court interpreted the term "gross
negligence" in Nevada's comparative negligence statute in
Davies v. Butler (1979), 95 Nev. 763, 602 ~ . 2 d605. They
found that the legislature, by including the term "gross
negligence" in the comparative negligence statute, determined
that the concept of gross negligence is comparable to and
subject to comparison with ordinary negligence, but left the
law unchanged with regard to conduct in which defendant's
culpability more closely approaches that of one who
intentionally inflicts damage. Under this interpretation,
our statute which only applies to "negligence" would not
encompass willful or wanton misconduct as gross negligence is
a more aggrava.ted form of negligence.
The above statutory construction indicates to us that
mere negligence and willful and wanton misconduct are
different in kind, rather than degree. Consequently, we find
that the legislature did not intend that they be compared
under Montana's comparative negligence statute.
This Court has distinguished the two terms on several
occasions. In Cashin v. Northern Pacific Railway Co. (1934),
96 Mont. 92, 28 P.2d 862, we were to determine whether the
evidence of the case provided a basis for exemplary damages.
Finding it did, we concluded that ". . . in this jurisdiction
something more than gross negligence must be shown in order
to justify such an award; that is, the act must be wanton
... or willful, or warrant the designation of that act as
malicious." 96 Mont. at 111, 28 P.2d at 869. Exemplary
damages were warranted on the theorv that the act was
knowingly done, in reckless disregard of the rights of
others. The fact that willful or wanton misconduct
establishes a basis for exemplary damages indicates to us
that such misconduct is distinct from negligence. See also,
Hannigan v. Northern Pacific Rv. Co. (1963), 142 Mont. 335,
384 P.2d 493.
Other jurisdictions have come to a similar conclusion.
In a personal injury action the Oregon Supreme Court held
that wanton misconduct is different in kind, not merely
degree, from ordinary or gross negligence. It further
concluded that one guilty of wanton misconduct is subject to
liability greater in scope than that which applies to
negligent persons, and contributory negligence is no defense.
Falls v. Mortensen (1955 ), 207 Or. 130, 295 P.2d 182.
In a wrongful death action against the City of Seattle,
the Washington Supreme Court found that willful or wanton
misconduct d.oes not arise out of negligence and thus is not
within the meaning of the term negligence. Adkisson v. City
of Seattle (1953), 42 Wash.2d 676, 258 P.2d 461. The
Washington court stated:
". . . Negligence and willfulness imply
radically different mental states.
Negligence conveys the idea of neglect or
inadvertence, as distinguished from
premeditation or formed intention. An act
into which knowledge of danger and
willfulness enter is not negligence of any
degree, but is willful misconduct. As
long as the element of inadvertence
remains in conduct, it is not properly
rega.rded was willful. Wanton misconduct
is positive in nature, while mere
negligence is materially negative." 258
P.2d at 465.
Prosser distinguishes the two concepts of culpability.
In defining willful, wanton and reckless conduct, he states,
" [tlhey have been grouped together as an. aggravated form of
negligen.ce, differing - 2uality rather than degree from
in
ordinary - -of care."
lack - W. Prosser, Torts § 34 at 184 (4th
~ d .
1971). (Emphasis added.)
We find the above authority persuasive and further
indication that willful or wanton misconduct is different in
kind from negligence. The term negligence in the comparative
negligence statutes does not encompass willful or wanton
misconduct and in an action based on such conduct the
comparative negligence statute is inapplicable and the
plaintiff's own contributory negligence should not reduce his
recovery. V. Schwa.rtz, Comparative Negligence, S 5.3 at 107
Prior to the enactment of comparative negligence,
Montana clearly followed the rule that contributory
negligence of the plaintiff is no bar to his recovery for
injuries caused by willful or wanton misconduct of the
defendant. Wollaston v. Burlington Northern, Inc., supra;
Mallory v. Cloud, supra; Mihelich v. Butte Electric Railway
Co., supra. Since comparative negligence was established to
ameliorate the harshness of the contributory negligence
defense, we believe that allowing assertion of the defense
under the statute when it would be no defense prior to
enactment of comparative negligence would thwart this
legislative purpose. Schwartz, supra, S 5.3 at 107. This
same rationale prevents reduction of plaintiff's recovery
when the defendant's acts are willful.
In a wrongful death action the Supreme Court of Wyoming
determined that the plaintiff's recovery would not be reduced
by his own negligence since the defendant's actions were
willful and wanton. Danculovich v. Brown (Wyo. 1979), 593
P.2d 187. The court said:
"The conclusion, then, is that S 1-1-109
does not mandate reduction of damages on
the basis of comparative negligence of the
plaintiff if defendant's misconduct is
willful and wanton. To hold otherwise
would. be inconsistent with the purpose
behind the doctrine of comparative
negligence. The doctrine is designed to
ameliorate the harshness of the
contributory negligence bar. The court
decisions which have not applied the
contributory negligence bar to willful and
wanton misconduct had the same purpose.
Damages resulting from wil-lful and wanton
misconduct are not ' damages for
negligence' as that term is used in
5 1-1-109." 593 P.2d at 194.
In Davies v. Butler, supra, the Nevada High Court found
that a defenda.ntwhose culpability is so close to intentional
wrongdoing should not have the benefit of the contributory
negligence defense. The court concluded that this rule was
unchanged by comparative negligence.
Lutey next contends that the evidence of guilty pleas
to contributing to the delinquency of minors is irrelevant.
Derenberger asserts that punitive damages can be
awarded to punish the appellant for malicious or wrongful
acts and malice can be implied from a course of conduct that
is known to be harmful or unlawful. Further, in awarding
punitive damages, the jury may take into account whether
Luteyls acts were of such a nature as to amount to a reckless
disregard of the rights of others. Essentially, Lutey should
be held to know that his prior criminal activity was harmful
or unlawful. Thus, the malice necessary to a-ward punitive
damages can be implied.
We hold that the evidence of Luteyls prior guilty pleas
is irrelevant with respect to (1) proving that his misconduct
on the night of the accident was willful or wanton, and (2)
establishing a basis for punitive damages. Consequently, we
reverse and remand the case for further proceedings.
It is well settled that all relevant evidence is
admissible and irrelevant evidence is inadmissible. Rule
402, M0nt.R.Evi.d. Relevant evidence is defined by Rule 401,
Mont.R.Evid. It states:
"Relevant evidence means evidence having
any tendency to make the existence of any
fact that is of consequence to the
determination of the action more probable
or less probable than it would be without
the evidence. Relevant evidence may
include evidence bearing upon the
credibility of a witness or hearsay
declarant."
This Court has adopted the test of relevance stated by
the Commission on Evidence. The test is:
.
". . whether an item of evidence will
have any value, as determined by logic and
experience, in proving the proposition for
which it is offered. The standard used to
measure this acceptable probative value is
' any tendency - - - the existence of any
to make
.. . more probable - - prbbable
or less _ _
it would be without - evidence.'
the
This standard rejects more stringent ones
which call for evidence to make the fact
or proposition for which it is offered
more probable than a.ny other. It is meant
to allow wide admissibility of
circumstantial. evidence limited only by
Rule 403 or other special relevancy rules
in Article IV." State v. Fi.tzpatrick
(Mont. 1980), 606 P.2d 1343, 1354, 37
St.Rep. 194, 207. (Emphasis added.)
Respondent was attempting to prove that appellant was
d.riving the vehicle recklessly, at a high rate of speed, and
that such action was willful and wanton misconduct, and
further, that such misconduct was the cause of respondent's
injuries. Evidence of appellant's prior criminal activity
does not have the tendency to make the existence of
defendant's alleged willful a.nd wanton misconduct while
driving a vehicle on the night of November 5, 1979, more or
less probable. In other words, the issue was not whether
appellant was supplying liquor to minors but whether his
actions were in wi1.lful and wanton disregard for others.
Hence, evidence regarding the defendant supplying alcohol to
minors is irrelevant.
Punitive damages can be awarded in accordance with
section 27-1-221, MCA. The statute reads:
"When exemplary d.amages allowed. In any
action for a breach of obligation not
arising from contract where the defendant
ha.s been guilty of oppression, fraud, or
malice, actual or presumed, the jury, in
addition to the actual damages, may give
da.mages for the sake of example and by way
of punishing the defendant."
In the case at bar we conclude that evidence of
appellant's prior guilty pleas was also irrelevant with
respect to establishing a basis for punitive damages. The
law is clear that to award punitive damages oppression, fraud
or malice must be a.ssociated with the act complained of.
Here, the act complained of was appellant's operation of the
vehicle in a reckless fashion. The fact that appellant has
purchased alcoholic beverages for minors is irrelevant to the
act complained of and thereby irrelevant to establishing a
basis for punitive damages. It did not have a tendency to
make any requisite factors for punitive damages more or less
probable.
Reversed and remanded for a new trial.
V A ~ $ ! & ,@
A
Chief Justice
We concur:
Justices
Mr. Justice L.C. Gulbrandson, dissenting and specially
concurring:
I concur in the holding that it was reversible error
to allow admission of evidence regarding appellant's guilty
pleas to charges of supplying liquor to minors.
I respectfully dissent from the holding that
respondent's recovery should not be reduced by his
contributory negligence, if appellant is guilty of willful
or wanton misconduct.
In Lawrence v. Harvey (Mont. 1980), 607 P.2d 551, 556,
37 St.Rep. 370,374, this Court stated:
"Montana follows the rule of
statutory construction that where a
statute is adopted form a sister state,
it is ordinarily presumed that the
legislature borrows the construction
placed upon it by the highest court of
the state from which it is borrowed,
although such construction is not binding
upon this Court. Continental Oil Co. v.
Board of Labor Appeals (1978), Mont., 582
P.2d 1236, 1240, 35 St.Rep. 1153, 1156;
J.T. Miller Co. v. Made1 (1978), Mont.,
575 P.2d 1321, 1322, 35 St.Rep. 263, 265;
State v. Murphy (1977), Mont., 570 P.2d
1103, 1105, 34 St.Rep.1174, 1177; State
ex rel. Mankin v. Wilson (1977), Mont.,
569 P.2d 922, 924, 34 St.Rep. 1075, 1078
* * * "
The Supreme Court of the State of Wisconsin, the
sister state from whom the Montana legislature borrowed the
exact language of the comparative negligence statute, has
confronted the precise issue that is now before this Court.
In Bielski v. Schulze, (1962), 16 Wis.2d 1, 114 N.W.2d 105
111-113, the Supreme Court of Wisconsin analyzed this issue
as follows:
"The history of the development of
gross negligence, its reason for
existing, the content of the concept, and
t h e i n e q u i t a b l e r e s u l t s and c o n s e q u e n c e s
of i t s a p p l i c a t i o n h a v e l e d u s t o d e c i d e
t h e d o c t r i n e of g r o s s n e g l i g e n c e , a s w e
know i t , s h o u l d be i n t e r r e d i n t h e l i m b o
of j u r i s p r u d e n c e along s i d e t h e d o c t r i n e
of a s s u m p t i o n of r i s k i n n e g l i g e n c e
cases. S e e M c C o n v i l l e v. S t a t e Farm Mut.
A u t o m o b i l e I n s . Co. ( 1 9 6 2 ) , 1 5 Wis.2d
3 7 4 , 1 1 3 N.W.2d 1 4 . Gross negligence is
a n anomaly and c o n t r a d i c t i o n i n terms,
and a p p a r e n t l y c o n s i d e r e d i n t e r m s o f
degree r a t h e r than kind of negligence i n
our e a r l y cases. I t g r a d u a l l y waxed
s t r o n g i n f l e s h and s p i r i t o n s u c h t e r m s
as 'such a degree of rashness or
w a n t o n n e s s w h i c h e v i n c e d a t o t a l want o f
c a r e , ' o r a ' w i l l i n g n e s s t o harm a l t h o u g h
s u c h harm may n o t h a v e b e e n i n t e n d e d , '
'rashly,' ' r e c k l e s s l y , ' and 'w a n t o n l y , '
' l i t t l e l e s s t h a n a n i n t e n t i o n a l wrong, '
'willingness t o perpetrate injury' or ' a
purpose to take known chances of
perpetrating an injury. Gradually, gross
n e g l i g e n c e a c q u i r e d by m e t a m o r p h o s i s a
new n a t u r e : - - O r d i n a r y negligence l a y i n
the f i e l d of inadvertence but gross
negligence i n t h e f i e l d of a c t u a l o r
c o n s t r u c t i v e i n t e n t t o i n j u r e , and t h e
two d i d n o t g r a d e i n t o e a c h o t h e r . When
t h e d r i n k i n g c a s e s i n c r e a s e d i n number,
w e reached t h e p o i n t t h a t t h e concurrence
of causal ordinary negligence and
i n t o x i c a t i o n , a s a m a t t e r o f l a w , was
gross negligence.
"One o f t h e main r e a s o n s f o r t h e
growth of the doctrine of gross
negligence was to ameliorate the
h a r d s h i p s o f t h e common l a w d o c t r i n e o f
c o n t r u b u t o r y n e g l i g e n c e which b a r r e d
recovery from a tortfeasor t o one
n e g l i g e n t l y c a u s i n g , however s l i g h t l y ,
his own injury. However, gross
negligence being defined a s d i f f e r e n t i n
k i n d and n o t i n d e g r e e , c o u l d n o t b e
compared t o o r d i n a r y n e g l i g e n c e a n d ,
h e n c e , c o n t r i b u t o r y n e g l i g e n c e was no b a r
t o recovery.
"The d o c t r i n e o f g r o s s n e g l i g e n c e a s
a v e h i c l e o f s o c i a l p o l i c y no l o n g e r
fulfills a purpose in comparative
negligence. Much o r what c o n s t i t u t e d
g r o s s n e g l i g e n c e . w i l l be found t o
c o n s t i t u t e a high percentage of o r d i n a r y
n e g l i g e n c e c a u s i n g t h e harm. Obviously,
w e a r e s t r e s s i n g t h e b a s i c g o a l of t h e
law of negligence, the equitable
distribution of the loss in relation to
the respective contribution of the faults
causing it."
In Li v. Yellow Cab Company of California (1975), 13
Cal.3d 804, 825-26, 532 P.2d 1226, 1241, 119 Cal.Rptr. 858,
873, the Supreme Court of California addressed the issues as
follows:
"Finally there is the problem of the
treatment of willful misconduct under a
system of comparative negligence. In
jurisdictions following the
'all-or-nothing' rule, contributory
negligence is no defense to an action
based upon a claim of willful misconduct
(see Rest.2d Torts, Section 503; Prosser,
Torts, supra, Section 65, p. 426), and
this is the present rule in California.
(Williams v. Carr (1968) 68 Cal.2d 579,
583, 68 Cal.Rptr. 305, 440 P.2d 505.) As
Dean Prosser has observed, ' [this] is in
reality a rule of comparative fault which
is being applied, and the court is
refusing to set up the lesser fault
against the greater.' (Prosser, Torts,
supra, Section 65, p. 426. ) The thought
is that the difference between willful
and wanton misconduct and ordinary
negligence is one of kind rather than
degree in that the former involves
conduct of an entirely different order,
and under this conception it might well
be urged that comparative negligence
concepts should have no application when
one of the parties has been guilty of
willful and wanton misconduct. It has
been persuasively argued, however, that
the loss of deterrent effect that would
occur upon application of comparative
fault concepts to willful and wanton
misconduct as well as ordinary negligence
would be slight, and that a comprehensive
system of comparative negligence should
allow for the apportionment of damages in
all cases involving misconduct which
falls short of being intentional.
(Schwartz, supra, Section 5.3, p. 108.)
The law of punitive damages remains a
separate consideration. (See Schwartz,
supra, Section 5.4 pp. 109-111.)"
Subsequent to the California Supreme Court's decision
in Li v. Yellow Cab Company of California, supra, the
California Court of Appeals, Fifth District, expanded upon
said decision in Sorenson v. Allred (1980), 112 Cal.App.3d
717, 725-26, 169 Cal.Rptr. 441, 446, as follows:
"In summary, we conclude that no
defensible reason exists for categorizing
willful and wanton misconduct as a
different kind of negligence not suitable
for comparison with any other kind of
negligence. The adoption of comparative
negligence in Li rendered such a separate
category unnecessary since contibutory
negligence on the part of the plaintiff
was no longer a total bar to recovery for
a tortious injury. We apply an old
axiom, 'when the need for a rule ceases,
the rule ceases.'
"The important by-product of the
abolition of shades of negligence or
other categorizations of fault would be
the streamlining of the trial of cases.
The submission to the triers of fact,
particularly juries, of issues of
liability upon the simply stated
question, 'Whose fault was it, and if
both are at fault, what are the degrees
of fault of each' places the issues in a
context more readily understood. The
greater the elimination of such 'buzz'
words as willful misconduct, last clear
chance, [assumption of the risk], etc.,
the more the focus will be upon the real
issues as we have noted above. The
elimination of willful misconduct as a
bar to recovery offers justice to both
plaintiffs and defendants in situations
where it now is all or nothing. Witness
Ewing v. Cloverleaf Bowl, supra, 20
Cal.3d 398, 143 Ca1.Rptr. 13, 572 P.2d
1155, where plaintiff would be the
beneficiary of the elimination of willful
misconduct as a total bar to recovery.
"For the reasons discussed, we
conclude that the doctrine of comparitive
negligence should apply where either
party's conduct is of the type
traditionally described as willful and
wanton. * * * "
The Court of Appeals, Second District, in Southern
Pac. Transp. Co. v. State (1981), 115 Cal.App.3d 116, 121,
171 Cal.Rptr. 187, 191 concurred with Sorenson, supra:
"The second unresolved issue in - the
Li,
role of willful misconduct under
comparative negligence, was recently
addressed by the Court of Appeal in the
Fifth District, which concluded that
willful misconduct does not preclude
application of the comparative-negligence
rule. (Sorenson v. Allred (1980) 112
Cal.App.3d 717, 169 Cal.Rptr. 441.) In
reaching its conclusion, the court noted
that the contributory-negligence rule and
the willful-misconduct rule together
amount to a rule of comparative fault
under which the lesser fault does not bar
the greater. The court said that no
defensible reason exists for categorizing
willful misconduct as a kind of
negligence not comparable with any other
kind of negligence, and it concluded that
the adoption of a rule of comparative
negligence rendered superfluous the
separate category of negligence described
as willful misconduct. (p. 725, 169
Cal.Rptr. 441. )
"We agree with the Court of Appeal's
reasoning that the need for a separate
category of negligence identified as
willful misconduct, which was designed to
alleviate the inequity of the
all-or-nothing contributory negligence
rule, has disappeared with the adoption
of a rule of comparative negligence. The
concept of willful misconduct remains
viable only for an intentional injury
which justifies punitive damages. Unless
a defendant has intentionally injured a
plaintiff, he is entitled to a reduction
in his liability to the plaintiff to the
extent plaintiff's own negligence has
contributed to the injury .... Under
the comparative negligence dispensation,
every party remains liable for his
proportionate share of fault, whether his
conduct is described as simple negligence
or as willful misconduct. (See Li v.
Yellow Cab, supra, 13 Cal.3d, p. 829, 119
Cal.Rptr. 858, 532 P.2d 1226; American
Motorcycle Association v. Superior Court,
supra, 20 Cal.3d p. 588, 146 Cal.Rptr.
182, 578 P.2d 899.)
This Court has ruled that punitive damages cannot be
reduced by the percentage of plaintiff's contributory
negligence. In Shahrokhfar v. State Farm Mutual Automobile
Insurance Company (Mont. 1981), 634 P.2d 653, 658-59, 38
St.Rep. 1669, 1675, this Court held:
"This court has not previously ruled
on the question of whether punitive
damages can be reduced by the percentage
of plaintiff's contributory negligence.
Since the purpose of punitive damages is
to punish the defendant and not to
compensate the plaintiff, we find that
such an award bears no reasonable
relationship to the plaintiff's conduct.
Therefore, we hold that punitive damages
cannot be reduced by the percentage of
plaintiff's contributory negligence.
This holding is supported by other
jurisdictions. Amoco Pipeline Co. v.
Montgomery (W.D.Ok1. 1980), 487 F.Supp.
1268; Tampa Electric Co. v. Stone &
Webster Engineering Corp. (M.D. Fla.,
Tampa Div., 1973), 367 F.Supp. 27."
The jury in this case awarded punitive damages in the
sum of $100,000, in addition to compensatory damages.
The holding that the compensatory damage award may not
be reduced by the percentage of plaintiff's negligence
appears inequitable to me. If the defendant's conduct is
"willful" or "wanton," the percentage of plaintiffs
negligence will be determined to be much smaller in
comparison, and a reduction in the compensatory award would
be in line with the principle of comparative negligence,
while leaving an award for punitive damages intact. Such a
holding would prevent the plaintiff from profiting by his
own negligence, but would preserve the policy of punishing
"willful" or "wanton" acts.
In view of the majority holding that negligence and
willful and wanton misconduct are different in kind, rather
than degree, the Montana legislature may wish to resolve
this problem, in the light of this Court's past planetary
usage of words such as ordinary negligence, gross
negligence, willful negligence, wanton misconduct, reckless,
h e e d l e s s and m a l i c i o u s n e g l i g e n c e .
I would f i n d t h a t t h e Montana l e g i s l a t u r e i n t e n d e d t h e
apportionment of damages in cases involving acts of
n e g l i g e n c e which f a l l s h o r t o f b e i n g i n t e n t i o n a 5 .
., /
.'
_I'
Mr. Justice John C. Sheehy, dissenting:
I dissent from the foregoing decision.
The majority returned this case to the District Court
for further trial solely upon the grounds that the District
Court erred in admitting evidence of prior instances when
Lutey supplied minors with drinks, going to the issue of
punitive damages. The effect of the majority view here is to
adopt a strict rule as to the kinds of evidence that may be
admitted to show the character, malice or disposition of a
defendant and his willful disregard for the rights of others.
In my opinion, Luteyls supplying of beer to minors,
particularly to Ray Derenberger, was part a-nd parcel of the
whole transaction that led to the grievous injuries that Ray
Derenberger sustained. On the evening in question here, he
had purchased beer with which to ply Ray Derenberger, and
undoubtedly Raymond's senses were dulled by this criminal act
of Lutey. It is relevant, therefore, in showing his malice
and willful disregard for the rights of Derenberger, that he
plied minors with liquor a month before the accident or the
month after the accident without any showing of remorse by
those acts for what he had done to Raymond Derenberger.
Punitive damages may be awarded by the jury against the
defendant where he has been quilty of oppression, fraud or
malice, such damages to be for the sake of example and by way
of punishing the defendant. Section 27-1-221, MCA. Here,
the majority limits the fact issues in this case to whether
Lutey was driving the vehicle recklessly, at a high rate of
speed and whether that action was willful and wanton
misconduct. The majority ignores, however, a concomitant
fact issue, that Derenbergerls senses may have been dulled
when this sixteen-year-old was unlawfully plied with liquor
in such a manner that he did not appreciate the danger of
driving with Lutey. It was most certainly relevant to this
issue that Lutey had acted in the same way on prior and
succeeding occasions to show his wanton disregard for any
minors that came within his influence. Certainly the jury
was entitled to consider such evidence in determining the
punitive damages.
This Court has usua.lly held that it will leave the
admission of evidence to the sound discretion of the trial
court subject to review only in cases of manifest abuse.
Cech v. State (1979), 183 Mont. 75, 604 P.2d 97; Pierce
Packing Company v. John Morrell (9th cir. 1980), 633 F.2d
1362.
I would affirm the judgment of the District Court.
c A/
'
I concur with Justice Sheehy's dissent.