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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. 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 Eennett,

111, a r g u e d , Bozeman, P.lontana

Submitted: Decided:

March 2 4 ,

1983

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. Ray's vehicle.

They drove in

Prior to and during the movie, Ray, Hurb and At

one of the girls consumed approximately eighteen beers. about 10:OO p.m.,

before the movie was over, Ray and Hurb Initially, Ray

left the theater to purchase more beer.

drove; however, upon Hurb's request, he relinquished control of the vehicle to Hurb. There was testimony indicating that Hurb

Ray told Hurb to "see what it [the car] would do." 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 At

of the vehicle, and it struck a house on 1100 East Park.

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. in Hurb's counsel made a motior - limine to prevent

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 or the jury that if Hurb's

misconduct

was

willful

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 negligence. rule has been eliminated can by comparative punitive

Further,

plaintiffs

recover

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. recovery is reduced by his own However, his

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: the for his the

"Everyone is responsible not only for results of his willful acts but also an injury occasioned to amother by want of ordinary care or skill in

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 decision a-s we interpret it statute does not change our 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 96 Mont. at 111, 28 P.2d at 869. warranted on the theorv that of the Exemplary act was

malicious." damages were

knowingly done, in others. The fact

reckless disregard that willful or

the rights of misconduct

wanton

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. of Seattle (1953), 42 Wash.2d Adkisson v. City 461. The

676, 258 P.2d

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 ~ d . 1971). We W. Prosser, Torts

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