Heedless Driving: The difference between negligence and recklessness- Morehouse v. Haynes

In Morehouse v. Haynes, ___ Or App ____ (2010), the Oregon Court of Appeals discussed the difference between negligence and recklessness in motor vehicle collisions.

This was an important distinction for plaintiff as Oregon does not allow noneconomic damages (commonly known as Pain and Suffering) for those plaintiffs who did not have their own car insurance at the time of the injury or up to 180 days before and the collision was caused by negligence.  See ORS 31.715(1) (prohibiting noneconomic damages) and ORS 806.010 (requiring insurance)

However if the collision is caused by the defendant’s (think Bad Driver’s) recklessness, it does not matter whether plaintiff was insured.  That exclusion is also in ORS 31.715.  Oregon defines recklessness in ORS 161.085(9) as:

“a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists.  The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

Plaintiff alleged here that defendant, rounding a corner 20 miles an hour faster than the speed limit and one defendant routinely drove on (and therefore knew the sharpness and the dangerousness) was driving recklessly. The Court found “defendant’s driving, as a matter of law, was not reckless as that term is defined in ORS 161.085(9).  Defendant did not consciously disregard a substantial and unjustifiable risk that he would cause a motor vehicle accident by driving into a curve above the speed limit and adjusting his radio.”

There were prior cases finding these facts very facts were only negligent behavior, not reckless.  “Heedless driving” under Bland v. Williams, 225 Or 193, 357 P2d 258 (1960) was negligence, and “racing or showing off…is consistent with the current analysis of recklessness.”

The Court cited State v. Schlender, 199 Or App 253, 259, 110 P3d 653, rev den, 339 Or 230 (2005), as its examples of recklessness:  in Schlender “the defendant drove recklessly where he was aware of and consciously disregarded a substantial and unjustifiable risk to human life when he drove his car into a restaurant wall even though there were lights on in the restaurant that indicated that a person might be inside”  In State v. Testa, 155 Or App 52, 58, 964 P2d 274 (1998), “defendant drove recklessly when he was aware of and consciously disregarded a substantial and unjustifiable risk when he drove at 25 to 30 miles per hour through a parking lot parallel to a two-lane road, looked at a passenger in a car driving on the two-lane road, and then swerved onto the road toward that car, forcing the driver into the oncoming lane of traffic.”

Therefore Plaintiff in Morehouse was out of luck as the court found the defendant was negligent.  By not carrying car insurance, plaintiffs in Oregon risk not being able to collect anything more than economic damages.

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