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Derenberger v. Lutey11/17/1983
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 willful or wanton misconduct?
2. Was it error for the District Court to allow the admission of evidence regarding the appellant'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 "negligence" 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 nature 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 "willfully" 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 another by his want of ordinary care of 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 as we
Page 1 2 3 4 5 6 7 8 9 Montana DUI Attorneys
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