 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Derenberger v. Lutey11/17/1983
y degree, but is willful misconduct. As long as the element of inadvertence remains in conduct, it is not properly regarded was willful. Wanton misconduct is positive in nature, while mere Prosser distinguishes the two concepts of culpability. In defining willful, wanton and reckless conduct, he states, "(t)hey have been grouped together as an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care." W. Prosser, Torts Sec. 34 at 184 (4th Ed. 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. Schwartz, Comparative Negligence, § 5.3 at 107 (1974).
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, Sec. 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 Sec. 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 designated 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 willful and wanton misconduct are not `damages for negligence' as that term is used in Sec. 1-1-109." 593 P.2d at 194.
In Davies v. Butler, supra, the Nevada High Court found that a defendant whose 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 Lutey's 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 award punitive damages can be implied.
We hold that the evidence of Lutey's prior gu
Page 1 2 3 4 5 6 7 8 9 Montana DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|