IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent, Respondent on Review,

v.

JORGE GUTIERREZ-MEDINA,

Defendant-Appellant, Petitioner on Review.

Marion County Circuit Court Case No. 13C44943 CA A157141 SC S065297

PETITIONER’S CORRECTED BRIEF ON THE MERITS

Review of the decision of the Court of Appeals

on an appeal from a judgment of the Circuit Court for Marion County Honorable Donald D. Abar, Judge

Opinion Filed: August 16, 2017

Author of Opinion: Armstrong, Presiding Judge Concurring Judges: Egan, Judge, and Shorr, Judge.

ERNEST G. LANNET #013248 Chief Defender Criminal Appellate Section JOSHUA B. CROWTHER #032998 Chief Deputy Defender Office of Public Defense Services 1175 Court Street NE Salem, OR 97301

Joshua.Crowther@opds.state.or.us Phone: (503) 378-3349

Attorneys for Petitioner on Review

ELLEN F. ROSENBLUM #753239 Attorney General BENJAMIN GUTMAN #160599 Solicitor General CECIL A. RENICHE-SMITH #961479 Assistant Attorney General 400 Justice Building 1162 Court Street NE Salem, OR 97301 cecil.a.renichesmith@doj.state.or.us Phone: (503) 378-4402 Attorneys for Respondent on Review

62725 06/18

June 13, 2018 01:47 PM

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TABLE OF CONTENTS

STATEMENT OF THE CASE ............................................................................ 1

Questions Presented and Proposed Rules of Law ......................................... 1

Summary of the Argument ............................................................................ 2

Summary of Historical and Procedural Facts ................................................ 4

Argument ....................................................................................................... 7

I. This court in Ramos and Islam reiterated that a trial court’s determination of “economic damages” is informed by reference to civil law concepts that describe and limit recoverable damages to those which could be recovered in a hypothetical civil trial. .......... 10

II. “Comparative fault” is similar to “reasonable foreseeability”: it is a

civil law concept rooted in notions of fairness and responsibility that can limit the amount of damages a plaintiff can recover in a civil case involving nonintentional injuries. .................................... 15

a. Cause In-Fact. .......................................................................... 16

b. Reasonable Foreseeability. ...................................................... 18

c. Comparative Fault. .................................................................. 19

III. The History and Background of Oregon’s Comparative Fault Model:

Comparative fault principles apply to an assessment of “economic damages” in nonintentional tort cases and should similarly apply to an assessment of “economic damages” for purposes of restitution in criminal cases involving nonintentional injuries. ............................ 22

a. In 1971, the Oregon legislature abolished “contributory

negligence” and replaced it with a comparative fault statue that apportioned damages based on comparing the plaintiff’s and defendant’s negligence. ........................................................... 23

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b. In 1975, the legislature expanded the comparative fault statue to apply to a greater variety of tortious conduct, which would include all conduct in which a defendant could raise the common law defense of contributory negligence. ................... 25

i. At common law, a defendant was barred from raising

contributory negligence in an intentional tort (that is, under circumstances which would be comparable to “intentional” or “knowing” conduct for purposes of the criminal code). ................................................................................. 26

ii. In contrast, at common law a defendant could raise the defense of contributory negligence in cases involving “ordinary” or “gross negligence” (conduct which would be comparable to “reckless” or “negligent” criminal conduct). ............................................................................ 28

iii. In Johnson v. this court held that a defendant could

raise the defense of comparative fault in a case involving “gross negligence or intoxication.” ................................... 33

iv. The Court of Appeals has also drawn the line for

comparative fault at intentional results. ............................ 35

IV. In 2005, the legislature removed the trial court’s discretion in

considering external factors unrelated to the questions of damages (such as the defendant’s ability to pay) for purposes of imposing restitution, but it did not alter the trial court’s role and authority to “determine” the “reasonable and necessary” amount of “economic damages” in the first instance. ......................................................... 37

a. The plain text of ORS 137.106 establishes that the legislature

gave the trial courts broad authority to “determine” a “reasonable and necessary” amount of “economic damages” for purposes of imposing restitution under ORS 137.106. ...... 39

CONCLUSION ................................................................................................... 43

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TABLE OF AUTHORITIES

Cases Baccelleri v. Hyster Co., 287 Or 3, 597 P2d 351 (1979) ......................................................................... 26 Bjorndal v. Weitman, 344 Or 470, 184 P3d 1115 (2008) .................................................................. 29 Brownstone Condo. Assn. v. Brownstone Forest Hts., 358 Or 223, 363 P3d 467 (2015) .................................................................... 40 Butterfield v. Forrester, 11 East 60, 103 Eng Rep 926 (1809) .............................................................. 23 Cook v. Kinzua Pine Mills Co., 207 Or 34, 293 P2d 717 (1956) ............................................. 27, 28, 30, 31, 32 Dahl v. Bayerische Motoren Werke, 304 Or 558, 748 P2d 77 (1987)................................................................ 16, 19 Denton v. Arnstein, 197 Or 28, 250 P2d 407 (1952) ...................................................................... 28 DeYoung v. Fallon, 104 Or App 66, 798 P2d 1114 (1990) ............................................................. 30 Falls v. Mortenson, 207 Or 130, 295 P2d 182 (1956) .................................................................... 31 Fassett v. Santiam Loggers, Inc., 267 Or 505, 517 P2d 1059 (1973) ........................................................... 29, 30 Fazzolari v. Portland School Dist. No1J, 303 Or 1, 734 P2d 1326 (1987).......................................................... 11, 18, 21 Goodwin v. Kingsmen Plastering, Inc., 359 Or 694 (2016) ........................................................................................... 40 Hampton Tree Farms, Inc. v. Jewett, 158 Or App 376, 974 P2d 738 (1999) ...................................................... 32, 35

iv Johnson v. Or P2d 1188 (1977) ......................... 24, 26, 28, 32, 33, 34, 35, 36 Jordan v. Coos-Curry Elec. Co-op, Inc., 267 Or 164, 515 P2d 913 (1973) .................................................................... 19 Joseph v. Lowery, 261 Or 545, 495 P2d 273 (1972) .................................................................... 24 Kasanovich v. George, 34 A2d 523 (1943) .......................................................................................... 32 Linkhart v. Savely, 190 Or 484, 227 P2d 187 (1951) .................................................................... 31 Moe v. Jolly Joan, 239 Or 531, 399 P2d 22 (1965)....................................................................... 28 Montara Owners Assn. v. La Noue Development, LLC, 357 Or 333, 353 P3d 563 (2015) .................................................................... 14 Morehouse v. Haynes, 350 Or 318, 253 P3d 1068, 1077 (2011) ................................................. 31, 35 Pan-Alaska Fisheries, Inc. v. Marine Const. & Design Co., 565 F2d 1129 (9th Cir 1977) ........................................................................... 20 Peterson v. Culp, 255 Or 269, 465 P2d 876 (1970) .................................................................... 22 PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993) .................................................................... 9 Piazza v. Kellim, 360 Or 58, 377 P3d 492 (2016) ...................................................................... 18 Sandford v. Chevrolet Div. of Gen. Motors, 292 Or 590, 642 P2d 624 (1982) ................................. 2, 16, 19, 20, 22, 25, 26

v Shin v. Sunriver Prepatory School, Inc., 199 Or App 352, 111 P3d 762 (2005) ............................................................. 35 State v. Barkley, 35 Or 420, 846 P2d 390 (1993) ...................................................................... 10 State v. Dillon, 292 Or 172, 637 P2d 602 (1981) ............................................................. 10, 42 State v. Edson, 329 Or 127, 985 P2d 1253 (1999) ........................................................... 15, 37 State v. Gaines, 346 Or 160, 206 P3d 1042 (2009) .................................................................... 9 State v. Gerhardt, 360 Or 629, 385 P3d 1049 (2016) ....................................................... 6, 17, 18 State v. Gutierrez-Medina, 287 Or App 240, 403 P3d 462 (2017) ............................................ 1, 4, 5, 6, 43 State v. Hart, 299 Or 128, 699 P2d 1113 (1985) .................................................................. 15 State v. Islam, 359 Or 796, 377 P3d 533 (2016) ......................................... 2, 6, 10, 12, 13, 14 State v. Kirshner, 358 Or 605, 368 P3d 21 (2016)....................................................................... 12 State v. McAnulty, 356 Or 432, 338 P3d 653 (2014) .................................................................... 10 State v. N.R.L., 354 Or 222, 311 P3d 510 (2013) ............................................................. 10, 15 State v. Ramos, 358 Or 581, 368 P3d 446 (2016), ...................... 2, 6, 10, 11, 12, 13, 14, 16, 18 State v. Stalheim, 275 Or 683, 552 P2d 829 (1976) .................................................................... 42

vi State v. Turnidge, 359 Or 364, 374 P3d 853 (2016) .................................................................... 17 Walsh v. Oregon Ry & Navigation Co., 10 Or 250 (1882) ............................................................................................. 22

Constitutional Provisions and Statutes

45 USC § 51-60 .................................................................................................. 23 Or Const, Art I, § 17 ........................................................................................... 15

Or Law 1971 c 668 § 1 ....................................................................................... 14 Or Law c 371 ss2 (1977) ..................................................................................... 14 Or Law ch 371 (1977) ......................................................................................... 37 Or Law ch 599(1075) .......................................................................................... 25 Or Law ch 666 § 1 (1971) ................................................................................... 24 Or Laws 1983 ch 724 .......................................................................................... 41 Or Laws 2003 ch 670 .......................................................................................... 37 ORS 137.103 ......................................................................................................... 8 ORS 137.106 .................................................. 2, 4, 8, 9, 10, 11, 37, 39, 40, 41, 42 ORS 161.085 ................................................................................................ 27, 30 ORS 163.165 ......................................................................................................... 1 ORS 30.115 ......................................................................................................... 34 ORS 31.600 ........................................................................................ 8, 19, 23, 36 ORS 31.710 ........................................................................................................... 8 ORS 813.010 ......................................................................................................... 1

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Other Authorities Senate Bill 520 (1983) ........................................................................................ 41 Senate Bill 617 ............................................................................................. 37, 38 Testimony & Attached Exhibit, House Judiciary Subcommittee II, HB 1343, Mar 4, 1971 .................................................................................... 24 Testimony and Minutes, House Judiciary Committee, SB 617, May 20, 2003 .................................................................................... 38 Testimony, House Judiciary Committee, SB 797, May 28, 1975 .................................................................................... 25

Dan B. Dobbs, Paul T. Hayden, Ellen M. Bublick, The Laws of Torts (2nd ed 2011) ...................................................................... 14 Oliver Wendell Holmes, Jr., The Common Law (1881) ............................................................................... 27 Victor E. Schwartz, Comparative Negligence (5th ed 2010) .............................................. 14, 20, 23 W. Page Keeton Et Al., Prosser and Keeton, On the Law of Torts (5th ed 1984) ......................................... 23, 26, 27, 28, 31 Webster’s Third New Int’l Dictionary (unabridged ed 2002) ............................ 41

CORRECTED BRIEF ON THE MERITS

STATEMENT OF THE CASE

Defendant was driving under the influence of alcohol late at night when

he struck a pedestrian who had entered the roadway. Based on that conduct, the

state charged defendant with reckless assault in the third degree, ORS

163.165(1)(a), and driving under the influence of intoxicants. ORS 813.010.

Defendant pleaded guilty to both counts.

At sentencing, the court ordered defendant to pay $154,827.63 in

restitution. Defendant objected to the amount of damages arguing that the court

should employ principles of comparative fault to apportion damages. The Court

of Appeals affirmed defendant’s sentence. State v. Gutierrez-Medina, 287 Or

App 240, 403 P3d 462 (2017). This court allowed review.

The question in this case is whether a trial court must consider principles

of comparative fault when determining “economic damages” for the purpose of

imposing restitution in a criminal case involving a nonintentional injury. Here,

because the trial court erred in failing to consider principles of comparative

fault before imposing restitution, defendant asks this court to reverse the Court

of Appeals decision and remand the case to the trial court for resentencing.

Questions Presented and Proposed Rules of Law Question Presented: Are principles of civil comparative

fault relevant in determining a reasonable and necessary amount of

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economic damages for purposes of imposing restitution under ORS 137.106 (“the criminal restitution statute”)?

Proposed Rule of Law: Yes. A trial court must consider principles of comparative fault when determining the reasonable and necessary amount of economic damages for purposes of imposing restitution in criminal cases involving nonintentional injuries.

Summary of the Argument

This court in Ramos and Islam reiterated that a trial court’s determination

of “economic damages” for purposes of imposing restitution is informed by

reference to civil law concepts that describe and limit recoverable damages to

those which could be recovered in a hypothetical civil trial. Those cases clearly

control the outcome in this case, because “comparative fault” is similar to

“reasonable foreseeability”: It is a civil law concept rooted in notions of

“fairness” and “responsibility” that can limit the amount of damages a plaintiff

can recover in a civil case involving nonintentional injuries. As this court has

explained, comparative fault principles “call[] on the factfinder, in determining

the percentages of fault, to consider both the nature of the conduct of each party

at fault and the extent of the causal relation between the conduct and the

damages claimed.” Sandford v. Chevrolet Div. of Gen. Motors, 292 Or 590,

604, 642 P2d 624 (1982).

The history of Oregon’s comparative fault statutory scheme also supports

that interpretation, but it indicates that the defense of comparative fault would

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be barred in cases involving intentional injury or intentional damages. On one

hand, an individual who intentionally or wantonly causes an injury would be

barred from relying on comparative fault in a restitution proceeding. On the

other hand, however, if the individual did not intend to cause the damages or

injuries and acted with only a negligent or reckless culpability (“gross

negligence”), then the legislature intended comparative fault principles to apply

at the underlying restitution hearing.

Finally, nothing in the plain text or legislative history of the restitution

statutory scheme limits a defendant’s ability to raise the issue of comparable

fault or a trial court’s authority to determine recoverable damages based on

comparative fault principles. In 2005, the legislature removed the trial court’s

discretion in considering external factors unrelated to the question of damages

(such as the defendant’s ability to pay) for purposes of imposing less restitution

than the amount of economic damages. The amendment did not alter the trial

court’s role and authority to “determine” the “reasonable and necessary”

amount of “economic damages” in the first instance. The framework of the

statute remains unchanged: (1) the district attorney investigates and presents

evidence of the “nature and amount” of damages; (2) defendant has the ability

to object and contest the amount; (3) the court “determines” the amount of

“reasonable and necessary” “economic damages” based on civil law concepts;

and (4) the court imposes that “full amount as determined,” now without

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considering whether external circumstances related to defendant’s ability to pay

warrants a reduction in the amount the court will impose. ORS 137.106.

The sentencing court erred by ignoring comparative fault principles when

determining the victim’s reasonable and necessary economic damages. This

court should reverse the Court of Appeals decision in this case and remand to

the trial court for resentencing.

Summary of Historical and Procedural Facts

Defendant was driving under the influence of intoxicants at night when

he struck a pedestrian who had entered the roadway in an area that was dark and

not marked for pedestrian crossing. Gutierrez-Medina, 287 Or App at 241.

Defendant pleaded guilty to DUII and reckless third-degree assault. Id. As part

of his plea, defendant admitted that he “recklessly caused serious physical

injury to [the victim] by means of a motor vehicle, a dangerous weapon, while

[he] drove on a public road under the influence of intoxicants.” Id.

The state sought restitution on behalf of the insurance company that paid

the pedestrian’s medical costs, and defendant objected and requested a hearing.

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Id.1 At the restitution hearing, defendant argued that the trial court should apply

principles of comparative fault and order defendant to pay the amount of

damages that represented his percentage of fault for the victim’s injuries. Id.

Defendant presented testimony from Daniel Webb, an expert in forensic

accident investigation. (Tr. 43-44). Mr. Webb examined the scene of

defendant’s accident and concluded that defendant struck the pedestrian when

the pedestrian walked five feet from a curb and onto Highway 99. (Tr. 48-52,

56-57). He indicated that the area was “very dark,” with no lighting, there was

no crosswalk, and the pedestrian did not have the right of way. (Tr. 50-51, 65).

Mr. Webb “concluded that, based on the circumstances, a sober driver would

not have been able to avoid the collision with the victim, and the victim was in

the best position to have avoided the collision.” Gutierrez-Medina, 287 Or App

at 241.

In its letter opinion, the trial court ordered defendant to pay $154,827.63

as the “full amount” of economic damages. (Trial Court’s Letter Opinion at 1;

in TCF). The court acknowledged that it had authority to determine an actual

restitution amount which might be considerably less than the state’s requested

amount. (Trial Court’s Letter Opinion at 2; in TCF: “For example, [if] the

1 The state initially sought restitution in the amount of $179,827.63.

(Tr. 30-32). Defendant argued that that amount should be reduced by a $25,000 insurance settlement, and the trial court agreed. (See Trial court’s letter opinion at 1 in the TCF). That portion of the trial court’s ruling is not on review.

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victim inflated the amount of damages suffered, the victim’s injury may be pre-

existing, the item stolen may be recovered ect.,”). However, despite that

acknowledgment, the court concluded that comparative fault principles did not

apply to an assessment of economic damages for purposes of restitution,

primarily because defendant had admitted causing the injury in his plea. Id.

In the Court of Appeals defendant renewed his claim that the amount of

restitution awarded should have been reduced “by the extent to which the

pedestrian contributed to his injuries by attempting to cross a street unsafely.”

(App Br at 7). In contending that comparative fault applied to criminal

restitution, defendant highlighted the text from the criminal restitution statutes

that required the court to “determine” a “reasonable and necessary” amount of

“economic damages” before entering and imposing the amount. Gutierrez-

Medina, 287 Or App at 244–45.2

The Court of Appeals rejected defendant’s argument for two reasons.

First, the court held that the trial court did not have to consider the victim’s

comparative fault as part of “the causation analysis,” because “comparative

2 Following argument in the Court of Appeals, this court issued

three notable opinions interpreting the criminal restitution statutes: State v. Ramos, 358 Or 581, 368 P3d 446 (2016), State v. Islam, 359 Or 796, 377 P3d 533 (2016), and State v. Gerhardt, 360 Or 629, 385 P3d 1049 (2016). Defendant filed a post-argument memorandum of additional authorities citing those cases and arguing that the court should “remand for the trial court to apply those cases in the first instance.” (Appellant’s Memorandum of Additional Authorities in ACF). The Court of Appeals rejected that argument and considered the merits of defendant’s arguments in light of those decisions.

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fault is not considered in civil law as part of the causation analysis.” Id. at 245.

Second, the court rejected defendant’s argument that the trial court had to

consider “the victim’s comparative fault to determine the amount of economic

damages it could award, as a consideration separate from causation.” Id.

According to the Court of Appeals, the phrase “in a specific amount that

equals the full amount of the victim’s economic damages as determined by the

court,” meant only damages “caused” by the defendant’s criminal activity and

nothing more. Id. at 246 (emphasis in original). Thus, the court concluded that

the trial court’s tasks were narrowed to making a finding of the damages

“caused” by the defendant’s criminal activities and awarding the “full amount,”

unless the victim consented to a lesser amount. Id.

This court allowed defendant’s petition for review.

Argument

The criminal restitution statute reads, in relevant part:

“When a person is convicted of a crime, or a violation as described in ORS 153.008, that has resulted in economic damages, the district attorney shall investigate and present to the court, at the time of sentencing or within 90 days after entry of the judgment, evidence of the nature and amount of the damages. The court may extend the time by which the presentation must be made for good cause. If the court finds from the evidence presented that a victim suffered economic damages, in addition to any other sanction it may impose, the court shall enter a judgment or supplemental judgment requiring that the defendant pay the victim restitution in a specific amount that equals the full amount of the victim’s economic damages as determined by the court. The lien, priority of

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the lien and ability to enforce the specific amount of restitution established under this paragraph by a supplemental judgment relates back to the date of the original judgment that is supplemented.”

ORS 137.106(1) (emphasis added).

The legislature defined, “economic damages” for purposes of criminal

restitution as having “the meaning given that term in ORS 31.710

(Noneconomic Damages), except that ‘economic damages’ does not include

future impairment of earning capacity.” ORS 137.103(2)(a). In turn, the civil

definition of “economic damages” reads, as relevant:

“‘Economic damages’ means objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services[.]”

ORS 31.710(2)(a) (emphasis added).

Finally, “comparative fault” is a civil concept that is relevant to the

assessment of claimed damages, which reads, in pertinent part:

“Contributory negligence shall not bar recovery in an action by any person or the legal representative of the person to recover damages for death or injury to person or property if the fault attributable to the claimant was not greater than the combined fault of all persons specified in subsection (2) of this section, but any damages allowed shall be diminished in the proportion to the percentage of fault attributable to the claimant. This section is not intended to create or abolish any defense.”

ORS 31.600(1) (emphasis added).

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The question in this case is whether a trial court must consider principles

of comparative fault when determining reasonable “economic damages” for the

purpose of imposing restitution in a criminal case involving a nonintentional

injury. 3

Answering that question depends on the legislature’s intent. This court

determines legislative intent by following the methodology described in PGE v.

Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), and

State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). In short, this court

examines the statute’s text in context and—to the extent offered by the parties

3 This court nearly answered that question in State v. Algeo, 354 Or

236, 311 P3d 865 (2013). The facts in Algeo were remarkably similar to the facts, here. In Algeo, the defendant was driving under the influence of intoxicants late at night when his vehicle struck a pedestrian, the victim, who was “jaywalking” in the street. Id. at 238-40. However, unlike the trial court in this case, the trial court in Algeo did apply principle of comparative fault at the restitution hearing and concluded that the pedestrian was responsible for most of the injuries by “jaywalking.” Thus, the trial court ordered defendant to pay 10% of the damages representing his share of the damages. Id. at 240.

Neither the state nor the victim appealed the supplemental judgment that imposed the term of restitution. Rather, the victim first asked the court to reconsider its order pursuant to the Oregon Constitutional provision that allowed victims to recover “prompt restitution.” The trial court denied that request and the victim appealed directly to this court from that order. Id. at 240-41.

This court concluded that Article I, section 42, of the Oregon Constitution did not prohibit the court from assessing principles of comparative fault. Id. at 252. In addition, this court held that the constitutional provision did not incorporate any legislative amendments to ORS 137.106 that occurred after the Constitutional Provision was adopted. Id. at 250. Consequently, the court did not reach the issue presented in this case, because the victim had not appealed form the proper supplemental judgment. Id. at 252.

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and pertinent to the issue—legislative history. Gaines, 346 Or at 171-72. Prior

judicial construction of the same statute is also a first-level consideration. See,

e.g., State v. McAnulty, 356 Or 432, 441, 338 P3d 653 (2014) (“[w]e also

considers this court’s prior construction of the statutes at issue”).

I. This court in Ramos and Islam reiterated that a trial court’s determination of “economic damages” is informed by reference to civil law concepts that describe and limit recoverable damages to those which could be recovered in a hypothetical civil trial.

Oregon’s restitution statutory scheme “presents a peculiar blend of both

civil and criminal law concepts.” State v. Dillon, 292 Or 172, 178-79, 637 P2d

602 (1981). Restitution allows the court to provide a sanction that compensates

the victim as part of the penalogical sentence. State v. N.R.L., 354 Or 222, 234,

311 P3d 510 (2013). However, as this court has explained on numerous

occasions: “Although the civil law concepts incorporated in the restitution

process do not convert a criminal sanction into civil compensation, they

nevertheless have a significant function in the criminal proceeding. They are a

circumscription of the authority of the court.” Dillon, 292 Or at 180 (emphasis

added). See also State v. Barkley, 35 Or 420, 438, 846 P2d 390 (1993) (relying

on theories of civil liability to assess the recovery of restitution.).

Most-recently, this court reiterated in Ramos that “restitution under ORS

137.106 is informed by principle enunciated in civil cases concerning

recoverable economic damages.” State v. Ramos, 358 Or 581, 594, 368 P3d 446

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(2016) (emphasis added). In Ramos, the defendant was found guilty of arson

and attempted theft after she set fire to her restaurant and filed a fraudulent

insurance claim. Id. at 583. The issue on review was whether the civil concept

of reasonable foreseeability served to limit the court’s authority to impose

restitution.

Based on the plain language and history of the restitution scheme, this

Court concluded that “reasonable foreseeability is a limiting concept that

applies to an award of economic damages under ORS 137.106.” Id. at 596

(citing the general rule from civil cases and, ultimately, adopting the rule of

foreseeability described in Fazzolari v. Portland School Dist. No1J, 303 Or 1,

734 P2d 1326 (1987)).

The Ramos-court also relied on civil law concepts in determining

whether the state could recover the victim’s costs associated with hiring an

attorney and an investigator to resolve defendant’s fraudulent insurance claim.

Id. at 599. In addressing that question, the court described the restitution

process, as follows:

“a restitution hearing takes place after a defendant has been convicted of a crime; it is a proceeding in which the state seeks, as a sanction, an award of the damages that the victim could recover if the victim were a plaintiff in a hypothetical civil action suing the defendant for defendant’s criminal/tortious conduct.”

Id. at 602 (emphasis added).

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Using that hypothetical construct as a guide, this court held that the state

could seek to recover the cost of attorney and investigator fees because a

hypothetical plaintiff could have recovered those costs in a civil proceeding. Id.

at 604; See also State v. Kirshner, 358 Or 605, 109-10, 368 P3d 21 (2016)

(deciding that “economic damages” could include recovery of “lost wages”

associated with appearing at trial and at a restitution hearing, because they

would be recoverable at a civil trial).

This court used that same framework to determine the proper amount of

restitution in a theft of property case. State v. Islam, 359 Or 796, 800, 377 P3d

533 (2016) (relying on Ramos). In Islam, the defendant had stolen several pairs

of pants from a local retailer. The question on review was whether restitution

should cover the actual retail costs of the jeans—which the state claimed

represented the amount needed to “fully compensate” the victim—or, in the

alternative, its wholesale market replacement value. Id. at 800.

To determine the proper amount of restitution, this court applied the

Ramos hypothetical-civil-case framework and noted that “if the victim in this

case were a plaintiff in a civil action against defendant, the victim would have a

claim against defendant in conversion” and, based on that theory of recovery,

“would be limited to recovering the wholesale value of replacement.” Id. at

806-07. This court reasoned that the victim could also recover loss profits, but

only if the state proved those losses at the restitution hearing. Id. On that last

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point, the court noted, “[r]equiring the retail seller to prove its lost profits is a

way of ensuring that a retail seller recovers no more than just compensation for

its loss.” Id. at 807 (emphasis added).

On that final point, this court cautioned against allowing the restitution

sanction to exceed the amount actually recoverable in a civil case:

“To permit the use of the retail market would potentially permit a retail seller to recover more than its actual losses. When a retailer seller recovers the retail value of stolen goods, it recovers not only the wholesale cost of those goods, but also the profits it anticipated it would make from the sale of those goods. If the retailer actually loses such profits, it is entitled to recover them. But if the retailer does not lose such profits, then recovery of the retail value of the goods grants the seller more than is just.”

Id. at 806–07 (emphasis added).

This court’s prior case law, including Ramos and Islam, clearly controls

the outcome in this case for a number of reasons: First, this court’s point in

Islam about interpreting reasonable recoverable losses to avoid unjust

enrichment or a windfall carries particular weight when considering whether

comparative fault applies to an assessment of damages claimed. Comparative

fault developed precisely as a mechanism to fairly apportion damages based on

the defendant’s responsibility for the injury. See infra Argument II.

Second, in Ramos, this court presumed that the legislature was aware of

the concept of reasonable foreseeability when it adopted the civil definition of

economic damages. Id. at 596. (This court “presume[d] that the legislature was

14

cognizant of the limitation that the civil law imposes on the recovery” when it

adopted the definition of “economic damages” that apply to civil actions). That

presumption is even stronger here. See, e.g., Montara Owners Assn. v. La Noue

Development, LLC, 357 Or 333, 341, 353 P3d 563 (2015) (“The context for

interpreting a statute’s text includes the preexisting common law, and we

presume that the legislature was aware of that existing law.”).

“Fault” as a limit on the recovery of damages is a timeworn and vintage

legal concept. Dan B. Dobbs, Paul T. Hayden, Ellen M. Bublick, The Law of

Torts, § 218, 220 (2nd ed 2011) (tracing the doctrine of contributory negligence

to the early 1800s and comparative fault to the early 1900s); Victor Schwartz, §

103[a] Comparative Negligence (noting that some scholars have traced the

concept of “fault” to “the law of ancient Rome.”). At a minimum, the Oregon

legislature would have been aware of its own comparative fault statute, which it

adopted in 1971 and explicitly referenced as a limit on the recovery of

“damages.” Compare Or Law 1971 c 668 § 1 (adopting comparative fault in

1971) with Or Law c 371 ss2 (1977) (adopting restitution in 1977).

Finally, nowhere in Ramos or Islam does this court purport to limit a trial

court’s reasonable assessment of economic damages to only “causation” or to

prohibit a trial court from considering comparative fault in appropriate cases

when assessing claimed damages. Rather, this court in Ramos invited the

argument in this case. This court carefully explained that its holding on

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“reasonable foreseeability” was not meant to “foreclose consideration of other

civil law concepts in future cases,” such as “unreasonable expenses” and

arguments that the recovery of damages “was otherwise barred.” Ramos, 358

Or at 598-99 (emphasis added). The court attached a footnote to that final

sentence and imagined some possible arguments against recovery, including

costs “not attributable to defendant’s tort.” Id. at 599 n 10. This court’s

reference to attributable costs sounds analogous to comparative fault.4

Consequently, comparative fault principles should apply, unless barred by

statute.

II. “Comparative fault” is similar to “reasonable foreseeability”: it is a civil law concept rooted in notions of fairness and responsibility that can limit the amount of damages a plaintiff can recover in a civil case involving nonintentional injuries.

Under the restitution statutory scheme there are three prerequisites to an

order of restitution: (1) criminal activities, (2) economic damages, and (3) a

causal relationship between the two. State v. Edson, 329 Or 127, 132, 985 P2d

1253 (1999). This case involves the final consideration—that is, assessing and

4 This court cautioned, however, that it did not “mean to imply that

the recovery of ‘economic damages’ makes a restitution hearing into a civil proceeding.” Id. at 599 n 11. However, that footnote put the brakes on importing civil law constitutional procedures into the criminal sanction process. In short, this court was reiterating that a criminal defendant could not seek a civil jury at a restitution hearing. See N.R.L., 354 or at 234 (holding that Article I, section 17, does not provide a juvenile a “civil jury” for purposes of restitution); State v. Hart, 299 Or 128, 138, 699 P2d 1113 (1985) (same for purposes of restitution hearing in an adult criminal proceeding).

16

determining the “causal relationship” between the defendant’s “criminal

activities” (reckless assault) and the victim’s “economic damages” (injuries

sustained after the victim wandered into the roadway late at night and was

struck by defendant’s vehicle).

In Ramos, this court held that the civil concept of “reasonable

foreseeability,” which measures responsibility, acts as a relevant factor for

assessing the “causal relationship” between an individual’s criminal activities

and attenuated economic damages. Ramos, 358 Or at 595. Similarly, here,

“fault,” also measures “responsibility,” and is also a relevant part of describing

the “causal relationship” between the defendant’s non-intentional criminal

activities and the plaintiff’s claimed damages. Dahl v. Bayerische Motoren

Werke (BMW), 304 Or 558, 563, 748 P2d 77 (1987) (comparative fault is a

“matter for the trier of fact to weigh in its apportionment of responsibility for

the plaintiff’s injuries.”); Sandford v. Chevrolet Div. of Gen. Motors, 292 Or

590, 604, 642 P2d 624 (1982) (“calling on the factfinder, in determining the

percentages of fault, to consider both the nature of the conduct of each party at

fault and the extent of the causal relation between the conduct and the damages

claimed.) (internal quotations omitted; emphasis added).

a. Cause In-Fact.

To back up, and look at the whole picture of proving restitution, the court

must consider three relevant considerations in assessing the causal relationship

17

between conduct and damages: (1) “but-for” causation; (2) reasonable

foreseeability; and (3) comparative fault, if applicable. Causation or “cause in

fact” is satisfied if the criminal activity is a “but-for cause” of the economic

damages. State v. Gerhardt, 360 Or 629, 635, 385 P3d 1049 (2016).

In this case, defendant admitted “but for” causation for purposes of

criminal liability, which would also cover the question of basic “causation” for

purposes of imposing restitution. State v. Turnidge, 359 Or 364, 481, 374 P3d

853 (2016) (“[t]he term ‘cause,’ when used in a statute that attaches liability or

responsibility for conduct that causes a result, means cause-in-fact.”) (emphasis

added)). In other words, defendant admitted only “cause in-fact” for purposes of

liability.

Defendant did not, however, admit “legal cause” or “responsibility,” as

those terms are understood for purposes of assessing “foreseeability” and

“fault.” Consequently, the trial court still needed to resolve those issues before

it could calculate damages. See e.g., Dahl, 304 Or at 565 (explaining

comparative fault in terms of a product liability case: “unless the defendant is

unable to produce any evidence to show that some portion of the injuries for

which plaintiff is seeking recovery were caused by the plaintiff’s failure to use

available safety belts, such pleadings should not be stricken.”).

18

b. Reasonable Foreseeability.

“Foreseeability” is ordinarily a question of fact that occurs along with the

question of causation. It is related to causation on the surface but actually serves

a different purpose. It is a tool that describes and limits the relationship between

the criminal activity and the damages for which the defendant should

reasonably be responsible. See Piazza v. Kellim, 360 Or 58, 69–70, 377 P3d 492

(2016) (“The concept of foreseeability embodies a prospective judgment about

a course of events; it ‘therefore ordinarily depends on the facts of a concrete

situation’ and, if disputed, is a jury question.” (quoting Fazzolari)).

As this court detailed in Ramos, “under Fazzolari, reasonable

foreseeability determines a defendant’s responsibility for its conduct and the

kinds of harm for which a defendant may be held liable.” Ramos, 358 Or at 595

(2016) (emphasis added). In other words, “reasonable foreseeability” is a limit

on the reach and application of basic “but for” causation and works as an

attenuating factor. Thus, “foreseeability” is rooted in notions of fairness and

“responsibility” rather than direct causation. Kellim, 360 Or at 70 (describing

reasonable foreseeability as a measure of responsibility—“a concept that

traditionally was referred to as ‘proximate’ cause and which, in our current

analytical framework, operates as a legal limit on the scope of a defendant’s

liability for negligent conduct.”); See also Gerhardt, 360 Or at 635-36

19

(describing the “but-for causation” question for restitution as different from the

foreseeability question).

c. Comparative Fault.

In turn, “comparative fault” is similar to reasonable foreseeability in

many ways: First, comparative fault is also a question of fact. Dahl v.

Bayerische Motoren Werke (BMW), 304 Or 558, 563, 748 P2d 77, 80 (1987)

(comparative fault presents “a matter for the trier of fact to weigh in its

apportionment of responsibility for the plaintiff’s injuries.”); Jordan v. Coos-

Curry Elec. Co-op, Inc., 267 Or 164, 165, 515 P2d 913 (1973).

Second, comparative fault is a defense or limit to the amount of

recoverable damages a plaintiff can seek based on the connection between the

conduct and the fair share or apportionment of the claimed damages. ORS

31.600 (explaining “comparative fault” in terms of “diminished damages”); See

Dahl, 304 Or at 562–63 (explaining that the comparative fault statute “changes

the focus of comparative fault from the question of liability under traditional

contributory negligence law to a focus on the plaintiff’s damages.”) (emphasis

added)).

Finally, “fault” appears intertwined with the question of causation, but,

like foreseeability, is actually rooted in notions of “fairness” and

“responsibility.” Sandford, 292 Or at 606 (“Once the test of legal responsibility

thus is no longer phrased as a quantum of causation, it would mark a departure

20

if such a phrasing were reintroduced by the proportionate fault statute. An

examination of the statute shows that it was not.”); Schwartz, Comparative

Negligence, at § 4.03, (describing comparative fault as a determination of

blameworthiness and “supervening cause” that might allow the factfinder to

apportion the damages “fairly”).

In Sanford, this court examined the history of the comparative fault statue

and concluded that it applied to a products liability claim of action. Sandford,

292 Or at 610. In doing so it noted that the legislature’s “[r]emoval of the prior

reference to negligence actions and substitution of relative ‘fault’ for

‘negligence’ in the allocation of damages extended the principle of proportional

fault on both sides to fault other than negligence.” Id. at 596–97 (emphasis

added).

This court continued to discuss the concept of “fault” and made the

following apt observation: “whether we use the term comparative fault,

contributory negligence, comparative causation, or even comparative

blameworthiness, we are merely beating around the semantical bush seeking to

achieve an equitable method of allocating the responsibility for an injury or

loss[.]” Id. at 603 (quoting the Ninth Circuit’s decision in Pan-Alaska Fisheries,

Inc. v. Marine Const. & Design Co., 565 F2d 1129, 1139 (9th Cir 1977)

(observing “what we mean by ‘fault’ is that party’s blameworthy conduct which

contributes to the proximate cause of the loss or injury.”)). Thus, Sandford and

21

Pan-Alaska, described “fault” and “foreseeability” as twin towers of “legal

responsibility” that might limit the recovery of “but for” civil damages.

Similarly, in Dahl, this court described “fault” as a legal limit on

damages that accompanies and works in conjunction with basic foreseeability

concepts. There, this court held that comparative fault applied to so-called

“crash worthiness” claims of liability. This court explained that comparative

fault turned on “the sum total” of the events and differed from a question of

causation:

“The language of negligence and fault that accompanies comparative fault analysis too often leads to the misimpression that for a comparative fault defense to succeed, the defendant must show that the plaintiff’s actions contributed to an accident, by which is meant a collision in an automobile case, rather than the sum total of events which resulted in the plaintiff’s injuries. This view misinterprets Oregon’s comparative fault law.”

Dahl, 304 Or at 562. This court continued and stressed that comparative fault

was a question of damages—not liability: “ORS 18.4701 changes the focus of

comparative fault from the question of liability under traditional contributory

negligence law to a focus on the plaintiff’s damages.” Id. at 562-63.

Finally, in stitching “fault” and “foreseeability” into the same

“responsibility” quilt, this court noted that a determination of “fault” turned on

whether the plaintiff had engaged in a reasonable foreseeable risk and cited to

Fazzolari. Id. at 564-65. Accordingly, Dahl weds the concepts and, if

“reasonable foreseeability” is a relevant factor for assessing the “causal

22

relationship” between an individual’s criminal activities and a victim’s

economic damages, then so is “fault”—at least, in applicable cases involving

nonintentional cases. The trial court’s reasoning in this case was very much at

odds with those statements in Dahl and Sandford. The trial court prohibited

defendant from relying on comparative fault because defendant had admitted

liability and causation. (Trill Court’s Letter Opinion at 2 in TCF). However, as

this court’s case law shows, comparative fault is not a question of liability or

causation; it is a question of recoverable damages.

The history of Oregon’s comparative fault statutory scheme also supports

that interpretation, but indicates that the defense of comparative fault would be

barred in cases involving intentional injury or intentional damages.

III. The History and Background of Oregon’s Comparative Fault Model: Comparative fault principles apply to an assessment of “economic damages” in nonintentional tort cases and should similarly apply to an assessment of “economic damages” for purposes of restitution in criminal cases involving nonintentional injuries.

Historically and at common law, “contributory negligence” was a

complete bar to the recovery of damages in civil tort cases. Walsh v. Oregon Ry

& Navigation Co., 10 Or 250 (1882) (first recognizing the doctrine of

contributory negligence in Oregon). Peterson v. Culp, 255 Or 269, 270, 465

P2d 876 (1970) (documenting the doctrine’s common law roots and limited

statutory exceptions). The doctrine of “contributory negligence” originates from

the English case of Butterfield v. Forrester, 11 East 60, 103 Eng Rep 926

23

(1809), where the court held that “when a plaintiff’s negligence contributes to

the happening of an accident, he cannot recover from a defendant who

negligently injures him.” Schwartz, Comparative Negligence at § 1.02[a]. In

more recent years, Prosser and Keeton described contributory negligence as

“conduct on part of the plaintiff, contributing as a legal cause to the harm he has

suffered, which falls below the standard to which he is required to conform for

his own protection.” W. Page Keeton Et Al., Prosser and Keeton, On the Law of

Torts, § 65 at 451 (5th ed 1984).

Perceived harsh results spurned many federal and state legislative efforts

to curb reliance on the doctrine by adopting “comparative fault” systems that

apportioned damages according to fault. Id. Federal legislation in 1908 first

paved the way for a comparative model. 45 USC § 51-60 (“the Federal

Employees Liability Act”). A handful of states followed suit; until the dams

broke and almost every other state adopted comparative fault in the 1960s and

1970s. Schwartz, Comparative Negligence § 1.02[a] (5th ed 2010). Oregon was

no exception.

a. In 1971, the Oregon legislature abolished “contributory negligence” and replaced it with a comparative fault statue that apportioned damages based on comparing the plaintiff’s and defendant’s negligence.

In 1971, the legislature adopted comparative fault in Oregon. Former

ORS 18.470, renumbered ORS 31.600 (2003). The legislation was drafted to

24

abolish the complete bar of recovery based on common law contributory

negligence. Testimony & Attached Exhibit, House Judiciary Subcommittee II,

HB 1343, Mar 4, 1971 (statement by Arthur C. Johnson, Chairman Oregon

State Bar Procedure and Practice Committee). The bill was not designed to

“favor the plaintiffs or defendants bar.” Id. Rather the legislation was intended

as an innovation that would encourage fair settlements and prompt payments of

losses. Id.

The original comparative fault provision focused on “negligence” and

provided:

“Contributory negligence, including assumption of the risk, 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 a person or property if such negligence contributing to the injury was not as great as the negligence of the person against who recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of such negligence attributable to the person recovering.”

Or Law ch 666 § 1 (1971). As read, the provision allowed a plaintiff to recover

a proportion of his damages so long as his negligence was not greater than

defendant’s negligence. See e.g., Joseph v. Lowery, 261 Or 545, 549-50, 495

P2d 273 (1972) (discussing the statute’s retroactivity and noting its genesis

from a similar Wisconsin law).

25

b. In 1975, the legislature expanded the comparative fault statue to apply to a greater variety of tortious conduct, which would include all conduct in which a defendant could raise the common law defense of contributory negligence.

In 1975, the legislature amended the comparative fault provision and

expanded its coverage. Or Law ch 599 §1. It read:

“Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for death or injury to person or property if the fault attributable to the person seeking recovery was not greater than the combined fault of the person or persons against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the percentage of fault attributable to the person recovering. This section is not intended to create or abolish any defense.”

(Emphasis added).

The purpose of the amendment was to move the “cut-off line” barring a

plaintiff’s recovery from 49 to 50 % and to expand the bill to cover more than

comparative negligence but also comparative “fault” more generally. See

Sandford, 292 Or at 596 (enumerating the differences between the 1971 and

1975 legislation). In a memorandum to the House Judiciary Committee on

Senate Bill 797, State Representative Dave Frohnmayer explained that “‘Fault’

should be broadly construed to include negligence or other conduct which gives

rise to liability in tort or would apart from this section give rise to the defense

of contributory negligence.” Testimony, House Judiciary Committee, SB 797,

May 28, 1975, (written statement by Representative Dave Frohnmayer attached

as Appendix G and found in footnote 2).

26

On that last point, Representative Frohnmayer memorialized:

“Apportionment of damages is expressly extended to all actions to recover

damages for injury to person or property in which contributory negligence may

be properly asserted as a defense.” Id. That is, the bill “very deliberately”

expanded comparative fault principles to more types of conduct than basic

negligence claims. Johnson v. Or 16, P2d 1188 (1977)

(expanding comparative fault to guest-passenger statue involving “gross

negligence or intoxication.”); See also Baccelleri v. Hyster Co., 287 Or 3, 12,

597 P2d 351 (1979) (applying comparative fault principles to “strict liability” in

tort); Sandford, 292 Or at 598 (applying comparative fault to “products

liability” actions). Whether that expansion would cover nonintentional injuries

in a restitution case depends on any limits to the defense at common law.

i. At common law, a defendant was barred from raising contributory negligence in an intentional tort (that is, under circumstances which would be comparable to “intentional” or “knowing” conduct for purposes of the criminal code).

For purposes of assessing the severity of liability or culpability for

purposes of tortious conduct or criminal conduct respectively, longstanding

jurisprudence separates “intentional injuries” from nonintentional injuries.

Prosser and Keeton at §2 at 9 (“It is one of the most basic, organizing principles

of legal thinking.”). As Justice Oliver Wendell Holmes memorably wrote,

“Even a dog distinguishes between being stumbled over and being kicked.”

27

Oliver Wendell Holmes, Jr., The Common Law 3 (1881). That bedrock division

between intentional and nonintentional injuries also marked the line for relying

on contributory negligence as a defense at common law.

At common law, a defendant was barred from raising a contributory

negligence defense to an intentional tort. Prosser and Keeton at § 66, 462. An

“intentional tort” included an “intentional act” and an accompanying “intent to

cause the result.” See Cook v. Kinzua Pine Mills Co., 207 Or 34, 48, 293 P2d

717 (1956) (“the requisite intent in a charge of assault and battery is to do

violence and personal injury to the person assaulted.”).

For purposes of comparison, the legislature defines “intent” and

“knowledge” similarly with respect to criminal liability:

“(7) ‘Intentionally’ or ‘with intent,’ when used with respect to a result or to conduct described by a statute defining an offense, means that a person acts with a conscious objective to cause the result or to engage in the conduct so described.

“(8) ‘Knowingly’ or ‘with knowledge,’ when used with

respect to conduct or to a circumstance described by a statute defining an offense, means that a person acts with an awareness that the conduct of the person is of a nature so described or that a circumstance so described exists.

ORS 161.085 (Emphasis). To highlight the parallels, Prosser and Keeton

described tortious “intent” as follows:

“(1) it is a state of mind (2) about consequences of an act (or omission) and not about the act itself, and (3) it extends only to having in the mind a purpose (or desire) to bring about given

28

consequences but also to having in mind a belief (or knowledge) that given consequences are substantially certain.”

Prosser and Keeton, at § 8, 35 (emphasis added). As the above emphasized

portions of the criminal code and definition of “intentional torts” demonstrate,

“intentional” or “knowing” criminal culpability aligns with an “intentional” or

“willful” tort. See e.g., Denton v. Arnstein, 197 Or 28, 45, 250 P2d 407 (1952)

(“When a defendant’s conduct is willful and intentional, it is no longer

negligence” and “plaintiff’s contributory negligence cannot arise.”).

Consequently, the 1975 legislature would have barred an individual who

admitted to or was found guilty of an intentional crime from relying on

comparative fault at his restitution hearing. Cook, 207 Or at 42; See Moe v.

Jolly Joan, 239 Or 531, 536, 399 P2d 22 (1965) (“Contributory negligence is

not a defense to assault and battery” in the tort sense of the phrase);

ii. In contrast, at common law a defendant could raise the defense of contributory negligence in cases involving “ordinary” or “gross negligence” (conduct which would be comparable to “reckless” or “negligent” criminal conduct).

On the other hand, at common law a defendant could raise the defense of

contributory negligence in cases involving ordinary negligence or “gross

negligence.” Cook, 207 Or at 42; Johnson, 278 Or at 17. “A person is negligent

if the person fails to exercise reasonable care, a standard that ‘is measured by

what a reasonable person of ordinary prudence would, or would not, do in the

29

same or similar circumstances.’” Bjorndal v. Weitman, 344 Or 470, 478, 184

P3d 1115 (2008)

In turn, “gross negligence” embodies an aggravated form of negligence.

Fassett v. Santiam Loggers, Inc., 267 Or 505, 508, 517 P2d 1059 (1973).

According to this court in Fassett, “Gross negligence” is considered “the

equivalent of reckless disregard and is negligence of a substantially greater

degree than that of ordinary negligence.” Id. at 508. In other words, in Oregon,

“gross negligence” in torts is the equivalent of “criminal negligence” and

“recklessness” in criminal law.

To keep the comparison going, the legislature defined “recklessly” and

“criminal negligence” for purposes of criminal liability, as follows:

“(9) ‘Recklessly,’ when used with respect to a result or to a circumstance described by a statute defining an offense, means that 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.

“(10) ‘Criminal negligence’ or ‘criminally negligent,’ when

used with respect to a result or to a circumstance described by a statute defining an offense, means that a person fails to be aware of 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 the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

(emphasis added).

30

As emphasized, the relevant terminology in the “criminal negligence”

and “recklessness” definitions focus on “risks” and “deviations” from a

“standard of care,” as opposed to conduct intentionally or consciously aimed at

producing a result. Those terms sound like language intended to describe

nonintentional torts.

For example, in Cook, this court held that at common law “if a

defendant’s negligence is merely ‘gross,’ an extreme departure from ordinary

standards, but still without elements of ‘willfulness’ or ‘wantonness,’ it is

generally held that a plaintiff’s ordinary negligence is a defense.” Cook, 207 Or

at 43. Those distinctions track the language that the legislature used to contrast

“criminal negligence” and heightened criminal negligence that would qualify as

“recklessness.” ORS 161.085(9), (10) (describing culpable mental states). See

also Fassett, 267 Or at 508 (describing “gross negligence” as synonymous with

recklessness). See also DeYoung v. Fallon, 104 Or App 66, 69, 798 P2d 1114

(1990) (relying on Fassett for the following: “Because the fault required for

gross negligence falls between that required for battery and ordinary

negligence, there had to have been evidence to support the theory that defendant

acted with reckless disregard.”) (emphasis added).

Thus, the legislature in 1975 (the legislature that placed the word “fault”

into the comparative fault model) and the legislature in 1977 (the legislature

that adopted the civil definition of pecuniary damage for purposes of restitution)

31

would have understood that comparative “fault” would have been a partial

defense to the imposition of restitution in a criminal case involving reckless and

criminally negligent (“gross negligent”) conduct.

Finally, there is another type of theoretical tort that falls somewhere in

between reckless and intentional torts. For example, at common law a defendant

could not raise the defense of contributory negligence to an act committed in a

“willful, wanton or reckless” manner. Cook, 207 Or at 58-59. “Willful” or

“wanton” misconduct is typically defined in torts as an intentional act “so

recklessly disregarded that, even though there be no actual intent, there is at

least a willingness to inflict injury, a conscious indifference to the perpetration

of the wrong.” Id. at 55-56; Linkhart v. Savely, 190 Or 484, 506, 227 P2d 187

(1951) (“a tort committed with a bad motive or so recklessly as to be in

disregard of social obligations * * * wickedly done.”). Prosser and Keeton

eschewed the phrase and cautioned that courts often blur the distinction

between “gross negligence” and “willful, wanton, and reckless” conduct. See

Morehouse v. Haynes, 350 Or 318, 334, 253 P3d 1068, 1077 (2011) (J.

DeMuniz, Concurring) (nothing the “absence of a clear dividing line between

negligence, criminal negligence, and recklessness[.]”).

In Falls v. Mortenson, this court provided fog lines for this court to

follow when comparing “willful misconduct” with conduct on the “negligence

continuum.” 207 Or 130, 295 P2d 182 (1956) (stating that contributory

32

negligence does not apply to willful misconduct). In describing what constitutes

wanton misconduct, this court stated that it is “‘something different from

negligence however gross,—different not merely in degree but in kind, and

evincing a different state of mind on the part of the tortfeasor.’ ” Id. at 139

(quoting Kasanovich v. George, 34 A2d 523, 525 (1943)). See also Hampton

Tree Farms, Inc. v. Jewett, 158 Or App 376, 395, 974 P2d 738 (1999) (relying

on Johnson and Falls).

Consequently, whatever, the old phrase “willful, wanton, and reckless”

might have meant, it is clear that Oregon courts have considered negligence,

“gross negligence,” and recklessness to be on one side of the line and “willful

misconduct” more akin to an “intentional tort.” Cook, 207 Or at 41-42 (“The

word ‘reckless’ appears in conjunction with the word ‘negligent’ in most

complaints coming to this court which are intended to charge and which have

been held to charge simple negligence.”).

In short, defendant is not asking this court to necessary hold that

comparative fault applies in all “reckless” cases of assault. There might be a

reckless assault case in the future where the defendant’s conduct is more

consistent with an “intentional” or “wanton” tort at common law. For example,

a case of criminal reckless endangerment or reckless assault where the

defendant fired a machine gun into the air after a super bowl victory (intending

to celebrate his team’s victory but not to cause an injury) or by driving a semi-

33

truck at 140 miles per hour into a crowded downtown street. In those cases—

assuming the defendant did not get convicted of an intentional crime—an

injured plaintiff might still attempt to add a claim of “intentional” or wanton”

tortious conduct as part of his pleadings.

But this is not that case. Defendant had a BAC of .11 % after the

collision. (Tr. 10, 24). But the state did not offer any evidence of “wantonly” or

“willful” impaired driving: no swerving, speeding, or traveling outside his lane.

(Tr. 53). In additional, there was no evidence of defendant’s behavior that rose

to a “wanton” or “malicious” level. He stopped after the crash and did not flee,

(Tr. 55), he showed remorse (Tr. 15-16, 20-12), and there was no evidence that

he was staggeringly drunk or significantly intoxicated. Finally, all the evidence

demonstrated that the pedestrian wandered onto a dark highway at night and

that “even a sober driver would have hit the pedestrian,” based on the

pedestrian’s negligence. (Tr. 64-65, 76).

Under those circumstances, comparative fault is a question for the

factfinder in a restitution hearing.

iii. In Johnson v. this court held that a defendant could raise the defense of comparative fault in a case involving “gross negligence or intoxication.”

This court and the legislature have both treated driving under the

influence of intoxicants in relation to a claim of injury as “gross negligence.”

Johnson, 278 Or at 17. The legislature has adopted a “guest-passenger” statute

34

that limits liability for passengers to “intentional accidents” or accidents caused

by “gross negligence.” ORS 30.115. In turn, the legislature defined those gross

negligence claims in terms of “reckless disregard.” ORS 30.115(2) (“Gross

negligence” refers to negligence which is materially greater than the mere

absence of reasonable care under the circumstances, and which is characterized

by conscious indifference to or reckless disregard of the rights of others.”).

In Johnson, this court held that the comparative fault statute applied to a

claim of “gross negligence or intoxication” under Oregon’s guest-passenger

statute. Johnson, 278 Or at 17. In that case, a passenger was injured during an

automobile accident and sued the defendant (the driver) claiming “gross

negligence or intoxication.” The question was whether comparative fault

applied to gross negligence and intoxication.

The court discussed the history of Oregon’s comparative fault provisions

and explained that the 1975 amendments were intended to cover gross

negligence by intoxication under the guest passenger statute.

“It is our opinion that SB 797 was intended from the outset to provide that comparative fault principles were to apply in actions premised on gross negligence, and that the revision which substituted the term ‘fault’ for the reference to ‘negligence or gross negligence’ was designed not to exclude actions based on gross negligence, but rather to include such actions, as well as any other actions based on tortious conduct, however described, in which contributory negligence is an appropriate defense.”

35

Id. at 17. Morehouse v. Haynes, 350 Or 318, 323, 253 P3d 1068, 1071 (2011)

(“Gross negligence and recklessness were synonymous under the guest

passenger statute.”). Clearly, then, following Johnson, the conduct in this

case—nonintentionally causing an injury after driving a vehicle while

intoxicated—would be synonymous with “gross negligence” in 1975 and not a

bar to the comparative fault defense.

iv. The Court of Appeals has also drawn the line for comparative fault at intentional results.

The Court of Appeals also has drawn the line between

intentional/knowing acts and reckless/negligent conduct as the division for the

applicability of comparative fault. See Shin v. Sunriver Prepatory School, Inc.,

199 Or App 352, 379, 111 P3d 762 (2005) (holding that comparative fault did

not apply to an intentional tortfeasor, based in part on the recognition that

negligence was not a defense to “intentional misconduct” at common law);

Hampton Tree Farms, 158 Or App at 395 (same).

In Sunriver, the plaintiff, an international student, brought an action

against a private boarding school complaining, in part, that the school was

negligent in failing to adequately supervise her during her father’s visit that

resulted in her rape. Id. at 364. Among other defenses, the boarding school

argued that any damages it was liable for should be offset by the father’s

36

comparative fault—that is, his contributions to the damages he caused by

committing intentional rape. Id. at 372.

The court conducted a comprehensive review of Oregon’s comparative

fault statutes and concluded that “references to ‘fault’ in ORS 31.600 and

related statutes do not encompass intentional conduct to which contributory

negligence was not a defense[.]” Id. at 379. The court based its reasoning in

large part on this court’s prior interpretation of the statute in Johnson, discussed

above. In explaining Johnson, the court noted that this court had found a

legislative “intent to extend comparative fault to all situations in which the

plaintiff must prove defendant’s gross negligence” but not including “willful or

intentional misconduct.” Id. at 376.

Consequently, this court’s cases, the Court of Appeals cases, and the

common law development of contributory negligence draw a principled line

between what would be intentional/knowing conduct and reckless/negligence

acts in criminal law. On one side, an individual who intentionally or wantonly

causes an injury would be barred from relying on comparative fault in a

restitution proceeding. On the other hand, however, if the individual did not

intend to cause the damages or injuries and acted with only a negligent or

reckless mental culpability (“gross negligence”), then comparative fault

principles would apply at the underlying restitution hearing. The latter

circumstance describes this case.

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IV. In 2005, the legislature removed the trial court’s discretion in considering external factors unrelated to the questions of damages (such as the defendant’s ability to pay) for purposes of imposing restitution, but it did not alter the trial court’s role and authority to “determine” the “reasonable and necessary” amount of “economic damages” in the first instance.

In 1977, the Oregon legislature created a restitution scheme giving the

trial court authority to “determine” the amount of “pecuniary damages,” and

also granting broad discretion whether to actually order or impose that amount.

Or Law ch 371 § 2 (1977) (“When a person is convicted of criminal activities

which have resulted in pecuniary damages, in addition to any other sentence it

may impose, the court may order that the defendant make restitution to the

victim.”).

The legislature included the following “external factors” related to

defendant’s circumstances for the court to consider when exercising its

discretion: (1) the defendant’s financial resources; (2) ability to pay; and (3)

rehabilitative effect of the restitution order. Former ORS 137.106(2); See

Edson, 329 Or at 135 (holding that the court must consider the external factors

related to defendant’s circumstances “in deciding the amount, duration, and

conditions of payment of restitution.”).

In 2003, the legislature passed Senate Bill (SB) 617, amending ORS

137.106 to make the court’s decision to impose restitution mandatory rather

than discretionary. Or Laws 2003 ch 670 § 1. The bill did not alter the court’s

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authority to “determine” the reasonable amount of damages in the first instance,

but it did remove the court’s discretion to consider those external factors

unrelated to the question of damages. Testimony and Minutes, House Judiciary

Committee, SB 617, May 20, 2003 (statement of Attorney General Hardy

Myers explaining that “most important” proposal in SB 617 is that “the

financial condition of the offender is no longer a consideration of restitution to

the victim.”).

Writing in support of the bill, District Attorney Michael Schrunk

captured the purpose of the legislation:

“Under the current situation [meaning the 1977 restitution statute], victims routinely see the court order only a fraction of the true amount of their loss after the court estimates the defendant’s or juvenile offender’s ability to pay. Restitution should be ordered based on the victim’s loss, not on the offender’s ability to pay.”

Exhibit M, House Judiciary Committee, SB 617, March 25, 2003

(statement by Multnomah County District Attorney Michael Schrunk).

Notably, the legislature did not remove or limit the trial court’s authority

to “determine” restitution or alter what considerations would be relevant for that

determination. Instead, the basic framework of the statue remained the same:

(1) the district attorney investigates and presents evidence of damages; (2) the

defendant has the ability to object and request a hearing; (3) the court

determines the amount of recoverable “economic damages” based on civil law

concepts; and (4) the court imposes that “full amount as determined,” without

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discretion to consider external circumstances related to defendant’s ability to

pay. ORS 137.106 (emphasis added).

Thus, contrary to the trial court’s and Court of Appeals reasoning, the

phrase “full economic damages as determined by the court” did not alter the

trial court’s role and authority to assess the “reasonable and necessary” amount

of “economic damages” in the first instance. Rather, it simply limited the

court’s discretion in reducing damages based on external factors after the court

made it determination.

a. The plain text of ORS 137.106 establishes that the legislature gave the trial courts broad authority to “determine” a “reasonable and necessary” amount of “economic damages” for purposes of imposing restitution under ORS 137.106.

First, as noted above, the legislature set out a process and order of

operation for the recovery of restitution which demonstrates that the court

makes its “determination” of the amount of damages, before it then imposes

that “determined” “full amount.” The statute—with the order of operation

inserted—reads:

“When a person is convicted of a crime, or a violation as described in ORS 153.008(Violations described) that has resulted in economic damages, (1) the district attorney shall investigate and present to the court, at the time of sentencing or within 90 days after entry of the judgment, evidence of the nature and amount of the damages. The court may extend the time by which the presentation must be made for good cause. (2) If the court finds from the evidence presented that a victim suffered economic damages, in addition to any other sanction it may impose, (3) the court shall enter a judgment or supplemental judgment requiring

40

that the defendant pay the victim restitution in a specific amount that equals the full amount of the victim’s economic damages as determined by the court.”

ORS 137.106(1)(a) (emphasis added).

As emphasized, the phrase “full amount” does not modify the court’s

factual findings or determination of damages. Accordingly, it is a stretch to

assume the addition of the words “full amount” changed that fundamental role

of the court in finding damages. Moreover, the legislature modified the phrase

“full amount” with a call back to the court’s earlier determination—“as

determined by the court.” Id. Goodwin v. Kingsmen Plastering, Inc., 359 Or

694, 702 (2016) (“It is a familiar rule that the meaning of words in a statute may

be clarified or confirmed by reference to other words in the same sentence or

provision.”). That past tense phraseology suggests that the legislature wanted

the court to impose the “full amount” of damages that the court had already

determined—applying civil law concepts. See, e.g., Brownstone Condo. Assn. v.

Brownstone Forest Hts., 358 Or 223, 232, 363 P3d 467 (2015) (the legislature’s

use of a certain verb tense “can be a significant factor”).

Second, by using the term “determined” in the statute, the legislature

gave the court broad and extensive authority to use its judgment to arrive at a

reasoned decision. The word “determine” ordinarily means “to settle a question

or controversy about: decide by judicial sentence * * * to come to a decision

concerning as the result of investigation or reasoning.” Webster’s Third New

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Int’l Dictionary 616 (unabridged ed 2002) (emphasis added). Clearly, then,

consistent with that term, the legislature envisioned the court “settling a

controversy” and arriving at “a reasoned decision.” Id. In short, the legislature

contemplated the court’s role as weighing the state’s evidence against

defendant’s objection and defenses. Nothing about the court’s express role in

“determining economic damages” appears even slightly to prohibit a defendant

from challenging the amount of restitution the state is seeking or from raising

defenses, such as comparative fault, if applicable.

Third, the legislature tasked the state with presenting “evidence of the

nature and amount of damages.”5 ORS 137.106(1)(a) (emphasis added). The

word “nature,” contemplates a holistic consideration of the totality of the

circumstances, which would include the victim’s conduct. Webster’s at 1507

5 In 1983, the legislature further fine-tuned the procedural

mechanisms for conducting a restitution hearing by requiring that the district attorney investigate and present evidence of “the nature and amount of damages to the trial court before the time of sentencing.” Or Laws 1983 ch 724, § 1. That same language still appears in the current version of the statute. The 1983-legislature indicated that the change was intended to give sentencing courts the information they needed to determine accurately the damages at issue so that they could make informed decisions regarding whether and how to order restitution. See, e.g., SB 520 (1983) Exhibit P (Letter from Circuit Court Judge Alan Bonebrake proposing the text at issue and explaining its potential utility). Judge Bonebrake explained in his written testimony that the requirement would help victims accomplish the legitimate goal of obtaining compensation for damages while safeguarding “the rights guaranteed to criminal defendants.” Id.

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(defining “nature,” in the relevant sense, as “the essential characteristic or

quality of something.”). In addition, the inclusion of the word “nature” in

conjunction with the phrase “amount of damages” makes the restitution process

more comprehensive than a simple presentation of receipts. Rather, it is

consistent with defendant’s interpretation that the legislature expected the trial

court to “determine” the underlying nature of the plaintiff’s damages, which

might include the plaintiff’s own negligence in causing some of the injury.

Finally, the legislature allowed defendant to “object” to the restitution

and request a hearing. ORS 137.106(5) (“If the defendant objects to the

imposition, amount or distribution of the restitution, the court shall allow the

defendant to be heard on such issue at the time of sentencing or at the time the

court determines the amount of restitution.”). The legislature’s invitation to a

defendant to “object” would be toothless, if the legislature did not expect the

defendant to challenge the amount of restitution. Compare State v. Stalheim,

275 Or 683, 552 P2d 829 (1976) (rejecting the state’s invitation to construe an

early version of the restitution statute broadly, because the statute did not

provide the defendant with a formal judicial hearing to contest damages or a

precise mechanism for the court to assign the value of losses) with State v.

Dillon, 292 Or 172, 176 n 2, 178, 637 P2d 602 (1981) (explaining that the 1977

legislature accepted the Stalheim-court’s invitation to adopt a broader statutory

scheme and “extended” the court’s suggestions in Stalheim “in that the

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defendant is entitled to be heard on the imposition as well as the amount of

restitution.”).

CONCLUSION

This court should reverse the judgment of the Court of Appeals and

remand this case to the trial court for a new sentencing hearing.

Respectfully submitted, ERNEST G. LANNET CHIEF DEFENDER CRIMINAL APPELLATE SECTION

OFFICE OF PUBLIC DEFENSE SERVICES ESigned ________________________________ JOSHUA B. CROWTHER OSB #032998 CHIEF DEPUTY DEFENDER Joshua.Crowther@opds.state.or.us Attorneys for Petitioner on Review Jorge Gutierrez-Medina

CERTIFICATE OF COMPLIANCE WITH ORAP 5.05 Brief length I certify that (1) this brief complies with the word-count limitation in ORAP 5.05 and (2) the word-count of this brief is 10,385 words. Type size I certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and footnotes.

NOTICE OF FILING AND PROOF OF SERVICE

I certify that I directed the original Petitioner's Corrected Brief on the Merits to be filed with the Appellate Court Administrator, Appellate Courts Records Section, 1163 State Street, Salem, Oregon 97301, on June 13, 2018. I further certify that, upon receipt of the confirmation email stating that the document has been accepted by the eFiling system, this Petitioner's Corrected Brief on the Merits will be eServed pursuant to ORAP 16.45 (regarding electronic service on registered eFiler) on Benjamin Gutman #160599, Solicitor General, attorney for Plaintiff-Respondent.

Respectfully submitted, ERNEST G. LANNET CHIEF DEFENDER CRIMINAL APPELLATE SECTION OFFICE OF PUBLIC DEFENSE SERVICES ESigned ________________________________ JOSHUA B. CROWTHER OSB #032998 CHIEF DEPUTY DEFENDER Joshua.Crowther@opds.state.or.us Attorneys for Petitioner on Review Jorge Gutierrez-Medina