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Filed: May 19, 2011

IN THE SUPREME COURT OF THE STATE OF OREGON

FRANCIS DALE MOREHOUSE,

Petitioner on Review,

v.

JAMES COLIN HAYNES,

Respondent on Review.

(CC 0609-09915; CA A136871; SC S058725)

On review from the Court of Appeals*

Argued and submitted March 3, 2011.

Kathryn H. Clarke, Portland, argued the cause for petitioner on review. Jess M. Glaeser, Portland, filed the brief.

Ralph C. Spooner, Spooner & Much, P.C., Salem, argued the cause for respondent on review. Dan R. Schanz and Melissa J. Ward filed the brief.

Kathryn H. Clarke, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.**

BALMER, J.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

De Muniz, C. J., concurred and filed an opinion.

*Appeal from Multnomah County Circuit Court, O. Meredith Wilson, Judge Pro Tempore, decided summary judgment motion; Dale Koch, Judge, signed the judgment. 235 Or App 482, 234 P3d 1024 (2010).

**Landau, J., did not participate in the consideration or decision of this case.

BALMER, J.

The issue in this case is whether the record before the trial court on summary judgment shows that there was no genuine issue of material fact that would provide a basis for a reasonable juror to find that defendant drove recklessly. Plaintiff was injured when his car collided with defendant's car. Plaintiff brought this action seeking economic and noneconomic damages. Because plaintiff was driving without insurance at the time of the collision, an Oregon statute bars him from recovering noneconomic damages unless he can prove that defendant's conduct that caused plaintiff's injuries met the statutory definition of reckless driving. See ORS 31.715(1), (5)(c) (so providing). Defendant moved for partial summary judgment on plaintiff's claim for noneconomic damages, and the trial court granted the motion, holding that no reasonable juror could conclude that defendant had driven recklessly. The parties settled the claim for economic damages, and the trial court, based on its summary judgment order, entered a general judgment in favor of defendant. Plaintiff appealed and, in a divided en banc opinion, the Court of Appeals affirmed. Morehouse v. Haynes, 235 Or App 482, 234 P3d 1024 (2010). For the reasons that follow, we reverse and remand to the trial court.

We take the facts from the summary judgment record and view those facts and all reasonable inferences that may be drawn from them in the light most favorable to plaintiff, the nonmoving party. Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or 329, 332, 83 P3d 322 (2004). Plaintiff was driving north on Highway 219 between Newberg and Hillsboro, and defendant was driving south on the same road when defendant's car crossed into the oncoming lane of traffic and struck plaintiff's car on a sharp curve. A yellow cautionary sign preceded the curve as defendant approached, showing a 90-degree turn to the left, followed by a 90-degree turn to the right.(1) A smaller yellow cautionary sign below the sign depicting the turns suggested a speed of 25 miles per hour.(2) Following the cautionary signs, and before the second turn (the right turn), three separate rectangular warning signs with right-hand arrows indicated the sharpness of that turn. The posted speed limit on Highway 219 is 45 miles per hour. As defendant was making the right turn, his car crossed the center line and collided with plaintiff's car.

The officer who took defendant's statement after the collision recorded that defendant

"said that he was going up the hill at 45 to 50 mph as he entered the curve. He looked down to attend his radio and when he looked up he was heading over the center line. He tried to brake but slid across into the opposite lane."

At his deposition, defendant testified that he had traveled the same route between Hillsboro and Newberg approximately 20 times in the month preceding the collision. Defendant stated that he knew that the portion of the road where the collision occurred was twisty and curvy and that he was aware that slow moving farm vehicles, bicycles, pedestrians, and other passenger vehicles used the highway. Regarding the curve where the collision occurred, defendant did not recall the sharpness of the curve from his previous trips on Highway 219 nor did he recall the cautionary speed sign, although he did remember seeing the right-hand arrows indicating the sharpness of the curve.

Regarding the collision itself, defendant testified:

"I was driving along and at the speed limit, and I looked down. I looked down for a second. I looked up and I realized the curve was coming up. I didn't feel it was a dire situation at all. I put the brakes on. I saw a curve develop. I was going in tangent with the curve and my brakes, and that's when I went across the line * * *."

Plaintiff, who admits that he was driving uninsured at the time of the collision, brought this action seeking economic and noneconomic damages. As noted, defendant filed a motion for partial summary judgment, asserting that ORS 31.715 barred plaintiff from recovering noneconomic damages because plaintiff was driving while uninsured.(3) Plaintiff responded that he could recover noneconomic damages under the exception set out in ORS 31.715(5)(c), which allows a plaintiff to recover noneconomic damages if the defendant was driving recklessly. The trial court granted defendant's motion, holding that no reasonable juror could conclude that defendant's driving was reckless, and subsequently entered judgment for defendant.

The Court of Appeals affirmed in a divided en banc opinion. The majority began by describing the applicable statutory scheme. Under ORS 31.715(1), an uninsured motorist may not recover noneconomic damages for injuries caused by another driver unless certain exceptions apply. One exception allows an uninsured plaintiff to recover noneconomic damages if the defendant was driving in a way that constitutes a violation of ORS 811.140,(4) which prohibits reckless driving.(5) A defendant violates ORS 811.140 if he or she "recklessly drives a vehicle upon a highway * * * in a manner that endangers the safety of persons or property." The definition of "recklessly," for purposes of ORS 811.140, is taken from the criminal code and focuses on whether the person is "aware of and consciously disregards a substantial and unjustifiable risk." ORS 161.085(9).

The majority next observed that no appellate case had previously applied the "reckless driving" exception to the ban on the recovery of noneconomic damages in ORS 31.715. In the absence of directly relevant case law, the majority relied on cases evaluating claims brought under Oregon's now-defunct guest passenger statute, which barred a guest passenger's claim against the driver unless the driver's conduct constituted gross negligence. See ORS 30.115 (1977), amended by Or Laws 1979, ch 866,