 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Stokes v. Lundeen6/21/2000
ating those at the time of the accident, he would not issue a citation for violation of the "children are present" provision of ORS 811.105(2)(c)(A) (1995). Defendant objected to West's proposed testimony because "whether he would issue a citation is irrelevant," i.e., that such testimony would invade the court's province to "instruct the jury about what the law is." The court sustained that objection:
"I'm not going to allow the witness to be called because that [testimony] would be more of a legal interpretation rather than a factual interpretation. I can see myself considering very seriously at the end of this case in defining whether children are present as when they are in a school building or behind a permanent barrier."
Plaintiff subsequently moved for a "directed verdict" against specifications (a), (c), and (d) of defendant's comparative fault affirmative defense as being unsupported by any evidence. The court denied that motion. Plaintiff also moved for a "directed verdict" against specification (b), which alleged negligence per se for violation of ORS 811.105(2)(c)(A) (1995), on three grounds: (1) That statute, and particularly the phrase "children are present," was unconstitutionally vague; (2) defendant was not a member of the class of persons to be protected by that statute; and (3) there was no evidence that children were "present" within the meaning of the statute. The court rejected each of those arguments.
Thereafter, at plaintiff's request--and over defendant's objection--the court gave the following instruction concerning the meaning of "children are present":
"In this case, I instruct you that the phrase 'children are present' means children who are in areas where their safety could reasonably be endangered by motor vehicles passing through the school zone."
During deliberations, at the jury's request, the court repeated that instruction. The jury ultimately returned a special verdict, apportioning the parties' fault as 51 percent (plaintiff) and 49 percent (defendant).
On appeal, plaintiff raises three assignments of error. First, plaintiff asserts that the court erred in denying a directed verdict against defendant's negligence per se allegation under ORS 811.105(2)(c)(A) (1995). Second, the court erred in denying a directed verdict against defendant's other comparative fault specifications. Third, the court erred in excluding Deputy West's testimony that he would not have issued a citation under ORS 811.105(2)(c)(A) (1995). We reject each.
ORS 811.105(2)(c)(A) (1995) provides, in part:
"Any speed in excess of any of the following designated speeds is prima facie evidence of violation of the basic speed rule under ORS 811.100:
"* * * * *
"(c) Twenty miles per hour when passing school grounds or a school crosswalk * * * and;
"(A) Children are present."
Plaintiff first argues, as he did to the trial court, that the central phrase "children are present" is unconstitutionally vague: "It could mean almost anything." That vagueness, plaintiff contends, impermissibly invites arbitrary and discriminatory enforcement.
Whatever the abstract merits of plaintiff's challenge to the former statutory scheme, any defect--at least as to this plaintiff--was cured when the court gave plaintiff's requested instruction on the meaning of "children are present." See168 Or App at ___ (slip op at 4) (quoting instruction). Plaintiff acknowledges, necessarily, that that instruction was not vague. Thus, there was no potential for arbitrary application in this case.
Plaintiff next contends that defendant cannot invoke negligence p
Page 1 2 3 4 5 Oregon Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|