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Stokes v. Lundeen6/21/2000
er se because she was not a member of the class meant to be protected under ORS 811.105(2)(c)(A) (1995) and because her injuries were not of the sort that that statute was meant to prevent. To establish comparative fault based on negligence per se, a defendant must show that (1) the plaintiff violated a statute; (2) the defendant was injured as a result of that violation; (3) the defendant was a "member of the class meant to be protected by the statute"; and (4) the injury that the defendant suffered "is of a type that the statute was enacted to prevent." Ettinger v. Denny Chancler Equipment Co., Inc., 139 Or App 103, 107, 910 P2d 420, rev den 324 Or 394 (1996); McAlpine v. Multnomah County, 131 Or App 136, 144, 883 P2d 869 (1994), rev den 320 Or 507 (1995).
Plaintiff's argument, in its starkest terms, is that, because the statute explicitly refers to "children," it must be interpreted to protect only children:
"The statute is quite specific: It applies only when children are present. The target class--indeed the only class the statute contemplates--are children. Unless a child is injured, there is no negligence per se.
"The same reasoning applies to the type of harm the statute seeks to prevent. The contemplated harm is a collision between a passing vehicle and an inattentive child. It does not include a collision between vehicles, both driven by focused adults, and who may or may not have anything to do with the school." (Emphasis in original; footnote omitted.)
Defendant responds that plaintiff's characterization of the statute's scope and purpose is too restrictive in that it fails to acknowledge that ORS 811.105(2)(c)(A) (1995) is merely a particular circumstantial "variation on the basic speed rule found in the preceding statute, ORS 811.100." Thus, defendant reasons, just as the "basic rule" is intended to protect Oregon motorists and pedestrians generally, so too is ORS 811.105(2)(c)(A) (1995):
"By slowing speeds near 'school grounds' or 'school crosswalks,' the statute recognizes that school zones are congested areas, like any other. They are areas where adults will cross more slowly with an eye on dawdling children. Along with children, crossing guards, parents, teachers, classified staff, and volunteer coaches will be exposed to the risk of speeding vehicles near school grounds. * * * It is a risk that is not limited to pedestrians, either. As congested areas, schools are the destinations for large school buses, small activity vans, teacher and staff vehicles, and scores of vehicles bringing children to class or after-school activities. Children and adults will be in those vehicles. All vehicle occupants, whether adults or children, are exposed to the same risk of injury when a vehicle speeds through a school zone. When one car stops to allow a child and parent to cross the road, the car's driver and passengers can all be injured by the speeding car that rear-ends them from behind. When a speeding car veers onto the grass to avoid a left-turning car, a teacher, coach, or parent may be the one injured as the adult jumps in the car's path to push the child away." (Footnote omitted.)
We agree with defendant. ORS 811.105(2)(c)(A) (1995), read in combination with ORS 811.100, confirms that the former merely describes circumstances bearing on the latter's application. ORS 811.100 reads, in part:
"(1) A person commits the offense of violating the basic speed rule if the person drives a vehicle upon a highway at a speed greater than is reasonable and prudent, having due regard to all of the following:
"(a) The traffic.
"(b) The surface and width of the highway.
"(c) The hazard at
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