In State of Oregon v. Jorge Gutierrez-Medina, 365 Or 79 (2019), the Oregon Supreme Court of Oregon held that the trial court correctly refused to reduce the amount of restitution owed by defendant based on the victim’s comparative fault. In that case, the defendant in the underlying criminal case was convicted of driving under the influence of intoxicants and assault in the third-degree after striking a pedestrian with his car. The trial court ordered him to pay almost $155,000 in restitution for the victim’s medical expenses. The defendant appealed and the Court of Appeals and Oregon Supreme Court upheld the trial court’s refusal consider the victim’s comparative fault to reduce the restitution.

The Supreme Court reasoned that the civil law principle of comparative fault is not available to reduce judgments of restitution when the defendant acted with a degree of culpability for which the common law defense of contributory negligence would not be available. In the civil context, contributory negligence is not available to defendants who acted intentionally or in a manner that was wanton. Cook v. Kinzua Pine Mills Co. et al., 207 Or 34 (1956). The court in Cook defined the four categories of culpability as: (1) simple negligence; (2) gross negligence; (3) wantonness ;(4) intentionally causing personal injury. Id. at 42. The Supreme Court in Gutierrez-Medina held that under the common law, if a defendant’s conduct is characterized as at least wanton, then plaintiff’s contributory negligence is no defense and cannot be applied to reduce a judgment of restitution.

The determinative issue in assessing whether the principle of comparative fault applies is which of the Cook categories of conduct describes the mental state of a defendant. In a criminal case like Gutierrez Medina, the mental state described in the statute under which a defendant was convicted must be compared to the definitions of the four culpability categories. The Court divided wantonness into three categories for analysis: (1) the nature of the risk; (2) the degree of risk; (3) the degree of awareness with which the person acts in the face of the risk. Applying this analysis, civil law wanton conduct requires: (1) proof that a person’s act or failure to act would cause substantial bodily harm; (2) the person’s actions presented an unreasonable and highly probable risk of substantial bodily harm; (3) proof that the person was actually aware of and consciously disregarded the risk, or a reasonable person would have realized the risk. Taylor v. Lawrence, 229 Or 259, 264-65 (1961). Using this analysis, the Supreme Court in Gutierrez-Medina found that the culpability required for assault in the third degree was within the culpability range of wantonness, and the defendant was not entitled to assert the defense of comparative fault.

The analysis employed here is applicable in both civil and criminal matters to determine if contributory negligence is available as a defense.