It is well established in Oregon that a plaintiff’s mere negligence cannot be compared to a defendant’s higher culpable conduct, such as reckless, wanton, or willful conduct. Hampton Tree Farms, Inc. v. Jewett, 158 Or. App. 376, 393–94, 974 P.2d 738, 747. But simple negligence can be compared to the higher culpability standard of gross negligence. Id. So, if we were to draw a line on the continuum of culpability, comparative fault would stop right after gross negligence; a defendant with a higher culpable mental state than that cannot avail themselves of Oregon’s defense of comparative fault. Or can they? Lawyers in products liability know all too well that reckless conduct on the part of the plaintiff can be a defense to strict liability, but it seems rarely used as a defense to allegations of reckless or wanton conduct in negligence cases. Is it possible that on the right facts, and with the right pleading, the defense of contributory negligence can survive allegations that the defendant acted recklessly?
What if both parties are reckless? Can we compare like to like? The Restatement Second of Torts says yes: “A plaintiff whose conduct is in reckless disregard of his own safety is barred from recovery against a defendant whose reckless disregard of the plaintiff’s safety is a legal cause of the plaintiff’s harm.” Restatement (Second) of Torts § 503(3). Another treatise states this principle in detail:
“c. In general, the effect of the plaintiff’s reckless disregard of his own safety is the same as that of his ordinary contributory negligence. The exception to this rule, stated in Subsection (3), is that where the plaintiff’s conduct is itself in reckless disregard of his own safety, it bars his recovery not only from a defendant who has merely been negligent, but also from one who has acted in reckless disregard of the plaintiff’s safety. The greater fault in the one case is balanced against the greater fault in the other…the plaintiff’s voluntary assumption of the risk will bar his recovery for reckless conduct of the defendant. § 10:21. Defense in actions not based on ordinary negligence—Willful and wanton conduct, 1 Modern Tort Law: Liability and Litigation § 10:21 (2d ed.)”
One might ask, if recklessness is understanding a risk and choosing to persist in the conduct that causes the risk, isn’t that the same as alleging that a party “assumed the risk,” as that term is understood in ORS 18.475(2)? After all, Modern Tort Law, above seems to characterize the defense as both a kind of contributory negligence and a form of assumption of the risk. The Oregon Supreme Court has asked and answered this question. In the perhaps overlooked case Bacceleri v. Hyster Co., the court queries: “Did this latter statute [ORS 18.470, establishing comparative fault regime] prohibit comparing the conduct of the defendant with conduct of the plaintiff, which conduct was sometimes labeled assumption of the risk but was in reality a species of contributory negligence?” 287 Or. 3, 354, P.2d 351 (1979).
Notice the wording – the plaintiff’s alleged reckless conduct is styled as “in reality” a form of contributory negligence. The Bacceleri court goes on to assert that “the legislative history makes it quite clear that the legislature did not intend to prohibit the comparison with such conduct.”
The Court quotes from a memorandum dated May 28, 1975, from State Representative David Frohnmayer to the House Judiciary Committee pertaining to Senate Bill 797, became ORS 18.475: contains this comment on § 5 of Senate Bill No. 797:
“Section 5 abolishes the doctrine of implied assumption of the risk. Ritter v. Beals, 225 Or. 504 [358 P.2d 1080] (1961) subsumed under contributory negligence the form of assumption of the risk in which plaintiff voluntarily and unreasonably encounters a known risk; this type of assumption of the risk is unaffected by Section 5 and should be pled as contributory negligence.” Id.
Still further, the Judiciary Committee at the time observed that “plaintiff’s conduct may often be characterized in a number of ways…contributory negligence as alleged in the statute should be broadly construed to include…the form of contributory negligence which…commonly passes under the name of assumption of the risk.” Id.
The court in Sandford v. Chevrolet Div. of Gen. Motors affirmed the principle that recklessness, a heightened form of negligence, is now subsumed within contributory negligence analysis: “[A]ssumption of the risk in the form of unreasonably proceeding to encounter a known danger, which henceforth should be treated like any other contributory negligence.” 292 Or. 590, 596, 642 P.2d 624, 627 (1982).
So, if recklessness is alleged against a defendant, it may be worth it to consider whether the plaintiff’s conduct could also be characterized as reckless, potentially keeping the defense of comparative fault alive well into litigation and reducing damages even when there has been a finding of recklessness on the part of the defendant. Some jurisdictions have characterized the defense as “comparative misconduct.” The term has no hits in Oregon on Westlaw. Perhaps it is time to add it to the lexicon of defenses in Oregon. It describes a defense that has always existed in products liability, and which, according to Sandford and Bacceleri, has long been subsumed within the broad term “contributory negligence,” and later “comparative fault.” It describes that conduct which is “unreasonably proceeding to encounter a known danger,” which might formerly have been subject to analysis under assumption of the risk.
 Abolishing Assumption of the Risk.
 8 Am. Jur. 2d Automobiles § 559, citing Williams v. Carr, 68 Cal. 2d 579, 68 Cal. Rptr. 305, 440 P.2d 505 (1968); Lane v. Bobis, 340 Ill. App. 10, 91 N.E.2d 106 (3d Dist. 1950); Lynch v. Alexander, 242 S.C. 208, 130 S.E.2d 563 (1963).