Miller v. Agripac, Inc.

Where “injury to the person of another [is] committed in a ‘wanton’ manner, meaning the doing of an intentional act of an unreasonable character in disregard of a risk known to the actor, or so obvious that he must be taken to have been aware of it and so great as to make it highly probable that harm would follow. . . contributory negligence is no defense.” Cook v. Kinzua Pine Mills Co. et al, 207 Or 34, 58-59 (1956).

Miller sued Kaiser Gypsum Company, Inc. for negligence, strict product liability, and loss of consortium following his exposure to asbestos-containing construction products that Kaiser sold in the 1960s. The jury rendered a verdict in Miller’s favor and the trial court entered a judgment awarding Miller $5,233,618 in damages. Kaiser appealed the judgment, arguing that (1) the jury instruction on “recklessness” was erroneous and they were entitled to a comparative fault defense, and (2) even if the “recklessness” instruction was not erroneous, the evidence was legally insufficient to prove that they acted recklessly. Where “injury to the person of another [is] committed in a ‘wanton’ manner, meaning the doing of an intentional act of an unreasonable character in disregard of a risk known to the actor, or so obvious that he must be taken to have been aware of it and so great as to make it highly probable that harm would follow. . . contributory negligence is no defense.” Cook v. Kinzua Pine Mills Co. et al, 207 Or 34, 58-59 (1956). Because the facts showed that Kaiser’s actions fell into the category of “wanton” or “reckless” negligence, they were not entitled to a comparative fault defense and the jury only needed to find that Kaiser intended to act, not that they intended to harm Miller. The evidence, when viewed in the light most favorable to Miller, supported the jury’s finding under those instructions. Therefore, neither the “recklessness” jury instruction nor the rendered verdict was erroneous. Affirmed.