NO. 82-324 

IN THE SUPREllE COURT OF THE STATE OF MOPJTAPJA 

1983 

RITA DERENBURGER, Guardian Ad Litem 

of RAYMOND DEMNBURGER, a minor, 

Plaintiff and Respondent, 

IIURBERT JOHN LUTEY, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Deer Lodge, 

The Honorable Robert J. Boyd, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lyrnan II. Eennett, 111, argued, Bozeman, P.lontana 

For Respondent: 

Poore, Roth & Robinson, Butte, Montana 

Rick Anderson & Urban Roth argued, Butte 

Submitted: March 24, 1983 

Decided: November 17, 1983 

Filed: NOV 11 7983 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Appellant Hurbert Lutey appeals a Deer Lodge County 

jury verdict awarding Raymond Derenberger, respondent, 

$110,000 in damages he suffered in an automobi-le accident. 

Respondent was riding as a passenger in his own vehicle which 

the appellant was driving. We reverse and remand. 

On November 5, 1979, Ray Derenberger, Hurb Lutey and 

their girlfriends went to a movie in Anaconda. They drove in 

Ray's vehicle. Prior to and during the movie, Ray, Hurb and 

one of the girls consumed approximately eighteen beers. At 

about 10:OO p.m., before the movie was over, Ray and Hurb 

left the theater to purchase more beer. Initially, Ray 

drove; however, upon Hurb's request, he relinquished control 

of the vehicle to Hurb. There was testimony indicating that 

Ray told Hurb to "see what it [the car] would do." Hurb 

testified that they were going quite fast through town. 

The vehicle was traveling down Park Street, through a 

25 m.p.h. zone, at approximately 55 to 60 miles per hour. 

The car crossed some railroad tracks that were laid on a 

grade higher than Park Street, causing the car to raise 

somewhat, possibly even leave the ground. Hurb lost control 

of the vehicle, and it struck a house on 1100 East Park. At 

the time of the accident, the road was drv and the record 

indicates that the car was in good condition. 

As a result of the accident, Ray suffered a severe 

brain concussion which caused organic brain damage, broken 

facial bones, a broken arm, a broken leg and several scrapes 

and lacerations. Hurb pleaded guilty to driving while 

intoxicated and was fined $300. At the time of the accident 

Ray was sixteen yers old and Hurb was nineteen. 
Ray's mother brought an action for Ray as his guardian 

ad litem. She alleged that Hurb's reckless, gross, willful 

and wanton negligence in driving the vehicle caused Ray's 

in juries. 

At trial, Ray's lawyer introduced evidence that Hurb 

had pleaded guilty to two separate charges of "endangering 

the welfare of children" by supplying them with intoxicating 

beverages. Hurb's counsel made a motior - 

in limine to prevent 

admission of this evidence on the grounds of irrelevance and 

prejudice. In response to the motion, Ray's counsel stated: 

"Your Honor, we are asking for punitive 

damages in this case. The two incidents 

I wish to put in evidence throuqh 

cross-examination if he admits 

independently that the Defendant one 

month earlier had been arrested for 

buying intoxicating beverages for an 

underage girl, some 16 years of age, 

and in an automobile. He plead guilty 

to that offense and was fined $75.00. 

Approximately one month after this 

accident, when obviously he purchased 

intoxicating beverages for a minor, he 

again was charged with, convicted and 

plead guilty to the same offense. 1: 

submit to the Court that under the 

criteria which relate to and the 

material facts which relate to the 

issue of punitive damages, that the 

actions of the Defendant on both the 

occasion in question and like conduct 

are close enough in time to show in 

effect a total disregard for the type 

of conduct he engaged in that eveninq, 

i.e., purchasing intoxicating beverages 

for a minor, is relevant on that issue 

as going to the amount of damages and 

the willfulness and wantonness of that 

conduct on that particular evening." 

The motion was denied and the evidence was admitted. 

By special verdict the jury found that Hurb was guilty 

of willful or wanton misconduct. They also found that Ray 

was contributorily negligent in the amount of 25 percent. 

However, the court instructed the jury that if Hurb's 

misconduct was willful or wanton, ordinary contributory 
negligence would not reduce Ray's recovery (Instruction No. 

14). Thus, the jury awarded $100,000 in total damages and 

$10,000 in punitive damages. 

Hurb Lutey brings this appeal and raises two issues for 

our consideration: 

1. Was it error for the District Court to instruct the 

jury that respondent's recovery should not be reduced by his 

contributory negligence if the appellant is guilty of wil-lful 

or wanton misconduct? 

2. Was i.t error for the District Court to allow the 

admission of evidence regarding the appel-lant's guilty pleas 

to charges of supplying liquor to minors? 

Lutey first argues that the District Court erred by 

instructing the jury that Derenberger's recovery could not be 

reduced by his own contributory negligence if they found 

Lutey guilty of willful or wanton misconduct. He contends 

that the legislative enactment of the comparative negligence 

doctrine abolished this rule; thus, Derenberger's own 

contributory negligence should reduce his recovery. Support 

for this is found in the fact that the harshness of the 

all-or-nothing rule has been eliminated by comparative 

negligence. Further, plaintiffs can recover punitive 

damages, which cannot be reduced by their own negligence. 

Derenberger asserts that Montana has always 

distinguished ordinary or gross negligence from willful or 

wanton misconduct. Hence, the use of the word "negliqence" 

in the comparative negligence statute indicates that the 

legislature did not intend a comparison between plaintiff's 

negligence and defendant's willful misconduct to reduce 

plaintiff's recovery. 
We hold that the comparative negligence statute does 

not contemplate a comparison between ordinary negligence and. 

willful or wanton misconduct. 

The comparative negligence statute mandates that the 

negligence of the plaintiff does not bar recovery so long as 

it is not greater than that of the defendant. However, his 

recovery is reduced by his own contributory negligence. 

Section 27-1-702, MCA. The statute reads: 

"Contributory negligence shall not bar 

recovery in an action by any person or his 

legal representative to recover damages 

for negligence resulting in death or 

injury to person or property if such 

negligence was not greater than the 

negligence of the person against whom 

recovery is sought, but any damages 

allowed shall be diminished in the 

proportion to the amount of negligence 

attributable to the person recovering." 

The definition of negligence is found in section 

1-1-204(4), MCA, which reads: 

"'Neglect', 'negligence', 'negligent', and 

'negligently' denote a want of the 

attention to the na.ture or probable 

consequences of the act or omission that a 

prudent man would ordinarily give in 

acting in his own concerns." 

On the other hand, the term "will.fully" has a different 

meaning. It is defined in section 1-1-204(5), MCA: 

"'Willfully', when applied to the intent 

with which an act is done or omitted, 

denotes a purpose of willingness to commit 

the act or make the omission referred to. 

It does not require any intent to violate 

the law, to injure another, or to acquire 

any advantage." 

Furthermore, section 27-1-701, MCA, separately 

establishes that one is liable for willful acts as well as 

negligent acts. The statute reads: 

"Everyone is responsible not only for the 

results of his willful acts but also for 

an injury occasioned to amother by his 

want of ordinary care or skill in the 
management of his property or person 

except so far as the latter has willfully 

or by want of ordinary care brought the 

injury upon himself." 

The defense clause of this statute does not change our 

decision a-s we interpret it to limit a comparison of 

plaintiff's acts only when defendant has committed acts of a 

similar kind. When section 27-1-701, MCA, accompanied 

contributory negligence, this Court held that a plaintiff's 

ordinary contributory negligence would not bar recovery for 

in juries from the defends-nt ' s willful or wanton misconduct. 

Wollaston v. Burlington Northern, Inc. (Mont. 1980), 612 P.2d 

1277, 37 St.Rep. 1015; Mallory v. Cloud (1975), 167 Mont. 

115, 535 P.2d 1270; Mihelich v. Butte Electric Railway Co., 

et al. (1929), 85 Mont. 604, 281 P. 540. Further, under 

comparative negligence, this would remain so because section 

27-1-702, MCA, mandates a comparison of negligence, which we 

find is separate and distinct from willful or wanton 

misconduct. 

The Nevada Supreme Court interpreted the term "gross 

negligence" in Nevada's comparative negligence statute in 

Davies v. Butler (1979), 95 Nev. 763, 602 ~.2d 605. They 

found that the legislature, by including the term "gross 

negligence" in the comparative negligence statute, determined 

that the concept of gross negligence is comparable to and 

subject to comparison with ordinary negligence, but left the 

law unchanged with regard to conduct in which defendant's 

culpability more closely approaches that of one who 

intentionally inflicts damage. Under this interpretation, 

our statute which only applies to "negligence" would not 

encompass willful or wanton misconduct as gross negligence is 

a more aggrava.ted form of negligence. 
The above statutory construction indicates to us that 

mere negligence and willful and wanton misconduct are 

different in kind, rather than degree. Consequently, we find 

that the legislature did not intend that they be compared 

under Montana's comparative negligence statute. 

This Court has distinguished the two terms on several 

occasions. In Cashin v. Northern Pacific Railway Co. (1934), 

96 Mont. 92, 28 P.2d 862, we were to determine whether the 

evidence of the case provided a basis for exemplary damages. 

Finding it did, we concluded that ". . . in this jurisdiction 

something more than gross negligence must be shown in order 

to justify such an award; that is, the act must be wanton 

. . . or willful, or warrant the designation of that act as 

malicious." 96 Mont. at 111, 28 P.2d at 869. Exemplary 

damages were warranted on the theorv that the act was 

knowingly done, in reckless disregard of the rights of 

others. The fact that willful or wanton misconduct 

establishes a basis for exemplary damages indicates to us 

that such misconduct is distinct from negligence. See also, 

Hannigan v. Northern Pacific Rv. Co. (1963), 142 Mont. 335, 

384 P.2d 493. 

Other jurisdictions have come to a similar conclusion. 

In a personal injury action the Oregon Supreme Court held 

that wanton misconduct is different in kind, not merely 

degree, from ordinary or gross negligence. It further 

concluded that one guilty of wanton misconduct is subject to 

liability greater in scope than that which applies to 

negligent persons, and contributory negligence is no defense. 

Falls v. Mortensen (1955 ), 207 Or. 130, 295 P.2d 182. 

In a wrongful death action against the City of Seattle, 

the Washington Supreme Court found that willful or wanton 
misconduct d.oes not arise out of negligence and thus is not 

within the meaning of the term negligence. Adkisson v. City 

of Seattle (1953), 42 Wash.2d 676, 258 P.2d 461. The 

Washington court stated: 

". . . Negligence and willfulness imply 

radically different mental states. 

Negligence conveys the idea of neglect or 

inadvertence, as distinguished from 

premeditation or formed intention. An act 

into which knowledge of danger and 

willfulness enter is not negligence of any 

degree, but is willful misconduct. As 

long as the element of inadvertence 

remains in conduct, it is not properly 

rega.rded was willful. Wanton misconduct 

is positive in nature, while mere 

negligence is materially negative." 258 

P.2d at 465. 

Prosser distinguishes the two concepts of culpability. 

In defining willful, wanton and reckless conduct, he states, 

" [tl hey have been grouped together as an. aggravated form of 

negligen.ce, differing - in 2uality rather than degree from 

ordinary lack --- of care." W. Prosser, Torts § 34 at 184 (4th 

~d. 1971). (Emphasis added.) 

We find the above authority persuasive and further 

indication that willful or wanton misconduct is different in 

kind from negligence. The term negligence in the comparative 

negligence statutes does not encompass willful or wanton 

misconduct and in an action based on such conduct the 

comparative negligence statute is inapplicable and the 

plaintiff's own contributory negligence should not reduce his 

recovery. V. Schwa.rtz, Comparative Negligence, S 5.3 at 107 

Prior to the enactment of comparative negligence, 

Montana clearly followed the rule that contributory 

negligence of the plaintiff is no bar to his recovery for 

injuries caused by willful or wanton misconduct of the 
defendant. Wollaston v. Burlington Northern, Inc., supra; 

Mallory v. Cloud, supra; Mihelich v. Butte Electric Railway 

Co., supra. Since comparative negligence was established to 

ameliorate the harshness of the contributory negligence 

defense, we believe that allowing assertion of the defense 

under the statute when it would be no defense prior to 

enactment of comparative negligence would thwart this 

legislative purpose. Schwartz, supra, S 5.3 at 107. This 

same rationale prevents reduction of plaintiff's recovery 

when the defendant's acts are willful. 

In a wrongful death action the Supreme Court of Wyoming 

determined that the plaintiff's recovery would not be reduced 

by his own negligence since the defendant's actions were 

willful and wanton. Danculovich v. Brown (Wyo. 1979), 593 

P.2d 187. The court said: 

"The conclusion, then, is that S 1-1-109 

does not mandate reduction of damages on 

the basis of comparative negligence of the 

plaintiff if defendant's misconduct is 

willful and wanton. To hold otherwise 

would. be inconsistent with the purpose 

behind the doctrine of comparative 

negligence. The doctrine is designed to 

ameliorate the harshness of the 

contributory negligence bar. The court 

decisions which have not applied the 

contributory negligence bar to willful and 

wanton misconduct had the same purpose. 

Damages resulting from wil-lful and wanton 

misconduct are not ' damages for 

negligence' as that term is used in 

5 1-1-109." 593 P.2d at 194. 

In Davies v. Butler, supra, the Nevada High Court found 

that a defenda.nt whose culpability is so close to intentional 

wrongdoing should not have the benefit of the contributory 

negligence defense. The court concluded that this rule was 

unchanged by comparative negligence. 

Lutey next contends that the evidence of guilty pleas 

to contributing to the delinquency of minors is irrelevant. 
Derenberger asserts that punitive damages can be 

awarded to punish the appellant for malicious or wrongful 

acts and malice can be implied from a course of conduct that 

is known to be harmful or unlawful. Further, in awarding 

punitive damages, the jury may take into account whether 

Luteyls acts were of such a nature as to amount to a reckless 

disregard of the rights of others. Essentially, Lutey should 

be held to know that his prior criminal activity was harmful 

or unlawful. Thus, the malice necessary to a-ward punitive 

damages can be implied. 

We hold that the evidence of Luteyls prior guilty pleas 

is irrelevant with respect to (1) proving that his misconduct 

on the night of the accident was willful or wanton, and (2) 

establishing a basis for punitive damages. Consequently, we 

reverse and remand the case for further proceedings. 

It is well settled that all relevant evidence is 

admissible and irrelevant evidence is inadmissible. Rule 

402, M0nt.R.Evi.d. Relevant evidence is defined by Rule 401, 

Mont.R.Evid. It states: 

"Relevant evidence means evidence having 

any tendency to make the existence of any 

fact that is of consequence to the 

determination of the action more probable 

or less probable than it would be without 

the evidence. Relevant evidence may 

include evidence bearing upon the 

credibility of a witness or hearsay 

declarant." 

This Court has adopted the test of relevance stated by 

the Commission on Evidence. The test is: 

". . . whether an item of evidence will 

have any value, as determined by logic and 

experience, in proving the proposition for 

which it is offered. The standard used to 

measure this acceptable probative value is 

' any tendency --- to make the existence of any . . . more probable -- or less prbbable __ 

This 

it would be without - the evidence.' 

standard rejects more stringent ones 
which call for evidence to make the fact 

or proposition for which it is offered 

more probable than a.ny other. It is meant 

to allow wide admissibility of 

circumstantial. evidence limited only by 

Rule 403 or other special relevancy rules 

in Article IV." State v. Fi.tzpatrick 

(Mont. 1980), 606 P.2d 1343, 1354, 37 

St.Rep. 194, 207. (Emphasis added.) 

Respondent was attempting to prove that appellant was 

d.riving the vehicle recklessly, at a high rate of speed, and 

that such action was willful and wanton misconduct, and 

further, that such misconduct was the cause of respondent's 

injuries. Evidence of appellant's prior criminal activity 

does not have the tendency to make the existence of 

defendant's alleged willful a.nd wanton misconduct while 

driving a vehicle on the night of November 5, 1979, more or 

less probable. In other words, the issue was not whether 

appellant was supplying liquor to minors but whether his 

actions were in wi1.lful and wanton disregard for others. 

Hence, evidence regarding the defendant supplying alcohol to 

minors is irrelevant. 

Punitive damages can be awarded in accordance with 

section 27-1-221, MCA. The statute reads: 

"When exemplary d.amages allowed. In any 

action for a breach of obligation not 

arising from contract where the defendant 

ha.s been guilty of oppression, fraud, or 

malice, actual or presumed, the jury, in 

addition to the actual damages, may give 

da.mages for the sake of example and by way 

of punishing the defendant." 

In the case at bar we conclude that evidence of 

appellant's prior guilty pleas was also irrelevant with 

respect to establishing a basis for punitive damages. The 

law is clear that to award punitive damages oppression, fraud 

or malice must be a.ssociated with the act complained of. 

Here, the act complained of was appellant's operation of the 
vehicle in a reckless fashion. The fact that appellant has 

purchased alcoholic beverages for minors is irrelevant to the 

act complained of and thereby irrelevant to establishing a 

basis for punitive damages. It did not have a tendency to 

make any requisite factors for punitive damages more or less 

probable. 

Reversed and remanded for a new trial. 

VA~$!& ,A@ 

Chief Justice 

We concur: 

Justices 
Mr. Justice L.C. Gulbrandson, dissenting and specially 

concurring: 

I concur in the holding that it was reversible error 

to allow admission of evidence regarding appellant's guilty 

pleas to charges of supplying liquor to minors. 

I respectfully dissent from the holding that 

respondent's recovery should not be reduced by his 

contributory negligence, if appellant is guilty of willful 

or wanton misconduct. 

In Lawrence v. Harvey (Mont. 1980), 607 P.2d 551, 556, 

37 St.Rep. 370,374, this Court stated: 

"Montana follows the rule of 

statutory construction that where a 

statute is adopted form a sister state, 

it is ordinarily presumed that the 

legislature borrows the construction 

placed upon it by the highest court of 

the state from which it is borrowed, 

although such construction is not binding 

upon this Court. Continental Oil Co. v. 

Board of Labor Appeals (1978), Mont., 582 

P.2d 1236, 1240, 35 St.Rep. 1153, 1156; 

J.T. Miller Co. v. Made1 (1978), Mont., 

575 P.2d 1321, 1322, 35 St.Rep. 263, 265; 

State v. Murphy (1977), Mont., 570 P.2d 

1103, 1105, 34 St.Rep.1174, 1177; State 

ex rel. Mankin v. Wilson (1977), Mont., 

569 P.2d 922, 924, 34 St.Rep. 1075, 1078 ***" 

The Supreme Court of the State of Wisconsin, the 

sister state from whom the Montana legislature borrowed the 

exact language of the comparative negligence statute, has 

confronted the precise issue that is now before this Court. 

In Bielski v. Schulze, (1962), 16 Wis.2d 1, 114 N.W.2d 105 

111-113, the Supreme Court of Wisconsin analyzed this issue 

as follows: 

"The history of the development of 

gross negligence, its reason for 

existing, the content of the concept, and 
the inequitable results and consequences 

of its application have led us to decide 

the doctrine of gross negligence, as we 

know it, should be interred in the limbo 

of jurisprudence along side the doctrine 

of assumption of risk in negligence 

cases. See McConville v. State Farm Mut. 

Automobile Ins. Co. (1962), 15 Wis.2d 

374, 113 N.W.2d 14. Gross negligence is 

an anomaly and contradiction in terms, 

and apparently considered in terms of 

degree rather than kind of negligence in 

our early cases. It gradually waxed 

strong in flesh and spirit on such terms 

as 'such a degree of rashness or 

wantonness which evinced a total want of 

care,' or a 'willingness to harm although 

such harm may not have been intended,' 

'rashly,' 'recklessly,' and 'wantonly,' 

'little less than an intentional wrong, ' 

'willingness to perpetrate injury' or 'a 

purpose to take known chances of 

perpetrating an injury. Gradually, gross 

negligence acquired by metamorphosis a 

new nature:--Ordinary negligence lay in 

the field of inadvertence but gross 

negligence in the field of actual or 

constructive intent to injure, and the 

two did not grade into each other. When 

the drinking cases increased in number, 

we reached the point that the concurrence 

of causal ordinary negligence and 

intoxication, as a matter of law, was 

gross negligence. 

"One of the main reasons for the 

growth of the doctrine of gross 

negligence was to ameliorate the 

hardships of the common law doctrine of 

contrubutory negligence which barred 

recovery from a tortfeasor to one 

negligently causing, however slightly, 

his own injury. However, gross 

negligence being defined as different in 

kind and not in degree, could not be 

compared to ordinary negligence and, 

hence, contributory negligence was no bar 

to recovery. 

"The doctrine of gross negligence as 

a vehicle of social policy no longer 

fulfills a purpose in comparative 

negligence. Much or what constituted 

gross negligence .will be found to 

constitute a high percentage of ordinary 

negligence causing the harm. Obviously, 

we are stressing the basic goal of the 

law of negligence, the equitable 
distribution of the loss in relation to 

the respective contribution of the faults 

causing it." 

In Li v. Yellow Cab Company of California (1975), 13 

Cal.3d 804, 825-26, 532 P.2d 1226, 1241, 119 Cal.Rptr. 858, 

873, the Supreme Court of California addressed the issues as 

follows: 

"Finally there is the problem of the 

treatment of willful misconduct under a 

system of comparative negligence. In 

jurisdictions following the 

'all-or-nothing' rule, contributory 

negligence is no defense to an action 

based upon a claim of willful misconduct 

(see Rest.2d Torts, Section 503; Prosser, 

Torts, supra, Section 65, p. 426), and 

this is the present rule in California. 

(Williams v. Carr (1968) 68 Cal.2d 579, 

583, 68 Cal.Rptr. 305, 440 P.2d 505.) As 

Dean Prosser has observed, ' [this] is in 

reality a rule of comparative fault which 

is being applied, and the court is 

refusing to set up the lesser fault 

against the greater.' (Prosser, Torts, 

supra, Section 65, p. 426. ) The thought 

is that the difference between willful 

and wanton misconduct and ordinary 

negligence is one of kind rather than 

degree in that the former involves 

conduct of an entirely different order, 

and under this conception it might well 

be urged that comparative negligence 

concepts should have no application when 

one of the parties has been guilty of 

willful and wanton misconduct. It has 

been persuasively argued, however, that 

the loss of deterrent effect that would 

occur upon application of comparative 

fault concepts to willful and wanton 

misconduct as well as ordinary negligence 

would be slight, and that a comprehensive 

system of comparative negligence should 

allow for the apportionment of damages in 

all cases involving misconduct which 

falls short of being intentional. 

(Schwartz, supra, Section 5.3, p. 108.) 

The law of punitive damages remains a 

separate consideration. (See Schwartz, 

supra, Section 5.4 pp. 109-111.)" 

Subsequent to the California Supreme Court's decision 

in Li v. Yellow Cab Company of California, supra, the 

California Court of Appeals, Fifth District, expanded upon 
said decision in Sorenson v. Allred (1980), 112 Cal.App.3d 

717, 725-26, 169 Cal.Rptr. 441, 446, as follows: 

"In summary, we conclude that no 

defensible reason exists for categorizing 

willful and wanton misconduct as a 

different kind of negligence not suitable 

for comparison with any other kind of 

negligence. The adoption of comparative 

negligence in Li rendered such a separate 

category unnecessary since contibutory 

negligence on the part of the plaintiff 

was no longer a total bar to recovery for 

a tortious injury. We apply an old 

axiom, 'when the need for a rule ceases, 

the rule ceases.' 

"The important by-product of the 

abolition of shades of negligence or 

other categorizations of fault would be 

the streamlining of the trial of cases. 

The submission to the triers of fact, 

particularly juries, of issues of 

liability upon the simply stated 

question, 'Whose fault was it, and if 

both are at fault, what are the degrees 

of fault of each' places the issues in a 

context more readily understood. The 

greater the elimination of such 'buzz' 

words as willful misconduct, last clear 

chance, [assumption of the risk], etc., 

the more the focus will be upon the real 

issues as we have noted above. The 

elimination of willful misconduct as a 

bar to recovery offers justice to both 

plaintiffs and defendants in situations 

where it now is all or nothing. Witness 

Ewing v. Cloverleaf Bowl, supra, 20 

Cal.3d 398, 143 Ca1.Rptr. 13, 572 P.2d 

1155, where plaintiff would be the 

beneficiary of the elimination of willful 

misconduct as a total bar to recovery. 

"For the reasons discussed, we 

conclude that the doctrine of comparitive 

negligence should apply where either 

party's conduct is of the type 

traditionally described as willful and 

wanton. * * * " 

The Court of Appeals, Second District, in Southern 

Pac. Transp. Co. v. State (1981), 115 Cal.App.3d 116, 121, 

171 Cal.Rptr. 187, 191 concurred with Sorenson, supra: 
"The second unresolved issue in - Li, the 

role of willful misconduct under 

comparative negligence, was recently 

addressed by the Court of Appeal in the 

Fifth District, which concluded that 

willful misconduct does not preclude 

application of the comparative-negligence 

rule. (Sorenson v. Allred (1980) 112 

Cal.App.3d 717, 169 Cal.Rptr. 441.) In 

reaching its conclusion, the court noted 

that the contributory-negligence rule and 

the willful-misconduct rule together 

amount to a rule of comparative fault 

under which the lesser fault does not bar 

the greater. The court said that no 

defensible reason exists for categorizing 

willful misconduct as a kind of 

negligence not comparable with any other 

kind of negligence, and it concluded that 

the adoption of a rule of comparative 

negligence rendered superfluous the 

separate category of negligence described 

as willful misconduct. (p. 725, 169 

Cal.Rptr. 441. ) 

"We agree with the Court of Appeal's 

reasoning that the need for a separate 

category of negligence identified as 

willful misconduct, which was designed to 

alleviate the inequity of the 

all-or-nothing contributory negligence 

rule, has disappeared with the adoption 

of a rule of comparative negligence. The 

concept of willful misconduct remains 

viable only for an intentional injury 

which justifies punitive damages. Unless 

a defendant has intentionally injured a 

plaintiff, he is entitled to a reduction 

in his liability to the plaintiff to the 

extent plaintiff's own negligence has 

contributed to the injury . . . . Under 

the comparative negligence dispensation, 

every party remains liable for his 

proportionate share of fault, whether his 

conduct is described as simple negligence 

or as willful misconduct. (See Li v. 

Yellow Cab, supra, 13 Cal.3d, p. 829, 119 

Cal.Rptr. 858, 532 P.2d 1226; American 

Motorcycle Association v. Superior Court, 

supra, 20 Cal.3d p. 588, 146 Cal.Rptr. 

182, 578 P.2d 899.) 

This Court has ruled that punitive damages cannot be 

reduced by the percentage of plaintiff's contributory 

negligence. In Shahrokhfar v. State Farm Mutual Automobile 

Insurance Company (Mont. 1981), 634 P.2d 653, 658-59, 38 
St.Rep. 1669, 1675, this Court held: 

"This court has not previously ruled 

on the question of whether punitive 

damages can be reduced by the percentage 

of plaintiff's contributory negligence. 

Since the purpose of punitive damages is 

to punish the defendant and not to 

compensate the plaintiff, we find that 

such an award bears no reasonable 

relationship to the plaintiff's conduct. 

Therefore, we hold that punitive damages 

cannot be reduced by the percentage of 

plaintiff's contributory negligence. 

This holding is supported by other 

jurisdictions. Amoco Pipeline Co. v. 

Montgomery (W.D.Ok1. 1980), 487 F.Supp. 

1268; Tampa Electric Co. v. Stone & 

Webster Engineering Corp. (M.D. Fla., 

Tampa Div., 1973), 367 F.Supp. 27." 

The jury in this case awarded punitive damages in the 

sum of $100,000, in addition to compensatory damages. 

The holding that the compensatory damage award may not 

be reduced by the percentage of plaintiff's negligence 

appears inequitable to me. If the defendant's conduct is 

"willful" or "wanton," the percentage of plaintiffs 

negligence will be determined to be much smaller in 

comparison, and a reduction in the compensatory award would 

be in line with the principle of comparative negligence, 

while leaving an award for punitive damages intact. Such a 

holding would prevent the plaintiff from profiting by his 

own negligence, but would preserve the policy of punishing 

"willful" or "wanton" acts. 

In view of the majority holding that negligence and 

willful and wanton misconduct are different in kind, rather 

than degree, the Montana legislature may wish to resolve 

this problem, in the light of this Court's past planetary 

usage of words such as ordinary negligence, gross 

negligence, willful negligence, wanton misconduct, reckless, 
heedless and malicious negligence. 

I would find that the Montana legislature intended the 

apportionment of damages in cases involving acts of 

negligence which fall short of being intentiona5. 

..,' / 

_I' 
Mr. Justice John C. Sheehy, dissenting: 

I dissent from the foregoing decision. 

The majority returned this case to the District Court 

for further trial solely upon the grounds that the District 

Court erred in admitting evidence of prior instances when 

Lutey supplied minors with drinks, going to the issue of 

punitive damages. The effect of the majority view here is to 

adopt a strict rule as to the kinds of evidence that may be 

admitted to show the character, malice or disposition of a 

defendant and his willful disregard for the rights of others. 

In my opinion, Luteyl s supplying of beer to minors, 

particularly to Ray Derenberger, was part a-nd parcel of the 

whole transaction that led to the grievous injuries that Ray 

Derenberger sustained. On the evening in question here, he 

had purchased beer with which to ply Ray Derenberger, and 

undoubtedly Raymond's senses were dulled by this criminal act 

of Lutey. It is relevant, therefore, in showing his malice 

and willful disregard for the rights of Derenberger, that he 

plied minors with liquor a month before the accident or the 

month after the accident without any showing of remorse by 

those acts for what he had done to Raymond Derenberger. 

Punitive damages may be awarded by the jury against the 

defendant where he has been quilty of oppression, fraud or 

malice, such damages to be for the sake of example and by way 

of punishing the defendant. Section 27-1-221, MCA. Here, 

the majority limits the fact issues in this case to whether 

Lutey was driving the vehicle recklessly, at a high rate of 

speed and whether that action was willful and wanton 

misconduct. The majority ignores, however, a concomitant 

fact issue, that Derenbergerls senses may have been dulled 
when this sixteen-year-old was unlawfully plied with liquor 

in such a manner that he did not appreciate the danger of 

driving with Lutey. It was most certainly relevant to this 

issue that Lutey had acted in the same way on prior and 

succeeding occasions to show his wanton disregard for any 

minors that came within his influence. Certainly the jury 

was entitled to consider such evidence in determining the 

punitive damages. 

This Court has usua.lly held that it will leave the 

admission of evidence to the sound discretion of the trial 

court subject to review only in cases of manifest abuse. 

Cech v. State (1979), 183 Mont. 75, 604 P.2d 97; Pierce 

Packing Company v. John Morrell (9th cir. 1980), 633 F.2d 

1362. 

I would affirm the judgment of the District Court. 

c A' / 

I concur with Justice Sheehy's dissent.