Disregarding the error in identification of the statute number, we read the opinion to assume, again without discussion, that the statutory change worked no variation in meaning. Bottom v. McClain, 260 Or. 186, 489 P.2d 940 (1971), without discussion, expressly states that the change in statute did not change the rule of Williamson. "The many cases discussing the problem [sufficiency of the evidence to establish gross negligence] are too extensive to cite in full, but Williamson, supra, is generally considered the anchor case with a comprehensive analysis of gross negligence in Oregon.
"* * * in order to show gross negligence it is incumbent upon the plaintiff to prove that defendant's conduct, when measured objectively, reveals `a state of mind indicative of an indifference to the probable consequences of one's acts.' This state of mind has been described as an `I don't care what happens' attitude. Bottom v. McClain [ 260 Or. 186, 489 P.2d 940 (1971)] at 191-92. * * *"
Gross negligence requires "conscious indifference to or reckless disregard of the rights of others." Bottom v. McClain, 489 P.2d 940, 942 (Or. 1971) (quoting Or. Rev. Stat. 30.115(2)). Judge Acosta correctly observes that Dr. Ostergard's testimony creates a material fact dispute as to the adequacy of Defendants' warnings for TVT. F&R at 27 (citing Mot. to Exclude, Ex. C [ECF 32] at ¶8).
"`Gross negligence' refers to negligence which is materially greater than the mere absence of reasonable care under the circumstances, and which is characterized by conscious indifference to or reckless disregard of the rights of others." 4. The elements of gross negligence under the statute have been discussed at length in two prior opinions, Bottom v. McClain, 260 Or. 186, 489 P.2d 940 (1971), and Williamson v. McKenna, 223 Or. 336, 354 P.2d 56 (1960). Nothing is to be gained by repeating those discussions here.
In the instant case, the jury could have found the defendant was driving too fast, knew that the road was wet and slippery, and that the rapid shifts at a high rate of speed under the existing circumstances would cause the car to lose its traction and the right rear wheel to go off the highway; that defendant could have made the shift from third gear to fourth gear at a lesser speed without spinning the rear wheels or "fishtailing" after she had been warned to "slow down." Defendant contends that this case can be distinguished on the facts from Bottom v. McClain, 260 Or. 186, 489 P.2d 940 (1971). It is probably fair to say that each guest passenger case can be distinguished in some manner on the facts from every other guest passenger case.
This state of mind has been described as an "I don't care what happens" attitude. Bottom v. McClain, [ 260 Or. 186, 191-92, 489 P.2d 940 (1971)].' Hill v. Garner, 277 Or. 641, 646, 561 P.2d 1016 (1977). Ordinarily, the issue of gross negligence is a question of fact to be decided by the jury.
"* * * in order to show gross negligence it is incumbent upon the plaintiff to prove that defendant's conduct, when measured objectively, reveals 'a state of mind indicative of an indifference to the probable consequences of one's acts.' This state of mind has been described as an 'I don't care what happens' attitude. Bottom v. McClain [ 260 Or. 186, 489 P.2d 940 (1971)] at 191-92.* * *" 277 Or at 646.
In the context of a guest passenger case it has been stated that "[I]n order to show gross negligence it is incumbent upon the plaintiff to prove that defendant's conduct, when measured objectively, reveals 'a state of mind indicative of an indifference to the probable consequences of one's acts.' This state of mind has been described as an 'I don't care what happens' attitude. Bottom v. McClain, [ 260 Or. 186, 191-92, 489 P.2d 940 (1971]." Hill v. Garner, 277 Or. 641, 646, 561 P.2d 1016 (1977).
We have reviewed the cases in which a combination of negligent acts was alleged to have established gross negligence and find that the essence of those decisions is that in order to support such a claim, the negligent acts taken together must show a reckless state of mind on the part of defendant. In Bottom v. McClain, 260 Or. 186, 489 P.2d 940 (1971), the defendant was driving a Corvette on a highway at night. Plaintiff, a passenger, complained several times of defendant's driving.