In a later case, this court made clear that it "approved" the Restatement definition of "reckless disregard of safety" in section 500 as "an equivalent for" willful or wanton misconduct. Taylor v. Lawrence , 229 Or. 259, 264, 366 P.2d 735 (1961). Moreover, in Taylor , the court noted that it had "also approved the gloss on that rule found in comment ‘c’ to section 500," which emphasized that conduct sufficient to satisfy the degree of culpability that the Restatement called "reckless disregard"—and that this court called "wanton misconduct"—did not require proof that the defendant actually knew that his conduct would create the unreasonable risk:

In our State, in order to recover for injuries allegedly produced by willful and wanton misconduct, it must appear that the defendant with knowledge of existing conditions, and conscious from such knowledge that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result. Krauth v. Israel Geller and Buckingham Homes, Inc.,supra; Egan v. Erie R. Co., 29 N.J. 243, 254-255 (1959); Staub v. Public Service Railway Co., 97 N.J.L. 297, 300 (E. A. 1922); Tabor v. O'Grady, 61 N.J. Super. 446, 454 (App.Div. 196 0); King v. Patrylow, supra, 15 N.J. Super. at 433; Taylor v. Lawrence, 229 Or. 259, 366 P.2d 735 (1961); Williamson v. McKenna, 223 Or. 366, 354 P.2d 56 (1960); Restatement, Torts 2d § 500, p. 587 (1965). It is not easy to set down a readily usable definition of willful and wanton misconduct.

This is far from saying that to refuse to use the quoted phrase is error. Indeed, it can be error so to instruct unless it is made clear to the jury at the same time that an objective, not a subjective, standard must be applied, as the case of Taylor v. Lawrence, 229 Or. 259, 265, 366 P.2d 735, illustrates. In this regard, the requested instruction is open to criticism, for it omits entirely the standard of a "reasonable man", which is an essential element of the rule of our decisions.

" 43 Or at 333. In Taylor v. Lawrence, 229 Or. 259, 366 P.2d 735 (1961), the court said: "The rule that instructions are to be viewed as a whole is invoked by counsel for the defendant and attention is called to the other instructions in which the court stated the law substantially as laid down in our decisions.

Plaintiff first assigns as error the "sustaining of the defendants' motion for a directed verdict with respect to the second count, namely, wanton misconduct." In support of that contention plaintiff relies upon our decisions in Stephens v. City of St. Helens, 231 Or. 1, 371 P.2d 686 (1962); Taylor v. Lawrence, 229 Or. 259, 366 P.2d 735 (1961); Falls v. Mortensen, 207 Or. 130, 295 P.2d 182 (1956); and Cook v. Kinzua Pine Mills Co. et al, 207 Or. 34, 293 P.2d 717 (1956). In those cases this court held that wanton misconduct is to be defined in the same terms as reckless conduct is defined in 2 Restatement of Torts § 500 (1934).

Defendant says there is no evidence that he did an intentional or conscious act that was grossly negligent. The matter has been fully covered in Williamson v. McKenna, supra; Nielsen v.Brown, 232 Or. 426, 374 P.2d 896 (1962); and Taylor v. Lawrence, 229 Or. 259, 366 P.2d 735 (1961). We summarize the holding of those cases by repeating that "recklessness" may be found in circumstances where defendant did not appreciate the extreme risk, but where any reasonable man would appreciate it.

Accordingly, we send the case back for yet another trial. See Taylor v. Lawrence, 229 Or. 259, 266, 366 P.2d 735 (1961). Other assignments of error challenge the rulings of the trial court which excluded certain value evidence tendered by the plaintiff.

Cook v. Kinzua Pine Mills et al, 207 Or. 34, 293 P.2d 717, and Falls v. Mortensen, 207 Or. 130, 295 P.2d 182 (1956). The parties in their briefs and arguments have discussed the possibilities of "contributory wantonness" in this case (See Taylor v. Lawrence, 229 Or. 259, 366 P.2d 739), but the record fails to present such an issue. The only fault upon the part of the plaintiff, supported by any evidence, is that he may have used poor judgment in refusing to get out of a policeman's chair.

We acknowledge that, notwithstanding the admonition in Falls , both we and the Supreme Court have occasionally continued to use "willful" to mean "wanton." See, e.g. , Taylor v. Lawrence , 229 Or. 259, 264, 366 P.2d 735 (1961) (describing "reckless disregard of safety" as "an equivalent for wilful or wanton misconduct"); Hampton Tree Farms , 158 Or App at 393-95, 974 P.2d 738 (repeatedly using "wilful" to mean "wanton"). In conducting its analysis in Gutierrez-Medina , the court relied on prior case law regarding the third category of tortious conduct, particularly Falls , which it described as a case in which the court "undertook to clarify the range of culpable conduct that will be considered ‘wanton.’ "

Giving the instruction is reversible error, because it cannot be determined from the verdict whether the jury used the correct clear and convincing evidence standard or the incorrect preponderance of evidence standard. Taylor v. Lawrence, 229 Or. 259, 366 P.2d 735 (1961); Voight v. Nyberg, 218 Or. 383, 345 P.2d 821 (1959). Defendant also argues that it was error to use the word "presumption" in the instruction.