Mary A. GREIST, Personal Representative of the Estate of Peter Maurice Greist, Deceased, Respondent on Review, υ. Nicky Don PHILLIPS and Lightning Transportation, Inc., a Tennessee corporation, Petitioners on Review. Nicky Don PHILLIPS and Lightning Transportation, Inc., a Tennessee corporation, Petitioners on Review, υ. Elizabeth B. TRIPP and Mary A. Greist, individually, Respondents on Review.
CC 90-1879-L-1; CA A76287; SC S41542
Supreme Court of Oregon
November 24, 1995
281 | 906 P.2d 789
Argued and submitted January 10, decision of the Court of Appeals affirmed in part and reversed in part; judgment of the circuit court affirmed November 24, 1995
Kathryn H. Clarke, Portland, argued the cause for respondent on review Mary A. Greist. With her on the briefs were Maureen Leonard, Portland, and Robert A. Berst, Seattle, Washington.
Daniel L. Harris, of Davis, Gilstrap, Harris, Hearn & Welty, Ashland, appeared on behalf of respondent on review Elizabeth B. Tripp and joined in the brief on the merits of respondent on review Greist.
John T. Kaempf, Douglas G. Houser, and R. Lindahl, of Bullivant, Houser, Bailey, Pendergrass & Hoffman, P.C., Portland, filed a brief on behalf of amicus curiae Defense Research Institute.
Keith J. Bauer and Billy M. Sime, of Parks, Bauer, Sime & Winkler, Salem, filed a brief on behalf of amicus curiae Oregon Association of Hospitals and Health Systems.
Brent M. Crew and Thomas E. Cooney, of Cooney & Crew, P.C., Portland, filed a brief on behalf of amicus curiae Oregon Medical Association.
William L. Hallmark, of Hallmark, Keating & Abbott, P.C., Portland, filed a brief on behalf of amicus curiae Senco Products, Inc.
Robert Udziela and Kimberley Chaput, of Pozzi Wilson Atchison, Portland, filed a brief on behalf of amici curiae Oregon Trial Lawyers Association, Oregon Consumer League, and ARC of Multnomah County.
GRABER, J.
Unis, J., filed an opinion concurring in part and specially concurring in part in which Durham, J., joined.
The questions presented on review in this wrongful death case are: (1) whether the trial court erred when it allowed the jury to consider defendant Phillips’ violation of certain federal regulations as evidence of negligence; (2) whether the trial court properly interpreted
Because this case comes to us after a trial at which the jury found in plaintiff‘s favor, we view all the evidence, and the inferences that reasonably may be drawn from it, in the light most favorable to plaintiff. See Wagner v. Kaiser Foundation Hospitals, 285 Or 81, 83-84, 589 P2d 1106 (1979) (stating principle).
On June 14, 1989, plaintiff, her son and daughter, and Tripp (who was the son‘s aunt) were returning to Oregon from California on Interstate 5 in a Volkswagen van. At about 4:30 pm, the van was descending from the Siskiyou Pass. The descent from the pass is about a six percent downgrade for seven miles.
At the same time, a five-axle truck and trailer rig was also traveling north on I-5, coming down from the Siskiyou Pass. The truck‘s brakes were not functioning properly. The driver of the truck, Phillips, was aware that the truck‘s brakes were not functioning properly. Although the posted maximum safe speed at the outset of the downgrade was 18 miles per hour for a truck that weighed as much as the truck being driven by Phillips, Phillips was traveling at approximately 40 miles per hour when he began his descent from the Siskiyou Pass. The brakes did not operate adequately on the descent. About six miles below the summit, Phillips ran into the rear end of plaintiff‘s van. The van was propelled forward, and it overturned, skidding to a stop 595 feet from the point of impact. The decedent, who was almost 10 months old, was thrown from the van and was killed. After hitting the van, the truck was unable to stop for almost three miles.
Plaintiff, the personal representative of her son‘s estate, brought this action for the wrongful death of her son, pursuant to
Plaintiff appealed, assigning as error the application of
“* * * * *
“(2) In any action under this section damages may be awarded in an amount which:
“(a) Includes reasonable charges necessarily incurred for doctors’ services, hospital services, nursing services, other medical services, burial services and memorial services rendered for the decedent;
“(b) Would justly, fairly and reasonably have compensated the decedent for disability, pain, suffering and loss of income during the period between injury to the decedent and the decedent‘s death;
“(c) Justly, fairly and reasonably compensates for pecuniary loss to the decedent‘s estate;
“(d) Justly, fairly and reasonably compensates the decedent‘s spouse, children, stepchildren, stepparents and parents for pecuniary loss and for loss of the society, companionship and services of the decedent[.]”
That part of
Plaintiff does not argue that there is a common law action for wrongful death. Her briefing acknowledges that “the right of action for wrongful death is statutory.”
Defendants contend that the trial court erred by refusing to withdraw from the jury two allegations of negligence that were based on Phillips’ violation of federal regulations. Federal regulations require every commercial truck to have an operative speedometer at all times.
From the evidence developed at trial, a reasonable juror could have inferred that the speedometer in the truck was not operative at the time of the accident. A reasonable juror also could have inferred that Phillips had driven the truck for more than 70 hours in eight consecutive days at the time of the accident. The Court of Appeals discussed at length the evidence supporting those inferences, 128 Or App 398-99, and the general principles applicable thereto, id. at 396-99. It would not benefit bench or bar to repeat that discussion here. For the purpose of this case, it is enough to observe that, viewing the evidence and all inferences that reasonably may be drawn therefrom in the light most favor-able to plaintiff, a reasonable juror could have found that Phillips’ failure to meet those federal standards was a substantial contributing factor to the accident and the resultant injury to the decedent.
The trial court did not err when it allowed the jury to consider the allegations of negligence based on 70-hour and operative-speedometer rules. The Court of Appeals correctly affirmed the rulings of the trial court on those points.
The jury awarded plaintiff $1.5 million in noneconomic damages. The trial court applied
This court considers subconstitutional claims before considering constitutional ones. See Zockert v. Fanning, 310 Or 514, 520, 800 P2d 773 (1990) (describing method of analysis). Plaintiff first argues that the trial court erred in holding that the claims of all individuals in an action to which
In construing statutes, our task is to discern the intent of the legislature. In doing so, the first level of analysis is to examine the text and context of the statute. If the legislature‘s intent is clear from those inquiries, further inquiry is unnecessary. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993).
For the purpose of this case, we need to decide only how
The trial court did not err in interpreting the statute when it applied a single $500,000 limit on noneconomic damages delineated in
IV. ORS 18.560(1): CONSTITUTIONAL ARGUMENTS
Plaintiff argues that the trial court‘s application of
A. Article I, section 10, of the Oregon Constitution
In Hale v. Port of Portland, 308 Or 508, 517-24, 783 P2d 506 (1989), this court addressed whether certain limits on damages contained in the Oregon Tort Claims Act,
“[Prior cases from this court] held only that Article I, section 10, is not violated when the legislature alters (or even abolishes) a cause of action, so long as the party injured is not left entirely without a remedy. Under those cases, the remedy need not be precisely of the same type or extent; it is enough that the remedy is a substantial one.” Id. at 523 (citations omitted).
See also Neher v. Chartier, 319 Or 417, 424, 879 P2d 156 (1994) (quoting that passage with approval). Accordingly, the legislature is entitled to amend the amount of damages available in a statutory wrongful death action without running afoul of
Plaintiff brought this action under
Plaintiff has not been left without a remedy. She has received $600,000, comprised of $500,000 in noneconomic damages and $100,000 in economic damages. There was no statutory limit on the latter category of damages. Although that remedy is not precisely of the same extent as that to which plaintiff was entitled before the enactment of
The remedy for wrongful death is substantial, not only because 100 percent of economic damages plus up to $500,000 in noneconomic damages is a substantial amount, but also because the statutory wrongful death action in Oregon has had a low limit on recovery for 113 years of its 133-year history. See 322 Or at 294, below (discussing history of wrongful death action in Oregon). As noted there, the wrongful death claim came into existence with a limitation, and the highest previous limitation (1961-67) was $25,000. In relation to that history, the present remedy is substantial.
Plaintiff‘s
Plaintiff also argues that the limitation on noneconomic damages in
In Sealey v. Hicks, 309 Or 387, 397, 788 P2d 435 (1990), cert den 498 US 819 (1990), this court said:
“In evaluating whether a class exists under Article I, section 20, we must first determine whether the class is created by the challenged law itself or by virtue of characteristics * * * apart from the law in question. Classes of the first type are entitled to no special protection and, in fact, are not even considered to be classes for the purposes of Article I, section 20.” (Internal quotation marks omitted; citations omitted; ellipses in original.)
The classes to which plaintiff‘s argument refers clearly are classes “created by the challenged law itself.”
C. Jury Trial Rights: Article I, section 17, and Article VII (Amended), section 3, of the Oregon Constitution
Next, plaintiff argues that the application of
1. Article I, section 17, of the Oregon Constitution
The right to trial by jury in
“does not give plaintiff a right to a jury trial in all civil matters. * * * [A] jury trial is guaranteed only in those classes of cases in which the right was customary at the time the constitution was adopted or in cases of like nature. We must, therefore, decide whether plaintiff had a well-established right to have a jury determine the amount of damages in an action [for wrongful death] when our constitution was adopted.” Molodyh v. Truck Insurance Exchange, 304 Or 290, 295-96, 744 P2d 992 (1987) (emphasis in original; citations omitted; footnote omitted).8
See also Deane v. Willamette Bridge Co., 22 Or 167, 169-77, 29 P 440 (1892) (the plaintiff had no right under
In Oregon, as plaintiff acknowledges, the right of action for wrongful death is statutory. “[A]t common law no remedy by way of a civil action for wrongful death existed.” Richard v. Slate, 239 Or 164, 167, 396 P2d 900 (1964). In Goheen v. General Motors Corp., 263 Or 145, 153-54, 502 P2d 223 (1972), this court traced the history and development of wrongful death actions in Oregon and stated:
“The original Oregon Wrongful Death Act was included in the original Deady Code in 1862. * * * [It] did not specifically limit awards of damages to any named dependents. Neither did it specifically limit damages to pecuniary loss, although total recovery was limited to $5,000. This limitation on the amount of recovery was increased from time to time, and was finally removed [by Oregon Laws 1967, chapter 554, section 1].” (Footnotes omitted.)
There was no wrongful death statute in Oregon before the 1862 Deady Code. Ibid. Therefore, at the time
Plaintiff argues, however, that the right to a jury trial is “not strictly limited to cases in which it existed in 1859, when [Article I, section 17,] became effective,” because the right extends to “cases ‘of like nature‘” to those that existed at common law at the time the constitution was adopted. Plaintiff argues that, in 1857, a right to jury trial existed for personal injury actions; that a wrongful death action is “of like nature” to a personal injury action; and, thus, that the right to a jury trial attaches here. Even accepting the premise that a wrongful death action is “of like nature” to a personal injury action, plaintiff‘s argument would not prevail. When
Before the adoption of
Until the adoption of
Plaintiff‘s
2. Article VII (Amended), section 3, of the Oregon Constitution
As noted above, the right of action for wrongful death in Oregon is wholly statutory, and the legislature is entitled
As pertinent here, by enacting
We interpret a provision of the
The right of action for wrongful death was created by the legislature in 1862, and it was created with a limitation on the amount recoverable. When the voters adopted
In summary, after examining the wording of
The Court of Appeals erred when it held that application of
Because plaintiff‘s statutory and state constitutional claims are not well taken, we address her federal constitutional claims. Plaintiff argues that application of
1. Substantive Due Process
Plaintiff argues that application of
In Duke Power Co. v. Carolina Env. Study Group, 438 US 59, 98 S Ct 2620, 57 L Ed 2d 595 (1978), the Supreme Court of the United States rejected a substantive due process challenge to a federal statute that imposed a limitation on liability for nuclear accidents resulting from the operation of federally licensed private nuclear power plants. The Court stated:
“The liability-limitation provision * * * emerges as a classic example of an economic regulation — a legislative effort to structure and accommodate the burdens and benefits of economic life. It is by now well established that [such] legislative Acts * * * come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way. That the accommodation struck may have profound and far-reaching consequences, contrary to appellees’ suggestion, provides all the more reason for this Court to defer to the [legislative] judgment unless it is demonstrably arbitrary or irrational.” 438 US at 83-84 (citations omitted; internal quotation marks omitted; footnote omitted).
The Oregon legislature did not act in a “demonstrably arbitrary or irrational” way when it enacted
The legislature enacted
2. Equal Protection
Plaintiff argues that application of
The Supreme Court of the United States recently has stated that:
“unless a classification warrants some form of heightened review because it jeopardizes exercise of a fundamental right or categorizes on the basis of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest.” Nordlinger v. Hahn, 505 US 1, 10, 112 S Ct 2326, 120 L Ed 2d 1, 12 (1992).
V. CONCLUSION
The Court of Appeals correctly concluded that the jury could consider defendant Phillips’ violation of certain federal regulations as evidence of negligence.
The Court of Appeals erred when it held that application of
The limit on noneconomic damages contained in
Application of
FADELEY, J., concurring.
I concur in the result and the necessary principle and reasoning stated in the lead opinion. I do not join the remaining dicta.
The discussion of whether a statutory remedy is “substantial” — a discussion engaged in to support the argument that less than a full remedy may be substituted for a full one by act of the legislature — is unnecessary and wide of the mark. In this case, there would be no remedy at all but for an act of the legislature. The discussion of various ways that the traditional power of a jury may be drained away from that institution to increase the power of either the legislature or the judiciary is also unnecessary, and too far afield.
The following four quotes from the lead opinion, in which I concur, dispose of this case:
1
“For the purpose of this case, we need to decide only how
ORS 18.560(1) applies to a [statutory] wrongful death claim. In that context, the application ofORS 18.560(1) is clear. This ‘civil action’ seeks damages arising out of the death of ‘one person.’ORS 18.560(1) .”
ORS 30.020(1) , quoted above at note 2, provides, as relevant here, that the personal representative of a decedent may ‘maintain an action against the wrongdoer.’ That is, the personal representative may bring only one action when there is only one decedent, no matter how many beneficiaries there may be. Here, there was but one decedent, and plaintiff brought one action. UnderORS 18.560(1) , that action is subject to a single limit of $500,000.” 322 Or at 288-89.
2
“Plaintiff brought this action under
ORS 30.020 . That statute entitles plaintiff to damages in an amount that ‘includes reasonable’ medical, burial, and memorial services rendered for the decedent,ORS 30.020(2)(a) , and ‘would justly, fairly and reasonably’ compensate plaintiff for pecuniary loss to the decedent‘s estate and loss of the society, companionship, and services of the decedent,ORS 30.020(2)(c) & (d). The jury awarded $100,000 in ‘economicdamages,’ which are ‘objectively verifiable monetary losses,’ including expenses for medical, burial, and memorial services and loss to an estate (including loss of services to an estate). ORS 18.560(2)(a) .” 322 Or at 290-91.
3
“In Oregon, as plaintiff acknowledges, the right of action for wrongful death is statutory. ‘[A]t common law no remedy by way of a civil action for wrongful death existed.’ Richard v. Slate, 239 Or 164, 167, 396 P2d 900 (1964). In Goheen v. General Motors Corp., 263 Or 145, 153-54, 502 P2d 223 (1972), this court traced the history and development of wrongful death actions in Oregon and stated:
“‘The original Oregon Wrongful Death Act was included in the original Deady Code in 1862. * * * [It] did not specifically limit awards of damages to any named dependents. Neither did it specifically limit damages to pecuniary loss, although total recovery was limited to $5,000. This limitation on the amount of recovery was increased from time to time, and was finally removed [by Oregon Laws 1967, chapter 554, section 1].’ (Footnotes omitted.)
“There was no wrongful death statute in Oregon before the 1862 Deady Code. Ibid. * * * Because wrongful death actions are ‘purely statutory,’ they ‘exist only in the form and with the limitations chosen by the legislature.’ Hughes v. White, 289 Or 13, 18, 609 P2d 365 (1980).” 322 Or at 294.
4
“Nothing in the wording of
Article VII (Amended), section 3 , quoted above at note 6, restricts the legislature‘s authority to set a substantive limitation on a purely statutory remedy. * * *“The right of action for wrongful death was created by the legislature in 1862, and it was created with a limitation on the amount recoverable. When the voters adopted
Article VII (Amended), section 3 , in 1910, the maximum amount recoverable in a statutory wrongful death action was $7,500. Lord‘s Oregon Laws, ch VI, § 380, p 326 (1910). Although voters told the courts not to ‘re-examine’ facts ‘tried by a jury,’Art VII (Amended), § 3 , there is no indication in wording, case law, or history that the voters meant to undo the extant dollar limit on wrongful death actions. The removal, in 1967, of any limitation on the amount recoverable in a wrongful death action did not place the issue of dollar limits beyond the legislature‘s power to act, nor clothe thelegislature‘s creation with constitutional guarantees not present at its inception.” 322 Or at 296-97.
The above-quoted material explains my reasons for concurring in the result.
Other constitutional provisions have been invoked by the parties. The short and sufficient answer is that there is no true class or discriminatory classification created by the statute conferring the right to recover for wrongful death. No further discussion of other state and federal constitutional provisions is needed.
UNIS, J., concurring in part, specially concurring in part.
I join in all but Parts IV.A. and IV.B. of this court‘s opinion. With respect to Parts IV.A. and IV.B., I concur in the result reached by the court, but for reasons different from those expressed by the court.
“[C]onstitutional interpretation must meet the criteria of good legislation — it must be sensible, clear, precise and consistent — and more: it must also demonstrate fidelity to the constitution itself.”1 Constitutional interpretation also should be logical enough to avoid producing absurd results, clear enough to guide legislators, litigants, courts, and ordinary citizens, and precise enough to have some meaning beyond unfocused exhortation.2 In this case, the court‘s interpretation of
Article I, section 10, of the Oregon Constitution (the “remedy guarantee clause“) does not, in my view, meet those criteria; it is another individually tenable but inconsistent opinion about the remedy guarantee clause.3
The court today holds that
“No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.” (Emphasis added.)
It is well established that the legislature has the authority to determine what constitutes a legally cognizable injury. Sealey v. Hicks, 309 Or 387, 394, 788 P2d 435, cert den 498 US 819, 111 S Ct 65, 112 L Ed 2d 39 (1990). This court‘s decisions long have established that the remedy guarantee clause was not intended to “freeze” the common law, equitable, and statutory remedies that existed in 1859 when the Oregon Constitution was adopted. See, e.g., Neher v. Chartier, 319 Or 417, 427-28, 879 P2d 156 (1994) (” ‘Article I, section 10, [of the] Oregon Constitution, was not intended to give anyone a vested right in the law either statutory or common; nor was it intended to render the law static’ “) (quoting Noonan v. City of Portland, 161 Or 213, 249, 88 P2d 808 (1939)). Moreover, this court has never held that the remedy guarantee clause prohibits any and all legislative elimination or modification of remedies. Such an approach would work drastic changes on well-settled doctrines such as statutes of limitation, statutes of repose, and sovereign tort immunity, and statutory schemes such as workers’ compensation. Prior decisions of this court, as well as the decision of the court in this case, see 322 Or at 290-92, indicate further that the remedy guarantee clause provides “more than a procedural guarantee that the ‘due course of law’ will be open to ‘every [person]’ who is entitled to a remedy under the substantive law, whatever that might be at any time.”6 See,
“The text [of the remedy guarantee clause] offers three verbal handholds: [1] What harm to one of the protected interests is an ‘injury‘? [2] What qualifies as a ‘remedy‘? [3] Is this remedy available ‘in due course of law?’ ” Hale, 308 Or at 529 (Linde, J., concurring). Those three verbal handholds provide a useful analytical framework for resolving a remedy guarantee clause claim.
It is undisputed that the harm — economic and noneconomic loss — suffered as a result of wrongful death and for which plaintiff seeks recovery in this civil tort action qualifies as a legally cognizable injury to one of the stated types of interests protected by
The question before this court in this case, therefore, is whether
There is no question that the legislature has the authority to determine what constitutes a legally cognizable injury and to abolish an existing statutorily recognized, legally cognizable injury. The legislature also can redefine a statutorily recognized, legally cognizable injury. Moreover, the legislature can distinguish and deal differently with economic loss from noneconomic loss for mental suffering or other noneconomic harm. For example, the legislature could provide by statute that only economic damages arising out of the wrongful death of a person are recoverable in a wrongful death action brought under Oregon statutory law.9 Under such a statute, the analysis under
The majority concludes that
“Plaintiff brought this action under
ORS 30.020 . That statute entitles plaintiff to damages in an amount that‘includes reasonable’ medical, burial, and memorial services rendered for the decedent, ORS 30.020(2)(a) , and ‘would justly, fairly and reasonably’ compensate plaintiff for pecuniary loss to the decedent‘s estate and loss of the society, companionship, and services of the decedent,ORS 30.020(2)(c) & (d). The jury awarded $100,000 in ‘economic damages,’ which are ‘objectively verifiable monetary losses,’ including expenses for medical, burial, and memorial services and loss to an estate (including loss of services to an estate).ORS 18.560(2)(a) . The jury also awarded $1.5 million in ‘noneconomic damages,’ which are ‘subjective, nonmonetary losses,’ including loss of society and companionship.ORS 18.560(2)(b) . ApplyingORS 18.560(1) , the trial court gave plaintiff judgment for noneconomic damages of $500,000, in addition to the $100,000 in economic damages, for a total of $600,000.“Plaintiff has not been left without a remedy. She has received $600,000, comprised of $500,000 in noneconomic damages and $100,000 in economic damages. There was no statutory limit on the latter category of damages. Although that remedy is not precisely of the same extent as that to which plaintiff was entitled before the enactment of
ORS 18.560(1) , that remedy is substantial. * * *“The remedy for wrongful death is substantial, not only because 100 percent of economic damages plus up to $500,000 in noneconomic damages is a substantial amount, but also because the statutory wrongful death action in Oregon has had a low limit on recovery for 113 years of its 133-year history. See 322 Or at 294, below (discussing history of wrongful death action in Oregon). As noted there, the wrongful death claim came into existence with a limitation, and the highest previous limitation (1961-67) was $25,000. In relation to that history, the present remedy is substantial.
“Plaintiff‘s Article I, section 10, argument is not well taken.” 322 Or at 290-91.
The majority‘s analysis is based on the following passage in Hale, 308 Or at 523:
“Article I, section 10, is not violated when the legislature alters (or even abolishes) a cause of action, so long as the party injured is not left entirely without a remedy. * * * [T]he remedy need not be precisely of the same type or extent; it is enough that the remedy is a substantial one.”
The first problem with the “substantial” test is that it is vague and gives no guidance to legislators, litigants, or ordinary citizens as to how courts will apply the standard. The “substantial” test leaves open too many questions, and, more important, it provides the bench, bar, and Legislative Assembly with too few tools with which to find the answers. The word “substantial,” by itself, offers no means by which to draw the line between a permissible and an impermissible limitation on a remedy. The “substantial” test calls for the comparison of immeasurables. The determination of what is “substantial” is little more than a determination of whether or not a remedy has in fact been lost. Because of its numerous, related, but distinct meanings,12 the term “substantial” is not useful. For example, what is meant by that term? How is the “substantiality” of a remedy to be measured? Is it measured in reference to a plaintiff‘s actual injuries, or is it measured by an abstract conclusion that a particular remedy is “substantial” as to a particular class of injuries? Is the “substantiality” of a remedy to be measured by reference to economic damages or by both economic and noneconomic damages? How do you determine substantiality
The majority holds that a single $500,000 limit on noneconomic damages, in addition to 100 percent of economic damages (in this case, $100,000), for a total of $600,000 is a “substantial” remedy for injuries that the jury valued at $1.5 million. Would $500,000 be a substantial remedy for a $5 million dollar injury? $10 million? $100 million?
If a “substantial” remedy is somehow measured in abstract terms (i.e., if the court were to hold that, for any plaintiff, $500,000 is a substantial remedy for any wrongful death), how are the trial courts to deal with stare decisis in the future? If a court today declares that, in the abstract, $500,000 is a substantial remedy under
Whichever approach the trial courts take in determining whether a remedy is “substantial,” there is a great danger of haphazard results. A determination that a particular remedy for a particular injury is “substantial” necessarily is a policy decision. Asking this court to decide whether a particular remedy is “substantial” places this court in one of two untenable positions: either this court defers to the legislative judgment that a particular remedy is “substantial,” thus negating any meaningful judicial review, or this court substitutes its own judgment as to whether it believes that the remedy afforded by the legislature is adequate, leading to, in effect, judicial legislation. In the light of these questions, I believe that this court should reconsider any analysis based on an evaluation of whether a remedy is “substantial.”
“It is clear from the language of ORS 30.265(1) itself that the legislature intended to meet fully the requirements of Article I, section 10, when it enacted the statute. The statute specifically identifies the new balance it strikes between municipal corporations and those to whom certain of those corporations could, under limited circumstances, formerly have been liable:
“‘Subject to the limitations of
ORS 30.260 to 30.300, every public body is subject to action or suit for its torts and those of its officers, employees and agents acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function * * *.’ (Emphasis added.)“The class of plaintiffs has been widened by the legislature by removing the requirement that an injured party show that the municipal corporation‘s activity that led to the injury was a proprietary one. At the same time, however, a limit has been placed on the size of the award that may be recovered. A benefit has been conferred, but a counterbalancing burden has been imposed. This may work to the disadvantage of some, while it will work to the advantage of others. But all who had a remedy continue to have one. This may not be what plaintiff wants. It may not even be what this court, if it were in the business of making substantive law on this subject, would choose to enact. But it is within the legislature‘s authority to enact in spite of the limitations of Oregon Constitution, Article I, section 10.” Id. at 523 (emphasis added).
The rationale that this court used to uphold the cap on damages in Hale cannot be used to sustain the cap on
Finally, although I agree with the result reached by the court concerning plaintiff‘s claim under
Durham, J., joins in this concurring in part, specially concurring in part, opinion.
Notes
David Schuman, The Right to a Remedy, 65 Temple L Rev 1197, 1219 (1992).“(1) Except for claims subject to
ORS 30.260 to30.300 [the Oregon Tort Claims Act] andORS chapter 656 [the Oregon Workers’ Compensation Act], in any civil action seeking damages arising out of bodily injury, including emotional injury or distress, death or property damage of any one person including claims for loss of care, comfort, companionship and society and loss of consortium, the amount awarded for noneconomic damages shall not exceed $500,000.“(2) As used in this section:
“(a) ‘Economic damages’ means objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past and future impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less.
“(b) ‘Noneconomic damages’ means subjective, nonmonetary losses, including but not limited to pain, mental suffering, emotional distress, humiliation, injury to reputation, loss of care, comfort, companionship and society, loss of consortium, inconvenience and interference with normal and usual activities apart from gainful employment.”
“And ‘the constitution’ toward which this fidelity is owed is not just the text; it is that much larger complex of principles, aspirations, and political theories the document embodies. The requirement of ‘fidelity to the text,’ in this context, is the relatively obvious and uncontroversial requirement that a court‘s explanation of the meaning of a given constitutional provision should demonstrate some logical connection to the words it purports to interpret, including their source, history, and position in the overall document. Further, ‘fidelity’ requires that the court be sensitive to the political culture of the constitutionally-defined community and reflect the community‘s most deeply held constitutive traditions.” Id.
Id. at 1219-20.“(1) When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the decedent‘s surviving spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedent‘s domicile would be entitled to inherit the personal property of the decedent * * * may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission. * * *
This court‘s prior decisions about“Every bus, truck, and truck-tractor shall be equipped with a speedometer indicating vehicle speed in miles per hour, which shall be operative with reasonable accuracy[.]”
“(b) No motor carrier shall permit or require a driver of a commercial motor vehicle, regardless of the number of motor carriers using the driver‘s services, to drive for any period after —
“* * * * *
“(2) Having been on duty 70 hours in any period of 8 consecutive days if the employing motor carrier operates motor vehicles every day of the week.”
“(1) Except for claims subject to
“(2) As used in this section:
“(a) ‘Economic damages’ means objectively verifiable losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past and future impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessary incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less.
“(b) ‘Noneconomic damages’ means subjective, nonmonetary losses, including but not limited to pain, mental suffering, emotional distress, humiliation, injury to reputation, loss of care, comfort, companionship and society, loss of consortium, inconvenience and interference with normal and usual activities apart from gainful employment.
“(3) This section does not apply to punitive damages.
“(4) The jury shall not be advised of the limitation set forth in this section.”
“(1) When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of [various specified persons] may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission. * * *
“(2) In an action under this section damages may be awarded in an amount which:
“(a) Includes reasonable charges necessarily incurred for doctors’ services, hospital services, nursing services, other medical services, burial services and memorial services rendered for the decedent;
“(b) Would justly, fairly and reasonably have compensated the decedent for disability, pain, suffering and loss of income during the period between injury to the decedent and the decedent‘s death;
“(c) Justly, fairly and reasonably compensates for pecuniary loss to the decedent‘s estate;
“(d) Justly, fairly and reasonably compensates the decedent‘s spouse, children, stepchildren, stepparents and parents for pecuniary loss and for loss of the society, companionship and services of the decedent; and
“(e) Separately stated in finding or verdict, the punitive damages, if any, which the decedent would have been entitled to recover from the wrongdoer if the decedent had lived.”
As the majority explains, see 322 Or at 286 n 2, “[t]hat part of
“No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”
Hans A. Linde, Without “Due Process“: Unconstitutional Law in Oregon, 49 Or L Rev 125, 136 (1970). See also Hale, 308 Or at 527 (Linde, J., concurring) (“the assurance of a ‘remedy’ for ‘injury to specified interests appears to promise more than protection against delay and other procedural obstructions“).“In actions at law, where the value in controversy shall exceed $200, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict.”
The
In Davidson v. Rogers, 281 Or 219, 574 P2d 624 (1978), this court refused to overrule Holden v. Pioneer Broadcasting Co., 228 Or 405, 365 P2d 845 (1961), and held that Oregon‘s retraction statute,“[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
“In enacting the cap, the Oregon Legislature sought to control the escalating costs of the tort compensation system. The legislature determined that the cap would put a lid on litigation costs, which in turn would help control rising insurance premium costs for Oregonians. The legislature listened to hours of testimony on the insurance and tort crisis, and how reform was needed in order to salvage the system.” Kathy T. Graham, 1987 Oregon Tort Reform Legislation: True Reform or Mere Restatement?, 24 Willamette L Rev 283, 292 (1988) (footnote omitted).
In Neher v. Chartier, 319 Or 417, 879 P2d 156 (1994), this court concluded that ORS 30.265(3)(a) (1993), which shielded public bodies, their officers, agents and employees from civil liability for injury to persons covered under the Workers’ Compensation Law, violated Article I, section 10, of the Oregon Constitution. The plaintiff argued that the three thousand dollar death benefit provided by the Workers’ Compensation Law was not a substantial remedy. The defendants contended that Article I, section 10, guarantees a remedy only in those rights of action existing at common law. Therefore, the defendants reasoned, because a wrongful death action is created by statute, Article I, section 10, is not offended even if a plaintiff is remediless. The Neher court noted that it previously had rejected that line of reasoning in Noonan v. City of Portland, 161 Or 213, 88 P2d 808 (1939). Neher, 319 Or at 427. In Noonan, 161 Or at 249, the court stated that “Article I, section 10 * * * was not intended to give anyone a vested right in the law * * * nor was it intended to render the law static.” “The legislature cannot, however, abolish a remedy and at the same time recognize the existence of a right[.]” Neher, 319 Or at 427 (quoting Noonan, 161 Or at 249) (citations omitted in original). The Neher court held that, although tort immunity of public officers and employees is not per se unconstitutional, a party must not be left without a remedy. Therefore, this court held the provision unconstitutional because the nominal award accrued to the decedent‘s estate, leaving the decedent‘s parents entirely remediless. Neher, 319 Or at 426-27. In a wrongful death action, the personal representative represents the interests of both the estate and the decedent‘s parents. Id. at 426 (citing ORS 30.020(1) and 30.020(2)(d) (1993) (wrongful death statute)).“Of real worth and importance; of considerable value; valuable. Belonging to substance; actually existing; real; not seeming or imaginary; not illusive; solid; true; veritable. * * * Something worthwhile as distinguished from something without value or merely nominal.” Black‘s Law Dictionary 1428 (6th ed 1990).
“1. Composed of or relating to things that occupy space and can be perceived by the senses.
“2. Large in number or yield.
“3. Having great significance.
“4. Having actual reality.” Roget‘s II: The New Thesaurus 970 (1988).
Synonyms for “substantial” are: abundant, ample, considerable, plentiful, important, meaningful, notable, significant, massive, sound, and stable. Novell Perfect Office WordPerfect V 6.1.
“Subject to the limitations of
ORS 30.270(1) (1987) limits the potential liability of public bodies:
“Liability of any public body or its officers, employees or agents acting within the scope of their employment or duties on claims within the scope of
“(a) $50,000 to any claimant for any number of claims for damage to or destruction of property, including consequential damages, arising out of a single accident or occurrence.
“(b) $100,000 to any claimant for all other claims arising out of a single accident or occurrence.
“(c) $300,000 for any number of claims arising out of a single accident or occurrence.”