Lead Opinion
The issue in this case is whether the damage limitations in the Oregon Tort Claims Act (OTCA)
Plaintiff suffered severe injuries in a November 3, 1980, accident occurring when the vehicle in which he was riding collided with an obstacle embedded in a road. Plaintiff s medical bills alone reportedly exceed $600,000. Through his guardian ad litem, he filed this action against several defendants, including two municipal corporations, the City of Portland (the City) and the Port of Portland (the Port). He charged that the City and the Port were responsible for maintaining the road and were negligent in several respects with respect to the obstacle. The circuit court granted motions by the Port and the City to strike plaintiffs claim for damages in excess of the $100,000 damage limitation in ORS 20.270(1) (b). The City and the Port then each confessed judgment for $100,000. Plaintiff appealed, and the Court of Appeals affirmed. We allowed review to address the important issues involved. *
The City and the Port are each “public bodies” subject to ORS 30.265(1), which provides:
“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 * *
ORS 30.270(1) limits the potential liability of public bodies as follows:
“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 ORS 30.260 to 30.300 shall not exceed:
“(a) $50,000 to any claimant for any number of claims*512 for damage to or destruction of property, including consequential damagеs, arising out of a single accident or occurrence.
“(b) $100,000 to any claimant for all other claims arising out of single accident or occurrence.
“(c) $300,000 for any number of claims arising out of a single accident or occurrence.”
The trial court applied ORS 30.270(1) (b) in limiting the liability of the City and the Port. Plaintiff challenges the constitutionality of that statute.
Absent a constitutional provision to the contrary, the legislature has plenary lawmaking authority, including the authority to immunize partially public bodies like the City and the Port. See, e.g., Brown v. Multnomah County Dist. Ct.,
I. ARTICLE IV, SECTION 24
Article IV, section 24, of the Oregon Constitution provides:
*513 “Provision may be made by general law, for bringing suit against the State, as to all liabilities originating after, or existing at the time of the adoption of this Constitution; but no special act authorizeing [sic] such suit to be brought, or mаking compensation to any person claiming damages against the State, shall ever be passed.”
Plaintiff treats this constitutional text as applicable to both his claim against the Port and against the City. As we shall demonstrate later, the actual basis for the City’s immunity (if any) derives only in part from that of the sovereign. However, this distinction is not important to this portion of the discussion.
Textually, Article IV, section 24, is permissive, not mandatory. Use of the word “may” indicates only that the legislature has the authority to waive immunity, not an obligation to do so. In his petition for review, plaintiff nonetheless argues that, rather than granting constitutional status to sovereign immunity, Article IV, section 24, requires its waiver. Because of the imprecision as to this point in some of this court’s prior cases, we will begin by explaining the basis for sovereign immunity in Oregon. We will then determine the effect of Article IV, section 24.
Sovereign immunity originated in the rule that the English King could not be sued in his own courts. See 1 Pollock & Maitland, History of English Law 518 (2d ed 1898); see also Nevada v. Hall,
The Oregon Territory adopted the English common law in two acts. The first, enacted in 1843, provided:
*514 “The laws of the Iowa territory shall be the law of this territory, in civil, military, and criminal cases; where not otherwise provided for, and where no statute of Iowa territory applies, the principles of common law and equity shall govern.”
Act of July 5, 1843, Ireprinted in Harris, History of the Oregon Code, 1 Or L Rev 129, 135 (1922). The second, enacted in 1844, provided:
“[T]he common law of England and principles of equity, not modified by the statutes of Iowa or of this government, and not incompatible with its principles, shall constitute a part of the law of this land.”
Act of June 27, 1844, Or L 1843-49 at 98, 100, Art III, § 1. Neither Iowa nor Oregon had modified common-law sovereign immunity in 1844. Cf. Metz v. Soule, Kretsinger & Co.,
Statehood did not change the law. Article XVIII, section 7, of the Oregon Constitution, adopted in 1859, provides:
“All laws in force in the Territory of Oregon when this constitution takes effect, and consistent therewith, shall continue in force until altered or repealed.”
The effect of this provision was to incorporate the territory’s pre-existing law which, as we have shown, incorporated the English common law. Consistent with the foregoing, this court since statehood has asserted that the state may not be sued without its consent.
With this historical background in mind, we must determine the role of Article IV, section 24. The parties advance opposing theories as to the effect of that section. Defendants argue that it established sovereign immunity as a constitutional doctrine. Plaintiff claims that the provision was actually meant to require the legislature to waive the state’s sovereign immunity. Neither view is correct.
Although Article IV, section 24, assumes the preexistence of sovereign immunity, nothing in its language establishes that immunity. Indeed, in light of the effect of Article XVIII, section 7, incorporating immunity from prior Oregon law, an explicit incorporation of immunity was unnecessary. Plaintiff, however, would have us determine that Article IV, section 24, intended a waiver of sovereign immunity, contemplating that the legislature would allow actions against the state generally but could not pass any special act to compensate any one individual.
In addressing plaintiffs theory, we begin with the constitutional text. On its face, Article IV, section 24, makes waiver of the state’s immunity permissive: it states that “[provision may be made” for actions against the state. (Emphasis added.) It does not mandate that provision must be made for such actions and, absent later legislative permission, such actions would not have been cognizablе in Oregon courts.
Moreover, nothing in the history of the constitutional conventions of Oregon or of Indiana — the state from whose constitution Article IV, section 24 was taken — justifies a contrary reading. There is no evidence that the delegates to the Oregon convention ever publicly debated the section that
Plaintiff s reliance on the record of the Indiana constitutional convention is equally misplaced. Those debates are, at best, inconclusive on the question, and that state’s highest court would later hold “that the framers of the [Indiana] Constitution assumed that at common law the State was immune from suit and authorized the legislature to modify such liability to the extent it may see fit.” Perkins v. State, 252 Ind 549, 551,
It remains to be determined what purpose Article IV, section 24, was intended to serve. The Oregon Constitution allocates power. See Brown v. Multnomah County Dist. Ct., supra; Deras v. Myers, supra; Linde, supra, 49 Or L Rev at 147. Article IV, section 24, allocates the power to waive that sovereign immunity to the legislature, not to the courts. See Vendrell v. School District No. 26C et al,
The section also specifies the form in which the immunity may be waived, if at all. Prior to statehood, suits against the territorial government were sometimes allowed by special legislative act. See, e.g., Act for the Relief of the Heirs of Ewing Young, Deсeased, of January 31,1855, Special Laws Passed by the Legislative Assembly of the Territory of Oregon 25 (1855). Article IV, section 24, modifies this procedure to require that any waiver of immunity apply generally and that the legislature no longer may allow for recovery by special act. The section is both permissive and directory: It permits waiver of sovereign immunity; it directs the form such a waiver, if made, must take.
To summarize, Article IV, section 24, does not bar the state from holding itself immune from suit. It also does not bar the state from partially waiving its immunity by general law, which it has done in the OTCA. In addition, the section says nothing to prohibit or restrict the legislature’s power to extend partial immunity to legislatively created or authorized municipal corporations like the City and the Port. Thus, Article IV, section 24, did not prohibit the enactment of ORS 30.270(1)(b). Whether some оther constitutional provision prohibits the legislature from extending the state’s immunity to cities and port districts is an issue to which we now turn.
II. ARTICLE I, SECTION 10
Plaintiff argues that the OTCA public body damage limitations deny him his “remedy by due course of law for injury done him in his person” in violation of Article I, section 10, of the Oregon Constitution. Defendants respond that Article I, section 10, is subordinate to the state’s sovereign immunity. The analysis is somewhat more complex than that.
1. The Port and Immunity
The Port of Portland was established by 1891 Or Laws 791 as “a separate district, to be known as The Port of Portland” (Section 1), which was, among other things, to “have full control of [the Willamette and Columbia Rivers] at [Portland, East Portland and Albina], and between said cities and the sea, so far and to the full extent that this State can grant the same” (Section 3). While its functions have been
Other state instrumentalities, including some in the form of municipal corporations, partake fully of the state’s immunity from suit. See, e.g., Vendrell v. School District No. 26C et al, supra (recognizing application of sovereign immunity to school districts); Templeton v. Linn County,
2. The City and Immunity
We turn to a consideration of the plaintiffs rights (if any) against the City. In Oregon, cities have never enjoyed full immunity equivalent to the state’s sovereign immunity. At common law, the state’s immunity from suit extended to municipal corporations only when they were engaged in so-called “governmental” functions. Noonan v. City of Portland, supra,
The “governmental”/“proprietary” dichotomy has received sustained and withering criticism. See Northwest Natural Gas Co. v. City of Portland,
From early on, the legislature let cities avoid that liability, even for proprietary functions, through legislatively-enacted charter provisions absolving the cities of liability. See, e.g., Mattson v. Astoria,
Our struggle with the issue of sovereign immunity and cities came to an end (it might be too much to call it a conclusion) in Noonan v. City of Portland, supra. In that case, the plaintiff had been injured when the high heel of her shoe became stuck in an allegedly defective angle iron that formed the outer edge of the curb of a Portland street. The trial court granted an involuntary nonsuit at the end of the plaintiffs case. Plaintiff appealed.
The City of Portland relied principally on a section of its charter providing that a person injured by a defective street or sidewаlk could sue those persons “on whom the law may have imposed the obligation to repair such defect * * * and also the officer or officers through whose official negligence such defect remains unrepaired,” but could not sue the city itself. Id. at 216 (citing Section 281 of the Portland City Charter). Plaintiff claimed that the charter section was contrary to Article I, section 10.
This court, after an exhaustive examination of the authorities which we need not repeat here, affirmed the trial court. We synthesized our previous jurisprudence as follows:
“We believe that all of our previous decisions were correctly decided and that their reasons were sound, with the exception of those that deemed the maintenance of streets a governmental function. * * *
* * * *
“But the plaintiff contends that Art. I, § 10, Oregon Constitutiоn, prevents the lawmakers from abolishing any common law rights, and that since the charter exemption clause deprives those injured, through the negligent failure of cities to maintain their streets, of their common law right of action against the cities, the clause is invalid. Plaintiff seems to believe that that point of view escaped attention in the consideration of our previous cases. * * * [It has been] said that it was unnecessary to ‘elaborate the rule that the Constitution*521 does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object.’ [Citation omitted.] We held to similar effect in sustaining the validity of a statute which was attacked under Art. I, § 10, Oregon Constitution: Perozzi v. Ganiere,149 Or 330 ,40 P2d 1009 [(1935)]. Article I, § 10, 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. Notwithstanding similar constitutional provisions in other states, the courts have sustained statutes which eliminated the husband’s common law liability for the torts of his wife and which placed the wife upon an economic level with her husband. They have likewise sustained statutes which have abolished actions for alienation of affections, actions for breach of promise, etc. The legislature cannot, however, abolish a remedy and at the same time recognize the existence of a right: Stewart v. Houk,127 Or 589 ,271 P 998 ,272 P 893 ,61 ALR 1236 [(1928)]. We, therefore, conclude that this contention reveals no infirmity in the charter exemption clause.”
Id. at 244, 248-250.
Although it was not even mentioned by the court in Noonan, the court, when it said,
“Article I, § 10, Oregon Constitution, was not intended to give anyone a vested right in this law * * * nor was it intended to render the law static[;] * * * [the only limitation on the] legislature [is that it] cannot * * * abolish a remedy and at the same time recognize the existence of a right,”
id. at 249, could have cited Evanhoff v. State Industrial Acc. Com.,
*522 “[T]he court for the first time had to deal with a law that denied a well-established cause of action — a tort action for personal injury based on negligence — uncomplicated by a traditional common-law immunity. The court side-stepped the issue by noting that the compensation law allowed both the worker and the employer to elect not to be covered. Therefore, it was the parties themselves, not the law, that took away the remedy as in a mutual waiver. [Id. at 518.] Again, the analytical rationale was bolstered by, if not a mere pretext for, public policy balancing. In an uncharacteristic burst of enthusiasm, the court noted:
“ ‘Upon the whole case we are of the opinion that the act violates no prescription of the Constitution of this state or of the United States, and that it was properly passed and is in every respect a valid law. * * * Before its enactment one workman out of three received a large compensation for his injuries by an action at law, while the remaining two were defeated and got nothing. Now every workman accepting its provisions receives some compensation if injured; and, taken as a whole, it will be found that more money in the way of compensation is received by the whole body of injured workmen than by the inadequate remedies afforded in the courts. It has bеen a boon to the employers, the employed, and the community, which latter [sic] could formerly only offer to the injured laborer the charity of the almshouse instead of that just compensation which he may now receive without the humiliation of pauperism or the loss of self-respect.’
“[Id. at 523-24.] Surprisingly, the issue never resurfaced in Oregon courts, although some other states have had to amend their constitutions to accommodate compensation schemes. [Footnote omitted.]
“The courts have, however, confronted other legislatively created schemes that substitute non-judicial remedies for traditionally judicial ones. The same rationale prevailed. * * * [See, e.g.,] Rueda v. Union Pacific Railroad Co., [180 Or 133 ,175 P2d 778 (1946) (Article I, section 10, notwithstanding, parties are free to negotiate agreements that have the effect of сonferring immunity on one of them from action by the other — to hold otherwise would invalidate many arbitration agreements)].”
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 thе 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 whаt 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. See, e.g., Noonan v. City of Portland, supra.
We hold that the limitations of ORS 30.270(1) (b) do
III. ARTICLE I, SECTION 20
Article I, section 20, of the Oregon Constitution, prohibits the granting of privileges to any class of citizens which are not available on the same terms equally to all citizens.
On the other hand, the ability to recover in court against the government for tort damages is a “privilege” of the type contemplated by Article I, section 20. This brings us to the question whether the law allows other citizens or classes of citizens a “privilege” that it denies to the plaintiff. The law does not do that. Plaintiff claims to be a member of two “classes”: (1) victims of governmentally inflicted torts; and (2) tort victims suffering damages in excess of $100,000. Plaintiff contends that the different treatment of such persons’ claims lacks a rational basis in light of the purpose for drawing the distinction. This is a test drawn from federal equal protection doctrine (and akin to “balancing”) that for purposes of Article I, section 20, has been superseded by our more recеnt decisions. Neither of these classes is cognizable under Article I, section 20.
The original target of this constitutional prohibition was the abuse of governmental authority to provide special
Those members of the total population who happen to be injured as a result of negligently created dangerous conditions on a road or other kinds of negligence for which they can hold sоmeone fully liable are not an identifiable “class” who under Article I, section 20, are given special privileges by virtue of antecedent personal or social characteristics or societal status, i.e., they could not already be singled out from the general population before their various accidents. As we wrote in another case involving different rights of children who lose a parent by death or by total disablement:
“As between two children, either may lose a parent to disablement or to death, or first to one followed by the other, as indeed children lose parents who leave the family for other reasons. When the legislature provided for damages for the child’s loss in a wrongful death action, it did not distinguish between children ad hominem, by personal or social characteristics, as illustrated by laws disсriminating against children born out of wedlock that have been found to deny them equal protection. The distinction is not among kinds of children but between the scope of defendants’ liability for causing fatal as distinct from nonfatal injuries to the immediate victims of their negligence.”
Norwest v. Presbyterian Intercommunity Hosp.,
The class of “victims of governmental torts” exists as a separate class from that of victims of private torts only because such a classification is inherent in a system which, like the OTCA, continues partial sovereign immunity. The classification is not based on personal or social characteristics of the asserted “class.” There is no violation of Article I, section 20, on this theory.
IV. DUE PROCESS AND EQUAL PROTECTION
Plaintiff challenges the OTCA under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.
From the foregoing, we conclude that none of plaintiff’s challenges to the damage limitations of ORS 30.265(1) (b) are well taken. The statute is constitutional.
Notes
ORS 30.260-30.300.
We phrase the issue so broadly in order to encompass both the state’s immunity from suit as the sovereign as well as any immunity municipal corporations may have as agencies of the state. See Section II, post (discussing, in part, rules of immunity applying to municipal corporations).
See, e.g., Hoffman, Trustee v. Connecticut Dept, of Income Maintenance,US_,
For other cases analyzing the adoption of the English common-law in Oregon, see Koos v. Roth,
See, e.g., Espinosa v. Southern Pacific Trans.,
We note the idea advanced by the Indiana Supreme Court in Perkins and, later, in Campbell v. State, 259 Ind 55,
Another of plaintiffs arguments is easily dismissed. He cites Article XV, section 7, of the Oregon Constitution to show that the constitutional convention expected claims to be filed against the state. That section provides:
“No State officers, or members of the Legislative Assembly, shall directly or indirectly receive a fee, or be engaged as counsel, agent, or Attorney in the prosecution of any claim against the State.”
Certainly, the delegates to the constitutional convention anticipated that claims against the state would be permitted. There is, however, no reason to think that such anticipation correlated with an intent to waive sovereign immunity. It more probably reflected a recognition of thе political reality that, once the constitution took effect, the legislature might enact general laws allowing some claims against the state. Article XV, section 7, was designed to ensure that when and if claims against the state were permitted, no state official would be allowed to profit from or use his position to influence those claims.
As will be shown by the following discussion, ORS 30.265 eschews this distinction.
Or, it stuck after some backing and filling. In at least two opinions, this court declared that maintaining the streets was a “governmental” function. See Platt v. Newberg,
Compare, e.g., Mattson v. Astoria,
Article I, section 20, of the Oregon Constitution provides:
“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.”
Plaintiff does not contend that the OTCA’s damage limitations were directed against him individually. He also does not argue that any citizen or class of citizens was granted an immunity which was not made equally available to all citizens.
Plaintiffs due process claim is not separately argued in the petition for review. For this reason, we will not separately discuss it.
Concurrence Opinion
concurring.
It is not surprising that Article I, section 10, of the Oregon Constitution has perplexed this court more than any other guarantee in Oregon’s Bill of Rights. Most constitutional guarantees are stated as negаtives, telling officials what laws they may not enact and what procedures they may not omit, but otherwise leaving decisions to retain or alter the substance of the laws to lawmakers. Article I, section 10, on the other hand, combines affirmative with negative guarantees. In a legal system that, like ours, treats its constitution as law, affirmative assurances of government action create a puzzle what affirmative laws the constitution requires.
Article I, section 10, provides:
“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.”
When a statute, contrary to the opening clause, declares that some court procedures may be conducted in secret, the сourt need only hold that the statute is invalid and cannot be followed. Oregonian Publishing Co. v. O’Leary,
Yet this court’s decisions long have held that the “remedy” clause could not reasonably have been meant to lock into the constitution the common law, equitable, and statutory remedies that existed in 1859, although Judge Matthew Deady, who had been a leader of the constitutional convention, had maintained something close to that position. Compare Templeton v. Linn Co.,
“Article I, § 10, 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. Notwithstanding similar constitutional provisions in other states, the courts have sustained statutes which eliminated the husband’s common law liability for the torts of his wife and which placed the wife upon an economic level with her husband. They have likewise sustained statutes which have abolished actions for alienation of affections, actions for breach of promise, etc. The legislature cannot, however, abolish a remedy and at the same time recognize the existence of a right: Stewart v. Houk,127 Or 589 ,271 P 998 ,272 P 893 ,61 ALR 1236 . We, therefore, conclude that this contention reveals no infirmity in the charter exemрtion clause.”
The passage is no more authoritative than others that can be quoted on the opposite side of the issue; in fact, it pretends to no renewed analysis. There is nothing intrinsically absurd in the idea that although statutory and common law remedies may be changed, they must maintain some comparable degree of protection for those interests to which Article I, section 10, refers. In Noonan, the passage is preceded by a quotation from Silver v. Silver,
Stewart v. Houk, cited in the passage from Noonan, in fact helps the present plaintiff, because Stewart followed the reasoning of Eastman to invalidate a statute denying any recovery on behalf of a guest passenger against the owner or driver of the host vehicle. Thereafter the legislature adopted a new statute requiring such a guest passenger to prove that the guest’s injuries were caused by the owner’s or operator’s intentional, reckless, or grossly negligent conduct or intoxication.
Noonan illustrates a point noted in Professor Schuman’s review of Oregon decisions under Article I, section 10. This court has written many individually tenable but inconsistent opinions about the remedy clause; but with one or two exceptions, the court’s broad propositions about changes in existing remedies have given little attention to the clause itself.
In the present case, defendants do not argüe, and it is difficult to maintain, that the harm plaintiff has suffered is not a legal “injury.” A statute might distinguish and deal differently with economic loss from “general damages” for psychic or other noneconomic harm, like the retraction statute in Holden, but the legislature has not done that. The Oregon Tort Claims Act does not deny that all the harm
This is easier to defend with respect to the Port of Portland than the City of Portland. The court notes that the Port is a state agency and partakes of the state’s immunity from unconsented suits, a premise that cannot be avoided without overruling a long line of prior decisions. Therefore, the court can say that the Oregon Tort Claims Act provides a new, though limited, remedy against the Port rather than takes away an old one.
The City is in a different position. Its nonliability for what past cases have termed “governmental” as distinct from “proprietary” functions is not derived from the “sovereign immunity” involved in Article IV, section 24. And the court has allowed legislative immunization of cities from tort liability only on condition that the individuals who are personally responsible for harm qualifying as a legal injury remain liable. Batdorff v. Oregon City,
The Perozzi court swept by the difficulty (among others) posed by Batdorff v. Oregon City,
Professor Schuman observed that the initial approach in Smith v. Smith,
Not every harm, or even every old common law cause of action, necessarily is an injury to a “person,” or to “property,” or to “reputation”; a simple, perhaps debatable, example is an ordinary breach of contract.
ORS 30.260(8) provides:
“ ‘Tort’ means the breach of a legal duty that is imposed by law, other than a duty arising from contract or quasi-contract, the breach of which results in injury to a specific person or persons for which the law provides a civil right of action for damages or for a protective remedy.”