*1 1, 2006, Appeals Argued of Court of and submitted November decision 22, 2008 February judgment circuit court affirmed HUGHES, Lori Gayle for the Estate of as Personal Representative deceased, Marie Dieringer, Jill Review, Petitioner on v.
PEACEHEALTH, a Washington corporation, Center Sacred Heart Medical dba Group, and PeaceHealth Medical Review, on Respondent PHYSICIANS, PC, EUGENE EMERGENCY an Oregon corporation,
Defendant.
S053447)
(CC 16-02-18544;
A123782;
CA
SC
Marjorie Speirs, Wagner, A. of Hoffman, Hart & LLP, argued respondent Portland, the cause and filed the brief for on review. With her on the brief was Janet M. Schroer.
Barry Oswego, Adamson, Lake filed the brief on behalf of himself as amicus curiae. Miltenberg,
Maureen Leonard, Portland, and Ned Center Litigation, Washington, for Constitutional P.C., D.C., filed a Lawyers brief on behalf of amicus curiae Association of Trial ofAmerica. Udziela,
Robert K. Beaverton, filed a brief on behalf of Oregon Lawyers amicus curiae Trial Association.
Judy Attorney Lucas, C. Senior Assistant General, Salem, Oregon. filed a brief on behalf of amicus curiae State of With Hardy Myers, Attorney her on the brief were General, and Mary Williams, H. Solicitor General.
Lindsey Hughes, Keating Hughes, H. Jones Bildstein & P.C., Portland, filed a brief on behalf ofamicus curiae Association of Defense Counsel.
David Runner, Salem, L. filed a brief on behalf of amici *3 Corporation Company. curiae SAIF and Timber Products David Landis, Portland, C. filed a brief on behalf of amici Oregon curiae Medical Association and American Medical Association. Muniz,
Before De Justice, Chief and Carson, Gillette, Durham, Balmer, Kistler, Walters, Justices.**
GILLETTE, J. opinion Durham, J., dissented and filed an in which joined. Walters, J., opinion
Walters, J., dissented and filed an in which joined. Durham, J., ** J., Carson, 31, 2006, participate retired December and did not in the deci- Linder, J., participate sion of this case. did not in the consideration or decision of
this case. J.
GILLETTE, represen- personal wrongful action, death In this appli- challenges person trial court’s tative of a deceased statutory damages cap at ORS 31.710 to set out cation of argues applied damages. that, as Plaintiff award of the in her provisions ofthe two case, ORS 31.710 violates “remedy’ guarantee in Article set out Constitution —the section I, sec- out in Article 10, and the to a set rejected arguments, Appeals those The Court of tion 17. argument along had that the trial court an additional with plaintiffs ordering pay on dam- defendant to interest erred in ordinarily apply. ages We at a lower rate than would award representative’s petition personal and, for review allowed the affirm the decision of the Court follow, for the reasons that Appeals. against brought PeaceHealth
Plaintiff this action wrongful daughter Group after her died Medical death provid- medical under the care of certain PeaceHealth while initially alleged separate wrongful death ers.1 Plaintiff two Oregon’s common law and one under claims—one under the later amended her statute, death ORS 30.020. She single wrongful complaint allege a death claim that did not specify a source of law.2 trial,
After a returned a verdict for dam that included an award of million noneconomic $1 applied ensuing judgment, ages. ORS In the the trial court the noneconomic award 31.710 to reduce judgment, held that In the the trial court also $500,000.3 P.C., Eugene Emergency Physicians, complaint, plaintiff also named In her P.C., However, Eugene Emergency Physicians, jury found that as a defendant. proceeding. entity negligent, involved in this review and that is not was not originally thought that she had to raise a common-law Plaintiff claim, present claim, statutory preserve constitutional her in addition to a However, explained damages. challenge cap as she on noneconomic unnecessary allege a court, ultimately determined that it was to the trial she separately, it out of her purpose so she chose to leave claim for that common-law *4 complaint. amended 3 provides, part: ORS 31.710 “(1) any seeking exceptions], dam- specified civil action [With certain distress, injury bodily injury, including ages arising emotional or of out care, comfort, including damage any person claims for loss of property one 146 payable damages
interest using on the award was to be calculated special 82.010(2)(f), rate, lower set out in ORS judgments against providers malpractice medical in medical actions. appealed. argued application
Plaintiff
She
statutory cap
damages
on noneconomic
violated her
Oregon
to a
I,
trial under Article
section
of the
Con
Remedy
stitution, as well
I,
as the
Clause of Article
Appeals
application
10. The Court of
affirmed the trial court’s
damages cap, relying
of the
on the fact
Greist v.
Phillips,
(1995),
322 Or
petition to con arguments, plaintiffs sider those as well as to consider special contention that interest rate set out at ORS 82.010(2)(f) applied should not be to her award.
ARTICLE SECTION 10 plaintiffs application We first consider claim that statutory cap to her death claim violates the remedy provision a provides: Constitution, which justice secret, “Nocourt shall be but shall be adminis- openly purchase, completely tered, and without and with- delay, every remedy by out and man shall have due course companionship society consortium, and loss of the amount awarded for $500,000. noneconomic shall not exceed
“(2) As used this section “(b) damages’ subjective nonmonetary losses, ‘Noneconomic means including distress, pain, suffering, but not limited to mental emotional humil- iation, injury reputation, care, comfort, companionship society, loss of consortium, loss of inconvenience and interference with normal and usual apart gainful employment.” activities from Appeals rejected plaintiffs The Court of also claim that the trial court had 82.010(2)(f). applying specified Hughes, erred the interest rate at ORS App at 622-24.
147 person, property injury him in his for done of law reputation.” provision. Remedy clause of that Clause is the last 83, 23 Inc., 332 Or Transfer, v. In Smothers Gresham methodology analyz (2001), out a 333 this court set P3d ing Remedy I, 10. The claims under Article Clause Remedy Clause that a claim under court announced should be resolved questions: of two terms OregonConstitu- “[First,] the drafters wrote the when Oregon recognize common 1857, law of tion in did the allegedinjury? If the answer to that for the cause of action question yes, the com- and ifthe has abolished is injury rights pro- that are action for mon-law cause of tected question remedy clause, is then second constitutionallyadequate provided substi- whether has remedy action for that tute injury.” for the common-lawcause of Id. at 124. analy challenge foregoing under the
Plaintiffs first
action at issue—an action for
sis is to establish that the
among
daughter, seeking damages
wrongful
for,
her
death of
suffering
things,
physical and mental
other
the deceased’s
“society,
deceased’s
serv
her death and the loss of the
before
recognized by
companionship”
ices, love and
one
—is
acknowledges
Oregon Plaintiff
the common law of
1857.
that, on numerous occasions
that this court has stated
entirely
Oregon, wrongful
cause of
an
e.g.,
See,
v.
in the common law.
Storm
action and has no basis
(2002) (stating
McClung,
4,
222 n
Because it also relates to under discussed below—and because prevail plaintiffs must win it to choose to focus first on —we argument respecting the status of death actions in *6 Oregon regard plaintiff attempts in issue, 1857. With to that contrary that, to show to the numerous to the statements contrary Oregon wrongful in cases, a common-law action for did, death adopted.5 exist in 1857 when Article 10, was suggests
Plaintiff first that the common law of Oregon incorporated Campbell’s in 1857 Lord Act, 9 & 10 (1846), English provided Viet, ch 93 an 1846 statute that a decedent’s administrator had a of action for the bene- fit of certain relatives in cases of death. Plaintiff provisional legislature adopted notes that the 1844 “the stat- Territory’ ute laws of the Iowa as well as England principles equity, “the commonlaw of of not by government, modified the statutes ofIowaor ofthis incompatible principles.” with its by Legisla- Laws of a General and Local Nature Passed Legislative Assembly [of Oregon tive Committee and Pro- (1853). Legislature], p visional 100 Plaintiff further notes Congress Oregon Territory that, when established the provisional government 1848, the laws of the were carried forward, forward6 and that the territorial laws were carried Oregon turn, 1859, XVIII, under 7, section ofthe 5 arguments properly Certain of the historical that we describe are more support plaintiffs position. attributed to various amici who have filed briefs in simplicity, identify arguments plaintiffs. For the sake of we those as 6 August Oregon, Act of to Establish the Territorial Government of 1845-1864). Oregon, pp (Deady § General Laws of 75-76
149
given that succession of
contends
Constitution. Plaintiff
gov-
Oregon Territory
that the
and the fact
enactments
jointly by
Britain and the United States until
Great
erned
up
organic
laws of Great Britain
1848, it is clear that the
incorpo-
including
Campbell’s Act—were
Lord
date —
common law at the time of statehood.
rated into this state’s
argument
difficulty
foregoing
with the
is
has taken a different view of those enactments
this court
with
relationship
respect
this state’s common
to the
between
organic
England.
law and the historical
law of
The court has
that, when “our territorial
and the framers
stated
recognized
our
and our courts
the existence
Constitution
they
Oregon]
[in
have had reference
ofthe common
must
existed,
as it
and amended
to that
law
modified
English
passed prior
[American]
statutes
Revolution.”
(1919)
Peery
(emphasis
Fletcher,
43, 53,
v.
93 Or
Plaintiff status of also common-law Oregon general death in evident from a more English legal history. examination of and American She begins by examining origins “rule” of the aforementioned jurisdictions and most other American followed that there was no common-law action for
wrongful death. She modemly, agreement, at notes that there is wide the rule arose out of a least single judge’s in ill-considered dictum English Camp decision, Bolton, Baker v. 1 minor 1808 (1808). Eng Rep 170 1033 She further notes that that dictum “felony merger” apparently doc- was on the so-called based eighteenth peculiar nineteenth cen- trine, a feature of felony tury English then observes that the law.7 Plaintiff 7 that, essence, felony merger wrongful act simul In doctrine held when inju felony, private seeking damages taneously for a tort and a action constituted felony. prosecution by merged act into the Crown’s ries caused the tortious was, early English perhaps, acknowledgment of the realities of the The doctrine an Crown, leaving system: property justice his to the A convicted felon forfeited 150
merger widely that, doctrine has been criticized and in Moragne v. State Marine Lines, 1772, 26 398 US 90 S Ct (1970), Supreme L Ed 2d 339 the United States Court expressly rejected it in the context of a maritime forfeiture proceeding. plaintiff points side,
On the affirmative practice, employed early England, ancient Germanic requiring monetary reparation family to the victim’s for a wrongful killing. acknowledges Plaintiff that, at least for a England, emergence felony merger while in doctrine early practice. argues, stifled that however, She that the fel- ony merger ultimately rejected England doctrine that it never was followed in the American never, states — Supreme least, at until 1848, when the Judicial Court of adopted suddenly Carey Massachusetts it rather v. (1 Cush) (1848). Carey, Co., Berkshire R. 55 Mass After jurisdictions asserts, courts other American “blindly” Carey, pronouncing followed an as article of faith wrongful death actions had no basis in the common law. signifi- contends, however,
Plaintiff
that there is a
body
showing
Carey,
cant
of evidence
that, before
American
recognize
courts did
common-law
In
claims.
support
argument, plaintiff
of that
commends to this court a
exemplify
list of
view,
cases
her
that characterization
of earlier American law.
cases, however,
Plaintiffs list of
persuasive.
by
Most of them involve actions
slaveowners
seeking damages
negligently
in Southern states
for the
caused death of a slave. Those cases did not involve actions
present
for
but, instead,
death in the
sense
were
asserting
damage
“prop-
actions
of,
to,
tortious conversion
(Ark 1856)
erty.”
(master
e.g.,
See,
Martin,
Brunson v.
of slave was entitled to action overseer recoup damages for value of slave who died as a result of rebellion), “negligent” handling overseer’s of slave v. Western 1855) (master Ky (Ky App Pollard, 55 who slave employed pursue drowned while contractor could com- services). negligence mon-law action for value of slave’s nothing private damages. Lines, Moragne suitors to collect in v. States Marine (1970). 375, 382-84, 1772, 26 398 US 90 S Ct L 2dEd
151 remaining Many from the Massachusetts of the ofAssistance in the late seventeenth cases—cases century suggest Court — unspecified only ended an nature that some death cases of being pay some amount to with the defendant ordered of the cases on which And, while few victim’s survivors.8 willing courts were to enter- relies show that some son or action the loss of the services of his tain a man’s for provide for a conclu- wife,9those cases an insufficient basis seeking damages parent’s for mental suf- sion that a action fering, society, injuries and similar caused loss of wrongful recognized a child or would have been death of century early under the common law of nineteenth America. suggest colonial, the evidence does is that the What early manage America often did state, and local courts arrange compensation by persons kind or entities for some responsible wrongful for a death to the decedent’s survivors. haphazard arrangements had But, before those somewhat clearly coalesced into a defined common-law civil action for wrongful legislatures stepped death, various state into the began legislation explicitly providing for breach wrongful enact statutory enactments, death actions. those With develop efforts to a common law of death came to a suggested, halt. As one commentator the sudden and has almost universal conversion of American courts the mid- century nineteenth to the rule Baker v. was in direct Bolton response nearly contemporaneous pro- trend toward viding statutory wrongful remedy: simply, Quite remedy recognize courts were reluctant a common-law newly might compete adopted with their states’ Malone, death statutes. See Wex S. The Genesis (1965). Wrongful Death, 17 L Rev 1068-73 Stan “|h]ad goes speculate that, same commentator on to sev- legislatures remained insensitive to the death eral state 8 group early in Wex S. Plaintiff refers to a Massachusetts cases summarized (1965). 1043,1063-65 Malone, Death, Wrongful 17 Stan L Rev The Genesis of Superior example, in 1794 that a husband For the Connecticut Court held resulting against surgeon malpractice ofthe in the death had a cause of action 1794). (Conn Guthery, Super In 1 Am wife. Cross v. 2 Root Dec husband’s (NY Monroe, 1838), Supreme Sup of the Judicature 20 Wend 210 Court Ford v. negligence to recover the value of New York held that a father could sue son, defendant’s servant had minor who had been killed when the services of his driving gig. run over him while the defendant’s problem, obliging open field, thus the courts to face it in an can be surmised that a common-law death action ofsome kind would have unfolded on the American scene.”Id. at 1073.
What, then, can conclude of an we about status *9 wrongful action for death under the common law as it existed Oregon 1857, when the drafters of the Constitution Remedy Oregon included the Clause the Constitution? by Can that we conclude the evidence of scattered efforts jurisdictions provide compensation courts in other some negligently cases caused death is sufficient to meet the requirement test, 124, first under the 332 Or at Smothers Remedy i.e., that, Clause the drafters “when violation — ** * Oregon 1857, wrote the Constitution in the common law Oregon recognize alleged [d] a cause of action for the injury[.]”? end, In the we do not think that we can. In that regard, plaintiff actually asking we note that is for two things: First, she asks us conclude that a cause action for wrongful 1857; then, however, death existed she immedi- ately her claim the seeks to avoid limitation on on ground contrary that the limitation is to the common as pertained injury. History 1857, it existed before to her accept if will not stand that strain. Even we were to the general notion that there was some in the movement com- early century might, mon law of the nineteenth had it eventually grown alone, been left recognition have into a common-law wrongful action, of a death there is no for us basis recog- common further to conclude that the law have would plaintiff injuries particular nized the cause of action that now seeking damages for all occa- asserts—-an action including by wrongful family member, sioned the death of a suffering society care, mental and loss of without limita- any plaintiff persuade In end, tion of kind. has failed to us statutory damages cap that the remedy at ORS 31.710 abolishes a I,
that was available at common law when Article Smothers, under 10, that, section plaintiff was drafted. It follows “remedy” seeks does not have a she I, under Article section 10. I,
ARTICLE SECTION applied plaintiff’s that, as We turn to contention action, her ORS 31.710 violates Oregon guaranteed by I, 17, of the Article section rejected— noted, this court considered—and Constitution. As argument contends, Plaintiff identical Greist. an almost light cases, Greist no that, in of certain more recent however, longer good law. present trial court case, as in the Greist,
In
jury’s
damages cap
applied
at ORS 31.71010to reduce a
noneconomic
award in a
death action
challenged
brought
under ORS 30.020.
I,
Article
and Arti
reduction as violation ofboth
section
(Amended),
3,
Constitution, on
cle VII
ofthe
theory
cap
interfered with the
assessment
foregoing provisions,
an
fact
under
issue of
was
jury.
reserved to the
This court held that the
to a
guaranteed
pertain
trial
wrongful
did not
noted, first, that,
death actions. The court
under
“
long
applied ‘only
cases,
line of
Article section
in those
customary
classes of cases in
at the time
which
”
*10
adopted
the constitution was
or in cases of like nature.’
(quoting Molodyh
322 Or at
Greist,
293
v. Truck Insurance
(1987)).
Exchange,
290, 295-96,
304 Or
As out, case is however, this court disavowed the latter statement from Products, Greist in Lakin v. Inc., Senco 987 P2d (1999). court noted Lakin that: “Oregon power trial courts never have had the to reduce a judgment verdict or to enter for a amount of lesser damages objection prevailing party, over the who always reject judicial could remittitur and demand a new
jury trial.” (emphasis original). at fact, Id. In this court concluded applied ordinary negli- in Lakin in an as common-law gence damages cap action, at violated Article sec- issue plaintiffs right tion because interfered with a to have a including damages assess noneconomic — —in Notably, suggested such actions. the court that Greist was “distinguishable” unlike because, from Lakin common- negligence case, law action at issue the latter recognized death action at issue Greist “was not one at common law or under the Territorial Law when Arti- adopted.” cle section was Id. at 77.
We continue to adhere to that view:Lakin and Greist *11 distinguishable precisely because, are from each other as is wrongful parameters here, case, true Greist was death subject legislative adjustment time of which are from contends, however, time. Plaintiff that Greist does not con- expressed cases, idea, front the in some of this court’s earlier guarantees I, 17, that Article section customary is not confined to the class of cases which was
155 applies See State v. like nature.” to cases “of also but Touring P 701 254, 251 al, et 120 Or Car Studebaker 1920 standard). (1927) (using later cases and 1920 Studebaker Based on terms, 17, in similar I, section describe wrongful argues ordinary nature” to an is “oflike death action that her regard, injury personal In that action. common-law argues: she negligence and, in ofliabil- action terms medical “Thisis a proof required
ity, have been neces- as would is the same permanently deceased] sary [the but been survived had diagnose injured by treat her the defendant’sfailure wrongful only appropriately. this distinction between injury personal the same actionbased on actionand a death damages, liability parents’ i.e.,the nature ofsomeofthe facts is the ‘society, daughter’s services,love and their loss of companionship’.” plaintiff argues, action is her And, because injury personal to a action, she has the same like a judi- by legislative damages, or determination unfettered ordinary personal plaintiff in an cial injury that a interference, enjoys Article I, under this court’s action decision Lakin. clearly expansive disagree. con claim Plaintiffs
We
principle
in the
has invoked
that this court often
flicts with a
arising
17—
under Article
context of recent cases
law that creates
17, is not a source of
that “Article section
theory
recovery
in favor
claim or a
retains a substantive
any party.”
(2002);
(2005)
412, 422,
see also ); (quoting Huffman, DeMendoza v. Jensen (2002) (same). plaintiff rule, Under that 446, 51 P3d damages, both in of her determination entitled to only type the extent that the substantive amount, provides. pertaining her claim so statute, i.e., the holding in Lakin to need not further discuss We respect to affairs with conclude that the state of always quite from different has is—and death actions been— case. As discussed in that claim at issue common-law previous expressed cases— court in this above, the view *12 156 wrongful Oregon purely statutory
that death in and has no secure basis the common law as it existed in 1857—is cor- differently, rect. Stated 1857, there was no clear common- respect necessary law tradition with to the elements of a wrongful might bring death action, or who such an action, or damages what sorts would recoverable, be should such a recognized. cause of action be is, That terms, Lakin there defining damages wrongful was no common-law rule for all, death at much less one that identified the amount that compensate plaintiff injuries resulting would wrongful for from the legislature
act. The therefore retained the author- ity right wrongful to define the to recover for death, the authority authority recover, decide who could and the damages establish the nature of the that were recoverable. did no more. Oregon legislature When the enacted a law in 1862 providing wrongful belonged death action person’s personal representative, deceased and that “injury by cause of action was for sion that would have done the same act or omis-
supported an action the deceased, “damages lived,” had he or she and that therein shall not Oregon, exceed five Code, dollars,” thousand General Laws of Civ p (Deady 1843-1872), § IV, ch VI, 367, title & Lane defining including it was the measure of dam- action— ages respecting byjury, a clean slate. No issue arose trial —on always practice, because that been, has a as matter of way notwithstanding, such cases had been tried.12That fact surprising challenged it should not be that no $5,000 one limitation in the statute as I, inconsistent with Article section wrongful plaintiffs preexisting 17: Because death had no sub- compensation any injuries stantive common-law resulting they argue act, from the could not $5,000 limitation interfered with the unfettered deter- damages. mination of their precisely plaintiff today
For reason, same cannot argue damages cap that the noneconomic at ORS 31.710 vio- lates her to an unfettered determination of dam- ages: Because the common not, law does and did not in separate question respecting by jury case, No arises trial in this inasmuch as plaintiff Moreover, aware, wrongful had such a trial. so far as we are death cases always jury. have been tried to a damages recognize to unlimited respect- only law source of substantive actions, the relevant expressly places statutory ing damages law, which is the any right damages. cap to a Thus, on noneconomic might Article cannot have under kind or amount of to a award of a confer contrary conclude, short, law.13We that is that the
damages cap does not violate at ORS 31.710 Constitution.
THE STATUTE INTEREST *13 finally, plaintiffs argument come, that We ordering pay erred in defendant to interest on trial court plaintiffs damages ordinarily than
award at a lower rate apply. would money judgments subject general, are to a nine In 82.010(2).
percent per annum interest rate under ORS How- exceptions percent rate, ever, there are some to that nine 82.010(2)(f): including the one set out at ORS judgment on a rendered in favor of a “Therate interest damages injuries plaintiff in a civil action to recover for person resulting professional negligence from the of a * * * by the Examiners is the licensed Board of Medical percent percent per or three in excess lesser offive annum rate in effectat the Federal ReserveBank ofthe discount injuries the Federal Reservedistrict where the occurred.” plaintiff, defendant After the returned its verdict for judgment specifying interest rate set a form of submitted out in ORS objected 82.010(2)(f) applicable rate. Plaintiff as the specifying judgment, and her own form of submitted accepted percent trial court and a nine interest rate. The rejecting judgment, implicitly entered defendant’s form of appeal, objections plaintiffs the reduced interest rate. On assigned application of the to the trial court’s error constitutional rate on reduced interest point precisely is not a source of sub It —that appreciate. dissenting opinions Statements to that that the fails to stantive Jensen, Lawson, wholly contrary argument and DeMendoza defeat effect in both dissents. grounds, Appeals but the Court of affirmed the trial court. App at 622-24. plaintiff argues, court, Before this first, that ORS 82.010(2)(f) apply money judgment against does not to her defendant ages her because action was not one to “recover dam- injuries resulting professional negligence”
for from meaning within the of that statute. Plaintiff contends “injuries” the term is used in the statute the narrow sense bodily injury, exclusive death —the outcome in her daughter’s variety that, case. She notes in a of statutes, the separately damages “injury” refers for 30.265(2) damages e.g., (public See, for “death.” ORS bodies injury any person”); immune from “claim for to or death of 30.805(1) (no person may ORS ages maintain “an action for dam- injury, resulting person death or loss” from acts of (con- providing assistance); emergency medical ORS 31.600 tributory negligence recovery recovery no bar to in action to injury person property”). “fordeath or She con- legislature’s ordinary practice, cludes significant view it is 82.010(2)(f) specify that it did ORS special applies injuries interest rate to actions for or death resulting professional negligence. from agree Appeals,
We with the Court however, *14 legislature “injuries” intended the term in ORS 82.010(2)(f) legal any in the broad sense of a vio- violation— legal rights considering lation —of the of another. In explanation issue, we can think of no rational for the statute meaning plaintiff that would accommodate the contends Why provide money judgments for: a limited interest rate on malpractice only patient actions, medical but if the did not significant Moreover, die? we think that it is that ORS 82.010(2)(f) plural “injuries”—while uses the all of form— plaintiffs statutory examples “injury” refer to and “death” in singular. plaintiffs singular examples, In form is legislature identifying category used because the bodily “injury,” opposed as to “death” or “loss.”The harms — fact that ORS 82.010(2)(f) “injuries”— plural uses the form— legislature focusing a cat- demonstrates egory on “injuries” diverse, on in a collective sense. ofharms but sum, In think we that it is clear from text and context “injuries” alone that the 82.010(2)(f) used the term in ORS any legal right. to refer to violation of a It follows money judgment damages injuries at issue for here — plaintiff negligence subject that resulted from medical —is 82.010(2)(f). provided to the interest rate in ORS argues, finally, Plaintiff that the trial court erred in 82.010(2)(f) applying money judgment ORS to her because provision violates Article I, of the provides: Constitution. Article passed granting any law “No shall be citizen or class of privileges, upon immunities, citizens which, or the same equallybelong terms, shall not to all citizens.” unpersuaded by plaintiffs arguments However, we are and they do not think that warrant an extensive discussion. The trial court did not err. Appeals judg-
The decision of the Court of and the ment of the circuit court are affirmed. dissenting.
DURHAM, J., The trial in this death action returned a verdict for that included an award of million in $1 damages. jury, noneconomic After the court dismissed granted the court the motion of defendant PeaceHealth to part pursuant reduce that $500,000 award to places upper “cap,” ORS 31.710.1That statute an limit, or damages any $500,000 on the noneconomic award “in civil ORS 31.710 provides, part: “(1) specified exceptions], any seeking [With certain civil action dam- ages arising bodily injury, including injury distress, out of emotional or property damage any person care, comfort, including one claims loss companionship society consortium, and loss of the amount awarded for $500,000. noneconomic shall not exceed
“(2) As used in this section: “(b) damages’ subjective, nonmonetary losses, ‘Noneconomic means including distress, pain, suffering, but not limited to mental emotional humil- iation, injury care, comfort, reputation, companionship society, loss of consortium, loss of inconvenience and interference with normal and usual *15 apart gainful employment.” activities from bodily injury, including damages arising seeking out of action * * * * * * * * any person one death argues of one-half of that the elimination Plaintiff pursuant award to ORS noneconomic the right a trial an interference with her 31.710 constitutes Oregon Constitution, under Article provides: which by Jury shall remain right
“In civil of Trial all cases inviolate.”
According plaintiff, a “civil case” within this action is phrase meaning and, cases” as “all civil of the constitutional cutting jury’s noneco- action of result, the trial court’s plaintiffs jury damages award in half undermines nomic right. trial majority disagrees argument because, with that
The
recognize,
majority
law did not
contends, the common
damages wrongful
death
now, “a
to unlimited
1857 or
**
majority
also asserts
*.”
historically
authority
had
to reduce the
amount of
objection
aggrieved party.
verdict over the
Lakin
authority
concluded that that
did not exist. 329 Or
76.
at
in
That flawed conclusion Greist
basis
was the
for the court’s
jury
right applied wrongful
determination that no
death
trial
proceedings.
deciding,” did, as Greist that a personal injury death action is nature” “oflike to a action to jury which the trial attaches.2 assumed, deciding, plain stated that it Greist without correctness of the argument personal like tiffs that a action was “of nature” to a injury action: however, argues, strictly “Plaintiff to a trial is ‘not lim- 17,] [Article to cases in which
ited it existed when became “distinguisha- declaring that Greist was Second, only that court concluded 77, the Lakin Lakin, 329 Or at ble,” provided the resolution of no assistance Greist endorse, and had no Lakin-, the court did trial issue the statu- endorse, the view stated Greist occasion wrongful death, tory at such as of an action nature case trial. Other to a the constitutional eliminates the error discussed, shows never cited or law, that Greist that view. understanding scope ofthe then, the correct
What, phrase “all legal disputes civil constitutional to which the important addressing question, applies? it is In cases” part, (Amended), states, in Article VII recall that controversy “[i]n shall law, where the value actions at preserved by jury shall be $750, the exceed * * added.) Molodyh, (Emphasis court described In this *17 range implied of provision limitation on as an the latter applied con- 17 apply I, Article section which “civil cases” to literally right jury in all does not trial firmed that the Molodyh a contract concerned at 295. matters. 304 Or civil Using policy. regarding the more an insurance action (Amended), terminology sec- recently adopted in Article VII interpretive principle expressed Molodyh court 3, tion the regarding right jury as follows: trial the claimed dispute long “[A]s an action at is tried as this formof as jury required.” law, trial is a added). provision (emphasis Each constitutional Id. at 297 mean- provides helpful of the determination context for the (Amended) Although ing creates Article VII the other. of jury controversy” qualification trial on the “value in $750 ’ nature” to those effective,’ right ‘cases “of like extends to because the adopted. Plaintiff was the constitution law at the time at common existed actions; injury personal 1857, jury right trial existed for argues action; and, injury personal to a is ‘oflike nature’ death action that a premise accepting the thus, here. Even right to a trial attaches action, plain- injury personal to a like nature’ death action is that a ‘of I, the constitu- prevail. When Article section argument not would tiffs tion damages to be amount adopted, a determination were judicial alteration.” protected actions was awarded tort from added). (emphasis at 294 right, appears disputes it that the forms of that the two con- provisions address, i.e., “civil cases” and “actions stitutional at substantively law,” are identical. This court’s case dis- interpretation. below, confirms the correctness ofthat cussed part original early construing Constitution. This court’s cases provision preserved right recited that it trial as it gave statehood, existed at or before but no clear indication of the nature “civil cases” to which the e.g., See, attached before statehood. Deane v. Willamette (1892) (“This Bridge provision 22Co., 167, 169, 29 Or P 440 by jury. the constitution creates no ply to trial new It sim by jury secures to suitors the to trial in all cases where that existed at the time the constitution was adopted.”). explained
This court
the reach
of Article
Touring
17, in 1927 in State v. 1920 Studebaker
al,
Car et
(1927).
police
Or
The wife had no that her husband had transport intoxicating liquor. used her car to Nevertheless, statutory proceeding the state commenced a in rem to forfeit state, the vehicle to the because the husband had used transport liquor. a bottle of The statute authorized the wife to proceeding by filing enter the forfeiture as a defendant property any statement of her interest in the as well as ground for a defense to forfeiture. The wife did so. The statute expressly try also authorized the circuit court to the forfei- proceeding jury.” question *18 ture “without a Id. at 257. The provision deprived before the court was whether that the wife of her under Article Consti- try proceeding jury. tution to forfeiture before began by reciting, previous
The court as it had in proposition pre- cases, the broad that the state constitution jury served the trial as it had existed at statehood: byjury guaranteed “The of trial the Constitu- every state, tion of this embraces case where it existed Constitution, within adoption before the of the and is not any deprives enact law which power ofthe here, any litigant right. of that Hence if as contended for ofthe Constitution ofthis appellant adoption this before state, in determined of whether her having question forfeited, would have entitled to a property should be been act, jury right, deprives trial as a matter of then this since it * * right, is unconstitutional and void her of such (citations omitted). Id. at 259
The court then concluded that a forfeiture of prop- for a viola- erty analogous imposition penalty that, tion of trials had traditionally, accompa- law nied authorities enforce legal judicially efforts criminal felony in the context of penalties, including proceed- The court then division ings. explained three-part courts at statehood that con- Oregon’s provided specific text for the constitutional trials in “all civil cases”: adopted,
“At Constitution was the time when our state according extent of courts were classified to the nature and jurisdiction, proceeding, princi- their forms of or the their they justice, either as ples upon which administered courts admiralty, of law. Controver- equity, courts of or courts concerning rights property sies forfeitures of or could be courts, since adjudicated only in some one or more of these contro- country in this there were no other courts which adjudicated.” versies of that nature could be Id. at 261. admiralty in courts of explained court no constitutional right applied:
courts of equity, admiralty jurisdiction had to enforce forfei- “Courts of jurisdic- tures, presence jury, aid of a but its without the or admiralty arising under the tion was limited to cases maritime jurisdiction to enforce a for- and it never had where the seizure was made on land. feiture aid always have refused to lend their equity “Courts of forfeiture, ‘It is a well-settled and to the enforcement of a doctrine,’ says Pomeroy, ‘that a court of familiar Professor entitled party will not interfere on behalf of equity forfeiture, him to his thereto, but will leave and enforce *19 remedies, any, though might if even the case be one legal defaulting equitable given which no relief would be apparent exceptions The few party against the forfeiture. exceptions, they depend this doctrine are not real upon since all * * are, fact, principles. other rules and There no doctrine; exceptions appear excep- to this those which to be (3 realty.’ ed.), Eq. tions are not so in 460.” Pom. Juris §§ Id. at 261-62.
The court of and admir- distinguished courts equity law,” from “courts of to trial alty by jury, by which tradition, did apply: justice
“Courts of law according administer to the rules of the common and are held for the trial of civil causes presence jury, with the and aid aof and where there are determined, ordinarily issues of fact to be the trial must be by jury.”
Id. at 262. The “rules of the common law” a ref- phrase (as erence to the of law jurisdiction courts opposed courts of under equity admiralty) English American common-law That did refer systems. phrase only to claims or specific causes of action under cognizable the common law.
The court made that clear in a point succeeding pas- sage rejected addressed the state’s argument the statutory character of the forfeiture and its proceeding, enactment after adoption constitution, of the state precluded constitutional any trial: argued proceedings
“It is that these concern matters respect prohibitory adoption laws enacted since the ofthe Constitution, guar- and for that reason are not within the Constitution, antee of the and that controversies concern- ing may disposed by violations of them the courts in be any adopt. manner the sees fit to The answer to is, by this contention that the constitutional construed, narrowly is not to be and is not limited strictly adop- to those cases in which it had existed before Constitution, tion but is to be extended to cases like * * * they may nature as arise. hereafter contended, however, procedure
“It is because special statutory proceeding authorized this act is a against specific offending property, pro- rem certain law, and therefore does ceeding unknown to the common sought property not entitle the claimant or owner of forfeited to a trial. be
“Where, case, land, as in this the seizure was made on and a libel or information was filed to condemn the seized *20 property, rem, purely proceeding which as in this case was a adoption
the rule before the of the Constitution was law, is, that the is at common and that the and still claimants or owners of the suit property are entitled to passed forfeiting can be the seized judgment trial before property.” added). at
Id. 263-64 (emphasis the relevant inquiry The court also confirmed that law, of the whether, under the traditional scheme common a court of admir- underlying dispute by the would be resolved a court of or a court of law: alty, equity, R.C.L., stating the law page applicable
“In 12 forfeitures, say: the authors
“ seizure, ‘In the trial of all cases of on land or on navigable, the court sits as a court of common waters not at law where there are and as all cases common determined, by jury. the trial must be issues of fact to be navigable made on waters In cases however of seizure and, admiralty, sits as a court of as in cases of the court admiralty jurisdiction generally, and maritime it is set- Although court. the two tled that the trial is to be the tribunal, they are as jurisdictions are vested in the same in differ- they from each other as if were vested distinct tribunals, can no more be than a court ent blended ” chancery with a court of common law.’ Id. at 265-66. that it had set analysis
The court then the applied that the forfeiture proceeding out. There was no contention of the because the seizure admiralty, in a court of belonged discussion, the court lengthy made on land. After car was the did not invoke statutory proceeding concluded that the the statu- is, That a court of equity. jurisdiction remedial the wife’s property, divestment of sought tory proceeding property. an use of illegal to restrain not an injunction against involved an action statutory proceeding fact that the alter that conclusion: itself did not the property authorized proceedings “The fact because personam and not in does this act are in rem under from that of a common-law the character of the suit change question equity, nor does it affect action into a suit by jury in this case.” of the owner to a trial Id. at 269. had a concluded that wife ultimately
The court
for-
in the
state constitutional
the legislature’s
The court declared
feiture proceeding.
should
without
try
proceeding
court
requirement
of the
beyond
power
“merely surplusage,
* *
court remanded the
enact
*.”Id. at 271. The
legislature to
a jury.3
case for a new trial before
court has cited and followed 1920 Studebaker
This
1927. Not once has this court reconsidered
consistently since
result
in that
reasoning
any aspect
or withdrawn
*21
(1969),
Gann,
quoted
court
with
Or
Any analysis of the question whether right applies here must with the begin statute that describes the wrongful action, ORS 30.020, which provides, part:
“(1) When the death of a person by is caused another, act or omission of personal represen- decedent, tative of the for the benefit of the decedent’s sur- viving spouse, children, surviving surviving parents and individuals, other any, if who under the law of intestate succession of the state of the decedent’s domicile would be personal entitled to inherit the and property decedent, any stepchild for the benefit of stepparent or whether that stepchild stepparent or would be entitled to inherit the personal property not, may the decedent or maintain an against action if wrongdoer, might the decedent have action, maintained lived, an had the decedent against wrongdoer for an injury by done the same act or omission. The action shall be years commenced within three after the injury causing the death of the decedent is discovered or reasonably decedent, should have been by discovered personal the the representative by person for whose benefit may brought
action be person under this section if that wrongdoer. is not the
“(2) In an action under damages may this section be awarded in an amount which:
“(a) necessarily Includes reasonable charges incurred services, services, services, doctors’ hospital nursing services, other medical burial services and memorial serv- *22 decedent; ices rendered for the
“(b) justly, Would fairly reasonably compen- and have disability, sated the decedent for pain, suffering and loss of injury during period to the decedent the between income death; and the decedent’s
“(c) fairly reasonably compensates Justly, for and pecuniary estate; the loss to decedent’s “(d) reasonably compensates Justly, fairly the and stepparents spouse, stepchildren, children, and decedent’s society, pecuniary parents panionship the com- for loss and for loss of decedent;
and ofthe and services “(e) finding puni- Separately verdict, stated damages, any, if which the decedentwouldhave been tive wrongdoerif had entitled to recoverfromthe the decedent lived.” legislature a 30.020,
In ORS has created statu- tory per- claim for extension of the traditional common-law injury recovery damages by authorize a sonal injured family injury party’s members when the is so severe recovery that it results in death. The vehicle for that is an 30.020(1). against wrongdoer.” “action ORS The author- remedy puni- noneconomic, economic, ized is an award 30.020(2). damages against wrongdoer. tive ORS at “civil
ORS 30.020 embodies an “action law” and a meaning guarantees case” within the trial in our (Amended), § Const, Art I, 17; state constitution. Or Art VII differently, § 3. in the Stated the courts of law established have common law before statehood would action at law that the addressed authorizes, death statute jury. would have tried the action to a In no sense is that action one that would have been addressed at common law admiralty. equity courts of or courts of unnecessary common It to decide whether law recognized, specific wrong- statehood, before a tort claim for according right, Studebaker, ful death. The to 1920 at statehood and extends to actions at law that were known may arise after also to cases of like nature that statehood. authority, example, complete for has statutorily injured parties bring defined action authorize at law in from a tortfeasor courts to recover causing wrongful action at law death. Such ordinary claim an common-law tort is a case of like nature to range injured party can recover similar which *23 damages, though injury stops causing even the short of Properly interpreted, right jury death. the constitutional to a applies trial to the trial of each of those actions at law. majority concluding application
The
errs in
statutory damages cap
jury’s
in ORS 31.710 to the
ver-
plaintiffs right
jury
dict here is consistent with
trial. Lakin
explains why application
damages cap
of a
interferes with
jury’s
damages
full effect of a
law.
assessment of
in an action at
By
reasoning,
Jensen v.
334 Or
It must also be noted that Jensen purported present tion from Lakin that a shorthand ver- holding limiting jury Molodyh, trial sion of the “ provided ‘civilactions for which the common law ” 1857[.]’ adopted was Constitution when noting (quoting that Lakin Lakin, and at 422 Jensen, 334 Or Jensen). (brackets Molodyh) version That shortened cited accurately, Molodyh because rule in describe the does not omits scope of the nature” from the “cases of like quo- repeats majority here. The accurate that error trial. tation Molodyh from is: guaran- trial is has stated that “This court also only was in which the classes cases
teed in those adopted customary time the constitution at the likenature.” casesof added). proposi- (emphases
Molodyh, For that at 295 including Molodyh 1920 Studebaker. cases, cited three tion, aspect the state constitu- like nature” Id. The “cases of *24 Oregon right jury in thus has been settled law tional trial years. at least 80 reasoning provide of to
In to some semblance order steps majority support odd that result, the takes several its scrutiny. majority fails to the cites but First, do withstand engage analysis key support any authorities that jury right recognition Studebaker and the trial here: 1920 of extensively majority Molodyh. on noted, the relies Next, as authority judicial legislative limit and to statements about damage that court undermined awards in Greist this majority in Lakin. The then asserts abandoned right jury create or the trial to seeks to use constitutional recovery. theory That is not claim or of retain a substantive authority bring grants plaintiff to the accurate. ORS 30.020 action closely brought and that action at law that she had Oregon’s statehood, that, at other actions at law resembles were traditionally jury of law. trial the courts accorded majority’s an exact match at unsuccessful search for statutory wrongful death action for the current common law incorrectly disregards narrows 1920 Studebaker at law right jury application to trial flexible the intended may recognize Oregon law actions at law “oflike nature” statutory question The correct after statehood. —whether terms, a “civil is, death action constitutional like nature —is one law,” or a case of and an “action at case” majority addresses. never Oregon’s protect- constitution commits this state to ing right jury to trial all civil and in cases all actions at controversy law where the exceeds In value. a textual $750 particular significance command that should have for the judiciary, right jury I, Article declares that the trial “shall remain inviolate.” Those words, three written at acknowledgment statehood the framers, is a candid jury only over time, assaults on the to trial will comenot through efforts at overt withdrawal, as in 1920 Studebaker, through but also the indirect effects of statutes and rules that qualify right by condition and more subtle means. Those charge judiciary important duty: guard words the with an people’sright jury against including trial erosion, from complex statutory enjoy support power- schemes that legislative majorities. ful provisions,
Unlike other constitutional for which the application framers intended a fixed and time, inflexible over trial is, be, and was meant to timeless. The right applies imagined, at actions law never let alone legally recognized, majority at statehood. The violates the conception by confining true ofthe it to non- statutory recognized claims that law before state- Qualifications hood. of that sort have no basis in the consti- precedents govern tutional text or in our join trial. I cannot in their creation here. plaintiffs challenge
Because to the dam- ages cap under section 17 is well I taken, do not plaintiffs challenge damages cap address under the Remedy Clause in Article section 10. *25 respectfully
I dissent. joins
Walters, J.,
in this dissent.
dissenting.
WALTERS, J.,
right
by jury “occupies
place
The
of trial
so firm a
history
jurisprudence!,]”
our
Schiedt,
Dimick v.
293 US
(1935),
474, 486,
55 S Ct
173 right preservation recognized the ofthat with- as essential to directly justification. doing the clear Because out so with majority retreated, I must dissent. has so consistently held that the
Since 1927 the court has
narrowly
right
jury
construed and is not
to
trial is “not to be
strictly
in which it had existed before
limited
to those cases
adoption
extended to
Constitution,
the
of the
but is to be
they may hereafter arise.” State v. 1920
cases
like nature as
Touring
P 701
al,
254, 263,
Car et
120 Or
Studebaker
(1927)
added).
(emphasis
334 Or
Whitlow,
Accord Jensen v.
(2002);
Products, Inc.,
Lakin v. Senco
412, 421,
Thus, neg-
presented
straightforward:
an
issue
here is
Is
action for
ligently
negligence
nature”
caused death “of like
to other
trial existed at common
actions for which
so,
trial,
law? If
has a
and Article
prohibits
interfering
from
with the
jury’s fact-finding ability
damages.
and assessment of
correctly
plaintiff’s
majority begins
and states
plainly:
“[Plaintiffs]
death action is ‘of
assertion
ordinary
personal
injury
like nature’ to an
common-law
*26
directly addressing
Then,
action.”
In 1857 there was for causes of Or at 262. At that Studebaker, action tried to courts of law. 1920
time, courts were classified as either courts admiralty, equity, courts of or courts of law: adopted, “Atthe time when our state Constitution was according courts were classified nature extent of jurisdiction, proceeding, princi- their their forms of or the ples upon they justice, which administered either as courts admiralty, equity, courts of or courts oflaw.” admiralty Id. at 261. Cases tried to courts of or courts of equity judge, juries ordinarily could be tried to a but deter- mined issues of fact in actions at law: justice according
“Courtsoflaw administer to the rules ofthe common and are held civil trial of causes presence jury, with and aid of a and where there are ordinarily determined, issues offact to be the trial must be byjury.” Id. at 262. Studebaker,
In 1920 the state seized an automobile transport liquor brought that had been used to rem a case in against seeking vehicle its forfeiture. state pursuant brought afterl857, that was enacted to a statute suit jury. permitted The owner court, without a trial to which claiming protested, her that the statute violated of the car trial under argued that the stat- the dissent The state and Constitution. procedure special unknown at common in rem ute created a *27 jury the therefore, within not, action was law and that the guarantee stated its The dissent of the constitution. trial position power
succinctly: cre- that the which “It would seem procedure.” prescribe proceeding could also ated the (Coshow, dissenting). majority view, the The J., Or at 276 jury right prevailing not lim- view, that the trial was was recognized prior to 1857. The court reasoned to actions ited right jury “oflike nature” to trial extends to cases that the adoption constitution, and ofthe those that existed before prerogative legislature to elimi- not have the does rights jury litigants’ actions. The trial such nate the statutory not an the new action was court held that because admiralty species equity, forfeiture was a of action in but juries car at common actions, which were tried to right jury Id. at to have a determine the facts. owner had a 264, 269. case when it
In
the court relied on that 1927
constitutionality
requirement,
of a
considered the
policy,
appraiser
insurance
deter-
in fire
that an
included
mine the amount of loss.
held that the
a
Molodyh,
The court
Applying A here is not difficult. those wrongful therefore in at law and it is action is an action for which actions at law of cases as other the same class guarantees jury trial.1 Fur wrongful simply negligence thermore, death action is injury ultimately action in which the A results death. might death claim is one that “the decedent have * * against wrong *, maintained had the lived, decedent injury by doer for an 30.020(1). done the same act or omission.” ORS may That claim arise while the decedent is still injurious alive, and it arises act, where the death, not the Urology, occurs. See Howell v. Willamette P.C., (so stating). purpose “[T]he wrong 129, 130, 178P3d 220 of a bringing ful death action is to remove death as a bar to claim, not to make death the central event of the action.” Id. at 129. majority reject my does not conclusion that a ato
wrongful death action is “of like nature”
common-law
negligence
majority
Instead,
action.
states
in the
“separate question” respecting
case at bar, there is no
because
tried her case to a
and “sofar as we
always
aware,
are
death cases
have been tried to a
jury.”
majority
“any
344 Or at
n
156 12. The
also refers to
have[,]”
plaintiff might
indicating
to a
trial that
*28
may agree
plaintiff
right
jury
that it
that
does have a
to
trial.
The
refusal to
state and confront
plaintiff
the obvious conclusion that a
death
has a
right
jury
sidestep
logical implication
to
trial
allows
to
plaintiff
right
jury
of that conclusion. A
who has a
to
trial has
right
jury
a
to have the
decide all
action,
the facts in that
1
surprising,
therefore,
reported appellate
It is not
decisions reveal
juries
question
objection
that
death cases have been tried to
without
Driscoll,
76,
(1966);
Bean,
since 1892.
599,
v.
Sides
244 Or
“Because common ognize right damages wrongful a to unlimited only respect- actions,the relevant sourceofsubstantive law ing damages expresslyplaces is the which damages.” cap onnoneconomic Id. at 156-57. majority opines, the did not
If, as the common law recognize wrongful in 1857,2 death actions at all the common possibly recognized law could not have the measure of dam- ages in such actions. But because recognized by extends to actions were not the common law measure of also extends to actions which damages had not been determined in 1857. The plaintiff court in Lakin did not decide that the have a had a damages plaintiff determine in an his because ordinary negligence ages” “right to unlimited dam- action had
in 1857. The court decided that the
had a
damages
the amount of
to have
determine his
because
throughout
damages
question
and,
of fact
his-
those
tory,
was a
jury,
legislature,
not the
it was the function of the
questions
decide
of fact.
The no cites other for its conclu- legislature gives legis- that, sion if the action, birth to an lature can eliminate the constitutional to have a Actually, opposite decide the facts that action.3 has majority Greist, 293-94, correctly that, discusses 322 Or at states case, the court concluded because there was no death action
179
I began
100
the
with which
nearly
years,
point
true for
been
Studebaker,
In
the court considered
dissent.
1920
my
to
legislative power
prescribe
the
that the
rejected
argument
find-
the
from
preclude
jury
included the
to
power
an action
the
Molodyh,
The those cases and does not majority disregards it any satisfactory way why builds the cornerstone explain an system of our on the of whether judicial happenstance the initially recognized by legislature action was courts or 4 and in Our not to year. hang right what constitution does trial on such anomalies. It to trial jury provides right “in by jury Const, shall remain inviolate all civil cases.” Or I,Art 17. §
The
to trial
is not to be
con-
right
by jury
narrowly
strued, and
yet
exactly
the rule of construction the
1857,
right
jury
there was no
to
trial of
an action at
time.
Or at 153-
such
majority
however,
completely explain,
54. The
does not
that the Greist court then
wrongful
went on
whether a
death
claims
to consider
action is “oflike nature” to
adopted,
pur-
that did exist at the time the constitution was
poses
assumed that it is for
argument,
that “a
determination of the
but nevertheless concluded
protected
judicial
damages
amount of
alteration,”
to be awarded in tort actions was not
from
Lakin,
Or at
a
that the court disavowed in
conclusion
at 76-77.
4 majority explains
portion
opinion
in an earlier
that whether courts
The
its
recognize
wrongful
purely
legislatures
for
were the first to
actions for
death was
note, however,
legisla
majority
majority
adopted.
doing
majority
ques-
has
In
so, the
raises
vitality
precious right.
tions about the future
of that most
If
we limit the substantive
trial to those actions
that existed in
how,
time,
over
will that
remain
legislature
upon
inviolate? Will not the court or the
be called
identify
and redress new harms not known in 1857? Can-
legislature,
majority’s
not the
decision,
under the
limit or
jury’s right
eliminate the
to decide the facts in those actions?
by jury
days
How will the
to trial
remain robust in the
to come if the
can scale it back to times of old?
majority’s
other, undefined,
reference to some
“right
plaintiff might
to a
trial that
have under Article
*31
added),
(emphasis
provides
17,”
Since before 1857 it has been the role ofthe including damages, to find facts, the fact in civil actions requires at law. The constitution historical fact-finding function continue the future and remain invi- respectfully I olate. dissent. joins
Durham, J., in this dissent.