Defendant Double Press Mfg. appeals from a judgment for plaintiff, following a jury trial on a negligence claim. Plaintiff was severely injured when he was crushed by a hay-bale cutting machine while cleaning it. Defendant manufactured and sold the machine to plaintiffs employer. After a trial on plaintiffs negligence claim against defendant, the jury awarded plaintiff both economic and noneco-nomic damages, but found plaintiff 40 percent at fault for his injuries. On appeal, defendant raises two assignments of error. We reject defendant’s second assignment of error without written discussion. In its first assignment of error, defendant contends that the trial court erred when it denied defendant’s post-verdict motion to reduce the jury’s award of noneconomic damages to $500,000, based on ORS 31.710(l).
We set out the facts consistently with the jury’s verdict. See Mead v. Legacy Health System,
On March 31, 2010, plaintiff left the control tower to ask his cousin whether his shift was over. Plaintiff did not turn off and lock out the machine, nor did he switch the machine from automatic mode to manual mode. When plaintiffs cousin confirmed that his shift was over, plaintiff began to clean the machine. While cleaning the machine— removing jammed material from the exterior—plaintiff was “crushed by a ‘pinch point’ created by a hydraulic ram moving against the exterior framework” of the machine. A “pinch point” is a place on the machine “where two pieces of material come together.”
Plaintiff was severely injured. Plaintiffs neurosurgeon testified that plaintiff was “essentially cut in half, right through the base of the spine” and that the machine “broke his bones and crushed his spine and tore soft tissue.” As a result of the injury plaintiff is permanently paraplegic.
At trial, plaintiff testified that he was partially at fault for his injuries. Based on that admission, defendant moved for a directed verdict to cap plaintiffs noneconomic damages. The trial court denied that motion, again relying on Lakin:
“[Lakin] itself was a products liability case. There was no privity of contract. I believe the finding of the jury was that the plaintiff was contributorily or comparatively negligent, and the Oregon Supreme Court struck the statutory—or the noneconomic damages cap in that case. That is binding precedent on me and I think resolves completely those motions, so those motions are denied.
* * * *
“Okay. I mean, I think [Lakin] is—I don’t think the discussion of the remedies clause is at all relevant to the jury trial right, which was resolved in [Lakin], and I don’t think the recent case law with respect to the remedies clause has application here.
“The Supreme Court said, or other like cases, and obviously found a products liability case with a comparatively negligent plaintiff to be in that category!.] ”
The jury returned a verdict in plaintiffs favor for $2,231,817 in economic damages and $8,100,000 in noneco-nomic damages, but found plaintiff 40 percent at fault for his injuries. Defendant moved to reduce the jury’s award of noneconomic damages to $500,000 based on ORS 31.710(1), arguing that Lakin did not control. The trial court denied defendant’s motion. The trial court then entered a judgment for plaintiff in the amount of $6,199,090.20, representing 60 percent of the total award from the jury—$4,860,000 of which are noneconomic damages.
Following the entry of judgment, defendant moved for judgment notwithstanding the verdict and a new trial, again arguing that ORS 31.710(1) applied. The trial court denied those motions without explanation.
On appeal, defendant assigns error only to the trial court’s denial of its “post-verdict motion to apply the non-economic damages cap found in ORS 31.710(1) to the jury’s award of noneconomic damages and reduce the award of noneconomic damages.” Defendant argues that the trial court erred because Article I, section 17, did not prevent application of ORS 31.710(1) to plaintiffs damages.
We turn to the merits of defendant’s argument that the trial court erred when it denied defendant’s post-verdict motion to apply ORS 31.710(1)—the $500,000 noneconomic damages cap—to the jury’s award of noneconomic damages to plaintiff. “We review the trial court’s ruling regarding the constitutionality of a statute for an error of law.” State v. Betnar,
We begin with a review of the Supreme Court cases under Article I, section 17 {Lakin and its progeny), to resolve this case.
In Lakin, the Supreme Court concluded that former ORS 18.560(1) (1999), renumbered as ORS 31.710(1) (2003), violated Article I, section 17, the right to a jury trial.
We affirmed Senco’s appeal and affirmed in part and reversed in part the plaintiffs’ cross-appeal. Id. We concluded that the statutory cap violated Article VII (Amended), section 3, by mandating an unconstitutional “re-examination” of a fact tried by a jury, adhering to our prior case, Tenold v. Weyerhaeuser Co.,
The Supreme Court allowed Senco’s petition for review and concluded that the statutory cap violated Article I, section 17, and did not address Article VII (Amended), section 3:
“We conclude that to permit the legislature to override the effect of the jury’s determination of noneconomic damages would ‘violate’ plaintiffs’ right to ‘Trial by Jury,’ guaranteed in Article I, section 17. Limiting the effect of a jury’s noneconomic damages verdict eviscerates ‘Trial by Jury’ as it was understood in 1857 and, therefore, does not allow the common-law right of jury trial to remain ‘inviolate.’”
Lakin,
“The proper focus under Article I, section 17, is on the rights of the litigants and the proper role of the jury in a civil case. Here, the broad powers of the legislature must yield to a litigant’s specific right to a ‘Trial by Jury’ guaranteed in Article I, section 17, as that right was understood in 1857. We conclude that Article I, section 17, prohibits the legislature from interfering with the full effect of a jury’s assessment of noneconomic damages, at least as to civil cases in which the right to jury trial was customary in 1857, or in cases of like nature.”
Lakin,
The analysis in Lakin has been reaffirmed by the Supreme Court in Foster v. Miramontes,
In Miramontes, the Supreme Court concluded that “Article I, section 17, and Article VII (Amended), section 3, preserve the right to jury trial for claims that are properly categorized as ‘civil’ or ‘at law.’”
“[F]irst[,] * * * there is no constitutional right to a jury trial on a claim under ORS 30.866, because it is a newly created statutory claim, providing entirely new remedies, and, therefore, it is not ‘of like nature’ to any claim known at common law and triable to a jury then. [And] second * * * even if the constitutional right to jury trial can attach to a newly created statutory claim with no historical antecedent in the common law, it does not attach to this claim, because a claim under ORS 30.866 is, in essence, a claim in equity. * * * [T]he constitutional right to a jury trial does not extend to equitable claims, because, at the time of the Oregon Constitution’s adoption in 1857, those claims would have been tried to the court without a jury.”
Although the Supreme Court agreed that plaintiffs monetary claim was unlike those customarily tried to juries, the Supreme Court reversed, stating that “[t]he Court of Appeals erred in conditioning the right to jury trial on such a precise match between the elements of a current claim and those of a common-law predecessor.” Miramontes,
“Article I, section 17, and Article VII (Amended), section 3, preserve the right to jury trial for claims that are properly categorized as ‘civil’ or ‘at law.’ For the reasons that we have discussed, plaintiffs claim seeking monetary damage for injury inflicted fits within those terms, even if it does not have a precise historical analog. We therefore hold that the Court of Appeals erred in reaching a contrary conclusion.”
Id. (emphasis added). Whether a claim is civil or at law depends on the “nature of the relief requested”—that is whether the claim is legal or equitable—and the court concluded that “Article I, section 17, and Article VII (Amended), section 3, of the Oregon Constitution do not guarantee a right to jury trial for claims or request [s] for relief that, standing alone, are equitable in nature and would have been tried to a court without a jury at common law.” Id. at 425. However, the plaintiffs claim seeking monetary damages for injury inflicted fit within a claim that is “civil” or “at law,” without a precise historical analog.
Most recently, in Klutschkowski, the Supreme Court concluded that the application of ORS 31.710(1)—the non-economic damages statutory cap at issue here—would violate the plaintiffs right to a jury trial in a medical negligence case. First, the Supreme Court concluded that “an action for medical malpractice is one for which ‘the right to a jury trial was customary in 1857,’” even though there was no precise analog to a claim by a child for negligence during its delivery in 1857.
To summarize, the case law establishes that plaintiff would be afforded a right to a jury trial under Article I, section 17, for “civil cases in which the right to jury trial was customary in 1857, or in cases of like nature.” Lakin,
We reject defendant’s argument that the trial court erred in relying on Lakin to deny defendant’s request to reduce the award of noneconomic damages.
We also reject defendant’s argument that Lakin is not applicable to this case because plaintiffs comparative fault and lack of privity with the manufacturer would have barred him from recovery at common law. Even if there was no comparative fault or privity requirement at common law in 1857, Miramontes and Klutschkowski confirm that the Supreme Court rejected “precise historical analogs” from 1857 to determine a party’s right to a jury trial. The case law establishes that plaintiff would be afforded a right to a jury trial for “civil cases in which the right to jury trial was customary in 1857, or in cases of like nature.” Lakin,
Accordingly, the trial court did not err when it denied defendant’s post-verdict motion to apply ORS 31.710(1)—the noneconomic damages cap—to the jury’s award of noneco-nomic damages. Under Lakin, Article I, section 17, guarantees a jury trial in civil cases for which the common law provided a jury trial when the Oregon Constitution was adopted in 1857 and cases of like nature. The determination of damages in a personal injury case is a question of fact. Thus, in this context, applying ORS 31.710(1) would violate Article I, section 17.
Affirmed.
Notes
ORS 31.710(1) provides:
“Except for claims subject to ORS 30.260 to 30.300 and ORS chapter 656, 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.”
Article I, section 17, provides that “[i]n all civil cases the right to trial by jury shall remain inviolate.”
Article VII (Amended), section 3, provides that in “actions at law” the right to trial by jury “shall be preserved,” and that “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.”
Defendant acknowledged that the “pinch point” was unnecessary to the operation of the machine.
Defendant highlights in his reply brief that Horton v. OHSU, rev allowed, not yet decided (Supreme Court No. S061992) is presently before the Supreme Court and contends that “many of the issues in Horton overlap with issues in this case” and urged us to “review the briefing in that case, including the amicus briefs.” Although Horton involves similar issues'—whether the trial court erred by “concluding that the $3 million Oregon Tort Claims Act (OTCA) damages limit (ORS 30.271(3)(a)), was unconstitutional as [it] applied to all, or *** parts, of the jury’s verdict pursuant to the following provisions of the Oregon Constitution: Article I, section 10; Article I, section 17; and Article VII (Amended), section 3”— we think that Horton is distinguishable from this case because, unlike in Horton, plaintiff challenges ORS 31.710(1), not the OTCA, and there is no claim of sovereign or discretionary immunity applicable to a public body. Moreover, the Supreme Court has not issued an opinion in Horton, and Lakin is controlling.