Busch v. McInnis Waste Systems, Inc.

628

Argued and submitted January 15; decision of Court of Appeals affirmed,

decision of circuit court reversed, and case remanded to circuit court for further

proceedings July 9, 2020

Scott Raymond BUSCH,

Respondent on Review,

and

Deanne Marie BUSCH,

Plaintiff,

v.

McINNIS WASTE SYSTEMS, INC.,

Petitioner on Review.

(CC 15CV13496) (CA A164159) (SC S066098)

468 P3d 419

Plaintiff brought a personal injury claim against defendant after defendant’s

garbage truck struck plaintiff while he was crossing the street in downtown

Portland. As a result of the collision, plaintiff underwent surgery to amputate

his leg. Defendant conceded liability, and the jury awarded plaintiff $3,021,922

in economic damages and $10,500,000 in noneconomic damages. Pursuant to

ORS 31.710(1), defendant moved to reduce plaintiff’s noneconomic damages to

$500,000. Plaintiff argued that the jury’s damages award should remain intact

because ORS 31.710(1) violates the remedy clause of Article I, section 10, of the

Oregon Constitution. The trial court reduced the damages in accordance with

ORS 31.710. Plaintiff appealed, and the Court of Appeals affirmed. Held: ORS

31.710(1) violates the remedy clause of Article I, section 10, because the stat-

ute does not provide injured plaintiffs with a quid pro quo in exchange for the

limited remedy the statute provides, the legislature did not set the cap at an

amount that is capable of providing a complete recovery in many cases and would

remain capable of doing so over time, and the legislature’s reasons for enacting

the cap—to lower litigation costs in the hopes that insurance premiums would

also decrease—are insufficient standing alone to counterbalance a plaintiff’s

constitutional right to a remedy for personal injury under Article I, section 10, of

the Oregon Constitution.

The decision of the Court of Appeals is affirmed. The judgment of the cir-

cuit court is reversed, and the case is remanded to the circuit court for further

proceedings.

On review from the Court of Appeals.*

Julie A. Smith, Cosgrave Vergeer Kester LLP, Portland,

argued the cause and filed the briefs for petitioner on review.

______________

* On appeal from Multnomah County Circuit Court, Michael A. Greenlick,

Judge. 292 Or App 820, 426 P3d 235 (2018).

Cite as 366 Or 628 (2020) 629

W. Eugene Hallman, Hallman Law Office, Pendleton,

and Paulson Coletti, Portland, argued the cause and filed

the brief for respondent on review.

Janet Schroer, Hart Wagner LLP, Portland, and Cary

Silverman, Shook, Hardy & Bacon, L.L.P., Washington

DC, filed the brief for amici curiae Chamber of Commerce

of the United States of America, American Tort Reform

Association, American Property Casualty Insurance

Association, Medical Professional Liability Association, and

Coalition for Litigation Justice, Inc.

Hillary A. Taylor, Keating Jones Hughes, P.C., Portland,

filed the brief for amici curiae Oregon Medical Association,

American Medical Association, and American College of

Obstetricians and Gynecologists.

Sharon A. Rudnick, Harrang Long Gary Rudnick P.C.,

Portland, filed the brief for amici curiae Oregon Liability

Reform Coalition and National Federation of Independent

Business. Also on the brief was Susan Marmaduke.

Nadia H. Dahab, Portland, Travis Eiva, Eugene, and

Kathryn Clarke, Portland, filed the brief for amicus curiae

Oregon Trial Lawyers Association.

Before Walters, Chief Justice, and Balmer, Nakamoto,

Flynn, Duncan, and Nelson, Justices, and Landau, Senior

Judge, Justice pro tempore.**

WALTERS, C. J.

The decision of the Court of Appeals is affirmed. The

decision of the circuit court is reversed, and the case is

remanded to the circuit court for further proceedings.

Landau, S. J., specially concurred in part and dissented

in part and filed an opinion.

Balmer, J., dissented and filed an opinion, in which

Landau, S. J., joined.

______________

** Garrett, J., did not participate in the consideration or decision of this case.

630 Busch v. McInnis Waste Systems, Inc.

WALTERS, C. J.,

In this personal injury action, we consider, for the

first time since this court re-examined the remedy clause of

Article I, section 10, of the Oregon Constitution in Horton v.

OHSU, 359 Or 168, 376 P3d 998 (2016), the constitutional-

ity of a statutory cap on the damages that a plaintiff may

recover for injuries resulting from a breach of a common-law

duty. Here, plaintiff brought a personal injury claim for

damages against defendant, a private entity, and, pursuant

to ORS 31.710(1), the trial court reduced the noneconomic

damages that the jury awarded—$10,500,000—to the max-

imum amount permitted by statute—$500,000. The Court

of Appeals held that, as applied to plaintiff, the cap violated

the remedy clause of Article I, section 10, of the Oregon

Constitution and reversed. Busch v. McInnis Waste Systems,

Inc., 292 Or App 820, 824, 426 P3d 235 (2018). We affirm the

decision of the Court of Appeals and reverse the decision of

the circuit court.

FACTUAL BACKGROUND

Plaintiff had the right-of-way and was walking

across a crosswalk in downtown Portland when defendant’s

garbage truck struck him. By the time the truck stopped,

plaintiff’s leg was under the truck and attached to his body

by a one-inch piece of skin. Plaintiff was fully conscious

and alert, and he experienced tremendous pain. Plaintiff

had surgery to amputate his leg just above the knee. He

has undergone extensive rehabilitation and therapy, but the

injuries that plaintiff suffered will affect him for the rest of

his life.

Plaintiff filed this action against defendant, a pri-

vate entity. Defendant admitted liability; the only issue for

the jury was the amount of damages to be awarded. The

jury determined that plaintiff had sustained, and will sus-

tain, economic damages of $3,021,922 and noneconomic

damages of $10,500,000. Defendant subsequently moved to

reduce plaintiff’s noneconomic damages award to $500,000,

in accordance with the cap on noneconomic damages pro-

vided in ORS 31.710(1). Plaintiff countered by arguing that,

under Article I, section 10, the cap is unconstitutional both

Cite as 366 Or 628 (2020) 631

on its face and as applied to plaintiff. The trial court agreed

with defendant, granted its motion, and entered judgment

accordingly.

Plaintiff appealed, and the Court of Appeals

reversed, relying on its decision in Vasquez v. Double Press

Mfg., Inc., 288 Or App 503, 406 P3d 225 (2017), aff’d on other

grounds, 364 Or 609, 437 P3d 1107 (2019).1 Busch, 292 Or

App at 824. In Vasquez, the Court of Appeals also was faced

with the question of whether the damages cap imposed by

ORS 31.710(1) could survive a remedy-clause challenge, and

the court began its analysis by reviewing this court’s deci-

sion in Horton. Vasquez, 288 Or App at 505. The Court of

Appeals took from Horton what it considered to be the appli-

cable test for determining whether a damages cap could sur-

vive a remedy-clause challenge and considered “ ‘the extent

to which the legislature has departed from the common-law

model measured against its reasons for doing so.’ ” Id. at 524

(quoting Horton, 359 Or at 220). In Vasquez, the Court of

Appeals noted that, “under the common-law model, plaintiff

would have been entitled to recover his noneconomic dam-

ages, not subject to any cap,” and that

“[t]he legislature [had] departed fairly dramatically from

that model by placing a hard cap on the amount of non-

economic damages a plaintiff may recover—a cap that was

placed in 1987 and has not since been revisited—with no

mechanism for adjustment for the changing value of money

or for adjustment based on the relative severity of the inju-

ries sustained by a plaintiff.”

Id. at 524-25. The legislature had done so, the court said,

to “ ‘put a lid on litigation costs, which in turn would help

control rising insurance premium costs for Oregonians.’ ”

Id. at 525 (quoting Greist v. Phillips, 322 Or 281, 299 n 10,

906 P2d 789 (1995)). The court then concluded “that the

1

This court allowed review of Vasquez, but we did not issue our opinion until

after the Court of Appeals had issued its decision in this case. Vasquez v. Double

Press Mfg., Inc., 364 Or 609, 437 P3d 1107 (2019). We resolved Vasquez on statu-

tory, rather than constitutional, grounds, holding that the damages cap in ORS

31.710(1) did not apply to the claim at issue there—a worker’s claim against a

third party for injuries incurred in the course of employment. Id. at 633. We

reasoned that ORS 31.710(1) specifically excludes claims “subject to * * * ORS

chapter 656,” pertaining to workplace injuries, and that the plaintiff’s claim was

subject to that chapter. Id.

632 Busch v. McInnis Waste Systems, Inc.

legislature’s reason for enacting the noneconomic damages

cap—which was not concerned with injured claimants—

cannot bear the weight of the dramatic reduction in noneco-

nomic damages that the statute requires for the most griev-

ously injured plaintiffs.” Id. The court explained that the

plaintiff had been “grievously injured” and, if the damages

cap imposed by ORS 31.710(1) applied, the plaintiff would

receive only $1,839,090 out of the $6,199,090 that the jury

had awarded—“only a ‘paltry fraction’ of the damages that

he sustained and would otherwise recover.” Id. at 525-26.

The court held that such a “bare reduction in plaintiff’s non-

economic damages without any identifiable statutory quid

pro quo or constitutional principle that the cap takes into

consideration” violated the remedy clause as applied to the

plaintiff’s case. Id. at 526.

As noted, this case came to the Court of Appeals

after it had decided Vasquez, and the court determined that

the two were indistinguishable. Busch, 292 Or App at 824.

Accordingly, the court reversed the decision of the trial court

reducing plaintiff’s damages to $3,521,922 and directed the

trial court to enter a judgment consistent with the jury’s

damages award. Id. at 824-25. Defendant sought, and we

allowed, review.

THE PARTIES’ ARGUMENTS

In this court, defendant does not begin, as the Court

of Appeals did in Vasquez, with a review of this court’s deci-

sion in Horton and an analysis of the test that that Court of

Appeals drew from it. Instead, defendant assumes that the

remedy clause of Article I, section 10, places a substantive

limit on the legislature’s authority and that plaintiffs gen-

erally are entitled to a “substantial” remedy for a breach of

a recognized duty. Defendant then makes three arguments

about why the limited award that plaintiff received in this

case is “substantial” and, therefore, in its view, constitu-

tional. First, defendant argues that this court’s pre-Horton

decision in Greist v. Phillips, 322 Or 281, 906 P2d 789 (1995),

controls and stands for the proposition that a full award of

economic damages plus $500,000 in noneconomic damages

is a “substantial” remedy for a breach of a common-law duty

“in and of itself.” Second, defendant argues that a full award

Cite as 366 Or 628 (2020) 633

of economic damages plus $500,000 in noneconomic dam-

ages necessarily is “substantial” considering the nature and

purpose of noneconomic damages. Third, defendant argues

that ORS 31.710 provides a “substantial” remedy consider-

ing the overall statutory scheme and the legislature’s policy

reasons for capping noneconomic damages at $500,000.

Although plaintiff responds to and adamantly

opposes defendant’s arguments about what constitutes a

“substantial” remedy, plaintiff also engages more directly

with this court’s decision in Horton and contends that, when

the legislature limits the damages that a plaintiff may

recover without altering a defendant’s duty of care or provid-

ing a substitute remedy, that statutory limitation does not

comport with Article I, section 10, and is unconstitutional.2

LEGAL BACKGROUND

Article I, section 10, includes the remedy clause

that is the subject of our review. It provides:

“No court shall be secret, but justice shall be admin-

istered, 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.”

Or Const, Art I, § 10.

Smothers v. Gresham Transfer, Inc., 332 Or 83, 90,

23 P3d 333 (2001), was the first case in which this court

conducted a Priest v. Pearce, 314 Or 411, 415-16, 840 P2d

65 (1992)-style analysis of that clause.3 Horton re-examined

2

Plaintiff also asks us to revisit a second basis for this court’s decision

upholding the damages cap at issue in Horton: The cap did not violate Article I,

section 17, of the Oregon Constitution. In reaching that conclusion, this court

overruled Lakin v. Senco Products, Inc., 329 Or 62, 987 P2d 463 (1999). See

Horton, 359 Or at 249-50 (overruling Lakin). Because we hold that ORS 31.710(1)

violates Article I, section 10, we do not accept plaintiff’s invitation to revisit that

aspect of Horton.

3

As the court explained in Smothers, “despite [this court’s] extensive

remedy-clause case law, this court previously [had] not analyzed that clause

under the methodology prescribed in Priest v. Pearce, 314 Or 411, 415-16, 840

P2d 65 (1992).” 332 Or at 90. The methodology prescribed by Priest is used for

interpreting an original provision of the Oregon Constitution and directs courts

to consider the “specific wording [of the provision], the case law surrounding it,

and the historical circumstances that led to its creation.” Priest, 314 Or at 415-16.

634 Busch v. McInnis Waste Systems, Inc.

and overruled Smothers. In doing so, Horton character-

ized Smothers as holding that the meaning of the remedy

clause is tied to the Oregon common law in 1857, when the

clause was enacted, and that the legislature was prohib-

ited from eliminating or modifying a common-law cause of

action unless the legislature “provide[d] a constitutionally

adequate remedy.” See Horton, 359 Or at 175-88 (construing

Smothers and overruling it). Horton rejected that interpre-

tation of the remedy clause, articulated its understanding of

the substantive limit that the remedy clause imposes, and

applied that understanding to the damages cap at issue in

the case. Horton therefore provides the framework for our

analysis of the constitutionality of ORS 31.710(1), and we

begin by examining its analysis in more detail.

Horton was a medical-malpractice case. The defen-

dants in Horton were the Oregon Health & Science University

(OHSU) and Dr. Harrison, a pediatric surgeon employed by

OHSU. 359 Or at 171. Harrison had performed surgery on

the plaintiff’s then six-month-old son and negligently tran-

sected blood vessels going to the child’s liver. The plaintiff’s

son had been required to undergo a liver transplant, spleen

removal, and additional surgeries, and he would require

lifelong medical care. Id. at 171. The defendants had admit-

ted liability and, following a trial on the issue of damages,

the jury had awarded the plaintiff economic damages of

$6,071,190 and noneconomic damages of $6,000,000. Id.

Following the verdict, the defendants filed a motion

to reduce the plaintiff’s total damages award to $3,000,000

pursuant to ORS 30.265 and ORS 30.271(3)(a), provisions of

the Oregon Tort Claims Act. Id. As to OHSU, the trial court

granted the motion. The court noted that, because OHSU

was a state entity that was entitled to sovereign immunity,

the plaintiff would not have had a remedy against OHSU

at common law. Id. at 171-72. Therefore, the trial court rea-

soned, the plaintiff did not have a right to a remedy against

OHSU under Article I, section 10, and the legislature was

entitled to limit the damages for which that entity was

liable. Id. The court reached a different conclusion as to

Harrison, however, and denied his motion to reduce dam-

ages. Id. at 172. The trial court reasoned that, in 1857, the

plaintiff would have had a remedy against Harrison for

Cite as 366 Or 628 (2020) 635

the damages that the child had sustained. Id. Accordingly,

applying Smothers, the court determined that application of

the damages cap violated the remedy clause. Id. Harrison

filed a direct appeal to this court asking that we overrule

Smothers.4

We accepted Harrison’s request that we review our

holding in Smothers. We analyzed whether the Smothers

holding was correct, id. at 178, and determined that the

text of the remedy clause did not include, nor did its con-

text support, such a limitation, id. at 181. We pointed out

that the common law is not static or unchanging; rather, it

has “continued to evolve as the premises on which it rests

have changed.” Id. at 182. Thus, “[a]lthough the text and

history of the remedy clause were considered at some length

in Smothers,” we were not persuaded “to adhere to a case

that was at odds with the text, history, and case law when

it was decided and that continues to prove problematic.”

Id. at 187-88. We concluded that the remedy clause does not

“lock[ ] courts and the legislature into a static conception of

the common law as it existed in 1857,” id. at 218-19, and

overruled Smothers, id. at 188.

Having rejected this court’s interpretation of the

remedy clause in Smothers, we were faced with the ques-

tion of how to correctly describe the clause’s parameters.

We examined our pre-Smothers remedy-clause decisions

and characterized them as holding that the remedy clause

grants injured persons a substantive right and places a sub-

stantive limit on the legislature’s ability to modify remedies.

Id. at 218. We declined “to toss that considered body of deci-

sions aside,” and considered how to articulate the nature of

that right and the substantive limits it imposes. Id.

We decided that Smothers had mistakenly viewed

the common law as a “procrustean template” and had too

tightly tied remedy-clause protections to the common law

as it existed in 1857. Id. at 197-98. Although we expressly

determined that “the remedy clause does not protect only

those causes of action that pre-existed 1857,” id. at 219, we

4

A provision of the Oregon Tort Claims Act, ORS 30.274(3), allows for direct

appeals to this court from limited judgments arising from the application of the

act’s tort claims limitations on damages.

636 Busch v. McInnis Waste Systems, Inc.

did not completely abandon the common law as a guide. We

stated, without difficulty, that “common-law causes of action

and remedies provide a baseline for measuring the extent

to which subsequent legislation conforms to the basic prin-

ciples of the remedy clause—ensuring the availability of a

remedy for persons injured in their person, property, and

reputation.” Id. at 218. But we found it more challenging to

determine when a move away from that baseline is a move

too far from those basic principles. It was not easy, we said,

“to reduce our remedy-clause decisions to a simple formula.”

Id. at 220.

We observed that our cases had considered three

general categories of legislation: At times, the legislature

has left a common-law duty intact while eliminating a rem-

edy for injuries cause by a breach of that duty; at other

times, the legislature has left a common-law duty intact and

has modified only the remedy; and, in other instances, the

legislature has eliminated or modified the common-law duty

itself. Id. at 219-20. From those cases, we concluded that, in

deciding whether the legislature’s actions impair a person’s

right to a remedy under Article I, section 10, we had consid-

ered, and must continue to consider, “the extent to which

the legislature has departed from the common-law model

measured against its reasons for doing so.” Id. at 220.

As a “final consideration” in our analysis of our

prior cases, we cautioned against over-reliance on cases

decided after Smothers and decided “through the lens that

[it] provided.” See id. at 220-21 (discussing this court’s

post-Smothers decisions in Clarke v. OHSU, 343 Or 581, 175

P3d 418 (2007), and Howell v. Boyle, 353 Or 359, 298 P3d 1

(2013), and cautioning that those cases must be taken with

a “grain of salt”). We opined that, “when the legislature does

not limit the duty that a defendant owes a plaintiff but lim-

its the size or nature of the remedy,” the legislative remedy

need not restore all the damages that the plaintiff sustained

and that factors, such as the existence of a quid pro quo,

matter when determining whether a limited remedy is con-

stitutional. Id.

With that background in mind, we turned to

the application of those principles to the damages cap at

Cite as 366 Or 628 (2020) 637

issue—a cap imposed by the Oregon Tort Claims Act.5 We

began by noting that, like other statutes we had considered

in the past, the Oregon Tort Claims Act does not eliminate

or modify a defendant’s duty to an injured plaintiff; rather,

it modifies, without eliminating, the remedy available to

the plaintiff. 359 Or at 221. Specifically, as applicable to

the claim that the plaintiff in Horton asserted, we said that

the Oregon Tort Claims Act did not modify the duty that

the OHSU physicians owed to the plaintiff, who was their

patient; rather, it limited the plaintiff’s remedy for injuries

caused by a breach of that duty. Id.6

To determine the constitutionality of the cap

imposed by the Oregon Tort Claims Act, this court began by

noting that the act was a “comprehensive statutory scheme

intended to extend benefits to some persons while adjust-

ing the benefits to others.” Id. at 221. First, we recognized

that the state has a constitutionally recognized interest in

sovereign immunity. Id. We observed that the state acts

through its employees, who are not entitled to immunity and

that, if the state chose to indemnify its employees for all

liability incurred, the state’s interest in sovereign immunity

would be “eviscerated.” Id. at 222. But, if the state chose

not to indemnify its employees, “few qualified persons would

choose to work for the state.” Id. The legislature’s “reason”

for passing the Oregon Tort Claims Act was to “avoid[ ] that

dilemma by waiving the state’s immunity for its torts but

5

The Oregon Tort Claims Act, codified at ORS 30.260 to 30.300, waives the

state’s sovereign immunity and, as relevant to this court’s decision in Horton, lim-

its the tort liability of the state and its employees to $3,000,000. ORS 30.265(1)

(explaining that “every public body is subject to civil action for its torts and those

of its officers”); ORS 30.271(3)(a) (providing a $3 million limit for claims arising

“on or after December 28, 2007, and before July 1, 2011”).

6

As noted, Horton purported to set forth three “categories” of statutes that

could implicate the remedy clause. See Horton, 359 Or at 219-20. We note that

Horton’s three categories were descriptive only and not entirely clear at that. For

example, the categories that it described appear to be overlapping. In the para-

graph describing first-category statutes, the court cited two cases discussing the

damages cap found in the Oregon Tort Claims Act—Clarke v. OHSU, 343 Or 581,

175 P3d 418 (2007), and Howell v. Boyle, 353 Or 359, 298 P3d 1 (2013). Horton,

359 Or at 219. But the court cited another case discussing the Oregon Tort

Claims Act while describing second-category statutes. Id. (citing Hale v. Port of

Portland, 308 Or 508, 783 P2d 506 (1989)). In Horton, the court discussed the case

before it—which also involved the Oregon Tort Claims Act—as a second-category

statute. Id. We do not understand the court’s description of categories of statutes

as providing a “procrustean template” for analysis.

638 Busch v. McInnis Waste Systems, Inc.

capping the amount for which the state can be held liable.”

Id. We explained that, “the Tort Claims Act accommodates

the state’s constitutionally recognized interest in assert-

ing its sovereign immunity with the need to indemnify its

employees for liability they incur in carrying out state func-

tions.” Id. at 221.

Second, we explained that the Oregon Tort Claims

Act gives plaintiffs a “quid pro quo”—“something that they

would not have had if the state had not partially waived

its immunity.” Id. at 222. The Oregon Tort Claims Act

waives the state’s sovereign immunity up to the damages

limits. ORS 30.265(1). Thus, the act “ensures that a sol-

vent defendant will be available to pay any damages up to

$3,000,000—an assurance that would not be present if the

only person left to pay an injured person’s damages were an

uninsured, judgment-proof state employee.” Horton, 359 Or

at 222.

Third, we recognized that, in setting the cap on state

liability, the 2009 Legislative Assembly had made a studied

and data-driven decision to “provide a complete recovery in

many cases [and] greatly expand the state’s liability in the

most egregious cases,” by both significantly increasing the

caps and providing for additional, annual, increases indexed

for inflation. Id. at 223-24. As a result, in light of the leg-

islature’s efforts to accommodate both the state’s interests

and plaintiffs’ remedy-clause rights, we could not “say that

the $3,000,000 tort claims limit on damages against state

employees is insubstantial in light of the overall statutory

scheme, which extends an assurance of benefits to some

while limiting benefits to others.” Id. at 224.

But that was not the end of our analysis. As a final

check on the constitutionality of the limited remedy as

applied to the plaintiff in Horton, we considered whether the

size of the award to the plaintiff that remained was suffi-

ciently “substantial” to be constitutionally adequate. Id. We

recognized that the remedy the legislature provided, when

considered next to the particular facts of the case, was “not

sufficient * * * to compensate plaintiff for the full extent

of the injuries that her son suffered.” Id. But we decided

that the cap was constitutional as applied to the plaintiff,

Cite as 366 Or 628 (2020) 639

saying that “the remedy that the legislature has provided

represents a far more substantial remedy than [a] paltry

fraction” of the remedy that the jury had determined was

appropriate. Id.

After stating our holding, we emphasized that it

was “limited to the circumstances that this case presents,

and it turns on the presence of the state’s constitutionally

recognized interest in sovereign immunity, the quid pro quo

that the Tort Claims Act provides, and the tort claims lim-

its in this case.” Id. at 225. We “express[ed] no opinion on

whether other types of damages caps, which do not impli-

cate the state’s constitutionally recognized interest in sover-

eign immunity and which are not part of a similar quid pro

quo, comply with Article I, section 10.” Id.

ANALYSIS

The damages cap at issue here is one of those “other

types of damages caps.” It is now codified at ORS 31.710(1),

and it provides:

“Except for claims subject to ORS 30.260 to 30.300 [the

Oregon Tort Claims Act] and ORS chapter 656 [workers

compensation claims], in any civil action seeking damages

arising out of bodily injury, including emotional injury

or distress, death or property damages 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.”

Additionally, ORS 31.710(4) provides that the jury shall not

be advised of that limitation on damages. Thus, the dam-

ages cap at issue here is a cap on the amount that a trial

court may award a plaintiff after a jury verdict in the plain-

tiff’s favor for claims other than claims against public bod-

ies or their employees. For claims against private entities

and individuals, other than claims that are “subject to * * *

chapter 656,” ORS 31.710(1) imposes a cap of $500,000 on all

noneconomic damage awards.

Because ORS 31.710(1) is not a cap imposed by the

Oregon Tort Claims Act, Horton does not directly govern the

result here. Horton does, however, provide the framework

for our analysis. Like the statute at issue in Horton, ORS

640 Busch v. McInnis Waste Systems, Inc.

31.710 does not modify the common-law duty that a defen-

dant owes a plaintiff—to act with reasonable care. Instead,

it limits, without eliminating, the remedy that an injured

plaintiff may recover for injuries caused by a breach of that

duty. Before we undertake a Horton analysis of the consti-

tutionality of that cap, however, we first address defendant’s

argument that a pre-Horton case—Greist—is controlling.

Defendant is correct to call Greist to our attention;

in Greist we considered the constitutionality of the very

statute that is at issue here and held that, as applied in

that case, the $500,000 limit on the plaintiff’s noneconomic

damages did not violate the remedy clause.7 See Greist, 322

Or at 291 (rejecting the plaintiff’s argument under Article I,

section 10). Nevertheless, for the reasons that follow, we con-

clude that Horton, rather than Greist, controls the result in

this case.

Greist was a wrongful death case. The plaintiff in

Greist was the personal representative of her son’s estate,

and she brought a wrongful death action after she and her

son were rear-ended by a five-axle truck and trailer while

travelling from California to Oregon. Id. at 285. The plain-

tiff’s son, who was 10 months old at the time, was thrown

from the vehicle and was killed. Id. The plaintiff brought

suit under ORS 30.020, which provides a claim for relief for

wrongful death. Id. After a trial, the jury returned a verdict

for the plaintiff, awarding $100,000 in economic damages

and $1.5 million in noneconomic damages. Id. at 286. The

trial court applied the damages cap, which, as it does today,

capped recovery of noneconomic damages at $500,000, and

reduced the plaintiff’s noneconomic damages award to

that sum. Id. The plaintiff appealed, arguing, among other

things, that the application of the damages cap violated

Article I, section 10. Id. at 289.

This court affirmed, concluding that other “deci-

sions from this court discussing Article I, section 10, dispose

of [the] plaintiff’s argument.” Id. at 290. In reaching that

conclusion, we specifically relied on Hale v. Port of Portland,

7

Greist v. Phillips, 322 Or 281, 906 P2d 789 (1995), involved former ORS

18.560 (1987), which was renumbered ORS 31.710 in 2003. The text of the statute

has not changed since Greist was decided.

Cite as 366 Or 628 (2020) 641

308 Or 508, 783 P2d 506 (1989)—a decision in which this

court validated the damages cap imposed by a prior version

of the Oregon Tort Claims Act. In Hale, the plaintiff’s claim

was against a municipal corporation, not, as in Horton, a

state entity, and we relied on a different quid pro quo to val-

idate the cap:

“The class of plaintiffs [who can seek a remedy under the

Oregon Tort Claims Act] has been widened by the legisla-

ture 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, how-

ever, a limit has been placed on the size of the award that

may be recovered. A benefit has been conferred, but a coun-

terbalancing burden has been imposed. This may work to

the disadvantage of some, while it will work to the advan-

tage of others. But all who had a remedy continue to have

one.”

Hale, 308 Or at 523.8 We also added the following thought:

“[Prior cases from this court] held only that Article I, sec-

tion 10, is not violated when the legislature alters (or even

abolishes) a cause of action, so long as the party injured is

not left entirely without a remedy. Under those cases, the

remedy need not be precisely of the same type or extent; it

is enough that the remedy is a substantial one.”

Id. at 523 (emphases added).

Greist focused on that latter cue from Hale. In

Greist, this court began its remedy-clause analysis without

first discussing whether the legislature had provided plain-

tiffs with a quid pro quo in exchange for a limited remedy.

This court observed, however, that a wrongful death action

8

In his concurrence, Justice Linde explained the quid pro quo differently. He

noted that the Port is a public entity partaking of sovereign immunity. Hale, 308

Or at 530 (Linde, J., concurring). When the Tort Claims Act limits the plaintiff’s

remedy against the Port, he said, it “provides a new, though limited, remedy

against the Port rather than takes away an old one.” Id.; see also David Schuman,

The Right to a Remedy, 65 Temple L Rev 1197, 1221 (1992) (describing Hale as an

example of “a quid pro quo interpretation of the remedy clause”). Justice Linde

indicated that the result might not be the same for a claim against a city, citing

Batdorff v. Oregon City, 53 Or 402, 100 P 937 (1909), for the proposition that this

court has allowed “legislative immunization of cities from tort liability only on

condition that the individuals who are personally responsible for harm qualify-

ing as a legal injury remain liable.” Hale, 308 Or at 530 (Linde, J., concurring).

642 Busch v. McInnis Waste Systems, Inc.

is a statutory claim that was not cognizable at common law

and that it always had been subject to a damages cap. Greist,

322 Or at 294.9 Then, on the way to our holding that “[i]n

relation to that history, the present remedy [was] substan-

tial,” we also referenced the amount that the plaintiff had

been awarded. Id. at 291. We said that the plaintiff’s remedy

was “substantial, not only because 100 percent of economic

damages plus up to $500,000 in noneconomic damages is a

substantial amount, but also because the statutory wrong-

ful death action in Oregon has had a low limit on recovery

for 113 years of its 133-year history.” Id. (emphasis added).

In this case, defendant asks that we pluck from

Greist the notion that recovery of 100 percent of a plaintiff’s

economic damages plus $500,000 in noneconomic damages

always is a substantial amount, and therefore a substan-

tial remedy, and leave our constitutional analysis there.

Defendant contends that, in this case—a case that is neither

a wrongful death action nor a claim against a public entity

under the Oregon Tort Claims Act—we need decide only

that the amount that plaintiff received is “substantial,” and

that that is sufficient for us to conclude the remedy available

to plaintiff under ORS 31.710(1) satisfies the constitutional

mandate of Article I, section 10, “in and of itself.”

To take a stroke in that direction, however, would

be to swim against the tide of Horton. In Horton, this court

did not begin its analysis by assessing whether the amount

that the plaintiff was awarded after application of the dam-

ages cap was relatively small or large, paltry or substan-

tial. Rather, we began by recognizing that doctors owe their

patients a duty of due care, that patients have a right to a

remedy for a breach of that duty, and that the legislature

had not altered the duty imposed on doctors but had limited

the remedy available to patients. Horton, 359 Or at 221. We

then inquired whether the legislature’s reasons for imposing

9

Initially, the cap was $5,000, but between 1907 and 1961, the Oregon

Legislature increased the cap five different times. Goheen v. General Motors

Corp., 263 Or 145, 154 n 16, 502 P2d 223 (1972). In 1961, the cap was set at

$25,000. Id. In 1967, the legislature removed the cap completely. Id. at 154 n 17.

Finally, in 1987, the legislature enacted the cap at issue in Greist (and in this

case), ending “the 20-year hiatus in limitations on the amount of recovery in

wrongful death actions.” Greist, 322 Or at 296.

Cite as 366 Or 628 (2020) 643

those limits were sufficiently weighty to counterbalance the

Article I, section 10, right to remedy. The factors that we

listed as providing that heft were the doctrine of sovereign

immunity and its constitutional underpinnings, the state’s

need to indemnify its employees for liability they incur in

carrying out state functions, and the fact that the stat-

ute not only limited plaintiffs’ remedies, but also provided

them with a benefit they would not have otherwise received.

Id. at 225. As an additional factor, we also cited the legisla-

ture’s effort to accommodate the interests of injured persons

and the efficacy of that effort. Id. at 223-24. We relied on

the legislature’s recognition that the prior tort claim limit

of $200,000 was “vastly inadequate” and its assessment of

actuarial data to determine how to raise the limit to “pro-

vide a complete recovery in many cases” and “greatly expand

the state’s liability in the most egregious cases.” Horton, 359

Or at 223. Together, those factors convinced us that the stat-

utory cap could withstand constitutional challenge. Id. at

225. Although we also went on to comment that the remedy

that the legislature provided was far more substantial than

a “paltry fraction” of the jury’s award, id. at 224, we did

so only as a final check on the constitutionality of the cap

as applied to the plaintiff. Had we intended that the rela-

tive size of the plaintiff’s award be determinative “in and

of itself,” as defendant urges, then the opinion would have

started, rather than ended, there.

We recognize that Horton did not overrule Greist,

and we also need not overrule it to conclude that it is not

controlling. Here, it is only necessary to observe that Greist

did not rely solely on the amount or relative size of the plain-

tiff’s award to uphold the applicable damages cap, and that

any other reading of Greist would be contrary to Horton.

We also disagree with defendant that Howell, another case

decided before Horton, compels a different result.

In Howell, the majority read Greist as premised on

two independent conclusions—that the plaintiff’s award of

$600,000 “was a substantial award, in and of itself,” and

that the award was substantial “because the statutory

wrongful death action in Oregon has had a low limit on

recovery.” Howell, 353 Or at 379-80. But, in Howell, the court

did not rest its decision to uphold the damages cap at issue

644 Busch v. McInnis Waste Systems, Inc.

in that case—the cap on economic and noneconomic dam-

ages imposed by the Oregon Tort Claims Act—only on the

amount of the plaintiff’s award. The court also compared

the cap at issue in Howell to the cap at issue in Hale, and it

concluded that “a similar quid pro quo may be seen to apply.”

Howell, 353 Or at 376. It is true that, in Howell, the court

said that the case before it was “even more like Greist,” id. at

376, but viewing both Greist and Howell from Horton’s per-

spective, we conclude that both cases are best understood as

upholding limits on damages for reasons in addition to the

relative amount of the plaintiff’s award. To the extent that

Greist or Howell can be read to require that sole focus, we

disavow them.

We therefore reject defendant’s argument that

Greist controls our decision in this case, and we also reject

defendant’s suggestion that, independent of Greist, the rela-

tive size of a plaintiff’s award determines the constitutional-

ity of a damages cap. Under Horton, the question of whether

a damages cap survives a remedy-clause challenge is not

determined solely, or even significantly, by calculating the

difference between the damages awarded by a jury and the

award permitted by statute and making a judicial assess-

ment of whether the two are so disparate that some adjec-

tival label (substantial or insubstantial, paltry or emascu-

lated) applies. Such an assessment is appropriate as a final

check to ensure that, even if the legislature’s reasons for

adopting a damages cap are constitutionally sufficient, the

plaintiff has received a constitutionally sufficient remedy.

But no remedy-clause decision from Hale to Horton has

rested solely on an algebraic comparison of the amount of

damages awarded by the jury to the amount the plaintiff

may recover in accordance with a damages cap, and we also

decline to rest our decision in this case on such a comparison.

Having rejected defendant’s first argument that the

limited damages award that plaintiff received in this case

was constitutionally adequate because the amount of the

award was “substantial” and adequate “in and of itself,” we

turn to defendant’s second argument—that plaintiff’s award

was “substantial” and adequate considering the nature and

purpose of noneconomic damages. In advancing that argu-

ment, defendant contends that the “subtext” of our opinions

Cite as 366 Or 628 (2020) 645

in Greist and Clarke seems to be that noneconomic damages

are different from economic damages and that the remedy

clause is more protective of the latter. According to defen-

dant, the nature and purposes of economic and noneconomic

damages explains the different treatment, and defendant

urges that we adopt a rule that noneconomic damages are of

lesser constitutional import.

Defendant is correct that economic and noneco-

nomic damages are different in some regards. For one thing,

as the legislature defines them, economic damages are

objectively verifiable; noneconomic damages are not.10 But

it is what those types of damages have in common that is

important for purposes of Article I, section 10. Article I, sec-

tion 10, places a substantive limit on the legislature’s ability

to modify the remedy for personal injuries. Both economic

and noneconomic damages are intended to compensate a

plaintiff for such injuries. See ORS 31.710(1)(a) - (b) (defin-

ing both economic and noneconomic damages as “losses”);

Van Lom v. Schneiderman, 187 Or 89, 107, 210 P2d 461

(1949), overruled in part on other grounds by Oberg v. Honda

Motor Co., 320 Or 544, 888 P2d 8 (1995) (distinguishing

between compensatory damages, “which fully compensate

plaintiff for his loss, including injury to his feelings, mental

anguish, humiliation, and the like” and punitive damages,

which “are allowed over” compensatory damages to “pun-

ish the defendant” and “to deter others from committing

a like offense”); Black’s Law Dictionary 489 (11th ed 2019)

10

Economic damages are defined by ORS 31.710(2)(a) as:

“[O]bjectively verifiable monetary losses including but not limited to reason-

able charges necessarily incurred for medical, hospital, nursing and rehabili-

tative services and other health care services, burial and memorial expenses,

loss of income past and future impairment of earning capacity, reasonable

and necessary expenses incurred for substitute domestic services, recur-

ring loss to an estate, damage to reputation that is economically verifiable,

reasonable and necessarily incurred costs due to loss of use of property and

reasonable costs incurred for repair or for replacement of damaged property,

whichever is less.”

Noneconomic damages are defined by ORS 31.710(2)(b) as:

“[S]ubjective, nonmonetary losses, including but not limited to pain, men-

tal suffering, emotional distress, humiliation, injury to reputation, loss of

care, comfort, companionship and society, loss of consortium, inconvenience

and interference with normal and usual activities apart from gainful

employment.”

646 Busch v. McInnis Waste Systems, Inc.

(defining “compensatory damages” as “[d]amages sufficient

in amount to indemnify the injured person for the loss suf-

fered”); Black’s at 1336 (defining “pain and suffering” as

“[p]hysical discomfort or emotional distress compensable as

an element of noneconomic damages in torts”).

At the time the remedy clause was adopted, the

common law allowed recovery for both tangible and intan-

gible injuries, such as mental anguish and insult. See, e.g.,

Clarke, 343 Or at 608 (“There is no dispute that, when

Oregon adopted its remedy guarantee, plaintiff would have

been entitled to seek and, if successful, to recover both types

of damages from the individual defendants.”); DeMendoza v.

Huffman, 334 Or 425, 438, 51 P3d 1232 (2002) (discussing

the historical development of punitive damages, as compared

to compensatory damages, in American courts);11 Oliver v.

North Pacific Transp. Co., 3 Or 84, 87 (1869) (explaining

that when “estimating” damages for personal injury, “it is

proper to consider loss of time, money necessarily paid or

debts necessarily incurred in curing the bodily injury, and

whatever bodily pain it may have caused to the plaintiff”).

Today, Oregon law continues to permit plaintiffs to seek and

to have a jury award what it deems an amount that can

compensate plaintiff for both types of losses.

Given the compensatory purpose of both economic

and noneconomic damages, defendant does not persuade

us that this court has treated or should treat any differ-

ence in those damages as significant in our remedy-clause

analysis. In the Article I, section 10, cases that defendant

cites, this court did not rely on a distinction between eco-

nomic and noneconomic damages for its conclusions. Greist

11

DeMendoza v. Huffman, 334 Or 425, 438, 51 P3d 1232 (2002), examined

the debate amongst courts and legal scholars as to what should be recoverable

as compensatory damages and what should be recoverable as punitive damages

at the time the Oregon Constitution was adopted. This court assumed that the

founders were aware of that debate and the cases surrounding it when they

adopted Article I, section 10. Id. at 437. DeMendoza concluded that, “around the

time the Oregon Constitution was drafted in 1857, most courts and commen-

tators viewed punitive damages as a means by which society could punish and

deter egregious behavior and not as a ‘remedy’ for an injured party.” Id. at 442.

Because punitive damages are not a “remedy” for an injured person, the remedy

clause of Article I, section 10, does not protect a plaintiff’s right to receive such

damages. Id. at 445-46.

Cite as 366 Or 628 (2020) 647

fails to mention, must less rely on, such a distinction. In

Clarke, this court noted that the “paltry” amount that the

plaintiff was awarded did not even compensate him for

the economic damages that he had incurred, but we did so

only to emphasize the extent and severity of the plaintiff’s

injuries. See Clarke, 343 Or at 609 (“We view plaintiff’s eco-

nomic damages of over $12 million as representative of the

enormous cost of lifetime medical care currently associated

with permanent and severe personal injuries caused by the

medical negligence of a state officer, agent, or employee.”).

And, in Clarke, we did not rely on that fact alone as the

basis for our decision that the damages cap was unconsti-

tutional as applied to the plaintiff in that case. Rather, we

explained that plaintiff had suffered noneconomic damages

of $5,000,000 in addition to his economic damages, and we

stated that, “when Oregon adopted its remedy guarantee,

plaintiff would have been entitled to seek and, if successful,

to recover both types of damages from the individual defen-

dants.” Id. at 608 (emphasis added).

Moreover, the distinction that defendant makes is

not significant in our constitutional analysis as laid out by

Horton. Under Horton, our task is not to determine whether

the limited recovery permitted by a statutory damages cap

is substantial “in and of itself.” Our task under Horton is to

determine whether a plaintiff’s remedy is constitutionally

sufficient, considering “the extent to which the legislature

has departed from the common-law model measured against

its reasons for doing so.” 359 Or at 220. We reject defendant’s

argument that any statute that limits a plaintiff’s recovery

of noneconomic damages, while permitting the plaintiff to

fully recover economic damages meets the requirements of

Article I, section 10, “in and of itself.”

That takes us to defendant’s third and final

argument—that the legislature’s reasons for enacting the

damages cap in ORS 31.710 render it constitutional. That

argument is on the mark; the reasons for the legislature’s

actions in enacting a damages cap are critical under Horton.

Therefore, we turn to the reasons that defendant cites for the

cap in ORS 31.710(1): (1) the legislature sought to address

the availability and affordability of insurance; and (2) the

648 Busch v. McInnis Waste Systems, Inc.

legislature adopted the cap as a tradeoff to the “broadening”

of tort liability that had occurred in the 1960s and 1970s.

We have no doubt that ORS 31.710(1) was intended

to reduce insurance costs and improve insurance availabil-

ity. See Greist, 322 Or at 299 n 10 (recognizing that cap was

intended to control the escalating costs of the tort compen-

sation system and that the legislature determined that cap

would reduce litigation and premium costs). Proponents

of the cap on noneconomic damages explained that it was

designed to make insurance awards more predictable and

lead to a reduction in “claim severity,” reducing insurance

costs and thereby increasing availability. See Testimony,

Senate Committee on Judiciary, Senate Bill (SB) 323,

Feb 3, 1987, Ex A (statement of John Holmes) (describing a

“dramatic increase” in size of verdicts); Testimony, Senate

Committee on Judiciary, SB 323, Feb 5, 1987, Ex K (state-

ment of Ed Patterson and Oregon Association of Hospitals)

(describing increase in “claim severity” and asserting that

payments for “pain and suffering” are “variable and sub-

jective”). The statute also may have been intended to offset

earlier extensions of liability. Defendant points to legislative

history showing that a noneconomic damages cap was so

described. See Testimony, Senate Committee on Judiciary,

SB 323, Feb 3, 1987, Ex A (statement of John Holmes)

(describing adoption of strict liability, abolishment of doc-

trines such as charitable immunity, contributory negligence

as complete defense, and guest-passenger laws).

Plaintiff does not contest defendant’s description of

the reasons for the legislature’s adoption of ORS 31.710(1).

Instead, plaintiff argues that, in enacting that statute, the

legislature did not provide a quid pro quo, and that the “fail-

ure to provide a quid pro quo when an established remedy is

reduced or eliminated violates the remedy clause.”

Plaintiff states his latter argument too broadly:

There have been instances in which this court has upheld

statutes against a remedy-clause challenge without relying

on the existence of a quid pro quo. See Horton, 359 Or at

219; (citing Perozzi v. Ganiere, 149 Or 330, 348, 40 P2d 1009

(1935)). As Horton explains, we have upheld statutes that

modify common-law duties, or even, on occasion, eliminate

Cite as 366 Or 628 (2020) 649

common-law causes of action “when the premises underlying

those duties and causes of action have changed.” Horton, 359

Or at 219. In assessing the constitutionality of such stat-

utes, we have considered “whether the common-law cause of

action that was modified continues to protect core interests

against injury to person, property, or reputation or whether,

in light of changed conditions, the legislature permissibly

could conclude that those interests no longer require the

protection formerly afforded to them.” Id. at 219-20 (citing

Norwest v. Presbyterian Intercommunity Hospital, 293 Or

543, 563, 652 P2d 318 (1982)).12

Plaintiff is correct, however, that when this court

has upheld statutes that do not modify a common-law duty

but limit the remedies available for their breach, a quid pro

quo has often been present. See, e.g., Horton, 359 Or at 225

(explaining that decision turns in part on the “quid pro quo

that the Tort Claims Act provides”); Howell, 353 Or at 376

12

The statutes cited by the dissent, 366 Or at 664 (Balmer, J., dissenting),

in which the legislature has limited the liability of “Good Samaritans” or others

who report or disclose important information fall into this category. However,

another statute that the dissent discusses—ORS 31.715—does not fit easily into

that or any of the three Horton categories. That statute was the subject of this

court’s decision in Lawson v. Hoke, 339 Or 253, 119 P3d 210 (2005). There, the

court treated that statute differently than others subject to challenge under

Article I, section 10, because the court determined that it does not deny a plain-

tiff a remedy. Id. at 261. In Lawson, the court explained that the plaintiff was in

violation of a law requiring that she have insurance to drive on a public highway,

and, we said, “it lay entirely within this plaintiff’s control to be fully qualified

to be awarded all damages arising out of the kind of harm that she suffered.”

Id. We reasoned that ORS 31.715 was “illustrative of a common theme”: “Early

in our nation’s (and our state’s) history, a plaintiff who would not have suffered

the injury complained of had he or she obeyed the law could be denied the right

to recover damages for his or her injuries.” Id. at 264. Similarly, we said, “[i]f

plaintiff had complied with [the statute precluding her from driving without

insurance], she would not have been on the road at the time that defendant com-

mitted the traffic infraction that caused the accident.” Id. at 265. We rejected the

plaintiff’s remedy-clause argument not because we concluded that the reasons

for the legislature’s actions were constitutionally sufficient to counterbalance the

plaintiff’s right to remedy, as required by Horton, but because “we conclude[d]

that no ‘absolute common-law right’ that existed when the Oregon Constitution

was drafted in 1857 would have guaranteed plaintiff a remedy for her

injuries—either economic or noneconomic—under the circumstances of this

case.” Id. Under Horton, that analysis is no longer pertinent. See Horton, 359 Or

at 218-21 (explaining that Smothers was incorrectly decided because the remedy

clause does not “lock[ ] courts and the legislature into a static conception of the

common law as it existed in 1857,” and that, “to the extent that [our previous

remedy-clause cases] turn on the bright line rule that Smothers drew * * * then

those cases must be taken with a grain of salt”).

650 Busch v. McInnis Waste Systems, Inc.

(explaining that a “quid pro quo may be seen to apply”); Hale,

308 Or at 523 (explaining that “a benefit has been conferred,

but a counterbalancing burden has been imposed”).

Those cases do not establish that a quid pro quo

always will be necessary, or even sufficient, to sustain such

a statute against a remedy-clause challenge. In Horton, for

instance, the court relied on a number of factors in addi-

tion to the quid pro quo that it identified in concluding that

the damages cap at issue there did not violate the remedy

clause. But what those cases do tell us is that the right to

remedy is a substantive right “ensuring the availability of

a remedy for persons injured in their person, property, and

reputation to remedy for injury to person.” Horton, 359 Or at

218. And, as we said in Horton, “common-law causes of action

and remedies provide a baseline for measuring the extent to

which subsequent legislation conforms to the basic princi-

ples of the remedy clause.” Id. at 218-19. We erred when we

concluded in Smothers that the remedy clause prohibits the

legislature from eliminating any common-law remedy that

existed in 1857, but we also would err if we were to decide,

at the other extreme, that the legislature is entitled to mod-

ify common-law remedies for any reason it deems sufficient.

Under Horton, the legislature must act for a reason suffi-

cient to counterbalance the substantive right that Article I,

section 10, grants. That right assures that people who are

injured in their person, property or reputation have a rem-

edy for those injuries. Oregon law has long recognized and

protected that substantive right.

Under the common law, all persons owe a duty of

reasonable care and persons who are injured as a result of

breach of that duty have a right to bring a claim for their

injuries. See Fazzolari v. Portland School Dist. No. 1J, 303

Or 1, 16, 734 P2d 1326 (1987) (explaining common-law cases

referred to a duty owed to “every person in our society” to

avoid foreseeable risk of harm). In adopting ORS 31.710(1),

the legislature did not alter the common-law duty of rea-

sonable care and it did not alter a plaintiff’s common-law

right to bring a claim for breach of that duty. The legislature

also did not bar a grievously injured plaintiff from seeking

and having a jury award a sum that the jury determines is

necessary to compensate the plaintiff for the right that was

Cite as 366 Or 628 (2020) 651

injured, including both economic and noneconomic dam-

ages. See ORS 31.710(4) (“The jury shall not be advised of

the limitation set forth in [ORS 31.710(1)].”).

Instead, when the legislature enacted ORS 31.710(1),

it required a trial court to override the jury’s verdict and

enter judgment for a specified amount that is not tied to the

extent of the plaintiff’s injuries. When it did so, the legis-

lature did not provide injured persons with a quid pro quo

as that term is used in Horton—something they otherwise

would not have had. Unlike the Oregon Tort Claims Act,

which gives injured persons the ability to bring a claim

against a solvent defendant that otherwise would have been

immune from suit, id. at 221-22, ORS 31.710(1) does not

expressly confer a benefit on injured persons. The benefits

that ORS 31.710(1) is intended to confer are benefits that are

intended to inure to society in general as opposed to injured

persons in particular.

The failure to provide a quid pro quo to counterbal-

ance a plaintiff’s right to a remedy under Article I, section

10, strikes a real blow to the defense of ORS 31.710(1). We

need not decide today, however, whether that blow is fatal.

In addition to the legislature’s failure to provide a quid pro

quo, it also is evident that the legislature did not act, as the

legislature did when it adopted the Oregon Tort Claims Act,

to advance the state’s interest in sovereign immunity or any

other interest with constitutional underpinnings. And the

legislative history does not indicate that, when the legisla-

ture capped plaintiffs’ noneconomic damages at $500,000,

it did so, again as the legislature did when it adopted the

Oregon Tort Claims Act, with the goal of capping noneco-

nomic damages at a sum capable of restoring the right that

had been injured in many, if not all, instances, and would

remain capable of doing so over time.13 See Horton, 359 Or

13

As noted, in Horton, this court noted that the legislature had accounted

for inflation when it enacted the damages cap under the Oregon Tort Claims

Act. 359 Or at 223. The legislature did not account for inflation when it enacted

ORS 31.710(1) in 1987. In 1987, $500,000 had about the same buying power as

$1,159,941.55 has today. See Consumer Price Index Inflation Calculator, available

at https://data.bls.gov/cgi-bin/cpicalc.pl (last accessed July 6, 2020) (calculated

to determine the buying power of $500,000 in January of 1987 as compared to

January of 2020).

652 Busch v. McInnis Waste Systems, Inc.

at 223 (explaining that legislature had considered such fac-

tors). If the legislature provided a counterbalance for plain-

tiff’s loss of his right to a remedy, it is not apparent here.

In enacting the damages cap in ORS 31.710(1), the

legislature left defendants’ common-law duty of care intact,

but deprived injured plaintiffs of the right to recover dam-

ages assessed for breach of that duty. Defendant does not

convince us that the reasons for that limitation are suffi-

cient to counterbalance that loss, and we need not rely solely

on the lack of a quid pro quo to reach our decision. We con-

clude that application of ORS 31.710(1), as a limit on the

noneconomic damages that a court can award to a plaintiff,

violates Article I, section 10.

The decision of the Court of Appeals is affirmed.

The decision of the circuit court is reversed, and the case is

remanded to the circuit court for further proceedings.

LANDAU, S. J., specially concurring in part and

dissenting in part.

I continue to believe that the remedy guarantee of

Article I, section 10, should not be interpreted to constrain

the authority of the legislature to determine rights and rem-

edies. See Horton v. OHSU, 359 Or 168, 254-56, 376 P3d 998

(2016) (Landau, J., concurring). Even assuming that it does

have that effect, I agree with Justice Balmer that, given this

court’s case law, ORS 31.710(1) does not violate Article I,

section 10. I nevertheless agree with majority that the stat-

ute violates the Oregon Constitution. Unlike the majority,

though, I would rest that conclusion on the right to a jury

trial guaranteed in Article I, section 17, as this court held in

Lakin v. Senco Products, Inc., 329 Or 62, 987 P2d 463 (1999).

I’m well aware of the fact that this court overruled Lakin in

Horton. I voted with the majority in Horton to do just that. I

believe that we were mistaken.

My concern about the erroneous overruling of Lakin

is rooted in considerations of stare decisis. The majority in

Horton reconsidered Lakin because of the “disarray among

our Article I, section 17, cases.” Horton, 359 Or at 234. We

found it difficult to reconcile Lakin with subsequent deci-

sions, especially DeMendoza v. Huffman, 334 Or 425, 51 P3d

Cite as 366 Or 628 (2020) 653

1232 (2002). Horton, 359 Or at 359. In light of the reported

conflict, we reconsidered Lakin from scratch and ultimately

decided that the decision had been wrongly decided. Horton,

359 Or at 250. On reflection, I don’t think we were right on

either count.

First, although we were undoubtedly correct in

Horton that there is a certain amount of tension among the

court’s jury-trial cases,1 on reflection I have a hard time

concluding that the jury-trial decisions are in any greater

“disarray” than the court’s remedy-clause cases are. The

remedy-clause cases for over a century have been notoriously

contradictory. See, e.g., David Schuman, Oregon’s Remedy

Guarantee: Article I, Section 10 of the Oregon Constitution,

65 Or L Rev 35, 36 (1986) (“[T]he remedy clause has not

occasioned a coherent body of case law leading to anything

that could be called an ‘interpretation.’ ”).

In Templeton v. Linn County, 22 Or 313, 316, 29

P 795 (1892), the court concluded that the remedy clause

doesn’t constrain the legislature at all. In Mattson v. Astoria,

39 Or 577, 580, 65 P 1066 (1901), the court said yes, it does.

Then in Perozzi v. Ganiere, 149 Or 330, 345, 40 P2d 1009

(1935), the court said no, it doesn’t. The court in Smothers

v. Gresham Transport, Inc., 332 Or 83, 123-24, 23 P3d 333

(2001), said yes, it does, but only for claims that existed at

common law in 1857. Horton then said that Smothers was

wrong in temporally limiting the effect of the remedy guar-

antee but otherwise was correct. Horton, 359 Or at 218.

What a mess. Yet in Horton the majority opinion

bent over backwards to find a way to reconcile those incon-

sistencies, for example, drawing distinctions among the

cases on their facts or by reference to whether the defen-

dants were municipal entities. Horton, 359 Or at 188-89.

Our gloss on those decisions, though, tended to overlook the

court’s own earlier assessments that its cases are fundamen-

tally at odds. See, e.g., Neher v. Chartier, 319 Or 417, 423, 879

1

The case law, for example, applied different standards depending on

whether the issue was a right to a jury trial (regarded as a “procedural” right),

under M. K. F. v. Miramontes, 352 Or 401, 287 P3d 1045 (2012), and a right to the

jury’s decision (a “substantive” right), under Hughes v. PeaceHealth, 344 Or 142,

178 P3d 225 (2008).

654 Busch v. McInnis Waste Systems, Inc.

P2d 156 (1994) (noting that the case law “throughout the

nineteenth and twentieth centuries interpreting Article I,

section 10, * * * has failed definitively to establish and con-

sistently to apply any one theory regarding the protections

afforded by the remedies guarantee”); Smothers, 332 Or at

90 (“[T]his court has not developed a consistent body of law

interpreting the remedy clause of Article I, section 10.”).

In reviewing the jury-trial cases, we were much less

forgiving. In particular, we complained that “DeMendoza

cannot be fairly reconciled with Lakin.” Horton, 359 Or at

231. In DeMendoza, it will be recalled, the court had con-

cluded that a law directing that 60 percent of punitive dam-

ages awarded to a party be distributed to the state did not

violate the right to a jury trial. 334 Or at 447. The plaintiffs

had argued that the law depriving them of 100 percent of

the punitive damages awarded by the jury violated Lakin

and the jury-trial guarantee of Article I, section 17. Id. at

446. The court responded that there was no violation of the

jury-trial guarantee and no inconsistency with Lakin. As

the court explained, because the plaintiffs had no right to

punitive damages in the first place, they could not complain

that a law depriving them of 100 percent of such an award

was unlawful. Id. at 447.

In Horton, though, we gave short shrift to that

explanation. We didn’t explain why the court’s own prior

attempt to reconcile the two cases in DeMendoza wasn’t at

least plausible. We simply disagreed with it. What’s more,

as Justice Walters pointed out in her dissenting opinion

in Horton, the court could well have drawn a distinction

between reducing an award on the one hand and redistrib-

uting it on the other. 359 Or at 304 (Walters, J., dissenting).

We didn’t respond to that point. Similarly, Justice Walters

suggested that, regardless of the possibility of an inconsis-

tency between DeMendoza and Lakin on the issue of puni-

tive damages, the two cases remain entirely consistent as to

whether a plaintiff has a right to receive a jury’s award of

compensatory damages. Horton, 359 Or at 304 (Walters, J.,

dissenting). We didn’t respond to that point, either.2

2

The majority opinion discussed four other post-Lakin decisions, as exam-

ples of the “disarray” in the jury-trial case law. First, it briefly mentioned Jensen

Cite as 366 Or 628 (2020) 655

In short, it’s difficult for me to read Horton and

not conclude that our opinion is internally inconsistent—

that the charitable standard that we applied in reviewing

remedy-clause cases for some unexplained reason didn’t

apply to our review of jury-clause cases.

Second, as a result of the different ways that the

majority opinion in Horton responded to apparent inconsis-

tencies in its remedy-clause and jury-clause cases, it applied

different standards in deciding whether to overrule the rel-

evant precedents. In the case of the remedy-clause case law,

the opinion’s glossing over the inconsistencies that I’ve men-

tioned allowed it, in effect, to put a thumb on the scale when

evaluating whether to overrule Smothers entirely.

Take as one example among many how the majority

in Horton reviewed the significance of the writings of Edward

Coke and William Blackstone. The opinion acknowledged

that those writings actually focused on the crown’s inter-

ference with access to common-law courts—not legislative

alteration of rights and remedies, as had been suggested in

Smothers. Horton, 359 Or at 204. The majority went so far as

to say that its reading of William Blackstone, Commentaries

on the Laws of England (1st ed 1765), in Smothers on just

that point had been in error. Id. at 203 (“Smothers appears

to have misperceived what Blackstone said.”). Nevertheless,

it explained, “[e]ven if that is the better understanding” of

those sources, there is enough ambiguity in them to defeat

the assertion that Smothers is “clearly at odds” with them.

Horton, 359 Or at 205.

v. Whitlow, 334 Or 412, 51 P3d 599 (2002), which held that Article I, section 17,

did not preclude the legislature from eliminating a cause of action and posed

no inconsistency with Lakin at all. Horton, 359 Or at 228. Second, it discussed

Hughes, a case in which the court concluded that Article I, section 17, did not

prohibit the legislature from capping damages in wrongful death actions because

such actions did not exist at common law. 344 Or at 156-57. The majority in

Horton noted that the dissent in that case had argued that the court’s decision

could not be reconciled with Lakin, but it didn’t otherwise describe any incon-

sistency between Hughes and Lakin. Horton, 359 Or at 231-32. Third, the opin-

ion addressed Miramontes, which involved a different issue of when a person is

entitled to a jury at all, not whether the person is entitled to the jury’s decision.

Horton, 359 Or at 232-33 (discussing Miramontes, 352 Or at 404). Finally, we

addressed Klutschkowski v. PeaceHealth, 354 Or 150, 194-96, 311 P3d 461 (2013),

in which the court had followed Lakin. Horton, 359 Or at 233-34. The “disarray”

in the case law, in other words, really came down to a supposed conflict between

only two decisions—Lakin and DeMendoza.

656 Busch v. McInnis Waste Systems, Inc.

The majority in Horton took a different tack in

reconsidering Lakin. We didn’t determine whether Lakin

was “clearly at odds” with the text or history of Article I,

section 17. Rather, we concluded that Lakin was just

wrong. Consider again the way we treated Blackstone’s

Commentaries, which said that the civil jury trial was

valuable because those in power would know that their

actions could “be examined and decided by twelve differ-

ent men * * *, and that, once the fact is ascertained, the law

must of course redress it.” Blackstone, 3 Commentaries at

380.3 We granted that the statement “arguably” suggests

that the jury right was understood to have substantive—

not merely procedural—force. Horton, 359 Or at 238. But,

while such a plausible reading of Blackstone was enough to

save Smothers, it wasn’t enough to save Lakin. We simply

declared, ipse dixit, that the statement “did not reflect an

understanding that the jury’s fact-finding ability imposed a

substantive limitation” on the authority of the legislature or

the courts. Horton, 359 Or at 238.

More significantly, in its analysis of the historical

roots of the right to a jury trial, the majority opinion in Horton

never identified any source demonstrating that Lakin was

actually wrong in construing the jury guarantee of Article I,

section 17, to include a substantive dimension. We found only

that various historical sources had not addressed the point.

Blackstone, we said (notwithstanding the foregoing quote),

“did not suggest that the right to a civil jury trial imposed

a substantive limit on the ability of either the common-law

courts or parliament to define the legal principles that cre-

ate and limit a person’s liability.” Horton, 359 Or at 238.

Similarly, we could not find in early state constitutions “any

substantive limitation * * * that the right to a civil jury trial

placed on a state legislature’s ability to define civil causes of

action or damages.” Id. at 239. We cited Hamilton’s discus-

sion of the jury trial in The Federalist No. 83 and noted that

his arguments “do not suggest that the right was viewed as

a substantive limit on Congress’s lawmaking power.” Horton,

3

Blackstone similarly said that it is the jury’s province to “assess the dam-

ages * * * sustained by the plaintiff, in consequence of the injury” and that,

if “damages are to be recovered, a jury must * * * assess them.” Blackstone,

3 Commentaries at 376.

Cite as 366 Or 628 (2020) 657

359 Or at 241. We likewise examined the speeches of anti-

federalists during the ratification debates and observed that,

although many insisted on a constitutional right to a civil

jury trial, their remarks “did not reflect a belief that the

right to a civil jury trial would impose a substantive limita-

tion on legislatures.” Id. at 242.

In short, our careful review of the historical sources

revealed an absence of evidence that Lakin was right, not the

existence of evidence that Lakin was wrong. To rely on what

the historical record doesn’t reveal, though, is to employ

what historians call the “fallacy of the negative proof.” See,

e.g., David Hackett Fischer, Historians’ Fallacies: Toward a

Logic of Historical Thought 47-48 (1970). It’s at least plau-

sible that various historical sources don’t mention the idea

that the right to a jury trial has a substantive effect because

the subject hadn’t come up at that point in time, not because

they affirmatively disclaimed such an effect.

In this regard, I can’t help but recall State v.

Ciancanelli, 339 Or 282, 292-319, 121 P3d 613 (2005). In

Ciancanelli, the court reviewed in painstaking detail the

history of free-expression law from the sixteenth century

on and acknowledged that the great weight of authority was

contrary to the sort of analysis that the court had previously

adopted in State v. Robertson, 293 Or 402, 649 P2d 569 (1982).

See Ciancanelli, 339 Or at 299 (noting that, “during the late

eighteenth and early nineteenth centuries, most American

courts and legal treatises tended to treat the right of free

speech as a very limited one”). Still, the court concluded,

Robertson is at least arguably consistent with other strains

of thinking at the time of the American revolution. There

was no evidence that anyone in Oregon actually concurred

in those other strains of thinking. See id. at 309. But there

was no evidence to the contrary, either. As a result, the court

concluded, Robertson couldn’t be overruled. Ciancanelli, 339

Or at 314.4 I’m at a loss to understand how our decision to

overrule Lakin can be reconciled with that standard.

4

I have argued that the court got it wrong in Ciancanelli—as a matter of

history—in asserting the existence of such alternative strains of thinking about

free expression in the mid-nineteenth century. Jack L. Landau, An Introduction

to Oregon Constitutional Interpretation, 55 Willamette L Rev 261, 317 n 364

(2019). But that’s a different point.

658 Busch v. McInnis Waste Systems, Inc.

I’m aware that only a few years have passed since

this court handed down its decision in Horton. I think that

the recency of the decision actually weighs in favor of con-

fronting its error. In Horton itself, the court noted that it

felt comfortable overruling a portion of Smothers because

“Smothers is of relatively recent vintage, [15 years,] and it

has not given rise to the sort of reliance interests” that the

court had held in other cases might foreclose reconsideration

of older precedents. Horton, 359 Or at 187. The same unde-

niably is true here, where the decision at issue was rendered

only four years ago, and few intervening precedents have

relied on it. In fact—as the opening sentence of the majori-

ty’s opinion in this case declares—this is the very first case

to apply Horton. 366 Or at 630.

As I said at the outset, I voted with the majority in

Horton. I regret that I did so. But the fact that insight comes

belatedly doesn’t mean that it should be ignored. I would

renounce Horton and revive Lakin.

The court has declined to reconsider its decision in

Horton, at least in this case. I wouldn’t take that as a sig-

nal that the court will never do so. Perhaps it’s reluctant

to take on the issue because the plaintiffs here assert no

more than the majority in Horton was wrong in overruling

Lakin. Entertaining that sort of argument gives rise to sug-

gestions that the nature of constitutional rights depends on

the makeup of the court at any given point in time. Fair

enough.

The argument that I’m making here is different.

My argument is not that Horton was wrong and Lakin was

right on the merits (although I think that may be so, as

well). Instead, my argument is that Horton erred in failing

to follow the court’s precedents governing the reevaluation

of prior case law. Those precedents have significance apart

from principles pertaining to the scope of the right to a jury

trial. They speak to the credibility of the court. It’s one thing

to confront an irreconcilable conflict in decisions, in which

case the court must simply decide that one or the other is

correct. See, e.g., Couey v. Atkins, 357 Or 460, 486, 355 P3d

866 (2015) (stare decisis gives way when the court confronts

cases with diametrically opposed holdings). In the absence

Cite as 366 Or 628 (2020) 659

of such an irreconcilable conflict, though, the burden is—

and must be—higher. As the court declared in Couey, “stare

decisis does not permit this court to revisit a prior decision

merely because the court’s current members may hold a dif-

ferent view than its predecessors about a particular issue.”

Id. at 485. Rather, it must be shown that prior case law was

“clearly incorrect—that is, it finds no support in the text

or history of the relevant constitutional provision.” Id. at

485-86.

In my view, the majority in Horton failed to estab-

lish any irreconcilable conflicts in the court’s Article I, sec-

tion 17, cases or that Lakin was “clearly incorrect.” As a

result, Lakin shouldn’t have been overruled. I suggest that,

in an appropriate future case, parties develop the argument

that Horton failed to apply proper principles of stare decisis

in deciding to overrule Lakin and that, as a result, Horton

itself should be overruled.

BALMER, J., dissenting.

I respectfully dissent. As the majority, the concur-

rence, and many commentators point out, our decisions

regarding the remedy clause are consistently inconsistent.

The majority does not attempt to sort out the precedents,

but it can hardly be faulted for that. Indeed, the majority

generally follows this court’s analysis in Horton v. OHSU,

359 Or 168, 376 P3d 998 (2016), although it articulates the

analytical framework in somewhat more categorical terms

than Horton did.

And yet the result in Horton was a holding that

a legislatively established damages cap that allowed the

plaintiff less than half of the economic damages awarded by

the jury ($3 million out of $6 million) and none of the non-

economic damages ($0 out of $6 million) did not violate the

remedy clause, 359 Or at 173, while the result here is that a

legislatively established damages cap that leaves untouched

all of plaintiff’s economic damages ($3 million out of $3 mil-

lion) and a small but not insignificant fraction of his noneco-

nomic damages ($500,000 out of $10.5 million) does violate

the remedy clause. Of course, the majority explains the rea-

sons for those arguably conflicting results at some length,

660 Busch v. McInnis Waste Systems, Inc.

and I discuss that analysis briefly below. At the end of the

day, however, those inconsistent results are part of the basis

for my view that the majority fails to give the legislature the

same kind of latitude that we approved in Horton. More fun-

damentally, the majority does not give the legislature the

latitude I believe it has under the Oregon Constitution to

adjust common law and statutory rights and remedies in the

civil justice system to meet what it perceives to be the needs

of the public.

I first describe why I believe the majority’s resolu-

tion of this case is not compelled by our prior decisions. I

then consider whether our existing cases would permit non-

economic damages to be treated differently from economic

damages for remedy-clause purposes, as a negative answer

to that question appears to be a critical aspect of the major-

ity’s analysis—and one that this court has not considered in

much depth in earlier cases or, indeed, in this one. I conclude

by discussing the nature of noneconomic damages and why,

in my view, it is within the plenary power of the legislature

to legislate regarding them if it chooses to do so.

OUR EARLIER DECISIONS LEAVE OPEN

THE ISSUE PRESENTED HERE

I agree with important aspects of the majority

opinion. First, if we were writing on a clean slate, I would

probably agree with Justice Landau’s concurrence in Horton

that the remedy clause was not intended to impose any

kind of substantive limit on the legislative adjustment of

rights and remedies.1 However, Oregon courts for more than

150 years have held—in many cases, but not all, see, e.g.,

Perozzi v. Ganiere, 149 Or 330, 345, 40 P2d 1009 (1935)—

that the remedy clause imposes some kind of substantive

limit on the extent to which the legislature may modify or

abolish existing rights and remedies. This court reaffirmed

that view in Horton and does so again in this case, and I

1

See Horton, 359 Or at 255-56 (Landau, J., concurring) (“At best, the word-

ing of the constitution and the historical circumstances surrounding its adop-

tion fairly may be read to support a general principle that the remedy provision

precludes legislative interference with judicial independence and access to the

courts, but not that it limits the legislature’s authority to determine substantive

rights and remedies * * *.”).

Cite as 366 Or 628 (2020) 661

agree. There is simply too much water under the bridge to

go back to what the framers of Article I, section 10, likely

intended it to mean and to ignore or overturn so many of our

cases.

Second, the majority, like the court in Horton, holds

that the concept of “substantiality” plays a role in remedy-

clause analysis and that a statute providing only an “insub-

stantial” remedy for a plaintiff’s injury violates the remedy

clause.2 The majority’s references to “substantiality” are

important here because they make clear that the majority

does not hold that the remedy clause prohibits any cap that

would prevent a plaintiff from recovering the full amount

that a jury might award in noneconomic damages. The

majority notes that the level of the cap at issue here was

not based on a legislative finding that “it would be capa-

ble of restoring the right that had been injured in many,

if not all, instances,” 366 Or at 651, indicating that a cap

that met that test would be permissible, at least in certain

circumstances. The majority could not make that statement

if it agreed with the assertion by plaintiff’s counsel at oral

argument that a $500,000 cap imposed on a jury verdict for

noneconomic damages of $500,001 would violate the rem-

edy clause. The majority appears to hold—consistent with

Horton—that a remedy can be “substantial,” and sufficient

for remedy-clause purposes, even if it does not provide the

injured party with the entire amount of noneconomic dam-

ages awarded by the jury. I agree.

Where I disagree with the majority is in its con-

clusion that defendant “does not convince us that the

2

See 366 Or at 638-39, 643, 644. To be sure, the majority’s reframing of the

Horton analysis states that assessing whether a remedy is “substantial” is simply

a “final check” on constitutionality, to be considered after various other steps and

“even if the legislature’s reasons for adopting a damages cap are constitutionally

sufficient.” Id. (emphasis added). The majority thus seems to relegate “substanti-

ality” to an afterthought in its remedy-clause analysis. That is incorrect. Almost

all of our recent cases—Horton, Clarke v. OHSU, 343 Or 581, 175 P3d 418 (2007),

Howell v. Boyle, 353 Or 359, 298 P3d 1 (2013), and this case—have been “as

applied,” rather than facial, challenges. In each one we have considered whether

the remedy was “substantial,” along with other aspects of the statute in question,

such as whether it was based on a quid pro quo. We rejected a facial remedy-

clause challenge to a damages cap in the Oregon Tort Claims Act in Jensen v.

Whitlow, 334 Or 412, 421, 51 P3d 599 (2002), and presumably would reject any

facial challenge to ORS 31.710(1) for the same reasons.

662 Busch v. McInnis Waste Systems, Inc.

reasons for the limitation [on noneconomic damages in ORS

31.710(1)] are sufficient to counterbalance” plaintiff’s loss of

the common-law right to recover those damages, and “we

need not rely solely on the lack of a quid pro quo to reach our

decision.” 366 Or at 651. The reasons that the majority is

“not convince[d]” are not altogether clear. The majority rec-

ognizes that the cap on noneconomic damages was passed

in the 1980s to address the legislature’s concern with the

threat of rising insurance costs and insurance availability,

as we discussed in Greist v. Phillips, 322 Or 281, 906 P2d

789 (1995). 366 Or at 648. In Greist, we upheld the same

statute at issue here, finding that a judgment that provided

the plaintiff with all of the economic damages ($100,000)

and $500,000 of the $1.5 million noneconomic damages

awarded by the jury did not violate the remedy clause

because the plaintiff “ha[d] not been left without a remedy,”

322 Or at 291, and, indeed, that the remedy in that case was

“substantial.” Id. The majority now says, however, that the

1987 legislature “did not act, as the legislature did when it

adopted the Oregon Tort Claims Act (OTCA), to advance the

state’s interest in sovereign immunity or any other inter-

est with constitutional underpinnings.” 366 Or at 651. But

that conclusory statement does not adequately explain why,

if the damages caps in Horton and Greist did not violate the

remedy clause, the damage cap here (again, the same cap at

issue in Greist) does.

While one could distinguish Horton as an OTCA/

quid pro quo case and Greist as a wrongful death case not

cognizable at common law but instead based on a statute,

it is unclear to me why those differences should matter.

The majority suggests that the policy interests advanced by

the legislature here are not comparable—by which it must

mean lacking sufficient “heft”—to those at issue in Horton

because they are not interests of “sovereign immunity or

* * * with constitutional underpinnings.” 366 Or at 651. But

the majority does not explain why the legislature’s constitu-

tional authority to enact laws for what it determines to be

the good of the state is less important than sovereign immu-

nity. To the extent the majority views sovereign immunity

as a constitutional doctrine, it is incorrect. In Hale v. Port

of Portland, 308 Or 508, 515, 783 P2d 506 (1981), we stated

Cite as 366 Or 628 (2020) 663

that the defendant was incorrect in arguing that the refer-

ence to sovereign immunity in Article IV, section 24, of the

Oregon Constitution, “established sovereign immunity as a

constitutional doctrine.”3 Rather, sovereign immunity was

a common-law doctrine that “was part of this state’s law at

the time of statehood * * * [and s]tatehood did not change

the law.” Id. at 514. In Horton we, somewhat generously,

described the doctrine as having “constitutional underpin-

nings,” 359 Or at 221, but it was always a common-law doc-

trine and not a constitutional grant of immunity to state

or local governments; indeed, the reference in Article IV,

section 24, speaks specifically of allowing legislation that

would waive sovereign immunity.

I see no reasonable basis for suggesting that the

state’s interest in sovereign immunity is more important

or has more constitutional “heft” than other interests that

the legislature has decided to protect or adjust or modify

to achieve particular policy goals. In Lawson v. Hoke, 339

Or 253, 119 P3d 210 (2005), this court rejected a remedy-

clause challenge to ORS 31.715(1), a statute that explicitly

precludes uninsured drivers from recovering noneconomic

damages for injuries sustained in an action arising out of

the operation of a motor vehicle. Although the court agreed

with the plaintiff that the common law at the time the

remedy clause was adopted would have recognized a claim

for noneconomic damages arising from the negligence of

another driver, it nevertheless upheld the “legislature’s abil-

ity to choose a particular legal device as a way to advance

a particular public policy.” Id. at 256. It described the leg-

islature’s choice “of precluding an award of certain forms of

civil damages to those who violate the policy in question—

compulsory automobile insurance—as a kind of ‘stick’ to

encourage persons to abide by that policy” and held that the

“legislative choice * * * is a constitutionally permissible one.”

Id.

3

Article IV, section 24, provides that:

“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 adop-

tion of this Constitution; but no special act authorizeing [sic] such suit to be

brought, or making compensation to any person claiming damages against

the State, shall ever be passed.”

664 Busch v. McInnis Waste Systems, Inc.

Similarly, as I noted in my concurring opinion

in Clarke, the legislature has sought to encourage cer-

tain actions by members of the public by enacting “Good

Samaritan” statutes that limit the circumstances in which

a person injured by another who provides emergency med-

ical assistance, transportation assistance, or defibrillator

treatment can recover damages. 343 Or at 617 (Balmer, J.,

concurring) (citing ORS 30.800; ORS 30.807; ORS 30.802).

Other statutes provide limited immunity for individuals who

report suspected child abuse, ORS 419B.025, or who disclose

information about a former employee to a new employer,

ORS 30.178. In each of those statutes, the legislature lim-

ited a person’s Article I, section 10 right to “remedy * * * for

injury done him in his person * * *.” But in each instance, the

legislature acted to advance a specific policy. I assume that

those statutes do not violate the remedy clause, and nothing

in the majority opinion or any other opinion from this court

is to the contrary.

To summarize, in order to advance specific public

policies, the legislature often has modified the otherwise

applicable rules of common-law negligence and the remedies

for such negligence. Most relevant here, it has barred the

recovery of noneconomic damages to incentivize drivers to

purchase required insurance, see Lawson, 339 Or at 256;

it has capped total damages—economic and noneconomic—

that are recoverable from government bodies and their

employees—the cap we upheld in Horton. 359 Or at 172-

73. And, in the statute at issue here, ORS 31.710(1), it has

capped noneconomic damages—the cap we upheld in Greist.

322 Or at 300.

NONECONOMIC DAMAGES ARE QUALITATIVELY

DIFFERENT FROM ECONOMIC DAMAGES

As the majority explains, ORS 31.710(1) was part

of the legislative response to a perceived crisis in the insur-

ance market as a result of expanding tort liability and

large damage awards in the 1960s and 1970s, including

rapidly rising medical malpractice insurance premiums. It

amended a number of statutes in ways that were intended to

help reduce premiums and stabilize that market. Whether

or not that “crisis” was overblown, whether the supposed

Cite as 366 Or 628 (2020) 665

“reforms” were good policy or bad policy, or whether the leg-

islative changes had their intended effect is neither here nor

there, as far as this court is concerned. The relevant point is

that the legislature, based on studies, reports, and hearings,

exercised its plenary power to enact laws that it believed

advanced important policy goals for the state, including the

limitation on noneconomic damages, and those laws are

entitled to substantial weight. That brings us back to the

question of whether this legislatively enacted limit on dam-

ages violates the remedy clause.

The legislature chose not to limit the recovery of

“economic damages” suffered by those who have suffered

injury to their person, property, or reputation—the “objec-

tively verifiable monetary losses,” including lost income,

medical expenses, the value of property. Instead, it focused

solely on noneconomic damages. Much of defendant’s argu-

ment that the cap here does not violate the remedy clause is

based on the differences between economic and noneconomic

damages. The majority declares itself “not persuade[d]” that

the difference between economic and noneconomic damages

is relevant for remedy-clause purposes. 366 Or at 646. It

first asserts that it must not be important because Greist did

not rely on the distinction. But there was no reason for the

court to even mention the difference in Greist, because the

verdict there was for $100,000 in economic damages (which

was unaffected by the cap) and $1.5 million for noneconomic

damages (of which the plaintiff received $500,000). 322 Or

at 286. And, in Clarke, we emphasized that the $200,000 cap

at the time—$100,000 for economic damages and $100,000

for noneconomic damages—was a tiny fraction of the plain-

tiff’s $12 million in economic damages, although that fact, of

course, was not the only reason we found the cap unconstitu-

tional as applied to the verdict there. 343 Or at 609.

This court never has examined in detail the dif-

ferences between noneconomic and economic damages for

remedy-clause purposes, nor does the majority do so today.

I agree with the majority that Oregon law historically and,

I believe, correctly, has allowed recovery of damages for

intangible injuries, what we now call noneconomic dam-

ages. DeMendoza v. Huffman, 334 Or 425, 438, 51 P3d 1232

666 Busch v. McInnis Waste Systems, Inc.

(2002). I also agree that such damages provide “remedy”

for injuries—although necessarily in a different way than

damages that compensate for medical bills, lost income,

and other financial consequences of injuries. Such reme-

dial damages—economic and noneconomic—are different

from punitive damages, which are intended to punish the

tortfeasor and not to compensate the injured person. Id. at

442, 445-46. Thus, it may be that a statute that eliminated

noneconomic damages altogether would violate the remedy

clause, although that issue, of course, is not before us today.

But that does not mean that the distinction

between economic and noneconomic damages is irrelevant

for remedy-clause purposes. Accepting, as I do, that non-

economic damages are not merely symbolic but are “real”

damages in the sense that they help remedy the pain and

suffering that an injured plaintiff has unquestionably suf-

fered, that does not mean that those damages are exactly

like economic damages. Rather, in my view, for some of the

same reasons that statutory limits on other common-law

rights and remedies, such as those discussed above, are per-

missible under Article I, section 10, the differences between

noneconomic and economic damages can justify different

treatment of such damages by the legislature.

The differences between economic and noneconomic

damages—and the reasons it is appropriate to consider them

differently for remedy-clause purposes—begin with the con-

trolling statutory definitions. “Economic damages” means

“objectively verifiable monetary losses,” including medical

expenses, lost income, and impairment of earning capacity.

ORS 31.710(2)(a). “Noneconomic damages” means “subjec-

tive, nonmonetary losses” including “pain, mental suffer-

ing, emotional distress,” among other noneconomic harms.

ORS 31.710(2)(b). Although both types of damages are for

“losses,” the statutes recognize how fundamentally different

they are in concept: “objectively veritable monetary losses”

and “subjective nonmonetary losses.” Because of the explic-

itly “subjective” nature of noneconomic damages, they can-

not be verified and there is no objective standard or measure

for such damages, other than the dollar amount awarded

by the jury. See DeMaris v. Whittier, 280 Or 25, 29, 569 P2d

605 (1977) (“There is no standard for the measurement of

Cite as 366 Or 628 (2020) 667

pain and suffering.”). Moreover, although an injured person

or family members or experts may testify about an injured

person’s pain, suffering, and distress, because the loss is

subjective to the plaintiff, it is difficult for a defendant to

disprove a plaintiff’s assertion of emotional distress or other

suffering.

Both parties cite Dobbs’s Law of Remedies, but both

parties cite only the sentences that support their position

and thus fail to grapple with the unavoidable ambiguity of

noneconomic damages. Plaintiff quotes Dobbs as recogniz-

ing that “the pain for which recovery is allowed includes vir-

tually any form of conscious suffering, both emotional and

physical.” Dan B. Dobbs, 2 Law of Remedies § 8.1(4), 381 (2d

ed 1993). Defendant refers to the author’s equally important

description of the difficulty of conceptualizing damages for

that kind of harm:

“There is no clear legal or even medical conception of pain.

Even so, courts not only award damages for it but often

say that these damages are compensatory in nature. Yet

it seems clear that damages for pain and suffering are not

compensation in any ordinary sense in that they make the

plaintiff whole or replace what has been lost, since the dam-

ages are not pecuniary and since there is no market in pain

and suffering by which the damages could be estimated.”

Id. at 382. And Dobbs concludes by emphasizing the absence

of any meaningful standard for measuring noneconomic

damages:

“Because the award for pain does not reflect economic loss,

it is difficult to establish workable standards of measure-

ment. * * * The result is that there is almost no standard for

measuring pain and suffering damages, or even a concep-

tion of those damages or what they represent. Courts have

usually been content to say that pain and suffering dam-

ages should amount to ‘fair compensation’ or a ‘reasonable

amount,’ without any more definite guide.”

Id. at 383.

The absence of any standard for measuring non-

economic damages is made explicit in Uniform Civil Jury

Instruction 70.02, which was given in this case. After sum-

marizing the statute, the instruction goes on to say:

668 Busch v. McInnis Waste Systems, Inc.

“The law does not furnish you with any fixed standard by

which to measure the exact amount of noneconomic dam-

ages. However, the law requires that all damages awarded

must be reasonable. You must apply your own considered

judgment, therefore, to determine the amount of noneco-

nomic damages.”

In contrast to many other jurisdictions, the pro-

cedure of remittitur that allows an excessive verdict to be

reduced by the trial court or resubmitted to the jury is not

available in Oregon. State ex rel Young v. Crookham, 290 Or

61, 68, 618 P2d 1268 (1980). Indeed, the only limit on non-

economic damages is the amount pled in the complaint. See

ORCP 67 C (“A judgment * * * exceeding the amount prayed

for in the pleadings may not be rendered * * *.”).

Not surprisingly, given the absence of any standard

or measure, “verdicts vary enormously, raising substan-

tial doubts whether the law is evenhanded in the admin-

istration of damages awards or whether in fact it merely

invites the administration of biases or against individual

parties.” Dobbs, 2 Law of Remedies § 8.1(4) at 398-99. See

also Blumstein et al, Beyond Tort Reform: Developing Better

Tools for Assessing Damages for Personal Injury, 8 Yale J on

Reg 171, 172 (1991). The same absence of any standard for

measuring noneconomic damages also means that an appel-

late court is simply unable to review any jury award of non-

economic damages. As long as there is some evidence in the

record that the plaintiff “subjective[ly]” experienced “pain,

mental suffering, or emotional distress” as a result of defen-

dant’s tortious conduct, an award of noneconomic damages

is essentially unreviewable because there is simply no basis

to “verify” the award or any “objective” standard against

which to measure it.

Noneconomic damage awards have been described

as an example of “incoherent” judgments, because, although

we hope that “the similarly situated are treated similarly,”

plaintiffs receiving such awards typically are not. Cass R.

Sunstein et al, Predictably Incoherent Judgments, 54 Stan

L Rev 1153, 1154 (2002). Contributing to the arbitrariness

of such judgments are many factors, including that a jury

hears the facts of the case before it in insolation from other

Cite as 366 Or 628 (2020) 669

cases, id. at 1156, rather than being presented with the

patterns of behavior of multiple defendants or the pain and

suffering of multiple injured persons. At most, juries and

other decisionmakers may assess damages based on the cat-

egory of cases into which they place the case before them—

slip and fall, medical malpractice, personal injury caused

by a drunk driver. Those informal categories, however, are

strongly influenced by the lawyers’ framing of the case. A

category’s boundaries are fuzzy, id. at 1172, and “category-

bound” thinking leads to decisions that are inconsistent.4

Id. at 1173.

And noneconomic damages—again in contrast

to economic damages based on verifiable losses—are par-

ticularly susceptible to “anchoring,” the well-documented

phenomenon that jury awards are heavily influenced by

the amount the plaintiff asks for, “simply because juries

often have few other relevant dollar figures from which to

begin.” Id. at 1168 (discussing punitive damages). Research

on actual cases and in experimental settings makes clear

that “the more you ask for, the more you’ll get.” Gretchen

B. Chapman & Brian H. Bornstein, The More You Ask for,

the More You Get: Anchoring in Personal Injury Verdicts,

10 Applied Cognitive Psychology 519, 522 (1996); John

Campbell et al, Time is Money: An Empirical Assessment of

Non-Economic Damages Arguments, 95 Wash U L Rev 1, 28

(2017).5

Despite the potential for incoherent and arbi-

trary noneconomic damages awards, however, I find noth-

ing inherently wrong, as a purely legal matter, with those

4

“[J]udgments in isolation will predictably produce incoherence from the

standpoint of the very people asked to make those judgments.” Sunstein et al, 54

Stan L Rev at 1202-03.

5

The noneconomic damages award of $10.5 million here may have been, in

part, a result of “anchoring.” It is impossible to know, of course, whether jurors

consciously or unconsciously decided on that number based entirely on their own

assessment of plaintiff’s pain and suffering or, in part, based on the prayer in the

complaint for $20 million. Suppose the prayer had been for $10 million. Would

the verdict have been for that amount? Or might the jury instead have awarded

$5 million? The verdict is certainly consistent with the research on the powerful

effect of anchoring. See generally Daniel Kahneman, Thinking, Fast and Slow

119-28 (2011) (discussing anchoring generally).

670 Busch v. McInnis Waste Systems, Inc.

results.6 Every day we trust juries to make difficult and

consequential decisions in criminal and civil cases. Jurors

must follow the court’s instructions on the law, of course,

but we also value their understanding of community norms,

while recognizing the potential for explicit and implicit bias.

And we give great weight to jury determinations on matters

where standards of review are vague or, as here, essentially

nonexistent.

But precisely because noneconomic damages in indi-

vidual cases are explicitly and inherently “subjective” and

receive only the most limited judicial review and, viewed

more generally, may be incoherent and arbitrary, it seems

to me that the legislature might well choose to exercise its

plenary authority over the civil justice system to regulate

those damages in some way. Many states have imposed caps

on noneconomic damages, while other states have none.7

Some states cap noneconomic damages only, or at a differ-

ent level, for medical malpractice cases. And a number of

states have constitutional provisions that explicitly prohibit

statutory damage caps. As noted previously, Oregon had

no general damage cap on common-law negligence claims

until 1987 when it imposed the cap on noneconomic dam-

ages. The legislature could decide at any time that a cap

is no longer appropriate and eliminate the cap. Or it could

raise the existing $500,000 cap. Indeed, the legislature has

considered raising the current cap a number of times, most

recently in the last legislative session where it was proposed

that the cap be increased to $1.5 million and that a mech-

anism be added for changes based on cost of living; how-

ever, that measure was ultimately rejected. House Bill 2014

A-Engrossed (2019).

The summary above indicates that the existence

and structure of caps on noneconomic damages is a topic

6

Or at least not much that is inherently wrong. To the extent that juries

and judges make determinations in civil and criminal cases based on explicit

or implicit bias, that seems to raise questions of discrimination, as well as due

process and equal protection concerns.

7

As of 2013, 29 states had some form of statutory cap on noneconomic dam-

ages in tort actions, medical malpractice actions, or both. J. Chase Bryan, Walter

H. Boone, & Jordan M. Mason, Are Non-Economic Caps Constitutional?, 80 Def

Counsel J 154, 157 (2013). Of the 17 states where caps had been challenged as

unconstitutional, the challenges had been successful in eight states. Id.

Cite as 366 Or 628 (2020) 671

of substantial policy interest across the country. There are

reasonable policy arguments against imposing a cap on

noneconomic damages, because those damages provide an

added deterrent (in addition to economic damages) to negli-

gence or other misconduct by defendants and also because

economic damages may not fully compensate for injuries suf-

fered by some plaintiffs. See Lucinda M. Finley, The Hidden

Victims of Tort Reform: Women, Children and the Elderly,

53 Emory LJ 1263, 1281 (2004); Joanna M. Shepherd, Tort

Reforms’ Winners and Losers: The Competing Effects of

Care and Activity Levels, 55 UCLA L Rev 905, 946 (2008).

Even some writers with a narrow economic focus conclude

that the usual criticisms of awarding damages for pain

and suffering are “unsound,” because those losses impose

opportunity costs and “[p]eople will pay to avoid them and

will demand payment to risk incurring them.” Richard A.

Posner, Economic Analysis of Law § 6.12, 229 (9th ed 2014);

see id. (“Damages awards for pain and suffering, even when

apparently generous, may well undercompensate victims

crippled by accidents.”).8

But, as discussed above, there are also reasonable

arguments that noneconomic damages awards can be arbi-

trary and unfair, because they turn entirely on the “sub-

jective, nonmonetary” losses of the plaintiff as assessed

by the jury, and cannot be objectively verified, in contrast

to economic damages. That fact makes noneconomic dam-

ages unpredictable and potentially discriminatory based

on race, gender, and other characteristics of the plaintiff.

Such awards, it can be argued, undermine the core legal

principle that like cases be treated alike, Oscar G. Chase,

Helping Jurors Determine Pain and Suffering Awards, 23

Hofstra L Rev 763, 769 (1995), and raise equal protection

and due process concerns. See also Joseph H. King, Jr., Pain

and Suffering, Noneconomic Damages, and the Goals of Tort

Law, 57 SMU L Rev 163, 185 (2004) (subjective nature of

8

It should also be noted that the empirical evidence on the efficacy of caps

in achieving their goals of reducing noneconomic damages awards and encour-

aging settlement is mixed. See Greg Pogarsky & Linda Babcock, Damage Caps,

Motivated Anchoring, and Bargaining Impasse, 30 J Legal Stud 143 (2001);

Catherine M. Sharkey, Unintended Consequences of Medical Malpractice Damages

Caps, 80 NYU L Rev 391 (2005).

672 Busch v. McInnis Waste Systems, Inc.

noneconomic damages makes them “highly variable, unpre-

dictable, and abjectly arbitrary”); Neil Vidmar, Empirical

Evidence on the Deep Pockets Hypothesis: Jury Awards for

Pain and Suffering in Medical Malpractice Cases, 43 Duke

LJ 217, 254 (1993) (juror interviews reveal noneconomic

damages based on arbitrary factors, including multiples of

medical expenses).

My point is not that a cap on noneconomic damages

is a bad idea or a good one. Rather, it is that the nature

of noneconomic damages, as outlined above, makes them

quite different from economic damages. Courts are partic-

ularly ill-equipped to review or set limits on noneconomic

damages, and we should not do so. And those realities, I

think, should be recognized in our remedy-clause analysis

by giving the legislature more leeway to regulate noneco-

nomic damages than we have given it in limiting economic

damages, which are inherently limited to objective evidence

of monetary losses presented at trial.

The legislature, acting through the usual lawmak-

ing processes and considering policy arguments for and

against noneconomic damages, should be able to decide

whether to retain the cap that it imposed in 1987, increase

the cap, or eliminate it altogether. Or it could consider one

of the other approaches to noneconomic damages that have

been proposed or adopted elsewhere. See Dobbs, 2 Law of

Remedies § 8.1(4) at 397-400. In Greist, we reviewed the

reasons the legislature enacted the cap on noneconomic

damages in the first place—and rejected the plaintiff’s

remedy-clause challenge. 322 Or at 297. In Lawson, the leg-

islature barred a driver without insurance from recovering

any noneconomic damages when injured in a motor vehicle

accident—and, again, we found the legislature’s reasons for

enacting the statute sufficient, rejecting a remedy-clause

challenge. 339 Or at 256. Even if we were to construe the

remedy clause to prohibit any cap on economic damages in

a case such as this—a question not before us—in my view,

the very different nature of noneconomic damages permits

the legislature to regulate in this area in order to advance

policy interests that it deems to be important. The legis-

lature did so in enacting the cap in ORS 31.710(1). That

Cite as 366 Or 628 (2020) 673

statute is constitutional on its face and as applied to plaintiff

here.

For those reasons, I respectfully dissent.

Landau, S. J., joins in this dissenting opinion.