Howell v. Boyle

No. 14 March 14, 2013 359

IN THE SUPREME COURT OF THE

STATE OF OREGON

Jean Marie HOWELL,

Plaintiff,

v.

Christopher David BOYLE

and City of Beaverton,

Defendants.

(US Court of Appeals for the Ninth Circuit 0936153;

SC S059120)

On certified questions from the United States Court

of Appeals for the Ninth Circuit; certification order dated

January 19, 2011; certification accepted February 17, 2011.

Argued and submitted September 8, 2011; reassigned

April 24, 2012.

Janet M. Schroer, Hoffman Hart & Wagner, LLP,

Portland, argued the cause for defendants. With her on the

opening and reply briefs was Marjorie A. Speirs.

Michael H. Bloom, Michael H. Bloom PC, Salem, argued

the cause and filed the brief for plaintiff.

Erin C. Lagesen, Assistant Attorney General, John R.

Kroger, Attorney General, and Mary H. Williams, Solicitor

General, Salem, filed a brief on behalf of amicus curiae

State of Oregon.

Roy Pulvers, Hinshaw & Culbertson LLP, Portland, filed

a brief on behalf of amicus curiae Oregon Health & Science

University.

Harry Auerbach, Chief Deputy City Attorney, Portland,

filed a brief on behalf of amicus curiae League of Oregon

Cities.

Lisa T. Hunt and Kathryn H. Clarke, Portland, filed

a brief on behalf of amicus curiae Oregon Trial Lawyers

Association.

360 Howell v. Boyle

Before Balmer, Chief Justice, Kistler, Walters, Linder,

and Landau, Justices, and Durham and De Muniz, Senior

Judges, Justices pro tempore.*

LANDAU, J.

Certified question answered.

De Muniz, J. pro tempore, dissented and filed an opinion,

in which Walters, J., and Durham, J. pro tempore, joined.

Durham, J. pro tempore, dissented and filed an opinion.

Defendants moved to reduce an award of damages in a personal-injury action

to the limit set by the Oregon Tort Claims Act. Plaintiff objected, arguing that the

statutory limitation violated her constitutional right to a remedy under Article I,

section 10, of the Oregon Constitution. The United States Court of Appeals for the

Ninth Circuit certified questions to the Oregon Supreme Court asking whether

the damages limitation in fact violated Article I, section 10. Held: A statutory

limitation on damages does not violate Article I, section 10, so long as it provides a

remedy that is substantial and does not leave a plaintiff wholly without a remedy.

Certified question answered.

______________

*  Brewer and Baldwin, JJ., did not participate in the consideration or decision

of this case.

Cite as 353 Or 359 (2013) 361

LANDAU, J.

This case is before the court on certified questions of

Oregon law from the United States Court of Appeals for the

Ninth Circuit (Ninth Circuit). See generally ORS 28.200 to

28.255 (granting authority to answer certified questions and

describing procedure). The questions arise out of an action

for personal injury brought in federal district court against

defendant Boyle and his employer, the City of Beaverton,

for injuries that plaintiff suffered in an automobile collision

with a police car that defendant Boyle drove. A jury found

that plaintiff and Boyle were equally at fault and that

plaintiff ’s damages totaled approximately $1 million. The

trial court reduced the award by half, in accordance with the

jury’s findings of comparative fault. Defendants then moved

to reduce the award further, to the $200,000 limit of the

Oregon Tort Claims Act in existence at the time. The trial

court denied the motion, concluding that the application of

the statutory limitation would violate the remedy clause of

Article I, section 10, of the Oregon Constitution.

Defendants appealed, and the Ninth Circuit

certified the following questions to this court:

“1.  Is [plaintiff ’s] negligence action constitutionally

protected under the Oregon [C]onstitution’s remedy clause,

Or. Const. art. I, § 10, irrespective of the jury’s finding of

comparative negligence? To what extent, if any, do the

common[-]law defenses to contributory negligence of last

clear chance, the emergency doctrine, and gross negligence

[a]ffect this determination?

“2.  If [plaintiff ’s] action is protected, is $200,000 an

unconstitutional emasculated remedy despite the jury’s

finding of comparative negligence? To what extent, if any,

do the common[-]law defenses to contributory negligence

of last clear chance, the emergency doctrine, and gross

negligence [a]ffect this determination?”

We address the second question only, because its answer is

dispositive. Even assuming for the sake of argument that,

under the circumstances of this case, plaintiff ’s negligence

action is constitutionally protected by Article I, section 10,

the $200,000 limitation on her recovery is constitutionally

permissible. Under this court’s case law, the constitution

362 Howell v. Boyle

requires that any remedy that remains after the imposition

of a modern limitation on it be “substantial.” In this case,

the $200,000 judgment that plaintiff received satisfies that

constitutional requirement.

I. BACKGROUND

To provide context for the Ninth Circuit’s questions

and our answer, we begin with a more detailed description

of the facts and the procedural history of the case. In 2007,

defendant Boyle, a City of Beaverton police officer, drove

a motor vehicle west on the Tualatin Valley Highway. He

struck plaintiff as she attempted to cross the highway at an

unmarked crosswalk. As a result of that incident, plaintiff

suffered serious injuries leading to permanent disability and

significant medical expenses. Plaintiff brought a diversity

action in the United States District Court for the District of

Oregon, naming as defendants both Boyle and his employer,

the City of Beaverton. Plaintiff alleged $4,779,529.25 in

economic damages and up to $1 million in noneconomic

damages.

Defendants answered, alleging that, among other

things, plaintiff ’s injuries were caused by her own negligence

because she had been “darting” across an unsafe intersection

late at night while wearing dark clothes. In addition,

defendants alleged that plaintiff ’s claims are subject to

the “conditions, limitations, procedures and immunities

contained in the Oregon Tort Claims Act.” Specifically,

defendants alleged that, because Boyle had acted within

the course and scope of his employment, plaintiff could not

maintain a claim against him and, under ORS 30.265(1),1

was required instead to substitute the City of Beaverton.

They also alleged that, in any event, to the extent that they

are found liable, such liability is limited by the version of

the Oregon Tort Claims Act then in effect to a maximum of

$200,000. ORS 31.270(1)(b) (2007).2

1

ORS 30.265(1) provides, in part, that “[t]he sole cause of action for any tort

of officers, employees or agents of a public body acting within the scope of their

employment or duties and eligible for representation and indemnification *  * *

shall be an action against the public body only.”

2

The Oregon Tort Claims Act has since been amended to increase the

limitation of liability. Those amendments do not apply to this case.

Cite as 353 Or 359 (2013) 363

Defendants moved to dismiss Boyle from the case

pursuant to ORS 30.265(1). Plaintiff opposed the motion

on the ground that, under this court’s decision in Clarke

v. OHSU, 343 Or 581, 175 P3d 418 (2007), to preclude the

action against Boyle would violate plaintiff ’s right to a

remedy guaranteed by Article I, section 10, of the Oregon

Constitution. The trial court agreed and denied defendants’

motion.

The case was tried to a jury, which determined

that plaintiff and Boyle each were 50 percent at fault. The

jury further found that plaintiff had incurred $765,000 in

economic damages and $250,000 in noneconomic damages,

for a total of $1,015,000. In accordance with the jury’s

findings of comparative fault, the court reduced plaintiff ’s

damages by 50 percent and entered judgment against

defendants for $382,500 in economic damages and $125,000

in noneconomic damages, for a total of $507,500.

Defendants then moved to amend the judgment to

reduce the amount of damages to the $200,000 statutory

limit. Plaintiff opposed the motion on the ground that

applying the Oregon Tort Claims Act limit to this case

“emasculated” her common-law remedy against defendants

in violation of the remedy clause of Article I, section 10,

of the Oregon Constitution. The trial court agreed with

plaintiff and denied defendants’ motion.

Defendants appealed to the Ninth Circuit,

contending that the trial court had erred in denying their

motion to reduce the judgment to the limits provided in

ORS 31.270(1)(b) (2007). They advanced two arguments in

support of that contention. First, they argued that, under

this court’s decision in Lawson v. Hoke, 339 Or 253, 119 P3d

210 (2005), Article I, section 10, does not even apply because

plaintiff—having been found 50 percent at fault—would

not have been able to recover anything under common-

law negligence as it existed at the time of the framing of

the Oregon Constitution. According to defendants, under

the law prevailing at that time, contributory negligence

in any amount on the part of the plaintiff operated as a

complete bar to recovery. Second, they argued that, even if

Article I, section 10, otherwise applies, the $200,000 cap is a

364 Howell v. Boyle

constitutionally adequate remedy under this court’s recent

precedents.

In response to defendants’ first argument, plaintiff

asserted that whether her fault would have precluded

recovery under the law that existed at the time of the

adoption of the state constitution is irrelevant. The sole and

determinative issue, she argued, is whether she could have

stated a claim for negligence, not whether the law at the

time would have entitled her to a remedy. In the alternative,

plaintiff argued that, even if it were appropriate to take into

account defenses to a negligence action that would have

applied in 1857, such as contributory negligence, the fact

remains that the law recognized exceptions to that defense

in cases of gross negligence, conditions of emergency, and

circumstances in which the defendant had the “last clear

chance” to avoid the injury. In response to defendants’

second argument, plaintiff asserted that the limits

established in ORS 31.270(1)(b) (2007) failed to provide

a constitutionally adequate remedy because that statute

indisputably prevented her from recovering the full amount

of her damages.

Following the filing of the parties’ briefing on

the foregoing points, the Ninth Circuit entered an order

certifying the two questions to which we have referred. This

court accepted the certified questions and allowed further

briefing. Before this court, the parties essentially reprise

the arguments that they made to the Ninth Circuit.

II. ANALYSIS

Article I, section 10, of the Oregon Constitution

provides, in part, that “every man shall have remedy by due

course of law for injury done him in his person, property,

or reputation.” The provision is commonly referred to as

the state constitutional “remedy clause.” See, e.g., Juarez

v. Windsor Rock Products, Inc., 341 Or 160, 164, 144 P3d

211 (2006) (referring to Article I, section 10, as containing a

“remedy clause”).

Cite as 353 Or 359 (2013) 365

A.  Prior Case Law on the Constitutional Adequacy of a

Remedy

This court has confronted constitutional challenges

to various types of statutory remedy limitations in several

previous cases, dating back at least to its 1901 decision in

Mattson v. Astoria, 39 Or 577, 65 P 1066 (1901). In that

case, the plaintiff initiated an action against the City of

Astoria for injuries that were said to have been caused by

the city’s negligent maintenance of its public streets. The

city invoked a provision of its charter, adopted pursuant to

legislative authorization, exempting it and any of its council

members from liability for such negligence. The lower court

held the charter provision unconstitutional, and this court

affirmed. The court explained that it is “unquestioned”

that “it is within the power of a legislature to exempt a

city from liability to persons receiving injuries on account

of streets being defective or out of repair.” Id. at 579. The

injured party, the court explained, “is not wholly without

remedy,” because he or she may proceed against city officers

or employees who have been delegated the duty of keeping

the streets in repair. Id. In contrast, the court continued,

the City of Astoria’s charter purported to exempt both the

city and its officers and employees, thus amounting to “a

denial of any remedy.” Id. at 580. Under Article I, section 10,

the court explained, the legislature cannot “deny a remedy

entirely.” Id.

In Evanhoff v. State Industrial Acc. Com., 78 Or

503, 154 P 106 (1915), the court took a similar approach

to the adequacy of remedies under Article I, section 10.

In that case, the plaintiff challenged the constitutionality

of an early version of this state’s workers’ compensation

legislation. Among other things, he contended that it

violated the remedy clause of Article I, section 10. The court

dismissed that particular argument summarily, noting that,

at that time, the workers’ compensation system was entirely

voluntary. Id. at 517. Then, in dictum, the court went on to

observe:

“Many of the states for many years have had statutes

fixing the liability with precision in cases of death, and in

no instance has any court held such statute invalid. And

366 Howell v. Boyle

why a statute cannot fix with certainty the damages to

be allowed in case of the loss of an arm, leg, eye or other

injury is not perceived, and counsel fail to state any legal or

constitutional objection thereto.”

Id. at 518 (quoting Hawkins v. Bleakley, 220 Fed 378, 381

(SD Iowa 1914)).

The following year, in Humphry v. Portland, 79

Or 430, 154 P 897 (1916), the court more explicitly cited

Mattson for the proposition that Article I, section 10,

prohibits only legislation that leaves a plaintiff wholly

without a remedy. Under that constitutional provision, the

court stated, “a right of action to recover damages for an

injury *  * sustained cannot be so abridged by legislation

*

as to deprive the injured party of all remedy.” Id. at 440.

Noonan v. City of Portland, 161 Or 213, 88 P2d 808 (1939),

followed suit. In that case, the court upheld a city charter

granting immunity to the city itself, but not to city officers.

In Hale v. Port of Portland, 308 Or 508, 523, 783

P2d 506 (1989), the court again held that Article I, section

10, prohibits limitations on common-law actions that leave

a plaintiff “entirely without a remedy.” In that case, the

plaintiff suffered injuries in a motor vehicle collision. He

sued several defendants, including the City of Portland,

which the plaintiff alleged was negligent in maintaining

the road where the accident occurred. He sought more than

$600,000 in damages. The city moved to strike the claim

for damages in excess of the $100,000 limitation that the

Oregon Tort Claims Act then imposed. The trial court

granted the motion, and the Court of Appeals affirmed.

On review, the plaintiff argued that, among other things,

the statutory damage limitation violated Article I, section

10. This court rejected the argument. Reviewing its prior

cases—in particular, Noonan and Evanhoff—the court

explained that those decisions “held only that Article I,

section 10, is not violated when the legislature alters *  *

*

a cause of action, so long as the party injured is not left

entirely without a remedy.” Id. at 523. “[I]t is enough,” the

court declared, “that the remedy is a substantial one.” Id.

In determining that the limitation on the plaintiff ’s

damages did not deprive him of a “substantial” remedy, the

Cite as 353 Or 359 (2013) 367

court observed that the statutory damage limitation applied

regardless of whether the damages that a plaintiff suffered

arose out of a governmental or proprietary function. Id.

Thus, the court noted, the challenged statute represented

a quid pro quo. On the one hand, it limited the amount of

damages that could be recovered, while on the other hand,

it expanded the types of cases that could trigger municipal

liability by eliminating the traditional immunity that

applied when damages arose as a result of a municipality

performing a governmental function:

“The class of plaintiffs has been widened by the legislature

by removing the requirement that an injured party show

that the municipal corporation’s activity that led to the

injury was a proprietary one. At the same time, however,

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

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

counterbalancing burden has been imposed. This may

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

advantage of others.”

Id. The court did not say that such a quid pro quo was

required to satisfy the requirements of Article I, section

10. But it concluded that such a “new balance” was clearly

within the legislature’s authority, notwithstanding the

limitations of the remedy clause. Id.

In Neher v. Chartier, 319 Or 417, 879 P2d 156

(1994), this court again addressed the constitutionality of a

statutory limitation on damages. In that case, the plaintiff ’s

daughter was killed when she was struck by a Tri-Met

bus driven by the defendant, Chartier. The daughter was

acting within the scope of her employment at the time of

the accident, and, under existing workers’ compensations

statutes, the estate recovered the maximum $3,000 burial

benefit. The plaintiff, as the representative of the estate,

then initiated an action against Chartier and Tri-Met. The

defendants, however, moved for judgment on the pleadings,

arguing that they were immune under a provision of the

Oregon Tort Claims Act that granted immunity to public

bodies and their employees for claims arising out of injuries

that were covered by workers’ compensation law. The

trial court granted the motion, and the Court of Appeals

affirmed, concluding that the substitute remedy of workers’

368 Howell v. Boyle

compensation benefits for tort damages did not leave the

plaintiff wholly without a remedy.

This court disagreed, in part. Citing its earlier

decision in Hale, the court first noted that Article I,

section 10, “is not violated ‘so long as the party injured is

not left entirely without a remedy,’ ” and that remedy is

“ ‘substantial.’ ” Id. at 426 (quoting Hale, 308 Or at 523).

With that standard in mind, the court concluded that the

estate itself had not been left wholly without a remedy, as it

was entitled to $3,000 in burial expenses under the workers’

compensation law. Neher, 319 Or at 426. But, the court said,

the estate was not the only real party in interest in a wrongful

death action; the decedent’s parents also were parties, and

they were not entitled to those benefits. “Thus,” the court

concluded, “although the decedent’s estate (for which a

parent happens to serve as a personal representative) has

not been left ‘wholly without remedy,’ the surviving parents

of the decedent, who otherwise would be entitled to recover,

* * * have been left wholly without a remedy.” Id. at 426-27

(emphasis in original).

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

the court addressed the constitutionality of another statutory

limitation on damages, in that case ORS 18.560(1), which

imposed a $500,000 limitation on noneconomic damage

awards.3 The plaintiff had been awarded economic damages

of $100,000 and noneconomic damages of $1.5 million, but

the trial court reduced the award of noneconomic damages

in accordance with the statutory limitation. On review, the

plaintiff argued that the limitation on the noneconomic

damage award violated Article I, section 10. Specifically, the

plaintiff argued that the statutory limitation “wholly denies

a remedy for legitimate losses that exceed $500,000.” Id.

at 290. This court rejected the argument. Citing both Hale

and Neher, the court held that “[p]laintiff has not been left

without a remedy. She has received $600,000, comprised

of $500,000 in noneconomic damages and $100,000 in

economic damages. * * Although that remedy is not

*

precisely of the same extent as that to which plaintiff was

3

The statute later was declared unconstitutional on other grounds in Lakin v.

Senco Products, Inc., 329 Or 62, 82, 987 P2d 463 (1999).

Cite as 353 Or 359 (2013) 369

entitled before the enactment of ORS 18.560(1), that remedy

is substantial.” Id. at 291. The court held that the remedy

was substantial, among other things, “because 100 percent

of economic damages plus up to $500,000 in noneconomic

damages is a substantial amount.” Id. The court’s holding

in Greist prompted a concurring opinion from Justice Unis,

who took the court to task for applying a substantial remedy

test, which he argued was “vague and gives no guidance to

legislators, litigants, or ordinary citizens as to how courts

will apply the standard.” Id. at 311 (Unis, J., concurring in

part, specially concurring in part).

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

124, 23 P3d 333 (2001), the court engaged in a wholesale

reevaluation of its remedy clause jurisprudence. The court

engaged in an extended historical analysis of the scope and

effect of the remedy clause and established a new method

of analysis of claims arising under it. 332 Or at 123-24.

In that case, the plaintiff had been injured in a work-

related accident. He filed a claim under the state’s workers’

compensation statutes, but that claim was denied. He then

filed a claim for negligence against his employer. Id. at 86.

The employer responded with a motion to dismiss the claim

on the face of the pleadings on the ground that the workers’

compensation statutes provided the exclusive remedy for

work-related injuries. The trial court granted the employer’s

motion, and the Court of Appeals affirmed. Smothers v.

Gresham Transfer, Inc., 149 Or App 49, 941 P2d 1065 (1997).

This court reversed, holding that the trial court should not

have granted the employer’s motion to dismiss because the

statute providing that the workers’ compensation law is

the exclusive remedy for work-related injuries violated the

remedy clause. Smothers, 332 Or at 86.

In brief, the court explained that the remedy clause

of Article I, section 10, was “intended to preserve common-

law right[s] of action.” Id. at 119. The court summarized its

analysis in the following terms:

“Drafters of remedy clauses in state constitutions sought

to protect absolute common-law rights by mandating that

a remedy always would be available for injury to those

rights. The drafters of the Oregon remedy clause identified

370 Howell v. Boyle

absolute rights respecting person, property, and reputation

as meriting constitutional protection under the remedy

clause. As to those rights, the remedy clause provides, in

mandatory terms, that remedy by due course of law shall

be available to every person in the event of injury. The

word ‘remedy’ refers both to a remedial process for seeking

redress for injury and to what is required to restore a right

that has been injured. Injury, in turn, is a wrong or harm for

which a cause of action existed when the drafters wrote the

Oregon Constitution in 1857. A common-law cause of action

is a constitutionally adequate remedy for seeking redress

for injury to protected rights. However, the remedy clause

does not freeze in place common-law causes of action that

existed when the drafters wrote the Oregon Constitution in

1857. The legislature may abolish a common-law cause of

action, so long as it provides a substitute remedial process

in the event of an injury to the absolute rights that the

remedy clause protects.”

Id. at 124.4 The court then articulated a method of analyzing

claims brought under the remedy clause that consists of

answering two questions:

“[I]n analyzing a claim under the remedy clause, the first

question is whether the plaintiff has alleged an injury

to one of the absolute rights that Article I, section 10[,]

protects. Stated differently, when the drafters wrote

the Oregon Constitution in 1857, did the common law of

Oregon recognize a cause of action for the alleged injury?

If the answer to that question is yes, and if the legislature

has abolished the common-law cause of action for injury to

rights that are protected by the remedy clause, then the

second question is whether it has provided a constitutionally

adequate substitute remedy for the common-law cause of

action for that injury.”

Id.

Turning to the particulars of that case, the court

determined that the plaintiff ’s action for negligence against

his employer would have been recognized at common law in

1857 and that, because the exclusive remedy provision of

4

The court noted that, in a number of its earlier Article I, section 10, cases,

such as Noonan, it had suggested that the remedy clause was not intended to

preserve common-law rights and that later cases, such as Hale, had repeated the

suggestion. Smothers, 332 Or at 118-19. The court disavowed those statements, id.

at 119, which have no bearing on the questions before us in this case.

Cite as 353 Or 359 (2013) 371

the workers’ compensation statutes completely eliminated

that common-law remedy, the statute was unconstitutional:

“Having alleged an injury of the kind that the remedy

clause protects, and having demonstrated that there was

no remedial process available under present workers’

compensation laws, plaintiff should have been allowed to

proceed with his negligence action.” Id. at 136.

Thus, under Smothers, the initial question is

whether, under the circumstances of the case, the common

law of Oregon would have recognized a cause of action for

the claimed injury. If the answer to that question is no, then

the remedy clause is not implicated, and the matter is at

an end. If the answer to the first question is yes, then we

must determine whether a challenged limitation renders

the common-law remedy constitutionally inadequate.

Smothers did not supply much in the way of

explanation as to how we are to determine the adequacy of

a remedy under Article I, section 10. The court noted that,

in its prior cases, it had never held “that the remedy clause

prohibits the legislature from changing a common-law

remedy or form of procedure, attaching conditions precedent

to invoking the remedy, or perhaps even abolishing old

remedies and substituting new remedies.” Id. at 119. That

said, the court declared that neither can the legislature

substitute an “’emasculated remedy’ that is incapable of

restoring the right that has been injured.” Id. at 119-20. In

that regard, the court explicitly noted that, in Hale, Neher,

and Greist, it had concluded that a remedy is adequate

under Article I, section 10, so long as it is “substantial.” Id.

at 120 n 19. The court stated that it was simply “beyond

the scope of this opinion to address issues relating to the

adequacy of the amount of damages that may be available

under a legislatively substituted process.” Id.

Clarke v. OHSU, 343 Or 581, 175 P3d 418 (2007),

was the first post-Smothers decision to address the

constitutionality of a statutory damage limitation in any

detail.5 In that case, the plaintiff suffered permanent brain

5

In Jensen v. Whitlow, 334 Or 412, 51 P3d 599 (2002), the plaintiff challenged,

in federal district court, the constitutionality of the statutory damage limitation

imposed by the Oregon Tort Claims Act both facially and as applied. The federal

372 Howell v. Boyle

damage as a direct consequence of the negligence of Oregon

Health and Science University (OHSU) and certain of its

employees and agents. Id. at 586. The damages resulting

from his injuries totaled more than $17 million. Id. The

defendants, however, admitted negligence and, invoking the

damage limitation of the Oregon Tort Claims Act, moved for

entry of judgment against them for $200,000. Id. at 587.

The trial court granted the motion and entered judgment

accordingly. Id.

On review, the plaintiff argued that the statutory

damage limitation of $200,000 violated Article I, section

10. Id. The court held that, because OHSU was an

instrumentality of the state that would have been immune

from liability at common law, the limitation of its liability

posed no issue of constitutional adequacy under the remedy

clause. As to the individual defendants, however, the

court concluded that the statutory damage limitation was

unconstitutional on the facts of that case. Id. at 610.

The court began its opinion in Clarke by

recapitulating its prior cases on the subject, including Hale,

Neher, Greist, Smothers, and Jensen. Id. at 601-06. Among

other things, the court quoted with approval the portion of

Hale that described the proper analysis of the adequacy of a

remedy under Article I, section 10, as depending on whether

the existing remedy “is a substantial one;” indeed, the Clarke

court added its own emphasis to the words “substantial

one.” Id. at 602. Consistently with that emphasis, the

court summarized the significance of its prior cases in the

following terms:

district court submitted to this court the question whether the damages limitation,

“on its face or as applied,” violates several provisions of the state constitution,

including Article I, section 10. Id. at 415. This court declined to answer the question

to the extent that it pertained to as-applied challenges to the damages limitation

because the record was inadequate to enable the court to answer the question. Id.

As for the facial challenge to the damages limitation, the court framed its analysis

in terms of the two Smothers questions. Id. at 418. It then assumed, without

deciding, that the answer to the first question was that the injury at issue was

one for which Article I, section 10, guarantees a remedy. Id. Turning to the second

question, concerning the adequacy of the modern remedy, the court concluded that,

“because a damages award has yet to be determined in this case, the damages ‘cap’

does not render the remedy available to plaintiff ‘incapable of restoring the right

that has been injured.’ ” Id. at 421 (quoting Smothers, 332 Or at 119-20).

Cite as 353 Or 359 (2013) 373

“[A]s our review of the cases demonstrates, Article I, section

10, does not eliminate the power of the legislature to vary

and modify both the form and the measure of recovery for

an injury, as long as it does not leave the injured party with

an ‘emasculated’ version of the remedy that was available

at common law.”

Id. at 606. The court acknowledged that neither the

constitution itself nor the prior case law provides a precise

test for determining whether a particular remedy has been

“emasculated.” Id. Having said that, the court concluded

that the disposition of the case before it was “relatively

simple,” given the fact that the statutory damage limitation

deprived the plaintiff of all but a very small portion of the

over $17 million in damages that he suffered. Id. at 607.

To the defendants’ argument that even the

relatively small amount allowed by the statutory limitation

was sufficient under Hale and Greist, the court replied that

those cases were distinguishable on their facts. In Clarke’s

case, the court held, the claim of the plaintiff against the

individual defendants had been essentially eliminated. The

court reiterated that “the legislature is authorized under

Article I, section 10, to vary or modify the nature, the form,

or the amount of recovery for a common-law remedy,” but

added that “that authority is not unlimited.” Id. at 609.

In a concurring opinion, Justices Balmer and

Kistler emphasized that, although Hale and Greist were

distinguishable on their facts, “nothing in the majority

opinion undermines the holdings in those cases that the

[r]emedy [c]lause does not prohibit the legislature from

imposing caps on tort damages as long as those caps do not

deprive a plaintiff of a ‘substantial remedy.’ ” Id. at 615-16

(Balmer, J., concurring).

The foregoing case law consistently holds that the

legislature is authorized to enact a limitation on tort claim

recovery so long as the remaining remedy is “substantial.”

As the court declared—twice—in Clarke, Article I, section

10, does not deprive the legislature of the authority “to

vary and modify both the form and the measure of recovery

for an injury,” so long as the legislature does not leave the

injured party with an “emasculated” remedy. 343 Or at 606

374 Howell v. Boyle

(emphasis added); id. at 609 (the legislature is authorized

“to vary, or modify the nature, the form, or the amount of

recovery for a common-law remedy” (emphasis added)). The

reference to “emasculated” remedies is unfortunate, if not

sexist,6 and we discourage its further use in favor of the

references in the case law to the necessity that remaining

remedies be “substantial.”7

B.  Application

With those considerations in mind, we turn to this

case. Under Smothers, we confront two questions. First, we

must determine “whether an ‘absolute common-law right’

that existed when the Oregon Constitution was drafted in

1857 would have provided plaintiff with a remedy for the

injuries that she sustained in the accident with defendant.”

Lawson, 339 Or at 259. For the purposes of this opinion, we

assume, without deciding, that the answer to that question is,

yes. See Jensen, 334 Or at 418 (assuming, without deciding,

that the plaintiff ’s injury was protected by Article I, section

10, “because the second step of the Smothers analytical

framework is dispositive”). That triggers a second question;

namely, whether the legislatively adopted limitation on that

remedy is “constitutionally adequate.” Smothers, 332 Or at

124.

As we have noted, under this court’s prior case

law, the constitutional adequacy of a modern remedy

may be established by the fact that the modern remedy is

“substantial” and does not leave the plaintiff “wholly without

6

Webster’s defines “emasculate” as:

“1: to deprive of virile or procreative power : CASTRATE, GELD 2 : to deprive

of masculine vigor or spirit : weaken or attenuate by removal or alteration

of potent qualities as a : to divest (language) of vigor and freedom (as by

excision, euphemism, or weakening of sense) b : to deprive (a law) of force or

effectiveness (as by amendment or interpretation).”

Webster’s Third New Int’l Dictionary 738 (unabridged ed 2002). The use of the term

in the Article I, section 10, context has been justly criticized for its implication that

“strength and vitality are gender-specific.” Ackerman v. OHSU Medical Group, 233

Or App 511, 532 n 10, 227 P3d 744 (2010).

7

The particular term used in reference to the inadequacy of remedies under

Article I, section 10, traces back to West v. Jaloff, 113 Or 184, 232 P 642 (1925),

in which the court rejected the defendant’s proposed construction of a statute

that conferred limited immunity from liability on ambulance drivers because the

construction would give the plaintiff “an emasculated remedy wholly inadequate

under many conditions.” Id. at 195.

Cite as 353 Or 359 (2013) 375

remedy.” In this case, defendants contend that plaintiff ’s

remedy of $200,000 is constitutionally adequate under that

test. Defendants are correct.

The cases make clear that the mere fact that the

statutory limitation resulted in a reduction in the amount

that plaintiff otherwise would have been awarded, by itself,

does not establish a violation of Article I, section 10. As this

court explained in Clarke, Article I, section 10, does not

deprive the legislature of the authority “to vary and modify

both the form and the measure of recovery for an injury,” so

long as the legislature leaves the plaintiff with a substantial

remedy. 343 Or at 606 (emphasis added). Likewise, in Hale,

the court declared that “Article I, section 10, is not violated

when the legislature alters * * * a cause of action, so long as

the party injured is not left entirely without a remedy. * * *

[I]t is enough that the remedy is a substantial one.” 308 Or

at 523.

This court has never spelled out the precise

contours of such a determination. Such precision is

perhaps impossible. See Clarke, 343 Or at 613 (Balmer, J.,

concurring) (“This court has not articulated a precise test,

and it probably is not possible to do so.”). As this court has

stated in another context, determining whether an award

of damages is “substantial” requires “flexibility and a

consideration of the facts and circumstances that each case

presents.” Hamlin v. Hampton Lumber Mills, Inc., 349 Or

526, 537, 246 P3d 1121 (2011).

This court has concluded that a legislative limitation

on damages is constitutionally inadequate in only two cases,

Neher and Clarke. In the former case, the court held that,

although the estate of the victim had not been completely

deprived of a remedy by virtue of the existence of a $3,000

burial benefit under workers’ compensation law, the parents

of the victim had been totally deprived of any remedy. In

the latter case, this court held that, when the statutory

limitation of $200,000 deprived the plaintiffs of all but one

percent of the more than $17 million in damages that they

would have otherwise recovered, the limitation left them

with a constitutionally inadequate remedy.

376 Howell v. Boyle

In this case, but for the $200,000 damage limitation

of ORS 31.270(1)(b) (2007), plaintiff would have recovered

a total of $507,500, consisting of $382,500 in economic

damages and $125,000 in noneconomic damages. The

damage limitation thus does not leave plaintiff “wholly

without a remedy,” as was the case for the parents of the

plaintiff in Neher. And it represents a far more substantial

remedy than the paltry fraction that remained after the

imposition of the limitation in Clarke.

The facts of this case are much more like those of

Hale, in which the court found that a statutory damage

limitation of $100,000 left the plaintiff with a substantial

remedy even though the plaintiff had alleged more than

$600,000 in damages. To be sure, this court observed that

the legislature, in adopting the statutory damage limitation

at issue in that case, had in effect exchanged the limitation

for a statutory expansion of the class of persons who are

permitted to sue. 308 Or at 523. But the distinction is of no

moment in this case, in which a similar quid pro quo may be

seen to apply. As to defendant City of Beaverton, in fact, the

same “balance” that the court mentioned in Hale applies. As

to defendant Boyle, under ORS 30.265(1) and 30.285(1), the

city remains liable for the torts of its employees committed

within the scope of employment. Thus, while the legislature

limited the amount that may be recovered from individual

defendants who are municipal employees, it substituted the

“deep pocket” of the municipality itself as the ultimate payor.

Plaintiffs, in other words, have been conferred a substantial

benefit in exchange for the damage limitation. As Hale

makes clear, that is a permissible legislative decision under

Article I, section 10.

This case is even more like Greist, in which the

court held that the plaintiff was not left without a remedy

when the tort claim limitation left her with a total of

$600,000 in damages, compared with the initial award of

$1.5 million. “Although that remedy is not precisely of the

same extent as that to which plaintiff was entitled” before

the imposition of the limitation, the court explained, “that

remedy is substantial.” 322 Or at 291. The same is true in

this case.

Cite as 353 Or 359 (2013) 377

Plaintiff insists that her common-law right to

recover damages for negligence has been inadequately

remedied with the $200,000 tort claim limitation. She

reasons that, “under the common law, the plaintiff had

the right to obtain a full recovery for damages from the

individual tortfeasor who negligently caused the injuries—

in other words, she was entitled to be made whole.” It is

that common-law right—the right to be made whole—that

she contends has been eliminated with the imposition of the

statutory damage limitation.

The dissent takes a similar approach.8 According to

the dissent, the remedy clause guarantees plaintiff “the full

amount of economic damages attributable to defendant.”

353 Or at 359 (De Muniz, J. pro tempore, dissenting). The

dissent states that, as such, Article I, section 10, does not

countenance “partial” remedies. Id. at 393 (De Muniz, J. pro

tempore, dissenting).9

Plaintiff ’s and the dissent’s interpretation of

Article I, section 10, is essentially the same interpretation

that the plaintiff asserted in Greist, and that this court

explicitly rejected. See Clarke, 343 Or at 615 (Balmer, J.,

concurring) (noting that Greist rejected the argument

that Article I, section 10, guarantees a right to be made

whole). Indeed, plaintiff ’s and the dissent’s interpretation

cannot be squared with any of the foregoing cases dating

back at least to 1901—cases that consistently hold that

Article I, section 10, “does not eliminate the power of

the legislature to vary and modify both the form and the

measure of recovery for an injury,” Clarke, 343 Or at 606

(emphasis added), but rather guarantees that plaintiffs not

be left with less than a “substantial” remedy. Id. at 602,

8

There are actually two dissents, one authored by Justice De Muniz and the

other by Justice Durham. As we understand it, however, Justice Durham’s opinion

merely emphasizes one of the points made by Justice De Muniz. Accordingly, when

we refer to “the dissent,” we refer to the one authored by Justice De Muniz.

9

The dissent is not entirely consistent on this point. Throughout the opinion,

it complains about our holding countenancing “partial” remedies and asserts that

“the constitution plainly requires that plaintiff have a fully restorative remedy.”

353 Or at 406 (De Muniz, J. pro tempore, dissenting). At other points in the

opinion, however, the dissent suggests that a constitutionally sufficient remedy

must be at least “capable” of being fully restorative. Id. at 391, 392, 394, 396

(De Muniz, J. pro tempore, dissenting). The dissent does not explain the significance

of that difference in phrasing.

378 Howell v. Boyle

605; Greist, 322 Or at 291; Hale, 308 Or at 523. Plaintiff ’s

and the dissent’s interpretation essentially inverts that

longstanding interpretation of the remedy clause from one

that guarantees that plaintiffs not be left “wholly without

remedy” to one that guarantees that plaintiffs obtain a

whole remedy.

The dissent acknowledges that we have correctly

described our prior case law as holding that the remedy

clause does not limit legislative authority to alter a remedy

so long as the remaining remedy is “substantial.”10 But it

insists that our understanding of the meaning of the word

“substantial” is in error. According to the dissent, that term,

as used in remedy clause cases, has acquired a special

meaning that is somewhat different from what it ordinarily

means. The dissent asserts that a “substantial” remedy is

one that wholly restores a plaintiff ’s injury.

In asserting that the notion of a “substantial”

remedy is limited to one that is wholly restorative of a

plaintiff ’s injury, the dissent claims support from this court’s

decisions in Hale and Greist. The dissent’s reading of those

decisions, however, does not bear careful scrutiny.

As we have noted, in Hale, the court upheld the

application of a damage limitation that had the effect of

reducing $600,000 in claimed damages to $100,000. The

court held that Article I, section 10, does not deprive the

legislature of authority to alter a cause of action or reduce

damages. “[T]he remedy need not be precisely of the same

type or extent” as those existing at common law, the court

explained. 308 Or at 523. “[I]t is enough that the remedy is

a substantial one.” Id.

The dissent deftly describes the court’s analysis in

Hale without mentioning the fact that the court specifically

stated that the remedy clause leaves the legislature free to

alter the “type or extent” of damages that may be recovered.

10

Actually, the dissent is not quite consistent in that regard, as well. At one

point, the dissent takes us to task for abandoning the use of the outdated term

“emasculated,” used in some cases, in favor of the term “substantial,” used in

others. 353 Or at 390 (De Muniz, J. pro tempore, dissenting). In the balance of the

opinion, the dissent acknowledges the importance of the term in prior cases, but

asserts that the term has been “imbued” “with a clear meaning,” that is, one that

wholly restores a right that has been injured. Id.

Cite as 353 Or 359 (2013) 379

Instead, the dissent embarks on a detailed analysis of two

earlier cases that the court in Hale cited—Noonan and

Evanhoff—which the dissent reads as holding that the

remedy clause is not violated when an alternative remedy

remains available. 353 Or at 392-96 (De Muniz, J. pro

tempore, dissenting). The dissent then boldly declares

that, because “[n]either of those cases can be read for

the proposition that a partial remedy *  * is capable of

*

satisfying the [r]emedy [c]lause,” Hale cannot be read

to countenance such a partial remedy, either. Id. at 393

(De Muniz, J. pro tempore, dissenting). That makes no sense.

Even assuming for the sake of argument that the dissent

fairly characterizes Noonan and Evanoff as not involving

the issue of the constitutionality of partial remedies, the

fact remains that Hale did. And it simply cannot be denied

that Hale upheld the constitutionality of a partial remedy.

The dissent’s reading of Greist is similarly

unavailing. As we have noted, in that case, the court upheld

a statutory damage limitation that reduced the plaintiff ’s

initial award from $1.5 million to a total of $600,000,

consisting of $100,000 in economic damages and $500,000

in noneconomic damages. The court held that, even though

$600,000 was only slightly more than one third of the original

award, that total amount nevertheless was constitutionally

adequate because it was a substantial amount:

“Plaintiff has not been left without a remedy. She has

received $600,000, comprised of $500,000 in noneconomic

damages and $100,000 in economic damages. There was no

statutory limit on the latter category of damages. Although

that remedy is not precisely of the same extent as that to

which plaintiff was entitled before the enactment of ORS

18.560(1), that remedy is substantial.”

322 Or at 291 (emphasis added). The dissent ignores the

court’s holding in Greist. According to the dissent, the

decision actually was predicated on the fact that recoveries

for wrongful death historically were quite low. 353 Or at 395

(De Muniz, J. pro tempore, dissenting). But that is simply

not what the court in Greist said. Rather, as the foregoing

quotation makes clear, the court held that the amount of

plaintiff ’s award of $600,000 was a substantial award, in

and of itself. The court then offered an additional reason

380 Howell v. Boyle

for its decision, observing that the award was substantial

“also because the statutory wrongful death action in Oregon

has had a low limit on recovery.” 322 Or at 291 (emphasis

added).

The dissent also suggests that, in any event, Greist

has limited precedential value because it involved the

application of the remedy clause to claims for wrongful

death, which this court has subsequently determined are

not subject to the remedy guarantee of Article I, section 10.

353 Or at 394 n 5 (De Muniz, J. pro tempore, dissenting).

That is a curious criticism. That this court later held that

its remedy clause analysis does not apply to wrongful death

claims, see Hughes v. PeaceHealth, 344 Or 142, 151-52, 178

P3d 225 (2008), in no way suggests that the remedy clause

analysis itself was wrong. In fact, in subsequent Article

I, section 10, cases, this court has continued to cite and

discuss Greist—and Neher, also a wrongful death case—in

describing its remedy clause analysis. Clarke, for example,

contains extensive discussions of both Greist and Neher

without any suggestion that either has limited precedential

value. Clarke, 343 Or at 603-05.

The dissent also complains that we have observed

that this case is unlike other cases, such as Clarke, in which

the court concluded that a remedy was constitutionally

inadequate. According to the dissent, we have engaged in

logically fallacious reasoning in deducing that, because

this case is not like Clarke, the remedy is constitutionally

adequate. If that were what we actually said, the dissent

would have a point. But nowhere in our opinion have we

concluded that, merely because this case is unlike Clarke

or any other prior decision, it follows that the result in this

case must be different. The dissent’s complaint, in other

words, amounts to no more than attacking a straw person.

The dissent also complains that our conclusion

that a partial remedy may be constitutionally adequate

under Article I, section 10, fails to adhere to the “text and

context” of the remedy clause. 353 Or at 389 (De Muniz,

J. pro tempore, dissenting). Interestingly, the dissent offers

nothing to support that assertion. In that regard, however,

we note that nothing in the wording of the remedy clause

Cite as 353 Or 359 (2013) 381

says anything about a right to be wholly restored. It

guarantees remedy “by due course of law.” Smothers, 332

Or at 121-22. It is the dissent’s reading of Article I, section

10, that fails to comport with the text of the constitution.

If, as the dissent suggests, Article I, section 10, requires

that all remedies must be “fully restorative,” 353 Or at 406

(De Muniz, J. pro tempore, dissenting), then the “due course

of law” clause is rendered superfluous.

The dissent nevertheless claims support for its

position from Smothers, relying on this court’s description

of the term “remedy” as including, in part, “that which is

‘required to restore a right that has been injured.’ ” 353

Or at 399 (De Muniz, J. pro tempore, dissenting) (quoting

Smothers, 332 Or at 124). The dissent leaves out the

following sentence from its quotation, which states that,

“[i]njury, in turn, is a wrong or harm for which a cause of action

existed when the drafters wrote the Oregon Constitution

in 1857.” Smothers, 332 Or at 124. Thus, what must be

“restored” is an injury that would have been recognized

as the basis for a cause of action in 1857. In that regard,

the dissent fails to mention that, in the mid-nineteenth

century, negligence claims were subject to the doctrine of

contributory negligence, which operated as a complete bar

to a plaintiff ’s recovery. See generally Lawson, 339 Or at 262

(noting “the indisputable proposition that, in the early years

of this state’s history, a plaintiff ’s contributory negligence

was an absolute bar to recovery for the negligent acts of

another”).11

11

The first appearance of contributory negligence in a state court is usually

traced to Smith v. Smith, 19 Mass (2 Pick) 621 (1824), in which the court upheld

the dismissal of a negligence action. “This action cannot be maintained,” the court

explained, “unless the plaintiff can show that he used ordinary care; for without

that, it is by no means certain that he himself was not the cause of his own injury.”

Id. at 623. By 1860, nearly every state had expressly recognized the doctrine

of contributory negligence, most often as a matter of the plaintiff ’s affirmative

burden. As one modern scholar has observed, “[i]n the space of a few decades, the

doctrine of contributory negligence gained almost unanimous acceptance within

the United States.” Peter N. Swisher, Virginia Should Abolish the Archaic Tort

Defense of Contributory Negligence and Adopt a Comparative Negligence Defense

in its Place, 46 U Rich L Rev 359, 361 (2011). As another commented, the doctrine

“rapidly spread, ‘not unlike an unchecked conflagration in a windstorm’ throughout

the country.” Stuart M. Speiser et al., 3 The American Law of Torts § 12:2, 249-50

(2008) (quoting E. A. Turk, Comparative Negligence on the March, 28 Chi-Kent L

Rev 189 (1950)).

382 Howell v. Boyle

Moreover, under the prevailing law at the time that

the state’s constitution was adopted, a plaintiff was required

to prove not only that his or her injuries were caused by a

defendant’s negligence but also that his or her own actions

did not contribute to those injuries. Contributory negligence,

in other words, was a principle of causation that constituted

a part of a plaintiff ’s burden of proof.

Although we are aware of no pertinent case law

from the courts of this state dating precisely to the time

of the adoption of the constitution, there are several cases

dating to a few short years later that strongly suggest

that Oregon’s courts followed the established rule. 12 See

Nineteenth-century treatises confirm that, at the time, the general rule was

that a plaintiff bringing a claim for negligence bore the burden of demonstrating

that his or her injuries were not a result of the plaintiff ’s own negligence. As early

as 1811, Selwyn’s treatise on nisi prius stated that a plaintiff seeking to recover

damages must show that he acted with “common and ordinary caution.” 2 W.

Selwyn, An Abridgment of the Law of Nisi Prius 1092 n 5 (1811). Hilliard’s 1866

treatise on the law of torts declared that “it is the prevailing doctrine, that, to

sustain an action on the case for negligence, the burden of proof is on the plaintiff to

show negligence, wil[l]ful or otherwise, on the part of the defendant, and ordinary

care on his own part.” Francis Hilliard, 1 The Law of Torts or Private Wrongs 125-

26 (3d ed 1866) (emphasis in original). See also Theodore Sedgwick, A Treatise on

the Measure of Damages 493 (3d 1858) (“[T]he party seeking legal redress must

not only show his adversary to be in the wrong, but must also be prepared to prove

that no negligence of his own has tended to increase or consummate the injury.”).

12

Over 100 reported early nineteenth-century cases reflect the widespread

adoption of the doctrine of contributory negligence, most often as a matter of

the plaintiff ’s affirmative burden. See, e.g., Crommelin v. Coxe & Co., 30 Ala 318,

329 (1857) (“[T]he plaintiffs in this case would not be heard to complain, if with

ordinary care and diligence they could have avoided the injury.”); Daley v. Norwich

& W.R. Co., 26 Conn 591, 597 (1858) (“Two things must concur to support this

action; an obstruction in the road by the fault of the defendant, and no want of

ordinary care to avoid it on the part of the plaintiff.”); Rusch v. City of Davenport, 6

Iowa 443, 451 (1858) (“We think there is no doubt, but that the burden of proof was

on the plaintiff to show to the jury, that the accident happened without any want

of reasonable care on his part.”); Galena & C. U. R. Co. v. Jacobs, 20 Ill 478, 488

(1858) (“[T]he plaintiff is only bound to show that the injury was produced by the

negligence of the defendant, and that he exercised ordinary care and diligence in

endeavoring to avoid it.”); Evansville & C.R. Co. v. Hiatt, 17 Ind 102, 105 (“In this

class of suits, the plaintiff must, as a general proposition, prove that the proximate,

the immediate, cause of the injury sued for, was the wrongful act of the defendant,

to which injury his own wrongful act did not immediately contribute.”); Carlisle

v. Holton, 3 La Ann 48, 49 (1848) (“[A] party cannot be heard as plaintiff who has

contributed to the collision by his own negligence or improper management.”); Lane

v. Crombie, 29 Mass 176, 177 (1831) (“[T]he burden of proof was upon the plaintiff

to show that the accident was not occasioned by her own negligence.”); Adams v.

Wiggins Ferry Co., 27 Mo 95, 98 (1858) (“The rule [is] that there can be no recovery

when both plaintiff and defendant are [at] fault, and each, by his negligence or

otherwise, has contributed proximately and directly to the injury.”); Lehman v.

Cite as 353 Or 359 (2013) 383

Smothers, 332 Or at 129 (relying on other-state and post-

1870s case law to determine the state of negligence at the

time of the adoption of the Oregon Constitution). In Kahn

v. Love, 3 Or 206 (1870), the occupant of a building sued

the owner for damages for injuries caused by the unsafe

condition of the building. The owner demurred to the

complaint because, among other things, the plaintiff had

failed to allege that his injuries were not caused by his own

lack of care. The trial court sustained the demurrer and

dismissed the complaint. This court affirmed, explaining

that “[t]he plaintiff in an action for damages, occasioned by

the defendant’s negligence, must so frame his complaint as

not to leave an inference that he was guilty of negligence

that contributed to the injury.” Id. at 208.

To similar effect is Walsh v. Oregon Ry. & Navigation

Co., 10 Or 250 (1882). In that case, the plaintiff was injured

as he stuck his head out of a moving train as it passed by

a water tower. The trial court dismissed the action before

City of Brooklyn, 29 Barb 234, 236 (NY 1859) (“To entitle the plaintiff to recover, it

must appear, affirmatively, that the accident resulted wholly from the negligence

of the defendant, and that the negligence and improvidence of the plaintiff did not

contribute to bring it about.”); Kennard v. Burton, 25 Me 39, 47 (1845) (“In suits

against towns for the recovery of damages for injuries occasioned by defects in

highways, the law is settled that the plaintiff must sh[o]w that the injury was not

occasioned by negligence or the want of ordinary care on his own part.”); Norris v.

Town of Litchfield, 35 NH 271, 276 (1857) (“In actions of this kind it is settled that

if the damage sustained has been in any degree directly caused by his own fault

or negligence, the plaintiff cannot recover.”); Central R. Co. v. Moore, 24 NJL 824,

830 (1854) (“This action is for damages sustained by the plaintiff by reason of the

alleged negligence of the defendants. To maintain it, the plaintiff must show that

he was in the exercise of due care on his part, and that the defendants were not

in the exercise of due care on their part.”); Timmons v. Central O. R. Co., 6 Ohio St

105, 108 (1856) (“[W]e think [the complaint] substantially defective in this, that

it discloses, on the part of the plaintiff himself, a want of ordinary care, which

was the immediate cause of the injury of which he complains.”); Beatty v. Gilmore,

16 Pa 463, 467 (1851) (“[T]o sustain [an action for negligence], there must be the

concurrence of negligence, or the commission of an unlawful act on the part of

the defendant, and reasonable care exercised by the plaintiff; mutual carelessness

being destructive of the title to sue.”); Robinson v. Cone, 22 Vt 213, 222 (1850) (“In

order to sustain the action on the case for negligence of the defendant, it must

appear that the injury did not occur from any want of ordinary care on the part

of the plaintiff, either in whole, or in part. In other words, if ordinary care on the

part of the plaintiff would have enabled him to escape the consequences of the

defendant’s negligence, he has no ground of complaint.”); Dressler v. Davis, 7 Wis

527, 531 (1859) (“[I]t was necessary for the [plaintiff], in order to make out a prima

facie case, in the first instance, to prove, not only that the injury in question arose

from the carelessness or negligence of the [defendants], or their servant, but also

that his own carelessness or negligence did not contribute to it.”).

384 Howell v. Boyle

trial. This court reversed, holding that there was a jury

question about whether plaintiff ’s injuries were a result of

his own negligence. In reaching that conclusion, the court

described the burden of proof in the following terms:

“In actions for negligence, the burden of proof always rests

upon the party charging it. He must prove that the accident

was caused by the wrongful act, omission, or neglect of the

defendant, and that the injury of which he complains was

not the result of his own negligence and the want of ordinary

care and caution. Although the evidence may disclose the

defendant to have been guilty of negligence, it will not excuse

negligence or the want of proper care and precaution on

the part of the plaintiff. The law will not permit a recovery

where the plaintiff, by his own negligence or carelessness,

has contributed to produce the injury from which he has

suffered. To entitle, then, the plaintiff to recover (conceding

the negligence of the defendant in not removing the water-

tank to the proper distance after widening the track) it was

incumbent on him to prove, when the accident occurred,

that he exercised that ordinary care which a party ought

to observe under the particular circumstances in which he

was placed.”

Id. at 253-54.

By the 1880s, a number of courts began to voice

objections to the notion that a plaintiff should be required to

negate contributory negligence as part of his or her case. See,

e.g., O’Brien v. Tatum, 84 Ala 186 (1887); Robinson v. Western

P. R. Co., 48 Cal 409 (1874); Benson v. Goodwin, 147 Mass

237 (1888). A number of treatise writers, after noting the

general rule, similarly suggested that a better one would be

to regard contributory negligence as an affirmative defense.

See, e.g., Seymour D. Thompson, 2 The Law of Negligence

1175 (1880) (“Generally, contributory negligence on the part

of the plaintiff will bar a recovery. It would seem, therefore,

to be a matter of defence, and that it would devolve upon the

defendant to prove it.”).

Oregon, however, did not join that particular chorus

until 1885. As Judge Matthew Deady observed in Conroy v.

Oregon Constr. Co., 23 F 71, 72 (D Or 1885), at that point,

the state courts had become “nearly evenly divided on the

question whether ‘contributory negligence’ is a part of the

Cite as 353 Or 359 (2013) 385

plaintiff ’s case or a matter of defense.” As for Oregon, Judge

Deady observed, Walsh appeared to indicate that the state

supreme court “decided that it is a part of the plaintiff ’s

case.” Id. See also Charles Fisk Beach, Jr., A Treatise on

the Law of Contributory Negligence 425-26 (1885) (citing

Kahn and Walsh, as well as Deady’s opinion in Conroy,

as examples of cases in which the burden is placed on the

plaintiff to prove an absence of negligence).

In Grant v. Baker, 12 Or 329, 7 P 318 (1885), this

court changed course. In that case, the plaintiff initiated

an action for the wrongful death of an individual, who

was killed when he fell over the edge of a poorly designed

roadway. The trial court nonsuited the case on contributory

negligence grounds. The Supreme Court reversed. The court

began by noting that its earlier decision in Walsh “might

justify the impression” that it is the plaintiff who bears the

burden of disproving contributory negligence. Id. at 332.

The court quickly disavowed such a rule and confined Walsh

to its facts. The description of the burden of proof in Walsh,

the court in Grant held, “was intended to apply to the state

of facts mentioned, and not to lay down any general rule.”

Id. at 333. The better rule, the court concluded, has always

been that “contributory negligence is a defense and must be

averred as such.” Id.

Thus, even assuming that the dissent is correct

that the “restorative” quality of a remedy is controlling,

under this court’s case law, plaintiff in this case—who did

not plead that she had exercised due care and who the jury

found to have been 50 percent at fault—would have been

entitled to recover nothing.13 Under the circumstances, it

13

Plaintiff and the dissent argue that, if we are to recognize the existence of

contributory negligence at the time of the adoption of the constitution, we should

also take into account certain doctrines that she asserts could have been advanced

in response to an assertion of contributory negligence, such as the last clear chance

doctrine and gross negligence. Those doctrines, however, are not applicable to this

case. To begin with, plaintiff did not raise either of them before the trial court,

although she had opportunity to do so. Particularly in light of the fact that each

of the doctrines that she now invokes requires particular factual showings, we

are disinclined to entertain any consideration of those doctrines at this stage in

the proceedings. See Peeples v. Lampert, 345 Or 209, 219-20, 191 P3d 637 (2008)

(appellate courts must exercise “utmost caution” when addressing unpreserved

arguments because, among other things, “preservation fosters full development

of the record, which aids the trial court in making a decision and the appellate

386 Howell v. Boyle

is difficult to understand the dissent’s complaint that the

$200,000 in damages that plaintiff was awarded was not

fully “restorative” of her common-law negligence claim.

The dissent nevertheless disputes what this court

in Lawson declared to be “indisputable”; namely that, in the

mid-nineteenth century, a plaintiff ’s contributory negligence

barred recovery on a negligence claim. At the least, the

dissent contends, we cannot say “with the certainty that

should be required for a decision of this magnitude” what

the state of the law was in 1857, because, at that time, there

existed no Oregon appellate court decisions on the subject

of contributory negligence. 353 Or at 403 (De Muniz, J. pro

tempore, dissenting).

Of course, the dissent is correct that it is exceedingly

difficult to determine the state of Oregon law over 150 years

ago. Nevertheless, that is what Smothers requires. Indeed,

the court in Smothers confronted the same difficulty and

resolved it, as we do here, by making the best of the limited

historical resources at the court’s disposal.

In Smothers, the court addressed the question

whether the common law at the time of the adoption of this

state’s constitution would have recognized a cause of action

for negligence against an employer. The court found no

case law—it bears repeating, no case law—anywhere in the

nation recognizing such a cause of action at that time. 332

Or at 128-29. Undaunted, the court stated that,

court in reviewing it”). Indeed, gross negligence ordinarily must be pleaded as

a separate claim, which plaintiff did not do in this case. See generally Fassett v.

Santiam Loggers, Inc., 267 Or 505, 508, 517 P2d 1059 (1973) (describing differences

between claims). Our review in this case is limited to the claim that plaintiff

actually asserted. Hughes v. PeaceHealth, 344 Or 142, 152, 178 P3d 225 (2008). As

for last clear chance, there is no evidence of its widespread recognition by 1857.

The origins of the doctrine are ordinarily attributed to the English case of Davies

v. Mann, 10 M & W 546, 152 Eng Rep 588 (1842). As Professor G. Edward White

has observed, however, Davies was not read to have adopted such a categorical

exception to the rule of contributory negligence in this country until the 1880s.

G. Edward White, Tort Law in America: An Intellectual History 45-46 (2d ed 2003).

According to White, “the doctrine had not in fact originated in Davies v. Mann, at

least as a principle of negligence law; it was the creation of later treatise writers

who extracted it from the Davies case and others.” Id. The first case in this country

even to mention Davies is an 1852 Vermont case, Trow v. Vermont C. R.R., 24 Vt

487 (1852). This court did not cite Davies until 1890, in Moses v. S. P. R. R. Co., 18

Or 385, 402, 23 P 498 (1890), and did not mention “last clear chance” until 1911, in

Smith v. Southern Pacific Co., 58 Or 22, 36, 113 P 41 (1911).

Cite as 353 Or 359 (2013) 387

“[a]lthough no Oregon cases addressed the common-law

rights of employees to bring such negligence actions against

their employers in the years immediately surrounding the

creation of the Oregon Constitution, the content of the

common law in 1857 may be divined from a wide range of

sources. Cases from other jurisdictions, as well as Oregon

cases decided within a relatively short period after 1857, are

instructive.”

Id. at 129 (emphasis added). The court then referred to four

cases, three from other jurisdictions and a single decision

of this court, all published more than two decades after

the adoption of the Oregon Constitution. The earliest of

the cases was the United States Supreme Court’s decision

in Hough v. Ry. Co., 100 US 213, 25 L Ed 612 (1879). The

three other cases were Atchison, T. & S.F.R. Co. v. Moore, 29

Kan 632 (1883); Wilson v. Willimantic Linen Co., 50 Conn

433 (1883); and Anderson v. Bennett, 16 Or 515, 19 P 765

(1888). Of the 1888 Oregon decision, the court in Smothers

observed that, because “nothing in the court’s opinion in

that case suggested that the holding was novel or that the

decision marked a departure from any previous decisions

or jurisprudence on the subject,” it was permissible to infer

from that decision that, “in 1857, the common law of Oregon

would have recognized” the claim. 332 Or at 131.

Thus, based on a handful of cases decided 20 to 30

years after the adoption of the state constitution, this court

inferred the existence of the law decades earlier. The fact is

that this court has never insisted on the sort of “certainty”

that the dissent demands in Article I, section 10, cases.

See, e.g., Lawson, 339 Or at 261-62 (citing Smothers and

relying on “various other sources to determine the content

of the common law at the time of the drafting of the Oregon

Constitution, including roughly contemporaneous cases

from other jurisdictions, as well as Oregon cases decided in

the decades shortly after the adoption of the constitution.”).

Moreover, unlike the court in Smothers, we are

not merely relying on four cases decided well after the

adoption of this state’s constitution. As we have noted, there

are numerous cases from around the country dating from

before the time of the adoption of the Oregon Constitution

reflecting what scholars—both in the mid-nineteenth

388 Howell v. Boyle

century and now—agree was the widespread acceptance of

the doctrine of contributory negligence as a component of

a plaintiff ’s case at that time. It is in that context that we

have examined the later Oregon case law for any suggestion

that Oregon courts saw the law differently. We have found

no such case law. To the contrary, the earliest Oregon cases

were consistent with what we have described as the well-

established rule.

The dissent rejoins that, regardless of who has

the better of the argument about Oregon’s legal history,

Smothers cannot be read to “freeze in place[ ] every repealed,

overruled or outmoded argument that a defendant might

have relied on in 1857 to resist an injured person’s claim.”

353 Or at 404 (De Muniz, J. pro tempore, dissenting).

Smothers, however, requires that the “injury” that a modern

remedy must restore is “a wrong or harm for which a cause

of action existed when the drafters wrote the Oregon

Constitution in 1857.” 332 Or at 124. As we have noted,

plaintiff ’s injury in this case—as pleaded and determined

by a jury—is not the sort for which a cause of action existed

at that time. Smothers does not give us liberty to pick and

choose which causes of action that existed in 1857 we now

regard as “outmoded.” It requires us to take the law as we

find it as of that time. That is what we have endeavored, in

good faith, to accomplish.

Finally, the dissent complains that the “substantial”

remedy test that we recognize in this case is standardless

and lacks a “guiding principle.” 353 Or at 404-06 (De Muniz,

J. pro tempore, dissenting). The dissent, of course, echoes

precisely the same criticism that Justice Unis leveled in

Greist, and that this court rejected. The fact is that not every

constitutional provision can be reduced to a neat formula

that avoids the necessity of applying careful judgment to

the facts and circumstances of each case.

For the foregoing reasons, we conclude that the

challenged $200,000 damage limitation does not leave

plaintiff with a constitutionally inadequate remedy under

Article I, section 10, of the Oregon Constitution.

Certified question answered.

Cite as 353 Or 359 (2013) 389

DE MUNIZ, J. pro tempore, dissenting.

Faced with an Article I, section 10, Remedy Clause

controversy, the majority—for the first time in this court’s

history—upholds a legislative limitation that prevents

plaintiff from fully recovering the economic damages that

a jury awarded to restore her constitutionally protected

right.1 The Remedy Clause guaranteed plaintiff a “remedy

by due course of law” for injury to her person—a remedy

that the jury, “by due course of law,” determined should

include the full amount of economic damages attributable

to defendant.2 Yet the majority upholds, as constitutional,

a standardless and arbitrary legislative deprivation of

that remedy and does so without adherence to the text and

context of the Remedy Clause or this court’s prior decisions.

In Clarke v. OHSU, 343 Or 581, 610, 175 P3d 418

(2007), this court held that the same statutory damage cap

at issue in this case violated the Remedy Clause because we

were unable to discern anything

“from our state’s history, or from the nature, the form, or the

amount of recovery available for the preexisting common

law claim, that would permit this court to conclude that the

1

The Remedy Clause affords plaintiff, and every person in this state, the

right to a remedy by due course of law for personal injuries. The analysis of that

right set out in our cases, and discussed in this dissent, does not differentiate

between economic or noneconomic damages. As a matter of both history and logic,

both kinds of damages comprise the remedy that is reasonably calculated, so far

as possible, to restore or repair the right that defendant injured. I draw particular

attention to the effect of the majority’s holding on plaintiff ’s right to recover her

economic injuries for only one reason. Plaintiff ’s economic damages reflect her

out-of-pocket expenses, such as for medical bills, that is the result of defendant’s

conduct. Assuming that causal link, the calculation of plaintiff ’s economic damages

requires only simple arithmetic and includes no evaluation by a factfinder of

plaintiff ’s mental or emotional injuries, such as her pain and suffering. Thus, in

focusing momentarily on the topic of plaintiff ’s economic damages, we perhaps

can see the majority’s error in clearest relief. According to the majority, Article I,

section 10, does not guarantee plaintiff a right to recover a remedy reflecting even

the amount of plaintiff ’s monetary expenses, including her medical bills, directly

attributable to defendant’s conduct. As this dissent demonstrates, the majority’s

novel interpretation of Article I, section 10, departs sharply from our case law

and deprives the constitutional guarantee of a remedy by due course of law of any

practical meaning.

2

This case does not call upon us to consider—and the majority has not

considered—the constitutionality of the trial court’s action or that of the legislature

under Article I, section 17, of the Oregon Constitution. That provision prohibits

interference with the jury’s assessment of damages in a common-law negligence

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

390 Howell v. Boyle

limited remedy for permanent and severe injury caused by

medical negligence that is now available under the OTCA

meets the Article I, section 10, remedy requirement.”

That same reasoning applies with equal force to plaintiff ’s

common-law claim in this case and the result should be the

same; i.e., as applied here, the damage cap at issue in this

matter violates the Oregon Constitution’s Remedy Clause.

By essentially limiting our holding in Clarke to its facts,

however, the majority sidesteps the reasoning in that case

and, in doing so, significantly undermines the Remedy

Clause protections that, until this day, were enjoyed by all

Oregonians.

According to the majority, the court explained in

Clarke that

“Article I, section 10, does not deprive the legislature of

the authority ‘to vary and modify both the form and the

measure of recovery for an injury,’ so long as the legislature

leaves the plaintiff with a substantial remedy.”

353 Or at 375 (quoting Clarke, 343 Or at 606) (emphasis

supplied by the majority). What the court actually wrote in

Clarke, however, was that

“Article I, section 10, does not eliminate the power of

the legislature to vary and modify both the form and the

measure of recovery for an injury, as long as it does not

leave the injured party with an ‘emasculated’ version of the

remedy that was available at common law.”

Clarke, 343 Or at 606. The majority’s efforts to replace

the phrase “emasculated version of the remedy” with

“substantial remedy” is not an accident; it is necessary to

the majority’s conclusion. In Clark, the court referred to

an “emasculated version of the remedy” advisedly because

our case law had imbued the phrase with a clear meaning;

i.e., a remedy that was “incapable of restoring the right

that has been injured.” Id. (quoting Smothers v. Gresham

Transfer, Inc., 332 Or 83, 124, 23 P3d 333 (2001)). The steps

that the majority has taken to now eliminate that phrase

for the purpose of purging “an unfortunate, if not sexist”

term from the judicial lexicon does far more than substitute

a nonsexist term; it abrogates Clarke or, at a minimum,

severely limits its holdings. Only by inserting the term

Cite as 353 Or 359 (2013) 391

“substantial” into the court’s holding in Clarke is the

majority able to construe the Remedy Clause to permit the

truncated remedy at issue here; i.e., a limited cause of action

and a limited scope of recovery that, applied in tandem, are

incapable of restoring plaintiff ’s economic injuries. Nothing

in our case law supports that construction; indeed, our

precedents make clear that the Remedy Clause prohibits

legislative limitations that are “incapable of restoring the

right that has been injured.” (Emphasis added.) Analyzing

legislative limitations on remedies under that standard

is quite different from analyzing—as the majority does—

whether an award of damages is, in some way or another,

quantitatively “substantial.” Accordingly, I dissent.

Reduced to its essential elements, the majority’s

position appears to be that Article I, section 10, does not

prohibit the legislature from enacting any limitation on civil

recoveries—regardless of whether the result is capable of

restoring an injured right or not—so long as the remedy

that remains is “substantial.” 353 Or at 375. The basis for

that proposition can be summed up in three broad points

drawn from the majority’s opinion: (1) under this court’s

case law, the “constitutional adequacy of a modern remedy

may be established by the fact that the modern remedy is

‘substantial’ and does not leave the plaintiff ‘wholly without

remedy.’ ” 353 Or at 374-75; (2) under that principle, $100,000

in economic damages—contrasted against a $382,500 jury

award for the same—is, as a matter of law, a “substantial”

award; and (3) plaintiff was only entitled to restoration of

“an injury that would have been recognized as the basis for a

cause of action in 1857” and, in 1857, plaintiff ’s contributory

negligence would have been a complete bar to recovery. I

address each of those points in turn below.

I.  USE OF THE WORD “SUBSTANTIAL” IN

OREGON’S REMEDY CLAUSE JURISPRUDENCE

With regard to statutory caps on civil damages,

this court has used the word “substantial” in its analysis

in only two cases: Hale v. Port of Portland, 308 Or 508, 783

P2d 506 (1990), and Greist v. Phillips, 322 Or 281, 906 P2d

789 (1995). Neither case, however, supports application of

the term “substantial” to what plaintiff has been forced

392 Howell v. Boyle

to accept here: a truncated remedy that is incapable of

restoring plaintiff ’s injured rights.

A.  Hale v. Port of Portland

In Hale—a personal injury case involving both the

Port of Portland and the City of Portland—this court upheld

an early version of the Oregon Tort Claims Act (OTCA) that

capped tort damages in actions instigated against public

bodies. In doing so, the court cited two cases—Noonan v. City

of Portland, 161 Or 213, 88 P2d 808 (1939) and Evanhoff v.

State Industrial Accident Commission, 78 Or 503, 154 P 106

(1915)—for the proposition that the resulting remedy must

be substantial:

“Noonan and Evanhoff held only that Article I, section

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

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

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

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

enough that the remedy is a substantial one.”

Hale, 308 Or at 523 (emphasis added). The court never

explained what, exactly, constituted a substantial remedy,

only that Noonan and Evanhoff required as much.

Importantly, however, at the time Hale was decided, the

OTCA did not eliminate—as it does now—the individual

liability of public employees for their negligent acts. And

that factor—the availability of an alternative remedy that

allowed a plaintiff to fully recover damages available at

common law—was a central component in both Noonan and

Evanhoff.

In Noonan, the legislative limitation at issue was a

Portland municipal ordinance that completely immunized

the city from liability for personal injuries caused by defective

city sidewalks. The provision, however, specifically provided

that injured persons could maintain a common-law action

against the individual officers and employees who were

responsible for maintaining the sidewalks. From the court’s

perspective, the existence of that alternative remedy proved

to be key. Affirming the validity of the immunity provision,

the court wrote that

Cite as 353 Or 359 (2013) 393

“all of our decisions have recognized that a city may be

given, not absolute, but conditional immunity from liability

for street accidents—conditioned upon liability reposing in

someone who owed a duty to maintain them.”

Noonan, 161 Or at 247 (emphasis added).3

In Evanhoff, the court upheld an early iteration

of Oregon’s workers’ compensation program. Under the

program, participating workers injured on the job were,

among other things, precluded from bringing negligence

actions against their employers to obtain damages beyond

their medical expenses. The program, however, was not

compulsory; both employers and workers could elect not to

participate in it and opt, instead, to pursue the remedies

and defenses for work-related injuries that existed outside

the workers’ compensation framework. Again, the existence

of an alternative remedy in the wake of a truncated one

was the dispositive factor in the court’s Article I, section 10

analysis. The court described it thus:

“The state says to the employer and employé [sic] alike:

“ ‘We present to you a plan of accident insurance which

you may accept or reject at your own pleasure. If you accept,

you must be bound by its terms and limitations; if you

reject it, the courts are open to you with every constitutional

remedy intact. Take your choice between our plan and such

remedies as the statute gives you.’ ”

Evanhoff, 78 Or at 517-18 (emphasis added).

Neither of those cases can be read for the proposition

that a partial remedy—like the one the majority considers

“substantial” here—is capable of satisfying the Remedy

Clause. Rather, both cases upheld legislative provisions

that had eliminated one potential source of recovery, while

leaving another equivalent source intact. In that respect,

Hale is no different from the cases it relied on: Although

3

Even at that time, the basis for that holding was neither new nor novel. In

Caviness v. City of Vale, 86 Or 554, 562-63, 169 P 95 (1917)—decided over 20 years

before—the court had recognized, as well-settled, the rule that

“before a city can exempt itself from a liability which exists both at common

law and by virtue of our Constitution, it must provide an equivalent remedy;

one reasonably adequate to serve the purpose of the one taken away.”

(Emphasis added.)

394 Howell v. Boyle

the OTCA had placed a cap on the amount of civil damages

available in tort from a public body, the officers, employees,

and agents of those bodies remained liable for the damages

caused by their negligent actions.4 Thus, under Hale,

requiring a “substantial” remedy for purposes of Article

I, section 10, means that, when the legislature alters or

abolishes a cause of action, it must provide an equivalent

remedy that is as capable of restoring a plaintiff ’s injuries

as was the original. That standard has not been met here.

B.  Greist v. Phillips

Greist was a wrongful-death case not cognizable

at common law, and this court has since disavowed the

application of the Remedy Clause to the circumstances of

that case.5 However, even assuming that Greist retains some

precedential value, the analysis in Greist was quite different

from the analysis used by the majority in this case. In Greist,

a jury had awarded the plaintiff $1.5 million in noneconomic

damages as the representative of her deceased son’s estate.

4

That similarity was not lost on Justice Hans Linde who, concurring in Hale,

wrote:

“There is nothing intrinsically absurd in the idea that although statutory and

common law remedies may be changed, they must maintain some comparable

degree of protection for those interests to which Article I, section 10, refers.”

Hale, 308 Or at 529 (Linde, J., concurring). Later in his concurrence, Justice Linde

observed that

“the court has allowed legislative immunization of cities from tort liability

only on condition that the individuals who are personally responsible for

harm qualifying as a legal injury remain liable. This is analogous to altering

or limiting the scope of respondeat superior rather than wholly depriving a

plaintiff of a remedy in due course of law for harm that no one has declared

not to be a legal injury when caused by public rather than private negligence.

Because this case presents no claim against individual public ‘officers or

employees, or agents,’ ORS 30.265, I concur with the court.”

Id. at 530 (internal citations omitted).

5

Greist is no longer good law on a number of different fronts. In 1999, the

court decided Lakin v. Senco Products, Inc., 329 Or 62, and held that the statute

at issue Greist—ORS 18.560—violated the Oregon Constitution’s civil jury trial

guarantee. In 2002, the court decided Storm v. McClung, 334 Or 210, 47 P3d 476

(2002), and concluded that Article I, section 10, applied only to injuries for which a

cause of action existed in 1857, effectively placing the statutorily created wrongful

death action at issue in Greist beyond the ambit of that constitutional provision.

Consequently, much of Greist is no longer substantively applicable as a matter

of Oregon law. That said, as we acknowledged in Clarke v. OHSU, 343 Or 581,

605, 175 P3d 418 (2007), Greist remains capable of providing a degree of guidance

concerning the implementation of statutory damage caps, a position that this

dissent reiterates today.

Cite as 353 Or 359 (2013) 395

This court nevertheless upheld against a Remedy Clause

challenge a statute that capped the plaintiff ’s recovery for

noneconomic damages at $500,000. In doing so, the court

noted that the plaintiff had not been left without a remedy:

she had received $500,000 in noneconomic damages, plus a

100 percent recovery of her economic damages in the sum of

$100,000—a category of damages to which no statutory limit

applied. The court went on to acknowledge that, although

that remedy was less than what the plaintiff would have

been entitled to before the noneconomic damages cap was

put in place, it was nevertheless “substantial.” See 322 Or

at 291 (citing Hale).

The court, however, explained exactly why that was

so. It wrote:

“The remedy for wrongful death is substantial, not

only because 100 percent of economic damages plus up to

$500,000 in noneconomic damages is a substantial amount,

but also because the statutory wrongful death action in

Oregon has had a low limit on recovery for 113 years of its

133-year history. See 322 Or at 294, 906 P2d at 796, below

(discussing history of wrongful death action in Oregon). As

noted there, the wrongful death claim came into existence

with a limitation, and the highest previous limitation

(1961-1967) was $25,000. In relation to that history, the

present remedy is substantial.”

Id. (emphasis added). Consequently, in Greist—like Hale—

the metes and bounds of a “substantial” remedy were

clearly defined: Where a plaintiff had no common-law

remedy aside from a legislatively created statutory claim

that, historically, had been accompanied by low limitations

on recovery, damage caps that allowed the plaintiff full

economic damages, plus up to $500,000 in noneconomic

damages, provided a remedy that was “substantial.”

My point is that, if the new constitutional bellwether

for Remedy Clause controversies is now the presence of a

“substantial” remedy, the remedy afforded plaintiff in this

case falls woefully short of that mark as defined by our

case law. Unlike the plaintiff in Greist, plaintiff in this case

cannot pursue a wrongful death action for the injuries she

has suffered; consequently, there is no possibility for full

396 Howell v. Boyle

recovery of her economic damages and no possibility of a

$500,000 maximum in noneconomic damages. Unlike the

plaintiff in Hale, plaintiff ’s recovery against the city has

been statutorily capped, and she cannot pursue a common

law claim against the negligent city employee Consequently,

plaintiff is caught coming and going—squeezed from one

end by a statutory damages cap that arbitrarily limits her

recovery and on the other by the complete elimination of a

claim that would have permitted her a full recovery. There

is nothing “substantial” about that predicament. Under

Oregon law, plaintiff has been left with a constitutionally

inadequate remedy that is incapable of restoring her injured

rights, a circumstance that no amount of linguistic fiddling

on the majority’s part can change or conceal.

II.  QUANTIFYING THE “SUBSTANTIAL” REMEDY

According to the majority, quantifying an award

of damages as “substantial” with any degree of precision is

probably impossible. 353 Or at 374. Undeterred by its own

observation, however, the majority decides that, in this case,

the sum of $200,000 has, indeed, provided plaintiff with a

“substantial” remedy. To reach that result, the majority seeks

support by negative implication, asserting that the remedy

available to plaintiff in this case is “far more substantial”

than the remedies that this court previously has determined

to be constitutionally inadequate. To that end, the majority

compares the limited total damages that plaintiff was

allowed to recover here—$200,000—with the respective

remedies that this court held to be unconstitutional under

the Remedy Clause in Neher v. Chartier, 319 Or 417, 879

P2d 156 (1994), and Clarke v. OHSU, 343 Or 581.

Under the majority’s reading of Neher,6

“although the estate of the victim had not been completely

deprived of a remedy by virtue of the existence of a $3,000

burial benefit under workers’ compensation law, the parents

of the victim had been totally deprived of any remedy.”

6

As I have already noted, this court’s decision in Storm v. McClung clarified

that the Remedy Clause applies only to common-law claims, and not to claims

created by statute, like those for wrongful death. Consequently, Neher is, like

Greist, of little substantive value beyond the guidance we are able to draw from it

here as we did in Clarke.

Cite as 353 Or 359 (2013) 397

353 Or at 375 (emphasis in original). In its reading of Clarke,

the majority posits that, because

“the statutory limitation of $200,000 deprived the plaintiffs

of all but one percent of the more than $17 million in

damages that they would have otherwise recovered, the

limitation left them with a constitutionally inadequate

remedy.”

Id. Those observations lead the majority to tacitly conclude

that, because plaintiff in this matter has (1) not been

totally deprived of a remedy, as was the case in Neher, and

(2) recovered more than the “paltry fraction” at issue in

Clarke, the $200,000 cap on her recoverable damages does

not offend the Oregon Constitution.

As a matter of both logic and law, however, the

majority’s position fails. First, the conclusion that the

limited remedies at issue in Neher and Clarke were

unconstitutional does not make the remedy at issue in

this case constitutional.7 Second, neither Neher nor Clarke

were cases in which the court sought to quantify a damage

award as constitutionally “substantial.” Instead, both cases

presented the court with the same two problematic points:

The law had recognized a right of recovery for the injuries

of each respective plaintiff and, at the same time, abolished

remedies that would have facilitated that recovery.

In Neher, this court invalidated statutory provisions

that had immunized public bodies and their employees from

the statutory wrongful death claims of persons covered by the

workers’ compensation statutes. The court did so reasoning

that the statutes in question had left the parents—and sole

heirs—of 25-year-old Julie Neher without any legal remedy

at all after their daughter was negligently struck and killed

by a Tri-Met bus. To that end, the court wrote:

“ORS 30.010 recognizes the existence of a right of recovery

for surviving parents for damages to compensate them ‘for

pecuniary loss and for loss of the society, companionship

and services of the decedent.’ ORS 30.265(3)(a),

however, operates to abolish the parents’ remedy under

circumstances such as those present in this case, not only

7

Known generally as “denying the antecedent,” that error in thinking is

usually illustrated by this example: If P, then Q. Not P. Therefore, not Q.

398 Howell v. Boyle

against the municipality, but against the municipality’s

negligent employees. Such a result is irreconcilable with

this court’s holdings[.]”

Neher, 319 Or at 428 (emphasis added; internal citations

omitted).

In Clarke, this court held that an OTCA damages

limitation violated the Remedy Clause. The plaintiff had

instigated a medical negligence action against Oregon Health

Sciences University and a number of individual physicians

that it employed. The plaintiff brought that action on behalf

of her son who had suffered total and permanent disability as

the result of the negligent treatment he had received while

in the hospital’s care. The child’s economic damages alone

exceeded $12 million, a sum that was undisputed by OHSU,

as was its negligence in the matter. At the time, however, the

OTCA immunized the individual doctors from liability and

capped the damages recoverable from OHSU at $200,000.

This court held that the elimination of the plaintiff ’s claim

against the hospital’s doctors and the substituted and limited

remedy against the hospital violated the Remedy Clause as

an “emasculated version of the remedy that was available

at common law.” Clarke, 343 Or at 610. In reaching that

conclusion, the court emphasized that the legislature had

eliminated the plaintiff ’s “preexisting right to obtain a full

recovery” for the injuries sustained by her son. The court

wrote:

“We view plaintiff ’s economic damages of over $12

million as representative of the enormous cost of life-time

medical care currently associated with permanent and

severe personal injuries caused by the medical negligence of

a state officer, agent, or employee. Defendants do not argue

that those damages do not constitute an ‘injury’ within

the meaning of the constitution. Nor does anything in the

legislation suggest such a conclusion by the legislature.

Yet, the legislature has completely eliminated an injured

person’s preexisting right to obtain a full recovery for those

damages from the individual tortfeasors who negligently

caused the injuries.”

Id. at 609 (emphasis added).

In short, the court’s decisions in Neher and Clarke

both turned on the lack of a restorative remedy. And those

Cite as 353 Or 359 (2013) 399

two cases do not exist in a vacuum. This court has frequently

referred to that restorative quality as the benchmark of

a remedy’s constitutionality. See Smothers v. Gresham

Transfer, Inc., 332 Or 83, 124, 23 P3d 333 (2001) (noting that

the term “remedy” refers, in part, to that which is “required

to restore a right that has been injured”); Davidson v.

Rogers, 281 Or 219, 222, 574 P2d 624 (1978) (noting that, in

an action for libel, the remedy of a retraction did not offend

the Remedy Clause because “retraction can come nearer to

restoring an injured reputation than can money”); Holden

v. Pioneer Broadcasting Co., 228 Or 405, 419, 365 P2d 845

(1961) (noting that the “remedy afforded through retraction

would seem to come closer to providing an effective means

of repairing the harm” resulting from act of defamation).

The majority’s contrary application of Neher and

Clarke scrubs the restorative purpose of the Remedy Clause

from this court’s jurisprudence. Moreover, it suggests

that any recovery for damages is “substantial” so long as

the amount awarded falls somewhere between the sum of

zero and a figure that, while not “enough,” is, in the court’s

estimation, nevertheless “substantial,” whatever that

means. Untethered to a restorative purpose, that standard

is both arbitrary and unworkable.

The majority, however, does not rely solely on its

conclusion that the award in this case was “substantial”

to justify its decision here. It goes on to opine that the

remedy provided in this case also constitutes a “quid pro

quo” because, with regard to the police officer who struck

plaintiff,

“the city remains liable for the torts of its employees

committed within the scope of employment. Thus, while

the legislature limited the amount that may be recovered

from individual defendants who are municipal employees,

it substituted the ‘deep pocket’ of the municipality itself as

the ultimate payor. Plaintiffs, in other words, have been

conferred a substantial benefit in exchange for the damage

limitation.”

353 Or at 376 (emphasis added).

Let me be absolutely clear: the legislature did not

“limit” the amount that could be recovered from Officer

400 Howell v. Boyle

Boyle when it amended the OTCA in 1991; it abolished

any option for plaintiff to recover any amount from Officer

Boyle, by immunizing him from tort liability for negligent

acts occurring in the course of his employment. And in

1991, the legislature did not confer any additional benefit to

compensate for that deprivation. The legislature previously

had granted a class of plaintiffs access to the “deep pockets”

of the municipality for torts arising out of governmental

functions, but that benefit had already served as a “quid pro

quo” for the cap on tort damages arising out of muncipalities’

proprietary functions. Having been “spent” for that purpose,

municipal “deep pockets” could not then serve as a benefit

for a subsequent deprivation—elimination of employee

liability. Further, the “deep pockets” of the municipality

supposedly substituted in Officer Boyle’s stead are only as

deep as the statutory damages cap, which, in this case, is

not very deep at all. Consequently, there is no “this for that”

exchange in evidence here. Plaintiff ’s common-law remedy

against Officer Boyle has been abolished, and the remedy

that has been left to her is insufficient to restore her injured

rights as determined by the jury. She has not, contrary to the

position taken by the majority, “been conferred a substantial

benefit in exchange for the damage limitation.” In positing

otherwise, the majority is simply wrong.

In any event, the majority takes Hale’s “quid pro

quo” rationale far beyond its application in that case. In

Hale, the court did not hold that the legislative damage

limitation at issue before it was constitutional based on a

determination that the remedy was “substantial.” Instead,

the court reasoned, in part, that the legislature had conferred

a benefit to a “class of plaintiffs” to which the plaintiff

belonged in exchange for imposing a “counterbalancing

burden.” In that trade-off, the court noted, the legislature

had capped previously unlimited municipal liability for torts

arising out of proprietary functions in exchange for partially

waiving what had been complete municipal immunity for

torts arising out of governmental functions. That legislative

scheme, the court wrote “may work to the disadvantage of

some, while it will work to the advantage of others. But all

who had a remedy continue to have one.” 308 Or at 523.

That legislative scheme did not prevent any plaintiff from

Cite as 353 Or 359 (2013) 401

seeking damages from the individual municipal employees

who caused their injuries.

The majority, however, assumes that, if the legislature

has provided any sort of remedy with regard to municipal

torts, that fact makes subsequent legislative limitations

constitutional, even when the substituted remedy prevents

a plaintiff from obtaining a full recovery from anyone. In

that regard, the majority’s position begs the question of

what constitutes a constitutionally adequate remedy. Must

the quid pro quo fairly trade “counterbalancing” benefits for

burdens, or can the legislature satisfy the constitution by

providing any benefit at all? If a balanced trade between

burdens and benefits is required, then a quid pro quo results

only when a plaintiff receives a remedy that is substantially

equivalent to the one that has been taken away—and

which would, presumably, be capable of restoring the right

that was injured. If, however, a quid pro quo need not be

substantially equivalent to the remedy taken away, then

what relationship, if any, must it bear to the common-law

remedy? If the Remedy Clause requires only a “substantial”

remedy, then presumably a “substantial” quid pro quo—

whatever that is—is all that is required. But if the Remedy

Clause requires a restorative remedy, then a quid pro quo

will be satisfactory only to the extent that the benefit it

confers is restorative as well. I fail to see the utility of that

tautological digression.

But, as I have already noted, there is no quid pro

quo at play here. For torts arising out of governmental

functions, plaintiffs had access to municipal “deep pockets”

by virtue of the preexisting statutory waiver of municipal

immunity. The 1991 OTCA amendments eliminated

individual municipal employee liability without conferring

any additional benefit to injured plaintiffs. The majority

ignores that fact in favor of permitting the preexisting

statutory waiver of municipal immunity to serve as a quid

pro quo for the later, additional deprivation of individual

municipal employee liability. According to the majority’s

interpretation of Hale, however, that benefit has already

been “spent” to justify the cap on municipal liability for

proprietary functions. If that supposed “benefit” is also

402 Howell v. Boyle

the acceptable trade-off for the remedy plaintiff has been

deprived of in this case, then that “benefit” is capable of

justifying virtually any future reduction in the remedies

available to plaintiffs injured by the acts of a public body.

That, in my view, is not an equitable exchange.

III.  HISTORY AND THE LEGISLATURE’S

AUTHORITY UNDER OREGON’S REMEDY CLAUSE

The majority acknowledges that the Remedy Clause

requires the restoration of a right that has been injured,

and asserts that what must be “restored” is an “injury that

would have been recognized as the basis for a cause of action

in 1857.” 353 Or at 381 (emphasis in original). The majority

then relies on a historical analysis of the contributory

negligence doctrine as practiced in the nineteenth century

for its conclusion that, even if I am correct that the Remedy

Clause mandates a restorative remedy, this plaintiff “would

have been entitled to recover nothing” in 1857. 353 Or at 385.

The majority’s position is that, from a historical perspective,

(1) contributory negligence was, at one time, an absolute

bar to a plaintiff ’s recovery in tort, and (2) establishing the

absence of contributory negligence was part of a plaintiff ’s

burden of proof. Therefore, the majority concludes that,

“under the prevailing law at the time that the state’s

constitution was adopted, a plaintiff was required to prove

not only that his or her injuries were caused by a defendant’s

negligence but also that his or her own actions did not

contribute to those injuries. Contributory negligence, in

other words, was a principle of causation that constituted a

part of plaintiff ’s burden of proof.”

353 Or at 382.

There are, of course, multiple pitfalls associated

with the kind of historical analysis that the majority

undertakes. As Justice Landau has cautioned:

“Historical analysis, even done well, often will fail to

establish with anything approximating probability what

the framers of a constitutional provision intended. It

may even show that there were multiple and conflicting,

intentions. Judges should be prepared to accept that and

not try to make history tell us more than it fairly does.”

Cite as 353 Or 359 (2013) 403

Jack L. Landau, A Judge’s Perspective on the Use and Misuse

of History in State Constitutional Interpretation, 38 Val U L

Rev 451, 486-87 (2004).

That warning is appropriate here. As the majority

acknowledges, when the Oregon Constitution was adopted,

this court had not decided that contributory negligence was

a bar to a plaintiff ’s claim or that a plaintiff was required

to plead a lack of contributory negligence as an affirmative

element of his or her cause of action. The first Oregon case

to discuss those issues was decided in 1870, and by 1885

the court had made clear that it had “always understood”

contributory negligence to be a defense that a defendant

must plead. Grant v. Baker, 12 Or 329, 333 (1885); see also

Johnston v. Oregon Short Line & U.N. Ry. Co., 23 Or 94,

99, 31 P 283 (1892) (discussing contrary position set out in

Walsh as a “lapsus linguae” (a slip or fault of the tongue)).8

Thus, the majority cannot say, with the certainty that

should be required for a decision of this magnitude, that, in

1857, plaintiff would not have had a cause of action for her

injuries.

8

The majority cites Conroy v. Oregon Constr. Co. 23 F 71, 72 (D Or 1885), and

Charles Fisk Beach, Jr.’s 1885 treatise on contributory negligence in support of

its claim that Walsh establishes that, at the time the constitution was adopted, a

plaintiff needed to prove the exercise of ordinary care as part of the plaintiff ’s case-

in-chief. The majority correctly notes that Judge Deady observed in Conroy that,

at least in 1885, the states were “nearly evenly divided on the question whether

‘contributory negligence’ is a part of the plaintiff ’s case or a matter of defense.” And

with regard to Oregon, Judge Deady also observed that the Walsh case indicated

that plaintiff had the burden to prove the plaintiff ’s absence of negligence. I would

note, however, that in doing so Judge Deady appeared skeptical of the rule, pointing

out that “[t]he law does not presume that anyone is negligent; especially when such

negligence may or will result in his own personal injury.” 23 F at 72. Moreover,

Judge Deady characterized the court’s reference to the rule stated in Walsh as “a

dictum to that effect.” Id. at 72. Judge Deady’s observations are consistent with

Oregon statutory law at the time the constitution was adopted. At that time, with

regard to civil matters, there was a presumption that, “a person takes ordinary

care of his own concerns.” General Laws of Oregon, Civil Code, ch VIII, title VII,

§ 766, p 337 (Deady 1845-1864). With regard to the Beach treatise, I would point

out that in the third edition of the treatise in 1899 Beach still recognized Walsh as

controlling almost 15 years after that was clearly no longer the case. See Charles

Fisk Beach, Jr., A Treatise on the Law of Contributory Negligence § 422, 599-601

(3rd ed 1899) (listing Oregon as one of the states requiring a plaintiff to prove

the absence of his own negligence). All I claim for these notations is to emphasize

that determining the exact state of Oregon law over 150 years ago is an exceeding

difficult undertaking.

404 Howell v. Boyle

Furthermore, even if defendant could have made

arguments in 1857 that had the potential to defeat plaintiff ’s

claim had she filed it in 1857 rather than in 2007, plaintiff

also could have raised legal rules, such as last clear chance or

that defendant had acted with gross negligence—rules that

could have defeated defendant’s contributory negligence

arguments. The majority declines to address the theoretical

or practical significance of those rules because, according to

the majority, plaintiff failed to preserve below arguments

regarding those rules. That is true, but it is unsurprising: As

noted, contributory negligence ceased to be a part of Oregon

law decades ago and plaintiff therefore had no obligation

to plead claims in reply to that nonexistent doctrine. It

is fundamentally unfair for the majority to consider how

plaintiff ’s claim theoretically would have fared in 1857

based only on arguments that a defendant could have made

and at the time refuse to consider, on preservation grounds,

the counter arguments that a plaintiff could have made.

In any event, regardless of who has the better

argument about Oregon’s legal history, because the Oregon

legislature abolished the contributory negligence doctrine

decades ago, it was not part of the “due course of law”

that governed plaintiff ’s right to a remedy at the time of

her injury. Relying on Smothers, however, the majority,

nevertheless insists that the legislature constitutionally

may deprive a plaintiff of a remedy that otherwise would

be guaranteed to her if a court is able to determine that the

plaintiff ’s negligence contributed to her injury. Smothers

does not stand for such a strained proposition. Article I,

section 10, guarantees a restorative remedy for injury done

to one’s person; it does not mention, let alone freeze in place,

every repealed, overruled or outmoded argument that a

defendant might have relied on in 1857 to resist an injured

person’s claim.

Finally, I take issue with the majority’s resolution

of this matter for its lack of any guiding principle capable of

aiding both bench and bar in future Remedy Clause cases.

Will the requirement that a remedy be “substantial” and

Cite as 353 Or 359 (2013) 405

that it provide a “quid pro quo,” prohibit the legislature from

limiting all plaintiffs to a recovery of $200,000 regardless of

injury? What about $20,000? $2,000?9 Will a limitation to

9

Since this court’s decision in Clarke and the trial court decision in this case,

the legislature has increased the damages caps. The majority gives the legislature

no guidance for the future about whether its damage caps will meet constitutional

muster in individual cases. As pertinent here for claims against public bodies, ORS

30.272 now provides:

“(1)  The limitations imposed by this section apply to claims that:

“(a)  Are subject to ORS 30.260 to 30.300;

“(b)  Are made against a local public body, or against an officer, employee

or agent of a local public body acting within the person’s scope of employment

or duties;

“(c)  Arise out of a single accident or occurrence; and

“(d)  Are not claims for damage to or destruction of property.

“(2)  The liability of a local public body, and the liability of the public body’s

officers, employees and agents acting within the scope of their employment

or duties, to any single claimant for claims described in subsection (1) of this

section may not exceed:

“(a)  $500,000, for causes of action arising on or after July 1, 2009, and

before July 1, 2010.

“(b)  $533,300, for causes of action arising on or after July 1, 2010, and

before July 1, 2011.

“(c)  $566,700, for causes of action arising on or after July 1, 2011, and

before July 1, 2012.

“(d)  $600,000, for causes of action arising on or after July 1, 2012, and

before July 1, 2013.

“(e)  $633,300, for causes of action arising on or after July 1, 2013, and

before July 1, 2014.

“(f)  $666,700, for causes of action arising on or after July 1, 2014, and

before July 1, 2015.

“(g)  The adjusted limitation provided by subsection (4) of this section, for

causes of action arising on or after July 1, 2015.

“(3)  The liability of a local public body, and the liability of the public body’s

officers, employees and agents acting within the scope of their employment or

duties, to all claimants for claims described in subsection (1) of this section

may not exceed:

“(a)  $1 million, for causes of action arising on or after July 1, 2009, and

before July 1, 2010.

“(b)  $1,066,700, for causes of action arising on or after July 1, 2010, and

before July 1, 2011.

“(c)  $1,133,300, for causes of action arising on or after July 1, 2011, and

before July 1, 2012.

“(d)  $1,200,000, for causes of action arising on or after July 1, 2012, and

before July 1, 2013.

“(e)  $1,266,700, for causes of action arising on or after July 1, 2013, and

before July 1, 2014.

406 Howell v. Boyle

25 percent of the damages awarded by a jury be deemed

constitutionally sound? Ten percent? Five percent? The

majority does not say, and the lack of analytical rigor in

its discussion does not help answer the question. The only

limitations suggested by the majority’s opinion are that

(1) plaintiffs cannot be left “wholly without a remedy,” or

without recourse of any value whatsoever, and—in what is

essentially the same proposition stated differently—that

(2) some benefit must be conferred as a “quid pro quo” in

exchange for the remedy taken away, regardless of the

quantity, quality, or substance of the new benefit conferred.

Those propositions, however, are as applicable to a remedy

of $10 as they are to a remedy of $10,000,000 and will

ultimately prove unhelpful in future cases.

In my view, there are no plausible arguments

for holding that the Remedy Clause can be satisfied by a

remedy that is not capable of restoring a plaintiff ’s injured

rights and, even if there were, there are no principled bases

upon which a court could find the remedy in this case to

be “substantial”—unless, of course, every remedy short of

no remedy at all is, indeed, “substantial.” Here, because

the constitution plainly requires that plaintiff have a fully

“(f)  $1,333,300, for causes of action arising on or after July 1, 2014, and

before July 1, 2015.

“(g)  The adjusted limitation provided by subsection (4) of this section, for

causes of action arising on or after July 1, 2015.

“(4)  Beginning in 2015, and every year thereafter, the State Court

Administrator shall determine the percentage increase or decrease in the cost

of living for the previous calendar year, based on changes in the Portland-

Salem, OR-WA Consumer Price Index for All Urban Consumers for All

Items as published by the Bureau of Labor Statistics of the United States

Department of Labor. On or before July 1 of the year in which the State Court

Administrator makes the determination required by this subsection, the State

Court Administrator shall adjust the limitations imposed under subsections

(2) and (3) of this section for the following calendar year by multiplying the

limitation amounts applicable to the calendar year in which the adjustment

is made by the percentage amount determined under this subsection. The

adjustment may not exceed three percent for any year. The State Court

Administrator shall round the adjusted limitation amount to the nearest $100,

but the unrounded amount shall be used to calculate the adjustments to the

limitations in subsequent calendar years. The adjusted limitation becomes

effective on July 1 of the year in which the adjustment is made, and applies to

all causes of action arising on or after July 1 of that year and before July 1 of

the subsequent year.

“(5)  The limitations imposed by this section do not apply to claims

against Oregon Health and Science University.”

Cite as 353 Or 359 (2013) 407

restorative remedy and because the legislative limitation on

that remedy is so patently insufficient to serve that purpose,

I cannot join the majority in upholding its constitutionality.

I respectfully dissent.

Walters, J., and Durham, Justice, pro tempore, join

in this dissent.

DURHAM, J. pro tempore, dissenting.

I join fully the dissenting opinion of Justice

De Muniz in this proceeding. I write separately to draw

attention to an issue concerning Article I, section 10, of the

Oregon Constitution that likely will come before this court

in the future.

The key facts are that the jury in this case found that

plaintiff and defendant Boyle were each 50 percent at fault

for the personal injuries that plaintiff suffered. The trial

court accepted the jury’s finding that plaintiff had suffered

economic damages in the sum of $765,000 and noneconomic

damages in the sum of $250,000. The court reduced those

sums by 50 percent to account for plaintiff ’s comparative

negligence and entered a judgment against defendants for

$382,500 in economic damages and $125,000 in noneconomic

damages, for a total judgment for plaintiff in the sum of

$507,500. Finally, the trial court rejected defendants’ motion

to reduce further plaintiff ’s total damages to $200,000, in

accordance with ORS 31.270(1)(b) (2007). According to the

trial court, that further reduction would deprive plaintiff

of her constitutionally guaranteed “remedy by due course

of law for injury done [her] in [her] person,” as provided in

Article I, section 10.

The majority today rejects that ruling. It concludes

that Article I, section 10, does not prevent the legislature

from imposing a “cap” of $200,000 on the jury’s decision that

plaintiff suffered damages (adjusted for her comparative

negligence) in the sum of $507,000. According to the

majority, Article I, section 10, entitles plaintiff not to the

damages that actually would restore and, thus, remedy

her personal injury, but only to whatever lesser sum that

the legislature may designate if the court can say that that

408 Howell v. Boyle

sum is a “substantial” remedy. Howell v. Boyle, 353 Or at

359 (majority concludes that state constitution requires

any limited remedy to be “substantial,” and the capped

judgment that plaintiff received “satisfies that constitutional

requirement”).

The majority opinion demonstrates just how far

the majority has strayed from the remedy guarantee that

Article I, section 10, embodies. The text of that provision

guarantees a “remedy by due course of law;” the adjective

“substantial” does not appear in any form in the constitution.

As Justice De Muniz capably demonstrates in his

dissent, the adjective “substantial” is unworkable as a legal

standard because it is ambiguous and amorphous in the

extreme. It is telling that the majority does not attempt to

define or explain the meaning or limits of that term in this

context; that would be a fool’s errand. Like the meaning of

“beauty,” the meaning of “substantial” in this context exists

only in the eye of the beholder.

How did the court’s interpretive focus shift from

the constitutional text (particularly the term “remedy”) to

the adjective “substantial”? The answer appears in Hale v.

Port of Portland, 308 Or 508, 783 P2d 506 (1989). That case

reviewed (somewhat inaccurately, as Justice Linde correctly

noted in his concurring opinion) earlier cases that discussed

the legislature’s authority to alter statutory and common

law claims and remedies as long as the constitutionally

significant underlying interests in person, property, and

reputation are protected. The Hale court then stated:

“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.

It is that sentence that has pulled the majority away

from the constitutional text of Article I, section 10. That

sentence does not purport to construe any constitutional

term. But the majority now uses the adjective “substantial”

to conclude that the guarantee of a remedy for the injury to

plaintiff ’s person is satisfied by a cropped sum of money that,

in legal terms, does not restore or repair (and thus does not

Cite as 353 Or 359 (2013) 409

remedy) the injury inflicted by defendant upon to plaintiff ’s

body and pocketbook. Instead of focusing on the real issue—

whether plaintiff has received her guaranteed remedy by

due course of law—the majority addresses whether the

capped judgment awards a “substantial” amount. I submit

that there will never be a satisfactory answer to that issue

because it asks the wrong question. Apparently, the majority

has now condemned this court to repeat, over and over, that

same fruitless quarrel over how to apply a standard based

on a mere adjective used in one unexplained sentence in

Hale.

I conclude by inviting this court to reassess its

approach to the remedy guarantee by returning to the

words of the constitution itself and the interests of the

people described therein. Those who drafted the remedy

guarantee did not wish to tie the legislature’s hands in

abolishing older forms of action and remedy so long as

the people’s interests in person, property, and reputation

remain protected through remedies provided by due course

of law, including the constitutional right to trial by jury.

They did not conceive, I submit, of a remedial scheme that

would allow the legislature to cut personal injury damages

by more than half, as here, with no hint of an adequate or

alternative remedy to make up for that cut. That approach

grants an unjustified windfall to the wrongdoer here and

defeats the principle of responsibility for injury caused to

others that Article I, section 10, embodies. Only in the topsy-

turvy world occupied by the majority does a capped award of

$200,000 constitute a remedy for the $507,000 injury that

plaintiff suffered as a result of defendants’ tortious conduct

here.

Counsel who wish to invite the court to engage in

that reassessment of Article I, section 10, should preserve

that argument at the appropriate stage and advance the

arguments, suggested in this court’s case law, that justify a

reconsideration of today’s unfortunate decision.

I respectfully dissent.