# Hughes v. PeaceHealth

> Oregon Supreme Court · February 22, 2008 · 344 Or. 142

URL: https://www.frixlaw.com/law-library/cases/9503305

## Case

- **Full name:** Lori Gayle HUGHES, as Personal Representative for the Estate of Jill Marie Dieringer, Deceased, Petitioner on Review, v. PEACEHEALTH, a Washington Corporation, Dba Sacred Heart Medical Center and PeaceHealth Medical Group, Respondent on Review, and EUGENE EMERGENCY PHYSICIANS, PC, an Oregon Corporation, Defendant
- **Court:** Oregon Supreme Court
- **Decided:** February 22, 2008
- **Citations:** 344 Or. 142; 178 P.3d 225; 2008 Ore. LEXIS 60
- **Precedential status:** Published
- **Opinion:** Dissent by Walters
- **Judges:** De Muniz, Carson, Gillette, Durham, Balmer, Kistler, Walters
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9503305

## How later opinions describe it (automated extraction)

- recognizing that Article I, section 17, prohibits the legislature from modifying jury awards in actions that were recognized in 1857
- reasoning that, in 1857, the common law did not recognize wrongful death actions

## Opinion text

WALTERS, J.,
dissenting.
The right of trial by jury “occupies so firm a place in our history and jurisprudence!,]” Dimick v. Schiedt, 293 US 474, 486 , 55 S Ct 296 , 79 L Ed 603 (1935), that it can be said to define our system of justice. So central is the right to jury trial that this court should not retreat from principles it has *173 recognized as essential to the preservation of that right without doing so directly and with clear justification. Because the majority has so retreated, I must dissent.
Since 1927 the court has consistently held that the right to jury trial is “not to be narrowly construed and is not limited strictly to those cases in which it had existed before the adoption of the Constitution, but is to be extended to cases of like nature as they may hereafter arise.” State v. 1920 Studebaker Touring Car et al, 120 Or 254, 263 , 251 P 701 (1927) (emphasis added). Accord Jensen v. Whitlow, 334 Or 412, 421 , 51 P3d 599 (2002); Lakin v. Senco Products, Inc., 329 Or 62, 82 , 987 P2d 463 (1999); Greist v. Phillips, 322 Or 281, 293 , 906 P2d 789 (1995); Molodyh v. Truck Insurance Exchange, 304 Or 290, 295 , 744 P2d 992 (1987); Cornelison v. Seabold, 254 Or 401, 404-05 , 460 P2d 1009 (1969).
In 1999, in Lakin , the court unanimously held that the right to jury trial is a right of substance that withstands legislative interference. 329 Or at 82 . The court held that a plaintiff with a right to jury trial has the right to have the jury determine the facts in the case, including the amount of damages to be awarded, and that a statutory cap on damages unconstitutionally limits the jury’s fact-finding ability. The court explained the reach of its holding as follows:
“We conclude that Article I, section 17, prohibits the legislature from interfering with the full effect of a jury’s assessment of noneconomic damages, at least as to civil cases in which the right to jury trial was customary in 1857, or in cases of like nature.”
329 Or at 78 (emphasis added).
Thus, the appropriate paradigm for analysis of the issue presented here is straightforward: Is an action for negligently caused death “of like nature” to other negligence actions for which the right to jury trial existed at common law? If so, the plaintiff has a right to jury trial, and Article I, section 17, prohibits the legislature from interfering with the jury’s fact-finding ability and assessment of damages.
The majority begins correctly and states plaintiff’s assertion plainly: “[Plaintiffs] wrongful death action is ‘of like nature’ to an ordinary common-law personal injury *174 action.” 344 Or at 155. Then, without directly addressing that assertion, and without a bow to the step it skips, the majority questions whether plaintiff “has the same right to a jury determination of damages, unfettered by legislative or judicial interference, that a plaintiff in an ordinary personal injury action enjoys under this court’s Article I, section 17, decision in Lakin.” 344 Or at 155 (emphasis omitted). Without deciding that plaintiff does not have a right to trial by jury, the majority concludes that she does not have a right to have a jury assess her damages “[b]ecause the common law does not, and did not in 1857, recognize a right to unlimited damages in wrongful death actions [.]” 344 Or at 156-57. The new bar the majority raises subverts both the principle that the right to jury trial is not confined to actions recognized at common law and the principle that the right to jury trial is a right of substance with which the legislature cannot interfere.
In 1857 there was ordinarily a right to jury trial for causes of action tried to courts of law. 1920 Studebaker, 120 Or at 262 . At that time, courts were classified as either courts of admiralty, courts of equity, or courts of law:
“At the time when our state Constitution was adopted, courts were classified according to the nature and extent of their jurisdiction, their forms of proceeding, or the principles upon which they administered justice, either as courts of admiralty, courts of equity, or courts of law.”
Id. at 261 . Cases tried to courts of admiralty or courts of equity could be tried to a judge, but juries ordinarily determined issues of fact in actions at law:
“Courts of law administer justice according to the rules of the common law, and are held for the trial of civil causes with the presence and aid of a jury, and where there are issues of fact to be determined, the trial ordinarily must be by jury.”
Id. at 262 .
In 1920 Studebaker, the state seized an automobile that had been used to transport liquor and brought a case in rem against the vehicle seeking its forfeiture. The state *175 brought suit pursuant to a statute that was enacted afterl857, which permitted trial to the court, without a jury. The owner of the car protested, claiming that the statute violated her right to jury trial under Article I, section 17, of the Oregon Constitution. The state and the dissent argued that the statute created a special in rem procedure unknown at common law and that the action was not, therefore, within the jury trial guarantee of the constitution. The dissent stated its position succinctly: “It would seem that the power which created the proceeding could also prescribe the procedure.” 120 Or at 276 (Coshow, J., dissenting). The majority view, the prevailing view, was that the right to jury trial was not limited to actions recognized prior to 1857. The court reasoned that the right to jury trial extends to cases “of like nature” to those that existed before the adoption of the constitution, and that the legislature does not have the prerogative to eliminate the litigants’ rights to jury trial in such actions. The court held that because the new statutory action was not an action in admiralty or equity, but was a species of forfeiture actions, which were tried to juries at common law, the car owner had a right to have a jury determine the facts. Id. at 264, 269 .
In 1987, the court relied on that 1927 case when it considered the constitutionality of a statutory requirement, included in a fire insurance policy, that an appraiser determine the amount of loss. Molodyh, 304 Or at 295 . The court held that the Oregon Constitution mandates a jury trial “in those classes of cases in which the right was customary at the time the constitution was adopted or in cases of like nature.” Id. (emphases added). The court considered the insureds’ action to recover their losses to be in the same class of cases as a contract action and reasoned that “as long as this form of dispute is tried as an action at law, a jury trial is required.” Id. at 296-97 . The Molodyh court explained the meaning of the right to jury trial: “This right includes having a jury determine all issues of fact, not just those issues that remain after the legislature has narrowed the claims process.” Id. at 297-98 .
Applying those principles here is not difficult. A wrongful death action is an action at law and it is therefore in the same class of cases as other actions at law for which *176 Article I, section 17, guarantees a right to jury trial. 1 Furthermore, a wrongful death action is simply a negligence action in which the injury ultimately results in death. A wrongful death claim is one that “the decedent might have maintained * * *, had the decedent lived, against the wrongdoer for an injury done by the same act or omission.” ORS 30.020(1). That claim may arise while the decedent is still alive, and it arises where the injurious act, and not the death, occurs. See Howell v. Willamette Urology, P.C., 344 Or 124, 129, 130 , 178 P3d 220 (so stating). “[T]he purpose of a wrongful death action is to remove death as a bar to bringing the claim, not to make death the central event of the action.” Id. at 129 .
The majority does not reject my conclusion that a wrongful death action is “of like nature” to a common-law negligence action. Instead, the majority states that, in the case at bar, there is no “separate question” respecting trial by jury because plaintiff tried her case to a jury and “so far as we are aware, wrongful death cases always have been tried to a jury.” 344 Or at 156 n 12. The majority also refers to “any right to a jury trial that plaintiff might have[,]” indicating that it may agree that plaintiff does have a right to jury trial. 344 Or at 157 .
The majority’s refusal to directly state and confront the obvious conclusion that a wrongful death plaintiff has a right to jury trial allows it to sidestep the logical implication of that conclusion. A plaintiff who has a right to jury trial has a right to have the jury decide all the facts in that action, *177 including damages, without legislative limitation. Lakin, 329 Or at 82 . Logically, then, if plaintiff in the case at bar has a right to jury trial, she has the right to have the jury assess the Ml extent of her damages without legislative interference. The majority avoids that result, not by concluding that plaintiff does not have a right to jury trial, but by declaring that plaintiff does not have a different right: “a right to unlimited damages.” 344 Or at 157 (emphasis added). The majority states:
“Because the common law does not, and did not in 1857, recognize a right to unlimited damages in wrongful death actions, the only relevant source of substantive law respecting damages is the statutory law, which expressly places a cap on noneconomic damages.”
Id. at 156-57 .
If, as the majority opines, the common law did not recognize wrongful death actions at all in 1857, 2 the common law could not possibly have recognized the measure of damages in such actions. But because the right to jury trial extends to actions that were not recognized by the common law in 1857, that right also extends to actions in which the measure of damages had not been determined in 1857. The court in Lakin did not decide that the plaintiff had a right to have a jury determine his damages because a plaintiff in an ordinary negligence action had a “right to unlimited damages” in 1857. The court decided that the plaintiff had a right to have a jury determine his damages because the amount of those damages was a question of fact and, throughout history, it was the function of the jury, not the legislature, to decide questions of fact. 329 Or at 73 . The court reached its conclusion because “ ‘[t]he amount of damages * * * from the beginning of trial by jury, was a “fact” to be found by the jurors.’ ” Id. (quoting Charles T. McCormick, Handbook on the Law of Damages § 6, 24 (1935)).
The majority quotes Jensen for the proposition that “Article I, section 17, is not a source of law that creates or *178 retains a substantive claim or theory of recovery in favor of any party.” 334 Or at 422 . I agree that Article I, section 17, does not create a right to bring a wrongful death action. By the same token, Article I, section 17, does not create a right to bring a common-law negligence action. A plaintiff in a wrongful death action brings suit pursuant to ORS 30.020. A plaintiff in an ordinary negligence action relies on the common law to bring that claim. In both instances, plaintiffs’ rights to bring their claims arise from sources of law outside of Article I, section 17. Similarly, the measure of damages for both actions is determined by sources outside of Article I, section 17. Because both actions are actions at law, “of like nature,” both plaintiffs have the right to have a jury determine the facts in those actions — including damages — without legislative interference.
The majority follows its quote from Jensen with the statement that, “[u]nder that rule, plaintiff is entitled to a jury’s determination of her damages, both in type and amount, only to the extent that * * * the statute [ ] pertaining to her claim so provides.” 344 Or at 155 . The majority does not explain, however, why that is so, and it is not logic that compels that conclusion. The “rule” that Article I, section 17, does not grant a plaintiff a right to bring a claim does not speak to, much less dictate, whether a plaintiff who does have a right to bring a claim also has the right to have a jury determine her damages in that claim. Article I, section 17, is not the source of any claim, statutory or common law, but it is the source of the right to jury trial. In Lakin , the statute pertaining to the plaintiffs claim imposed a limitation on the damages he could receive. 329 Or 62 (considering ORS 18.560). But the court nevertheless held that statutory cap unconstitutional, not because the plaintiff had a “right” to damages rooted outside Article I, section 17, but because the plaintiff brought an action at law, and a jury, and not the legislature, must decide the facts in such an action. 329 Or at 79, 82 .
The majority cites no other authority for its conclusion that, if the legislature gives birth to an action, the legislature can eliminate the constitutional right to have a jury decide the facts in that action. 3 Actually, the opposite has *179 been true for nearly 100 years, the point with which I began my dissent. In 1920 Studebaker, the court considered and rejected the argument that the legislative power to prescribe an action included the power to preclude the jury from finding the facts in that action. 120 Or at 263 . In Molodyh , the applicable statute and the rights it provided were unknown at common law. Nevertheless, the plaintiff had a right to have a jury determine “all issues of fact, not just those issues that remain after the legislature has narrowed the claims process.” 304 Or at 297-98 .
The majority disregards those cases and does not explain in any satisfactory way why it builds the cornerstone of our judicial system on the happenstance of whether an action was initially recognized by the courts or the legislature and in what year. 4 Our constitution does not hang the right to jury trial on such anomalies. It provides that the right to trial by jury shall remain inviolate “in all civil cases.” Or Const, Art I, § 17.
The right to trial by jury is not to be narrowly construed, and yet that is exactly the rule of construction the *180 majority has adopted. In doing so, the majority raises questions about the future vitality of that most precious right. If we limit the substantive right to jury trial to those actions that existed in 1857, how, over time, will that right remain inviolate? Will not the court or the legislature be called upon to identify and redress new harms not known in 1857? Cannot the legislature, under the majority’s decision, limit or eliminate the jury’s right to decide the facts in those actions? How will the right to trial by jury remain robust in the days to come if the legislature can scale it back to times of old?
The majority’s reference to some other, undefined, “right to a jury trial that plaintiff might have under Article I, section 17,” 344 Or at 157 (emphasis added), provides scant consolation. The 12 in whom our constitution places its trust are the 12 who hear each word spoken from the stand, and the silences between. They are the 12 whose eyes watch others’ eyes and take their measure. By their absence, legislators cannot fill that role. Legislators may decide the categories of harm the state should address and the categories of persons who may bring claims in courts of law. But only jurors can shake right out from wrong for individual human beings and do them justice.
Since long before 1857 it has been the role of the jury to find the facts, including the fact of damages, in civil actions at law. The constitution requires that the jury’s historical fact-finding function continue in the future and remain inviolate. I respectfully dissent.
Durham, J., joins in this dissent.
It is not surprising, therefore, that the reported appellate decisions reveal that wrongful death cases have been tried to juries without question or objection since 1892. Sides v. Driscoll, 244 Or 76 , 415 P2d 760 (1966); Roehr v. Bean, 237 Or 599 , 392 P2d 248 (1964); Durkoop v. Mishler et al, 233 Or 243 , 378 P2d 267 (1963); Sturm v. Smelcer, 235 Or 251 , 384 P2d 212 (1963); Welter, Adm’x v. M & M Woodworking Co., 216 Or 266 , 338 P2d 651 (1959); Morey, Administratrix v. Redifer et al, 204 Or 194 , 264 P2d 418 (1955); Adair, Adm’x v. Valley Flying Service, 196 Or 479 , 250 P2d 104 (1952); Scott v. Brogan, 157 Or 549 , 73 P2d 688 (1937); Rekdahl v. Cheney, 134 Or 251 , 293 P 412 (1930); Gillilan v. Portland Crematorium Assn., 120 Or 286 , 249 P 627 (1927); Bloomquist v. City of La Grande, 120 Or 19 , 251 P 252 (1926); Gray v. Hammond Lumber Co. et al, 113 Or 570 , 232 P 637 (1925); Yovovich v. Falls City Lumber Co., 76 Or 585 , 149 P 941 (1915); Sullivan v. Wakefield, 59 Or 401 , 117 P 311 (1911); Carlson v. Oregon Short Line Ry. Co., 21 Or 450 , 28 P 497 (1892).
The majority takes the position that the common law had not “coalesced into a clearly defined common-law civil action for wrongful death” by 1857 when Oregon, as well as other legislatures, “stepped in to the breach.” 344 Or at 151 .
The majority discusses Greist, 322 Or at 293-94 , and correctly states that, in that case, the court concluded that, because there was no wrongful death action in *179 1857, there was no right to jury trial of such an action at that time. 344 Or at 153-54 . The majority does not completely explain, however, that the Greist court then went on to consider whether a wrongful death action is “of like nature” to claims that did exist at the time the constitution was adopted, assumed that it is for purposes of argument, but nevertheless concluded that “a jury’s determination of the amount of damages to be awarded in tort actions was not protected from judicial alteration,” 322 Or at 294 , a conclusion that the court disavowed in Lakin, 329 Or at 76-77 .
The majority explains in an earlier portion of its opinion that whether courts or legislatures were the first to recognize actions for wrongful death was purely fortuitous. 344 Or at 151 . The majority fails to note, however, that when the legislature first acted in Oregon, it did not necessarily intend to “cap” damages in wrongful death cases. When the Oregon legislature acted in 1862, it adopted two provisions permitting wrongful death actions. One permitted personal representatives of deceased persons to bring actions for damages not exceeding $5,000. 344 Or at 156 . But, an earlier section of that code gave parents, like plaintiff in the case at bar, a right to bring actions for the death of their children and did not limit the damages a parent could seek. Section 33 of the code provided: “A father, or in the case of the death or desertion of his family, the mother, may maintain an action as plaintiff for the injury or death of a child, and a guardian for the injury or death of his ward.” General Laws of Oregon, Civ Code, ch I, title III, § 33, pill (Deady & Lane 1843-1872). The majority does not explain why the present right to jury trial should turn on whether a court or a jury was the first to consider a wrongful death action or on the vagaries of the statutes removing death as a bar to bringing an action for negligently caused death.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9503305. Public record. Not legal advice.