# Greist v. Phillips

> Oregon Supreme Court · November 24, 1995 · 322 Or. 281

URL: https://www.frixlaw.com/law-library/cases/9533482

## Case

- **Full name:** Mary A. GREIST, Personal Representative of the Estate of Peter Maurice Greist, Deceased, Respondent on Review, v. Nicky Don PHILLIPS and Lightning Transportation, Inc., a Tennessee Corporation, Petitioners on Review; Nicky Don PHILLIPS and Lightning Transportation, Inc., a Tennessee Corporation, Petitioners on Review, v. Elizabeth B. TRIPP and Mary A. Greist, Individually, Respondents on Review
- **Court:** Oregon Supreme Court
- **Decided:** November 24, 1995
- **Citations:** 322 Or. 281; 906 P.2d 789; 1995 Ore. LEXIS 125
- **Precedential status:** Published
- **Opinion:** Concurring in part by Unis
- **Judges:** Graber, Fadeley, Unis, Durham
- **Cited by:** 74 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Busch v. McInnis Waste Systems, Inc., 366 Or. 628 (2020).
- Negative treatments: 1
- Distinguished by: 2
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9533482

## How later opinions describe it (automated extraction)

- holding that a $500,000 statutory cap on the amount of non-economic damages that a party may recover in a statutory wrongful death action does not deprive that party of a "substantial remedy"
- holding that a $500,000 statutory cap on the amount of noneconomic damages that a party may recover in a statutory wrongful death action does not deprive that party of a “substantial remedy”
- rejecting Article I, section 10, challenge to the damages cap in former ORS 18.560, renumbered, as ORS 31.710 (2003), on the ground that the capped amount of $500,000 in noneconomic damages, plus an uncapped award of $100,000 in economic damages, was a constitutionally adequat…
- rejecting Article I, section 10, challenge to the damages cap in former ORS 18.560, renumbered, as ORS 31.710 (2003

## Opinion text

UNIS, J.,
concurring in part, specially concurring in part.
I join in all but Parts IV.A. and IV.B. of this court’s opinion. With respect to Parts IVA. and IV.B., I concur in the result reached by the court, but for reasons different from those expressed by the court.
“[Constitutional interpretation must meet the criteria of good legislation — it must be sensible, clear, precise and consistent — and more: it must also demonstrate fidelity to the constitution itself.” 1 Constitutional interpretation also should be logical enough to avoid producing absurd results, clear enough to guide legislators, litigants, courts, and ordinary citizens, and precise enough to have some meaning beyond unfocused exhortation. 2 In this case, the court’s interpretation of Article I, section 10, of the Oregon Constitution (the “remedy guarantee clause”) does not, in my view, meet those criteria; it is another individually tenable but inconsistent opinion about the remedy guarantee clause. 3 *304 Likewise, the court’s interpretation of Article I, section 20, of the Oregon Constitution (the “equal privileges and immunities” provision) fails to address the appropriate sequence of inquiries to resolve plaintiff’s claim under that constitutional provision.
The court today holds that ORS 18.560, 4 which places a $500,000 cap on noneconomic damages in certain *305 civil actions, does not violate Article I, section 10, of the Oregon Constitution as applied to a wrongful death action brought under ORS 30.020. 5 I agree with that conclusion, but not with the court’s reasons to support it.
Article I, section 10, of the Oregon Constitution provides:
“No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.” (Emphasis added.)
Article I, section 10, as a whole, plainly is concerned with the administration of justice; “it provides an affirmative claim upon the state to provide a legal ‘remedy’ for an ‘injury done’ [to one’s person, property, or reputation].” State v. Burrow, *306 293 Or 691 , 695 n 5, 653 P2d 226 (1982). The remedy guarantee clause “is directed against the denial of a legal remedy to one who has a claim, arising from ‘injury done him in his person, property, or reputation,’ that has its legal source outside [Article I, section 10] itself. For such a recognized legal injury, ‘every man shall have remedy by due course of law.’ ” Hans A. Linde, Without Due Process”: Unconstitutional Law in Oregon, 49 Or L Rev 125, 136 (1970). See Davidson v. Rogers, 281 Or 219, 223 , 574 P2d 624 (1978) (Linde, J., concurring) (the remedy guarantee clause is addressed to litigants who seek “to secur[e] the right to set the machinery of the law in motion to recover for harm already done to one of the stated kinds of interest”).
It is well established that the legislature has the authority to determine what constitutes a legally cognizable injury. Sealey v. Hicks, 309 Or 387, 394 , 788 P2d 435 , cert den 498 US 819 , 111 S Ct 65 , 112 L Ed 2d 39 (1990). This court’s decisions long have established that the remedy guarantee clause was not intended to “freeze” the common law, equitable, and statutory remedies that existed in 1859 when the Oregon Constitution was adopted. See, e.g., Neher v. Chartier, 319 Or 417, 427-28 , 879 P2d 156 (1994) (“ ‘Article I, section 10, [of the] Oregon Constitution, was not intended to give anyone a vested right in the law either statutory or common; nor was it intended to render the law static’ ”) (quoting Noonan v. City of Portland, 161 Or 213, 249 , 88 P2d 808 (1939)). Moreover, this court has never held that the remedy guarantee clause prohibits any and all legislative elimination or modification of remedies. Such an approach would work drastic changes on well-settled doctrines such as statutes of limitation, statutes of repose, and sovereign tort immunity, and statutory schemes such as workers’ compensation. Prior decisions of this court, as well as the decision of the court in this case, see 322 Or at 290-92, indicate further that the remedy guarantee clause provides “more than a procedural guarantee that the ‘due course of law’ will be open to ‘every [person]’ who is entitled to a remedy under the substantive law, whatever that might be at any time.” 6 See, *307 e.g., Hale v. Port of Portland, 308 Or 508 , 783 P2d 506 (1989) (certain limits on damages contained in the Oregon Tort Claims Act (OTCA), ORS 30.260 to 30.300, did not violate Article I, section 10, because OTCA broadened the scope of city’s liability); Holden v. Pioneer Broadcasting Co., 228 Or 405 , 365 P2d 845 (1961) (debating the constitutionality of a statute that made recovery of general damages for defamation by a media defendant contingent on the defendant’s refusal to publish a retraction, in terms of whether the Legislative Assembly could make retraction an alternate “remedy” for general damages, and holding that retraction is an “alternative remedy” that can satisfy Article I, section 10). 7
“The text [of the remedy guarantee clause] offers three verbal handholds: [1] What harm to one of the protected interests is an ‘injury? [2] What qualifies as a ‘remedy? [3] Is this remedy available ‘in due course of law?” Hale, 308 Or at 529 (Linde, J., concurring). Those three verbal handholds provide a useful analytical framework for resolving a remedy guarantee clause claim.
It is undisputed that the harm — economic and noneconomic loss — suffered as a result of wrongful death and for which plaintiff seeks recovery in this civil tort action qualifies as a legally cognizable injury to one of the stated types of interests protected by Article I, section 10. 8 Indeed, *308 the legislature, in enacting the wrongful death statute, ORS 30.020, specifically recognizes that the legal “injury” that plaintiff, in this civil action, established at trial is cognizable in economic and noneconomic damages. This is not a civil tort action in which the legislature has sought to limit recovery by redefining what constitutes a legally cognizable injury. ORS 18.560(1), which applies to civil actions generally, regardless of the substantive theory of recovery, distinguishes and deals differently with economic damages (objectively verifiable monetary losses) from noneconomic damages (subjective, nonmonetary losses, such as loss of society and companionship). ORS 18.560(1) allows recovery for all economic damages, but places a $500,000 cap on noneconomic harm.
The question before this court in this case, therefore, is whether ORS 18.560, which allows recovery for all objectively verifiable monetary losses (i.e., economic damages), but limits the financial scope of the remedy for subjective, nonmonetary losses (i.e., noneconomic damages) to $500,000, qualifies as a legal “remedy” that is available “in due course of law.” I would answer that question in the affirmative.
There is no question that the legislature has the authority to determine what constitutes a legally cognizable injury and to abolish an existing statutorily recognized, legally cognizable injury. The legislature also can redefine a statutorily recognized, legally cognizable injury. Moreover, the legislature can distinguish and deal differently with economic loss from noneconomic loss for mental suffering or other noneconomic harm. For example, the legislature could provide by statute that only economic damages arising out of the wrongful death of a person are recoverable in a wrongful death action brought under Oregon statutory law. 9 Under such a statute, the analysis under Article I, section 10, would be that the plaintiff suffered no legal “injury” cognizable in noneconomic damages. The legislature cannot, however, abolish a remedy and at the same time recognize a legally *309 cognizable injury. Neher, 319 Or at 424 . 10 Once a legislature determines that a legal “injury” is cognizable in both economic and noneconomic damages, then, in my view, the legislature may not limit the financial scope of the remedy for those damages objectively measurable in money (i.e., economic damages), but the legislature may limit the financial scope of the remedy for noneconomic harm. ORS 18.560(1) satisfies these criteria. That statute allows recovery of (1) objectively verifiable monetary losses (economic damages), and (2) noneconomic damages (subjective, non-monetary losses) in an amount not to exceed $500,000. The remedy afforded by ORS 18.560(1), therefore, qualifies as a legal “remedy” that Article I, section 10, of the Oregon Constitution guarantees, 11 and that “remedy” is available “in due course of law.”
The majority concludes that Article I, section 10, is not violated because plaintiffhas not been denied a “substantial remedy.” The majority states:
“Plaintiff brought this action under ORS 30.020. That statute entitles plaintiff to damages in an amount that *310 ‘includes reasonable’ medical, burial, and memorial services rendered for the decedent, ORS 30.020(2)(a), and ‘would justly, fairly and reasonably’ compensate plaintiff for pecuniary loss to the decedent’s estate and loss of the society, companionship, and services of the decedent, ORS 30.020-(2)(c) & (d). The jury awarded $100,000 in ‘economic damages,’ which are ‘objectively verifiable monetary losses,’ including expenses for medical, burial, and memorial services and loss to an estate (including loss of services to an estate). ORS 18.560(2)(a). The jury also awarded $1.5 million in ‘noneconomic damages,’ which are ‘subjective, non-monetary losses,’ including loss of society and companionship. ORS 18.560(2)(b). Applying ORS 18.560(1), the trial court gave plaintiff judgment for noneconomic damages of $500,000, in addition to the $100,000 in economic damages, for a total of $600,000.
“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. * * *
“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, 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 (1961-67) was $25,000. In relation to that history, the present remedy is substantial.
“Plaintiff’s Article I, section 10, argument is not well taken.” 322 Or at 290-91.
The majority’s analysis is based on the following passage in Hale, 308 Or at 523 :
“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. * * * [T]he remedy need not be precisely of the same type or extent; it is enough that the remedy is a substantial one.”
*311 I was not a member of this court when Hale was decided, and I have reservations about the portion of Hale on which the majority relies, namely the concept that the legislature may abolish a remedy, provided that what remains is “substantial,” as the majority applies that term in this case. In my view, the “substantial” test adopted by the court in this case is an unclear, imprecise, and flawed basis for applying the Oregon constitutional remedy guarantee clause.
The first problem with the “substantial” test is that it is vague and gives no guidance to legislators, litigants, or ordinary citizens as to how courts will apply the standard. The “substantial” test leaves open too many questions, and, more important, it provides the bench, bar, and Legislative Assembly with too few tools with which to find the answers. The word “substantial,” by itself, offers no means by which to draw the line between a permissible and an impermissible limitation on a remedy. The “substantial” test calls for the comparison of immeasurables. The determination of what is “substantial” is little more than a determination of whether or not a remedy has in fact been lost. Because of its numerous, related, but distinct meanings, 12 the term “substantial” is not usefifl. For example, what is meant by that term? How is the “substantiality” of a remedy to be measured? Is it measured in reference to a plaintiff’s actual injuries, or is it measured by an abstract conclusion that a particular remedy is “substantial” as to a particular class of injuries? Is the “substantiality” of a remedy to be measured by reference to economic damages or by both economic and noneconomic damages? How do you determine substantiality *312 in relation to the history of the remedy for the particular legally cognizable injury? How are trial courts to assess the “substantiality” of a remedy for a particular plaintiff’s legally cognizable injury? Do appellate courts give deference to a trial court’s determination that a particular remedy is substantial? If so, will inconsistent decisions result from case to case? To prevent such inconsistency, will it be necessary for this court to be the final arbiter on the question of the “substantiality” of a remedy in a particular case? If so, what formula will this court use to make that determination?
The majority holds that a single $500,000 limit on noneconomic damages, in addition to 100 percent of economic damages (in this case, $100,000), for a total of $600,000 is a “substantial” remedy for injuries that the jury valued at $1.5 million. Would $500,000 be a substantial remedy for a $5 million dollar injury? $10 million? $100 million?
If a “substantial” remedy is somehow measured in abstract terms (i.e., if the court were to hold that, for any plaintiff, $500,000 is a substantial remedy for any wrongful death), how are the trial courts to deal with stare decisis in the future? If a court today declares that, in the abstract, $500,000 is a substantial remedy under Article I, section 10, will that same $500,000 be “substantial” in 20 years? In 100 years? How much must inflation reduce the value of a particular sum of money before this court will reexamine a conclusion that a particular sum is a “substantial” remedy?
Whichever approach the trial courts take in determining whether a remedy is “substantial,” there is a great danger of haphazard results. A determination that a particular remedy for a particular injury is “substantial” necessarily is a policy decision. Asking this court to decide whether a particular remedy is “substantial” places this court in one of two untenable positions: either this court defers to the legislative judgment that a particular remedy is “substantial,” thus negating any meaningful judicial review, or this court substitutes its own judgment as to whether it believes that the remedy afforded by the legislature is adequate, leading to, in effect, judicial legislation. In the light of these questions, I believe that this court should reconsider any analysis based on an evaluation of whether a remedy is “substantial.”
*313 This court’s failure to explain what is meant by the term “substantial” is not unprecedented. This court cannot look to the Hale decision for guidance, because the court in Hale did not explain what it meant by the term “substantial.” Nor can it look to the cases from which Hale purported to derive the standard, because those decisions do not contain any analysis centered on whether a remedy is “substantial.” 13 Despite the language from Hale on which today’s majority relies, the real rationale for the court’s decision in Hale is what Professor Schuman calls the quid pro quo approach. See Schuman, 65 Temple L Rev at 1210-12 (describing quid pro quo approach to remedy guarantees, which allows the legislature to eliminate one remedy or claim only if it provides a replacement). In Hale , the court held, among other things, that the liability limits of the Oregon Tort Claims Act (OTCA) did not violate Article I, section 10, of the Oregon Constitution as applied to cities. Hale, 308 Or at 523 . The statutes at issue in Hale provided that the cities could be liable for both proprietary and governmental functions, but also provided a monetary cap on a city’s liability under the OTCA. ORS 30.265(1), 30.270(1) (1987). 14 The majority opinion in Hale stated that cities *314 traditionally had shared in the state’s sovereign immunity as to “governmental” functions, but that they did not enjoy such immunity as to “proprietary” functions. Hale, 308 Or at 518 . Because the OTCA broadened the scope of a city’s liability by making cities liable for both types of functions, the Hale court held that capping damages under the OTCA did not violate Article I, section 10:
“It is clear from the language of ORS 30.265(1) itself that the legislature intended to meet fully the requirements of Article I, section 10, when it enacted the statute. The statute specifically identifies the new balance it strikes between municipal corporations and those to whom certain of those corporations could, under limited circumstances, formerly have been liable:
“ ‘Subject to the limitations of ORS 30.260 to 30.300, every public body is subject to action or suit for its torts and those of its officers, employees and agents acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function * * (Emphasis added.)
“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. But all who had a remedy continue to have one. This may not be what plaintiff wants. It may not even be what this court, if it were in the business of making substantive law on this subject, would choose to enact. But it is within the legislature’s authority to enact in spite of the limitations of Oregon Constitution, Article I, section 10.” Id. at 523 (emphasis added).
The rationale that this court used to uphold the cap on damages in Hale cannot be used to sustain the cap on *315 noneconomic damages in this case. In Hale , the court justified the damages cap under the OTCA because “[a] benefit ha[d] been conferred, but a counterbalancing burden ha[d] been imposed.” Id. In enacting ORS 18.560, the legislature has not struck a “new balance.”
Finally, although I agree with the result reached by the court concerning plaintiff’s claim under Article I, section 20, of the Oregon Constitution (the “equal privileges and immunities” provision), the court, in reaching that result, fails to address the appropriate sequence of inquiries to resolve plaintiff’s claim under that constitutional provision. For the appropriate methodological approach to analyzing a claim under Article I, section 20, see David Schuman, The Right to “Equal Privileges and Immunities”: A State’s Version of “Equal Protection,” 13 Vermont L Rev 221, 244 (1988).
Durham, J., joins in this concurring in part, specially concurring in part, opinion.
David Schuman, The Right to a Remedy, 65 Temple L Rev 1197, 1219 (1992).
“And ‘the constitution’ toward which this fidelity is owed is not just the text; it is that much larger complex of principles, aspirations, and political theories the document embodies. The requirement of ‘fidelity to the text,’ in this context, is the relatively obvious and uncontroversial requirement that a court’s explanation of the meaning of a given constitutional provision should demonstrate some logical connection to the words it purports to interpret, including their source, history, and position in the overall document. Further, ‘fidelity requires that the court be sensitive to the political culture of the constitutionally-defined community and reflect the communitys most deeply held constitutive traditions.” Id.
Id. at 1219-20.
This court’s prior decisions about Article I, section 10, also have failed to satisfy those criteria. See Hale v. Port of Portland, 308 Or 508, 529 , 783 P2d 506 *304 (1989) (Linde, J., concurring) (this court “has written many individually tenable but inconsistent opinions” about the remedy guarantee clause); David Schuman, Oregon’s Remedy Guarantee: Article I, section 10 of the Oregon Constitution, 65 Or L Rev 35, 56 (1986) (the Oregon cases “indicate a judicial inability to formulate a coherent, consistent rule for applying the constitutional [remedy guarantee clause] mandate”). See also Note, The Remedy Clause Analysis of Neher v. Chartier, 74 Or L Rev 379, 397 (1995) (noting this court’s “inconsistent and confusing” application of the remedy guarantee clause). The cases have been inconsistent with regard to the proper analysis under Article I, section 10. At times, the court has engaged in a balancing of interests, treating the remedy guarantee as a sort of substantive due process clause. Evanhoff v. State Industrial Acc. Com., 78 Or 503 , 154 P 106 (1915). At other times, the court has required the legislature to replace an existing remedy with a substitute (quid pro quo). Hale, 308 Or at 508 . At still other times, the court has appeared to view the clause as imposing no substantive limitations on the legislature’s authority to abolish remedies. See Sealey v. Hicks, 309 Or 387 , 788 P2d 435 (held statutory products liability state of repose did not violate the remedy guarantee clause in Article I, section 10, of the Oregon Constitution, even though it eliminated the plaintiff’s remedy before the plaintiff suffered an injury), cert den 498 US 819 , 111 S Ct 65 , 112 L Ed 2d 39 (1990).
ORS 18.560 provides:
“(1) Except for claims subject to ORS 30.260 to 30.300 [(the Oregon Tort Claims Act)] and ORS chapter 656 [(the Oregon Workers’ Compensation Act)], in any civil action seeking damages arising out of bodily injury, including emotional injury or distress, death or property damage of any one person including claims for loss of care, comfort, companionship and society and loss of consortium, the amount awarded for noneconomic damages shall not exceed $500,000.
“(2) As used in this section:
“(a) ‘Economic damages’ means objectively verifiable losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past and future impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less.
“(b) ‘Noneconomic damages’ means subjective, nonmonetary losses, including but not limited to pain, mental suffering, emotional distress, humiliation, injury to reputation, loss of care, comfort, companionship and society, loss of consortium, inconvenience and interference with normal and usual activities apart from gainful employment.
“(3) This section does not apply to punitive damages.
*305 “(4) The jury shall not be advised of the limitation set forth in this section.”
OES 30.020 provides in part:
“(1) When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of [various specified persons] may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission. * * *
“(2) In an action under this section damages may be awarded in an amount which:
“(a) Includes reasonable charges necessarily incurred for doctors’ services, hospital services, nursing services, other medical services, burial services and memorial services rendered for the decedent;
“(b) Would justly, fairly and reasonably have compensated the decedent for disability, pain, suffering and loss of income during the period between injury to the decedent and the decedent’s death;
“(c) Justly, fairly and reasonably compensates for pecuniary loss to the decedent’s estate;
“(d) Justly, fairly and reasonably compensates the decedent’s spouse, children, stepchildren, stepparents and parents for pecuniary loss and for loss of the society, companionship and services of the decedent; and
“(e) Separately stated in finding or verdict, the punitive damages, if any, which the decedent would have been entitled to recover from the wrongdoer if the decedent had lived.”
As the majority explains, see 322 Or at 286 n 2, “[t]hat part of ORS 30.020 was amended to its present form by Oregon Laws 1991, chapter 471, section 1. Those amendments apply only to claims arising on or after September 29, 1991.” The 1991 amendments do not affect this case, and, accordingly, we cite to the current version of ORS 30.020, rather than referring to ORS 30.020 (1989).
Hans A. Linde, Without “Due Process”: Unconstitutional Law in Oregon, 49 Or L Rev 125,136 (1970). See also Hale, 308 Or at 527 (Linde, J., concurring) (“the assurance of a ‘remedy’ for ‘injur/ to specified interests appears to promise more than protection against delay and other procedural obstructions”).
In Davidson v. Rogers, 281 Or 219 , 574 P2d 624 (1978), this court refused to overrule Holden v. Pioneer Broadcasting Co., 228 Or 405 , 365 P2d 845 (1961), and held that Oregon’s retraction statute, ORS 30.160 to ORS 30.170, did not violate Article I, section 10, of the Oregon Constitution. Justice Linde’s concurrence in Davidson agreed with the majority that the legislature can readjust the duty of care if the cause of action is retained. Davidson, 281 Or at 224 (Linde, J., concurring). Consequently, Justice Linde concurred with the view that the retraction statute is constitutional under Article I, section 10. Justice Linde, however, rejected the majority’s view concerning the “alternative remedy of retraction. Justice Linde reasoned that “the question whether retraction of a defamatory statement is an ‘alternative remedy that can satisfy Article I, section 10, was and remains a false issue,” id. at 222 , because the statute allows, but does not compel, the defendant to publish a retraction. According to Justice Linde, “[i]f an optional retraction plays a role at all in the validity of limiting the measure of damages for defamation, it would have to be that the retraction is deemed to reduce the ‘injury,’ not that it is a substitute legal remedy.” Id. at 224 .
“Not every harm, or even every old common law cause of action, necessarily is an injury to a ‘person,’ or to ‘property,’ or to ‘reputation’; a simple, perhaps debatable, example is an ordinary breach of contract.” Hale, 308 Or at 529 n 3 (Linde, J., concurring).
“[T]here is no common law cause of action for wrongful death.” Goheen v. General Motors Corp., 263 Or 145, 151 , 502 P2d 223 (1972).
In Neher v. Chartier, 319 Or 417 , 879 P2d 156 (1994), this court concluded that ORS 30.265(3Xa) (1993), which shielded public bodies, their officers, agents and employees from civil liability for injury to persons covered under the Workers’ Compensation Law, violated Article I, section 10, of the Oregon Constitution. The plaintiff argued that the three thousand dollar death benefit provided by the Workers’ Compensation Law was not a substantial remedy. The defendants contended that Article I, section 10, guarantees a remedy only in those rights of action existing at common law. Therefore, the defendants reasoned, because a wrongful death action is created by statute, Article I, section 10, is not offended even if a plaintiff is remediless. The Neher court noted that it previously had rejected that line of reasoning in Noonan v. City of Portland, 161 Or 213 , 88 P2d 808 (1939). Neher, 319 Or at 427 . In Noonan, 161 Or at 249 , the court stated that “Article I, section 10 * * * was not intended to give anyone a vested right in the law * * * nor was it intended to render the law static.” “The legislature cannot, however, abolish a remedy and at the same time recognize the existence of a right[.]” Neher, 319 Or at 427 (quoting Noonan, 161 Or at 249 ) (citations omitted in original). The Neher court held that, although tort immunity of public officers and employees is not per se unconstitutional, a party must not be left without a remedy. Therefore, this court held the provision unconstitutional because the nominal award accrued to the decedent’s estate, leaving the decedent’s parents entirely remediless. Neher, 319 Or at 426-27 . In a wrongful death action, the personal representative represents the interests of both the estate and the decedent’s parents. Id. at 426 (citing ORS 30.020(1) and 30.020(2)(d) (1993) (wrongful death statute)).
Because the right of action for wrongful death is statutory, it is unnecessary in this case to pursue the question of how far the legislature must retain money damages as a constitutionally required remedy for noneconomic damages when they existed at common law.
For example, “substantial” is defined as follows:
“Of real worth and importance; of considerable value; valuable. Belonging to substance; actually existing; real; not seeming or imaginary; not illusive; solid; true; veritable. * * * Something worthwhile as distinguished from something without value or merely nominal.” Black’s Law Dictionary 1428 (6th ed 1990).
“1. Composed of or relating to things that occupy space and can be perceived by the senses.
“2. Large in number or yield.
“3. Having great significance.
“4. Having actual reality.” Roget’s II: The New Thesaurus 970 (1988).
Synonyms for “substantial” are: abundant, ample, considerable, plentiful, important, meaningful, notable, significant, massive, sound, and stable. Novell Perfect Office WordPerfect V 6.1.
On one occasion, this court used the term “substantial” with regard to analysis under Article I, section 10. In Holden, 228 Or at 414 , this court stated in dictum-. “[T]he form of the remedy could be changed [by the legislature] if the substitute was a substantial equivalent of that which was taken.” (Emphasis added.) If we were to apply that rationale to the present case, ORS 18.560 would not satisfy Article I, section 10. Immediately before ORS 18.560 was enacted, a plaintiff had an unlimited right to recovery for noneconomic damages. Since enactment of ORS 18.560, that recovery is limited to $500,000. The new remedy is not the “substantial equivalent” of the prior limitless remedy, as demonstrated by this case — $500,000 is not the “substantial equivalent” to $1.5 million by anyone’s measure. Holden was not cited by the majority opinion in Hale , although it was cited by Justice Linde in his concurring opinion. 308 Or at 527-30 (Linde, J., concurring).
ORS 30.265(1) (1987) provides in part:
“Subject to the limitations of ORS 30.260 to 30.300, every public body is subject to action or suit for its torts and those of its officers, employees and agents acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function[.]”
ORS 30.270(1) (1987) limits the potential liability of public bodies:
“Liability of any public body or its officers, employees or agents acting within the scope of their employment or duties on claims within the scope of ORS 30.260 to 30.300 shall not exceed:
“(a) $50,000 to any claimant for any number of claims for damage to or destruction of property, including consequential damages, arising out of a single accident or occurrence.
*314 “(b) $100,000 to any claimant for all other claims arising out of a single accident or occurrence.
“(c) $300,000 for any number of claims arising out of a single accident or occurrence.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9533482. Public record. Not legal advice.