# Sofie v. Fibreboard Corp.

> Washington Supreme Court · September 27, 1989 · 112 Wash. 2d 636

URL: https://www.frixlaw.com/law-library/cases/9597943

## Case

- **Full name:** Austin Sofie, Et Al, Appellants, v. Fibreboard Corporation, Et Al, Respondents
- **Court:** Washington Supreme Court
- **Decided:** September 27, 1989
- **Citations:** 112 Wash. 2d 636; 780 P.2d 260; 1989 WL 120647
- **Precedential status:** Published
- **Opinion:** Dissent by Dolliver
- **Judges:** Utter, Brachtenbach, Dore, Pearson, Smith, Dolliver, Callow, Durham
- **Cited by:** 265 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/9597943

## How later opinions describe it (automated extraction)

- explaining that a statutory cap on non-economic damages “may, indeed, violate the separation of powers” because the cap applies without judicial “case-by-case determinations” of the circumstances of the case
- finding that statutory limit on compensatory noneconomic damages violated state constitutional right to trial by jury
- holding cap on noneconomic damages unconstitutional under article I, section 21 of Washington State Constitution
- holding damage cap unconstitutional because it invaded jury's right to determine damages
- stating in dicta a cap on noneconomic damages may violate the separation of powers because it is a legislative attempt to mandate a legal conclusion

## Opinion text

Dolliver, J.
(dissenting) — The majority finds RCW 4.56.250 violates Const. art. 1, § 21 ("[t]he right of trial by jury shall remain inviolate") and thus is unconstitutional. While I might agree with the public policy result crafted by the majority, I cannot agree the statute violates plaintiffs' right to trial by jury and, so, I dissent. The majority limits its discussion to the trial by jury question and refuses to consider the equal protection and due process issues raised by plaintiffs. Since I also believe the trial by jury issue is the most important issue before the court and further believe RCW 4.56.250 does not violate either equal protection or due process, I too confine my dissent to the issue of trial by jury.
I begin by referring to the test this court must use in determining whether a statute is constitutional. The majority correctly cites Shea v. Olson, 185 Wash. 143 , 53 P.2d 615 , 111 A.L.R. 998 (1936) in delineating the standard. Its paraphrase of the holding in Shea , however, tends to mislead. The majority states:
*677 In matters of economic legislation [a limitation not expressed in Shea\, we follow the rule giving every reasonable presumption in favor of the constitutionality of the law or ordinance.
Majority, at 642-43. The rule is not, however, as indicated by the majority, "every reasonable presumption". As the court in Shea goes on to state: "[T]he rule in this state is that the court will not declare a law unconstitutional unless its invalidity is so apparent as to leave no reasonable doubt on the subject." Shea, at 152. We affirmed this test in a recent case: "A statute should not be declared unconstitutional unless it appears unconstitutional beyond a reasonable doubt." Haberman v. WPPSS, 109 Wn.2d 107, 139 , 744 P.2d 1032 , 750 P.2d 254 (1987). The test is not that there is a reasonable presumption to uphold legislation against constitutional attack. Rather, any finding of unconstitutionality must be beyond a reasonable doubt. The burden is on the one attacking the statute, here the plaintiffs. I examine the statute in question with that test in mind. One of the difficulties with the approach of the majority is that it is not only a weak rendition of the test for constitutionality but it also implicitly shifts the burden to the defendants to show the statute is not unconstitutional.
The opinion of the majority rests on the proposition that "the measure of damages is a question of fact within the jury's province." Majority, at 645. A moment's reflection, however, will demonstrate that this statement is not the real issue. The real question,.of course, is whether the jury's fact-finding function to measure damages extends to the remedy phase. In other words, is the jury's authorized measurement of damages necessarily translated, without limitation, into the legal remedy finally given. See Etheridge v. Medical Ctr. Hosps., _Va. _, 376 S.E.2d 525 (1989) (statutory limit on damages in medical malpractice claims does not violate right to trial by jury — remedy is a matter of law, not a matter of fact).
*678 The majority does not attempt to deny that the finding of damages by a jury may be subject to a legal determination as to the final award given by the court. It gives a number of examples to illustrate this point. While not denying this proposition, however, the position of the majority appears to be that the particular kinds of limitations on the jury finding pointed out by the defendants are different than the limitation under RCW 4.56.250. Throughout its discussion, however, the majority does not challenge, but indeed implicitly accepts, the general principle that the jury is not plenary in determining the amount of the judgment. Thus, in its own analysis the majority demonstrates that the question before the court is not whether the jury is the sole fact finder in the determination of whether any damages should be assessed. It clearly is. Rather, the question is whether the particular limitation which stands between the fact-finding power of the jury and the remedy of the court is constitutional.
Parenthetically, I observe that the "facts" a jury may consider are severely limited by the rules of evidence. The jury is not plenary in deciding what "facts" may be reviewed in determining damages. See James, Sufficiency of the Evidence and Jury-Control Devices Available Before Verdict, 47 Va. L. Rev. 218 (1961). I also note that in the early part of the 19th century it was thought juries had the legal and moral right to decide questions of law. Juries continue, of course, to have the power to decide the law in returning a general verdict. See Note, The Changing Role of the Jury in the Nineteenth Century, 74 Yale L.J. 170 (1964). This view of the power of the jury is no longer the rule in any American jurisdiction and has never been the rule in this state. Even so, it serves to remind that the final award which is made or remedy which is granted involves a question of law as well as simply a determination of facts.
The distinction between the factfinding power of the jury and the remedy granted by the court is well illustrated by the case of Tull v. United States, 481 U.S. 412 , 95 L. *679 Ed. 2d 365 , 107 S. Ct. 1831 (1987); cf. Dimick v. Schiedt, 293 U.S. 474, 490-94 , 79 L. Ed. 603 , 55 S. Ct. 296 , 95 A.L.R. 1150 (1935) (Stone, J., dissenting) (Seventh Amendment does not restrict the court's control of the jury verdict— Hughes, C.J., Brandéis, and Cardozo, JJ., concurring in the dissent). The majority finds Tull "irrelevant on the issue before the court" because Tull involved a civil penalty in a regulatory case rather than damages in a tort action. Majority, at 648. However, by holding the right to jury trial extends to a clean water act regulatory enforcement action, did not the Court say there is no distinction between tort actions and regulatory actions?
The real issue and the relevant issue is succinctly stated by the Court:
The Seventh Amendment is silent on the question whether a jury must determine the remedy in a trial in which it must determine liability. The answer must depend on whether the jury must shoulder this responsibility as necessary to preserve the "substance of the common-law right of trial by jury." Is a jury role necessary for that purpose? We do not think so.
(Footnote and citation omitted.) Tull , at 425-26.
The Court goes on to explain in footnote 9:
Nothing in the Amendment's language suggests that the right to a jury trial extends to the remedy phase of a civil trial. Instead, the language "defines the kind of cases for which jury trial is preserved, namely 'suits at common law."' Colgrove v. Battin, 413 U.S. 149, 152 [, 37 L. Ed. 2d 522 , 93 S. Ct. 2448 ] (1973). Although '"[w]e have almost no direct evidence concerning the intention of the framers of the seventh amendment itself,' the historical setting in which the Seventh Amendment was adopted highlighted a controversy that was generated ... by fear that the civil jury itself would be abolished." Ibid, (footnote and citation omitted). We have been presented with no evidence that the Framers meant to extend the right to a jury to the remedy phase of a civil trial.
Tull , at 426 n.9.
Nor has any such evidence been presented regarding Const. art. 1, § 21. While the majority insists this is a case *680 to be determined on state grounds, it does not indicate how the words of the Seventh Amendment, "the right of trial by jury shall be preserved" differ in substance from Const. art. 1, § 21, ”[t]he right of trial by jury shall remain inviolate". Furthermore, it gives no principled reason why this court ought to interpret Const. art. 1, § 21 differently from the Seventh Amendment. The historical dissertation by the majority of the power of the jury to determine damages, while informative, does not provide any analytical basis for extending this power to the remedy phase.
The judiciary and the Legislature have in the past made policy choices which have stood between the damages found by the jury and the ultimate remedy, i.e., punitive damages, immunity, and treble damages. The majority attempts to distinguish these examples through its 1889 analysis as to what causes of action the right attaches. Even conceding the application of this analysis to recent tort theories, it begs the question. Whether the right to trial by jury attaches to a cause of action does not determine whether this right extends to the remedy phase. Why is the alteration of the jury's determination of damages in this case different from other allowable alterations? The majority never says why; it simply says it is so.
Not only does the majority not address the real issue, the cases relied on by the majority do not even establish as a historical fact that the right to jury trial in 1889 extended to damages determinations. The court in Baker v. Prewitt, 3 Wash. Terr. 595 , 19 P. 149 (1888) held that a jury should have determined the damages attendant to a default judgment. The court relied on sections 204 and 289 of the territorial code. Section 204 stated that " [a]n issue of fact shall be tried by a jury ..." Section 289(2) provided that a trial court "may order the damages to be assessed by a jury" in actions in which "the defendant fail[ed] to answer to the complaint". Code of 1881, §§ 204, 289. What Prewitt held, therefore, was only that under the existing statutes, a right to have a jury determine damages existed in default judgments. The case has not been extended, before now, as *681 authority for a right to a jury determination of damages in other contexts. Arguably, Prewitt's interpretation of section 289 was incorrect in any event, as the provision uses the permissive "may" rather than the mandatory "shall". However, even if Prewitt correctly interpreted the territorial code and the Prewitt rule applies outside the default judgment context, are all of the more than 40 sections of the territorial code describing jury functions and procedures now to be accorded constitutional stature? Given the predilections of the majority, it would seem so.
The other cases the majority cites are equally unpersuasive as authority to derive the right to jury determined damages. James v. Robeck, 79 Wn.2d 864, 869-70 , 490 P.2d 878 (1971), which leads off the majority's recitation, does describe damages determination as a constitutionally consigned jury function. However, although James overturned a trial court's order reducing a jury-determined damage award, it noted that such a reduction would not be improper in all cases. James , at 871. In this respect, James refutes the majority's contention that the scope of the constitutional jury right is equivalent to the scope of jury powers under the territorial code. Section 276 of the Code of 1881 provided that when the jury returns " [e]xcessive damages, appearing to have been given under the influence of passion or prejudice", a new trial may be had. The provision does not authorize the trial court simply to reduce the damages as an alternative to a new trial, as James and the cases it cites allow.
Similarly, Dacres v. Oregon Ry. & Nav. Co., 1 Wash. 525 , 20 P. 601 (1889) is not persuasive to the majority's position. The statute at issue was held violative of the Seventh Amendment jury trial right, not the state constitutional provision. Moreover, Dacres did not say the statute offended the federal jury trial right because it prevented a jury determination of damages. Even if it had, it would have been proved wrong by Tull .
The remaining Washington cases the majority claims recognize "the constitutional nature of the jury's damage- *682 determining role" (majority, at 646), ultimately rely either on Walker v. McNeill, 17 Wash. 582 , 50 P. 518 (1897) or Martin v. Foss Launch & Tug Co., 59 Wn.2d 302 , 367 P.2d 981 (1962). The Anderson and Kellerher cases describe damages determinations simply as "a jury function", Anderson v. Dalton, 40 Wn.2d 894, 897 , 246 P.2d 853 , 35 A.L.R.2d 302 (1952), and "primarily the province of the jury", Kellerher v. Porter, 29 Wn.2d 650, 666 , 189 P.2d 223 (1948), and both substantively rely only on Walker v. McNeill, supra. Walker noted the advantages of having a jury determine damages, but in the end reduces as excessive the damages the jury had determined in the case.
Worthington v. Caldwell, 65 Wn.2d 269, 273 , 369 P.2d 797 (1964), Bingaman v. Grays Harbor Comm'ty Hosp., 103 Wn.2d 831, 835, 699 P.2d 1230 (1985), and Lyster v. Metzger, 68 Wn.2d 216, 224-25 , 412 P.2d 340 (1966) all rely either directly on Martin v. Foss Launch & Tug Co., supra, or on cases citing Martin as precedent. Interestingly, Martin first cites a legislative statute, RCW 4.76.030, for the proposition that there is a statutory presumption that the jury verdict is correct. Martin , at 303. Next, Martin cites Anderson v. Dalton, supra, for the maxim that "the determination of damages is primarily a jury function." Martin , at 303. Finally, Martin cites Scobba v. Seattle, 31 Wn.2d 685 , 198 P.2d 805 (1948), which states that the trial court has inherent discretion to relieve a party of an excessive verdict by giving the prevailing party the option to accept a smaller amount or submit to a new trial. See also Ticknor v. Seattle-Renton Stage Line, 139 Wash. 354, 358 , 247 P. 1 , 47 A.L.R. 252 (1926) (" [I]t is within the discretion of the trial judge to require an acceptance of a less amount than the verdict, or a new trial will be granted."). Whether the award is reduced by consent or a new trial is granted, there is an underlying power to limit the damages found by the jury. If the jury's determination of damages translated automatically, by constitutional fiat, into the legal remedy, how could such a common law rule be constitutional?
*683 The majority also cites Worthington v. Caldwell, supra, for the proposition that "'[questions of damages should be decided by the jury. . Majority, at 646. Following the line of cases cited by Worthington leads only to precedent which allows a trial judge to reform an irregular verdict in accordance with the jury's intent. See Weihs v. Watson, 32 Wn.2d 625, 630 , 203 P.2d 350 (1949); Richey & Gilbert Co. v. Northwestern Natural Gas Corp., 16 Wn.2d 631, 651 , 134 P.2d 444 (1943); Bobst v. Hardisty, 199 Wash. 304, 306 , 91 P.2d 567 (1939); City Bond & Share, Inc. v. Klement, 165 Wash. 408, 411 , 5 P.2d 523 (1931); Beglinger v. Shield, 164 Wash. 147, 153 , 2 P.2d 681 (1931); Gosslee v. Seattle, 132 Wash. 1, 2-4 , 231 P. 4 (1924); Buffington v. Henton, 70 Wash. 44, 47-48 , 126 P. 58 (1912); Casety v. Jamison, 35 Wash. 478, 480 , 77 P. 800 (1904). Contrary to the majority's bold conclusion, this court has never constitutionalized the jury's right to determine damages. Even conceding this point, however, there is no precedent for extending the scope of this right to the remedy phase.
The entire analysis of the majority on the relevant issue, with no authority cited, is found on page 655 of its opinion:
Respondents also contend that the damages limit affects only the judgment as entered by the court, not the jury's finding of fact. This argument ignores the constitutional magnitude of the jury's fact-finding province, including its role to determine damages. Respondents essentially are saying that the right to trial by jury is not invaded if the jury is allowed to determine facts which go unheeded when the court issues its judgment. Such an argument pays lip service to the form of the jury but robs the institution of its function. This court will not construe constitutional rights in such a manner.
In essence this is the opinion of the majority. It is a conclusion with no support. Unasked by the majority and unanswered by its opinion is the question as to why this particular limitation in RCW 4.56.250 would rob the jury of its function if other limitations, such as treble damages and remittitur, do not? How does one know the jury is robbed *684 of its function when the majority has not delineated the scope of that function?
Certainly, the jury is entitled to determine the facts which will lead to its assessment of damages and ultimately to the imposition of a remedy by the court. This is a constitutional right which is and must remain inviolate. This does not mean, nor has it ever meant, that the jury's determination of what it believes to be the damages is a constitutional absolute which may not be changed by action of law. It seems to me the majority, with its all or nothing analysis and its failure to distinguish between the damages a jury finds and the judgment which the court grants, i.e., the remedy, needlessly, improperly, and harmfully puts the Legislature, and this court, in a doctrinal straitjacket. To say the Legislature may eliminate the cause of action but not limit the remedy neither accords with common sense nor does it necessarily flow from the constitutional right to trial by jury.
Not only are the facts which a jury may consider limited, it has never been the rule in this state that a jury may assess damages as it chooses from the facts which are presented to it. For example, we have long refused to allow juries to assess compensatory or punitive damages, regardless of whether the facts before the jury might persuade it otherwise. Spokane Truck & Dray Co. v. Hoefer, 2 Wash. 45 , 25 P. 1072 (1891); Barr v. Interbay Citizens Bank, 96 Wn.2d 692 , 649 P.2d 827 (1981). Although this is a common law limitation, other examples can be given where legislative action has altered the effect of a jury's determination of damages: RCW 4.22.005, reversing Seay v. Chrysler Corp. 93 Wn.2d 319 , 609 P.2d 1382 (1980) (see discussion of Seay v. Chrysler Corp., infra); RCW 19.86.090 (authorization of treble damages by court in consumer protection action); RCW 79.01.756 (treble damages for cutting or manufacturing timber without authorization).
The most closely analogous legislative action, unmentioned by the majority, is contained in Seay v. Chrysler Corp., supra. In Seay , we refused to apply comparative *685 negligence in product liability actions. Product liability actions were judicially created. See Seay v. Chrysler Corp., at 325 (Utter, C.J., dissenting). Thus, in product liability cases in which there was in fact negligence by the plaintiff, since comparative negligence would not apply, there would be higher verdicts and settlements. In Seay we held the comparative negligence statute (former RCW 4.22.010) applied only to actions based on negligence and did not apply to causes of action for strict product liability which is based on a no-fault concept. The following year the Legislature enacted RCW 4.22.005, which reversed Seay and applied the doctrine of comparative negligence to strict liability cases.
The effect of this legislative action can be seen by taking two hypothetical cases where the facts were identical, the finding of damages by the jury was identical, and there was the same degree of contributory negligence by the plaintiff. Prior to RCW 4.22.005, the plaintiff would have received the entire amount of the jury determination of damages. Following RCW 4.22.005, the damages would be reduced by the percentage of the comparative negligence of plaintiff. The doctrine of strict liability would remain the same, the factual basis on which the jury measured damages would remain the same, and the damages for the injury would remain the same. But, by the operation of law, the recovery which, say yesterday would be $1,000, would today be $1,000 minus any contributory negligence by plaintiff. From an analytical standpoint, I fail to see any difference between my hypothetical case in which the finding of damages by the jury in a common law cause of action is reduced by statute so the recovery is less and the case before the court whereby statute the recovery is also less even though the "damages" found by the jury would be a greater amount.
The Legislature has also consistently removed common law causes of action by providing immunity or defenses for the actions. RCW 4.24.200-.210 (immunity from liability of *686 owner of land or water used for recreation), upheld in Riksem v. Seattle, 47 Wn. App. 506 , 736 P.2d 275 , review denied, 108 Wn.2d 1026 (1987); RCW 4.24.300 (immunity from liability of persons rendering emergency care); RCW 4.24.400 (immunity from liability of building warden assisting evacuation or attempting to control hazard); RCW 4.24.410 (immunity from liability of dog handler using police dog in line of duty); RCW 5.40.060 (absolute defense to an action for personal injury or wrongful death when influence of liquor or drugs was a proximate cause of the injury or death); RCW 7.68 (crime victims' compensation act), upheld in Haddenham v. State, 87 Wn.2d 145 , 550 P.2d 9 (1976); former RCW 46.08.080 (motor vehicle guest statute) (repealed by Laws of 1974, 1st Ex. Sess., ch. 3, p. 2) upheld in Shea v. Olson, 185 Wash. 143 , 53 P.2d 615 , 111 A.L.R. 998 (1936); RCW 68.50.400(3) (immunity from liability of person donating anatomical parts); RCW 70.136-.050 (immunity from liability of persons in agencies rendering aid in hazardous materials incidents).
The majority agrees the Legislature has the power to remove causes of action altogether. If the statute is examined from this perspective, it appears the Legislature in enacting RCW 4.56.250 has eliminated, in effect, any cause of action in which the damages are above the amount allowed in the act. If, as the majority states, when a cause of action is "completely done away with, then the right to trial by jury becomes irrelevant" (majority, at 651) it is, in fact, describing the essence of the statute before the court. By operation of law there can be no cause of action which would have damages in excess of the statutory formula. Within the statutory amounts (i.e., the allowable causes of action) the jury may determine damages as it finds them under the facts of the case.
Rather than analyze why the lesser power to limit recovery is not included within the greater power to abolish causes of action, the majority proceeds with a talismanic incantation of the right of trial by jury. The majority *687 essentially makes up arguments to distinguish the noneconomic loss situation from the workers' compensation and treble damages situations which clearly illustrate limitations on the jury function in determining remedies. Most troublesome about the majority discussion on this question is the gratuitous holding that there is no right to trial by jury for Consumer Protection Act claims. The reasoning behind this conclusion is woefully inadequate, especially when the majority lectures so strongly about applying a "flexible historical approach" (majority, at 649) to determine when the jury right attaches.
The Legislature perceived a problem in our tort law and believed reform was necessary. Laws of 1986, ch. 305, § 100, p. 1354. It enacted comprehensive tort law revisions which it stated were "to create a more equitable distribution of the cost and risk of injury and increase the availability and affordability of insurance.” We may question the efficacy of the legislation (see Priest, The Current Insurance Crisis, 96 Yale L.J. 1521 , 1587-90 (1987)). Nonetheless, the Legislature took action which it hoped and believed would remedy or partially remedy the problem. While we may wish it had acted otherwise, we are bound to uphold the statute unless it can be shown to be unconstitutional beyond a reasonable doubt. The plaintiffs have not met their burden. Therefore, I dissent.
Callow, C.J., concurs with Dolliver, J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9597943. Public record. Not legal advice.