# Sealey v. Hicks

> Oregon Supreme Court · March 6, 1990 · 309 Or. 387

URL: https://www.frixlaw.com/law-library/cases/9854114

## Case

- **Full name:** SEALEY Et Al, Petitioners on Review, v. HICKS Et Al, Defendants, and TOYOTA MOTORS CORP., Respondent on Review
- **Court:** Oregon Supreme Court
- **Decided:** March 6, 1990
- **Citations:** 309 Or. 387; 788 P.2d 435; 1990 Ore. LEXIS 33
- **Precedential status:** Published
- **Opinion:** Concurrence by Fadeley
- **Judges:** Peterson, Linde, Carson, Jones, Gillette, Van Hoomissen Fadeley, Fadeley
- **Cited by:** 65 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part, on other grounds by Smothers v. Gresham Transfer, Inc., 332 Or. 83 (2001).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9854114

## How later opinions describe it (automated extraction)

- holding that similar Oregon product liability statute of repose does not violate federal equal pro- tection clause

## Opinion text

FADELEY, J.,
specially concurring.
I concur in the result in this case. The pleadings do not meet requirements for a “continuing duty to warn” or for *400 some other theory based on a duty, which might have been available, arising within two years of complaint.
However, I am not able to join the rest of the opinion which discusses a constitutional guarantee without analyzing that guarantee or its roots or purposes. We all agree in this country that the constitution and the rights guaranteed therein control over statutes. But that is only true so long as courts will make the constitution effective. Indeed, this country was founded as a result of a revolution wherein the courts had not accorded the “colonists” their fundamental rights under basic English law. Establishment of three separate coequal branches of government followed hard on the heels of that experience. Assigning courts the task of enforcing constitutional rights was a creative tour de force by our predecessors. The independent judiciary was created to assure that there is always a governmental institution strong enough to have its way and charged with the responsibility for upholding the constitutional rights of individuals attacked or eroded by actions of other governmental branches.
The portion of this court’s opinion which I do not join appears to me to possibly permit a statute of the legislative branch to overrule the constitutional right. That portion of the opinion appears to do so unnecessarily because no justiciable case for a remedy in due course of law was pleaded.
Article I, section 10, of the Oregon Constitution provides, among other things, that every person “shall have remedy by due course of law for injury done him in his person, property, or reputation.” This clause uses mandatory language about two ideas. Each person shall have a remedy. That remedy shall be by due course of law. The remedy and the due course of law apply to injury done to the person.
In this case, a 15-year-old boy is a lifetime quadraplegic as a result of an accident which may have been substantially caused by dangerous driving characteristics of a specific vehicle. These dangerous characteristics, producing prior accidents, may well have been known to the manufacturer for years before the plaintiff suffered his lifetime injury. In an effort to allow manufacturers to build into their price a *401 component of cost for future risks of injury by their products, the legislature chose to limit the period of risk to eight years. 1
It is true, as the opinion of the court points out, that the statute could be read another way. It could be read to limit to eight years plus two years after causing an injury. However, my concurrence here does not take issue with the reading in the court’s opinion that the intention of the legislature was to absolutely limit the period of risk to eight years.
After the eight-year period expired, the driving accident, which may have been caused by the known dangerousness of the vehicle when being driven, occurred. That directly raises the issue of whether the legislature may properly make a choice to hold down the costs to the manufacturer to the first eight years of risk and place the remaining costs on those people who may be injured after the eighth year. Does that square with every person “shall have a remedy by due course of law for injury done him in his person?”
In effect, the court’s opinion says, “yes, the legislature may by statute make the cost-shifting choice notwithstanding the constitutional guarantee. The statute may overrule the constitution and its guarantee.”
This constitutional concept — a remedy by due course of law for injury to the person — is over seven hundred years old. The guarantee is a commonplace in state constitutions. 2 In our constitution, and that of other states, the physical placement of the guarantee connects it to and locates it with ideas found in Magna Carta concerning courts being open, speedy and complete in their resolution. The remedy by due course of law developed rapidly after Magna Carta and provided a great strength to the common law. In a relatively short time, this development yields the idea that individuals were protected by the law even against the sovereign. The law was superior to the whims, wishes, or even the considered decisions of that sovereign where there was a conflict between them.
Thus, in the Statutes of Westminister; the Second, *402 1285 A.D., in Article XXIV is found a provision that requires a “writ” to be made for plaintiffs case even though the standard forms available at the court clerk’s office did not provide a writ to cover the case. The statute said “a writ shall be made, lest it might happen hereafter that the court should long time fail to minister justice unto complainants.” And thus, it is found in Article XI of the Massachusetts Declaration of Rights of 1780:
“Every subject of the Commonwealth ought to find a certain remedy by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.” 1 Schwartz, The Bill of Rights, 342 (1971).
The extent of the court’s analysis is to cite an Oregon case involving negligent construction more than ten years before the injury, and to engage in a debate with the Supreme Court of New Hampshire which results in a distinction between what the court’s opinion sees as the powers of this court and the powers of that court. The depth and breadth of the analysis of the constitutional issue in this court’s opinion is (a) to cite one of this court’s decisions entered in 1971, which contains no analysis of the clause; (b) to distinguish a New Hampshire case holding to the contrary of this court’s opinion, on the basis that New Hampshire courts have greater power to declare a statute unconstitutional than does this court; and (c) to point out that the statute is labeled a “statute of repose” (by the current opinion of the court) rather than of “limitation.” In brief, the court disposes of the constitution by overruling its provisions through invoking the statute and its label. The court makes no mention of distinguishing the coverage of the constitutional guarantee from the coverage of the statute by interpreting the constitutional provision on the basis of its roots or its meaning.
While the New Hampshire case is the only other-state case mentioned in the court’s opinion, that decision is only one of many state-court decisions on point. Of the states that had considered a similar question bearing on their state constitutions, seven declared the statutes unconstitutional while six upheld the statutes. Note, Status and Trends in State Products Liability Law: Statutes of Limitation and Repose, 14 J Legis. 233, 238 n.38 (1987).
*403 A reader of the court opinion may gain the implication that where the cause of action involves liability for harm done by a product but where the duty owed to the injured person arose less that two years before the injury caused by the breach of that duty and where the complaint to recover was also within that two years, a statute of repose will nonetheless prevent any action or remedy in due course of law for the injury. 3 I do not join in any such implication. Nor do I join in discarding the protections of the remedy by due course of law clause without the court first providing an analysis of the nature of those protections.
In any case, the injury in this case occurred more than ten years later.
Index volume, Constitutions of the United States National and State (Columbia University Oceana. (1982)) lists 36 states with such constitutional provisions.
Examples may include: failure to recall a dangerous vehicle to correct the danger after having been ordered to do so by an appropriate governmental agency; or failure to take corrective action after learning that a contraceptive device causes spontaneous abortion, sterility or cancer.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9854114. Public record. Not legal advice.