Christensen v. Epley
| Decision Date | 23 October 1979 |
| Citation | 287 Or. 539,601 P.2d 1216 |
| Parties | Wendy CHRISTENSEN, Personal Representative of the Estate of John Paul Christensen, Deceased, Petitioner-Appellant, v. James B. EPLEY and Tim K. Waller, Respondents, Sherrie Murphy and Umatilla County, Petitioners-Respondents. TC 14561; CA 9092; SC 25898 and 25909. |
| Court | Oregon Supreme Court |
W. Eugene Hallman, Pendleton, argued the cause for petitioner/appellant. With him on the brief was Robert T. Mautz, Mautz & Hallman, Pendleton.
I. Franklin Hunsaker, III, Portland, argued the cause for petitioners/respondents. With him on the brief were R. R. Bullivant, Douglass M. Hamilton, Bullivant, Wright, Leedy, Johnson, Pendergrass & Hoffman, Portland, and Corey, Byler & Rew, Pendleton.
Before DENECKE, C. J., and HOLMAN, TONGUE, HOWELL, LINDE and PETERSON, JJ.
This is an action for wrongful death. It was filed by the personal representative of the estate of a police officer who was fatally stabbed by one Daryl Thompson in the course of Thompson's efforts to assist in the escape of a female inmate from a juvenile detention center in Pendleton.
Named as defendants in addition to Daryl Thompson were Sherrie Murphy, the matron on duty at the center on the night of the escape and an employee of Umatilla County, who allegedly permitted Thompson to enter it and visit the inmate; James Epley and Tim Waller, also county employees, who allegedly assigned Murphy to work alone as the matron on the night of the escape, and Umatilla County.
The complaint was filed on behalf of decedent's surviving widow, his five minor children, and his mother. The complaint alleged and prayed for damages in the sum of $300,000 against defendants Murphy, Waller, Epley and Umatilla County. The trial court, on motion by these defendants, struck the allegation of damages in that amount on the ground that it exceeded the statutory limit under the Oregon Tort Claims Act of $100,000, as provided by ORS 30.270(1)(b). The trial court also sustained defendants' demurrer to plaintiff's complaint. 1
The Court of Appeals, on appeal by plaintiff from the resulting judgment dismissing her complaint with prejudice, held that the trial court erred in sustaining defendants' demurrer, but also held that the trial court properly limited plaintiff's prayer for relief to $100,000. 36 Or.App. 535, 585 P.2d 416 (1978). Both parties filed petitions for review to this court. 2 Defendants' petition for review asks this court to reverse the holding by the Court of Appeals that the trial court erred in sustaining defendants' demurrer to plaintiff's complaint and that plaintiff is entitled to a trial under the allegations of her complaint. Plaintiff's petition for review asks this court to reverse the holding by the Court of Appeals that the trial court properly limited plaintiff's prayer for relief to $100,000.
This court is equally divided on the question whether the Court of Appeals was correct in its holding that the trial court erred in sustaining defendants' demurrer to plaintiff's complaint. Chief Justice Denecke, Justice Holman and Justice Peterson are of the opinion that the trial court did not err. Justice Tongue, Justice Howell and Justice Linde are of the contrary opinion. Justice Lent disqualified himself from participation in this case.
Because the court is equally divided upon this question a majority of the court is of the view that it would serve no useful purpose for the court, as a court, to issue any opinion on this question. It follows, however, that the decision by the Court of Appeals must be affirmed on this question, with the result that plaintiff is entitled to a trial under the allegations of her complaint.
This court is unanimous, however, in its holding that the Court of Appeals erred in its holding that the trial court properly limited plaintiff's prayer for relief to $100,000.
As previously stated, both the trial court and the Court of Appeals held that plaintiff's potential recovery of damages against Umatilla County and its employees, defendants Epley, Waller and Murphy, was limited to $100,000 by reason of provisions of the Oregon Tort Claims Act, ORS 30.270(1)(b).
ORS 30.270(1) provides:
Defendants contend that the trial court and Court of Appeals were correct in so holding for the following reasons:
The original Oregon Wrongful Death Act was enacted in 1862. See Deady, General Laws of Oregon 1845-1864, p. 241, § 367. The recovery under that first statute was for the benefit of the decedent's estate and the measure of damages, as held by this court in Carlson v. Oregon Short-Line Ry. Co., 21 Or. 450, 457-58, 28 P. 497 (1892), was:
" * * * the pecuniary loss suffered by the estate, without any Solatium for the grief and anguish of surviving relatives or pain and suffering of the deceased; and that loss is what the deceased would have probably earned by his intellectual or bodily labor in his business or profession during the residue of his life, and which, as representing his net savings, would have gone for the benefit of his estate * * *."
In Carlson, however, this court (at 458-459, 28 P. at 499) expressly distinguished between the Oregon statute and statutes as elsewhere adopted "modeled upon" the original Lord Campbell's Act, under which "the right of action is not given to the personal representative for the benefit of the estate, but for the benefit of certain persons named therein, and the personal representative is a mere nominal party, who sues for their benefit," saying:
and that:
" * * * The difference in the two classes of cases is between the damage done to the estate and the damage done to the designated persons. That to the estate is measured, as nearly as can be, by the value of the life lost, and that to the beneficiaries by the value of the life lost to them. * * * "
We might well agree with defendant that under the original Oregon Wrongful Death Act there was but "one claim to be pursued by one claimant," so as to limit recovery under the Oregon Tort Claims Act to $100,000 by reason of the provisions of ORS 30.270(1)(b). We do not agree, however, with defendants' contention that the "basic character of the action remained unchanged" despite subsequent amendments to the Oregon Wrongful Death Act, or with defendants' contention that the effect of those amendments was only to "expand" the "measure and allocation of recoverable wrongful death damages."
On the contrary, we believe that the effect of amendments to the Oregon Wrongful Death Act, particularly those adopted in 1973, has been to so change its basic provisions as to make the Oregon Act more similar to wrongful death acts of the type described in Carlson under which the right of action in a case such as this is not primarily for the benefit of the estate, but for the benefit of the spouse and children of the decedent as the "real parties in interest," with the personal representative as "a mere nominal party," who sues for their benefit for the recovery of "the value of the life lost to them."
Under the present Oregon Wrongful Death Act, after amendments in 1939 and 1967, 3 and more particularly in 1973, 4 recovery is now expressly provided for the benefit of the spouse, children and parents of the decedent, not only for Their pecuniary loss, but also for their loss of decedent's society, companionship and services, as well as for recovery to the estate of medical and funeral expenses, among other things. 5 Thus, as a result of these amendments, the present statute provides, in effect, for an action to be brought in the name of the personal representative of the estate to enforce the individual claims of the spouse and of each child for the pecuniary loss to each of them as a result of the death of the decedent and for the loss to each of them of the decedent's society, companionship and services.
This is consistent with the view as stated in 2 Speiser, Recovery for Wrongful Death 2d, 238-40, § 11:34 (1975) that:
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