Greist v. Phillips
| Decision Date | 24 November 1995 |
| Docket Number | L-1 |
| Citation | 322 Or. 281,906 P.2d 789 |
| Parties | Mary A. GREIST, as 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. CC 90-1879-; CA A76287; SC S41542. |
| Court | Oregon Supreme Court |
Ridgway K. Foley, Jr., of Foley & Duncan, P.C., Portland, and Hugh B. Collins, Medford, argued the cause, for petitioners on review. With them on the briefs was M. Elizabeth Duncan.
Kathryn H. Clarke, Portland, argued the cause, for respondent on review Mary A Greist. With her on the briefs were Maureen Leonard, Portland, and Robert A. Berst, Seattle, Washington.
Daniel L. Harris, of Davis, Gilstrap, Harris, Hearn & Welty, Ashland, appeared on behalf of respondent on review Elizabeth B. Tripp and joined in the brief on the merits of respondent on review Greist.
John T. Kaempf, Douglas G. Houser, and R. Lindahl, of Bullivant, Houser, Bailey, Pendergrass & Hoffman, P.C., Portland, filed a brief on behalf of amicus curiae Defense Research Institute.
Keith J. Bauer and Billy M. Sime, of Parks, Bauer, Sime & Winkler, Salem, filed a brief on behalf of amicus curiae Oregon Association of Hospitals and Health Systems.
Brent M. Crew and Thomas E. Cooney, of Cooney & Crew, P.C., Portland, filed a brief on behalf of amicus curiae Oregon Medical Association.
William L. Hallmark, of Hallmark, Keating & Abbott, P.C., Portland, filed a brief on behalf of amicus curiae Senco Products, Inc.
Robert Udziela and Kimberley Chaput, of Pozzi Wilson Atchison, Portland, filed a brief on behalf of amici curiae Oregon Trial Lawyers Association, Oregon Consumer League, and ARC of Multnomah County.
The questions presented on review in this wrongful death case are: (1) whether the trial court erred when it allowed the jury to consider defendant Phillips' violation of certain federal regulations as evidence of negligence; (2) whether the trial court properly interpreted ORS 18.560, 1 which limits to $500,000 the amount that may be recovered as noneconomic damages in this wrongful death action; and (3) whether the trial court properly determined that ORS 18.560, as applied to this statutory wrongful death proceeding, does not violate various provisions of the Oregon and federal constitutions. The Court of Appeals affirmed the trial court with respect to the evidentiary point, but reversed as to the constitutional point on the ground that ORS 18.560 violates Article VII (Amended), section 3, of the Oregon Constitution, not reaching the statutory construction issue. Greist v. Phillips, 128 Or.App. 390, 404, 875 P.2d 1199 (1994). In considering the meaning and constitutionality of ORS 18.560, we limit our analysis to the application of ORS 18.560 to a statutory claim for wrongful death and, for the following reasons, affirm the judgment of the trial court in its entirety.
Because this case comes to us after a trial at which the jury found in plaintiff's favor, we view all the evidence, and the inferences that reasonably may be drawn from it, in the light most favorable to plaintiff. See Wagner v. Kaiser Foundation Hospitals, 285 Or. 81, 83-84, 589 P.2d 1106 (1979) ( principle).
On June 14, 1989, plaintiff, her son and daughter, and Tripp (who was the son's aunt) were returning to Oregon from California on Interstate 5 in a Volkswagen van. At about 4:30 pm, the van was descending from the Siskiyou Pass. The descent from the pass is about a six percent downgrade for seven miles.
At the same time, a five-axle truck and trailer rig was also traveling north on I-5, coming down from the Siskiyou Pass. The truck's brakes were not functioning properly. The driver of the truck, Phillips, was aware that the truck's brakes were not functioning properly. Although the posted maximum safe speed at the outset of the downgrade was 18 miles per hour for a truck that weighed as much as the truck being driven by Phillips, Phillips was traveling at approximately 40 miles per hour when he began his descent from the Siskiyou Pass. The brakes did not operate adequately on the descent. About six miles below the summit, Phillips ran into the rear end of plaintiff's van. The van was propelled forward, and it overturned, skidding to a stop 595 feet from the point of impact. The decedent, who was almost 10 months old, was thrown from the van and was killed. After hitting the van, the truck was unable to stop for almost three miles.
Plaintiff, the personal representative of her son's estate, brought this action for the wrongful death of her son, pursuant to ORS 30.020. 2 She named as defendants Phillips and his employer, Lightning Transportation, Inc. Plaintiff sought compensation for the parents' loss of their child's society and companionship and for pecuniary loss to the decedent's estate. After a trial, the jury returned a verdict for plaintiff, awarding economic damages of $100,000 and noneconomic damages of $1.5 million. The trial court applied ORS 18.560 and entered a judgment for plaintiff that included economic damages of $100,000 and noneconomic damages of $500,000.
Plaintiff appealed, assigning as error the application of ORS 18.560 to reduce the award of noneconomic damages. The Court of Appeals reversed; it held that the statutory limit of $500,000 for noneconomic damages in civil actions violates Article VII (Amended), section 3, of the Oregon Constitution. 128 Or.App. at 404, 875 P.2d 1199. Defendants cross-appealed, assigning as error (as now pertinent) the trial court's refusal to withdraw from the jury two allegations of negligence that were based on federal regulations concerning the operation of commercial trucks. The Court of Appeals affirmed as to those assignments of error. Id. at 398-99, 875 P.2d 1199.
Defendants contend that the trial court erred by refusing to withdraw from the jury two allegations of negligence that were based on Phillips' violation of federal regulations. Federal regulations require every commercial truck to have an operative speedometer at all times. 49 C.F.R. 393.82. 3 Federal regulations also prohibit a truck driver from being on duty for more than 70 hours in any period of eight consecutive days. 49 C.F.R. 395.3. 4
From the evidence developed at trial, a reasonable juror could have inferred that the speedometer in the truck was not operative at the time of the accident. A reasonable juror also could have inferred that Phillips had driven the truck for more than 70 hours in eight consecutive days at the time of the accident. The Court of Appeals discussed at length the evidence supporting those inferences, 128 Or.App. at 398-99, 875 P.2d 1199, and the general principles applicable thereto, id. at 396-99, 875 P.2d 1199. It would not benefit bench or bar to repeat that discussion here. For the purpose of this case, it is enough to observe that, viewing the evidence and all inferences that reasonably may be drawn therefrom in the light most favorable to plaintiff, a reasonable juror could have found that Phillips' failure to meet those federal standards was a substantial contributing factor to the accident and the resultant injury to the decedent.
The trial court did not err when it allowed the jury to consider the allegations of negligence based on 70-hour and operative-speedometer rules. The Court of Appeals correctly affirmed the rulings of the trial court on those points.
The jury awarded plaintiff $1.5 million in noneconomic damages. The trial court applied ORS 18.560 and entered judgment for noneconomic damages of $500,000. Plaintiff mounts a variety of challenges to the application of ORS 18.560 in this case.
This court considers subconstitutional claims before considering constitutional ones. See Zockert v. Fanning, 310 Or. 514, 520, 800 P.2d 773 (1990) (). Plaintiff first argues that the trial court erred in holding that the claims of all individuals in an action to which ORS 18.560 applies are subject to a single-dollar limitation. Under plaintiff's statutory argument, the court should have entered judgment for noneconomic damages of $500,000 to each surviving parent, for a total award of $1 million in noneconomic damages. Defendants argue that the trial court correctly held that ORS 18.560 imposes a single limit on the noneconomic damage award in a wrongful death action relating to one decedent, regardless of the number of beneficiaries that there happen to be.
In construing statutes, our task is to discern the intent of the legislature. In doing so, the first level of analysis is to examine the text and context of the statute. If the legislature's intent is clear from those inquiries, further inquiry is unnecessary. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-11, 859 P.2d 1143 (1993).
ORS 18.560(1), quoted above at note 1, provides that, with certain exceptions not applicable here, "in any civil action seeking damages arising out of * * * death * * * of any one person * * * the amount awarded for noneconomic damages shall not exceed $500,000." That wording limits the "amount awarded for noneconomic damages" in any "civil action" arising out of the death "of any one person" to $500,000.
For the purpose of this case, we need to decide only how ORS 18.560(1) applies to a wrongful death claim. In that context, the application of ORS 18.560(1) is clear. This "civil action" seeks damages arising out of the death of "one person." ORS 18.560(1).
ORS 30.020(1), quoted above at note 2, provides, as relevant here, that the personal representative...
To continue reading
Request your trial
-
Wieber v. Fedex Ground Package System
...Trial by Jury shall remain inviolate." Lakin, 329 Or. at 82, 987 P.2d 463. On review, the defendant relied on dicta in Greist v. Phillips, 322 Or. 281, 906 P.2d 789 (1995), in support of its contention that former ORS 18.560(1) did not violate Article section 17. The portion of Greist on wh......
-
Smothers v. Gresham Transfer, Inc.
...can be recovered for an injury, so long as "the remedy is a substantial one." 308 Or. at 523,783 P.2d 506. See also Greist v. Phillips, 322 Or. 281, 290, 906 P.2d 789 (1995) (legislature entitled to amend amount of damages available in statutory wrongful death action without running afoul o......
-
Craftsman Builder's Supply, Inc. v. Butler Mfg. Co.
...& Co., 66 Ohio St.3d 59, 609 N.E.2d 140, 142 (1993), Hardy v. VerMeulen, 32 Ohio St.3d 45, 512 N.E.2d 626 (1987), Greist v. Phillips, 322 Or. 281, 906 P.2d 789 (1995), Kennedy v. Cumberland Engineering Co., 471 A.2d 195 (R.I.1984), Daugaard v. Baltic Cooperative Building Supply Ass'n, 349 N......
-
Clarke v. Ohsu
...421, 51 P.3d 599. Article I, section 10, cases outside of the OTCA context also provide guidance. For example, in Greist v. Phillips, 322 Or. 281, 291, 906 P.2d 789 (1995), this court held a statutory substitute remedy to be "substantial." In that case, the court reviewed the application of......