Hale v. Port of Portland

• Decision Date: 11 January 1990
• Citation: 308 Or. 508,783 P.2d 506
• Parties: Brook Alexander HALE, by Alex Hale, his Guardian Ad Litem, Petitioner on Review, v. PORT OF PORTLAND, a municipal corporation; City of Portland, a municipal corporation, Respondents on Review, County of Multnomah, a political subdivision of the State of Oregon; Columbia Grain, Inc., an Oregon corporation; Stillman O. Daniels and Martha J. Daniels, husband and wife; Dennis Seiders and Glenda Seiders dba Curtis Farms Trucking; and Robert Hoiberg, Defendants. TC A8104-02187; CA A35081; SC S35062.
• Court: Oregon Supreme Court

Page 506

783 P.2d 506

308 Or. 508

Brook Alexander HALE, by Alex Hale, his Guardian Ad Litem Petitioner on Review, v. PORT OF PORTLAND, a municipal corporation; City of Portland, a municipal corporation, Respondents on Review County of Multnomah, a political subdivision of the State of Oregon; Columbia Grain, Inc., an Oregon corporation Stillman O. Daniels and Martha J. Daniels, husband and wife Dennis Seiders and Glenda Seiders dba Curtis Farms Trucking; and Robert Hoiberg, Defendants.

TC A8104-02187; CA A35081; SC S35062.

Supreme Court of Oregon.

Argued and Submitted Sept. 7, 1988.

Decided Nov. 30, 1989.

Reconsideration Denied Jan. 11, 1990.

Frank M. Parisi, Portland, argued the cause on behalf of petitioner on review. With him on the petition were Robin B. Parisi, Spears, Lubersky, Bledsoe, Anderson, Young & Hilliard, and Barrie J. Herbold, Markowitz & Herbold, P.C., Portland.

William P. Buren, Portland, argued the cause on behalf of respondent on review Port of Portland. With him on the response was Lindsay, Hart, Neil & Weigler, Portland.

Ridgway K. Foley, Jr., Portland, filed a response on behalf of respondent on review City of Portland. With him on the response was Schwabe, Williamson & Wyatt, Portland.

Arthur C. Johnson, Eugene, filed a brief on behalf of amicus curiae Johnson, Clifton, Larson & Bolin, P.C. With him on the brief were Michael V. Phillips and Douglas G. Schaller, Eugene.

David Gernant, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Ass'n.

James N. Westwood, Portland, filed a brief on behalf of amicus curiae Oregon Ass'n of Defense Counsel. With him on the brief were William H. Walters and Miller, Nash, Wiener, Hager & Carlsen, Portland.

Jerome Lidz, Asst. Atty. Gen., Salem, filed a brief on behalf of amicus curiae State of Oregon. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Michael E. Judd, Chief Asst. County Counsel, Clackamas County Counsel, Oregon City, filed a brief on behalf of amici curiae Ass'n of Oregon Counties and Oregon School Boards Ass'n. With him on the brief were Edward C. Harms, Jr., Springfield, and Paul Snider, Legal Counsel, Ass'n of Oregon Counties, Salem.

Timothy Sercombe, Eugene, filed a brief on behalf of amicus curiae League of Oregon Cities. With him on the brief was Harrang, Long, Watkinson & Arnold, P.C., Eugene.

Before PETERSON, C.J., and LINDE, CAMPBELL, ^* CARSON, JONES and GILLETTE, JJ.

GILLETTE, Justice.

The issue in this case is whether the damage limitations in the Oregon Tort Claims Act (OTCA) ¹ are constitutional as applied to cities and port districts. The Court of Appeals upheld the limitations. Hale v. Port of Portland, 89 Or.App. 209, 748 P.2d 161 (1988). We affirm.

Plaintiff suffered severe injuries in a November 3, 1980, accident occurring when the vehicle in which he was riding collided with an obstacle embedded in a road. Plaintiff's medical bills alone reportedly exceed $600,000. Through his guardian ad litem, he filed this action against several defendants, including two municipal corporations, the City of Portland (the City) and the Port of Portland (the Port). He charged that the City and the Port were responsible for maintaining the road and were negligent in several respects with respect to the obstacle. The circuit court granted motions by the Port and the City to strike plaintiff's claim for damages in excess of the $100,000 damage limitation in ORS 30.270(1)(b). The City and the Port then each confessed judgment for $100,000. Plaintiff appealed, and the Court of Appeals affirmed. We allowed review to address the important issues involved.

The City and the Port are each "public bodies" subject to ORS 30.265(1), which provides:

"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) limits the potential liability of public bodies as follows:

"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.

"(b) $100,000 to any claimant for all other claims arising out of single accident or occurrence.

"(c) $300,000 for any number of claims arising out of a single accident or occurrence."

The trial court applied ORS 30.270(1)(b) in limiting the liability of the City and the Port. Plaintiff challenges the constitutionality of that statute.

Absent a constitutional provision to the contrary, the legislature has plenary lawmaking authority, including the authority to immunize partially public bodies like the City and the Port. See, e.g., Brown v. Multnomah County Dist. Ct., 280 Or. 95, 100, 570 P.2d 52 (1977); Deras v. Myers, 272 Or. 47, 52 n. 3, 535 P.2d 541 (1975); see also Linde, Without "Due Process": Unconstitutional Law in Oregon, 49 Or L Rev 125, 147 (1970). Plaintiff argues, however, that the OTCA damage limitations are contrary to three provisions of the Oregon Constitution. Plaintiff first claims that Article IV, section 24, of the Oregon Constitution requires complete waiver of immunity to suit for the state or any other public body, to the extent that public body partakes of the state's sovereign immunity. Plaintiff further argues that, in any event, the damage limitations violate Article 1, sections 10 and 20, of the Oregon Constitution. Plaintiff also claims that the damage limitations violate his rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. We begin by examining the argument under Article IV, section 24, because, if plaintiff's interpretation of that section were correct, i.e., if the section required the legislature to waive the immunity in its entirety for the state and any other public bodies, we would not need to proceed further. ²

I. ARTICLE IV, SECTION 24

Article IV, section 24, of the Oregon Constitution provides:

"Provision may be made by general law, for bringing suit against the State, as to all liabilities originating after, or existing at the time of the adoption of this Constitution; but no special act authorizeing [sic] such suit to be brought, or making compensation to any person claiming damages against the State, shall ever be passed."

Plaintiff treats this constitutional text as applicable to both his claim against the Port and against the City. As we shall demonstrate later, the actual basis for the City's immunity (if any) derives only in part from that of the sovereign. However, this distinction is not important to this portion of the discussion.

Textually, Article IV, section 24, is permissive, not mandatory. Use of the word "may" indicates only that the legislature has the authority to waive immunity, not an obligation to do so. In his petition for review, plaintiff nonetheless argues that, rather than granting constitutional status to sovereign immunity, Article IV, section 24, requires its waiver. Because of the imprecision as to this point in some of this court's prior cases, we will begin by explaining the basis for sovereign immunity in Oregon. We will then determine the effect of Article IV, section 24.

Sovereign immunity originated in the rule that the English King could not be sued in his own courts. See 1 Pollock & Maitland, History of English Law 518 (2d ed 1898); see also Nevada v. Hall, 440 U.S. 410, 414, 99 S.Ct. 1182, 1185, 59 L.Ed.2d 416 (1979) ("The immunity of a truly independent sovereign from suit in its own courts has been enjoyed as a matter of absolute right for centuries"); see generally Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 HarvLRev 1 (1963) (discussing the evolution of sovereign immunity in England and the United States). Although arguably not justified in a democracy, ³ the sovereign immunity of the American states was universally accepted. See Noonan v. City of Portland, 161 Or. 213, 220, 88 P.2d 808 (1939); see also Nevada v. Hall, supra, 440 U.S. at 415-16, 99 S.Ct. at 1185-86.

The Oregon Territory adopted the English common law in two acts. The first, enacted in 1843, provided:

"The laws of the Iowa territory shall be the law of this territory, in civil, military, and criminal cases; where not otherwise provided for, and where no statute of Iowa territory applies, the principles of common law and equity shall govern."

Act of July 5, 1843, reprinted in Harris, History of the Oregon Code, 1 OrLRev 129, 135 (1922). The second, enacted in 1844, provided:

"[T]he common law of England and principles of equity, not modified by the statutes of Iowa or of this government, and not incompatible with its principles, shall constitute a part of the law of this land."

Act of June 27, 1844, OrL 1843-49 at 98, 100, art III, § 1. Neither Iowa nor Oregon had modified common-law sovereign immunity in 1844. Cf. Metz v. Soule, Kretsinger & Co., 40 Iowa 236, 239-40 (1875) (using doctrines of sovereign immunity as applied in England, without modification). Between 1844 and 1859, the Oregon Territory apparently did not modify the common law rule. Thus, sovereign immunity was a part of this state's law at the time of statehood. ⁴

Statehood did not change the law. Article XVIII, section 7, of the Oregon Constitution, adopted in 1859, provides:

"All laws in force in the Territory of Oregon when this constitution takes effect, and consistent therewith, shall continue in force until altered or repealed."

The effect of this provision was to incorporate the territory's pre-existing law which, as we have shown, incorporated the English...