Howell v. Boyle

Decision Date14 March 2013
Docket Number(U.S. Court of Appeals for the Ninth Circuit 0936153,SC S059120).
PartiesJean Marie HOWELL, Plaintiff, v. Christopher David BOYLE and City of Beaverton, Defendants.
CourtOregon Supreme Court

OPINION TEXT STARTS HERE

Recognized as Unconstitutional

West's Or.Rev. Stat. Ann. § 18.560(1)Janet M. Schroer, Hoffman Hart & Wagner, LLP, Portland, argued the cause for defendants. With her on the opening and reply briefs was Marjorie A. Speirs.

Michael H. Bloom, Michael H. Bloom PC, Salem, argued the cause and filed the brief for plaintiff.

Erin C. Lagesen, Assistant Attorney General, John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General, Salem, filed a brief on behalf of amicus curiae State of Oregon.

Roy Pulvers, Hinshaw & Culbertson LLP, Portland, filed a brief on behalf of amicus curiae Oregon Health & Science University.

Harry Auerbach, Chief Deputy City Attorney, Portland, filed a brief on behalf of amicus curiae League of Oregon Cities.

Lisa T. Hunt and Kathryn H. Clarke, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.

Before BALMER, Chief Justice, KISTLER, WALTERS, LINDER, and LANDAU, Justices, and DURHAM and DE MUNIZ, Senior Judges, Justices Pro Tempore.*

LANDAU, J.

This case is before the court on certified questions of Oregon law from the United States Court of Appeals for the Ninth Circuit (Ninth Circuit). See generallyORS 28.200 to 28.255 (granting authority to answer certified questions and describing procedure). The questions arise out of an action for personal injury brought in federal district court against defendant Boyle and his employer, the City of Beaverton, for injuries that plaintiff suffered in an automobile collision with a police car that defendant Boyle drove. A jury found that plaintiff and Boyle were equally at fault and that plaintiff's damages totaled approximately $1 million. The trial court reduced the award by half, in accordance with the jury's findings of comparative fault. Defendants then moved to reduce the award further, to the $200,000 limit of the Oregon Tort Claims Act in existence at the time. The trial court denied the motion, concluding that the application of the statutory limitation would violate the remedy clause of Article I, section 10, of the Oregon Constitution.

Defendants appealed, and the Ninth Circuit certified the following questions to this court:

“1. Is [plaintiff's] negligence action constitutionally protected under the Oregon [C]onstitution's remedy clause, Or. Const. art. I, § 10, irrespective of the jury's finding of comparative negligence? To what extent, if any, do the common[-]law defenses to contributory negligence of last clear chance, the emergency doctrine, and gross negligence [a]ffect this determination?

“2. If [plaintiff's] action is protected, is $200,000 an unconstitutional emasculated remedy despite the jury's finding of comparative negligence? To what extent, if any, do the common[-]law defenses to contributory negligence of last clear chance, the emergency doctrine, and gross negligence [a]ffect this determination?”

We address the second question only, because its answer is dispositive. Even assuming for the sake of argument that, under the circumstances of this case, plaintiff's negligence action is constitutionally protected by Article I, section 10, the $200,000 limitation on her recovery is constitutionally permissible. Under this court's case law, the constitution requires that any remedy that remains after the imposition of a modern limitation on it be “substantial.” In this case, the $200,000 judgment that plaintiff received satisfies that constitutional requirement.

I. BACKGROUND

To provide context for the Ninth Circuit's questions and our answer, we begin with a more detailed description of the facts and the procedural history of the case. In 2007, defendant Boyle, a City of Beaverton police officer, drove a motor vehicle west on the Tualatin Valley Highway. He struck plaintiff as she attempted to cross the highway at an unmarked crosswalk. As a result of that incident, plaintiff suffered serious injuries leading to permanent disability and significant medical expenses. Plaintiff brought a diversity action in the United States District Court for the District of Oregon, naming as defendants both Boyle and his employer, the City of Beaverton. Plaintiff alleged $4,779,529.25 in economic damages and up to $1 million in noneconomic damages.

Defendants answered, alleging that, among other things, plaintiff's injuries were caused by her own negligence because she had been “darting” across an unsafe intersection late at night while wearing dark clothes. In addition, defendants alleged that plaintiff's claims are subject to the “conditions, limitations, procedures and immunities contained in the Oregon Tort Claims Act.” Specifically, defendants alleged that, because Boyle had acted within the course and scope of his employment, plaintiff could not maintain a claim against him and, under ORS 30.265(1),1 was required instead to substitute the City of Beaverton. They also alleged that, in any event, to the extent that they are found liable, such liability is limited by the version of the Oregon Tort Claims Act then in effect to a maximum of $200,000. ORS 30.270(1)(b) (2007).2

Defendants moved to dismiss Boyle from the case pursuant to ORS 30.265(1). Plaintiff opposed the motion on the ground that, under this court's decision in Clarke v. OHSU, 343 Or. 581, 175 P.3d 418 (2007), to preclude the action against Boyle would violate plaintiff's right to a remedy guaranteed by Article I, section 10, of the Oregon Constitution. The trial court agreed and denied defendants' motion.

The case was tried to a jury, which determined that plaintiff and Boyle each were 50 percent at fault. The jury further found that plaintiff had incurred $765,000 in economic damages and $250,000 in noneconomic damages, for a total of $1,015,000. In accordance with the jury's findings of comparative fault, the court reduced plaintiff's damages by 50 percent and entered judgment against defendants for $382,500 in economic damages and $125,000 in noneconomic damages, for a total of $507,500.

Defendants then moved to amend the judgment to reduce the amount of damages to the $200,000 statutory limit. Plaintiff opposed the motion on the ground that applying the Oregon Tort Claims Act limit to this case “emasculated” her common-law remedy against defendants in violation of the remedy clause of Article I, section 10, of the Oregon Constitution. The trial court agreed with plaintiff and denied defendants' motion.

Defendants appealed to the Ninth Circuit, contending that the trial court had erred in denying their motion to reduce the judgment to the limits provided in ORS 30.270(1)(b) (2007). They advanced two arguments in support of that contention. First, they argued that, under this court's decision in Lawson v. Hoke, 339 Or. 253, 119 P.3d 210 (2005), Article I, section 10, does not even apply because plaintiff—having been found 50 percent at fault—would not have been able to recover anything under common-law negligence as it existed at the time of the framing of the Oregon Constitution. According to defendants, under the law prevailing at that time, contributory negligence in any amount on the part of the plaintiff operated as a complete bar to recovery. Second, they argued that, even if Article I, section 10, otherwise applies, the $200,000 cap is a constitutionally adequate remedy under this court's recent precedents.

In response to defendants' first argument, plaintiff asserted that whether her fault would have precluded recovery under the law that existed at the time of the adoption of the state constitution is irrelevant. The sole and determinative issue, she argued, is whether she could have stated a claim for negligence, not whether the law at the time would have entitled her to a remedy. In the alternative, plaintiff argued that, even if it were appropriate to take into account defenses to a negligence action that would have applied in 1857, such as contributory negligence, the fact remains that the law recognized exceptions to that defense in cases of gross negligence, conditions of emergency, and circumstances in which the defendant had the “last clear chance” to avoid the injury. In response to defendants' second argument, plaintiff asserted that the limits established in ORS 30.270(1)(b) (2007) failed to provide a constitutionally adequate remedy because that statute indisputably prevented her from recovering the full amount of her damages.

Following the filing of the parties' briefing on the foregoing points, the Ninth Circuit entered an order certifying the two questions to which we have referred. This court accepted the certified questions and allowed further briefing. Before this court, the parties essentially reprise the arguments that they made to the Ninth Circuit.

II. ANALYSIS

Article I, section 10, of the Oregon Constitution provides, in part, that “every man shall have remedy by due course of law for injury done him in his person, property, or reputation.” The provision is commonly referred to as the state constitutional “remedy clause.” See, e.g., Juarez v. Windsor Rock Products, Inc., 341 Or. 160, 164, 144 P.3d 211 (2006) (referring to Article I, section 10, as containing a “remedy clause”).

A. Prior Case Law on the Constitutional Adequacy of a Remedy

This court has confronted constitutional challenges to various types of statutory remedy limitations in several previous cases, dating back at least to its 1901 decision in Mattson v. Astoria, 39 Or. 577, 65 P. 1066 (1901). In that case, the plaintiff initiated an action against the City of Astoria for injuries that were said to have been caused by the city's negligent maintenance of its public streets. The city invoked a provision of its charter, adopted pursuant to...

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