Jensen v. Whitlow

• Decision Date: 08 August 2002
• Citation: 334 Ore 412,334 Or. 412,51 P.3d 599
• Parties: Tonenia JENSEN, as guardian for Vanessa Gurkin, a child, Plaintiff, v. Clifford WHITLOW, Cubazell O'Neill, Kathleen M. Powers, Ruth Marten, Mike Lutz, William Hedges, and Hedges & Mitchell, PC, an Oregon corporation, Defendants.
• Court: Oregon Supreme Court

51 P.3d 599

334 Or. 412

334 Ore 412

Tonenia JENSEN, as guardian for Vanessa Gurkin, a child, Plaintiff, v. Clifford WHITLOW, Cubazell O'Neill, Kathleen M. Powers, Ruth Marten, Mike Lutz, William Hedges, and Hedges & Mitchell, PC, an Oregon corporation, Defendants.

(USDC CV99-1679 BR; SC S48130).

Supreme Court of Oregon, En Banc.

Argued and Submitted September 11, 2001.

Decided August 8, 2002.

Kathryn Hall Clarke, Portland, argued the cause for plaintiff. Mark Morrell, Portland, filed the brief for plaintiff.

Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause for defendants. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Jonathan M. Radmacher, Portland, waived appearance for defendants Hedges, and Hedges & Mitchell, PC.

Maureen Leonard and Kathryn Hall Clarke, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.

Gerald H. Itkin, and Thomas Sponsler, County Attorney, Portland, filed a brief on behalf of amicus curiae Multnomah County.

William F. Gary, Jerome Lidz, James E. Mountain, Jr., and Harrang Long Gary Rudnick PC, Eugene, filed a brief on behalf of amicus curiae Oregon Health and Science University.

Harry Auerbach, Senior Deputy City Attorney, Portland City Attorney's Office, Portland, filed a brief on behalf of amicus curiae League of Oregon Cities.

DE MUNIZ, J.

This court accepted certification of the following questions from the United States District Court for the District of Oregon:

"1. Does the limitation of causes of action for a tort committed by an agent of a public body to a cause of action against only the public body violate Article I, section 10, of the Oregon Constitution?

"2. Does the limitation of causes of action for a tort committed by an agent of a public body to a cause of action against the public body violate Article I, section 17, of the Oregon Constitution?

"3. Does the limitation of causes of action for a tort committed by an agent of a public body to a cause of action against only the public body violate Article I, section 20, of the Oregon Constitution?"

See ORS 28.200 et seq. (describing certified question process); ORAP 12.20 (prescribing procedures for consideration of certified questions); see also Western Helicopter Services v. Rogerson Aircraft, 311 Or. 361, 811 P.2d 627 (1991) (discussing factors court considers in exercising discretion to accept certified questions).

As a preliminary matter, it is important to clarify the exact nature of the constitutional challenges presented in the certified questions. The United States District Court initially certified a single question to this court: "Does ORS 30.265(1), on its face or as applied, violate the terms of Article I, sections 10, 17, or 20, of the Oregon Constitution?" This court divided the district court's question into six separate questions—one "facial" challenge and one "as-applied" challenge for each constitutional provision. Having rephrased the questions as such, this court then declined to consider any of the questions framed as an "as-applied" challenge. We declined to consider the "as-applied" challenges because, in most cases, a record containing evidence of the nature of the injury sustained by a plaintiff and a jury's assessment of an appropriate damages award is a necessary prerequisite to this court's consideration of an "as-applied" challenge to a statute such as ORS 30.265(1). Because this case is in a very preliminary stage, that kind of record is not present. That said, we turn to the procedural history of this case in the United States District Court, and provide a brief historical overview of the Oregon Tort Claims Act, ORS 30.260 et seq.

I. PROCEDURAL HISTORY

Plaintiff filed a complaint in the United States District Court on behalf of her minor daughter, Gurkin. Plaintiff alleged that a male foster parent had abused Gurkin while she was in the custody of Children Services Division of the State of Oregon (CSD).¹ Plaintiff further alleged that individual agents and employees of CSD were negligent in placing Gurkin in that foster parent's home and, therefore, were responsible for the sexual abuse that the foster parent inflicted on Gurkin. The individually named defendants moved to strike and dismiss the claims against them and to substitute the state as the sole defendant in accordance with ORS 30.265(1).² While that motion was pending, plaintiff moved the district court to certify questions to this court.

II. OVERVIEW OF THE OREGON TORT CLAIMS ACT

In 1967, the legislature passed the Oregon Tort Claims Act (OTCA), which abrogated, in part, the state's sovereign immunity. See Or. Laws 1967, ch. 627 (first tort claims act in Oregon). Although the 1967 version of the OTCA limited the state's liability, it did not do so for officers, employees, or agents.

The legislature revised the OTCA in 1975, requiring, rather than permitting, a public body to indemnify its officers, employees, and agents against tort claims "arising out of an alleged act or omission occurring in the performance of duty." Smith v. Pernoll, 291 Or. 67, 71, 628 P.2d 729 (1981); Or. Laws 1975, ch. 609, § 16. Further, "[t]he monetary limitation of liability, which previously had applied only to public bodies, was extended to officers, employees, and agents of all public bodies." Id. at 71, 628 P.2d 729.

In 1977, the legislature again revised the OTCA, coordinating all references within the act and subjecting claims against officers, employees, and agents to the monetary limitations, the notice of claim requirements and the statutory exceptions to liability. Or. Laws 1977, ch. 823, §§ 2(3) and 3.

Finally, in 1991, the legislature amended the OTCA to eliminate any claim against any officer, employee, or agent for their work-related torts. In place of a claim against an individual, the legislature substituted a single claim against the public body, subject to its attendant damages limitation. ORS 30.265(1). The 1991 revisions frame the issues in this case.

III. DISCUSSION

As noted, each certified question pertains to a different constitutional provision. We begin our discussion with Article I, section 10.

A. Article I, Section 10

Article I, section 10, of the Oregon Constitution, includes a "remedy clause" that provides that "every man shall have remedy by due course of law for injury done him in his person, property, or reputation."³ In Smothers v. Gresham Transfer, Inc., 332 Or. 83, 23 P.3d 333 (2001), this court examined in detail the origins and meaning of that "remedy clause." The court concluded that, because Article I, section 10, guarantees a remedy for any "injury" to absolute commonlaw rights respecting person, property, or reputation, the legislature does not have plenary authority to extinguish a remedy for such injuries. Id. at 124, 23 P.3d 333. The legislature may abolish a "remedy" that existed at common law only if the legislature simultaneously provides a "constitutionally adequate substitute remedy." Id. at 124, 23 P.3d 333.

The conclusions about the remedy clause outlined in Smothers define the inquiry necessary to determine whether legislative action, in this case the enactment of ORS 30.265(1), violates that constitutional guarantee. In accordance with the analytical approach outlined in Smothers, our first step is to determine whether the injury that plaintiff has alleged is one for which the remedy clause guarantees a remedy. Smothers, 332 Or. at 124, 23 P.3d 333. If we answer that question affirmatively, and if the legislature has abolished that common-law claim, then our second step is to determine whether the legislature has provided a constitutionally adequate substitute remedy for that abolished common-law claim. Id.

The parties have not addressed the initial question whether plaintiff has alleged an "injury" for which the remedy clause guarantees a remedy. For that reason, and because the second step of the Smothers analytical framework is dispositive in this case, we assume without deciding that plaintiff's "injury" is one for which Article I, section 10, guarantees a "remedy." Further, we agree, as plaintiff asserts and the state does not dispute, that the effect of ORS 30.265(1) is to abolish any claim against individual officers, employees, or agents of a public body and to substitute the public body as the sole defendant. Therefore, in this case, we focus on whether plaintiff's right of action against the public body alone provides "a constitutionally adequate substitute remedy[.]" Smothers, 332 Or. at 124, 23 P.3d 333 (emphasis added). We turn to that inquiry.

Plaintiff and the state disagree about what constitutes a constitutionally adequate substitute remedy. Plaintiff contends that any substitute remedy must be a "substantial equivalent" of the remedy that has been abolished and that "capped" damages,⁴ where there was once the possibility of unlimited damages, is not a constitutionally adequate substitute remedy under Article I, section 10.

The state disagrees, contending that this court's decision in Hale v. Port of Portland, 308 Or. 508, 517-24, 783 P.2d 506 (1989), is "dispositive because it holds that the remedy provided by the OTCA satisfies Article I, section 10." Further, the state disputes plaintiff's assertion that a constitutionally adequate remedy is one that is "substantially equivalent." According to the state, a constitutionally adequate substitute remedy is one that is substantial, but need not be perfectly equivalent.⁵

This court's decision in Hale is not controlling here. In Hale, the plaintiff suffered severe personal injuries when the vehicle in which he was riding struck an obstacle embedded in a road. The plaintiff's medical bills alone reportedly exceeded $600,000. Through his guardian ad litem, the plaintiff filed an action against several defendants, including the Port of Portland (Port) and the City of Portland (City), to recover for those...