Juarez v. Windsor Rock Products, Inc.

• Decision Date: 14 July 2006
• Docket Number: (CC 03C15394; CA A123073; SC S52352).
• Citation: 144 P.3d 211
• Parties: Ronald JUAREZ, individually and as personal representative of the Estate of Felix Juarez, Dondi Juarez, individually; and Altagracia Renteiria, individually, Petitioners on Review, v. WINDSOR ROCK PRODUCTS, INC., an Oregon corporation, Respondent on Review.
• Court: Oregon Supreme Court

Page 211

144 P.3d 211

Ronald JUAREZ, individually and as personal representative of the Estate of Felix Juarez, Dondi Juarez, individually; and Altagracia Renteiria, individually, Petitioners on Review, v. WINDSOR ROCK PRODUCTS, INC., an Oregon corporation, Respondent on Review.

(CC 03C15394; CA A123073; SC S52352).

Supreme Court of Oregon, En Banc.

Argued and Submitted January 4, 2006.

Decided July 14, 2006.

On review from the Court of Appeals.^*

Meagan A. Flynn of Preston Bunnell & Flynn, LLP, Portland, argued the case and filed the briefs for petitioners on review.

Bruce H. Orr of Meyer & Wyse LLP, Portland, argued the cause and filed the briefs for respondent on review. With him on the briefs were James E. Bartels and Steven J. Kuhn.

Judy C. Lucas, Assistant Attorney General, Salem, filed a brief on behalf of amicus curiae State of Oregon. With her on the brief was Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Lindsey H. Hughes of Keating Jones Bildstein & Hughes, PC, Portland, and Janet M. Schroer of Hoffman Hart & Wagner, LLP, Portland, filed a brief on behalf of amicus curiae Oregon Association of Defense Counsel.

DURHAM, J.

The plaintiffs in this tort case ask this court to determine "[w]hether the negligent infliction of harm great enough to cause death is an injury for which the Oregon Constitution guarantees a remedy." In our view, the primary issue in this case is much narrower. We must decide whether these plaintiffs have alleged a claim that the remedy clause of Article I, section 10, of the Oregon Constitution, protects. For the reasons outlined below, we hold that the claim that plaintiffs have pleaded in their complaint is not such a claim.

Because the trial court granted defendant's motion to dismiss under ORCP 21 A, we assume the truth of all well-pleaded facts alleged in the complaint. Kilminster v. Day Management Corp., 323 Or. 618, 621, 919 P.2d 474 (1996). According to the complaint, Felix Juarez (decedent) was an employee at Windsor Island Mine, a company owned and operated by Windsor Rock Products, Inc. On or about June 30, 2000, while at work, a backhoe bucket struck decedent, and he died as a result of his injuries. Decedent's adult children, Ronald Juarez and Dondi Juarez, and his mother, Altagracia Renteiria, filed this action in June 2003 alleging that they had "suffered a loss of society, companionship, guidance, emotional support, services and financial assistance," due to the negligently inflicted wrongful death of Felix Juarez. They also alleged that decedent had lost earnings as a result of the accident. Defendant Windsor Rock Products, Inc., moved to dismiss the complaint under ORCP 21 A for lack of jurisdiction over the subject matter and for failure to state ultimate facts sufficient to constitute a claim. The trial court granted defendant's motion and entered a judgment of dismissal on October 21, 2003. Plaintiffs appealed, and the Court of Appeals affirmed in a one sentence per curiam opinion, citing Kilminster, 323 Or. 618, 919 P.2d 474. Juarez v. Windsor Rock Products, Inc., 197 Or.App. 622, 106 P.3d 180 (2005). We allowed plaintiffs' petition for review, and now, for the reasons stated below, affirm the decision of the Court of Appeals.

Because decedent's death occurred as a result of a workplace injury, Oregon's workers' compensation scheme limits plaintiffs' recovery to that available pursuant to that scheme. ORS 656.018 provides, in part:

"The liability of every employer who satisfies the duty required by ORS 656.017(1) is exclusive and in place of all other liability arising out of injuries, diseases, symptom complexes or similar conditions arising out of and in the course of employment that are sustained by subject workers, the workers' beneficiaries and anyone otherwise entitled to recover damages from the employer on account of such conditions or claims resulting therefrom[.]"¹

ORS 656.018(1)(a) (emphasis added). Plaintiffs concede that defendant is an employer that has satisfied the duty that ORS 656.017(1) imposes. Under the workers' compensation statutes, therefore, the only recovery available here is a burial benefit provided to decedent's estate. See ORS 656.204 (outlining benefits when death results from an accidental work injury). Decedent's mother and adult children are not entitled to any recovery under those statutes.

Plaintiffs argue, however, that ORS 656.018(1)(a), as applied to them, violates the remedy clause of Article I, section 10. Article I, section 10, provides:

"No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation."

(Emphasis added.) Plaintiffs contend that that section of the Oregon Constitution guarantees a remedy for families of workers killed as a result of an employer's negligence. Plaintiffs assert that ORS 656.018, because it deprives plaintiffs of recovery on their common-law negligent wrongful death claim, violates Article I, section 10.²

In Smothers v. Gresham Transfer, Inc., 332 Or. 83, 123-24, 23 P.3d 333 (2001), this court established the methodology for analyzing a claim under Article I, section 10. Under that methodology, we first examine whether plaintiff has alleged an injury to one of the rights protected by Article I, section 10. Id. at 124, 23 P.3d 333. According to Smothers,

"[i]f the answer to that question is yes, and if the legislature has abolished the common-law cause of action for injury to rights that are protected by the remedy clause, then the second question is whether it has provided a constitutionally adequate substitute remedy for the common-law cause of action for that injury."

Id.

In addressing the first question in the Smothers analysis, our initial task is to identify the relevant circumstances of the alleged injury. Lawson v. Hoke, 339 Or. 253, 259, 119 P.3d 210 (2005). Here, the pertinent circumstances are that decedent was killed as a result of the alleged negligence of his employer and that the plaintiffs who allege injury stemming from decedent's death are his mother and adult children. Plaintiffs do not allege that they were dependent on decedent for financial support. Instead, the complaint alleges economic injury in terms of a loss of "services and financial assistance." The pertinent inquiry, therefore, is: Does the remedy clause protect a claim for "loss of society, companionship, guidance, emotional support, services and financial assistance," brought by a parent and adult children of a person who was killed allegedly as the result of the negligence of his employer? For the following reasons, we conclude that it does not.

The briefs of the parties and of the State of Oregon and Oregon Association of Defense Counsel, amici curiae, focus on whether a cause of action for death by wrongful act was cognizable at common law when the Oregon Constitution was drafted in 1857, as Smothers instructs. See Smothers, 332 Or. at 118, 23 P.3d 333 (stating that the remedy clause protects common-law rights respecting person, property, and reputation, as those rights existed in 1857). Defendant and amici curiae point out that our prior cases have stated generally, without extensive analysis, that wrongful death was not a cause of action recognized at common law. See, e.g., Storm v. McClung, 334 Or. 210, 222 n. 4, 47 P.3d. 476 (2002) ("Since at least 1891, this court has adhered to the view that no right of action for wrongful death existed at common law."); see also Putman v. Southern Pacific Co., 21 Or. 230, 231-32, 27 P. 1033 (1891) ("At common law, no action could be maintained for the death of a human being caused by the wrongful act of another."). In Kilminster, 323 Or. 618, 919 P.2d 474, this court considered an issue nearly identical to that presented here. In Kilminster, the individual plaintiffs were the parents of a worker killed in the course and scope of his employment with the defendant. Id. at 621, 919 P.2d 474. The plaintiffs sued the defendant under ORS 30.020, Oregon's wrongful death statute. Id. at 622, 919 P.2d 474. The trial court granted the defendant's motion to dismiss pursuant to ORCP 21 A(8). Id. at 622, 919 P.2d 474. The trial court further ruled that ORS 656.018 provided the exclusive remedy for the plaintiffs for a work-related death claim. Id. Before this court, the plaintiffs argued that the application of ORS 656.018 to preclude their wrongful death action violated Article I, section 10, because "`it takes away the parents' claim for the wrongful death of their son.'" Id. at 625, 919 P.2d 474 (emphasis added by court). This court rejected that argument:

"Because the legislature has chosen not to provide decedent's parents with a wrongful death action based on a theory of negligence, and because Oregon has no common law action for wrongful death, they have suffered no legally cognizable injury to their person, property, or reputation."

Id. at 627, 919 P.2d 474 (emphasis added; internal citation omitted).

Plaintiffs contend that Kilminster and our other previous cases stating that no common-law cause of action for wrongful death existed were incorrect because they stem from an ill-advised nineteenth century English decision, Baker v. Bolton, 170 Eng. Rep. 1033, 1 Campb. 493 (Nisi Prius 1808). In Baker, a husband sued on the death of his wife following a stagecoach accident. Id. In his brief opinion, Lord Ellenborough stated:

"[T]he jury could only take into consideration the bruises which the plaintiff had himself sustained, and the loss of his wife's society, and the distress of mind he had suffered on her account, from the time of the accident till the moment of her dissolution. In a civil Court, the death of a human being could not be complained of as an injury; and in this case the damages, as to the plaintiff's wife, must stop with the period of...