Lakin v. Senco Products, Inc.

Decision Date15 July 1999
Citation329 Ore. 62,987 P.2d 463,329 Or. 62
PartiesJohn LAKIN and Ann Marie Lakin, husband and wife, Respondents on Review, v. SENCO PRODUCTS, INC., an Ohio corporation, Petitioner on Review, and Western Supply Corporation, an Oregon Corporation, dba Western Tool Supply, Defendant.
CourtOregon Supreme Court

Ridgway K. Foley, Jr., of Green & Markley, P.C., Portland, argued the cause for petitioner on review. With him on the briefs was M. Elizabeth Duncan.

Kathryn H. Clarke, Portland, argued the cause for respondents on review. With her on the briefs was Maureen Leonard, Portland.

Mark A. Bonanno and Thomas E. Cooney, of Cooney & Crew, P.C., Portland, filed a brief on behalf of amicus curiae Oregon Medical Association.

Jeffrey M. Batchelor, of Lane Powell Spears Lubersky LLP, Portland, filed briefs on behalf of amicus curiae Oregon Association of Defense Counsel.

Thomas W. Brown, of Cosgrave, Vergeer & Kester, LLP, Portland, Steven J. Goode, Austin, Texas, William Powers, Jr., Austin, Texas, and Hugh F. Young, Jr., of the Product Liability Advisory Council, Inc., Reston, Virginia, filed a brief on behalf of amicus curiae Product Liability Advisory Council, Inc.

Thomas M. Christ, of Mitchell, Lang & Smith, Portland, filed a brief on behalf of amicus curiae Mutual of Enumclaw Insurance Company.

Jonathan M. Hoffman, of Martin, Bischoff, Templeton, Langslet & Hoffman, Portland, filed a brief on behalf of amici curiae Toyota Motor Corporation, Toyota Motor Sales U.S.A., Inc., and Broadway Toyota, Inc.

Daniel J. Popeo and David M. Young, of Washington Legal Foundation, Washington, D.C., and R. Daniel Lindahl, of Bullivant Houser Bailey Pendergrass & Hoffman, P.C., Portland, filed a brief on behalf of amici curiae Washington Legal Foundation and Allied Educational Foundation.

Charles S. Tauman, Portland, filed a brief on behalf of amici curiae Oregon State Council of Senior Citizens, United Seniors of Oregon, Salem Gray Panthers, Portland Gray Panthers, Oregon Consumer League, Consumer Justice Alliance, Oregon Action, Oregon Advocacy Center, Oregon State Public Interest Research, Oregon Law Center, and Brain Injury Support Group of Oregon.

Robert K. Udziela, of Pozzi Wilson Atchison, LLP, Portland, David F. Sugerman, of Paul & Sugerman, P.C., and Douglas G. Schaller, of Johnson, Clifton, Larson, & Corson P.C., filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.

Arthur C. Johnson, Eugene, filed a brief on behalf of amicus curiae Association of Trial Lawyers of America.

Before CARSON, Chief Justice, and GILLETTE, VAN HOOMISSEN, DURHAM, and KULONGOSKI, Justices.1


John Lakin and Ann Marie Lakin, (plaintiffs), brought an action at law against defendant Senco Products, Inc., (Senco) seeking economic, noneconomic, and punitive damages for personal injury and loss of consortium arising out of allegations of negligent failure to warn and strict products liability in the design and manufacture of the SN325 pneumatic nail gun. In its answer, Senco alleged, inter alia, that ORS 18.560(1)2 limited any noneconomic damage award to $500,000. The jury returned a special verdict finding Senco liable both in strict liability and in negligence, and fixing John Lakin's comparative fault at five percent. The jury awarded John Lakin $3,323,413 in economic damages and $2,000,000 in noneconomic damages, and awarded Ann Marie Lakin $876,000 in noneconomic damages for loss of consortium. The jury also found that Senco had acted with "wanton disregard for the health, safety and welfare of others" in causing plaintiffs' injuries, and awarded $4,000,000 in punitive damages. The trial court applied ORS 18.560(1) and entered judgment for each plaintiff for $500,000 in noneconomic damages, reduced by the jury's finding that John Lakin had contributed five percent to his injuries. Plaintiffs and Senco both appealed.

On Senco's appeal, the Court of Appeals affirmed. On plaintiffs' cross-appeal, the court affirmed in part and reversed in part. Adhering to its earlier holding in Tenold v. Weyerhaeuser, 127 Or.App. 511, 873 P.2d 413 (1994), rev. dismissed 321 Or. 561, 901 P.2d 859 (1995), the court held that ORS 18.560(1) violates Article VII (Amended), section 3, of the Oregon Constitution,3 by mandating an unconstitutional "re-examination" of a fact tried by a jury. Lakin v. Senco Products, Inc., 144 Or.App. 52, 925 P.2d 107 (1996). We allowed Senco's petition for review. The primary issue on review is the constitutionality of ORS 18.560(1). For the reasons that follow, we hold that ORS 18.560(1) violates Article I, section 17, of the Oregon Constitution.4 We affirm the Court of Appeals' decision.

We summarize the facts from the Court of Appeals' opinion. Defendant Senco manufactures and markets pneumatic nail guns, including the SN325, which discharges 3.25 inch nails. In 1990, plaintiff John Lakin used an SN325 gun to place a single nail into a piece of wood. Standing on his toes on a makeshift sawhorse platform, Lakin raised the wood and the SN325 over his head, pressed the firing end of the SN325 against the wood, and activated the trigger. Instead of discharging only a single nail, the SN325 immediately thereafter discharged a second nail, which struck part of the first nail, causing the firing end of the SN325 to recoil into Lakin's face. The SN325 then discharged a third nail, which penetrated Lakin's brain. As a result of his injuries, parts of Lakin's brain had to be surgically removed. He now suffers from diminished mental and emotional capacities, his left arm and leg are paralyzed, he has undergone a radical personality change, and he cannot live independently. As noted, the jury awarded both plaintiffs noneconomic damages in excess of the limits provided by ORS 18.560(1). The trial court reduced the jury's awards according to a formula that the trial court thought to be required by that statute.

As pertinent on appeal, Senco challenged the trial court's evidentiary rulings, its jury instructions, and its denial of a directed verdict, all of which pertained to Senco's compensatory liability. Senco also challenged the trial court's rulings pertaining to punitive damages. Senco renews those arguments on review. Plaintiffs' cross-appeal contended that ORS 18.560(1) violates several provisions of the Oregon and United States constitutions. On Senco's appeal, the Court of Appeals affirmed; on plaintiffs' cross-appeal, the court reversed and remanded for entry of a judgment modifying John Lakin's recovery of noneconomic damages and Ann Marie Lakin's recovery for loss of consortium, and otherwise affirmed. We allowed Senco's petition for review primarily to consider the constitutionally of ORS 18.560(1), which caps noneconomic damages in this case.


In addressing the constitutionality of ORS 18.560(1) under the Oregon Constitution, this court's concern is whether the legislature had the power to enact that statute. Although, as noted, the Court of Appeals decided this issue on the basis of Article VII (Amended), section 3, of the Oregon Constitution, we believe that the answer to whether the challenged statute violates the right to jury trial expressed in Article I, section 17, of the Oregon Constitution, is dispositive.

In analyzing the meaning of a provision of the Oregon Constitution, this court looks to the specific wording of the provision, the case law surrounding it, and the historical circumstances that led to its enactment. Priest v. Pearce, 314 Or. 411, 415-16, 840 P.2d 65 (1992). We begin with the text of Article I, section 17. Text

Article I, section 17, provides:

"In all civil cases the right of Trial by Jury shall remain inviolate."

No party questions that this is a civil case or that plaintiffs had a right to a jury trial for their claims. No party argues that "inviolate" has a different meaning today that it did when Article I, section 17, was adopted in 1857 as part of the original Oregon Constitution. In 1828, the word "inviolate" meant "unhurt; uninjured; unprofaned, unpolluted; unbroken." Noah Webster, American Dictionary of the English Language, Vol. 1, p. 113 (1828). Although it post-dates adoption of Article I, section 17, in 1889 "inviolate" meant "not violated; free from violation or hurt of any kind; secure against violation or impairment." The Century Dictionary, Vol. III, p. 3174 (1889). Thus, for purposes of this case, whatever the right to a jury trial in a civil case meant in 1857, it has the same meaning today. The plain wording of Article I, section 17, does not answer the question whether the right to a jury trial then meant, and, therefore, now means, that the legislature may not adopt a statute imposing a cap on the amount of noneconomic damages recoverable in a civil case. We proceed to examine Oregon cases that have construed Article I, section 17.

Case Law

In Molodyh v. Truck Insurance Exchange, 304 Or. 290, 295, 744 P.2d 992 (1987), this court stated that Article I, section 17, guarantees a jury trial "in those classes of cases in which the right was customary at the time the [Oregon] constitution was adopted or in cases of like nature." The court further stated that the right to jury trial under Article I, section 17,

"includes having a jury determine all issues of fact, not just those issues that remain after the legislature has narrowed the claims process."

Id. at 297-98, 744 P.2d 992. See also State v. 1920 Studebaker Touring Car, 120 Or. 254, 259, 251 P. 701 (1926) ("The right of trial by jury guaranteed by the Constitution of this state, embraces every case where it existed before the adoption of the Constitution, and it is not within the power of the legislature to enact any law which deprives any litigant of that right."); Tribou v. Strowbridge, 7 Or 156, 159 (1879) (Article I, section 17, "indicates...

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