Neher v. Chartier

Decision Date03 November 1993
Citation124 Or.App. 220,862 P.2d 1307
PartiesGary NEHER, Personal Representative of the Estate of Julie Neher, Deceased, Appellant, v. Larry Lee CHARTIER and Tri-County Metropolitan Transportation District of Oregon, a municipal corporation, doing business under the assumed business name of Tri-Met, Respondents. A9112-08001; CA A75617.
CourtOregon Court of Appeals

Elden M. Rosenthal argued the cause for appellant. With him on the briefs were B. Carlton Grew and Rosenthal & Greene, P.C., Portland.

John R. Faust, Jr., argued the cause for respondents. With him on the brief was Schwabe, Williamson & Wyatt, Portland.

Before WARREN, P.J., and EDMONDS and LEESON, JJ.

WARREN, Presiding Judge.

Plaintiff appeals from a judgment dismissing his complaint for wrongful death. We affirm.

Plaintiff is the personal representative of the estate of his adult daughter, who was killed when she was crushed beneath a bus while crossing a street in the course of her employment. The bus was operated by defendant Tri-County Metropolitan Transportation District of Oregon (Tri-Met) and driven by defendant Chartier, Tri-Met's employee. Plaintiff claims that defendants were negligent in various particulars. He gave timely notice of the claim under the Oregon Tort Claims Act (OTCA). ORS 30.260 et seq. Defendants moved for judgment on the pleadings, ORCP 21 B, on the basis of immunity under ORS 30.265(3)(a), for claims covered by workers' compensation. The trial court granted the motion. 1 Plaintiff makes two assignments of error, both relating to the ruling on that motion.

This case involves the interaction of the wrongful death statute, the OTCA and the workers' compensation statutes. The wrongful death statute, ORS 30.020, allows the personal representative of the estate to maintain an action against an alleged tortfeasor, for the benefit of the decedent's legal heirs, if the decedent could have maintained an action had she lived. A claim against a governmental body such as Tri-Met is limited by ORS 30.265, which provides for immunity of the public body and its officers, employees and agents who are acting within the scope of their employment, for any claim for death of a person covered by any workers' compensation law. ORS 30.265(3)(a). Finally, under ORS 656.204, workers' compensation death benefits are limited to $3,000 for burial expenses if the decedent is an adult over 21 years old who has no spouse, children or other dependents. Defendants do not challenge plaintiff's assertion that, as a result of the interaction of those statutes, the total compensation for plaintiff's daughter's death is $3,000.

ORS 30.265 provides, in part:

"(3) Every public body and its officers, employees and agents acting within the scope of their employment or duties * * * are immune from liability for:

"(a) Any claim for injury to or death of any person covered by any workers' compensation law."

Plaintiff first argues that that statute violates Article I, section 10, of the Oregon Constitution, which provides that "every man shall have remedy by due course of law for injury done him in his person, property, or reputation." Plaintiff asserts that the immunity provided to public bodies and their employees by ORS 30.265(3)(a) denies him a remedy for decedent's death. He acknowledges the rule that the legislature may alter or abolish a cause of action,

"so long as the party injured is not left entirely without a remedy. Under those cases, the remedy need not be precisely of the same type or extent; it is enough that the remedy is a substantial one." Hale v. Port of Portland, 308 Or. 508, 523, 783 P.2d 506 (1989).

However, he relies primarily on the concurrence in Hale, in which Judge Linde said:

"[T]he court has allowed legislative immunization of cities from tort liability only on condition that the individuals who are personally responsible for harm qualifying as a legal injury remain liable. Batdorff v. Oregon City, 53 Or. 402, 100 P. 937 (1909); Mattson v. Astoria, 39 Or. 577, 65 P. 1066 (1901)." 308 Or. at 530, 783 P.2d 506.

Because, under the workers' compensation scheme, the only payment provided for the death of plaintiff's daughter is $3,000 burial expenses, ORS 656.204(1), plaintiff argues that the immunity granted by ORS 30.265(3)(a) essentially deprives him of any substantial remedy.

Defendants counter that the protection of Article I, section 10, applies only to rights established at common law, see Stewart v. Houk et al., 127 Or. 589, 271 P. 998, 272 P. 893 (1928), and that wrongful death is a statutory, not a common law, remedy. They argue that, because the right to recover for the death of another did not exist at common law when the Oregon Constitution was adopted, the legislature can limit or eliminate entirely the cause of action. Even applying the Hale substantial remedy standard, defendants argue that the workers' compensation system provides an alternative, albeit different, remedy for the death of plaintiff's decedent. Plaintiff replies first that Stewart is no longer authoritative, having been implicitly overruled by Perozzi v. Ganiere, 149 Or. 330, 40 P.2d 1009 (1935), and that, even if Article I, section 10, protects only rights recognized at common law in 1859, an action for wrongful death was one of those rights.

We need not decide whether Article I, section 10, applies only to protect rights that existed at common law at the time of the adoption of the Oregon Constitution or, if that is true, whether an action for wrongful death was recognized as a common law right. Even assuming that Article I, section 10, applies to plaintiff's claim, his argument fails. Under the analysis set out by the majority of the court in Hale, a legislative alteration of a cause of action is permissible, as long as the injured party is "not left entirely without a remedy. * * * [T]he remedy need not be precisely of the same type or extent; it is enough that the remedy is a substantial one." 308 Or. at 523, 783 P.2d 506. 2 We are not unaware of plaintiff's claim that $3,000 in burial costs is little remedy for the loss of his daughter's life. However, we cannot say that the substitution of that remedy under the workers' compensation system for any remedies he would otherwise have had against Tri-Met or its driver, is a complete denial of a substantial remedy. As the court said in Hale:

"This may not be what plaintiff wants. It may not even be what this court, if it were in the business of making substantive law on this subject, would choose to enact. But it is within the legislature's authority to enact in spite of the limitations of Oregon Constitution, Article I, section 10." 308 Or. at 523, 783 P.2d 506.

Plaintiff next argues that ORS 30.265(3)(a) violates Article I, section 20, by granting immunity to officers, employees and agents of public bodies. Section 20 provides:

"No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens."

Plaintiff makes two separate challenges under that section: that the statute unconstitutionally denies to nondependent parents the privilege of recovering for the wrongful death of a child killed by the employee of a public body, and that it unconstitutionally grants an immunity to a class of citizens, employees of public bodies, that is not equally available to all employees.

Defendants make three threshold arguments. They first assert that plaintiff's argument that employees of a public body constitute a class under Article I, section 20, was not made to the trial court and that, therefore, it was not preserved for appeal. Even assuming that the specific argument had to be raised, see State v. Hitz, 307 Or. 183, 766 P.2d 373 (1988), the argument was preserved. Plaintiff made the argument in his memorandum in response to Chartier's motion to dismiss. Although the trial court did not specifically rule on that motion, the argument was presented, and we will address it.

Second, they argue that the estate, of which plaintiff is the personal representative, is not a citizen entitled to invoke the protections of Article I, section 20. See Van Wormer v. City of Salem, 309 Or. 404, 408 n. 7, 788 P.2d 443 (1990). Finally, they argue that plaintiff cannot make out a constitutional violation, because he has not alleged that he has suffered harm because of the denial of a privilege or immunity that is granted to others.

We need not decide whether an estate may invoke the protection of Article I, section 20, or whether plaintiff needs to show harm from the denial to him of the privilege or immunity that he challenges, because, in any event, there is no Article I, section 20, violation by ORS 30.265(3)(a). Section 20 prohibits the government from providing special treatment to favored individuals or classes of citizens. Hale v. Port of Portland, supra, 308 Or. at 524-25, 783 P.2d 506. 3 That prohibition applies to invalidate the granting of a privilege or immunity to a class of citizens 4 only when the class is a "true class," i.e. one defined by characteristics apart from the law, not "by the challenged law itself." State v. Clark, supra n. 3, 291 Or. at 240, 630 P.2d 810.

Plaintiff argues that, as to the grant of the privilege of recovery of damages for wrongful death by a decedent's estate, the statute is constitutionally infirm because it treats parents of a decedent differently from other wrongful death plaintiffs. See Zockert v. Fanning, 310 Or. 514, 800 P.2d 773 (1990); Young v. Alongi, 123 Or.App. 74, 858 P.2d 1339 (1993); but see Norwest v. Presbyterian Intercommunity Hosp., supra n. 3. We disagree that the classification is based on parenthood. ORS 30.265(3)(a) does not treat parents differently from nonparents. It treats claims for injury or death caused by governmental bodies or their agents differently from claims for injury or...

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7 cases
  • Storm v. McClung
    • United States
    • Oregon Supreme Court
    • June 7, 2002
    ...to rights established at common law, * * * and that wrongful death is a statutory, not a common law, remedy." Neher v. Chartier, 124 Or.App. 220, 223, 862 P.2d 1307 (1993). Therefore, the defendants argued, the legislature could limit or even eliminate entirely the wrongful death cause of a......
  • Krushwitz v. McDonald's Restaurants of Oregon, Inc.
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    • Oregon Court of Appeals
    • January 31, 1995
    ...refer only to the latter.2 We do not imply that plaintiff's constitutional arguments might otherwise have merit. See Neher v. Chartier, 124 Or.App. 220, 862 P.2d 1307 (1993), rev'd on other grounds, 319 Or. 417, 879 P.2d 156 (1994). We also do not imply that plaintiff could necessarily reco......
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    • United States
    • Oregon Court of Appeals
    • February 23, 1994
    ...Article I, section 20, and whether, if it does, there is a rational basis for the classification. As we said in Neher v. Chartier, 124 Or.App. 220, 225 n. 3, 862 P.2d 1307 (1993), the analytical framework for an Article I, section 20, challenge to class legislation is far from clear. Howeve......
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    • United States
    • Oregon Supreme Court
    • August 4, 1994
    ...CONSTITUTION2. The Court of Appeals held that the statute violated neither provision of the Oregon Constitution. Neher v. Chartier, 124 Or.App. 220, 862 P.2d 1307 (1993). For the reasons that follow, we conclude that the tort immunity provided by ORS 30.265(3)(a) violates Article I, section......
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