Ortega v. Martin

• Decision Date: 01 August 2018
• Docket Number: A159190
• Citation: 293 Or.App. 180,427 P.3d 1103
• Parties: Cole A. ORTEGA, Plaintiff-Respondent Cross-Appellant, v. Darrell D. MARTIN, Defendant, and State of Oregon, Defendant-Appellant Cross-Respondent.
• Court: Oregon Court of Appeals

293 Or.App. 180
427 P.3d 1103

Cole A. ORTEGA, Plaintiff-Respondent Cross-Appellant,
v.
Darrell D. MARTIN, Defendant,
and
State of Oregon, Defendant-Appellant Cross-Respondent.

A159190

Court of Appeals of Oregon.

Argued and submitted October 11, 2016.
August 1, 2018

Peenesh Shah, Assistant Attorney General, argued the cause for appellant-cross-respondent. On the opening brief were Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Denise G. Fjordbeck, Assistant Attorney General. Also on the reply-cross answering brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Denise G. Fjordbeck, Assistant Attorney General.

Helen C. Tompkins, Lake Oswego, argued the cause and filed the briefs for respondent-cross-appellant.

Kathryn H. Clarke filed the brief amicus curiae for Oregon Trial Lawyers Association.

Before DeHoog, Presiding Judge, and Lagesen, Judge, and Aoyagi, Judge.^*

LAGESEN, J.

427 P.3d 1106

293 Or.App. 182

While surfing in Pacific City, plaintiff collided with a dory boat, sustaining severe injuries. He sued the state, alleging that it had been negligent in failing to provide adequate warnings of the risk posed by dory boats to surfers. After the trial court rejected the state's immunity defenses, a jury returned a verdict for plaintiff, to which the trial court applied the then-applicable $1.5 million statutory damages cap contained in ORS 30.271(2)(a).

Both parties have appealed. The state contends that the trial court erred in (1) concluding that it was not entitled to recreational immunity under ORS 105.682 and (2) denying its motion for a directed verdict on the ground of discretionary immunity, ORS 30.265(6)(c). Plaintiff asserts that the application of the statutory $1.5 million cap applicable to damages awards against the state, ORS 30.271(2)(a), violates plaintiff's state constitutional rights to a remedy under Article I, section 10, of the Oregon Constitution and to a jury trial under Article I, section 17, of the Oregon Constitution. We conclude that (1) the trial court correctly ruled that the state was not entitled to statutory recreational immunity; (2) the trial court did not err when it denied the state's motion for a directed verdict on the grounds of discretionary immunity; and (3) under Horton v. OHSU , 359 Or. 168, 376 P.3d 998 (2016), the application of the statutory damages cap did not violate plaintiff's rights under Article I, section 10, and Article I, section 17. We therefore affirm the judgment of the trial court.

I. BACKGROUND

Plaintiff, who was 14 years old at the time, was surfing at Pacific City near Cape Kiwanda when he was struck by a dory boat operated by defendant Martin. Martin was returning to shore and did not see plaintiff in the waves. The boat's propeller severed plaintiff's left arm. Although another surfer retrieved plaintiff's arm, and the arm was surgically reattached, plaintiff has suffered permanent physical impairment and post-traumatic stress syndrome as a result of the incident.

At the time of the accident, state officials had long been aware that surfers and dory boats were at risk of

293 Or.App. 183

collision at Pacific City. Nevertheless, the state did not post warning signs about that risk on the beach, or otherwise caution beachgoers about the risk. Plaintiff was not aware of the risk until he was injured.

Plaintiff brought this action for negligence against Martin and the state, seeking to recover for his losses. He alleged that the state "was negligent in failing to provide adequate warnings of the danger of collisions between dory boats and other persons at or near Cape Kiwanda."¹ As allowed by ORS 31.700,² plaintiff's parents consented to include damages for medical expenses in plaintiff's action.

Before trial, the state twice moved for summary judgment on the ground that the

427 P.3d 1107

recreational immunity statute, ORS 105.682, barred plaintiff's claim against it. That statute immunizes the owner of an interest in land from liability for nonintentional torts arising out of the plaintiff's recreational use of the land under certain circumstances. As of the time of plaintiff's injury, it provided:

"(1) Except as provided by subsection (2) of this section, and subject to the provisions of ORS 105.688, an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes, woodcutting or the harvest of special forest products when the owner of land either directly or indirectly permits any person to use the land for recreational purposes, woodcutting or the harvest of

293 Or.App. 184

special forest products. The limitation on liability provided by this section applies if the principal purpose for entry upon the land is for recreational purposes, woodcutting or the harvest of special forest products, and is not affected if the injury, death or damage occurs while the person entering land is engaging in activities other than the use of the land for recreational purposes, woodcutting or the harvest of special forest products.

"(2) This section does not limit the liability of an owner of land for intentional injury or damage to a person coming onto land for recreational purposes, woodcutting or the harvest of special forest products."

ORS 105.682 (2007).³ The state's theory, generally stated, was that plaintiff's injuries arose out of his recreational use, allowed by the state, of either the ocean or the "ocean shore," as defined in ORS 390.605(2), both of which qualified as "land" of which the state was an "owner" for purposes of the statute.

In response, plaintiff argued, among other things, that the ocean and ocean shore were public trust lands, and that the state held its interest in the land in trust for the public. As a result, the state lacked authority to prohibit the recreational use of the ocean and ocean shore. Plaintiff reasoned that, because the state lacked authority to prohibit the public's use of the ocean and ocean shore for recreational purposes, it could not be said to have "permit[ted]" plaintiff to engage in the use of the ocean and ocean shore that led to his injury within the meaning of ORS 105.682(1).

The trial court agreed with plaintiff's interpretation of the statute. Noting that the state lacks authority to exclude the public from using the ocean shore and ocean for surfing and other recreational purposes, the court reasoned that plaintiff's "use was inherently not permissive and therefore recreational immunity does not apply in this case." The trial court, therefore, denied both of the state's motions for summary judgment asserting recreational immunity.

293 Or.App. 185

At trial, the state moved for a directed verdict. The state did not reraise the issue of its entitlement to recreational immunity in that motion, but it did argue that, in view of the evidence presented at trial, a different form of statutory immunity—discretionary immunity under ORS 30.265(6)(c) —barred plaintiff from recovering on his claim against the state to the extent that the claim was predicated on the state's failure to install warning signs at the location where plaintiff was injured. See ORS 30.265(6)(c) (providing that the state (and other public bodies and their agents) is immune from liability for "[a]ny claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused"). The state contended that the evidence presented at trial compelled the finding that its failure to warn of the risks of the collision between dory boats and individuals using the beach was the product of the type of policy decision to which statutory immunity applies. In particular, the state argued that the absence of warning signs was a result of the state's "high level policy decision to work collaboratively" with the Doryman's Association to address the issue of warning signs. The trial court denied the motion.

The jury rejected plaintiff's claim against Martin. However, it found in favor of plaintiff

427 P.3d 1108

on his claim against the state, finding that the state's negligence was 70 percent responsible for plaintiff's injuries and that plaintiff's own negligence was 30 percent responsible. The jury further found that plaintiff had suffered a total of $717,250.24 in economic damages and $3.1 million in noneconomic damages.

The trial court determined that $294,935.09 of the award for economic damages was for past medical bills attributable to his parents' claim that "was included in this action as authorized by ORS 31.700(1)." Reducing that amount by 30 percent to account for plaintiff's negligence, the court concluded that "judgment will be entered for $206,454.56 on [plaintiff's] parents' claim for past medical bills." The court then reduced the remaining $3,610,795.68 of the jury's award by 30 percent, to determine that plaintiff...