County Circuit Court 110302844, David F. Rees, Judge.
appellant's petition for reconsideration fled May 13,
2016, respondent's response to petition for
reconsideration fled May 27, 2016, and appellant's reply
in support of its petition for reconsideration fled June 3,
2016. Opinion fled May 4, 2016. 278 Or.App. 77, 372 P.3d 605.
Jonathan Henderson argued the cause for appellant. With him
on the briefs were Elizabeth E. Lampson and Davis Rothwell
Earle & Xochihua, P.C. With him on the supplemental brief
was Davis Rothwell Earle & Xochihua, P.C.
Kathryn H. Clarke argued the cause for respondent. With her
on the briefs were Mark G. McDougal and Gregory Kafoury.
S. Coon and Thomas, Coon, Newton & Frost fled the brief
amicus curiae for Oregon Trial Lawyers' Association.
R. Morales, Sharon A. Rudnick, and Harrang Long Gary Rudnick
P.C. fled the brief amicus curiae for Associated Oregon
Industries and the Oregon Liability Reform Coalition.
Armstrong, Presiding Judge, and Hadlock, Chief Judge, and
Or. 504] Reconsideration allowed; former opinion withdrawn;
seeks reconsideration in Vasquez v. Double Press Mfg.,
Inc., 278 Or.App. 77, 372 P.3d 605 (2016). The decision
in Vasquez affrmed the trial court's ruling to
not apply the statutory cap on noneconomic damages in ORS
31.710(1) to the jury award for plaintiff because application
of the cap would violate plaintiff's jury-trial right
under Article I, section 17, of the Oregon Constitution.
Vasquez was based on the precedent set in Lakin
v. Senco Products, Inc., 329 Or. 62, 987 P.2d 463,
clarifed, 329 Or. 369, 987 P.2d 476 (1999). After
Vasquez issued, the Supreme Court issued its
decision in Horton v. OHSU, 359 Or. 168, 376 P.3d
998 (2016), which overruled Lakin. Based on
Horton, defendant seeks reconsideration and reversal
of the trial court's ruling. In response, plaintiff
raises two "right for the wrong reason" arguments
as bases on which to affrm the trial court. Plaintiff's
arguments are that the exception in ORS 31.710(1) for claims
that are subject to ORS chapter 656 applies to his claim and
that application of ORS 31.710(1) to the jury's award
would violate the remedy clause of Article I, section 10, of
the Oregon Constitution. Held: In light of
Horton, reconsideration is allowed and the former
opinion in Vasquez is withdrawn. With respect to
plaintiff's two "right for the wrong reason"
arguments, plaintiff's claim does not come within the
exception in ORS 31.710(1), but, as applied to this case, ORS
31.710(1) violates the remedy clause of Article I, section
10, because it leaves plaintiff with an insubstantial remedy.
allowed; former opinion withdrawn; affrmed.
Or. 505] ARMSTRONG, P. J.
seeks reconsideration of our decision in Vasquez v.
Double Press Mfs.. Inc.. 278 Or.App. 77, 372 P.3d 605
(2016). In that decision, we concluded that the application
in this case of the cap on noneconomic damages in ORS
31.710) would violate plaintiff's jury-trial
right under Article I, section 17, of the Oregon
Constitution. We based our decision on the controlling
precedent of Lakin v. Senco Products. Inc.. 329 Or.
62, 987 P.2d 463, clarified. 329 Or. 369, 987 P.2d
476 (1999). One day after we issued our decision in
Vasquez, the Supreme Court issued its decision in
Horton v. OHSU. 359 Or. 168, 376 P.3d 998 (2016),
which overruled Lakin. In light of Horton,
we allow reconsideration and withdraw our opinion in
conclude that it is appropriate to exercise our discretion to
address the two "right for the wrong reason"
arguments raised by plaintiff in response to defendant's
request for reconsideration. As to those arguments, we
conclude that plaintiff's claims against defendant are
not "subject to" ORS chapter 656, such that they
would be excepted from the application of ORS 31.710(1).
However, we also conclude that, as applied in this case, ORS
31.710(1) violates the remedy clause of Article I, section
10, of the Oregon Constitution. Accordingly, we allow
reconsideration, withdraw our former opinion, and affirm the
trial court's ruling not to apply ORS 31.710(1) to
plaintiff's award of damages.
the facts from our prior opinion, which we recited
consistently with the jury's verdict in favor of
[288 Or. 506] "Defendant manufactures and sells
agricultural machinery. OR PAC Feed & Forage LTD, the
employer of plaintiff, purchased a bale-cutting machine from
defendant, and defendant installed the machine. Plaintiffs
job duties included operating and cleaning hay out of and
around the bale-cutting machine. Plaintiff operated the
machine from a control panel located at the control tower.
Before plaintiff cleaned hay out of or around the machine, he
pushed a button on the control panel to switch the machine
from automatic to manual mode. In addition to switching the
machine to manual mode, there was a 'lockout/tagout'
safety procedure. Under that procedure, an operator shuts off
the power source supply with a lock and key and takes the key
so that only one person has access to the power supply while
working on the machine.
"On March 31, 2010, plaintiff left the control tower to
ask his cousin whether his shift was over. Plaintiff did not
turn off and lock out the machine, nor did he switch the
machine from automatic mode to manual mode. When plaintiffs
cousin confirmed that his shift was over, plaintiff began to
clean the machine. While cleaning the machine- removing
jammed material from the exterior-plaintiff was 'crushed
by a "pinch point" created by a hydraulic ram
moving against the exterior framework' of the machine. A
'pinch point' is a place on the machine 'where
two pieces of material come together.'
"Plaintiff was severely injured. Plaintiffs neurosurgeon
testified that plaintiff was 'essentially cut in half,
right through the base of the spine' and that the machine
'broke his bones and crushed his spine and tore soft
tissue.' As a result of the injury plaintiff is
"Plaintiff filed an action against defendant, alleging
claims for negligence and products liability, and
subsequently amended his complaint to proceed on his
negligence claim alone. Before trial, defendant moved for
partial summary judgment to limit plaintiffs noneconomic
damages to $500, 000 under ORS 31.710(1). Relying on
Lakin, the trial court denied defendant's motion
for summary judgment, explaining, 'For now I'm going
to consider Lakin to be binding on' the issue of
"At trial, plaintiff testified that he was partially at
fault for his injuries. Based on that admission, defendant
moved [288 Or. 507] for a directed verdict to cap plaintiffs
noneconomic damages. The trial court denied that motion,
again relying on Lakin[.]
****** "The jury returned a verdict in
plaintiffs favor for $2, 231, 817 in economic damages and $8,
100, 000 in noneconomic damages, but found plaintiff 40
percent at fault for his injuries. Defendant moved to reduce
the jury's award of noneconomic damages to $500, 000
based on ORS 31.710(1), arguing that Lakin did not
control. The trial court denied defendant's motion. The
trial court then entered a judgment for plaintiff in the
amount of $6, 199, 090.20, representing 60 percent of the
total award from the jury-$4, 860, 000 of which are
"Following the entry of judgment, defendant moved for
judgment notwithstanding the verdict and a new trial, again
arguing that ORS 31.710(1) applied. The trial court denied
those motions without explanation."
Vasquez, 278 Or.App. at 79-81 (footnote omitted). On
appeal, defendant challenged the trial court's denial of
its post-verdict motion to apply the noneconomic damages cap
in ORS 31.710(1).
former opinion, we explained that Lakin, and its
progeny, controlled our decision. In Lakin, which
involved a negligence and products-liability case against a
nail-gun manufacturer, the Supreme Court concluded that
former ORS 18.560(1) (1987), renumbered as
ORS 31.710(1) (2003), violated the jury-trial right in
Article I, section 17. See Lakin, 329 Or at 79-81.
The analysis in Lakin with respect to Article I,
section 17, was reaffirmed by the Supreme Court in Foster
v. Miramontes. 352 Or. 401, 287 P.3d 1045 (2012), and
Klutschkowski v. PeaceHealth. 354 Or. 150, 311 P.3d
461 (2013). See Vasquez, 278 Or.App. at 84-85. We
concluded that Lakin controlled, and we affirmed the
trial court's ruling. Id. at 86. We explained,
"Under Lakin, Article I, section 17, guarantees
a jury trial in civil cases for which the common law provided
a jury trial when the Oregon Constitution was adopted in 1857
and cases of like nature. The determination of damages in a
personal injury case is a question of fact. Thus, in this
[288 Or. 508]context, applying ORS 31.710(1) would violate
Article I, section 17."
278 Or.App. at 87.
after we issued our decision in Vasquez, the Supreme
Court issued its decision in Horton, which expressly
overruled Lakin. See Horton, 359 Or at 250. With
respect to Article I, section 17, the court re-examined at
length the text and history of Article I, section 17, and the
case law applying it. The court then concluded,
"The text of Article I, section 17, its history, and our
cases that preceded Lakin establish that Article I,
section 17, guarantees litigants a procedural right to have a
jury rather than a judge decide those common-law claims and
defenses that customarily were tried to a jury when Oregon
adopted its constitution in 1857, as well as those claims and
defenses that are 'of like nature.' However, that
history does not demonstrate that Article I, section 17,
imposes a substantive limit on the legislature's
authority to define the elements of a claim or the extent of
damages available for a claim."
359 Or at 250.
light of the Supreme Court's conclusion and overruling of
Lakin, we allow reconsideration in this case and
withdraw our former opinion. However, that does not end our
inquiry. Because Horton announced a significant
change in the law-not only in the application of Article I,
section 17, but, as we will discuss below, in the application
of Article I, section 10-we requested additional briefing and