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Busch v. McInnis Waste Systems, Inc.

Court of Appeals of Oregon

July 18, 2018

Scott Raymond BUSCH, Plaintiff-Appellant,
v.
McINNIS WASTE SYSTEMS, INC., Defendant-Respondent. and Deanne Marie BUSCH, Plaintiff,

          Argued and submitted February 5, 2018.

          Multnomah County Circuit Court 15CV13496; Michael A. Greenlick, Judge.

          W. Eugene Hallman argued the cause for appellant. Also on the briefs were Paulson Coletti and Hallman Law Office.

          Julie A. Smith argued the cause for respondent. Also on the brief was Cosgrave Vergeer Kester LLP.

          Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

         Case Summary: Plaintiff appeals from a judgment entered in his favor in a personal injury case. He assigns error to the trial court's reduction of his noneconomic damages award to $500, 000 under ORS 31.710(1), arguing that the reduction violates the remedy clause in Article I, section 10, of the Oregon Constitution. The jury awarded plaintiff $10, 500, 000 in noneconomic damages for severe injuries that plaintiff suffered when defendant's garbage truck struck him as he crossed a street. After trial, defendant moved to reduce plaintiff's non-economic damages award to $500, 000 under ORS 31.710(1). The parties disputed whether, under Horton v. OHSU, 359 Or. 168, 376 P.3d 998 (2016), such a reduction would violate the remedy clause. The trial court granted the motion. Held: The trial court erred. Under previous Court of Appeals decisions addressing ORS 31.710(1) after Horton v. OHSU, 359 Or. 168, 376 P.3d 998 (2016), application of the damages cap to plaintiff's noneconomic damages award violated the remedy clause because it left plaintiff without a "substantial remedy."

         Reversed and remanded.

         [292 Or.App. 821] ORTEGA, P. J.

         In this personal injury case, plaintiff asserts that the trial court violated the remedy clause in Article I, section 10, of the Oregon Constitution, when it reduced his non-economic damages award to $500, 000 under ORS 31.710(1). Consistently with our decisions in Vasquez v. Double Press Mfg., Inc., 288 Or.App. 503, 406 P.3d 225 (2017), rev allowed, 362 Or. 665 (2018), and Rains v. Stayton Builders Mart, Inc., 289 Or.App. 672, 410 P.3d 336 (2018), we conclude that the application of ORS 31.710(1) to plaintiffs jury award is unconstitutional. Accordingly, we reverse and remand.

         The relevant facts are undisputed. Plaintiff suffered severe injuries, including the traumatic amputation of his leg above the knee, when he was struck by defendant's garbage truck as he crossed a street in downtown Portland. Defendant admitted liability, and the case eventually proceeded to trial on the issue of damages. The jury found that plaintiff was entitled to $3, 021, 922 in economic damages and $10, 500, 000 in noneconomic damages. After trial, defendant moved to reduce plaintiff's noneconomic damages to $500, 000 under ORS 31.710(1). The parties disputed whether, under Horton v. OHSU, 359 Or. 168, 376 P.3d 998 (2016), such a reduction would violate the remedy clause. The trial court granted the motion, reduced plaintiff's noneconomic damages to $500, 000, and entered judgment accordingly. Plaintiff challenges that ruling on appeal.

         In Horton, the Supreme Court "reexamined at length whether the remedy clause * * * provides a substantive guarantee of a remedy in certain cases." Rains, 289 Or.App. at 677. The court answered that question affirmatively, concluding that the remedy clause "limits the legislature's substantive authority to alter or adjust a person's remedy for injuries to person, property, and reputation." Horton, 359 Or. at 173. In doing so, the court overruled Smothers v. Gresham Transfer, Inc., 332 Or. 83, 23 P.3d 333 (2001), and reinvigorated pre-Smothers cases that had applied Article 1, section 10. Horton, 359 Or. at 188, 197. The court also identified three general categories of legislation that it had previously [292 Or.App. 822] considered in determining the limits that the remedy clause places on the legislature:

"(1) legislation that did not alter the common-law duty but denies or limits the remedy a person injured as a result of that breach of duty may recover; (2) legislation that sought to adjust a person's rights and remedies as part of a larger statutory scheme that extends benefits to some while limiting benefits to others (a quid pro quo); (3) legislation that modified common-law duties or eliminated a common-law cause of action when the premises underlying those duties and causes of action have changed."

Schutz v. La Costita III, Inc., 288 Or.App. 476, 486, 406 P.3d 66 (2017), rev allowed, 362 Or. 794 (2018).

         The Horton court then addressed liability limits in the Oregon Tort Claims Act (OTCA). The court determined that those limits were "part of a comprehensive statutory scheme intended to extend benefits to some persons while adjusting the benefits to others." 359 Or. at 221. That is, the limits fell within the second category of legislation identified by the court. Ultimately, the court concluded that the liability limits in the OTCA were constitutional based "on the presence of the state's constitutionally recognized interest in sovereign immunity, the quid pro quo that the [OTCA] provides, and the tort claims limits in this case." Id. at 225. The court explicitly declined to express an opinion on ...


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