Rains v. Stayton Builders Mart, Inc., 289 Or App 672 (2018) (Ortega, P.J.)
In this civil action based on a claim of strict products liability, the Court of Appeals held that application of the $500,000 cap on noneconomic damage awards in ORS 37.710(1) violated the Remedy Clause of Article I, section 10, of the Oregon Constitution. The claim was brought by an injured worker and his spouse against the manufacturer and retailer of a piece of lumber that gave way on a job site, causing the plaintiff to fall and sustain severe injuries, including paraplegia.
The Court of Appeals issued its decision on remand from the Supreme Court for application of Horton v. OHSU, 359 Or 168 (2018), the case in which the Supreme Court modified its previous interpretation of Article I, section 10, and overruled Smothers v. Gresham Transfer, Inc., 332 Or 83 (2001). On remand, the Court of Appeals followed the reasoning in its recent decision in Vasquez v. Double Press Mfg., Inc., 288 Or App 503 (2017) (summarized on 11/03/2017), and concluded that a simple cap on damages without any “quid pro quo” violates Article I, section 10.
In the course of its discussion of Horton, the Court of Appeals emphasized that, to be subject to protection under Article I, section 10, a cause of action no longer needs to have existed or been recognized in 1857, when the Remedy Clause was adopted. Rather, any common law cause of action existing at the time of the legislative restriction or other action being challenged is subject to Article I, section 10, protection. The court thus rejected defense arguments that the plaintiff’s spouse’s claim for loss of consortium was not protected by Article I, section 10, because the legal basis of the interest underlying the claim had changed since 1857.
The court also rejected defense arguments that the plaintiff’s failure to assert Article I, section 10, until remand from the Supreme Court constituted a waiver of that clause as support for the plaintiffs’ damage awards. Under the particular circumstances of the case, the court concluded that the plaintiffs’ delayed assertion of the provision on a “right for the wrong reason” basis was justified by the shifting case law and the development of the arguments throughout the judicial review process.
[Note: Unlike a simple cap on damages such as that in ORS 31.710(1), the Workers’ Compensation Law does involve a “quid pro quo” in the form of a limitation on an injured worker’s recovery in exchange for a no-fault system of liability. Hence, the Court of Appeals’ recent decisions do not signal any impending invalidation of the Workers’ Compensation Law as a whole, although attempted attacks on the major contributing cause limitations in the law undoubtedly will continue under Article I, section 10, until they are addressed and resolved by the Supreme Court.]
David Runner is an attorney with SAIF Corporation who periodically provides updates of important Oregon workers’ compensation litigation; used with permission. Click here to contact David.