Chapter § 5.3

• Jurisdiction: Oregon

§ 5.3 RECENT CASE LAW

What does Article I, section 10, of the Oregon Constitution mean when it states that "every man shall have a remedy by due course of law for injury done to him in his person, property, or reputation"? Given the history of the clause and the evolution of past case law, the clause likely remains a source of controversy. However, the purpose of this chapter is to give lawyers a working understanding of the current state of the law. In that light, lawyers should be aware of the Oregon appellate courts' recent decisions, discussed in § 5.3-1 to § 5.3-3, that have changed the landscape.

§ 5.3-1 Smothers

From the Oregon Constitution's adoption in 1857 until 2001, Oregon courts never articulated any clear interpretation of the Remedy Clause in Article I, section 10, of the Oregon Constitution. From 2001 until the Horton decision in 2016, Remedy Clause cases were controlled by Smothers, in which the court sought to provide a definitive interpretation. See Horton, 359 Or 168; Smothers, 332 Or 83, overruled by Horton, 359 Or at 175-76.

The plaintiff in Smothers had sought workers' compensation for a respiratory condition, allegedly due to his exposure to sulfuric, hydrochloric, and hydrofluoric acid fumes at work. An administrative law judge denied his workers' compensation claim, holding that the fumes were not the major contributing cause of his condition. He then brought an action against his employer for negligence. The trial court dismissed the complaint on the ground that the workers' compensation law was the exclusive remedy for work-related injuries. On review, the plaintiff argued that the denial of compensation for his injury, together with the workers' compensation prohibition against personal-injury suits by employees against their employers, violated the Remedy Clause. Smothers, 322 Or at 86.

The holding in Smothers drew a bright line, that is, that the Remedy Clause prohibited the legislature from abolishing or altering common-law "rights respecting person, property, or reputation that existed when the Oregon Constitution was drafted." Smothers, 322 Or at 119. Said differently, the Remedy Clause imposed substantive limitations on the authority of the legislature to limit common-law claims (or modern variants) that existed at the time the state constitution was adopted.

In reaching that conclusion, the court disavowed numerous decisions, dating back to 1935, that had upheld legislative statutes that altered, limited, or abolished common-law claims. Smothers, 322 Or at 118. The overruled cases included Perozzi v. Ganiere, 149 Or 330, 345, 40 P2d 1009 (1935) (upholding a guest-passenger law); Noonan v. City of Portland, 161 Or 213, 249, 88 P2d 808 (1939) (upholding a provision of Portland's charter immunizing the city from liability for injuries sustained by any defective condition of any sidewalk, street, or avenue); Josephs v. Burns, 260 Or 493, 503, 491 P2d 203 (1971) (upholding a statute of repose); Holden v. Pioneer Broadcasting Co., 228 Or 405, 412-13, 365 P2d 845 (1961) (upholding a statute that prevented recovery of general damages for an unintentional libel when the defendant had retracted the libelous statement); Sealey v. Hicks, 309 Or 387, 393-94, 788 P2d 435, cert den, 498 US 819 (1990) (upholding a statute of repose in a products-liability lawsuit against an automobile manufacturer); Hale v. Port of Portland, 308 Or 508, 521, 783 P2d 506 (1989) (upholding statutes imposing damages cap on claims against the City of Portland and the Port of Portland, stating that "Article I, section 10, is not violated when the legislature alters (or even abolishes) a cause of action, so long as the party injured is not left entirely without a remedy"), overruled in part by Smothers v. Gresham Transfer, Inc., 332 Or 83, 23 P3d 333 (2001), overruled by Horton, 359 Or at 175-76; and Kilminster v. Day Management Corp., 323 Or 618, 919 P2d 474 (1996) (barring a worker's parents' wrongful-death claim against the employer because of exclusive workers' compensation claim under ORS 656.018). See Smothers, 322 Or at 117-19, 123, 127-28.

§ 5.3-2 Horton

In Horton, 359 Or at 175-76, the Oregon Supreme Court overruled Smothers, 332 Or 83 (see § 5.3-1). It did not reject Smothers' holding that the Remedy Clause imposed substantive limitations on the authority of the legislature, but it concluded that Smothers was plainly wrong in holding that the protections of the Remedy Clause were limited to only those claims (or modern variants) that existed at the time that the state constitution was adopted.

Horton was a medical-malpractice case brought under the Oregon Tort Claims Act (OTCA). See ORS 30.260-30.300. The jury found that a state employee caused an infant child to suffer over $6,000,000 in economic losses and an additional $6,000,000 in noneconomic losses. After the verdict was rendered, the state moved to reduce the $12,000,000 verdict to the $3,000,000 cap on damages for claims against state employees under ORS 30.271, and the trial court denied the motion. On direct appeal from the trial court (see ORS 30.274), the Oregon Supreme Court held that the Remedy Clause did not prohibit the application of the statutory cap.

The court in Horton reviewed and rejected the rule from Smothers that protections under the Remedy Clause turned on whether the cause of action was recognized in 1857. It concluded that "the remedy clause does not protect only those causes of action that pre-existed 1857, nor does it preclude the legislature from altering either common-law duties or the remedies available for a breach of those duties." Horton, 359 Or at 219. In disavowing Smothers, the court in Horton also revived the cases that Smothers had overruled under the 1857 test. Those decisions are once again viable. Horton, 359 Or at 218.

Horton also held that the Remedy Clause provides a substantive right against certain legislative limitations on common-law remedies. After reviewing its past cases and the historical underpinnings of the clause, the court concluded that "we cannot say that our decisions [recognizing substantive protections], with the exception of Smothers, find no support in the text and history of that provision and should be overruled." Horton, 359 Or at 218. See also Horton, 359 Or at 204-05 (acknowledging Coke's...