Chapter § 5.7


As discussed in § 5.3-1, Smothers, 332 Or 83, overruled numerous Remedy Clause decisions, but, as stated in § 5.3-2, those decisions were reinstated as good law in Horton, 359 Or at 175-76 (overruling Smothers). On the other hand, to the extent that those cases were decided under an analysis that is contrary to the court's Remedy Clause analysis in Busch, 366 Or 628 (see § 5.3-3), there is a possibility that a court might agree that Busch overruled those cases by implication or sub silentio.

Some of the decisions rendered between 2001 and 2016, while Smothers was the governing law, might be subject to challenge: "[t]o the extent that those cases turn on the bright line rule that Smothers drew (all injuries for which common-law causes of action existed in 1857 require a remedy while injures for which no cause of action existed in 1857 are entitled to no protection), then those cases must be taken with a grain of salt." Horton, 359 Or at 220 (parenthetical in original)

Other cases may also be subject to challenge, but the likelihood of overturning them is uncertain. Some of these are addressed in § 5.7-1 to § 5.7-5.

In sum, there is significant pre-Smothers and post-Smothers precedent in the case law. If a lawyer has a case that implicates such precedent, it may be worthwhile (depending on the lawyer's goal) to identify how such precedent is consistent or inconsistent with the analyses described in Horton and Busch.

§ 5.7-1 Recreational Use Statutory Immunity from Suit

In Schlesinger v. City of Portland, 200 Or App 593, 116 P3d 239 (2005), the Oregon Court of Appeals upheld the dismissal of a claim by a plaintiff who was injured while walking her dog on a gravel path in a city park. Oregon's "recreational use statute" (ORS 105.682) barred such claims against possessors of land for injuries sustained when the owner permitted any person to use the land for recreational purposes. The court determined that, because such a negligence action was not recognized at common law, the statute did not deprive the plaintiff of a remedy protected by the Remedy Clause. "Put another way, any 'right' to recover from the city for injuries sustained in a public park is not an 'absolute right' protected by Article I, section 10," of the Oregon Constitution. Schlesinger, 200 Or App at 599.

Of course, that case applied the rule from Smothers that a plaintiff's right to remedy depended on whether the common law recognized the claim in 1857. See Smothers, 322 Or at 119 (discussed in § 5.3-1). As the court instructed in Horton, cases that turn on such an analysis may not provide appropriate guidance...

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