Chapter §5.4 POST-SMOTHERS DECISIONS ON THE REMEDIES CLAUSE

• Jurisdiction: Oregon

§5.4 POST-SMOTHERS DECISIONS ON THE REMEDIES CLAUSE

Following the decision in Smothers v. Gresham Transfer, Inc., 332 Or 83, 23 P3d 333 (2001), Oregon's appellate courts have addressed the Remedies Clause of Article I, section 10, in a variety of situations. These are addressed in §§ 5.4-1 to 5.4-8.

§5.4-1 Workers' Compensation Immunity from Suit

The Oregon courts had implicitly recognized the legislature's constitutional authority to substitute workers' compensation for the common-law negligence cause of action for work-related injuries, and nothing in Smothers was intended to suggest otherwise. Smothers v. Gresham Transfer, Inc., 332 Or 83, 125, 23 P3d 333 (2001) ("The constitutionality of the overall workers' compensation statutory program is not in question."). Rather, Smothers held that the Workers' Compensation Act (the Act) violated the Remedies Clause when the legislature made certain work-related injuries noncompensable under the Act, but nevertheless barred the injured worker from pursuing tort claims against the employer. Smothers, 332 Or at 135-36.

In the wake of the Smothers case, Olsen v. Deschutes County, 204 Or App 7, 127 P3d 655 (2006), upheld a tort claim recovery against an employer that failed to provide safety precautions for workers dealing with HIV-infected and hepatitis-infected patients, failed to keep records of client medication, and, in violation of department policy, admitted and retained aggressive clients, and terminated employees who reported their safety concerns. "[A]ny legislation limiting a worker who alleges negligence against his or her employer for failure to provide a safe workplace to the remedies afforded by the workers' compensation system cannot constitutionally be applied when the workers' compensation system provides no remedy at all." Olsen, 204 Or App at 21.

However, Cato v. Alcoa-Reynolds Metals Co., 210 Or App 721, 152 P3d 981(2007) upheld the dismissal of the claim of an estate of a worker who died from a work-related injury for lack of standing, upholding the Act's limitation of benefits to include only the costs of burial and a wage-based benefit to certain statutorily designated beneficiaries.

§5.4-2 Recreational Use Statutory Immunity from Suit

In Schlesinger v. City of Portland, 200 Or App 593, 116 P3d 239 (2005), the court 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 Remedies 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." Schlesinger, 200 Or App at 599.

§5.4-3 Statutes of Repose

Pre-Smothers decisions rejected claims that the statutes of repose for torts (ORS 12.115(1)) and product liability (ORS 30.905) violated Article I, section 10. Sealey By & Through Sealey v. Hicks, 309 Or 387, 393, 788 P2d 435 (1990), abrogated by Smothers v. Gresham Transfer, Inc., 332 Or 83, 23 P3d 333 (2001); Josephs v. Burns, 260 Or 493, 503, 491 P2d 203 (1971), abrogated by Smothers, 332 Or 83. However, Smothers overruled those cases because they were based on an interpretation of Article I, section 10, that the Smothers court repudiated. Smothers, 332 Or at 115-23. The court has not decided whether those statutes of repose would satisfy Article I, section 10, under a Smothers analysis. However, in two instances, the court of appeals has rejected such challenges to other statutes of repose.

In Christiansen v. Providence Health Sys. of Oregon Corp., 210 Or App 290, 150 P3d 50 (2006), aff'd on other grounds, 344 Or 445, 184 P3d 1121 (2008), the court of appeals held that the medical malpractice statute of repose, ORS 12.110(4), did not violate Article I, section 10, when applied to bar a claim brought on behalf of an infant allegedly injured during birth, finding that because the plaintiff would not have had an absolute common-law right to bring an action in negligence for the child's prenatal injuries in 1857, the Remedies Clause did not prevent the legislature from barring such a claim under the statute of repose.

In Jones v. Douglas County, 247 Or App 56, 270 P3d 264 (2011), the court of appeals rejected an Article I, section 10, challenge to a statute that established a repose period after which certain land use decisions could be challenged. The plaintiffs alleged that they were denied their right to notice of the local government's approval of a lot-of-record dwelling on neighboring property. However, the court concluded that

the dispositive issue is whether the neighbors have "alleged an injury to one of the absolute rights that Article I, section 10 protects." In resolving that issue, we must determine whether, "when the drafters wrote the Oregon Constitution in 1857, . . . the common law of Oregon recognize[d] a cause of action for the alleged injury[.]"

Jones, 247 Or App at 72 (internal citation omitted). Plaintiffs failed to identify a source of the purported right, or a common-law cause of action, that existed as of the time that the Oregon Constitution was adopted that would have enabled them to vindicate such a right. Accordingly, the court rejected the constitutional challenge.

PRACTICE TIP: In determining whether a limitations period runs afoul of Article I, section 10, the lawyer should be aware of the ways in which our modern understanding of limitations periods may differ from those of 1857, particularly with respect to when a claim arises or accrues, or the circumstances

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