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Woodbury v. CH2M Hill9/10/2003
ic damages on ELL claim
Finally, defendant argues that the trial court erred in failing to cap plaintiff's non-economic damages on his ELL claim pursuant to ORS 18.560(1), which provides, in part:
"Except for claims subject to * * * ORS chapter 656, in any civil action seeking damages arising out of bodily injury, including emotional injury or distress, death or property damage of any one person * * *, the amount awarded for non-economic damages shall not exceed $500,000."
Plaintiff argues that, because the jury found for him on both the negligence and the ELL claims, and because the jury awarded the same damages on both claims, defendant's argument is academic. That is so, plaintiff argues, because the Oregon Supreme Court held in Lakin v. Senco Products, 329 Or 62, 987 P2d 463, on recons, 329 Or 369, 987 P3d 476 (1999), that ORS 18.560(1) is unconstitutional as applied to common-law negligence claims. We agree with plaintiff. In Lakin, an award in excess of the statutory cap for both negligence and strict products liability was upheld on the ground that negligence awards were a jury question in 1857 and under Article I, section 17, of the Oregon Constitution, such "common-law actions carry with them fundamental rights to a jury determination of the right to receive, and the amount of, damages." Lakin, 329 Or at 77. Similarly, in this case, the jury awarded non-economic damages based on both the negligence and ELL claims. Under Lakin, the award must be upheld.
Affirmed.
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