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Brewer v. Department of Fish and Wildlife5/10/2000
eneficiaries such as surviving parents, yet another statute could be said to abolish the beneficiaries' right to a remedy under the particular circumstances.
In Kilminster, however, unlike in Neher, the court held that the statute precluding recovery for the decedent's wrongful death did not violate Article I, section 10. Kilminster, 323 Or at 627. The court distinguished Neher in several ways. First, it noted that the wrongful death statute gave personal representatives of decedents' estates only derivative rights--that is, the statute "gives a party a right to bring a wrongful death action only 'if the decedent might have maintained an action, had the decedent lived[.]'" Id. at 626, quoting ORS 30.020. The court thus concluded that the plaintiffs had no independent basis from which to derive a right to recover for the decedent's wrongful death. Id. The court went on:
"The legislature has chosen not to provide decedent's parents with a negligence-based wrongful death action in this case. Because the legislature has chosen not to provide decedent's parents with a wrongful death action based on a theory of negligence, and because Oregon has no common law action for wrongful death, * * * they have suffered no legally cognizable injury to their person, property, or reputation. Therefore, application of ORS 656.018 to this wrongful death action brought under ORS 30.020(1) does not violate Article I, section 10." Id. at 627 (emphasis added; citation omitted).
The court went on to try to distinguish Neher. It drew a distinction between the workers' compensation exclusivity provision of ORS 656.018 and the OTCA immunity provision at issue in Neher, noting that the OTCA provision granted immunity to the defendants "when those defendants' relationship to the decedent was unrelated to the decedent's relationship with her employer." Kilminster, 323 Or at 627 (emphasis in original). The court pointed out that, in Neher, "the challenged grant of governmental immunity was 'piggy backed' atop ORS 656.018." Id. The court saw a significant distinction in the fact that the Kilminster plaintiffs' "negligent wrongful death claim against decedent's employer is controlled directly by ORS 656.018[.]" Id. at 627-28.
We find the court's reasoning in Kilminster, particularly its attempt to distinguish Neher, to be somewhat opaque. It appears that the Kilminster court implicitly acknowledged that the Neher analysis was incorrect in concluding that the wrongful death statute recognized "the existence of a right to recovery for surviving parents for damages to compensate them" for certain pecuniary losses, distinct from a decedent's rights, Neher, 319 Or at 428, because, as the court concluded in Kilminster, any rights of parents under the wrongful death statute are purely derivative, and the statute provides no "independent basis from which to derive such a right." Kilminster, 323 Or at 626. The question, then, is whether another statutory enactment abolishes a decedent's "right." In determining that question in Kilminster, the court apparently found a distinction between one statute that precluded negligence liability against public entities and employees that injured persons within the course and scope of employment and another statute that precluded negligence liability against employers that injured employees within the course and scope of employment. The critical distinction, as best we can discern it, was that there was something about the relationship between the employee and employer that permitted the legislature to abolish a "right" to recover under the wrongful death statute via ORS 656.018, but that such a relationship was lacking where ORS 30.265(3) "piggy backed" a grant of governmenta
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