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Storm v. McClung5/31/2000
stion. That trade-off justifies a smaller recovery than the tort system would provide because the recovery is certain. In addition, the recovery is based on a formula that is related to the monetary contribution that Storm would have made if he had lived, and the amounts themselves are not insignificant. In reaching this conclusion, we determine substantiality without considering the jury's verdict, because the issue is how the statute treats the entire class of potential plaintiffs. The fact that the jury might well have concluded that Storm's negligence was greater than 50 percent and, thus, have awarded nothing, illustrates the importance of that approach. Because these amounts were substantial, applying ORS 30.265(3)(a) to Sonia and Tami would not violate Article I, section 10. The trial court should have granted the motions for partial directed verdicts as to them.
The last issues involve the trial court's instructions permitting the jury to award plaintiff reasonable and necessary hospital and medical service and burial expenses and instructing the jury that plaintiff could recover any pecuniary loss to Storm's estate. Each of those instructions is inconsistent with ORS 30.265(3)(a). Medical and burial expenses are damages that the estate suffered directly. The authority to recover them comes from ORS 30.020(2)(a) and (c). They are not part of compensating Storm's surviving relatives for their loss under ORS 30.020(2)(d). The Tort Claims Act, thus, forecloses the estate from recovering them. On the retrial the court should not instruct the jury concerning those damages.
The evidence on which the jury based its award of damages involved all three claimants, Myrtha, Sonia and Tami. Because the court erred in submitting Sonia's and Tami's claims to the jury, and because the jury considered that improper evidence in reaching its verdict, we cannot affirm the entirety of the jury's award. There is nothing in the record that would permit us to determine what the jury would have awarded if the evidence had been limited to Myrtha's claim. Although the trial court allocated the damages among Myrtha's, Sonia's and Tami's claims, that allocation was based on the court's authority under ORS 30.050. It does not purport to reflect a jury determination. Because the record does not allow us to remand for entry of a judgment for a specific amount, there must be a retrial. On the other hand, because we reverse only on damage issues, and because none of those issues could have affected the jury's determination of liability, we limit the remand to a retrial on the amount of damages that plaintiff is entitled to recover under ORS 30.020(2)(d) on behalf of Myrtha Storm. See Turnbow v. K.E. Enterprises, Inc., 155 Or App 59, 72-73, 962 P2d 764 (1998).
On appeal, reversed and remanded for new trial on damages on behalf of Myrtha Storm only; affirmed on cross-appeal.
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