 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Storm v. McClung6/7/2002
ed that "the word 'remedy' refers both to a remedial process for seeking redress for injury and to what is required to restore a right that has been injured." Id. at 124. The court also explained that the history of the remedy clause in Article I, section 10, indicated that its purpose was to protect "absolute [common-law] rights respecting person, property, and reputation." Id. (emphasis added).
Greist, Kilminster, and Neher recite that there was no right of action for wrongful death at common law in Oregon. Plaintiff's counsel has presented this court with research that counsel contends establishes that a common-law action for wrongful death is legally cognizable in Oregon's courts and that the Oregon courts should have acknowledged a common-law action for wrongful death since Oregon's statehood. That question, however, is beside the point in this case. Plaintiff never has alleged or asserted at any stage of these proceedings that the instant action for recovery for death is a common-law one. Rather, plaintiff always has maintained that the action is one brought under ORS 30.020. Because plaintiff's claim is a statutory one, the legislature may limit the action as it chooses.
In Neher, the court, relying on Hale and Noonan, assumed that Article I, section 10, afforded protection to any recognized cause of action regardless of whether that cause of action existed at common law or was legislatively created. As the foregoing analysis demonstrates, that assumption was incorrect. The holding in Neher that the immunity provisions in ORS 30.265(3)(a) that barred the plaintiff's statutory wrongful death action denied the plaintiff a remedy in violation of Article I, section 10, was error and is disavowed. See Stranahan v. Fred Meyer, Inc., 331 Or 38, 11 P3d 228 (2000) (setting out criteria necessary for court to reconsider previous ruling under Oregon Constitution).
ORS 30.020(1) allows a decedent's personal representative to bring an action for wrongful death on behalf of surviving children and parents "if the decedent might have maintained an action, had the decedent lived, against the wrongdoer[.]" As this court observed in Kilminster, the wrongful death statute places a decedent's personal representative in the decedent's shoes, imputing to the personal representative whatever rights, and limitations to those rights, that the decedent possessed. Kilminster 323 Or at 624-25.
Plaintiff, therefore, could bring a statutory action for wrongful death against the city only if Jon Storm could have brought such an action against the city had he lived. ORS 30.265(3)(a) insulates from liability " very public body and its officers, employees and agents acting within the scope of their employment or duties" for " ny claim for injury to or death of any person covered by any workers' compensation law." Storm was covered by workers' compensation. Thus, ORS 30.265(3)(a) would have barred Storm from bringing a negligence-based action against the city for his injuries, had he survived. Likewise, plaintiff's statutory wrongful death action is barred by the same immunity provisions. It follows that the Court of Appeals' dismissal of plaintiff's statutory wrongful death action on behalf of her daughters was correct. However, because the city never has argued at any stage of the proceedings that a claim on behalf of Storm's mother was barred by ORS 30.265(3)(a), we leave in place the Court of Appeals' disposition as to that part of the wrongful death claim.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed. The case is remanded to the circuit court for further proceedings.
Page 1 2 3 4 5 6 Oregon Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|