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Lawson v. Hoke9/9/2005
a worker in any case in which a worker's employment conditions were not the major contributing cause of the worker's disability or disease: The employee in Smothers had no remedy under the workers' compensation law, because workplace exposure was not the "major contributing cause" his debilitating lung condition, and he had no remedy otherwise, because a specific legislative enactment denied him the alternative of seeking a remedy through a tort action.
The court reviewed the historical development of the remedy clause of Article I, section 10, and concluded that that clause protects "absolute common-law rights" that existed when the Oregon Constitution was drafted by guaranteeing that a remedy always would be available for injury to those rights. Id. at 118-19. In considering the plaintiff's claim in Smothers, this court began by noting that a common-law cause of action for negligence existed at the time that the Oregon Constitution was created. Id. at 129. The court did not end its analysis there, however. Rather, the court stated that a more specific inquiry was necessary, viz., whether the common law would have recognized a cause of action for negligence under the particular circumstances of that case. Id. at 128. In Smothers, the particular circumstances that the court identified were that the plaintiff suffered a permanent injury because the defendant negligently permitted an unsafe condition to develop in the area where the plaintiff worked, that the defendant had been aware that exposure to that condition could harm the plaintiff, and that the defendant did not protect the plaintiff from exposure or warn the plaintiff that he would be exposed to that condition. Id. at 129.
After reviewing various sources in an effort to determine the content of the common law at the time that the Oregon Constitution was drafted, the court in Smothers concluded that, in 1857, the common law of Oregon would have recognized that a worker had a cause of action for negligence against his or her employer for failing to provide a safe work environment and for failing to warn of the dangerous conditions to which workers would be exposed. Id. at 131. Consequently, the court concluded that the exclusive remedy provision of ORS 656.018 (1985) violated Article I, section 10, because that statute denied the plaintiff any remedy for a wrong with respect to which he would have been entitled to a remedy at the time that the Oregon Constitution was framed. Id. at 135-36. The key consideration in the case was the fact that the statute left the plaintiff with no remedy at all, either through workers' compensation or a traditional tort action. Id. However, as this court specifically noted, if a worker has an absolute common-law right to a remedy for the employer's negligence, "and the claim is accepted and the worker receives the benefits provided by the workers' compensation statutes, then the worker cannot complain that he or she has been deprived of a remedial process for seeking redress for injury to a right that the remedy clause protects." Id. at 135.
The methodology that this court used in Smothers applies equally here. Under that methodology, the first question that we must decide is whether an "absolute common-law right" that existed when the Oregon Constitution was drafted in 1857 would have provided plaintiff with a remedy for the injuries that she sustained in the accident with defendant. To answer that question, we first must identify the circumstances of the case that are pertinent to the inquiry, beyond the fact that plaintiff was injured as a result of defendant's negligence. For herself, plaintiff contends that the question before the court simply is whether, in 1857, the common law would have reco
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