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Lawson v. Hoke9/9/2005
gnized the absolute right of a person operating a vehicle on a public road to recover damages for non-economic injuries resulting from the negligence of another driver. We can answer that question easily: The common law of Oregon would have recognized the right to bring such an action.
We think that plaintiff's formulation of the issue before us is incomplete, however. A complete statement of the pertinent circumstances must include one other circumstance. That additional "circumstance" of the accident is the fact that, as already noted, at the time of her accident with defendant, plaintiff was not insured under a motor vehicle liability insurance policy as required by law and, as a result, was not entitled to be operating her motor vehicle on a public highway at the time of the accident. The issue in the case thus becomes: Would the authors of the remedy clause have considered it to be impermissible to condition recovery of certain damages on plaintiff's having a license to be at the place where her injuries occurred? We turn to that question.
The statute at issue, ORS 31.715(1), provides, in part:
"Except [for certain situations not applicable to the present case] * * *, a plaintiff may not recover non-economic damages, as defined in ORS 31.710, in any action for injury or death arising out of the operation of a motor vehicle if the plaintiff was in violation of ORS 806.010 [driving uninsured] or 813.010 [driving under the influence of intoxicants] at the time the act or omission causing the death or injury occurred. A claim for non-economic damages shall not be considered by the jury if the jury determines that the limitation on liability established by this section applies to the claim for non-economic damages."
ORS 31.710, which is cross-referenced in ORS 31.715, above, provides the following definition of "non-economic damages":
"'Non-economic damages' means subjective, non-monetary losses, including but not limited to pain, mental suffering, emotional distress, humiliation, injury to reputation, loss of care, comfort, companionship and society, loss of consortium, inconvenience and interference with normal and usual activities apart from gainful employment."
Oregon's financial responsibility law, ORS 806.010 to 806.300, requires all drivers on public roads to be adequately insured. ORS 806.010, the statute specifically cross-referenced in ORS 31.715(1) that is relevant to this case, makes it a Class B traffic violation to drive a motor vehicle on a public highway of Oregon without being insured to the extent stated in those statutes. Thus, in this case, our specific inquiry is whether, under the common law as it existed in 1857, plaintiff, who was herself in violation of a law relating to her right to be on a public highway at the time of the accident, nonetheless would have had an absolute right to recover damages for all her injuries -- including non-economic injuries -- resulting from defendant's negligence.
We begin by noting that the text of the pertinent statutes demonstrates that, strictly speaking, this is not a Smothers case. No statute denies this plaintiff a remedy. Indeed, it lay entirely within this plaintiff's control to be fully qualified to be awarded all damages arising out of the kind of harm that she suffered. She was never -- and persons similarly situated still are not -- a person with no remedy for a harm that the common law recognized. With the foregoing observations in mind, we turn to a more detailed examination of the issue under the Smothers methodology.
We have found no Oregon cases from around the time of the adoption of the Oregon Constitution that so closely match the circums
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