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Lawson v. Hoke9/9/2005
ff's argument under Article I, section 10, would fail.
We address one remaining issue in our analysis under Article I, section 10. Amicus Oregon Trial Lawyers Association (OTLA) argues that there are no Oregon cases interpreting Article I, section 10, in which a party was denied a remedy because of that party's "unrelated defalcations," and asks rhetorically whether the legislature could deny a parent who is behind in child support payments the right to bring a wrongful death action for the death of his child, or deny a property owner who is behind in his property taxes the right to bring a trespass action. That argument is misplaced. Despite the fact that plaintiff's violation of the financial responsibility law did not contribute directly to her accident, it is not an "unrelated defalcation" analogous to those in OTLA's examples. If plaintiff had complied with ORS 806.010, she would not have been on the road at the time that defendant committed the traffic infraction that caused the accident. In much the same way that a person's failure to maintain a lawful fence placed him or her in a position to be injured by trespassing livestock, as in the livestock fencing cases, plaintiff's violation of ORS 806.010 in this case was in the chain of causation that led to the accident. This is not a case in which the legislature has attempted to condition a person's right to a remedy on compliance with a law that is unrelated to the circumstances that led to the action, and we express no opinion respecting any attempt to create such a rule.
As noted, plaintiff also has argued that, insofar as ORS 31.715 removes the question of her entitlement to non-economic damages from the jury's consideration, it violates Article I, section 17, of the Oregon Constitution, which provides that, " n all civil cases, the right of Trial by Jury shall remain inviolate." Plaintiff and one of the amici have asserted that, in Lakin v. Senco Products, Inc., 329 Or 62, 987 P2d 463 (1999), this court held that a law that purported to cap the amount of non-economic damages that a successful litigant could recover in a personal injury case violated Article I, section 17, and a fortiori, a law that eliminates the right to recover non-economic damages also violates that constitutional provision. As we explain below, plaintiff's Article I, section 17, argument fails for the same reasons that her Article I, section 10, argument does.
In Lakin, the plaintiff sued a nail gun manufacturer after the nail gun that he was using misfired and caused him serious, permanent injuries. The jury awarded the plaintiff and his wife $2,000,000 and $876,000, respectively, in non-economic damages, and the trial court reduced each award to $500,000 in accordance with the statutory cap. In reinstating the jury's awards of non-economic damages, this court reasoned that Article I, section 17, guarantees a jury trial in civil actions for which the common law provided a jury trial when the Oregon Constitution was drafted in 1857, and that means that all issues of fact in those cases must be tried by a jury. Lakin, 329 Or at 82. The determination of damages, including non-economic damages, available in a personal injury action, is a question of fact, and, therefore, the legislature may not interfere with the full effect of a jury's assessment of non-economic damages, at least as to civil cases in which the right to a jury trial was customary in 1857. Id.
In Lakin, however, there was no question that the plaintiff had the right to seek non-economic damages for her injuries; rather, the issue was whether the legislature had the authority to limit the amount of damages that a plaintiff could recover in a particular case. In this case, by cont
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