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Howell v. Boyle, Ninth Circuit 09-36153

In February of 2007, a police car hit a citizen crossing the street in an “unmarked crosswalk.” She brought a federal lawsuit based on her Washington residency. The jury awarded her over $1 million in damages, but found her 50% at fault, leaving her damages at a little over $500,000.

The City moved to cap the damages at $200,000 based on the Oregon Tort Claims Act, arguing that the reduced amount of damages was constitutional, despite Article I, Section 10’s guarantee of a complete remedy as stated in Clarke v. OHSU, 343 Or. 581, 175 P.3d 418 (Or. 2007). In Clarke, the Oregon Supreme Court stated that the remedies clause allowed for recovery against the individual even though the Oregon Tort Claims Act indemnified public employees, since the $200,000 cap “emasculated” the remedy available at common law against the individual tortfeasor.

The Ninth Circuit asked for certification because the Court of Appeals’ opinion in Ackerman v. OHSU, 233 Or. App. 511, 227 P.3d 744 (2010) (no review sought), created a test for determining whether relief is “emasculated,” in which “the first and most important [step is] the disparity between the capped damages and the damages that a plaintiff would have received at common law.” Because 50% fault for the plaintiff would have denied all recovery under the comparative fault doctrine at common law, the Ninth Circuit was unable to discern whether Article I, Section 10 required the court to award plaintiff her complete damages.

This is a wait and see case, but certification cases do tend to move a bit faster than other forms of review. In the past, at least with Article XVII, Section 1 caselaw, the Oregon Supreme Court has struck down new tests from the Oregon Court of Appeals. Still, there’s no way to predict whether defenses are factored into the “common law” test under Article I, Section 10, and if the case would not have been viable with a defense that existed in Oregon’s common law in 1857, it’s an open question of how to apply the remedies clause.

Interesting.