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Jean Marie Howell v. Christopher David Boyle and City of Beaverton

January 14, 2011

JEAN MARIE HOWELL, PLAINTIFF-APPELLEE,
v.
CHRISTOPHER DAVID BOYLE AND CITY OF BEAVERTON, DEFENDANTS-APPELLANTS.



D.C. No. 3:08-cv-00727-KI District of Oregon, Portland

FOR PUBLICATION

ORDER

CERTIFYING

QUESTIONS TO THE SUPREME COURT OF OREGON

Before: Richard A. Paez and Richard R. Clifton, Circuit Judges, and Larry A. Burns,*fn1 District Judge.

ORDER

Plaintiff Jean Howell filed suit in the United States District Court for the District of Oregon against Defendants Christopher Boyle and his employer, the City of Beaverton, Oregon (the City). Howell sought damages for injuries she sustained when Boyle, a police officer for the City, struck her with his police cruiser as she walked across a highway. At trial, the jury found that Howell and Boyle were each negligent and 50 percent responsible for the accident. After the district court reduced the jury's award under Oregon's comparative negligence law, it awarded Howell $507,500 in damages. Boyle and the City asked the district court to cap damages at $200,000 under the Oregon Tort Claims Act (the OTCA), Or. Rev. Stat. section 30.270(1) (2007), repealed by Or. Laws 2009, c. 67, § 20.*fn2 The district court ruled that the OTCA damages cap was unconstitutional as applied to the case under the remedy clause in Oregon's constitution, Or. Const. art. I, § 10, and declined to reduce Howell's damages.

On appeal, Boyle and the City seek reversal of the district court's ruling on the constitutionality of the OTCA damages cap as applied in this case. First, they argue that Howell's action is not protected by the remedy clause because her contributory negligence would have completely barred recovery of damages at common law. Second, they argue that, even if her action is protected by the remedy clause, $200,000 is a constitutionally adequate substitute remedy for Howell's damage award of $507,500.

Defendants' arguments raise important questions of Oregon constitutional law that are unresolved by previous decisions of the Supreme Court or intermediate appellate courts of Oregon. See Or. Rev. Stat. § 28.200 (providing authority to Supreme Court of Oregon to decide questions of law certified by a United States Court of Appeals). Because these constitutional questions will be determinative of the case before us, we respectfully certify several questions to the Oregon Supreme Court. See id. We offer the following statement of "facts relevant to the questions certified" and an explanation of "the nature of the controversy in which the questions arose." Or. Rev. Stat. § 28.210.

I. Factual and Procedural History

A patrol car driven by Officer Boyle struck Howell, a resident of Washington, as she walked across Tualatin Valley Highway in Beaverton, Oregon on February 9, 2007. Howell suffered a number of serious injuries that required hospitalization at considerable expense. She brought a diversity action in the District of Oregon against Boyle and the City seeking economic damages of $4,779,529 and non-economic damages of $1,000,000.

In their answer and in their trial brief, the defendants asserted that, under the OTCA, Howell's only action was against the City, and asked the court to dismiss the claims against Boyle.*fn3 The defendants also asserted that the OTCA limited Howell's potential recovery to $200,000. Citing Clarke v. Or. Health Scis. Univ., 175 P.3d 418 (Or. 2007), the district court refused to dismiss the claims against Boyle or cap damages under the OTCA because it concluded that the $200,000 damages cap would be an unconstitutional emasculated remedy in light of the nearly $6 million in damages that Howell sought.

At trial, both sides alleged that the other was negligent. Officer Boyle admitted that he did not see Howell until he struck her, but argued that Boyle was negligent in crossing the highway in front of traffic.*fn4 The jury found that Howell and Boyle were each negligent and 50 percent responsible for the damages suffered by Howell. The jury also found that Howell suffered economic damages of $765,000 and non-economic damages of $250,000. The district court reduced the jury award according to Oregon's comparative negligence statute, Or. Rev. Stat. § 31.600(1), and awarded Howell a total of $507,500.

Boyle and the City filed post-trial motions to amend the judgment and to impose the $200,000 OTCA damages cap. Although the $507,500 award was significantly less than nearly $6 million Howell had originally sought, the district court again ruled that the capped damages would be an unconstitutional emasculated remedy. The district court was persuaded in part by the fact that the capped damages represented less than one-half of the amount of ...


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