S053447, Opinion — Hughes v. PeaceHealth

142
Argued and submitted November 1, 2006, decision of Court of Appeals and
j udgment of circuit court affirmed February 22, 2008
Lori Gayle HUGHES,
as Personal Representative for the Estate of
Jill Marie Dieringer, deceased,
Petitioner on Review,
u.
PEACEHEALTH,
a Washington corporation,
dba Sacred Heart Medical Center
and PeaceHealth Medical Group,
Respondent on Review,
and
EUGENE EMERGENCY PHYSICIANS, PC,
an Oregon corporation,
Defendant.
(CC 16-02-18544; CA A123782; SC S053447)
1 78 P3d 225

Cite as 344 Or 142 143
CJS, Death § 14.
On review from the Court of Appeals.*
Kathryn H. Clarke, Portland, argued the cause and filed
the brief for petitioner on review. With her on the brief was
Linda K. Eyerman, of Gaylord Eyerman Bradley, PC,
Portland.
* Appeal from Lane County Circuit Court, Maurice K Merten, Judge. 204 Or
App 614, 131 P3d 798 (2006).

144 Hughes v. PeaceHealth
Marjorie A. Speirs, of Hoffman, Hart & Wagner, LLP,
Portland, argued the cause and filed the brief for respondent
on review. With her on the brief was Janet M. Schroer.
Barry Adamson, Lake Oswego, filed the brief on behalf of
himself as amicus curiae.
Maureen Leonard, Portland, and Ned Miltenberg, Center
for Constitutional Litigation, P.C . , Washington, D.C., filed a
brief on behalf of amicus curiae Association of Trial Lawyers
of America.
Robert K. Udziela, Beaverton, filed a brief on behalf of
amicus curiae Oregon Trial Lawyers Association.
Judy C. Lucas, Senior Assistant Attorney General, Salem,
filed a brief on behalf of amicus curiae State of Oregon. With
her on the brief were Hardy Myers, Attorney General, and
Mary H. Williams, Solicitor General.
Lindsey H. Hugh es, of Keating Jones Bildstein & Hughes,
P.C . , Portland, filed a brief on behalf of amicus curiae Oregon
Association of Defense Counsel.
David L. Runner, Salem, filed a brief on behalf of amici
curiae SAIF Corporation and Timber Products Company.
David C. Landis, Portland, filed a brief on behalf of amici
curiae Oregon Medical Association and American Medical
Association.
Before De Muniz, Chief Justice, and Carson, Gillette,
Durham, Balmer, Kistler, and Walters, Justices.**
GILLETTE, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
Durham, J., dissented and filed an opinion in which
Walters, J. , joined.
Walters, J., dissented and filed an opinion m which
Durham, J., joined.
** Carson, J., retired December 3 1 , 2006, and did not participate in the deci
sion of this case. Linder, J., did not participate in the consideration or decision of
this case.

Cite as 344 Or 142 (2008) 145
GILLETTE, J.
In this wrongful death action, the personal represen
tative of a deceased person challenges the trial court's appli
cation of the statutory damages cap set out at ORS 31.710 to
the jury's award of damages. Plaintiff argues that, as applied
in her case, ORS 3 1 . 7 10 violates two provisions of the Oregon
Constitution-the "remedy" guarantee set out in Article I,
section 10, and the right to a j ury trial set out in Article I, sec
tion 17. The Court of Appeals rejected those arguments,
along with an additional argument that the trial court had
erred in ordering defendant to pay interest on plaintiff's dam
ages award at a lower rate than ordinarily would apply. We
allowed the personal representative's petition for review and,
for the reasons that follow, affirm the decision of the Court of
Appeals.
Plaintiff brought this action against PeaceHealth
Medical Group for wrongful death after her daughter died
while under the care of certain PeaceHealth medical provid
ers.1 Plaintiff initially alleged two separate wrongful death
claims--one under the common law and one under Oregon's
wrongful death statute, ORS 30.020. She later amended her
complaint to allege a single wrongful death claim that did not
specify a source of law. 2
After a trial, the jury returned a verdict for plaintiff
that included an award of $1 million in noneconomic dam
ages. In the ensuing j udgment, the trial court applied ORS
3 1.710 to reduce the noneconomic damages award to
$500,000.3 In the judgment, the trial court also held that
1 In her complaint, plaintiff also named Eugene E mergency Physicians, P.C.,
as a defendant. However, the jury found that Eugene Emergency Physicians, P.C.,
was not negligent, and that entity is not involved in this review proceeding.
' Plaintiff originally thought that she had to raise a common-law wrongful
death claim, in addition to a statutory claim, to preserve her present constitutional
challenge to the statutory cap on noneconomic damages. However, as she explained
to the trial court, she ultimately determined that it was unnecessary to allege a
common-law claim for that purpose separately, so she chose to leave it out of her
amended complaint.
" ORS 31 .710 provides, in part:
"(l) [With certain specified exceptions], in any civil action seeking dam
ages arising out of bodily i nj ury, including emotional injury or distress, death
or property damage of any one person including claims for loss of care, comfort,

146 Hughes v. PeaceHealth
interest payable on the damages award was to be calculated
using a special lower rate, set out in ORS 82.010(2)(f), for
judgments against medical providers in medical malpractice
actions.
Plaintiff appealed. She argued that application of
the statutory cap on noneconomic damages violated her right
to a jury trial under Article I, section 17, of the Oregon Con
stitution, as well as the Remedy Clause of Article I, section
10. The Court of Appeals affirmed the trial court's application
of the damages cap, relying on the fact that, in Greist v.
Phillips, 322 Or 281 , 906 P2d 789 ( 1995), this court had
rejected constitutional challenges to the statutory damages
cap that were almost identical to the ones that plaintiff
raised. Hughes v. PeaceHealth, 204 Or App 6 14, 617-22, 1 3 1
P3d 798 (2006).4 Plaintiff then sought review by this court,
asserting in her petition for review that Greist was wrongly
decided and that later decisions by this court have placed its
continued relevance in doubt. We allowed her petition to con
sider those arguments, as well as to consider plaintiffs
contention that the special interest rate set out at ORS
82.010(2)(f) should not be applied to her award.
ARTICLE I , SECTION 10
We first consider plaintiffs claim that application of
the statutory cap to her wrongful death claim violates the
right to a remedy provision of Article I, section 10, of the
Oregon Constitution, which provides:
"No court shall be secret, but justice shall be adminis
tered, openly and without purchase, completely and with
out delay, and every man shall have remedy by due course
companionship and society and loss of consortium, the amount awarded for
noneconomic damages shall not exceed $500,000.
"(2) As used in this section
''* * * *
"(bJ 'Noneconomic damages' means subjective nonmonetary losses,
including but not limited to pain, mental suffering, emotional distress, humil
iation, 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."
4 The Court of Appeals also rejected plaintiffs claim that the trial court had
erred in applying the interest rate specified at ORS 82.010(2)(£). Hughes, 204 Or
App at 622-24.

Cite as 344 Or 142 147
of law for injury done him in his person, property or
reputation."
The Remedy Clause is the last clause of that provision.
In Smothers v. Gresham Transfer, Inc. , 332 Or 83, 23
P3d 333 (2001), this court set out a methodology for analyz
ing Remedy Clause claims under Article I, section 10. The
court announced that a claim under the Remedy Clause
should be resolved in terms of two questions:
"[First,] when the drafters wrote the Oregon Constitu
tion in 1857, did the common law of Oregon recognize a
cause of action for the alleged injury? If the answer to that
question is yes, and ifthe legislature has abolished the com
mon-law cause of action for injury to rights that are pro
tected by the remedy clause, then the second question is
whether it has provided a constitutionally adequate substi
tute remedy for the common-law cause of action for that
injury."
Id. at 124.
Plaintiffs first challenge under the foregoing analy
sis is to establish that the action at issue-an action for the
wrongful death of her daughter, seeking damages for, among
other things, the deceased's physical and mental suffering
before her death and the loss of the deceased's "society, serv
ices, love and companionship"-is one that was recognized by
the common law of Oregon in 1857. Plaintiff acknowledges
that this court has stated on numerous occasions that, in
Oregon, wrongful death is an entirely statutory cause of
action and has no basis in the common law. See, e.g. , Storm v.
McClung, 334 Or 2 10, 222 n 4, 47 P3d 476 (2002) (stating
proposition) ; Kilminster v. Day Management Corp. , 323 Or
618, 627, 919 P2d 474 ( 1996) (same); Goheen v. General
Motors Corp. , 263 Or 145, 151-52, 502 P2d 223 ( 1972) (same);
Putnam v. Southern Pacific Co. , 2 1 Or 230, 23 1-32, 27 P 1033
( 1891) (same). Plaintiff also acknowledges that, in Juarez v.
Windsor Rock Products, Inc. , 341 Or 160, 169-73, 144 P3d
2 1 1 (2006), this court held that, whatever the status of a
claim for wrongful death was in 1857, it was clear that the
kinds of injuries for which the plaintiffs sought damages in

148 Hughes v. PeaceHealth
their action were not an injury done to the plaintiffs' "prop
erty" within the meaning ofArticle I, section 10. Plaintiff con
tends, however, that Juarez is wrong about the scope of the
right that Article I, section 10, protects and should be recon
sidered. Plaintiff also contends that this court's various state
ments about the status of wrongful death actions under the
common law are contrary to the historical evidence respect
ing that question and therefore should not be considered
binding.
Because it also relates to plaintiffs challenge under
Article I, section 17, discussed below-and because plaintiff
must win it to prevail-we choose to focus first on plaintiffs
argument respecting the status of wrongful death actions in
Oregon in 1857. With regard to that issue, plaintiff attempts
to show that, contrary to the numerous statements to the
contrary in Oregon cases, a common-law action for wrongful
death did exist in 1857 when Article I, section 10, was
adopted.5
Plaintiff first suggests that the common law of
Oregon in 1857 incorporated Lord Campbell's Act, 9 & 10
Viet, ch 93 ( 1846), an 1846 English statute that provided that
a decedent's administrator had a right of action for the bene
fit of certain relatives in cases of wrongful death. Plaintiff
notes that the 1844 provisional legislature adopted "the stat
ute laws of the Iowa Territory" as well as
"the common law of England and principles of equity, not
modified by the statutes of lowa or of this government, and
not incompatible with its principles. "
Laws o f a General and Local Nature Passed by the Legisla
tive Committee and Legislative Assembly [of the Oregon Pro
visional Legislature] , p 100 ( 1853). Plaintiff further notes
that, when Congress established the Oregon Territory in
1848, the laws of the provisional government were carried
forward6 and that the territorial laws were carried forward,
in turn, in 1859, under Article XVIII, section 7 , of the Oregon
5 Certain of the historical arguments that we describe are more properly
attributed to various amici who have filed briefs in support of plaintiffs position.
For the sake of simplicity, we identify those arguments as plaintiffs.
6 Act of August 14, 1848, to Establish the Territorial Government of Oregon,
§ 14, in General Laws of Oregon, pp 75-76 (Deady 1845-1864).

Cite as 344 Or 142
Constitution. Plaintiff contends that, given that succession of
enactments and the fact that the Oregon Territory was gov
erned j ointly by Great Britain and the United States until
1848, it is clear that the organic laws of Great Britain up to
that date-including Lord Campbell's Act-were incorpo
rated into this state's common law at the time of statehood.
The difficulty with the foregoing argument is that
this court has taken a different view of those enactments
with respect to the relationship between this state's common
law and the historical organic law of England. The court has
stated that, when "our territorial legislature and the framers
of our Constitution and our courts recognized the existence
[in Oregon] of the common law, they must have had reference
to that law as it existed, modified and amended by the
English statutes passed prior to the [American] Revolution."
Peery u. Fletcher, 93 Or 43, 53, 182 P 143 ( 1919) (emphasis
added). See also In re Estate ofMoore, 190 Or 63, 70, 223 P2d
393 (1950) (citing Peery for same proposition); United States
F. & G. Co. u. Bramwell, 108 Or 261, 264, 2 1 7 P 332 ( 1923)
(same). And it necessarily follows that English statutes
enacted after the American Revolution (as was Lord
Campbell's Act), were not in 1857 and are not now part of
Oregon's common law.
Plaintiff also argues that the common-law status of
wrongful death in Oregon is evident from a more general
examination of English and American legal history. She
begins by examining the origins of the aforementioned "rule"
followed in Oregon and most other American jurisdictions
that there was no common-law action for wrongful death. She
notes that there is wide agreement, at least modernly, that
the rule arose out of a single j udge's ill-considered dictum in
a minor 1808 English decision, Baker u. Bolton, 1 Camp 493,
170 Eng Rep 1033 ( 1808). She further notes that that dictum
apparently was based on the so-called "felony merger" doc
trine, a peculiar feature of eighteenth and nineteenth cen
tury English law.7 Plaintiff then observes that the felony
7 In essence, the felony merger doctrine held that, when a wrongful act simul
taneously constituted a tort and a felony, a private action seeking damages for inju
ries caused by the tortious act merged into the Crown's prosecution of the felony.
The doctrine was, perhaps, an acknowledgment of the realities of the early English
justice system: A convicted felon forfeited his property to the Crown, leaving

150 Hughes v. PeaceHealth
merger doctrine has been widely criticized and that, in
Moragne v. State Marine Lines, 398 US 375, 90 S Ct 1772, 2 6
L Ed 2d 3 3 9 (1970), the United States Supreme Court
expressly rejected it in the context of a maritime forfeiture
proceeding.
On the affirmative side, plaintiff points to the
ancient Germanic practice, employed in early England, of
requiring monetary reparation to the victim's family for a
wrongful killing. Plaintiff acknowledges that, at least for a
while in England, the emergence of felony merger doctrine
stifled that early practice. She argues, however, that the fel
ony merger doctrine ultimately was rejected in England and
that it never was followed in the American states-never,
at least, until 1848, when the Supreme Judicial Court of
Massachusetts adopted it rather suddenly in Carey v.
Berkshire R. Co. , 55 Mass ( 1 Cush) 475 ( 1848). After Carey,
plaintiff asserts, courts in other American jurisdictions
"blindly" followed Carey, pronouncing as an article of faith
that wrongful death actions had no basis in the common law.
Plaintiff contends, however, that there is a signifi
cant body of evidence showing that, before Carey, American
courts did recognize common-law wrongful death claims. In
support of that argument, plaintiff commends to this court a
list of cases that, in her view, exemplify that characterization
of earlier American law. Plaintiffs list of cases, however, is
not persuasive. Most of them involve actions by slaveowners
in Southern states seeking damages for the negligently
caused death of a slave. Those cases did not involve actions
for wrongful death in the present sense but, instead, were
actions asserting tortious conversion of, or damage to, "prop
erty." See, e.g. , Brunson v. Martin, 17 Ark 270 (Ark 1856)
(master of slave was entitled to bring action against overseer
to recoup damages for value of slave who died as a result of
overseer's "negligent" handling of slave rebellion), Western v.
Pollard, 55 Ky 315 (Ky App 1855) (master of slave who
drowned while employed by contractor could pursue com
mon-law negligence action for value of slave's services).
nothing for private suitors to collect i n damages. Moragne u. States Marine Lines,
398 US 375, 382-84, 90 S Ct 1772, 26 L Ed 2d 339 ( 1 970).

151
Many of the remaining cases-cases from the Massachusetts
Court of Assistance in the late seventeenth century-suggest
only that some death cases of an unspecified nature ended
with the defendant being ordered to pay some amount to the
victim's survivors.8 And, while a few of the cases on which
plaintiff relies show that some courts were willing to enter
tain a man's action for the loss of the services of his son or
wife,9 those cases provide an insufficient basis for a conclu
sion that a parent's action seeking damages for mental suf
fering, loss of society, and similar inj uries caused by the
wrongful death of a child was or would have been recognized
under the common law of early nineteenth century America.
What the evidence does suggest is that the colonial,
state, and local courts in early America often did manage to
arrange for some kind of compensation by persons or entities
responsible for a wrongful death to the decedent's survivors.
But, before those somewhat haphazard arrangements had
coalesced into a clearly defined common-law civil action for
wrongful death, various state legislatures stepped into the
breach and began to enact legislation explicitly providing for
wrongful death actions. With those statutory enactments,
efforts to develop a common law of wrongful death came to a
halt. As one commentator has suggested, the sudden and
almost universal conversion of American courts in the mid
nineteenth century to the rule of Baker v. Bolton was in direct
response to the nearly contemporaneous trend toward pro
viding a statutory wrongful death remedy: Quite simply,
courts were reluctant to recognize a common-law remedy
that might compete with their states' newly adopted
wrongful death statutes. See Wex S. Malone, The Genesis of
Wrongful Death, 17 Stan L Rev 1043, 1068-73 ( 1965). The
same commentator goes on to speculate that, " [h] ad the sev
eral state legislatures remained insensitive to the death
8 Plaintiff refers to a group of early Massachusetts cases summarized in Wex S.
Malone, The Genesis of Wrongful Death, 17 Stan L Rev 1043, 1063-65 ( 1 965).
9 For example, the Connecticut Superior Court held in 1794 that a husband
had a cause of action against a surgeon for malpractice resulting in the death ofthe
husband's wife. Cross v. Guthery , 2 Root 90, 1 Am Dec 61 (Conn Super 1 794). In
Ford v. Monroe, 20 Wend 2 10 (NY Sup 1838), the Supreme Court of the Judicature
of New York held that a father could sue in negligence to recover the value of the
services of his minor son, who had been killed when the defendant's servant had
run over him while driving the defendant's gig.

1 52 Hughes v. PeaceHealth
problem, thus obliging the courts to face it in an open field, it
can be surmised that a common-law death action of some kind
would have unfolded on the American scene." Id. at 1073.
What, then, can we conclude about the status of an
action for wrongful death under the common Jaw as it existed
in 1857, when the drafters of the Oregon Constitution
included the Remedy Clause in the Oregon Constitution?
Can we conclude that the evidence of scattered efforts by
courts in other jurisdictions to provide some compensation in
cases of negligently caused death is sufficient to meet the
first requirement under the Smothers test, 332 Or at 124, for
a Remedy Clause violation-i.e. , that, "when the drafters
wrote the Oregon Constitution in 1857, * * * the common law
of Oregon recognize[d) a cause of action for the alleged
injury[.]"? In the end, we do not think that we can. In that
regard, we note that plaintiff actually is asking for two
things: First, she asks us to conclude that a cause of action for
wrongful death existed in 1857; then, however, she immedi
ately seeks to avoid a statutory limitation on her claim on the
ground that the limitation is contrary to the common law, as
it existed before 1857, that pertained to her injury. History
will not stand that strain. Even if we were to accept the
notion that there was some general movement in the com
mon law of the early nineteenth century that might, had it
been left alone, eventually have grown into a common-law
recognition of a wrongful death action, there is no basis for us
further to conclude that the common law would have recog
nized the particular cause of action that plaintiff now
asserts-an action seeking damages for all injuries occa
sioned by the wrongful death of a family member, including
mental suffering and loss of society and care, without limita
tion of any kind. In the end, plaintiff has failed to persuade us
that the statutory damages cap at ORS 3 1 . 7 10 abolishes a
remedy that was available at common law when Article I,
section 10, was drafted. It follows that, under Smothers,
plaintiff does not have a right to the "remedy" that she seeks
under Article I, section 10.
ARTICLE I, SECTION 17
We turn to plaintiff's contention that, as applied to
her wrongful death action, ORS 3 1 .7 10 violates the right to

Cite as 344 Or 142 153
j ury trial guaranteed by Article I, section 17, of the Oregon
Constitution. As noted, this court considered-and rejected
an almost identical argument in Greist. Plaintiff contends,
however, that, in light of certain more recent cases, Greist no
longer is good law.
In Greist, as in the present case, the trial court
applied the damages cap at ORS 3 1. 7 1010 to reduce a jury's
noneconomic damages award in a wrongful death action
brought under ORS 30.020. The plaintiff challenged the
reduction as a violation of both Article I, section 17, and Arti
cle VII (Amended), section 3, 11 of the Oregon Constitution, on
the theory that the cap interfered with the jury's assessment
of an issue of fact that, under the foregoing provisions, was
reserved to the j ury. This court held that the right to a jury
trial guaranteed by Article I, section 17, did not pertain to
wrongful death actions. The court noted, first, that, under a
long line of cases, Article I, section 17, applied " 'only in those
classes of cases in which the right was customary at the time
the constitution was adopted or in cases of like nature.' "
Greist, 322 Or at 293 (quoting Molodyh v. Truck Insurance
Exchange, 304 Or 290, 295-96, 774 P2d 992 ( 1 987)). The court
cited authority to the effect that wrongful death actions in
Oregon are purely statutory, and then observed that
Oregon's first wrongful death statute was adopted in 1862-
five years after the Oregon Constitution was written. The
court concluded that, because there was no wrongful death
action-common law or statutory-when the constitution
10 When Greist was decided in 1995, the statute presently codified as ORS
3 1 .710 was codified as ORS 18.560.
1 1 Article I, section 17, is an original provision of the Oregon Constitution,
adopted in 1857, and provides: "In all civil cases the right of Trial by Jury shall
remain inviolate."
Article VII (Amended), section 3, was added to the constitution by means of a
1910 initiative. It provides, in part:
"In actions at law, where the value in controversy shall exceed $750, the
right of trial by j ury shall be preserved, and no fact tried by a jury shall be
otherwise re-examined in any court of this state, unless the court can affirma
tively say there is no evidence to support the verdict."
In Greist, this court held that nothing in Article VII (Amended), section 3, "restricts
the legislature's authority to set a maximum recovery in statutory wrongful death
actions." 322 Or at 297. Plaintiff does not challenge that holding or otherwise rely
on Article VII (Amended), section 3.

1 54 Hughes v. PeaceHealth
was drafted and adopted, no right to a jury trial of such an
action could have existed at that time. Greist, 322 Or at 294.
This court also concluded in Greist that, even if Arti
cle I, section 17, did apply to the wrongful death action at
issue, it would not affect the noneconomic damages cap
because Article I, section 17, had never included a right to
unfettered determination of damages by a jury. That was so,
we reasoned, because, when Article I, section 17, was
adopted, "a j ury's determination of the amount of damages to
be awarded in tort actions was not protected from judicial
alteration." Id.
As plaintiff in the present case is quick to point out,
however, this court disavowed the latter statement from
Greist in Lakin v. Senco Products, Inc. , 329 Or 62, 987 P2d
463 ( 1999). The court noted in Lakin that:
"Oregon trial courts never have had the power to reduce a
jury's verdict or to enter judgment for a lesser amount of
damages over the objection of the prevailing party, who
always could reject a j udicial remittitur and demand a new
jury trial."
Id. at 76 (emphasis in original). In fact, this court concluded
in Lakin that, as applied in an ordinary common-law negli
gence action, the damages cap at issue violated Article I, sec
tion 17, because it interfered with a plaintifl's right to have a
jury assess damages-including noneconomic damages-in
such actions. Notably, the court suggested that Greist was
"distinguishable" from Lakin because, unlike the common
law negligence action at issue in the latter case, the wrongful
death action at issue in Greist "was not one recognized at
common law or under the Oregon Territorial Law when Arti
cle I, section 17, was adopted." Id. at 77.
We continue to adhere to that view: Lakin and Greist
are distinguishable from each other precisely because, as is
true here, Greist was a wrongful death case, the parameters
of which are subj ect to legislative adjustment from time to
time. Plaintiff contends, however, that Greist does not con
front the idea, expressed in some of this court's earlier cases,
that the jury trial right that Article I, section 17, guarantees
is not confined to the class of cases in which it was customary

Cite as 344 Or 142 155
in 1857, but also applies to cases "of like nature." See State v.
1920 Studebaker Touring Car et al, 120 Or 254, 251 P 701
( 1927) (using that standard).
Based on 1920 Studebaker and later cases that
describe Article I, section 17, in similar terms, plaintiff
argues that her wrongful death action is "oflike nature" to an
ordinary common-law personal injury action. In that regard,
she argues:
"This is a medical negligence action and, in terms of liabil
ity, the same proof is required as would have been neces
sary had [the deceased] survived but been permanently
injured by the defendant's failure to diagnose and treat her
appropriately. The only distinction between this wrongful
death action and a personal injury action based on the same
liability facts is the nature of some of the damages, i.e. , the
parents' loss of their daughter's 'society, services, Jove and
companionship'."
And, plaintiff argues, because her wrongful death action is
like a personal injury action, she has the same right to a jury
determination of damages, unfettered by legislative or judi
cial interference , that a plaintiff in an ordinary personal
injury action enjoys under this court's Article I, section 17,
deci sion in Lakin.
We disagree. Plaintiffs expansive claim clearly con
flicts with a principle that this court often has invoked in the
context of recent cases arising under Article I, section 17-
that "Article I, section 17, is not a source oflaw that creates or
retains a substantive claim or a theory ofrecovery in favor of
any party." Jensen v. Whitlow, 334 Or 412, 422, 5 1 P3d 599
(2002); see also Lawson v. Hoke, 339 Or 253, 267, 119 P3d 210
(2005) (quoting Jensen); DeMendoza v. Huffman , 334 Or 425,
446, 51 P3d 1 232 (2002) (same). Under that rule, plaintiff is
entitled to a jury's determination of her damages, both in
type and amount, only to the extent that the substantive law,
i.e. , the statute, pertaining to her claim so provides.
We need not further discuss the holding in Lakin to
conclude that the state of affairs with respect to wrongful
death actions is-and always has been-quite different from
the common-law claim at issue in that case. As discussed
above, the view expressed by this court in previous cases-

156 Hughes v. PeaceHealth
that wrongful death in Oregon is purely statutory and has no
secure basis in the common law as it existed in 1857-is cor
rect. Stated differently, in 1857, there was no clear common
law tradition with respect to the necessary elements of a
wrongful death action, or who might bring such an action, or
what sorts of damages would be recoverable, should such a
cause of action be recognized. That is, in Lakin terms, there
was no common-law rule defining the damages for wrongful
death at all, much less one that identified the amount that
would compensate a plaintiff for injuries resulting from the
wrongful act. The legislature therefore retained the author
ity to define the right to recover for wrongful death, the
authority to decide who could recover, and the authority to
establish the nature of the damages that were recoverable.
The legislature did no more.
When the Oregon legislature enacted a law in 1862
providing that the wrongful death action belonged to the
deceased person's personal representative, and that the
cause of action was for "injury done by the same act or omis
sion that would have supported an action by the deceased,
had he or she lived," and that "damages therein shall not
exceed five thousand dollars," General Laws of Oregon, Civ
Code, ch N, title VI, § 367, p 187 (Deady & Lane 1843-1872),
it was defining the action-including the measure of dam
ages-on a clean slate. No issue arose respecting trial by jury,
because that has always been, as a matter of practice, the
way such cases had been tried.12 That fact notwithstanding,
it should not be surprising that no one challenged the $5,000
limitation in the statute as inconsistent with Article I, section
17: Because wrongful death plaintiffs had no preexisting sub
stantive common-law right to compensation for any injuries
resulting from the wrongful act, they could not argue that the
$5,000 limitation interfered with the jury's unfettered deter
mination of their damages.
For precisely the same reason, plaintiff cannot today
argue that the noneconomic damages cap at ORS 3 1 . 7 10 vio
lates her right to an unfettered jury determination of dam
ages: Because the common law does not, and did not in 1857,
12 No separate question arises respecting trial by jury in this case, inasmuch as
p laintiff had such a trial. Moreover, so far a s we are aware, wrongful death cases
always have been tried to a jury.

Cite as 344 Or 142 (2008) 157
recognize a right to unlimited damages in wrongful death
actions, the only relevant source of substantive law respect
ing damages is the statutory law, which expressly places a
cap on noneconomic damages. Thus, any right to a j ury trial
that plaintiff might have under Article I, section 17, cannot
confer a right to a j ury award of a kind or amount of damages
that is contrary to that statutory law.13 We conclude, in short,
that the damages cap at ORS 3 1 . 7 10 does not violate Article
I, section 17, of the Oregon Constitution.
THE INTEREST STATUTE
We come, finally, to plaintiffs argument that the
trial court erred in ordering defendant to pay interest on
plaintiffs damages award at a lower rate than ordinarily
would apply.
In general, money j udgments are subject to a nine
percent per annum interest rate under ORS 82.010(2). How
ever, there are some exceptions to that nine percent rate,
including the one set out at ORS 82.0 10(2)(£):
"The rate of interest on a judgment rendered in favor of a
plaintiff in a civil action to recover damages for injuries
resulting from the professional negligence of a person
licensed by the Board of Medical Examiners * * * is the
lesser of five percent per annum or three percent in excess
of the discount rate in effect at the Federal Reserve Bank in
the Federal Reserve district where the injuries occurred."
After the j ury returned its verdict for plaintiff, defendant
submitted a form ofjudgment specifying the interest rate set
out in ORS 82.0 10(2)(£) as the applicable rate. Plaintiff
obj ected and submitted her own form ofj udgment, specifying
a nine percent interest rate. The trial court accepted and
entered defendant's form of j udgment, implicitly rej ecting
plaintiffs obj ections to the reduced interest rate. On appeal,
plaintiff assigned error to the trial court's application of the
reduced interest rate on statutory and constitutional
It is precisely that point-that Article I, section 17, is not a source of sub
stantive law, that the dissenting opinions fails to appreciate. Statements to that
effect in Jensen, Lawson , and DeMendoza wholly defeat the contrary argument in
both dissents.

1 58 Hughes v. PeaceHealth
grounds , but the Court of Appeals affirmed the trial court.
204 Or App at 622-24.
Before this court, plaintiff argues, first, that ORS
82.010(2)(f) does not apply to her money j udgment against
defendant because her action was not one to "recover dam
ages for injuries resulting from professional negligence"
within the meaning of that statute. Plaintiff contends that
the term "inj uries" is used in the statute in the narrow sense
of bodily injury, exclusive of death-the outcome in her
daughter's case. She notes that, in a variety of statutes, the
legislature refers separately to damages for "inj ury" and
damages for "death." See, e.g. , ORS 30. 265(2) (public bodies
immune from "claim for injury to or death of any person");
ORS 30.805( 1 ) (no person may maintain "an action for dam
ages for injury, death or loss" resulting from acts of person
providing emergency medical assistance); ORS 3 1 .600 (con
tributory negligence no bar to recovery in action to recovery
damages "for death or inj ury to person or property"). She con
cludes that, i n view of the legislature's ordinary practice, it is
significant that it did not specify in ORS 82.010(2)(f) that the
special interest rate applies to actions for injuries or death
resulting from professional negligence.
We agree with the Court of Appeals, however, that
the legislature intended the term "injuries" in ORS
82 .010(2)(f) in the broad legal sense of a violation-any vio
lation-of the legal rights of another. In considering the
issue, we can think of no rational explanation for the statute
that would accommodate the meaning that plaintiff contends
for: Why provide a limited interest rate on money judgments
in medical malpractice actions, but only ifthe patient did not
die? Moreover, we think that it is significant that ORS
82.0 10(2)(f) uses the plural form-"injuries"-while all of
plaintiff's statutory examples refer to "inj ury" and "death" in
the singular. In plaintiffs examples , the singular form is
used because the legislature is identifying a category of
harms-bodily "injury," as opposed to "death" or "loss." The
fact that ORS 82.010(2)(f) uses the plural form-"inj uries"
demonstrates that the legislature was not focusing on a cat
egory of harms but on "inj uries" in a diverse, collective sense.

Cite as 344 Or 142 159
In sum, we think that it is clear from text and context
alone that the legislature used the term "injuries" in ORS
82.010(2)(£) to refer to any violation of a legal right. It follows
that the money judgment at issue here-damages for injuries
to plaintiff that resulted from medical negligence-is subject
to the interest rate provided in ORS 82.010(2)(£).
Plaintiff argues, finally, that the trial court erred in
applying ORS 82.0 10(2)(£) to her money judgment because
that provision violates Article I, section 20, of the Oregon
Constitution. Article I, section 20, provides:
"No law shall be passed granting to any citizen or class of
citizens privileges, or immunities, which, upon the same
terms, shall not equally belong to all citizens."
However, we are unpersuaded by plaintiff's arguments and
do not think that they warrant an extensive discussion. The
trial court did not err.
The decision of the Court of Appeals and the judg
ment of the circuit court are affirmed.
DURHAM, J., dissenting.
The trial jury in this wrongful death action returned
a verdict for plaintiff that included an award of $1 million in
noneconomic damages. After the court dismissed the jury,
the court granted the motion of defendant PeaceHealth to
reduce that part of the jury's award to $500,000 pursuant to
ORS 3 1 . 7 10.1 That statute places an upper limit, or "cap," of
$500,000 on the noneconomic damages award "in any civil
1 ORS 3 1 .7 1 0 provides, in part:
"( l) [With certain specified exceptions] , in any civil action seeking dam
ages arising out of bodily injury, including emotional injury or distress, death
or property damage of any one person including claims for loss of care, comfort,
companionship and society and loss of consortium, the amount awarded for
noneconomic damages shall not exceed $500,000.
"(2) As used in this section:
"'* * *
"(b) 'Noneconomic damages' means subjective, nonmonetary losses,
including but not limited to pain, mental suffering, emotional distress, humil
iation, 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."

160 Hughes v. PeaceHealth
action seeking damages arising out of bodily inj ury, including
* * * death * * * of any one person * * * ."
Plaintiff argues that the elimination of one-half of
the jury's noneconomic damages award pursuant to ORS
3 1 . 7 1 0 constitutes an interference with her right to a trial by
j ury under Article I, section 17, of the Oregon Constitution,
which provides:
"In all civil cases the right of Trial by Jury shall remain
inviolate."
According to plaintiff, this action is a "civil case" within the
meaning of the constitutional phrase "all civil cases" and, as
a result, the trial court's action of cutting the jury's noneco
nomic damages award in half undermines plaintiffs jury
trial right.
The maj ority disagrees with that argument because,
the majority contends, the common law did not recognize, in
185 7 or now, "a right to unlimited damages in wrongful death
actions * * *." 344 Or at 157. The maj ority also asserts that
"wrongful death in Oregon is purely statutory and has no
secure basis in the common law as it existed in 1857 * * * . " Id.
at 155-56. Consequently, according to the maj ority, the leg
islature is free to impose any cap that it desires on plaintiffs
statutory wrongful death damages.
The majority's focus on the specific claim at issue
here and whether a plaintiff had a common-law right to
"unlimited damages" on that claim in 1857 is too narrow and,
consequently, is not accurate. This court has held that the
constitutional j ury trial right refers to the historically recog
nized civil jurisdiction of the courts of law and their tradi
tional practice of trying actions at law before j uries. The con
stitutional right does not turn narrowly on whether, at
statehood, the common law recognized a particular claim or
"cause of action," as the majority contends.
Justice Walters also concludes that the majority's
reasoning and result violate Article I, section 17, of the
Oregon Constitution. I agree with that conclusion. I write
separately to draw attention to an aspect of this court's case
law under that provision that requires a different analysis
and result from that offered by the maj ority.

Cite as 344 Or 142 161
To begin, the majority can take no solace in its obser
vations that "plaintiff had * * * a uury] trial" and that
"wrongful death cases always have been tried to a jury." 344
Or at 156 n 12. Ifthis action is one to which the constitutional
right to trial by jury attaches , "Article I, section 17, prohibits
the legislature from interfering with the full effect of a jury's
assessment of noneconomic damages * * *." Lakin v. Senco
Products, Inc. , 329 Or 62, 78, 987 P2d 463 ( 1999). Under Arti
cle I, section 17, the legislature may not create a scheme,
applicable to a constitutionally protected j ury trial, under
which the court must cut in half a j ury's verdict for noneco
nomic damages to satisfy a legislative cap. The jury trial
right, as this court has held, "includes having a jury deter
mine all issues of fact, not just those issues that remain after
the legislature has narrowed the claims process." Molodyh v.
Truck Insurance Exchange, 304 Or 290, 297-98, 744 P2d 992
( 1987).
The maj ority likewise inhibits rather than advances
a correct interpretation of Article I, section 17, by relying
heavily on Greist v. Phillips, 322 Or 281, 906 P2d 789 ( 1 995),
for the view that the legislature, consistently with Article I,
section 17, may impose a cap on a jury's verdict for nonecon
omic damages because the legal action in question-wrongful
death-exists by reason of a statute. That reliance is errone
ous for two reasons. First, this court in Lakin reexamined
and rejected a key conclusion in Greist, i.e. , that Oregon
courts historically had authority to reduce the amount of a
jury's verdict over the obj ection of the aggrieved party. Lakin
concluded that that authority did not exist. 329 Or at 76.
That flawed conclusion in Greist was the basis for the court's
determination that no j ury trial right applied in wrongful
death proceedings. 322 Or at 295. Because that determina
tion was legally unfounded, this court cannot any longer
"assume without deciding," as Greist did, that a wrongful
death action is "of like nature" to a personal inj ury action to
which the right ofjury trial attaches.2
2 Greist stated that it assumed, without deciding, the correctness of the plain
tiffs argument that a wrongful death action was "of like nature" to a personal
injury action:
"Plaintiff argues, however, that the right to a jury trial is 'not strictly lim
ited to cases in which it existed in 1859, when [Article I. section 17,] became

162 Hughes v. PeaceHealth
Second, by declaring that Greist was "distinguisha
ble," Lakin, 329 Or at 77, the Lakin court concluded only that
Greist provided no assistance to the resolution of the jury
trial issue in Lakin; the court did not endorse, and had no
occasion to endorse, the view stated in Greist that the statu
tory nature of an action at law, such as a wrongful death,
eliminates the constitutional right to a jury trial . Other case
law, that Greist never cited or discussed, shows the error of
that view.
What, then, is the correct understanding ofthe scope
of legal disputes to which the constitutional phrase "all civil
cases" applies? In addressing that question, it is important to
recall that Article VII (Amended), section 3, states, in part,
that " [i]n actions at law, where the value in controversy shall
exceed $750, the right of trial by jury shall be preserved
* * *." (Emphasis added. ) In Molodyh, this court described
the latter provision as an implied limitation on the range of
"civil cases" to which Article I , section 17 applied and con
firmed that the jury trial right does not apply literally in all
civil matters. 304 Or at 295. Molodyh concerned a contract
action regarding an insurance policy. Using the more
recently adopted terminology in Article VII (Amended), sec
tion 3, the Molodyh court expressed the interpretive principle
regarding the claimed jury trial right as follows:
" [A] s long as this form of dispute is tried as an action at
law, a jury trial is required."
Id. at 297 (emphasis added). Each constitutional provision
provides helpful context for the determination of the mean
ing of the other. Although Article VII (Amended) creates a
$750 "value in controversy" qualification on the j ury trial
effective,' because the right extends to 'cases "of like nature" ' to those that
existed at common law at the time the constitution was adopted. Plaintiff
argues that, in 1857, a right to jury trial existed for personal injury actions;
that a wrongful death action is 'of like nature' to a personal injury action; and,
thus, that the right to a jury trial attaches here. Even accepting the premise
that a wrongful death action is 'oflike nature' to a personal injury action, plain
tiffs argument would not prevail. When Article I, section 1 7, and the constitu
tion were adopted, a jury's determination of the amount of damages to be
awarded in tort actions waH not protected from judicial alteration."
322 Or at 294 (emphasis added).

Cite as 344 Or 142
right, it appears that the forms of disputes that the two con
stitutional provisions address, i.e. , "civil cases" and "actions
at law," are substantively identical. This court's case law, dis
cussed below, confirms the correctness of that interpretation.
Article I, section 17, was a part of the original
Oregon Constitution. This court's early cases construing that
provision recited that it preserved the right to jury trial as it
existed at or before statehood, but gave no clear indication of
the nature of the "civil cases" to which the jury trial right
attached before statehood. See, e.g. , Deane v. Willamette
Bridge Co. , 22 Or 167, 169, 29 P 440 ( 1892) ("This provision of
the constitution creates no new right to trial by jury. It sim
ply secures to suitors the right to trial by j ury in all cases
where that right existed at the time the constitution was
adopted.").
This court explained the reach of Article I, section
17, in 1927 in State v. 1920 Studebaker Touring Car et al, 120
Or 254, 251 P 701 ( 1927). In 1920 Studebaker, police had
arrested plaintiffs husband after they discovered that he had
been driving her car while carrying a container of liquor on
his person. A grand jury refused to indict him for any crime.
The wife had no knowledge that her husband had
used her car to transport intoxicating liquor. Nevertheless,
the state commenced a statutory proceeding in rem to forfeit
the vehicle to the state, because the husband had used it to
transport a bottle ofliquor. The statute authorized the wife to
enter the forfeiture proceeding as a defendant by filing a
statement of her interest in the property as well as any
ground for a defense to forfeiture. The wife did so. The statute
also expressly authorized the circuit court to try the forfei
ture proceeding "without a jury." Id. at 257. The question
before the court was whether that provision deprived the wife
of her right under Article I, section 17, of the Oregon Consti
tution to try the statutory forfeiture proceeding before a jury.
The court began by reciting, as it had in previous
cases, the broad proposition that the state constitution pre
served the right to jury trial as it had existed at statehood:
"The right of trial by j ury guaranteed by the Constitu
tion of this state, embraces every case where it existed

164 Hughes v. PeaceHealth
before the adoption of the Constitution, and it is not within
the power of the legislature to enact any law which deprives
any litigant of that right. Hence if as contended for here,
this appellant before the adoption of the Constitution ofthis
state, in having the question determined of whether her
property should be forfeited, would have been entitled to a
jury trial as a matter ofright, then this act, since it deprives
her of such right, is unconstitutional and void * * * ."
Id. at 259 (citations omitted).
The court then concluded that a forfeiture of prop
erty was analogous to the imposition of a penalty for a viola
tion of law and that, traditionally, jury trials had accompa
nied efforts of the legal authorities to judicially enforce
penalties, including in the context offelony criminal proceed
ings. The court then explained the three-part division of
Oregon's courts at statehood that provided the specific con
text for the constitutional right to jury trials in "all civil
cases":
"At the time when our state Constitution was adopted,
courts were classified according to the nature and extent of
their jurisdiction, their forms of proceeding, or the princi
ples upon which they administered justice, either as courts
of admiralty, courts of equity, or courts of law. Controver
sies concerning forfeitures of rights or property could be
adjudicated only in some one or more of these courts, since
in this country there were no other courts in which contro
versies of that nature could be adjudicated."
Id. at 261.
The court explained that, in courts of admiralty and
courts of equity, no constitutional jury trial right applied:
"Courts of admiralty had jurisdiction to enforce forfei
tures, without the aid or presence of a jury, but its jurisdic
tion was limited to cases arising under the admiralty or
maritime law, and it never had jurisdiction to enforce a for
feiture where the seizure was made on land.
"Courts of equity have always refused to lend their aid
to the enforcement of a forfeiture, 'It is a well-settled and
familiar doctrine,' says Professor Pomeroy, 'that a court of
equity will not interfere on behalf of the party entitled
thereto, and enforce a forfeiture, but will leave him to his

Cite as 344 Or 142
legal remedies, if any, even though the case might be one in
which no equitable relief would be given to the defaulting
party against the forfeiture. The few apparent exceptions to
this doctrine are not real exceptions, since they all depend
upon other rules and principles. * * There are, in fact, no
exceptions to this doctrine; those which appear to be excep
tions are not so in realty.' 1 Porn. Eq. Juris (3 ed.), §§ 459,
460."
Id. at 261-62.
The court distinguished courts of equity and admir
alty from "courts oflaw," in which the right to trial by jury, by
tradition, did apply:
"Courts of law administer justice according to the rules
of the common law, and are held for the trial of civil causes
with the presence and aid of a jury, and where there are
issues of fact to be determined, the trial ordinarily must be
by jury."
Id. at 262. The phrase "rules of the common law" was a ref
erence to the j urisdiction of the law courts (as opposed to
courts of equity or admiralty) under the English and
American common-law systems. That phrase did not refer
only to specific claims or causes of action cognizable under
the common law.
The court made that point clear in a succeeding pas
sage that addressed and rejected the state's argument that
the statutory character of the forfeiture proceeding, and its
enactment after adoption of the state constitution, precluded
any constitutional right to jury trial:
"It is argued that these proceedings concern matters in
respect to prohibitory laws enacted since the adoption of the
Constitution, and for that reason are not within the guar
antee of the Constitution, and that controversies concern
ing violations of them may be disposed of by the courts in
any manner the legislature sees fit to adopt. The answer to
this contention is, that the constitutional right of trial by
jury is not to be narrowly construed, and is not limited
strictly to those cases in which it had existed before the adop
tion of the Constitution, but is to be extended to cases oflike
nature as they may hereafter arise. * * *
"* * * * *

166 Hughes v. PeaceHealth
"It is contended, however, that because the procedure
authorized by this act is a special statutory proceeding in
rem against certain specific offending property, it is a pro
ceeding unknown to the common law, and therefore does
not entitle the claimant or owner of the property sought to
be forfeited to a jury trial.
"Where, as in this case, the seizure was made on land,
and a libel or information was filed to condemn the seized
property, which as in this case was purely a proceeding in
rem , the rule before the adoption of the Constitution was
and still is, that the suit is at common law, and that the
claimants or owners of the property are entitled to a jury
trial before a judgment can be passed forfeiting the seized
property."
Id. at 263-64 (emphasis added).
The court also confirmed that the relevant inquiry is
whether, under the traditional scheme of the common law,
the underlying dispute would be resolved by a court of admir
alty, a court of equity, or a court of law:
"In 12 R.C.L., page 133, in stating the law applicable to
forfeitures, the authors say:
" 'In the trial of all cases of seizure, on land or on
waters not navigable, the court sits as a court of common
law, and as in all cases at common law where there are
issues of fact to be determined, the trial must be by jury.
In cases however of seizure made on navigable waters
the court sits as a court of admiralty, and, as in cases of
admiralty and maritime jurisdiction generally, it is set
tled that the trial is to be by the court. Although the two
jurisdictions are vested in the same tribunal, they are as
distinct from each other as if they were vested in differ
ent tribunals, and can no more be blended than a court
of chancery with a court of common law.' "
Id. at 265-66.
The court then applied the analysis that it had set
out. There was no contention that the forfeiture proceeding
belonged in a court of admiralty, because the seizure of the
car was made on land. After lengthy discussion, the court
concluded that the statutory proceeding did not invoke the

Cite as 344 Or 142 167
remedial jurisdiction of a court of equity. That is, the statu
tory proceeding sought the divestment of the wife's property,
not an injunction to restrain an illegal use of property. The
fact that the statutory proceeding involved an action against
the property itself did not alter that conclusion:
"The fact that because the proceedings authorized
under this act are in rem and not in personam does not
change the character of the suit from that of a common-law
action into a suit in equity, nor does it affect the question of
the right of the owner to a trial by jury in this case."
Id. at 269.
The court ultimately concluded that the wife had a
state constitutional right to a jury trial in the statutory for
feiture proceeding. The court declared that the legislature's
requirement that the court should try the proceeding without
a jury was "merely surplusage, and beyond the power of the
legislature to enact * * *." Id. at 271. The court remanded the
case for a new trial before a jury.3
This court has cited and followed 1920 Studebaker
consistently since 1927. Not once has this court reconsidered
or withdrawn any aspect of the reasoning or result in that
3 In State v. Gann, 254 Or 549, 463 P2d 570 ( 1969), this court quoted with
approval the following passage of a dissenting opinion in Dimick u. Schiedt, 293 US
474, 55 S Ct 296, 79 L Ed 603 (1935), that confirmed that the Seventh Amendment
to the United States Constitution served to retain the same distinction, to which I
have referred, concerning the right to jury trial in actions at law, but not in pro
ceedings in equity or in admiralty:
" 'The Seventh Amendment commands that "in suits at common law," the
right to trial by jury shall be preserved, and that "no fact tried by a jury shall
be otherwise re-examined by any court of the United States, than according to
the rules of the common law." Such a provision of a great instrument of govern
ment, intended to endure for unnumbered generations, is concerned with sub
stance and not with form. There is nothing in its history or language to suggest
that the Amendment had any purpose but to preserve the essentials of the jury
trial as it was known to the common law before the adoption of the Constitu
tion. For that reason the Court has often refused to construe it as intended to
perpetuate in changeless form the minutiae of trial practice as it existed in the
English courts in 1971. From the beginning, its language has been regarded as
but subservient to the single purpose of the Amendment, to preserve the essen
tials of the jury trial in actions at law, seruing to distinguish them from suits in
equity and admiralty, see Parsons v. Bedford, 3 Pet. 433, 446, and to safeguard
the jury's function from any encroachment which the common law did not
permit.' "
254 Or at 557-58 (emphasis added; citation omitted).

168 Hughes v. PeaceHealth
case, and it remains today as the most detailed examination
in our case law of the classes of proceedings to which the right
to jury trial applies under Article I, section 17. Yet, the major
ity cites 1920 Studebaker, but fails to follow the analysis in
that case, and ultimately concludes, in direct opposition to
1920 Studebaker's holding, that the statutory nature of a
wrongful death proceeding precludes any right to a j ury trial.
That answer simply ignores the analytical approach that our
case law requires.
Any analysis of the question whether the jury trial
right applies here must begin with the statute that describes
the wrongful death action, ORS 30.020, which provides, in
part:
"( 1 ) When the death of a person is caused by the
wrongful act or omission of another, the personal represen
tative of the decedent, for the benefit of the decedent's sur
viving spouse, surviving children, surviving parents and
other individuals, if any, who under the law of intestate
succession of the state of the decedent's domicile would be
entitled to inherit the personal property of the decedent,
and for the benefit of any stepchild or stepparent whether
that stepchild or stepparent would be entitled to inherit the
personal property of the decedent or not, may maintain an
action against the wrongdoer, if the decedent might have
maintained an action, had the decedent lived, against the
wrongdoer for an injury done by the same act or omission.
The action shall be commenced within three years after the
injury causing the death of the decedent is discovered or
reasonably should have been discovered by the decedent, by
the personal representative or by a person for whose benefit
the action may be brought under this section if that person
is not the wrongdoer.
"* * * * *
"(2) In an action under this section damages may be
awarded in an amount which:
"(a) Includes reasonable charges necessarily incurred
for doctors' services, hospital services, nursing services,
other medical services, burial services and memorial serv
ices rendered for the decedent;
"(b) Would justly, fairly and reasonably have compen
sated the decedent for disability, pain, suffering and loss of

Cite as 344 Or 142
income during the period between injury to the decedent
and the decedent's death;
"(c) Justly, fairly and reasonably compensates for
pecuniary loss to the decedent's estate;
"(d) Justly, fairly and reasonably compensates the
decedent's spouse, children, stepchildren, stepparents and
parents for pecuniary loss and for loss of the society, com
panionship and services of the decedent; and
"(e) Separately stated in finding or verdict, the puni
tive damages, if any, which the decedent would have been
entitled to recover from the wrongdoer if the decedent had
lived."
In ORS 30.020, the legislature has created a statu
tory extension of the traditional common-law claim for per
sonal injury to authorize a recovery of damages by the
injured party's family members when the inj ury is so severe
that it results in death. The vehicle for that recovery is an
"action against the wrongdoer." ORS 30.020( 1). The author
ized remedy is an award of noneconomic, economic, and puni
tive damages against the wrongdoer. ORS 30.020(2).
ORS 30.020 embodies an "action at law" and a "civil
case" within the meaning of the jury trial guarantees in our
state constitution. Or Const, Art I, § 1 7; Art VII (Amended),
§ 3. Stated differently, the courts of law established in the
common law before statehood would have addressed the
action at law that the wrongful death statute authorizes, and
would have tried the action to a jury. In no sense is that
action one that would have been addressed at common law by
courts of equity or courts of admiralty.
It is unnecessary to decide whether the common law
recognized, before statehood, a specific tort claim for wrong
ful death. The jury trial right, according to 1920 Studebaker,
extends to actions at law that were known at statehood and
also to cases of like nature that may arise after statehood.
The legislature has complete authority, for example, to
authorize injured parties to bring a statutorily defined action
at law in Oregon courts to recover damages from a tortfeasor
for causing a wrongful death. Such a statutory action at law
is a case of like nature to an ordinary common-law tort claim
in which the injured party can recover a similar range of

170 Hughes v. PeaceHealth
damages, even though the injury stops short of causing
death. Properly interpreted, the constitutional right to a jury
trial applies to the trial of each of those actions at law.
The majority errs in concluding that the application
of the statutory damages cap in ORS 3 1 . 7 10 to the jury's ver
dict here is consistent with plaintiffs right to jury trial. Lakin
explains why application of a damages cap interferes with
full effect of a jury's assessment of damages in an action at
law. 329 Or at 78. By the same reasoning, the conclusion is
inescapable that cutting the j ury's noneconomic damages in
half, pursuant to a statutory damages cap, constitutes a dep
rivation of the constitutional right to jury trial.
Jensen v. Whitlow, 334 Or 412, 5 1 P3d 599 (2002), is
not to the contrary. This court stressed repeatedly in that
case that it was resolving a facial challenge to a statute, ORS
30.265( 1), that eliminated a tort remedy against an individ
ual public employee tortfeasor and substituted instead a
capped damages remedy against the public body that
employed the tortfeasor. Before addressing the jury trial
issue under Article I, section 17, the court determined that
the statute survived a facial challenge under the Remedy
Clause in Article I, section 10. That was so because, in at
least some cases, a damages award below the statutory cap
against the public body would constitute a sufficient remedy
under Article I, section 10. Id. at 421. Turning to the jury trial
issue, the court repeated that, in the context of the facial
challenge, the statute had permissibly eliminated the tort
remedy against the individual tortfeasors. As a result, the
plaintiff had no cognizable claim against those defendants.
The court stated: "It follows that there is no claim to which a
right to a jury trial can attach. Thus, ORS 30.265( 1 ), on its
face, does not violate Article I, section 17 ." Id. at 422. In the
present case, it is uncontested that ORS 30.020 does author
ize an action at law by plaintiff against defendants for wrong
ful death. Thus, the premise for the Jensen court's response,
on a facial challenge, under Article I, section 1 7 , is absent
here.
It must also be noted that Jensen repeated a quota
tion from Lakin that purported to present a shorthand ver
sion of the holding in Molodyh, limiting the jury trial right to
" 'civil actions for which the common law provided a jury trial

Cite as 344 Or 142
when the Oregon Constitution was adopted in 1857[.]' "
Jensen, 334 Or at 422 (quoting Lakin, and noting that Lakin
cited Molodyh) (brackets in Jensen). That shortened version
does not describe the rule in Molodyh accurately, because it
omits "cases oflike nature" from the scope of the right ofjury
trial. The majority repeats that error here. The accurate quo
tation from Molodyh is:
"This court also has stated that a jury trial is guaran
teed only in those classes of cases in which the right was
customary at the time the constitution was adopted or in
cases of like nature."
Molodyh, 304 Or at 295 (emphases added). For that proposi
tion, Molodyh cited three cases, including 1920 Studebaker.
Id. The "cases of like nature" aspect of the state constitu
tional jury trial right thus has been settled law in Oregon for
at least 80 years.
In order to provide some semblance of reasoning to
support its result, the majority takes several odd steps that
do not withstand scrutiny. First, the majority cites but fails to
engage in any analysis of the key authorities that support
recognition of the jury trial right here: 1 920 Studebaker and
Molodyh. Next, as noted, the majority relies extensively on
statements about legislative and judicial authority to limit
damage awards in Greist that this court undermined and
abandoned in Lakin. The majority then asserts that plaintiff
seeks to use the constitutional jury trial right to create or
retain a substantive claim or theory of recovery. That is not
accurate. ORS 30.020 grants plaintiff authority to bring the
action at law that she had brought and that action closely
resembles other actions at law that, at Oregon's statehood,
were traditionally accorded a jury trial in the courts of law.
The majority's unsuccessful search for an exact match at
common law for the current statutory wrongful death action
at law disregards 1920 Studebaker and incorrectly narrows
the intended flexible application of the jury trial right to
actions at law "oflike nature" that Oregon law may recognize
after statehood. The correct question-whether the statutory
wrongful death action is, in constitutional terms, a "civil
case" and an "action at law," or a case of like nature--is one
that the majority never addresses.

172 Hughes v. PeaceHealth
Oregon's constitution commits this state to protect
ing the right to jury trial in all civil cases and in all actions at
law where the controversy exceeds $750 in value. In a textual
command that should have particular significance for the
judiciary, Article I, section 17, declares that the right ofjury
trial "shall remain inviolate." Those three words, written at
statehood by the framers, is a candid acknowledgment that,
over time, assaults on the right to jury trial will come not only
through efforts at overt withdrawal, as in 1 920 Studebaker,
but also through the indirect effects ofstatutes and rules that
condition and qualify the right by more subtle means. Those
words charge the judiciary with an important duty: to guard
the people's right to jury trial against erosion, including from
complex statutory schemes that enjoy the support of power
ful legislative majorities.
Unlike other constitutional provisions, for which the
framers intended a fixed and inflexible application over time,
the right ofjury trial is, and was meant to be, timeless. The
right applies to actions at law never imagined, let alone
legally recognized, at statehood. The majority violates the
true conception of the right to jury trial by confining it to non
statutory claims that Oregon law recognized before state
hood. Qualifications of that sort have no basis in the consti
tutional text or in our precedents that govern the right to jury
trial. I cannot join in their creation here.
Because plaintiff's challenge to the statutory dam
ages cap under Article I, section 17 is well taken, I do not
address plaintiff's challenge to the damages cap under the
Remedy Clause in Article I, section 10.
I respectfully dissent.
Walters, J., joins in this dissent.
WALTERS, J., dissenting.
The right of trial by jury "occupies so firm a place in
our history and jurisprudence [,]" Dimick v. Schiedt, 293 US
474, 486, 55 S Ct 296, 79 L E d 603 ( 1935), that it can be said
to define our system of justice. So central is the right to jury
trial that this court should not retreat from principles it has

Cite as 344 Or 142 173
recognized as essential to the preservation of that right with
out doing so directly and with clear j ustification. Because the
maj ority has so retreated, I must dissent.
Since 1927 the court has consistently held that the
right to j ury trial is "not to be narrowly construed and is not
limited strictly to those cases in which it had existed before
the adoption of the Constitution, but is to be extended to
cases oflike nature as they may hereafter arise." State v . 1 920
Studebaker Touring Car et al, 120 Or 254, 263 , 251 P 701
( 1927) (emphasis added). Accord Jensen v . Whitlow, 334 Or
412, 421 , 5 1 P3d 599 (2002); Lakin v. Senco Products, Inc. ,
329 Or 62, 82, 987 P2d 463 ( 1999); Greist v. Phillips, 322 Or
281, 293, 906 P2d 789 ( 1995); Molodyh v . Truck Insurance
Exchange, 304 Or 290, 295, 744 P2d 992 ( 1987); Cornelison v.
Seabold, 254 Or 401, 404-05, 460 P2d 1009 ( 1969).
In 1999, in Lakin, the court unanimously held that
the right to jury trial is a right of substance that withstands
legislative interference. 329 Or at 82. The court held that a
plaintiff with a right to jury trial has the right to have the
jury determine the facts in the case, including the amount of
damages to be awarded, and that a statutory cap on damages
unconstitutionally limits the j ury's fact-finding ability. The
court explained the reach of its holding as follows:
"We conclude that Article I, section 17, prohibits the legis
lature from interfering with the full effect of a jury's assess
ment of noneconomic damages, at least as to civil cases in
which the right to jury trial was customary in 1857, or in
cases of like nature."
329 Or at 78 (emphasis added).
Thus, the appropriate paradigm for analysis of the
issue presented here is straightforward: Is an action for neg
ligently caused death "of like nature" to other negligence
actions for which the right to jury trial existed at common
law? If so, the plaintiff has a right to jury trial, and Article I,
section 17, prohibits the legislature from interfering with the
jury's fact-finding ability and assessment of damages.
The majority begins correctly and states plaintiffs
assertion plainly: " [Plaintiff's] wrongful death action is 'of
like nature' to an ordinary common-law personal injury

action." 344 Or at 155. Then, without directly addressing that
assertion, and without a bow to the step it skips, the maj ority
questions whether plaintiff "has the same right to a jury
determination of damages, unfettered by legislative or judi
cial interference, that a plaintiff in an ordinary personal
injury action enjoys under this court's Article I, section 17,
decision in Lakin." 344 Or at 155 ( emphasis omitted ). With
out deciding that plaintiff does not have a right to trial by
j ury, the maj ority concludes that she does not have a right to
have a jury assess her damages " [b] ecause the common law
does not, and did not in 1857, recognize a right to unlimited
damages in wrongful death actions [.]" 344 Or at 1 56-57. The
new bar the majority raises subverts both the principle that
the right to j ury trial is not confined to actions recognized at
common law and the principle that the right to j ury trial is
a right of substance with which the legislature cannot
interfere.
In 1857 there was ordinarily a right to jury trial for
causes of action tried to courts of law. 1920 Studebaker, 120
Or at 262. At that time, courts were classified as either courts
of admiralty, courts of equity, or courts of law:
"At the time when our state Constitution was adopted,
courts were classified according to the nature and extent of
their j urisdiction, their forms of proceeding, or the princi
ples upon which they administered j ustice, either as courts
of admiralty, courts of equity, or courts of law."
Id. at 261. C ases tried to courts of admiralty or courts of
equity could be tried to a judge, but juries ordinarily deter
mined issues of fact in actions at law:
"Courts of law administer j ustice according to the rules
of the common law, and are held for the trial of civil causes
with the presence and aid of a j ury, and where there are
issues of fact to be determined, the trial ordinarily must be
by jury."
Id. at 262.
In 1920 Studebaker, the state seized an automobile
that had been used to transport liquor and brought a case in
rem against the vehicle seeking its forfeiture. The state

Cite as 344 175
brought suit pursuant to a statute that was enacted after1857,
which permitted trial to the court, without a j ury. The owner
of the car protested, claiming that the statute violated her
right to jury trial under Article I, section 17, of the Oregon
Constitution. The state and the dissent argued that the stat
ute created a special in rem procedure unknown at common
law and that the action was not, therefore, within the jury
trial guarantee of the constitution. The dissent stated its
position succinctly: "It would seem that the power which cre
ated the proceeding could also prescribe the procedure." 120
Or at 276 (Coshow, J., dissenting) . The majority view, the
prevailing view, was that the right to jury trial was not lim
ited to actions recognized prior to 1857. The court reasoned
that the right to jury trial extends to cases "of like nature" to
those that existed before the adoption of the constitution, and
that the legislature does not have the prerogative to elimi
nate the litigants' rights to jury trial in such actions. The
court held that because the new statutory action was not an
action in admiralty or equity, but was a species of forfeiture
actions, which were tried to juries at common law, the car
owner had a right to have a jury determine the facts . Id. at
264, 269.
In 1987, the court relied on that 1927 case when it
considered the constitutionality of a statutory requirement,
included in a fire insurance policy, that an appraiser deter
mine the amount of loss. Molodyh, 304 Or at 295. The court
held that the Oregon Constitution mandates a jury trial "in
those classes ofcases in which the right was customary at the
time the constitution was adopted or in cases of like nature."
Id. (emphases added) . The court considered the insureds'
action to recover their losses to be in the same class of cases
as a contract action and reasoned that "as long as this form of
dispute is tried as an action at law, a jury trial is required."
Id. at 296-97. The Molodyh court explained the meaning of
the right to j ury trial: "This right includes having a j ury
determine all issues of fact, not just those issues that remain
after the legislature has narrowed the claims process." Id. at
297-98.
Applying those principles here is not difficult. A
wrongful death action is an action at law and it is therefore in
the same class of cases as other actions at law for which

176 Hughes v. PeaceHealth
Article I, section 17, guarantees a right to jury trial.1 Fur
thermore, a wrongful death action is simply a negligence
action in which the injury ultimately results in death. A
wrongful death claim is one that "the decedent might have
maintained * * *, had the decedent lived, against the wrong
doer for an injury done by the same act or omission." ORS
30.020(1). That claim may arise while the decedent is still
alive, and it arises where the injurious act, and not the death,
occurs. See Howell v. Willamette Urology, P. C. , 344 Or 124,
129, 130, 178 P3d 220 (so stating). "[T)he purpose of a wrong
ful death action is to remove death as a bar to bringing the
claim, not to make death the central event of the action." Id.
at 129.
The majority does not reject my conclusion that a
wrongful death action is "of like nature" to a common-law
negligence action. Instead, the m aj ority states that, in the
case at bar, there is no "separate question" respecting trial by
j ury because plaintiff tried her case to a j ury and "so far as we
are aware, wrongful death cases always have been tried to a
jury." 344 Or at 156 n 12. The majority also refers to "any
right to a jury trial that plaintiff might have [,]" indicating
that it may agree that plaintiff does have a right to jury trial.
344 Or at 157.
The maj ority's refusal to directly state and confront
the obvious conclusion that a wrongful death plaintiff has a
right to jury trial allows it to sidestep the logical implication
of that conclusion. A plaintiff who has a right to jury trial has
a right to have the jury decide all the facts in that action,
1 It is not surprising, therefore, that the reported appellate decisions reveal
that wrongful death cases have been tried to juries without question or objection
since 1892. Sides v. Driscoll, 244 Or 76, 415 P2d 760 (1966); Roehr u. Bean, 237 Or
599, 392 P2d 248 (1964); Durkoop u. Mishler et al, 233 Or 243, 378 P2d 267 (1963);
Sturm v. Smelcer, 235 Or 251, 384 P2d 212 (1963); Welter, Adm'x u. M & M
Woodworking Co. , 216 Or 266, 338 P2d 65 1 (1959); Morey, Administratrix v.
Redifer et al, 204 Or 194, 264 P2d 418 ( 1955); Adair, Adm'x v. Valley Flying Service,
196 Or 479, 250 P2d 104 ( 1952); Scott v. Brogan, 157 Or 549, 73 P2d 688 (1 937J;
Rekdahl v. Cheney, 134 Or 251, 293 P 412 ( 1930); Gillilan u. Portland Crematorium
Assn. , 120 Or 286, 249 P 627 ( 1927); Bloomquist v. City of La Grande, 120 Or 19,
251 P 252 ( 1926); Gray v. Hammond Lumber Co. et al, 113 Or 570, 232 P 637 ( 1925J;
Yovouich v. Falls City Lumber Co. , 76 Or 585, 149 P 94 1 ( 1915); Sulliuan v.
Wakefield, 59 Or 401, 1 1 7 P 3 1 1 ( 1 9 1 1 ); Carlson v. Oregon Short Line Ry. Co. , 21 Or
450, 28 p 497 ( 1892).

Cite as 344 Or 142 177
including damages, without legislative limitation. Lakin, 329
Or at 82. Logically, then, if plaintiff in the case at bar has a
right to jury trial, she has the right to have the jury assess
the full extent of her damages without legislative interfer
ence. The majority avoids that result, not by concluding that
plaintiff does not have a right to jury trial, but by declaring
that plaintiff does not have a different right: "a right to
unlimited damages." 344 Or at 157 (emphasis added). The
majority states:
"Because the common law does not, and did not in 185 7, rec
ognize a right to unlimited damages in wrongful death
actions, the only relevant source of substantive law respect
ing damages is the statutory law, which expressly places a
cap on noneconomic damages."
Id. at 156-57.
If, as the majority opines, the common law did not
recognize wrongful death actions at all in 1857 ,2 the common
law could not possibly have recognized the measure of dam
ages in such actions. But because the right to jury trial
extends to actions that were not recognized by the common
law in 1857, that right also extends to actions in which the
measure of damages had not been determined in 1857. The
court in Lakin did not decide that the plaintiff had a right to
have a jury determine his damages because a plaintiff in an
ordinary negligence action had a "right to unlimited dam
ages" in 1857. The court decided that the plaintiffhad a right
to have a jury determine his damages because the amount of
those damages was a question of fact and, throughout his
tory, it was the function of the jury, not the legislature, to
decide questions of fact. 329 Or at 73. The court reached its
conclusion because " ' [t]he amount of damages * * * from the
beginning of trial by jury, was a "fact" to be found by the
jurors.' " Id. (quoting Charles T. McCormick, Handbook on
the Law ofDamages § 6, 24 ( 1935)).
The majority quotes Jensen for the proposition that
"Article I , section 17, is not a source of law that creates or
2 The majority takes the position that the common law had not "coalesced into
a clearly defined common-law civil action for wrongful death" by 1857 when
Oregon, as well as other legislatures, "stepped in to the breach." 344 Or at 151.

178 Hughes v. PeaceHealth
retains a substantive claim or theory of recovery in favor of
any party." 334 Or at 422. I agree that Article I, section 17,
does not create a right to bring a wrongful death action. By
the same token, Article I, section 1 7, does not create a right to
bring a common-law negligence action. A plaintiffin a wrong
ful death action brings suit pursuant to ORS 30.020. A plain
tiff in an ordinary negligence action relies on the common law
to bring that claim. In both instances, plaintiffs' rights to
bring their claims arise from sources oflaw outside of Article
I, section 17. Similarly, the measure of damages for both
actions is determined by sources outside of Article I, section
17. Because both actions are actions at law, "of like nature,"
both plaintiffs have the right to have a jury determine the
facts in those actions-including damages-without legisla
tive interference.
The maj ority follows its quote from Jensen with the
statement that, " [u] nder that rule, plaintiff is entitled to a
jury's determination of her damages, both in type and
amount, only to the extent that * * * the statute[ ] pertaining
to her claim so provides." 344 Or at 155. The maj ority does
not explain, however, why that is so, and it is not logic that
compels that conclusion. The "rule" that Article I, section 17,
does not grant a plaintiff a right to bring a claim does not
speak to, much less dictate, whether a plaintiffwho does have
a right to bring a claim also has the right to have a j ury deter
mine her damages in that claim. Article I, section 17, is not
the source of any claim, statutory or common law, but it is the
source of the right to jury trial. In Lakin, the statute pertain
ing to the plaintiffs claim imposed a limitation on the dam
ages he could receive. 329 Or 62 (considering ORS 18.560).
But the court nevertheless held that statutory cap unconsti
tutional, not because the plaintiff had a "right" to damages
rooted outside Article I, section 1 7, but because the plaintiff
brought an action at law, and a jury, and not the legislature,
must decide the facts in such an action. 329 Or at 79, 82.
The majority cites no other authority for its conclu
sion that, if the legislature gives birth to an action, the legis
lature can eliminate the constitutional right to have a jury
decide the facts in that action.3 Actually, the opposite has
3 The majority discusses Greist, 322 Or at 293-94, and correctly states that, in
that case, the court concluded that, because there was no wrongfu l death action in

been true for nearly 100 years, the point with which I began
my dissent. In 1920 Studebaker, the court considered and
rejected the argument that the legislative power to prescribe
an action included the power to preclude the jury from find
ing the facts in that action. 120 Or at 263. In Molodyh, the
applicable statute and the rights it provided were unknown
at common law. Nevertheless, the plaintiff had a right to
have a jury determine "all issues of fact, not just those issues
that remain after the legislature has narrowed the claims
process." 304 Or at 297-98.
The maj ority disregards those cases and does not
explain in any satisfactory way why it builds the cornerstone
of our judicial system on the happenstance of whether an
action was initially recognized by the courts or the legislature
and in what year.4 Our constitution does not hang the right to
jury trial on such anomalies. It provides that the right to trial
by jury shall remain inviolate "in all civil cases." Or Const,
Art I, § 17.
The right to trial by jury is not to be narrowly con
strued, and yet that is exactly the rule of construction the
1857, there was no right to jury trial of such an action at that time. 344 Or at 153-
54. The majority does not completely explain, however, that the Greist court then
went on to consider whether a wrongful death action i s "of like nature" to claims
that did exist at the time the constitution was adopted, assumed that it is for pur
poses of argument, but nevertheless concluded that "a jury's determination of the
amount of damages t-0 be awarded in tort actions was not protected from judicial
alteration," 322 Or at 294, a conclusion that the court disavowed in Lakin, 329 Or
at 76-77.
4 The majority explains in an earlier portion of its opinion that whether courts
or legislatures were the first to recognize actions for wrongful death was purely for
tuitous. 344 Or at 1 5 1 . The majority fails to note, however, that when the legisla
ture first acted in Oregon, it did not necessarily intend to "cap" damages in wrong
ful death cases. When the Oregon legislature acted in 1862, it adopted two
provisions permitting wrongful death actions. One permitted personal represen
tatives of deceased persons to bring actions for damages not exceeding $5,000.
344 Or at 156. But, an earlier section of that code gave parents, like plaintiff in the
case at bar, a right to bring actions for the death of their children and did not limit
the damages a parent could seek. Section 33 of the code provided: "A father, or in
the case of the death or desertion of his family, the mother, may maintain an action
as plaintiff for the injury or death of a child, and a guardian for the injury or death
of his ward." General Laws of Oregon, Civ Code, ch I, title III, § 33, p 1 11 (Deady &
Lane 1843-1872). The maj ority does not explain why the present right to jury trial
should turn on whether a court or a jury was the first to consider a wrongful death
action or on the vagaries of the statutes removing death as a bar to bringing an
action for negligently caused death.

180 Hughes v. PeaceHealth
majority has adopted. In doing so, the majority raises ques
tions about the future vitality of that most precious right. If
we limit the substantive right to jury trial to those actions
that existed in 1857, how, over time, will that right remain
inviolate? Will not the court or the legislature be called upon
to identify and redress new harms not known in 1857? Can
not the legislature, under the majority's decision, limit or
eliminate the jury's right to decide the facts in those actions?
How will the right to trial by jury remain robust in the days
to come if the legislature can scale it back to times of old?
The majority's reference to some other, undefined,
"right to a jury trial that plaintiff might have under Article I,
section 17," 344 Or at 157 (emphasis added), provides scant
consolation. The 12 in whom our constitution places its trust
are the 12 who hear each word spoken from the stand, and
the silences between. They are the 12 whose eyes watch oth
ers' eyes and take their measure. By their absence, legisla
tors cannot fill that role. Legislators may decide the catego
ries of harm the state should address and the categories of
persons who may bring claims in courts of law. But only
jurors can shake right out from wrong for individual human
beings and do them justice.
Since long before 1857 it has been the role of the jury
to find the facts, including the fact of damages, in civil actions
at law. The constitution requires that the jury's historical
fact-finding function continue in the future and remain invi
olate. I respectfully dissent.
Durham, J., j oins in this dissent.