                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 14 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JEAN MARIE HOWELL,                               No. 09-36153

              Plaintiff - Appellee,              D.C. No. 3:08-cv-00727-KI

  v.
                                                 MEMORANDUM *
CHRISTOPHER DAVID BOYLE and
CITY OF BEAVERTON,

              Defendants - Appellants.



JEAN MARIE HOWELL,                               No. 10-35038

              Plaintiff - Appellant,             D.C. No. 3:08-cv-00727-KI

  v.

CHRISTOPHER DAVID BOYLE and
CITY OF BEAVERTON,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Oregon
                   Garr M. King, Senior District Judge, Presiding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                       Argued and Submitted October 6, 2010
                                 Portland, Oregon

Before: PAEZ and CLIFTON, Circuit Judges, and BURNS,** District Judge.




      In No. 09-36153, Appellants Boyle and the City of Beaverton argue that the

district court erred when it ruled that the statutory damages cap in the Oregon Tort

Claims Act, Or. Rev. Stat. section 30.270(1) (2007), repealed by Or. Laws 2009, c.

67, § 20, was unconstitutional as applied to this case and awarded Howell damages

in excess of half a million dollars. In No. 10-35038, Howell cross-appealed and

argues that the district court erroneously interpreted Or. Rev. Stat. section 801.220

when it approved jury instructions stating that an unmarked crosswalk extended

diagonally across a highway and admitted a trial exhibit so depicting the location

of the crosswalk. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in

No. 10-25038. In a separate order filed concurrently with this memorandum, we

certified to the Oregon Supreme Court several state constitutional questions, and

we withdrew that appeal from submission pending certification.

      Section 801.220 states that an unmarked crosswalk extends across a roadway

along “[t]he prolongation of the lateral lines of the sidewalk” to the sidewalk on the


       **
            The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.

                                          2
opposite side of the street. The district court ruled that the unmarked crosswalk in

this case extended across the highway at the same angle that the intersecting

sidewalk approached the highway. We interpret the statute as would the Oregon

Supreme Court. Planned Parenthood of Id., Inc. v. Wasden, 376 F.3d 908, 930

(9th Cir. 2004). We conclude that the district court’s ruling was consistent with

the unambiguous text of section 801.220, which locates the unmarked crosswalk in

the area bounded by lines extending from the lateral lines of the intersecting

sidewalk. See State v. Gaines, 206 P.3d 1042, 1050-51 (Or. 2009) (adopting a

three step process for statutory interpretation beginning with an examination of the

text and context of the statute). The district court did not err in its interpretation of

section 801.220.

      AFFIRMED.

      No petition for rehearing shall be filed and the mandate shall not issue until

the court files a disposition in No. 09-36153.




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