No. 14	              March 14, 2013	359

          IN THE SUPREME COURT OF THE
                STATE OF OREGON

                 Jean Marie HOWELL,
                        Plaintiff,
                            v.
               Christopher David BOYLE
                 and City of Beaverton,
                      Defendants.
   (US Court of Appeals for the Ninth Circuit 0936153;
                      SC S059120)

   On certified questions from the United States Court
of Appeals for the Ninth Circuit; certification order dated
January 19, 2011; certification accepted February 17, 2011.
  Argued and submitted September 8, 2011; reassigned
April 24, 2012.
   Janet M. Schroer, Hoffman Hart & Wagner, LLP,
Portland, argued the cause for defendants. With her on the
opening and reply briefs was Marjorie A. Speirs.
   Michael H. Bloom, Michael H. Bloom PC, Salem, argued
the cause and filed the brief for plaintiff.
   Erin C. Lagesen, Assistant Attorney General, John R.
Kroger, Attorney General, and Mary H. Williams, Solicitor
General, Salem, filed a brief on behalf of amicus curiae
State of Oregon.
   Roy Pulvers, Hinshaw & Culbertson LLP, Portland, filed
a brief on behalf of amicus curiae Oregon Health & Science
University.
    Harry Auerbach, Chief Deputy City Attorney, Portland,
filed a brief on behalf of amicus curiae League of Oregon
Cities.
   Lisa T. Hunt and Kathryn H. Clarke, Portland, filed
a brief on behalf of amicus curiae Oregon Trial Lawyers
Association.
360	                                                           Howell v. Boyle

  Before Balmer, Chief Justice, Kistler, Walters, Linder,
and Landau, Justices, and Durham and De Muniz, Senior
Judges, Justices pro tempore.*
    LANDAU, J.
    Certified question answered.
   De Muniz, J. pro tempore, dissented and filed an opinion,
in which Walters, J., and Durham, J. pro tempore, joined.
    Durham, J. pro tempore, dissented and filed an opinion.

     Defendants moved to reduce an award of damages in a personal-injury action
to the limit set by the Oregon Tort Claims Act. Plaintiff objected, arguing that the
statutory limitation violated her constitutional right to a remedy under Article I,
section 10, of the Oregon Constitution. The United States Court of Appeals for the
Ninth Circuit certified questions to the Oregon Supreme Court asking whether
the damages limitation in fact violated Article I, section 10. Held: A statutory
limitation on damages does not violate Article I, section 10, so long as it provides a
remedy that is substantial and does not leave a plaintiff wholly without a remedy.
    Certified question answered.




______________
	    *  Brewer and Baldwin, JJ., did not participate in the consideration or decision
of this case.
Cite as 353 Or 359 (2013)	361

	         LANDAU, J.
	         This case is before the court on certified questions of
Oregon law from the United States Court of Appeals for the
Ninth Circuit (Ninth Circuit). See generally ORS 28.200 to
28.255 (granting authority to answer certified questions and
describing procedure). The questions arise out of an action
for personal injury brought in federal district court against
defendant Boyle and his employer, the City of Beaverton,
for injuries that plaintiff suffered in an automobile collision
with a police car that defendant Boyle drove. A jury found
that plaintiff and Boyle were equally at fault and that
plaintiff ’s damages totaled approximately $1 million. The
trial court reduced the award by half, in accordance with the
jury’s findings of comparative fault. Defendants then moved
to reduce the award further, to the $200,000 limit of the
Oregon Tort Claims Act in existence at the time. The trial
court denied the motion, concluding that the application of
the statutory limitation would violate the remedy clause of
Article I, section 10, of the Oregon Constitution.
	        Defendants appealed, and the Ninth Circuit
certified the following questions to this court:
    “1.  Is [plaintiff ’s] negligence action constitutionally
    protected under the Oregon [C]onstitution’s remedy clause,
    Or. Const. art. I, § 10, irrespective of the jury’s finding of
    comparative negligence? To what extent, if any, do the
    common[-]law defenses to contributory negligence of last
    clear chance, the emergency doctrine, and gross negligence
    [a]ffect this determination?
    “2.  If [plaintiff ’s] action is protected, is $200,000 an
    unconstitutional emasculated remedy despite the jury’s
    finding of comparative negligence? To what extent, if any,
    do the common[-]law defenses to contributory negligence
    of last clear chance, the emergency doctrine, and gross
    negligence [a]ffect this determination?”
We address the second question only, because its answer is
dispositive. Even assuming for the sake of argument that,
under the circumstances of this case, plaintiff ’s negligence
action is constitutionally protected by Article I, section 10,
the $200,000 limitation on her recovery is constitutionally
permissible. Under this court’s case law, the constitution
362	                                                            Howell v. Boyle

requires that any remedy that remains after the imposition
of a modern limitation on it be “substantial.” In this case,
the $200,000 judgment that plaintiff received satisfies that
constitutional requirement.
                            I. BACKGROUND
	        To provide context for the Ninth Circuit’s questions
and our answer, we begin with a more detailed description
of the facts and the procedural history of the case. In 2007,
defendant Boyle, a City of Beaverton police officer, drove
a motor vehicle west on the Tualatin Valley Highway. He
struck plaintiff as she attempted to cross the highway at an
unmarked crosswalk. As a result of that incident, plaintiff
suffered serious injuries leading to permanent disability and
significant medical expenses. Plaintiff brought a diversity
action in the United States District Court for the District of
Oregon, naming as defendants both Boyle and his employer,
the City of Beaverton. Plaintiff alleged $4,779,529.25 in
economic damages and up to $1 million in noneconomic
damages.
	        Defendants answered, alleging that, among other
things, plaintiff ’s injuries were caused by her own negligence
because she had been “darting” across an unsafe intersection
late at night while wearing dark clothes. In addition,
defendants alleged that plaintiff ’s claims are subject to
the “conditions, limitations, procedures and immunities
contained in the Oregon Tort Claims Act.” Specifically,
defendants alleged that, because Boyle had acted within
the course and scope of his employment, plaintiff could not
maintain a claim against him and, under ORS 30.265(1),1
was required instead to substitute the City of Beaverton.
They also alleged that, in any event, to the extent that they
are found liable, such liability is limited by the version of
the Oregon Tort Claims Act then in effect to a maximum of
$200,000. ORS 31.270(1)(b) (2007).2

	    1
         ORS 30.265(1) provides, in part, that “[t]he sole cause of action for any tort
of officers, employees or agents of a public body acting within the scope of their
employment or duties and eligible for representation and indemnification *  *       * 
shall be an action against the public body only.”
	    2
        The Oregon Tort Claims Act has since been amended to increase the
limitation of liability. Those amendments do not apply to this case.
Cite as 353 Or 359 (2013)	363

	       Defendants moved to dismiss Boyle from the case
pursuant to ORS 30.265(1). Plaintiff opposed the motion
on the ground that, under this court’s decision in Clarke
v. OHSU, 343 Or 581, 175 P3d 418 (2007), to preclude the
action against Boyle would violate plaintiff ’s right to a
remedy guaranteed by Article I, section 10, of the Oregon
Constitution. The trial court agreed and denied defendants’
motion.
	       The case was tried to a jury, which determined
that plaintiff and Boyle each were 50 percent at fault. The
jury further found that plaintiff had incurred $765,000 in
economic damages and $250,000 in noneconomic damages,
for a total of $1,015,000. In accordance with the jury’s
findings of comparative fault, the court reduced plaintiff ’s
damages by 50 percent and entered judgment against
defendants for $382,500 in economic damages and $125,000
in noneconomic damages, for a total of $507,500.
	        Defendants then moved to amend the judgment to
reduce the amount of damages to the $200,000 statutory
limit. Plaintiff opposed the motion on the ground that
applying the Oregon Tort Claims Act limit to this case
“emasculated” her common-law remedy against defendants
in violation of the remedy clause of Article I, section 10,
of the Oregon Constitution. The trial court agreed with
plaintiff and denied defendants’ motion.
	        Defendants appealed to the Ninth Circuit,
contending that the trial court had erred in denying their
motion to reduce the judgment to the limits provided in
ORS 31.270(1)(b) (2007). They advanced two arguments in
support of that contention. First, they argued that, under
this court’s decision in Lawson v. Hoke, 339 Or 253, 119 P3d
210 (2005), Article I, section 10, does not even apply because
plaintiff—having been found 50 percent at fault—would
not have been able to recover anything under common-
law negligence as it existed at the time of the framing of
the Oregon Constitution. According to defendants, under
the law prevailing at that time, contributory negligence
in any amount on the part of the plaintiff operated as a
complete bar to recovery. Second, they argued that, even if
Article I, section 10, otherwise applies, the $200,000 cap is a
364	                                          Howell v. Boyle

constitutionally adequate remedy under this court’s recent
precedents.

	        In response to defendants’ first argument, plaintiff
asserted that whether her fault would have precluded
recovery under the law that existed at the time of the
adoption of the state constitution is irrelevant. The sole and
determinative issue, she argued, is whether she could have
stated a claim for negligence, not whether the law at the
time would have entitled her to a remedy. In the alternative,
plaintiff argued that, even if it were appropriate to take into
account defenses to a negligence action that would have
applied in 1857, such as contributory negligence, the fact
remains that the law recognized exceptions to that defense
in cases of gross negligence, conditions of emergency, and
circumstances in which the defendant had the “last clear
chance” to avoid the injury. In response to defendants’
second argument, plaintiff asserted that the limits
established in ORS 31.270(1)(b) (2007) failed to provide
a constitutionally adequate remedy because that statute
indisputably prevented her from recovering the full amount
of her damages.

	        Following the filing of the parties’ briefing on
the foregoing points, the Ninth Circuit entered an order
certifying the two questions to which we have referred. This
court accepted the certified questions and allowed further
briefing. Before this court, the parties essentially reprise
the arguments that they made to the Ninth Circuit.

                       II. ANALYSIS

	       Article I, section 10, of the Oregon Constitution
provides, in part, that “every man shall have remedy by due
course of law for injury done him in his person, property,
or reputation.” The provision is commonly referred to as
the state constitutional “remedy clause.” See, e.g., Juarez
v. Windsor Rock Products, Inc., 341 Or 160, 164, 144 P3d
211 (2006) (referring to Article I, section 10, as containing a
“remedy clause”).
Cite as 353 Or 359 (2013)	365

A.  Prior Case Law on the Constitutional Adequacy of a
    Remedy
	        This court has confronted constitutional challenges
to various types of statutory remedy limitations in several
previous cases, dating back at least to its 1901 decision in
Mattson v. Astoria, 39 Or 577, 65 P 1066 (1901). In that
case, the plaintiff initiated an action against the City of
Astoria for injuries that were said to have been caused by
the city’s negligent maintenance of its public streets. The
city invoked a provision of its charter, adopted pursuant to
legislative authorization, exempting it and any of its council
members from liability for such negligence. The lower court
held the charter provision unconstitutional, and this court
affirmed. The court explained that it is “unquestioned”
that “it is within the power of a legislature to exempt a
city from liability to persons receiving injuries on account
of streets being defective or out of repair.” Id. at 579. The
injured party, the court explained, “is not wholly without
remedy,” because he or she may proceed against city officers
or employees who have been delegated the duty of keeping
the streets in repair. Id. In contrast, the court continued,
the City of Astoria’s charter purported to exempt both the
city and its officers and employees, thus amounting to “a
denial of any remedy.” Id. at 580. Under Article I, section 10,
the court explained, the legislature cannot “deny a remedy
entirely.” Id.
	In Evanhoff v. State Industrial Acc. Com., 78 Or
503, 154 P 106 (1915), the court took a similar approach
to the adequacy of remedies under Article I, section 10.
In that case, the plaintiff challenged the constitutionality
of an early version of this state’s workers’ compensation
legislation. Among other things, he contended that it
violated the remedy clause of Article I, section 10. The court
dismissed that particular argument summarily, noting that,
at that time, the workers’ compensation system was entirely
voluntary. Id. at 517. Then, in dictum, the court went on to
observe:
   “Many of the states for many years have had statutes
   fixing the liability with precision in cases of death, and in
   no instance has any court held such statute invalid. And
366	                                               Howell v. Boyle

   why a statute cannot fix with certainty the damages to
   be allowed in case of the loss of an arm, leg, eye or other
   injury is not perceived, and counsel fail to state any legal or
   constitutional objection thereto.”
Id. at 518 (quoting Hawkins v. Bleakley, 220 Fed 378, 381
(SD Iowa 1914)).
	       The following year, in Humphry v. Portland, 79
Or 430, 154 P 897 (1916), the court more explicitly cited
Mattson for the proposition that Article I, section 10,
prohibits only legislation that leaves a plaintiff wholly
without a remedy. Under that constitutional provision, the
court stated, “a right of action to recover damages for an
injury *  * sustained cannot be so abridged by legislation
        * 
as to deprive the injured party of all remedy.” Id. at 440.
Noonan v. City of Portland, 161 Or 213, 88 P2d 808 (1939),
followed suit. In that case, the court upheld a city charter
granting immunity to the city itself, but not to city officers.
	In Hale v. Port of Portland, 308 Or 508, 523, 783
P2d 506 (1989), the court again held that Article I, section
10, prohibits limitations on common-law actions that leave
a plaintiff “entirely without a remedy.” In that case, the
plaintiff suffered injuries in a motor vehicle collision. He
sued several defendants, including the City of Portland,
which the plaintiff alleged was negligent in maintaining
the road where the accident occurred. He sought more than
$600,000 in damages. The city moved to strike the claim
for damages in excess of the $100,000 limitation that the
Oregon Tort Claims Act then imposed. The trial court
granted the motion, and the Court of Appeals affirmed.
On review, the plaintiff argued that, among other things,
the statutory damage limitation violated Article I, section
10. This court rejected the argument. Reviewing its prior
cases—in particular, Noonan and Evanhoff—the court
explained that those decisions “held only that Article I,
section 10, is not violated when the legislature alters *  *
                                                           * 
a cause of action, so long as the party injured is not left
entirely without a remedy.” Id. at 523. “[I]t is enough,” the
court declared, “that the remedy is a substantial one.” Id.
	     In determining that the limitation on the plaintiff ’s
damages did not deprive him of a “substantial” remedy, the
Cite as 353 Or 359 (2013)	367

court observed that the statutory damage limitation applied
regardless of whether the damages that a plaintiff suffered
arose out of a governmental or proprietary function. Id.
Thus, the court noted, the challenged statute represented
a quid pro quo. On the one hand, it limited the amount of
damages that could be recovered, while on the other hand,
it expanded the types of cases that could trigger municipal
liability by eliminating the traditional immunity that
applied when damages arose as a result of a municipality
performing a governmental function:
   “The class of plaintiffs has been widened by the legislature
   by removing the requirement that an injured party show
   that the municipal corporation’s activity that led to the
   injury was a proprietary one. At the same time, however,
   a limit has been placed on the size of the award that
   may be recovered. A benefit has been conferred, but a
   counterbalancing burden has been imposed. This may
   work to the disadvantage of some, while it will work to the
   advantage of others.”
Id. The court did not say that such a quid pro quo was
required to satisfy the requirements of Article I, section
10. But it concluded that such a “new balance” was clearly
within the legislature’s authority, notwithstanding the
limitations of the remedy clause. Id.
	In Neher v. Chartier, 319 Or 417, 879 P2d 156
(1994), this court again addressed the constitutionality of a
statutory limitation on damages. In that case, the plaintiff ’s
daughter was killed when she was struck by a Tri-Met
bus driven by the defendant, Chartier. The daughter was
acting within the scope of her employment at the time of
the accident, and, under existing workers’ compensations
statutes, the estate recovered the maximum $3,000 burial
benefit. The plaintiff, as the representative of the estate,
then initiated an action against Chartier and Tri-Met. The
defendants, however, moved for judgment on the pleadings,
arguing that they were immune under a provision of the
Oregon Tort Claims Act that granted immunity to public
bodies and their employees for claims arising out of injuries
that were covered by workers’ compensation law. The
trial court granted the motion, and the Court of Appeals
affirmed, concluding that the substitute remedy of workers’
368	                                                         Howell v. Boyle

compensation benefits for tort damages did not leave the
plaintiff wholly without a remedy.
	        This court disagreed, in part. Citing its earlier
decision in Hale, the court first noted that Article I,
section 10, “is not violated ‘so long as the party injured is
not left entirely without a remedy,’ ” and that remedy is
“ ‘substantial.’ ” Id. at 426 (quoting Hale, 308 Or at 523).
With that standard in mind, the court concluded that the
estate itself had not been left wholly without a remedy, as it
was entitled to $3,000 in burial expenses under the workers’
compensation law. Neher, 319 Or at 426. But, the court said,
the estate was not the only real party in interest in a wrongful
death action; the decedent’s parents also were parties, and
they were not entitled to those benefits. “Thus,” the court
concluded, “although the decedent’s estate (for which a
parent happens to serve as a personal representative) has
not been left ‘wholly without remedy,’ the surviving parents
of the decedent, who otherwise would be entitled to recover,
* * * have been left wholly without a remedy.” Id. at 426-27
(emphasis in original).
	In Greist v. Phillips, 322 Or 281, 906 P2d 789 (1995),
the court addressed the constitutionality of another statutory
limitation on damages, in that case ORS 18.560(1), which
imposed a $500,000 limitation on noneconomic damage
awards.3 The plaintiff had been awarded economic damages
of $100,000 and noneconomic damages of $1.5 million, but
the trial court reduced the award of noneconomic damages
in accordance with the statutory limitation. On review, the
plaintiff argued that the limitation on the noneconomic
damage award violated Article I, section 10. Specifically, the
plaintiff argued that the statutory limitation “wholly denies
a remedy for legitimate losses that exceed $500,000.” Id.
at 290. This court rejected the argument. Citing both Hale
and Neher, the court held that “[p]laintiff has not been left
without a remedy. She has received $600,000, comprised
of $500,000 in noneconomic damages and $100,000 in
economic damages. * * Although that remedy is not
                        * 
precisely of the same extent as that to which plaintiff was

	  3
       The statute later was declared unconstitutional on other grounds in Lakin v.
Senco Products, Inc., 329 Or 62, 82, 987 P2d 463 (1999).
Cite as 353 Or 359 (2013)	369

entitled before the enactment of ORS 18.560(1), that remedy
is substantial.” Id. at 291. The court held that the remedy
was substantial, among other things, “because 100 percent
of economic damages plus up to $500,000 in noneconomic
damages is a substantial amount.” Id. The court’s holding
in Greist prompted a concurring opinion from Justice Unis,
who took the court to task for applying a substantial remedy
test, which he argued was “vague and gives no guidance to
legislators, litigants, or ordinary citizens as to how courts
will apply the standard.” Id. at 311 (Unis, J., concurring in
part, specially concurring in part).
	In Smothers v. Gresham Transfer, Inc., 332 Or 83,
124, 23 P3d 333 (2001), the court engaged in a wholesale
reevaluation of its remedy clause jurisprudence. The court
engaged in an extended historical analysis of the scope and
effect of the remedy clause and established a new method
of analysis of claims arising under it. 332 Or at 123-24.
In that case, the plaintiff had been injured in a work-
related accident. He filed a claim under the state’s workers’
compensation statutes, but that claim was denied. He then
filed a claim for negligence against his employer. Id. at 86.
The employer responded with a motion to dismiss the claim
on the face of the pleadings on the ground that the workers’
compensation statutes provided the exclusive remedy for
work-related injuries. The trial court granted the employer’s
motion, and the Court of Appeals affirmed. Smothers v.
Gresham Transfer, Inc., 149 Or App 49, 941 P2d 1065 (1997).
This court reversed, holding that the trial court should not
have granted the employer’s motion to dismiss because the
statute providing that the workers’ compensation law is
the exclusive remedy for work-related injuries violated the
remedy clause. Smothers, 332 Or at 86.
	        In brief, the court explained that the remedy clause
of Article I, section 10, was “intended to preserve common-
law right[s] of action.” Id. at 119. The court summarized its
analysis in the following terms:
   	 “Drafters of remedy clauses in state constitutions sought
   to protect absolute common-law rights by mandating that
   a remedy always would be available for injury to those
   rights. The drafters of the Oregon remedy clause identified
370	                                                           Howell v. Boyle

      absolute rights respecting person, property, and reputation
      as meriting constitutional protection under the remedy
      clause. As to those rights, the remedy clause provides, in
      mandatory terms, that remedy by due course of law shall
      be available to every person in the event of injury. The
      word ‘remedy’ refers both to a remedial process for seeking
      redress for injury and to what is required to restore a right
      that has been injured. Injury, in turn, is a wrong or harm for
      which a cause of action existed when the drafters wrote the
      Oregon Constitution in 1857. A common-law cause of action
      is a constitutionally adequate remedy for seeking redress
      for injury to protected rights. However, the remedy clause
      does not freeze in place common-law causes of action that
      existed when the drafters wrote the Oregon Constitution in
      1857. The legislature may abolish a common-law cause of
      action, so long as it provides a substitute remedial process
      in the event of an injury to the absolute rights that the
      remedy clause protects.”
Id. at 124.4 The court then articulated a method of analyzing
claims brought under the remedy clause that consists of
answering two questions:
      “[I]n analyzing a claim under the remedy clause, the first
      question is whether the plaintiff has alleged an injury
      to one of the absolute rights that Article I, section 10[,]
      protects. Stated differently, when the drafters wrote
      the Oregon Constitution 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 if the legislature
      has abolished the common-law cause of action for injury to
      rights that are protected by the remedy clause, then the
      second question is whether it has provided a constitutionally
      adequate substitute remedy for the common-law cause of
      action for that injury.”
Id.
	       Turning to the particulars of that case, the court
determined that the plaintiff ’s action for negligence against
his employer would have been recognized at common law in
1857 and that, because the exclusive remedy provision of
	   4
        The court noted that, in a number of its earlier Article I, section 10, cases,
such as Noonan, it had suggested that the remedy clause was not intended to
preserve common-law rights and that later cases, such as Hale, had repeated the
suggestion. Smothers, 332 Or at 118-19. The court disavowed those statements, id.
at 119, which have no bearing on the questions before us in this case.
Cite as 353 Or 359 (2013)	371

the workers’ compensation statutes completely eliminated
that common-law remedy, the statute was unconstitutional:
“Having alleged an injury of the kind that the remedy
clause protects, and having demonstrated that there was
no remedial process available under present workers’
compensation laws, plaintiff should have been allowed to
proceed with his negligence action.” Id. at 136.
	       Thus, under Smothers, the initial question is
whether, under the circumstances of the case, the common
law of Oregon would have recognized a cause of action for
the claimed injury. If the answer to that question is no, then
the remedy clause is not implicated, and the matter is at
an end. If the answer to the first question is yes, then we
must determine whether a challenged limitation renders
the common-law remedy constitutionally inadequate.
	        Smothers did not supply much in the way of
explanation as to how we are to determine the adequacy of
a remedy under Article I, section 10. The court noted that,
in its prior cases, it had never held “that the remedy clause
prohibits the legislature from changing a common-law
remedy or form of procedure, attaching conditions precedent
to invoking the remedy, or perhaps even abolishing old
remedies and substituting new remedies.” Id. at 119. That
said, the court declared that neither can the legislature
substitute an “’emasculated remedy’ that is incapable of
restoring the right that has been injured.” Id. at 119-20. In
that regard, the court explicitly noted that, in Hale, Neher,
and Greist, it had concluded that a remedy is adequate
under Article I, section 10, so long as it is “substantial.” Id.
at 120 n 19. The court stated that it was simply “beyond
the scope of this opinion to address issues relating to the
adequacy of the amount of damages that may be available
under a legislatively substituted process.” Id.
	         Clarke v. OHSU, 343 Or 581, 175 P3d 418 (2007),
was the first post-Smothers decision to address the
constitutionality of a statutory damage limitation in any
detail.5 In that case, the plaintiff suffered permanent brain

	    5
        In Jensen v. Whitlow, 334 Or 412, 51 P3d 599 (2002), the plaintiff challenged,
in federal district court, the constitutionality of the statutory damage limitation
imposed by the Oregon Tort Claims Act both facially and as applied. The federal
372	                                                            Howell v. Boyle

damage as a direct consequence of the negligence of Oregon
Health and Science University (OHSU) and certain of its
employees and agents. Id. at 586. The damages resulting
from his injuries totaled more than $17 million. Id. The
defendants, however, admitted negligence and, invoking the
damage limitation of the Oregon Tort Claims Act, moved for
entry of judgment against them for $200,000. Id. at 587.
The trial court granted the motion and entered judgment
accordingly. Id.
	       On review, the plaintiff argued that the statutory
damage limitation of $200,000 violated Article I, section
10. Id. The court held that, because OHSU was an
instrumentality of the state that would have been immune
from liability at common law, the limitation of its liability
posed no issue of constitutional adequacy under the remedy
clause. As to the individual defendants, however, the
court concluded that the statutory damage limitation was
unconstitutional on the facts of that case. Id. at 610.
	        The court began its opinion in Clarke by
recapitulating its prior cases on the subject, including Hale,
Neher, Greist, Smothers, and Jensen. Id. at 601-06. Among
other things, the court quoted with approval the portion of
Hale that described the proper analysis of the adequacy of a
remedy under Article I, section 10, as depending on whether
the existing remedy “is a substantial one;” indeed, the Clarke
court added its own emphasis to the words “substantial
one.” Id. at 602. Consistently with that emphasis, the
court summarized the significance of its prior cases in the
following terms:

district court submitted to this court the question whether the damages limitation,
“on its face or as applied,” violates several provisions of the state constitution,
including Article I, section 10. Id. at 415. This court declined to answer the question
to the extent that it pertained to as-applied challenges to the damages limitation
because the record was inadequate to enable the court to answer the question. Id.
As for the facial challenge to the damages limitation, the court framed its analysis
in terms of the two Smothers questions. Id. at 418. It then assumed, without
deciding, that the answer to the first question was that the injury at issue was
one for which Article I, section 10, guarantees a remedy. Id. Turning to the second
question, concerning the adequacy of the modern remedy, the court concluded that,
“because a damages award has yet to be determined in this case, the damages ‘cap’
does not render the remedy available to plaintiff ‘incapable of restoring the right
that has been injured.’ ” Id. at 421 (quoting Smothers, 332 Or at 119-20).
Cite as 353 Or 359 (2013)	373

   “[A]s our review of the cases demonstrates, Article I, section
   10, does not eliminate the power of the legislature to vary
   and modify both the form and the measure of recovery for
   an injury, as long as it does not leave the injured party with
   an ‘emasculated’ version of the remedy that was available
   at common law.”
Id. at 606. The court acknowledged that neither the
constitution itself nor the prior case law provides a precise
test for determining whether a particular remedy has been
“emasculated.” Id. Having said that, the court concluded
that the disposition of the case before it was “relatively
simple,” given the fact that the statutory damage limitation
deprived the plaintiff of all but a very small portion of the
over $17 million in damages that he suffered. Id. at 607.
	        To the defendants’ argument that even the
relatively small amount allowed by the statutory limitation
was sufficient under Hale and Greist, the court replied that
those cases were distinguishable on their facts. In Clarke’s
case, the court held, the claim of the plaintiff against the
individual defendants had been essentially eliminated. The
court reiterated that “the legislature is authorized under
Article I, section 10, to vary or modify the nature, the form,
or the amount of recovery for a common-law remedy,” but
added that “that authority is not unlimited.” Id. at 609.
	       In a concurring opinion, Justices Balmer and
Kistler emphasized that, although Hale and Greist were
distinguishable on their facts, “nothing in the majority
opinion undermines the holdings in those cases that the
[r]emedy [c]lause does not prohibit the legislature from
imposing caps on tort damages as long as those caps do not
deprive a plaintiff of a ‘substantial remedy.’ ” Id. at 615-16
(Balmer, J., concurring).
	        The foregoing case law consistently holds that the
legislature is authorized to enact a limitation on tort claim
recovery so long as the remaining remedy is “substantial.”
As the court declared—twice—in Clarke, Article I, section
10, does not deprive the legislature of the authority “to
vary and modify both the form and the measure of recovery
for an injury,” so long as the legislature does not leave the
injured party with an “emasculated” remedy. 343 Or at 606
374	                                                             Howell v. Boyle

(emphasis added); id. at 609 (the legislature is authorized
“to vary, or modify the nature, the form, or the amount of
recovery for a common-law remedy” (emphasis added)). The
reference to “emasculated” remedies is unfortunate, if not
sexist,6 and we discourage its further use in favor of the
references in the case law to the necessity that remaining
remedies be “substantial.”7
B.  Application
	        With those considerations in mind, we turn to this
case. Under Smothers, we confront two questions. First, we
must determine “whether an ‘absolute common-law right’
that existed when the Oregon Constitution was drafted in
1857 would have provided plaintiff with a remedy for the
injuries that she sustained in the accident with defendant.”
Lawson, 339 Or at 259. For the purposes of this opinion, we
assume, without deciding, that the answer to that question is,
yes. See Jensen, 334 Or at 418 (assuming, without deciding,
that the plaintiff ’s injury was protected by Article I, section
10, “because the second step of the Smothers analytical
framework is dispositive”). That triggers a second question;
namely, whether the legislatively adopted limitation on that
remedy is “constitutionally adequate.” Smothers, 332 Or at
124.
	       As we have noted, under this court’s prior case
law, the constitutional adequacy of a modern remedy
may be established by the fact that the modern remedy is
“substantial” and does not leave the plaintiff “wholly without
	   6
         Webster’s defines “emasculate” as:
     “1: to deprive of virile or procreative power : CASTRATE, GELD 2 : to deprive
     of masculine vigor or spirit : weaken or attenuate by removal or alteration
     of potent qualities as a : to divest (language) of vigor and freedom (as by
     excision, euphemism, or weakening of sense) b : to deprive (a law) of force or
     effectiveness (as by amendment or interpretation).”
Webster’s Third New Int’l Dictionary 738 (unabridged ed 2002). The use of the term
in the Article I, section 10, context has been justly criticized for its implication that
“strength and vitality are gender-specific.” Ackerman v. OHSU Medical Group, 233
Or App 511, 532 n 10, 227 P3d 744 (2010).
	    7
        The particular term used in reference to the inadequacy of remedies under
Article I, section 10, traces back to West v. Jaloff, 113 Or 184, 232 P 642 (1925),
in which the court rejected the defendant’s proposed construction of a statute
that conferred limited immunity from liability on ambulance drivers because the
construction would give the plaintiff “an emasculated remedy wholly inadequate
under many conditions.” Id. at 195.
Cite as 353 Or 359 (2013)	375

remedy.” In this case, defendants contend that plaintiff ’s
remedy of $200,000 is constitutionally adequate under that
test. Defendants are correct.

	         The cases make clear that the mere fact that the
statutory limitation resulted in a reduction in the amount
that plaintiff otherwise would have been awarded, by itself,
does not establish a violation of Article I, section 10. As this
court explained in Clarke, Article I, section 10, does not
deprive the legislature of the authority “to vary and modify
both the form and the measure of recovery for an injury,” so
long as the legislature leaves the plaintiff with a substantial
remedy. 343 Or at 606 (emphasis added). Likewise, in Hale,
the court declared that “Article I, section 10, is not violated
when the legislature alters * * * a cause of action, so long as
the party injured is not left entirely without a remedy. * * *
[I]t is enough that the remedy is a substantial one.” 308 Or
at 523.

	       This court has never spelled out the precise
contours of such a determination. Such precision is
perhaps impossible. See Clarke, 343 Or at 613 (Balmer, J.,
concurring) (“This court has not articulated a precise test,
and it probably is not possible to do so.”). As this court has
stated in another context, determining whether an award
of damages is “substantial” requires “flexibility and a
consideration of the facts and circumstances that each case
presents.” Hamlin v. Hampton Lumber Mills, Inc., 349 Or
526, 537, 246 P3d 1121 (2011).

	        This court has concluded that a legislative limitation
on damages is constitutionally inadequate in only two cases,
Neher and Clarke. In the former case, the court held that,
although the estate of the victim had not been completely
deprived of a remedy by virtue of the existence of a $3,000
burial benefit under workers’ compensation law, the parents
of the victim had been totally deprived of any remedy. In
the latter case, this court held that, when the statutory
limitation of $200,000 deprived the plaintiffs of all but one
percent of the more than $17 million in damages that they
would have otherwise recovered, the limitation left them
with a constitutionally inadequate remedy.
376	                                          Howell v. Boyle

	        In this case, but for the $200,000 damage limitation
of ORS 31.270(1)(b) (2007), plaintiff would have recovered
a total of $507,500, consisting of $382,500 in economic
damages and $125,000 in noneconomic damages. The
damage limitation thus does not leave plaintiff “wholly
without a remedy,” as was the case for the parents of the
plaintiff in Neher. And it represents a far more substantial
remedy than the paltry fraction that remained after the
imposition of the limitation in Clarke.

	        The facts of this case are much more like those of
Hale, in which the court found that a statutory damage
limitation of $100,000 left the plaintiff with a substantial
remedy even though the plaintiff had alleged more than
$600,000 in damages. To be sure, this court observed that
the legislature, in adopting the statutory damage limitation
at issue in that case, had in effect exchanged the limitation
for a statutory expansion of the class of persons who are
permitted to sue. 308 Or at 523. But the distinction is of no
moment in this case, in which a similar quid pro quo may be
seen to apply. As to defendant City of Beaverton, in fact, the
same “balance” that the court mentioned in Hale applies. As
to defendant Boyle, under ORS 30.265(1) and 30.285(1), the
city remains liable for the torts of its employees committed
within the scope of employment. Thus, while the legislature
limited the amount that may be recovered from individual
defendants who are municipal employees, it substituted the
“deep pocket” of the municipality itself as the ultimate payor.
Plaintiffs, in other words, have been conferred a substantial
benefit in exchange for the damage limitation. As Hale
makes clear, that is a permissible legislative decision under
Article I, section 10.

	        This case is even more like Greist, in which the
court held that the plaintiff was not left without a remedy
when the tort claim limitation left her with a total of
$600,000 in damages, compared with the initial award of
$1.5 million. “Although that remedy is not precisely of the
same extent as that to which plaintiff was entitled” before
the imposition of the limitation, the court explained, “that
remedy is substantial.” 322 Or at 291. The same is true in
this case.
Cite as 353 Or 359 (2013)	377

	        Plaintiff insists that her common-law right to
recover damages for negligence has been inadequately
remedied with the $200,000 tort claim limitation. She
reasons that, “under the common law, the plaintiff had
the right to obtain a full recovery for damages from the
individual tortfeasor who negligently caused the injuries—
in other words, she was entitled to be made whole.” It is
that common-law right—the right to be made whole—that
she contends has been eliminated with the imposition of the
statutory damage limitation.
	        The dissent takes a similar approach.8 According to
the dissent, the remedy clause guarantees plaintiff “the full
amount of economic damages attributable to defendant.”
353 Or at 359 (De Muniz, J. pro tempore, dissenting). The
dissent states that, as such, Article I, section 10, does not
countenance “partial” remedies. Id. at 393 (De Muniz, J. pro
tempore, dissenting).9
	        Plaintiff ’s and the dissent’s interpretation of
Article I, section 10, is essentially the same interpretation
that the plaintiff asserted in Greist, and that this court
explicitly rejected. See Clarke, 343 Or at 615 (Balmer, J.,
concurring) (noting that Greist rejected the argument
that Article I, section 10, guarantees a right to be made
whole). Indeed, plaintiff ’s and the dissent’s interpretation
cannot be squared with any of the foregoing cases dating
back at least to 1901—cases that consistently hold that
Article I, section 10, “does not eliminate the power of
the legislature to vary and modify both the form and the
measure of recovery for an injury,” Clarke, 343 Or at 606
(emphasis added), but rather guarantees that plaintiffs not
be left with less than a “substantial” remedy. Id. at 602,
	    8
         There are actually two dissents, one authored by Justice De Muniz and the
other by Justice Durham. As we understand it, however, Justice Durham’s opinion
merely emphasizes one of the points made by Justice De Muniz. Accordingly, when
we refer to “the dissent,” we refer to the one authored by Justice De Muniz.
	    9
         The dissent is not entirely consistent on this point. Throughout the opinion,
it complains about our holding countenancing “partial” remedies and asserts that
“the constitution plainly requires that plaintiff have a fully restorative remedy.”
353 Or at 406 (De Muniz, J. pro tempore, dissenting). At other points in the
opinion, however, the dissent suggests that a constitutionally sufficient remedy
must be at least “capable” of being fully restorative. Id. at 391, 392, 394, 396
(De Muniz, J. pro tempore, dissenting). The dissent does not explain the significance
of that difference in phrasing.
378	                                                           Howell v. Boyle

605; Greist, 322 Or at 291; Hale, 308 Or at 523. Plaintiff ’s
and the dissent’s interpretation essentially inverts that
longstanding interpretation of the remedy clause from one
that guarantees that plaintiffs not be left “wholly without
remedy” to one that guarantees that plaintiffs obtain a
whole remedy.
	         The dissent acknowledges that we have correctly
described our prior case law as holding that the remedy
clause does not limit legislative authority to alter a remedy
so long as the remaining remedy is “substantial.”10 But it
insists that our understanding of the meaning of the word
“substantial” is in error. According to the dissent, that term,
as used in remedy clause cases, has acquired a special
meaning that is somewhat different from what it ordinarily
means. The dissent asserts that a “substantial” remedy is
one that wholly restores a plaintiff ’s injury.
	         In asserting that the notion of a “substantial”
remedy is limited to one that is wholly restorative of a
plaintiff ’s injury, the dissent claims support from this court’s
decisions in Hale and Greist. The dissent’s reading of those
decisions, however, does not bear careful scrutiny.
	         As we have noted, in Hale, the court upheld the
application of a damage limitation that had the effect of
reducing $600,000 in claimed damages to $100,000. The
court held that Article I, section 10, does not deprive the
legislature of authority to alter a cause of action or reduce
damages. “[T]he remedy need not be precisely of the same
type or extent” as those existing at common law, the court
explained. 308 Or at 523. “[I]t is enough that the remedy is
a substantial one.” Id.
	         The dissent deftly describes the court’s analysis in
Hale without mentioning the fact that the court specifically
stated that the remedy clause leaves the legislature free to
alter the “type or extent” of damages that may be recovered.

	   10
         Actually, the dissent is not quite consistent in that regard, as well. At one
point, the dissent takes us to task for abandoning the use of the outdated term
“emasculated,” used in some cases, in favor of the term “substantial,” used in
others. 353 Or at 390 (De Muniz, J. pro tempore, dissenting). In the balance of the
opinion, the dissent acknowledges the importance of the term in prior cases, but
asserts that the term has been “imbued” “with a clear meaning,” that is, one that
wholly restores a right that has been injured. Id.
Cite as 353 Or 359 (2013)	379

Instead, the dissent embarks on a detailed analysis of two
earlier cases that the court in Hale cited—Noonan and
Evanhoff—which the dissent reads as holding that the
remedy clause is not violated when an alternative remedy
remains available. 353 Or at 392-96 (De Muniz, J. pro
tempore, dissenting). The dissent then boldly declares
that, because “[n]either of those cases can be read for
the proposition that a partial remedy *  * is capable of
                                           * 
satisfying the [r]emedy [c]lause,” Hale cannot be read
to countenance such a partial remedy, either. Id. at 393
(De Muniz, J. pro tempore, dissenting). That makes no sense.
Even assuming for the sake of argument that the dissent
fairly characterizes Noonan and Evanoff as not involving
the issue of the constitutionality of partial remedies, the
fact remains that Hale did. And it simply cannot be denied
that Hale upheld the constitutionality of a partial remedy.
	        The dissent’s reading of Greist is similarly
unavailing. As we have noted, in that case, the court upheld
a statutory damage limitation that reduced the plaintiff ’s
initial award from $1.5 million to a total of $600,000,
consisting of $100,000 in economic damages and $500,000
in noneconomic damages. The court held that, even though
$600,000 was only slightly more than one third of the original
award, that total amount nevertheless was constitutionally
adequate because it was a substantial amount:
   	 “Plaintiff has not been left without a remedy. She has
   received $600,000, comprised of $500,000 in noneconomic
   damages and $100,000 in economic damages. There was no
   statutory limit on the latter category of damages. Although
   that remedy is not precisely of the same extent as that to
   which plaintiff was entitled before the enactment of ORS
   18.560(1), that remedy is substantial.”
322 Or at 291 (emphasis added). The dissent ignores the
court’s holding in Greist. According to the dissent, the
decision actually was predicated on the fact that recoveries
for wrongful death historically were quite low. 353 Or at 395
(De Muniz, J. pro tempore, dissenting). But that is simply
not what the court in Greist said. Rather, as the foregoing
quotation makes clear, the court held that the amount of
plaintiff ’s award of $600,000 was a substantial award, in
and of itself. The court then offered an additional reason
380	                                          Howell v. Boyle

for its decision, observing that the award was substantial
“also because the statutory wrongful death action in Oregon
has had a low limit on recovery.” 322 Or at 291 (emphasis
added).
	        The dissent also suggests that, in any event, Greist
has limited precedential value because it involved the
application of the remedy clause to claims for wrongful
death, which this court has subsequently determined are
not subject to the remedy guarantee of Article I, section 10.
353 Or at 394 n 5 (De Muniz, J. pro tempore, dissenting).
That is a curious criticism. That this court later held that
its remedy clause analysis does not apply to wrongful death
claims, see Hughes v. PeaceHealth, 344 Or 142, 151-52, 178
P3d 225 (2008), in no way suggests that the remedy clause
analysis itself was wrong. In fact, in subsequent Article
I, section 10, cases, this court has continued to cite and
discuss Greist—and Neher, also a wrongful death case—in
describing its remedy clause analysis. Clarke, for example,
contains extensive discussions of both Greist and Neher
without any suggestion that either has limited precedential
value. Clarke, 343 Or at 603-05.
	        The dissent also complains that we have observed
that this case is unlike other cases, such as Clarke, in which
the court concluded that a remedy was constitutionally
inadequate. According to the dissent, we have engaged in
logically fallacious reasoning in deducing that, because
this case is not like Clarke, the remedy is constitutionally
adequate. If that were what we actually said, the dissent
would have a point. But nowhere in our opinion have we
concluded that, merely because this case is unlike Clarke
or any other prior decision, it follows that the result in this
case must be different. The dissent’s complaint, in other
words, amounts to no more than attacking a straw person.
	        The dissent also complains that our conclusion
that a partial remedy may be constitutionally adequate
under Article I, section 10, fails to adhere to the “text and
context” of the remedy clause. 353 Or at 389 (De Muniz,
J. pro tempore, dissenting). Interestingly, the dissent offers
nothing to support that assertion. In that regard, however,
we note that nothing in the wording of the remedy clause
Cite as 353 Or 359 (2013)	381

says anything about a right to be wholly restored. It
guarantees remedy “by due course of law.” Smothers, 332
Or at 121-22. It is the dissent’s reading of Article I, section
10, that fails to comport with the text of the constitution.
If, as the dissent suggests, Article I, section 10, requires
that all remedies must be “fully restorative,” 353 Or at 406
(De Muniz, J. pro tempore, dissenting), then the “due course
of law” clause is rendered superfluous.
	        The dissent nevertheless claims support for its
position from Smothers, relying on this court’s description
of the term “remedy” as including, in part, “that which is
‘required to restore a right that has been injured.’ ” 353
Or at 399 (De Muniz, J. pro tempore, dissenting) (quoting
Smothers, 332 Or at 124). The dissent leaves out the
following sentence from its quotation, which states that,
“[i]njury, in turn, is a wrong or harm for which a cause of action
existed when the drafters wrote the Oregon Constitution
in 1857.” Smothers, 332 Or at 124. Thus, what must be
“restored” is an injury that would have been recognized
as the basis for a cause of action in 1857. In that regard,
the dissent fails to mention that, in the mid-nineteenth
century, negligence claims were subject to the doctrine of
contributory negligence, which operated as a complete bar
to a plaintiff ’s recovery. See generally Lawson, 339 Or at 262
(noting “the indisputable proposition that, in the early years
of this state’s history, a plaintiff ’s contributory negligence
was an absolute bar to recovery for the negligent acts of
another”).11

	    11
          The first appearance of contributory negligence in a state court is usually
traced to Smith v. Smith, 19 Mass (2 Pick) 621 (1824), in which the court upheld
the dismissal of a negligence action. “This action cannot be maintained,” the court
explained, “unless the plaintiff can show that he used ordinary care; for without
that, it is by no means certain that he himself was not the cause of his own injury.”
Id. at 623. By 1860, nearly every state had expressly recognized the doctrine
of contributory negligence, most often as a matter of the plaintiff ’s affirmative
burden. As one modern scholar has observed, “[i]n the space of a few decades, the
doctrine of contributory negligence gained almost unanimous acceptance within
the United States.” Peter N. Swisher, Virginia Should Abolish the Archaic Tort
Defense of Contributory Negligence and Adopt a Comparative Negligence Defense
in its Place, 46 U Rich L Rev 359, 361 (2011). As another commented, the doctrine
“rapidly spread, ‘not unlike an unchecked conflagration in a windstorm’ throughout
the country.” Stuart M. Speiser et al., 3 The American Law of Torts § 12:2, 249-50
(2008) (quoting E. A. Turk, Comparative Negligence on the March, 28 Chi-Kent L
Rev 189 (1950)).
382	                                                            Howell v. Boyle

	        Moreover, under the prevailing law at the time that
the state’s constitution was adopted, a plaintiff was required
to prove not only that his or her injuries were caused by a
defendant’s negligence but also that his or her own actions
did not contribute to those injuries. Contributory negligence,
in other words, was a principle of causation that constituted
a part of a plaintiff ’s burden of proof.
	       Although we are aware of no pertinent case law
from the courts of this state dating precisely to the time
of the adoption of the constitution, there are several cases
dating to a few short years later that strongly suggest
that Oregon’s courts followed the established rule. 12 See
	    Nineteenth-century treatises confirm that, at the time, the general rule was
that a plaintiff bringing a claim for negligence bore the burden of demonstrating
that his or her injuries were not a result of the plaintiff ’s own negligence. As early
as 1811, Selwyn’s treatise on nisi prius stated that a plaintiff seeking to recover
damages must show that he acted with “common and ordinary caution.” 2 W.
Selwyn, An Abridgment of the Law of Nisi Prius 1092 n 5 (1811). Hilliard’s 1866
treatise on the law of torts declared that “it is the prevailing doctrine, that, to
sustain an action on the case for negligence, the burden of proof is on the plaintiff to
show negligence, wil[l]ful or otherwise, on the part of the defendant, and ordinary
care on his own part.” Francis Hilliard, 1 The Law of Torts or Private Wrongs 125-
26 (3d ed 1866) (emphasis in original). See also Theodore Sedgwick, A Treatise on
the Measure of Damages 493 (3d 1858) (“[T]he party seeking legal redress must
not only show his adversary to be in the wrong, but must also be prepared to prove
that no negligence of his own has tended to increase or consummate the injury.”).
	   12
       Over 100 reported early nineteenth-century cases reflect the widespread
adoption of the doctrine of contributory negligence, most often as a matter of
the plaintiff ’s affirmative burden. See, e.g., Crommelin v. Coxe & Co., 30 Ala 318,
329 (1857) (“[T]he plaintiffs in this case would not be heard to complain, if with
ordinary care and diligence they could have avoided the injury.”); Daley v. Norwich
& W.R. Co., 26 Conn 591, 597 (1858) (“Two things must concur to support this
action; an obstruction in the road by the fault of the defendant, and no want of
ordinary care to avoid it on the part of the plaintiff.”); Rusch v. City of Davenport, 6
Iowa 443, 451 (1858) (“We think there is no doubt, but that the burden of proof was
on the plaintiff to show to the jury, that the accident happened without any want
of reasonable care on his part.”); Galena & C. U. R. Co. v. Jacobs, 20 Ill 478, 488
(1858) (“[T]he plaintiff is only bound to show that the injury was produced by the
negligence of the defendant, and that he exercised ordinary care and diligence in
endeavoring to avoid it.”); Evansville & C.R. Co. v. Hiatt, 17 Ind 102, 105 (“In this
class of suits, the plaintiff must, as a general proposition, prove that the proximate,
the immediate, cause of the injury sued for, was the wrongful act of the defendant,
to which injury his own wrongful act did not immediately contribute.”); Carlisle
v. Holton, 3 La Ann 48, 49 (1848) (“[A] party cannot be heard as plaintiff who has
contributed to the collision by his own negligence or improper management.”); Lane
v. Crombie, 29 Mass 176, 177 (1831) (“[T]he burden of proof was upon the plaintiff
to show that the accident was not occasioned by her own negligence.”); Adams v.
Wiggins Ferry Co., 27 Mo 95, 98 (1858) (“The rule [is] that there can be no recovery
when both plaintiff and defendant are [at] fault, and each, by his negligence or
otherwise, has contributed proximately and directly to the injury.”); Lehman v.
Cite as 353 Or 359 (2013)	383

Smothers, 332 Or at 129 (relying on other-state and post-
1870s case law to determine the state of negligence at the
time of the adoption of the Oregon Constitution). In Kahn
v. Love, 3 Or 206 (1870), the occupant of a building sued
the owner for damages for injuries caused by the unsafe
condition of the building. The owner demurred to the
complaint because, among other things, the plaintiff had
failed to allege that his injuries were not caused by his own
lack of care. The trial court sustained the demurrer and
dismissed the complaint. This court affirmed, explaining
that “[t]he plaintiff in an action for damages, occasioned by
the defendant’s negligence, must so frame his complaint as
not to leave an inference that he was guilty of negligence
that contributed to the injury.” Id. at 208.
	        To similar effect is Walsh v. Oregon Ry. & Navigation
Co., 10 Or 250 (1882). In that case, the plaintiff was injured
as he stuck his head out of a moving train as it passed by
a water tower. The trial court dismissed the action before
City of Brooklyn, 29 Barb 234, 236 (NY 1859) (“To entitle the plaintiff to recover, it
must appear, affirmatively, that the accident resulted wholly from the negligence
of the defendant, and that the negligence and improvidence of the plaintiff did not
contribute to bring it about.”); Kennard v. Burton, 25 Me 39, 47 (1845) (“In suits
against towns for the recovery of damages for injuries occasioned by defects in
highways, the law is settled that the plaintiff must sh[o]w that the injury was not
occasioned by negligence or the want of ordinary care on his own part.”); Norris v.
Town of Litchfield, 35 NH 271, 276 (1857) (“In actions of this kind it is settled that
if the damage sustained has been in any degree directly caused by his own fault
or negligence, the plaintiff cannot recover.”); Central R. Co. v. Moore, 24 NJL 824,
830 (1854) (“This action is for damages sustained by the plaintiff by reason of the
alleged negligence of the defendants. To maintain it, the plaintiff must show that
he was in the exercise of due care on his part, and that the defendants were not
in the exercise of due care on their part.”); Timmons v. Central O. R. Co., 6 Ohio St
105, 108 (1856) (“[W]e think [the complaint] substantially defective in this, that
it discloses, on the part of the plaintiff himself, a want of ordinary care, which
was the immediate cause of the injury of which he complains.”); Beatty v. Gilmore,
16 Pa 463, 467 (1851) (“[T]o sustain [an action for negligence], there must be the
concurrence of negligence, or the commission of an unlawful act on the part of
the defendant, and reasonable care exercised by the plaintiff; mutual carelessness
being destructive of the title to sue.”); Robinson v. Cone, 22 Vt 213, 222 (1850) (“In
order to sustain the action on the case for negligence of the defendant, it must
appear that the injury did not occur from any want of ordinary care on the part
of the plaintiff, either in whole, or in part. In other words, if ordinary care on the
part of the plaintiff would have enabled him to escape the consequences of the
defendant’s negligence, he has no ground of complaint.”); Dressler v. Davis, 7 Wis
527, 531 (1859) (“[I]t was necessary for the [plaintiff], in order to make out a prima
facie case, in the first instance, to prove, not only that the injury in question arose
from the carelessness or negligence of the [defendants], or their servant, but also
that his own carelessness or negligence did not contribute to it.”).
384	                                               Howell v. Boyle

trial. This court reversed, holding that there was a jury
question about whether plaintiff ’s injuries were a result of
his own negligence. In reaching that conclusion, the court
described the burden of proof in the following terms:
   “In actions for negligence, the burden of proof always rests
   upon the party charging it. He must prove that the accident
   was caused by the wrongful act, omission, or neglect of the
   defendant, and that the injury of which he complains was
   not the result of his own negligence and the want of ordinary
   care and caution. Although the evidence may disclose the
   defendant to have been guilty of negligence, it will not excuse
   negligence or the want of proper care and precaution on
   the part of the plaintiff. The law will not permit a recovery
   where the plaintiff, by his own negligence or carelessness,
   has contributed to produce the injury from which he has
   suffered. To entitle, then, the plaintiff to recover (conceding
   the negligence of the defendant in not removing the water-
   tank to the proper distance after widening the track) it was
   incumbent on him to prove, when the accident occurred,
   that he exercised that ordinary care which a party ought
   to observe under the particular circumstances in which he
   was placed.”
Id. at 253-54.
	         By the 1880s, a number of courts began to voice
objections to the notion that a plaintiff should be required to
negate contributory negligence as part of his or her case. See,
e.g., O’Brien v. Tatum, 84 Ala 186 (1887); Robinson v. Western
P. R. Co., 48 Cal 409 (1874); Benson v. Goodwin, 147 Mass
237 (1888). A number of treatise writers, after noting the
general rule, similarly suggested that a better one would be
to regard contributory negligence as an affirmative defense.
See, e.g., Seymour D. Thompson, 2 The Law of Negligence
1175 (1880) (“Generally, contributory negligence on the part
of the plaintiff will bar a recovery. It would seem, therefore,
to be a matter of defence, and that it would devolve upon the
defendant to prove it.”).
	       Oregon, however, did not join that particular chorus
until 1885. As Judge Matthew Deady observed in Conroy v.
Oregon Constr. Co., 23 F 71, 72 (D Or 1885), at that point,
the state courts had become “nearly evenly divided on the
question whether ‘contributory negligence’ is a part of the
Cite as 353 Or 359 (2013)	385

plaintiff ’s case or a matter of defense.” As for Oregon, Judge
Deady observed, Walsh appeared to indicate that the state
supreme court “decided that it is a part of the plaintiff ’s
case.” Id. See also Charles Fisk Beach, Jr., A Treatise on
the Law of Contributory Negligence 425-26 (1885) (citing
Kahn and Walsh, as well as Deady’s opinion in Conroy,
as examples of cases in which the burden is placed on the
plaintiff to prove an absence of negligence).
	In Grant v. Baker, 12 Or 329, 7 P 318 (1885), this
court changed course. In that case, the plaintiff initiated
an action for the wrongful death of an individual, who
was killed when he fell over the edge of a poorly designed
roadway. The trial court nonsuited the case on contributory
negligence grounds. The Supreme Court reversed. The court
began by noting that its earlier decision in Walsh “might
justify the impression” that it is the plaintiff who bears the
burden of disproving contributory negligence. Id. at 332.
The court quickly disavowed such a rule and confined Walsh
to its facts. The description of the burden of proof in Walsh,
the court in Grant held, “was intended to apply to the state
of facts mentioned, and not to lay down any general rule.”
Id. at 333. The better rule, the court concluded, has always
been that “contributory negligence is a defense and must be
averred as such.” Id.
	        Thus, even assuming that the dissent is correct
that the “restorative” quality of a remedy is controlling,
under this court’s case law, plaintiff in this case—who did
not plead that she had exercised due care and who the jury
found to have been 50 percent at fault—would have been
entitled to recover nothing.13 Under the circumstances, it

	    13
         Plaintiff and the dissent argue that, if we are to recognize the existence of
contributory negligence at the time of the adoption of the constitution, we should
also take into account certain doctrines that she asserts could have been advanced
in response to an assertion of contributory negligence, such as the last clear chance
doctrine and gross negligence. Those doctrines, however, are not applicable to this
case. To begin with, plaintiff did not raise either of them before the trial court,
although she had opportunity to do so. Particularly in light of the fact that each
of the doctrines that she now invokes requires particular factual showings, we
are disinclined to entertain any consideration of those doctrines at this stage in
the proceedings. See Peeples v. Lampert, 345 Or 209, 219-20, 191 P3d 637 (2008)
(appellate courts must exercise “utmost caution” when addressing unpreserved
arguments because, among other things, “preservation fosters full development
of the record, which aids the trial court in making a decision and the appellate
386	                                                           Howell v. Boyle

is difficult to understand the dissent’s complaint that the
$200,000 in damages that plaintiff was awarded was not
fully “restorative” of her common-law negligence claim.
	        The dissent nevertheless disputes what this court
in Lawson declared to be “indisputable”; namely that, in the
mid-nineteenth century, a plaintiff ’s contributory negligence
barred recovery on a negligence claim. At the least, the
dissent contends, we cannot say “with the certainty that
should be required for a decision of this magnitude” what
the state of the law was in 1857, because, at that time, there
existed no Oregon appellate court decisions on the subject
of contributory negligence. 353 Or at 403 (De Muniz, J. pro
tempore, dissenting).
	         Of course, the dissent is correct that it is exceedingly
difficult to determine the state of Oregon law over 150 years
ago. Nevertheless, that is what Smothers requires. Indeed,
the court in Smothers confronted the same difficulty and
resolved it, as we do here, by making the best of the limited
historical resources at the court’s disposal.
	In Smothers, the court addressed the question
whether the common law at the time of the adoption of this
state’s constitution would have recognized a cause of action
for negligence against an employer. The court found no
case law—it bears repeating, no case law—anywhere in the
nation recognizing such a cause of action at that time. 332
Or at 128-29. Undaunted, the court stated that,
court in reviewing it”). Indeed, gross negligence ordinarily must be pleaded as
a separate claim, which plaintiff did not do in this case. See generally Fassett v.
Santiam Loggers, Inc., 267 Or 505, 508, 517 P2d 1059 (1973) (describing differences
between claims). Our review in this case is limited to the claim that plaintiff
actually asserted. Hughes v. PeaceHealth, 344 Or 142, 152, 178 P3d 225 (2008). As
for last clear chance, there is no evidence of its widespread recognition by 1857.
The origins of the doctrine are ordinarily attributed to the English case of Davies
v. Mann, 10 M & W 546, 152 Eng Rep 588 (1842). As Professor G. Edward White
has observed, however, Davies was not read to have adopted such a categorical
exception to the rule of contributory negligence in this country until the 1880s.
G. Edward White, Tort Law in America: An Intellectual History 45-46 (2d ed 2003).
According to White, “the doctrine had not in fact originated in Davies v. Mann, at
least as a principle of negligence law; it was the creation of later treatise writers
who extracted it from the Davies case and others.” Id. The first case in this country
even to mention Davies is an 1852 Vermont case, Trow v. Vermont C. R.R., 24 Vt
487 (1852). This court did not cite Davies until 1890, in Moses v. S. P. R. R. Co., 18
Or 385, 402, 23 P 498 (1890), and did not mention “last clear chance” until 1911, in
Smith v. Southern Pacific Co., 58 Or 22, 36, 113 P 41 (1911).
Cite as 353 Or 359 (2013)	387

   “[a]lthough no Oregon cases addressed the common-law
   rights of employees to bring such negligence actions against
   their employers in the years immediately surrounding the
   creation of the Oregon Constitution, the content of the
   common law in 1857 may be divined from a wide range of
   sources. Cases from other jurisdictions, as well as Oregon
   cases decided within a relatively short period after 1857, are
   instructive.”
Id. at 129 (emphasis added). The court then referred to four
cases, three from other jurisdictions and a single decision
of this court, all published more than two decades after
the adoption of the Oregon Constitution. The earliest of
the cases was the United States Supreme Court’s decision
in Hough v. Ry. Co., 100 US 213, 25 L Ed 612 (1879). The
three other cases were Atchison, T. & S.F.R. Co. v. Moore, 29
Kan 632 (1883); Wilson v. Willimantic Linen Co., 50 Conn
433 (1883); and Anderson v. Bennett, 16 Or 515, 19 P 765
(1888). Of the 1888 Oregon decision, the court in Smothers
observed that, because “nothing in the court’s opinion in
that case suggested that the holding was novel or that the
decision marked a departure from any previous decisions
or jurisprudence on the subject,” it was permissible to infer
from that decision that, “in 1857, the common law of Oregon
would have recognized” the claim. 332 Or at 131.
	         Thus, based on a handful of cases decided 20 to 30
years after the adoption of the state constitution, this court
inferred the existence of the law decades earlier. The fact is
that this court has never insisted on the sort of “certainty”
that the dissent demands in Article I, section 10, cases.
See, e.g., Lawson, 339 Or at 261-62 (citing Smothers and
relying on “various other sources to determine the content
of the common law at the time of the drafting of the Oregon
Constitution, including roughly contemporaneous cases
from other jurisdictions, as well as Oregon cases decided in
the decades shortly after the adoption of the constitution.”).
	        Moreover, unlike the court in Smothers, we are
not merely relying on four cases decided well after the
adoption of this state’s constitution. As we have noted, there
are numerous cases from around the country dating from
before the time of the adoption of the Oregon Constitution
reflecting what scholars—both in the mid-nineteenth
388	                                           Howell v. Boyle

century and now—agree was the widespread acceptance of
the doctrine of contributory negligence as a component of
a plaintiff ’s case at that time. It is in that context that we
have examined the later Oregon case law for any suggestion
that Oregon courts saw the law differently. We have found
no such case law. To the contrary, the earliest Oregon cases
were consistent with what we have described as the well-
established rule.
	         The dissent rejoins that, regardless of who has
the better of the argument about Oregon’s legal history,
Smothers cannot be read to “freeze in place[ ] every repealed,
overruled or outmoded argument that a defendant might
have relied on in 1857 to resist an injured person’s claim.”
353 Or at 404 (De Muniz, J. pro tempore, dissenting).
Smothers, however, requires that the “injury” that a modern
remedy must restore is “a wrong or harm for which a cause
of action existed when the drafters wrote the Oregon
Constitution in 1857.” 332 Or at 124. As we have noted,
plaintiff ’s injury in this case—as pleaded and determined
by a jury—is not the sort for which a cause of action existed
at that time. Smothers does not give us liberty to pick and
choose which causes of action that existed in 1857 we now
regard as “outmoded.” It requires us to take the law as we
find it as of that time. That is what we have endeavored, in
good faith, to accomplish.
	        Finally, the dissent complains that the “substantial”
remedy test that we recognize in this case is standardless
and lacks a “guiding principle.” 353 Or at 404-06 (De Muniz,
J. pro tempore, dissenting). The dissent, of course, echoes
precisely the same criticism that Justice Unis leveled in
Greist, and that this court rejected. The fact is that not every
constitutional provision can be reduced to a neat formula
that avoids the necessity of applying careful judgment to
the facts and circumstances of each case.
	        For the foregoing reasons, we conclude that the
challenged $200,000 damage limitation does not leave
plaintiff with a constitutionally inadequate remedy under
Article I, section 10, of the Oregon Constitution.
	       Certified question answered.
Cite as 353 Or 359 (2013)	389

	        DE MUNIZ, J. pro tempore, dissenting.
	        Faced with an Article I, section 10, Remedy Clause
controversy, the majority—for the first time in this court’s
history—upholds a legislative limitation that prevents
plaintiff from fully recovering the economic damages that
a jury awarded to restore her constitutionally protected
right.1 The Remedy Clause guaranteed plaintiff a “remedy
by due course of law” for injury to her person—a remedy
that the jury, “by due course of law,” determined should
include the full amount of economic damages attributable
to defendant.2 Yet the majority upholds, as constitutional,
a standardless and arbitrary legislative deprivation of
that remedy and does so without adherence to the text and
context of the Remedy Clause or this court’s prior decisions.
	In Clarke v. OHSU, 343 Or 581, 610, 175 P3d 418
(2007), this court held that the same statutory damage cap
at issue in this case violated the Remedy Clause because we
were unable to discern anything
    “from our state’s history, or from the nature, the form, or the
    amount of recovery available for the preexisting common
    law claim, that would permit this court to conclude that the

	   1
       The Remedy Clause affords plaintiff, and every person in this state, the
right to a remedy by due course of law for personal injuries. The analysis of that
right set out in our cases, and discussed in this dissent, does not differentiate
between economic or noneconomic damages. As a matter of both history and logic,
both kinds of damages comprise the remedy that is reasonably calculated, so far
as possible, to restore or repair the right that defendant injured. I draw particular
attention to the effect of the majority’s holding on plaintiff ’s right to recover her
economic injuries for only one reason. Plaintiff ’s economic damages reflect her
out-of-pocket expenses, such as for medical bills, that is the result of defendant’s
conduct. Assuming that causal link, the calculation of plaintiff ’s economic damages
requires only simple arithmetic and includes no evaluation by a factfinder of
plaintiff ’s mental or emotional injuries, such as her pain and suffering. Thus, in
focusing momentarily on the topic of plaintiff ’s economic damages, we perhaps
can see the majority’s error in clearest relief. According to the majority, Article I,
section 10, does not guarantee plaintiff a right to recover a remedy reflecting even
the amount of plaintiff ’s monetary expenses, including her medical bills, directly
attributable to defendant’s conduct. As this dissent demonstrates, the majority’s
novel interpretation of Article I, section 10, departs sharply from our case law
and deprives the constitutional guarantee of a remedy by due course of law of any
practical meaning.
	   2
        This case does not call upon us to consider—and the majority has not
considered—the constitutionality of the trial court’s action or that of the legislature
under Article I, section 17, of the Oregon Constitution. That provision prohibits
interference with the jury’s assessment of damages in a common-law negligence
action like this one. Lakin v. Senco Products, Inc., 329 Or 62, 987 P2d 463 (1999).
390	                                              Howell v. Boyle

   limited remedy for permanent and severe injury caused by
   medical negligence that is now available under the OTCA
   meets the Article I, section 10, remedy requirement.”
That same reasoning applies with equal force to plaintiff ’s
common-law claim in this case and the result should be the
same; i.e., as applied here, the damage cap at issue in this
matter violates the Oregon Constitution’s Remedy Clause.
By essentially limiting our holding in Clarke to its facts,
however, the majority sidesteps the reasoning in that case
and, in doing so, significantly undermines the Remedy
Clause protections that, until this day, were enjoyed by all
Oregonians.
	       According to the majority, the court explained in
Clarke that
   “Article I, section 10, does not deprive the legislature of
   the authority ‘to vary and modify both the form and the
   measure of recovery for an injury,’ so long as the legislature
   leaves the plaintiff with a substantial remedy.”
353 Or at 375 (quoting Clarke, 343 Or at 606) (emphasis
supplied by the majority). What the court actually wrote in
Clarke, however, was that
   “Article I, section 10, does not eliminate the power of
   the legislature to vary and modify both the form and the
   measure of recovery for an injury, as long as it does not
   leave the injured party with an ‘emasculated’ version of the
   remedy that was available at common law.”
Clarke, 343 Or at 606. The majority’s efforts to replace
the phrase “emasculated version of the remedy” with
“substantial remedy” is not an accident; it is necessary to
the majority’s conclusion. In Clark, the court referred to
an “emasculated version of the remedy” advisedly because
our case law had imbued the phrase with a clear meaning;
i.e., a remedy that was “incapable of restoring the right
that has been injured.” Id. (quoting Smothers v. Gresham
Transfer, Inc., 332 Or 83, 124, 23 P3d 333 (2001)). The steps
that the majority has taken to now eliminate that phrase
for the purpose of purging “an unfortunate, if not sexist”
term from the judicial lexicon does far more than substitute
a nonsexist term; it abrogates Clarke or, at a minimum,
severely limits its holdings. Only by inserting the term
Cite as 353 Or 359 (2013)	391

“substantial” into the court’s holding in Clarke is the
majority able to construe the Remedy Clause to permit the
truncated remedy at issue here; i.e., a limited cause of action
and a limited scope of recovery that, applied in tandem, are
incapable of restoring plaintiff ’s economic injuries. Nothing
in our case law supports that construction; indeed, our
precedents make clear that the Remedy Clause prohibits
legislative limitations that are “incapable of restoring the
right that has been injured.” (Emphasis added.) Analyzing
legislative limitations on remedies under that standard
is quite different from analyzing—as the majority does—
whether an award of damages is, in some way or another,
quantitatively “substantial.” Accordingly, I dissent.
	        Reduced to its essential elements, the majority’s
position appears to be that Article I, section 10, does not
prohibit the legislature from enacting any limitation on civil
recoveries—regardless of whether the result is capable of
restoring an injured right or not—so long as the remedy
that remains is “substantial.” 353 Or at 375. The basis for
that proposition can be summed up in three broad points
drawn from the majority’s opinion: (1) under this court’s
case law, the “constitutional adequacy of a modern remedy
may be established by the fact that the modern remedy is
‘substantial’ and does not leave the plaintiff ‘wholly without
remedy.’ ” 353 Or at 374-75; (2) under that principle, $100,000
in economic damages—contrasted against a $382,500 jury
award for the same—is, as a matter of law, a “substantial”
award; and (3) plaintiff was only entitled to restoration of
“an injury that would have been recognized as the basis for a
cause of action in 1857” and, in 1857, plaintiff ’s contributory
negligence would have been a complete bar to recovery. I
address each of those points in turn below.
     I.  USE OF THE WORD “SUBSTANTIAL” IN
   OREGON’S REMEDY CLAUSE JURISPRUDENCE
	        With regard to statutory caps on civil damages,
this court has used the word “substantial” in its analysis
in only two cases: Hale v. Port of Portland, 308 Or 508, 783
P2d 506 (1990), and Greist v. Phillips, 322 Or 281, 906 P2d
789 (1995). Neither case, however, supports application of
the term “substantial” to what plaintiff has been forced
392	                                              Howell v. Boyle

to accept here: a truncated remedy that is incapable of
restoring plaintiff ’s injured rights.

A.  Hale v. Port of Portland

	In Hale—a personal injury case involving both the
Port of Portland and the City of Portland—this court upheld
an early version of the Oregon Tort Claims Act (OTCA) that
capped tort damages in actions instigated against public
bodies. In doing so, the court cited two cases—Noonan v. City
of Portland, 161 Or 213, 88 P2d 808 (1939) and Evanhoff v.
State Industrial Accident Commission, 78 Or 503, 154 P 106
(1915)—for the proposition that the resulting remedy must
be substantial:
   	 “Noonan and Evanhoff held only that Article I, section
   10, is not violated when the legislature alters (or even
   abolishes) a cause of action, so long as the party injured is
   not left entirely without a remedy. Under those cases, the
   remedy need not be precisely of the same type or extent; it is
   enough that the remedy is a substantial one.”

Hale, 308 Or at 523 (emphasis added). The court never
explained what, exactly, constituted a substantial remedy,
only that Noonan and Evanhoff required as much.
Importantly, however, at the time Hale was decided, the
OTCA did not eliminate—as it does now—the individual
liability of public employees for their negligent acts. And
that factor—the availability of an alternative remedy that
allowed a plaintiff to fully recover damages available at
common law—was a central component in both Noonan and
Evanhoff.

	In Noonan, the legislative limitation at issue was a
Portland municipal ordinance that completely immunized
the city from liability for personal injuries caused by defective
city sidewalks. The provision, however, specifically provided
that injured persons could maintain a common-law action
against the individual officers and employees who were
responsible for maintaining the sidewalks. From the court’s
perspective, the existence of that alternative remedy proved
to be key. Affirming the validity of the immunity provision,
the court wrote that
Cite as 353 Or 359 (2013)	393

    “all of our decisions have recognized that a city may be
    given, not absolute, but conditional immunity from liability
    for street accidents—conditioned upon liability reposing in
    someone who owed a duty to maintain them.”
Noonan, 161 Or at 247 (emphasis added).3
	In Evanhoff, the court upheld an early iteration
of Oregon’s workers’ compensation program. Under the
program, participating workers injured on the job were,
among other things, precluded from bringing negligence
actions against their employers to obtain damages beyond
their medical expenses. The program, however, was not
compulsory; both employers and workers could elect not to
participate in it and opt, instead, to pursue the remedies
and defenses for work-related injuries that existed outside
the workers’ compensation framework. Again, the existence
of an alternative remedy in the wake of a truncated one
was the dispositive factor in the court’s Article I, section 10
analysis. The court described it thus:
    “The state says to the employer and employé [sic] alike:
    	 “ ‘We present to you a plan of accident insurance which
    you may accept or reject at your own pleasure. If you accept,
    you must be bound by its terms and limitations; if you
    reject it, the courts are open to you with every constitutional
    remedy intact. Take your choice between our plan and such
    remedies as the statute gives you.’ ”
Evanhoff, 78 Or at 517-18 (emphasis added).
	       Neither of those cases can be read for the proposition
that a partial remedy—like the one the majority considers
“substantial” here—is capable of satisfying the Remedy
Clause. Rather, both cases upheld legislative provisions
that had eliminated one potential source of recovery, while
leaving another equivalent source intact. In that respect,
Hale is no different from the cases it relied on: Although

	   3
        Even at that time, the basis for that holding was neither new nor novel. In
Caviness v. City of Vale, 86 Or 554, 562-63, 169 P 95 (1917)—decided over 20 years
before—the court had recognized, as well-settled, the rule that
    “before a city can exempt itself from a liability which exists both at common
    law and by virtue of our Constitution, it must provide an equivalent remedy;
    one reasonably adequate to serve the purpose of the one taken away.”
(Emphasis added.)
394	                                                           Howell v. Boyle

the OTCA had placed a cap on the amount of civil damages
available in tort from a public body, the officers, employees,
and agents of those bodies remained liable for the damages
caused by their negligent actions.4 Thus, under Hale,
requiring a “substantial” remedy for purposes of Article
I, section 10, means that, when the legislature alters or
abolishes a cause of action, it must provide an equivalent
remedy that is as capable of restoring a plaintiff ’s injuries
as was the original. That standard has not been met here.
B.  Greist v. Phillips
	        Greist was a wrongful-death case not cognizable
at common law, and this court has since disavowed the
application of the Remedy Clause to the circumstances of
that case.5 However, even assuming that Greist retains some
precedential value, the analysis in Greist was quite different
from the analysis used by the majority in this case. In Greist,
a jury had awarded the plaintiff $1.5 million in noneconomic
damages as the representative of her deceased son’s estate.
	    4
         That similarity was not lost on Justice Hans Linde who, concurring in Hale,
wrote:
     “There is nothing intrinsically absurd in the idea that although statutory and
     common law remedies may be changed, they must maintain some comparable
     degree of protection for those interests to which Article I, section 10, refers.”
Hale, 308 Or at 529 (Linde, J., concurring). Later in his concurrence, Justice Linde
observed that
     “the court has allowed legislative immunization of cities from tort liability
     only on condition that the individuals who are personally responsible for
     harm qualifying as a legal injury remain liable. This is analogous to altering
     or limiting the scope of respondeat superior rather than wholly depriving a
     plaintiff of a remedy in due course of law for harm that no one has declared
     not to be a legal injury when caused by public rather than private negligence.
     Because this case presents no claim against individual public ‘officers or
     employees, or agents,’ ORS 30.265, I concur with the court.”
Id. at 530 (internal citations omitted).
	    5
         Greist is no longer good law on a number of different fronts. In 1999, the
court decided Lakin v. Senco Products, Inc., 329 Or 62, and held that the statute
at issue Greist—ORS 18.560—violated the Oregon Constitution’s civil jury trial
guarantee. In 2002, the court decided Storm v. McClung, 334 Or 210, 47 P3d 476
(2002), and concluded that Article I, section 10, applied only to injuries for which a
cause of action existed in 1857, effectively placing the statutorily created wrongful
death action at issue in Greist beyond the ambit of that constitutional provision.
Consequently, much of Greist is no longer substantively applicable as a matter
of Oregon law. That said, as we acknowledged in Clarke v. OHSU, 343 Or 581,
605, 175 P3d 418 (2007), Greist remains capable of providing a degree of guidance
concerning the implementation of statutory damage caps, a position that this
dissent reiterates today.
Cite as 353 Or 359 (2013)	395

This court nevertheless upheld against a Remedy Clause
challenge a statute that capped the plaintiff ’s recovery for
noneconomic damages at $500,000. In doing so, the court
noted that the plaintiff had not been left without a remedy:
she had received $500,000 in noneconomic damages, plus a
100 percent recovery of her economic damages in the sum of
$100,000—a category of damages to which no statutory limit
applied. The court went on to acknowledge that, although
that remedy was less than what the plaintiff would have
been entitled to before the noneconomic damages cap was
put in place, it was nevertheless “substantial.” See 322 Or
at 291 (citing Hale).
	        The court, however, explained exactly why that was
so. It wrote:
   	 “The remedy for wrongful death is substantial, not
   only because 100 percent of economic damages plus up to
   $500,000 in noneconomic damages is a substantial amount,
   but also because the statutory wrongful death action in
   Oregon has had a low limit on recovery for 113 years of its
   133-year history. See 322 Or at 294, 906 P2d at 796, below
   (discussing history of wrongful death action in Oregon). As
   noted there, the wrongful death claim came into existence
   with a limitation, and the highest previous limitation
   (1961-1967) was $25,000. In relation to that history, the
   present remedy is substantial.”

Id. (emphasis added). Consequently, in Greist—like Hale—
the metes and bounds of a “substantial” remedy were
clearly defined: Where a plaintiff had no common-law
remedy aside from a legislatively created statutory claim
that, historically, had been accompanied by low limitations
on recovery, damage caps that allowed the plaintiff full
economic damages, plus up to $500,000 in noneconomic
damages, provided a remedy that was “substantial.”
	        My point is that, if the new constitutional bellwether
for Remedy Clause controversies is now the presence of a
“substantial” remedy, the remedy afforded plaintiff in this
case falls woefully short of that mark as defined by our
case law. Unlike the plaintiff in Greist, plaintiff in this case
cannot pursue a wrongful death action for the injuries she
has suffered; consequently, there is no possibility for full
396	                                                         Howell v. Boyle

recovery of her economic damages and no possibility of a
$500,000 maximum in noneconomic damages. Unlike the
plaintiff in Hale, plaintiff ’s recovery against the city has
been statutorily capped, and she cannot pursue a common
law claim against the negligent city employee Consequently,
plaintiff is caught coming and going—squeezed from one
end by a statutory damages cap that arbitrarily limits her
recovery and on the other by the complete elimination of a
claim that would have permitted her a full recovery. There
is nothing “substantial” about that predicament. Under
Oregon law, plaintiff has been left with a constitutionally
inadequate remedy that is incapable of restoring her injured
rights, a circumstance that no amount of linguistic fiddling
on the majority’s part can change or conceal.
    II.  QUANTIFYING THE “SUBSTANTIAL” REMEDY
	        According to the majority, quantifying an award
of damages as “substantial” with any degree of precision is
probably impossible. 353 Or at 374. Undeterred by its own
observation, however, the majority decides that, in this case,
the sum of $200,000 has, indeed, provided plaintiff with a
“substantial” remedy. To reach that result, the majority seeks
support by negative implication, asserting that the remedy
available to plaintiff in this case is “far more substantial”
than the remedies that this court previously has determined
to be constitutionally inadequate. To that end, the majority
compares the limited total damages that plaintiff was
allowed to recover here—$200,000—with the respective
remedies that this court held to be unconstitutional under
the Remedy Clause in Neher v. Chartier, 319 Or 417, 879
P2d 156 (1994), and Clarke v. OHSU, 343 Or 581.
	          Under the majority’s reading of Neher,6
    “although the estate of the victim had not been completely
    deprived of a remedy by virtue of the existence of a $3,000
    burial benefit under workers’ compensation law, the parents
    of the victim had been totally deprived of any remedy.”

	   6
        As I have already noted, this court’s decision in Storm v. McClung clarified
that the Remedy Clause applies only to common-law claims, and not to claims
created by statute, like those for wrongful death. Consequently, Neher is, like
Greist, of little substantive value beyond the guidance we are able to draw from it
here as we did in Clarke.
Cite as 353 Or 359 (2013)	397

353 Or at 375 (emphasis in original). In its reading of Clarke,
the majority posits that, because
   “the statutory limitation of $200,000 deprived the plaintiffs
   of all but one percent of the more than $17 million in
   damages that they would have otherwise recovered, the
   limitation left them with a constitutionally inadequate
   remedy.”
Id. Those observations lead the majority to tacitly conclude
that, because plaintiff in this matter has (1) not been
totally deprived of a remedy, as was the case in Neher, and
(2) recovered more than the “paltry fraction” at issue in
Clarke, the $200,000 cap on her recoverable damages does
not offend the Oregon Constitution.
	        As a matter of both logic and law, however, the
majority’s position fails. First, the conclusion that the
limited remedies at issue in Neher and Clarke were
unconstitutional does not make the remedy at issue in
this case constitutional.7 Second, neither Neher nor Clarke
were cases in which the court sought to quantify a damage
award as constitutionally “substantial.” Instead, both cases
presented the court with the same two problematic points:
The law had recognized a right of recovery for the injuries
of each respective plaintiff and, at the same time, abolished
remedies that would have facilitated that recovery.
	In Neher, this court invalidated statutory provisions
that had immunized public bodies and their employees from
the statutory wrongful death claims of persons covered by the
workers’ compensation statutes. The court did so reasoning
that the statutes in question had left the parents—and sole
heirs—of 25-year-old Julie Neher without any legal remedy
at all after their daughter was negligently struck and killed
by a Tri-Met bus. To that end, the court wrote:
   	 “ORS 30.010 recognizes the existence of a right of recovery
   for surviving parents for damages to compensate them ‘for
   pecuniary loss and for loss of the society, companionship
   and services of the decedent.’ ORS 30.265(3)(a),
   however, operates to abolish the parents’ remedy under
   circumstances such as those present in this case, not only
	  7
       Known generally as “denying the antecedent,” that error in thinking is
usually illustrated by this example: If P, then Q. Not P. Therefore, not Q.
398	                                              Howell v. Boyle

   against the municipality, but against the municipality’s
   negligent employees. Such a result is irreconcilable with
   this court’s holdings[.]”
Neher, 319 Or at 428 (emphasis added; internal citations
omitted).
	In Clarke, this court held that an OTCA damages
limitation violated the Remedy Clause. The plaintiff had
instigated a medical negligence action against Oregon Health
Sciences University and a number of individual physicians
that it employed. The plaintiff brought that action on behalf
of her son who had suffered total and permanent disability as
the result of the negligent treatment he had received while
in the hospital’s care. The child’s economic damages alone
exceeded $12 million, a sum that was undisputed by OHSU,
as was its negligence in the matter. At the time, however, the
OTCA immunized the individual doctors from liability and
capped the damages recoverable from OHSU at $200,000.
This court held that the elimination of the plaintiff ’s claim
against the hospital’s doctors and the substituted and limited
remedy against the hospital violated the Remedy Clause as
an “emasculated version of the remedy that was available
at common law.” Clarke, 343 Or at 610. In reaching that
conclusion, the court emphasized that the legislature had
eliminated the plaintiff ’s “preexisting right to obtain a full
recovery” for the injuries sustained by her son. The court
wrote:
   	 “We view plaintiff ’s economic damages of over $12
   million as representative of the enormous cost of life-time
   medical care currently associated with permanent and
   severe personal injuries caused by the medical negligence of
   a state officer, agent, or employee. Defendants do not argue
   that those damages do not constitute an ‘injury’ within
   the meaning of the constitution. Nor does anything in the
   legislation suggest such a conclusion by the legislature.
   Yet, the legislature has completely eliminated an injured
   person’s preexisting right to obtain a full recovery for those
   damages from the individual tortfeasors who negligently
   caused the injuries.”
Id. at 609 (emphasis added).
	       In short, the court’s decisions in Neher and Clarke
both turned on the lack of a restorative remedy. And those
Cite as 353 Or 359 (2013)	399

two cases do not exist in a vacuum. This court has frequently
referred to that restorative quality as the benchmark of
a remedy’s constitutionality. See Smothers v. Gresham
Transfer, Inc., 332 Or 83, 124, 23 P3d 333 (2001) (noting that
the term “remedy” refers, in part, to that which is “required
to restore a right that has been injured”); Davidson v.
Rogers, 281 Or 219, 222, 574 P2d 624 (1978) (noting that, in
an action for libel, the remedy of a retraction did not offend
the Remedy Clause because “retraction can come nearer to
restoring an injured reputation than can money”); Holden
v. Pioneer Broadcasting Co., 228 Or 405, 419, 365 P2d 845
(1961) (noting that the “remedy afforded through retraction
would seem to come closer to providing an effective means
of repairing the harm” resulting from act of defamation).
	        The majority’s contrary application of Neher and
Clarke scrubs the restorative purpose of the Remedy Clause
from this court’s jurisprudence. Moreover, it suggests
that any recovery for damages is “substantial” so long as
the amount awarded falls somewhere between the sum of
zero and a figure that, while not “enough,” is, in the court’s
estimation, nevertheless “substantial,” whatever that
means. Untethered to a restorative purpose, that standard
is both arbitrary and unworkable.
	        The majority, however, does not rely solely on its
conclusion that the award in this case was “substantial”
to justify its decision here. It goes on to opine that the
remedy provided in this case also constitutes a “quid pro
quo” because, with regard to the police officer who struck
plaintiff,
   “the city remains liable for the torts of its employees
   committed within the scope of employment. Thus, while
   the legislature limited the amount that may be recovered
   from individual defendants who are municipal employees,
   it substituted the ‘deep pocket’ of the municipality itself as
   the ultimate payor. Plaintiffs, in other words, have been
   conferred a substantial benefit in exchange for the damage
   limitation.”
353 Or at 376 (emphasis added).
	        Let me be absolutely clear: the legislature did not
“limit” the amount that could be recovered from Officer
400	                                           Howell v. Boyle

Boyle when it amended the OTCA in 1991; it abolished
any option for plaintiff to recover any amount from Officer
Boyle, by immunizing him from tort liability for negligent
acts occurring in the course of his employment. And in
1991, the legislature did not confer any additional benefit to
compensate for that deprivation. The legislature previously
had granted a class of plaintiffs access to the “deep pockets”
of the municipality for torts arising out of governmental
functions, but that benefit had already served as a “quid pro
quo” for the cap on tort damages arising out of muncipalities’
proprietary functions. Having been “spent” for that purpose,
municipal “deep pockets” could not then serve as a benefit
for a subsequent deprivation—elimination of employee
liability. Further, the “deep pockets” of the municipality
supposedly substituted in Officer Boyle’s stead are only as
deep as the statutory damages cap, which, in this case, is
not very deep at all. Consequently, there is no “this for that”
exchange in evidence here. Plaintiff ’s common-law remedy
against Officer Boyle has been abolished, and the remedy
that has been left to her is insufficient to restore her injured
rights as determined by the jury. She has not, contrary to the
position taken by the majority, “been conferred a substantial
benefit in exchange for the damage limitation.” In positing
otherwise, the majority is simply wrong.
	        In any event, the majority takes Hale’s “quid pro
quo” rationale far beyond its application in that case. In
Hale, the court did not hold that the legislative damage
limitation at issue before it was constitutional based on a
determination that the remedy was “substantial.” Instead,
the court reasoned, in part, that the legislature had conferred
a benefit to a “class of plaintiffs” to which the plaintiff
belonged in exchange for imposing a “counterbalancing
burden.” In that trade-off, the court noted, the legislature
had capped previously unlimited municipal liability for torts
arising out of proprietary functions in exchange for partially
waiving what had been complete municipal immunity for
torts arising out of governmental functions. That legislative
scheme, the court wrote “may work to the disadvantage of
some, while it will work to the advantage of others. But all
who had a remedy continue to have one.” 308 Or at 523.
That legislative scheme did not prevent any plaintiff from
Cite as 353 Or 359 (2013)	401

seeking damages from the individual municipal employees
who caused their injuries.
	        The majority, however, assumes that, if the legislature
has provided any sort of remedy with regard to municipal
torts, that fact makes subsequent legislative limitations
constitutional, even when the substituted remedy prevents
a plaintiff from obtaining a full recovery from anyone. In
that regard, the majority’s position begs the question of
what constitutes a constitutionally adequate remedy. Must
the quid pro quo fairly trade “counterbalancing” benefits for
burdens, or can the legislature satisfy the constitution by
providing any benefit at all? If a balanced trade between
burdens and benefits is required, then a quid pro quo results
only when a plaintiff receives a remedy that is substantially
equivalent to the one that has been taken away—and
which would, presumably, be capable of restoring the right
that was injured. If, however, a quid pro quo need not be
substantially equivalent to the remedy taken away, then
what relationship, if any, must it bear to the common-law
remedy? If the Remedy Clause requires only a “substantial”
remedy, then presumably a “substantial” quid pro quo—
whatever that is—is all that is required. But if the Remedy
Clause requires a restorative remedy, then a quid pro quo
will be satisfactory only to the extent that the benefit it
confers is restorative as well. I fail to see the utility of that
tautological digression.
	       But, as I have already noted, there is no quid pro
quo at play here. For torts arising out of governmental
functions, plaintiffs had access to municipal “deep pockets”
by virtue of the preexisting statutory waiver of municipal
immunity. The 1991 OTCA amendments eliminated
individual municipal employee liability without conferring
any additional benefit to injured plaintiffs. The majority
ignores that fact in favor of permitting the preexisting
statutory waiver of municipal immunity to serve as a quid
pro quo for the later, additional deprivation of individual
municipal employee liability. According to the majority’s
interpretation of Hale, however, that benefit has already
been “spent” to justify the cap on municipal liability for
proprietary functions. If that supposed “benefit” is also
402	                                              Howell v. Boyle

the acceptable trade-off for the remedy plaintiff has been
deprived of in this case, then that “benefit” is capable of
justifying virtually any future reduction in the remedies
available to plaintiffs injured by the acts of a public body.
That, in my view, is not an equitable exchange.
     III.  HISTORY AND THE LEGISLATURE’S
  AUTHORITY UNDER OREGON’S REMEDY CLAUSE
	         The majority acknowledges that the Remedy Clause
requires the restoration of a right that has been injured,
and asserts that what must be “restored” is an “injury that
would have been recognized as the basis for a cause of action
in 1857.” 353 Or at 381 (emphasis in original). The majority
then relies on a historical analysis of the contributory
negligence doctrine as practiced in the nineteenth century
for its conclusion that, even if I am correct that the Remedy
Clause mandates a restorative remedy, this plaintiff “would
have been entitled to recover nothing” in 1857. 353 Or at 385.
The majority’s position is that, from a historical perspective,
(1) contributory negligence was, at one time, an absolute
bar to a plaintiff ’s recovery in tort, and (2) establishing the
absence of contributory negligence was part of a plaintiff ’s
burden of proof. Therefore, the majority concludes that,
   “under the prevailing law at the time that the state’s
   constitution was adopted, a plaintiff was required to prove
   not only that his or her injuries were caused by a defendant’s
   negligence but also that his or her own actions did not
   contribute to those injuries. Contributory negligence, in
   other words, was a principle of causation that constituted a
   part of plaintiff ’s burden of proof.”
353 Or at 382.
	      There are, of course, multiple pitfalls associated
with the kind of historical analysis that the majority
undertakes. As Justice Landau has cautioned:
   “Historical analysis, even done well, often will fail to
   establish with anything approximating probability what
   the framers of a constitutional provision intended. It
   may even show that there were multiple and conflicting,
   intentions. Judges should be prepared to accept that and
   not try to make history tell us more than it fairly does.”
Cite as 353 Or 359 (2013)	403

Jack L. Landau, A Judge’s Perspective on the Use and Misuse
of History in State Constitutional Interpretation, 38 Val U L
Rev 451, 486-87 (2004).

	        That warning is appropriate here. As the majority
acknowledges, when the Oregon Constitution was adopted,
this court had not decided that contributory negligence was
a bar to a plaintiff ’s claim or that a plaintiff was required
to plead a lack of contributory negligence as an affirmative
element of his or her cause of action. The first Oregon case
to discuss those issues was decided in 1870, and by 1885
the court had made clear that it had “always understood”
contributory negligence to be a defense that a defendant
must plead. Grant v. Baker, 12 Or 329, 333 (1885); see also
Johnston v. Oregon Short Line & U.N. Ry. Co., 23 Or 94,
99, 31 P 283 (1892) (discussing contrary position set out in
Walsh as a “lapsus linguae” (a slip or fault of the tongue)).8
Thus, the majority cannot say, with the certainty that
should be required for a decision of this magnitude, that, in
1857, plaintiff would not have had a cause of action for her
injuries.

	    8
         The majority cites Conroy v. Oregon Constr. Co. 23 F 71, 72 (D Or 1885), and
Charles Fisk Beach, Jr.’s 1885 treatise on contributory negligence in support of
its claim that Walsh establishes that, at the time the constitution was adopted, a
plaintiff needed to prove the exercise of ordinary care as part of the plaintiff ’s case-
in-chief. The majority correctly notes that Judge Deady observed in Conroy that,
at least in 1885, the states were “nearly evenly divided on the question whether
‘contributory negligence’ is a part of the plaintiff ’s case or a matter of defense.” And
with regard to Oregon, Judge Deady also observed that the Walsh case indicated
that plaintiff had the burden to prove the plaintiff ’s absence of negligence. I would
note, however, that in doing so Judge Deady appeared skeptical of the rule, pointing
out that “[t]he law does not presume that anyone is negligent; especially when such
negligence may or will result in his own personal injury.” 23 F at 72. Moreover,
Judge Deady characterized the court’s reference to the rule stated in Walsh as “a
dictum to that effect.” Id. at 72. Judge Deady’s observations are consistent with
Oregon statutory law at the time the constitution was adopted. At that time, with
regard to civil matters, there was a presumption that, “a person takes ordinary
care of his own concerns.” General Laws of Oregon, Civil Code, ch VIII, title VII,
§ 766, p 337 (Deady 1845-1864). With regard to the Beach treatise, I would point
out that in the third edition of the treatise in 1899 Beach still recognized Walsh as
controlling almost 15 years after that was clearly no longer the case. See Charles
Fisk Beach, Jr., A Treatise on the Law of Contributory Negligence § 422, 599-601
(3rd ed 1899) (listing Oregon as one of the states requiring a plaintiff to prove
the absence of his own negligence). All I claim for these notations is to emphasize
that determining the exact state of Oregon law over 150 years ago is an exceeding
difficult undertaking.
404	                                           Howell v. Boyle

	         Furthermore, even if defendant could have made
arguments in 1857 that had the potential to defeat plaintiff ’s
claim had she filed it in 1857 rather than in 2007, plaintiff
also could have raised legal rules, such as last clear chance or
that defendant had acted with gross negligence—rules that
could have defeated defendant’s contributory negligence
arguments. The majority declines to address the theoretical
or practical significance of those rules because, according to
the majority, plaintiff failed to preserve below arguments
regarding those rules. That is true, but it is unsurprising: As
noted, contributory negligence ceased to be a part of Oregon
law decades ago and plaintiff therefore had no obligation
to plead claims in reply to that nonexistent doctrine. It
is fundamentally unfair for the majority to consider how
plaintiff ’s claim theoretically would have fared in 1857
based only on arguments that a defendant could have made
and at the time refuse to consider, on preservation grounds,
the counter arguments that a plaintiff could have made.


	         In any event, regardless of who has the better
argument about Oregon’s legal history, because the Oregon
legislature abolished the contributory negligence doctrine
decades ago, it was not part of the “due course of law”
that governed plaintiff ’s right to a remedy at the time of
her injury. Relying on Smothers, however, the majority,
nevertheless insists that the legislature constitutionally
may deprive a plaintiff of a remedy that otherwise would
be guaranteed to her if a court is able to determine that the
plaintiff ’s negligence contributed to her injury. Smothers
does not stand for such a strained proposition. Article I,
section 10, guarantees a restorative remedy for injury done
to one’s person; it does not mention, let alone freeze in place,
every repealed, overruled or outmoded argument that a
defendant might have relied on in 1857 to resist an injured
person’s claim.


	        Finally, I take issue with the majority’s resolution
of this matter for its lack of any guiding principle capable of
aiding both bench and bar in future Remedy Clause cases.
Will the requirement that a remedy be “substantial” and
Cite as 353 Or 359 (2013)	405

that it provide a “quid pro quo,” prohibit the legislature from
limiting all plaintiffs to a recovery of $200,000 regardless of
injury? What about $20,000? $2,000?9 Will a limitation to

	   9
        Since this court’s decision in Clarke and the trial court decision in this case,
the legislature has increased the damages caps. The majority gives the legislature
no guidance for the future about whether its damage caps will meet constitutional
muster in individual cases. As pertinent here for claims against public bodies, ORS
30.272 now provides:
    	     “(1)  The limitations imposed by this section apply to claims that:
    	     “(a)  Are subject to ORS 30.260 to 30.300;
    	     “(b)  Are made against a local public body, or against an officer, employee
    or agent of a local public body acting within the person’s scope of employment
    or duties;
    	     “(c)  Arise out of a single accident or occurrence; and
    	     “(d)  Are not claims for damage to or destruction of property.
    	     “(2)  The liability of a local public body, and the liability of the public body’s
    officers, employees and agents acting within the scope of their employment
    or duties, to any single claimant for claims described in subsection (1) of this
    section may not exceed:
    	     “(a)  $500,000, for causes of action arising on or after July 1, 2009, and
    before July 1, 2010.
    	     “(b)  $533,300, for causes of action arising on or after July 1, 2010, and
    before July 1, 2011.
    	     “(c)  $566,700, for causes of action arising on or after July 1, 2011, and
    before July 1, 2012.
    	     “(d)  $600,000, for causes of action arising on or after July 1, 2012, and
    before July 1, 2013.
    	    “(e)  $633,300, for causes of action arising on or after July 1, 2013, and
    before July 1, 2014.
    	    “(f)  $666,700, for causes of action arising on or after July 1, 2014, and
    before July 1, 2015.
    	    “(g)  The adjusted limitation provided by subsection (4) of this section, for
    causes of action arising on or after July 1, 2015.
    	    “(3)  The liability of a local public body, and the liability of the public body’s
    officers, employees and agents acting within the scope of their employment or
    duties, to all claimants for claims described in subsection (1) of this section
    may not exceed:
    	    “(a)  $1 million, for causes of action arising on or after July 1, 2009, and
    before July 1, 2010.
    	    “(b)  $1,066,700, for causes of action arising on or after July 1, 2010, and
    before July 1, 2011.
    	    “(c)  $1,133,300, for causes of action arising on or after July 1, 2011, and
    before July 1, 2012.
    	    “(d)  $1,200,000, for causes of action arising on or after July 1, 2012, and
    before July 1, 2013.
    	    “(e)  $1,266,700, for causes of action arising on or after July 1, 2013, and
    before July 1, 2014.
406	                                                          Howell v. Boyle

25 percent of the damages awarded by a jury be deemed
constitutionally sound? Ten percent? Five percent? The
majority does not say, and the lack of analytical rigor in
its discussion does not help answer the question. The only
limitations suggested by the majority’s opinion are that
(1) plaintiffs cannot be left “wholly without a remedy,” or
without recourse of any value whatsoever, and—in what is
essentially the same proposition stated differently—that
(2) some benefit must be conferred as a “quid pro quo” in
exchange for the remedy taken away, regardless of the
quantity, quality, or substance of the new benefit conferred.
Those propositions, however, are as applicable to a remedy
of $10 as they are to a remedy of $10,000,000 and will
ultimately prove unhelpful in future cases.
	       In my view, there are no plausible arguments
for holding that the Remedy Clause can be satisfied by a
remedy that is not capable of restoring a plaintiff ’s injured
rights and, even if there were, there are no principled bases
upon which a court could find the remedy in this case to
be “substantial”—unless, of course, every remedy short of
no remedy at all is, indeed, “substantial.” Here, because
the constitution plainly requires that plaintiff have a fully
   	    “(f)  $1,333,300, for causes of action arising on or after July 1, 2014, and
   before July 1, 2015.
   	    “(g)  The adjusted limitation provided by subsection (4) of this section, for
   causes of action arising on or after July 1, 2015.
   	    “(4)  Beginning in 2015, and every year thereafter, the State Court
   Administrator shall determine the percentage increase or decrease in the cost
   of living for the previous calendar year, based on changes in the Portland-
   Salem, OR-WA Consumer Price Index for All Urban Consumers for All
   Items as published by the Bureau of Labor Statistics of the United States
   Department of Labor. On or before July 1 of the year in which the State Court
   Administrator makes the determination required by this subsection, the State
   Court Administrator shall adjust the limitations imposed under subsections
   (2) and (3) of this section for the following calendar year by multiplying the
   limitation amounts applicable to the calendar year in which the adjustment
   is made by the percentage amount determined under this subsection. The
   adjustment may not exceed three percent for any year. The State Court
   Administrator shall round the adjusted limitation amount to the nearest $100,
   but the unrounded amount shall be used to calculate the adjustments to the
   limitations in subsequent calendar years. The adjusted limitation becomes
   effective on July 1 of the year in which the adjustment is made, and applies to
   all causes of action arising on or after July 1 of that year and before July 1 of
   the subsequent year.
   	    “(5)  The limitations imposed by this section do not apply to claims
   against Oregon Health and Science University.”
Cite as 353 Or 359 (2013)	407

restorative remedy and because the legislative limitation on
that remedy is so patently insufficient to serve that purpose,
I cannot join the majority in upholding its constitutionality.
	       I respectfully dissent.
	        Walters, J., and Durham, Justice, pro tempore, join
in this dissent.
	       DURHAM, J. pro tempore, dissenting.
	        I join fully the dissenting opinion of Justice
De Muniz in this proceeding. I write separately to draw
attention to an issue concerning Article I, section 10, of the
Oregon Constitution that likely will come before this court
in the future.
	        The key facts are that the jury in this case found that
plaintiff and defendant Boyle were each 50 percent at fault
for the personal injuries that plaintiff suffered. The trial
court accepted the jury’s finding that plaintiff had suffered
economic damages in the sum of $765,000 and noneconomic
damages in the sum of $250,000. The court reduced those
sums by 50 percent to account for plaintiff ’s comparative
negligence and entered a judgment against defendants for
$382,500 in economic damages and $125,000 in noneconomic
damages, for a total judgment for plaintiff in the sum of
$507,500. Finally, the trial court rejected defendants’ motion
to reduce further plaintiff ’s total damages to $200,000, in
accordance with ORS 31.270(1)(b) (2007). According to the
trial court, that further reduction would deprive plaintiff
of her constitutionally guaranteed “remedy by due course
of law for injury done [her] in [her] person,” as provided in
Article I, section 10.
	        The majority today rejects that ruling. It concludes
that Article I, section 10, does not prevent the legislature
from imposing a “cap” of $200,000 on the jury’s decision that
plaintiff suffered damages (adjusted for her comparative
negligence) in the sum of $507,000. According to the
majority, Article I, section 10, entitles plaintiff not to the
damages that actually would restore and, thus, remedy
her personal injury, but only to whatever lesser sum that
the legislature may designate if the court can say that that
408	                                           Howell v. Boyle

sum is a “substantial” remedy. Howell v. Boyle, 353 Or at
359 (majority concludes that state constitution requires
any limited remedy to be “substantial,” and the capped
judgment that plaintiff received “satisfies that constitutional
requirement”).
	        The majority opinion demonstrates just how far
the majority has strayed from the remedy guarantee that
Article I, section 10, embodies. The text of that provision
guarantees a “remedy by due course of law;” the adjective
“substantial” does not appear in any form in the constitution.
	        As Justice De Muniz capably demonstrates in his
dissent, the adjective “substantial” is unworkable as a legal
standard because it is ambiguous and amorphous in the
extreme. It is telling that the majority does not attempt to
define or explain the meaning or limits of that term in this
context; that would be a fool’s errand. Like the meaning of
“beauty,” the meaning of “substantial” in this context exists
only in the eye of the beholder.
	        How did the court’s interpretive focus shift from
the constitutional text (particularly the term “remedy”) to
the adjective “substantial”? The answer appears in Hale v.
Port of Portland, 308 Or 508, 783 P2d 506 (1989). That case
reviewed (somewhat inaccurately, as Justice Linde correctly
noted in his concurring opinion) earlier cases that discussed
the legislature’s authority to alter statutory and common
law claims and remedies as long as the constitutionally
significant underlying interests in person, property, and
reputation are protected. The Hale court then stated:
   	 “Under those cases, the remedy need not be precisely of
   the same type or extent; it is enough that the remedy is a
   substantial one.”
Id. at 523.
	         It is that sentence that has pulled the majority away
from the constitutional text of Article I, section 10. That
sentence does not purport to construe any constitutional
term. But the majority now uses the adjective “substantial”
to conclude that the guarantee of a remedy for the injury to
plaintiff ’s person is satisfied by a cropped sum of money that,
in legal terms, does not restore or repair (and thus does not
Cite as 353 Or 359 (2013)	409

remedy) the injury inflicted by defendant upon to plaintiff ’s
body and pocketbook. Instead of focusing on the real issue—
whether plaintiff has received her guaranteed remedy by
due course of law—the majority addresses whether the
capped judgment awards a “substantial” amount. I submit
that there will never be a satisfactory answer to that issue
because it asks the wrong question. Apparently, the majority
has now condemned this court to repeat, over and over, that
same fruitless quarrel over how to apply a standard based
on a mere adjective used in one unexplained sentence in
Hale.
	        I conclude by inviting this court to reassess its
approach to the remedy guarantee by returning to the
words of the constitution itself and the interests of the
people described therein. Those who drafted the remedy
guarantee did not wish to tie the legislature’s hands in
abolishing older forms of action and remedy so long as
the people’s interests in person, property, and reputation
remain protected through remedies provided by due course
of law, including the constitutional right to trial by jury.
They did not conceive, I submit, of a remedial scheme that
would allow the legislature to cut personal injury damages
by more than half, as here, with no hint of an adequate or
alternative remedy to make up for that cut. That approach
grants an unjustified windfall to the wrongdoer here and
defeats the principle of responsibility for injury caused to
others that Article I, section 10, embodies. Only in the topsy-
turvy world occupied by the majority does a capped award of
$200,000 constitute a remedy for the $507,000 injury that
plaintiff suffered as a result of defendants’ tortious conduct
here.
	       Counsel who wish to invite the court to engage in
that reassessment of Article I, section 10, should preserve
that argument at the appropriate stage and advance the
arguments, suggested in this court’s case law, that justify a
reconsideration of today’s unfortunate decision.
	       I respectfully dissent.
