                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JEAN MARIE HOWELL,                             No. 09-36153
                Plaintiff-Appellee,                D.C. No.
               v.                             3:08-cv-00727-KI
CHRISTOPHER DAVID BOYLE and                   District of Oregon,
                                                    Portland
CITY OF BEAVERTON,
           Defendants-Appellants.                  ORDER
                                                CERTIFYING
                                              QUESTIONS TO
                                               THE SUPREME
                                                 COURT OF
                                                 OREGON

                     Filed January 14, 2011

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


                             ORDER

   Plaintiff Jean Howell filed suit in the United States District
Court for the District of Oregon against Defendants Christo-
pher Boyle and his employer, the City of Beaverton, Oregon
(the City). Howell sought damages for injuries she sustained
when Boyle, a police officer for the City, struck her with his
police cruiser as she walked across a highway. At trial, the
jury found that Howell and Boyle were each negligent and 50
percent responsible for the accident. After the district court
reduced the jury’s award under Oregon’s comparative negli-

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

                                719
720                         HOWELL v. BOYLE
gence law, it awarded Howell $507,500 in damages. Boyle
and the City asked the district court to cap damages at
$200,000 under the Oregon Tort Claims Act (the OTCA), Or.
Rev. Stat. section 30.270(1) (2007), repealed by Or. Laws
2009, c. 67, § 20.1 The district court ruled that the OTCA
damages cap was unconstitutional as applied to the case under
the remedy clause in Oregon’s constitution, Or. Const. art. I,
§ 10, and declined to reduce Howell’s damages.

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

   Defendants’ arguments raise important questions of Oregon
constitutional law that are unresolved by previous decisions of
the Supreme Court or intermediate appellate courts of Ore-
gon. See Or. Rev. Stat. § 28.200 (providing authority to
Supreme Court of Oregon to decide questions of law certified
by a United States Court of Appeals). Because these constitu-
tional questions will be determinative of the case before us,
we respectfully certify several questions to the Oregon
Supreme Court. See id. We offer the following statement of
“facts relevant to the questions certified” and an explanation
  1
    Former Or. Rev. Stat. section 30.270 (2007), repealed by Or. Laws
2009, c. 67, § 20, in effect when the injury to Howell occurred, capped
recovery against the public body at $100,000 in economic damages and
$100,000 in non-economic damages. Effective July 1, 2009, the Oregon
Legislature increased the cap for a single claim against an employee of a
local public body to $500,000, with increases in the liability limit each
year thereafter. See Or. Rev. Stat. § 30.272. This new raised liability limit
is inapplicable to this case because Howell’s accident occurred on Febru-
ary 9, 2007, before the new limit took effect.
                           HOWELL v. BOYLE                             721
of “the nature of the controversy in which the questions
arose.” Or. Rev. Stat. § 28.210.

I.       Factual and Procedural History

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

   In their answer and in their trial brief, the defendants
asserted that, under the OTCA, Howell’s only action was
against the City, and asked the court to dismiss the claims
against Boyle.2 The defendants also asserted that the OTCA
limited Howell’s potential recovery to $200,000. Citing
Clarke v. Or. Health Scis. Univ., 175 P.3d 418 (Or. 2007), the
district court refused to dismiss the claims against Boyle or
cap damages under the OTCA because it concluded that the
$200,000 damages cap would be an unconstitutional emascu-
lated remedy in light of the nearly $6 million in damages that
Howell sought.

   At trial, both sides alleged that the other was negligent.
Officer Boyle admitted that he did not see Howell until he
struck her, but argued that Boyle was negligent in crossing the
     2
    Or. Rev. Stat. section 30.265(1) provides that “every public body is
subject to action or suit for its torts and those of its officers, employees
and agents acting within the scope of their employment or duties,” and
that such an action “is exclusive of any other action or suit against any
such officer, employee or agent.” The statute further requires that “[i]f an
action or suit is filed against an officer, employee or agent of a public
body, on appropriate motion the public body shall be substituted as the
only defendant.”
722                         HOWELL v. BOYLE
highway in front of traffic.3 The jury found that Howell and
Boyle were each negligent and 50 percent responsible for the
damages suffered by Howell. The jury also found that Howell
suffered economic damages of $765,000 and non-economic
damages of $250,000. The district court reduced the jury
award according to Oregon’s comparative negligence statute,
Or. Rev. Stat. § 31.600(1), and awarded Howell a total of
$507,500.

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

II.   Questions Raised on Appeal

   Although none of the parties expressly raised the issue
before the district court and the court never directly addressed
it, the court’s ruling on the constitutionality of the OTCA
  3
    Boyle’s argument was based on the fact that Howell was crossing the
highway outside an ‘unmarked crosswalk’ as defined by Or. Rev. Stat.
section 801.220. Howell disputed the district court’s interpretation of sec-
tion 801.220, which placed her outside the crosswalk at the time of the
accident. In a related cross-appeal, No. 10-35038, Howell challenged the
district court’s interpretation of section 801.220 as reflected in an exhibit
provided to the jury and the court’s jury instruction that the exhibit
reflected the location of the unmarked crosswalk. In a separate memoran-
dum disposition filed concurrently with this order, we affirmed the district
court’s ruling on the interpretation of section 801.220 and the location of
the crosswalk. With the resolution of this issue, the only remaining issue
on appeal is whether the district court erred in its application of Oregon’s
remedy clause when it rejected the limitation on Howell’s damages as
required by the OTCA.
                        HOWELL v. BOYLE                       723
damages cap was based on an understanding that the remedy
clause protected Howell’s negligence action. The Oregon
Supreme Court has said that claims are protected under the
remedy clause when they allege an injury to absolute common
law rights as those rights existed at the time Oregon ratified
its constitution in 1857. Smothers v. Gresham Transfer, Inc.,
23 P.3d 333, 353 (Or. 2001). On appeal, the parties dispute
whether Howell’s action is protected by the remedy clause
because they disagree on whether Howell’s suit would have
been successful at common law.

   Boyle and the City argue that Howell would not have
recovered at common law because Howell’s contributory neg-
ligence would have completely barred recovery of any dam-
ages. See Lawson v. Hoke, 119 P.3d 210, 214 (Or. 2005)
(“[I]n the early years of this state’s history, a plaintiff’s con-
tributory negligence was an absolute bar to recovery for the
negligent acts of another.”). Howell counters that in spite of
her own negligence, she would have recovered at common
law because: 1) Boyle had the ‘last clear chance’ to avoid the
accident; 2) Boyle was grossly negligent; and 3) her actions
were the result of Boyle placing her in a position of certain
peril (the emergency defense).

   We are capable of applying these common law rules to the
facts of this case, but we are not confident how they should
be considered in resolving the constitutional questions pre-
sented. Howell and the City cite Lawson in support of their
argument that, because the jury found Howell negligent, her
claim would have been barred at common law under the doc-
trine of contributory negligence and is therefore not protected
by the remedy clause. In Lawson, the court held that a statute
precluding an award of civil damages to injured drivers who
failed to obtain compulsory auto insurance was not unconsti-
tutional because “it was not unfamiliar to the common law of
the mid-nineteenth century for courts to deny a remedy for
negligence to a plaintiff who was in violation of positive stat-
utory law when the accident occurred.” 119 P.3d at 215. In
724                      HOWELL v. BOYLE
explaining its ruling, the court noted that contributory negli-
gence would have barred recovery at common law as an
example “illustrat[ing] that the right to bring an action at com-
mon law could be limited.” Id. at 214. On the one hand, it is
tempting to read this statement as indicating that, because
contributory negligence would have completely barred recov-
ery at common law, there is no constitutional barrier to cap-
ping damages where the plaintiff is found to have been
contributorily negligent in a modern-day lawsuit. On the other
hand, the OTCA damages cap has nothing to do with contrib-
utory negligence. Thus, unlike the statute in Lawson, the stat-
utory cap on damages at issue in this case cannot be neatly
matched with similar laws that existed at common law.
Adding further ambiguity, we find no guidance in the Oregon
case law on how the common law defenses to contributory
negligence raised by Howell affect the determination of
whether her action is constitutionally protected.

   If Howell’s action is protected, the parties also dispute
whether $200,000 is an unconstitutional emasculated remedy.
The Oregon Supreme Court has stated that a statutory substi-
tuted remedy is constitutionally permissible so long as it is
not an ‘emasculated’ version of the remedy that was available
at common law. Clarke, 175 P.3d at 432; Smothers, 23 P.3d
at 354. The Court, however, has not provided a quantitative
formula for determining when a remedy is so reduced as to
render it constitutionally inadequate. In Clarke, the court held
that the OTCA damages cap of $200,000 was unconstitutional
where the plaintiff would have recovered $17 million at com-
mon law. 175 P.3d at 433. In Ackerman v. OHSU Med. Grp.,
227 P.3d 744 (Or. App. 2010), the Oregon Court of Appeals
held that the $200,000 OTCA damages cap against one defen-
dant was unconstitutional where the plaintiff would have
recovered $1,212,000 at common law.4 The court announced
  4
   An Oregon Court of Appeals’ announcement of a rule of law “is a
datum for ascertaining state law which we may not omit unless we are
                           HOWELL v. BOYLE                           725
a list of factors in Ackerman that a court should consider, the
first and most important being the disparity between the
capped damages and the damages that a plaintiff would have
received at common law. Id. at 756-57. Despite this guidance,
we cannot confidently advance past the first step of the Acker-
man rule. Just as with the first constitutional question, we are
unsure how Howell’s contributory negligence and her poten-
tial common law defenses affect the application of the
Ackerman factors.

III.    Questions Certified

   Accordingly, we respectfully certify the following ques-
tions to the Oregon Supreme Court:

       1.   Is Howell’s negligence action constitutionally
            protected under the Oregon constitution’s rem-
            edy 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 negli-
            gence effect this determination?

       2.   If Howell’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
            effect this determination?

convinced by other persuasive data that the highest court of the state
would decide otherwise.” See Johnson v. Riverside Healthcare System,
LP, 534 F.3d 1116, 1125 (9th Cir. 2008) (internal quotation marks omit-
ted). We find nothing in Ackerman or any other case from the Oregon
Supreme Court or Court of Appeals that suggests the Oregon Supreme
Court would reject its reasoning, so we consider it controlling authority.
726                      HOWELL v. BOYLE
   We respectfully ask the Oregon Supreme Court to exercise
its discretionary authority to accept and decide these ques-
tions. Our phrasing of the questions should not restrict the
court’s consideration of the issues involved. “ ‘The court may
reformulate the relevant state law questions as it perceives
them to be, in light of the contentions of the parties.’ ” Doyle
v. City of Medford, 565 F.3d 536, 544 (9th Cir. 2009) (order)
(quoting Toner ex rel. Toner v. Lederle Labs., 779 F.2d 1429,
1433 (9th Cir.1986)). We agree to abide by the decision of the
Oregon Supreme Court. See Lombardo v. Warner, 391 F.3d
1008, 1010 (9th Cir. 2004) (en banc) (order). If the court
decides that the questions presented in this case are inappro-
priate for certification, or if it declines the certification for any
other reason, we request that it so state, and we will resolve
the question according to our best understanding of Oregon
law.

   The Clerk of this court shall file a certified copy of this
Order with the Oregon Supreme Court under Or. Rev. Stat.
section 28.215. This appeal is withdrawn from submission
and will be submitted following receipt of the Oregon
Supreme Court’s opinion on the certified questions or notifi-
cation that it declines to answer the certified questions. The
panel shall retain jurisdiction over further proceedings in this
court. The parties shall notify the Clerk of the Ninth Circuit
within one week after the Oregon Supreme Court accepts or
rejects certification. In the event the Oregon Supreme Court
grants certification, the parties shall notify the Clerk within
one week after the court renders its Opinion.

 CERTIFICATION               REQUESTED;             SUBMISSION
VACATED.
