Crandall v. State

328 Or.App. 452

538 P.3d 212

Shirley "Joe" CRANDALL, Plaintiff-Appellant,

and

Mary Crandall, Plaintiff,

v.STATE of Oregon, Defendant-Respondent,andMitchell Fuller and Tyler Womack, Defendants.

State of Oregon, Third-Party Plaintiff,

v.Donald Andresen, dba Eagle Fire, Third-Party Defendant.

A174313

Court of Appeals of Oregon.

Argued and Submitted December 28, 2021.

October 4, 2023

Andrew R. Wilson argued the cause for appellant. Also on the briefs was Black, Chapman, Petersen & Stevens.

Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

James S. Coon and Thomas, Coon, Newton & Frost filed the brief amicus curiae for Oregon Trial Lawyers’ Association.

Before Kamins, Presiding Judge, and Lagesen, Chief Judge, and Jacquot, Judge.^*

LAGESEN, C. J.

Plaintiff Shirley "Joe" Crandall is a firefighter who was severely injured while fighting the Sugar Pine fire when his dozer went over a cliff; plaintiff received workers’ compensation benefits for his injury. In this action, he brings tort claims (negligence and employer liability law) based on the alleged negligence of two individual state employees involved in supervising the firefighting efforts. The Oregon Tort Claims Act (OTCA), however, immunizes from liability "[e]very public body and its officers, employees and agents acting within the scope of their employment or duties" for "[a]ny claim for injury to or death of any person covered by any workers’ compensation law." ORS 30.265(6)(a). Relying on that provision, the trial court granted summary judgment to the state and entered a limited judgment dismissing plaintiff's claims.¹ In so doing, the court rejected plaintiff's argument that the application of ORS 30.265(6)(a) to bar his claims violates the remedy clause of Article I, section 10, of the Oregon Constitution.² Plaintiff challenges that conclusion on appeal. Applying the analytic framework set forth in Horton v. OHSU , 359 Or. 168, 376 P.3d 998 (2016), we conclude that the trial court was correct. In particular, we conclude that, in view of the case law reaffirmed by the Supreme Court in Horton , where, as here, a plaintiff has a remedy for an injury under the Workers’ Compensation Act, the application of ORS 30.265(6)(a) to preclude tort remedies against third-party state employees does not violate the remedy clause of Article I, section 10. Accordingly, we affirm the limited judgment.

FACTUAL AND PROCEDURAL BACKGROUND

For purposes of appeal, the underlying facts are not in dispute. While plaintiff was working the Sugar Pine fire in 2018, the dozer he was driving went off of a cliff and flipped three times. Plaintiff was severely injured. He was employed by Eagle Fire at the time, which had assigned him to work the Sugar Pine fire under the supervision and control of the Oregon Department of Forestry (ODF). Two ODF employees, Fuller and Womack, supervised the individuals working on the fire; Fuller was a supervisor and Womack was a heavy equipment boss.

After the accident, plaintiff submitted a claim for workers’ compensation benefits. Plaintiff also brought this tort action against defendants Fuller, Womack, and the State of Oregon, alleging a claim that individual defendants were negligent in various respects, a claim under the Oregon Employers Liability Law, and a claim that the state was vicariously liable for the negligence of Fuller and Womack. Plaintiff sought $2,000,000 in noneconomic damages and $700,000 in economic damages for medical bills, lost wages, and impaired earning capacity; plaintiff also sought economic damages for future medical expenses in an amount to be proved.

The state moved to dismiss Fuller and Womack under ORS 30.265(3), on the ground that "the sole cause of action for a tort committed by officers, employees or agents of a public body acting within the scope of their employment *** is an action against the public body." ORS 30.265(3). Plaintiff opposed the motion on the ground that he was seeking damages in excess of the tort claims cap, such that ORS 30.265(4) authorized the claims to proceed against the individuals. The trial court agreed with the state and dismissed Fuller and Womack from the case.

The state then moved for summary judgment on plaintiff's claims on the ground that those claims were for an injury covered by the workers’ compensation law, and thus, under ORS 30.265(6)(a), the state was immune from liability on plaintiff's claims. Plaintiff opposed the motion, arguing that the application of that statute to bar his claims against the state and its employees would violate the remedy clause of Article I, section 10, of the Oregon Constitution. The trial court again agreed with the state and entered a limited judgment dismissing plaintiff's claims.

Plaintiff appealed, raising two assignments of error. Plaintiff first assigns error to the trial court's dismissal of Fuller and Womack, asserting that, under ORS 30.265(4), they should have remained in the case. Second, plaintiff assigns error to the trial court's determination that ORS 30.265(6)(a) barred plaintiff's claims. Plaintiff does not dispute that the statute, by its terms, applies to bar his claims. Instead, plaintiff argues, as he did below, that applying the statute to his claims violates his rights under the remedy clause of Article I, section 10. Plaintiff and amicus curiae , the Oregon Trial Lawyers Association (OTLA), also argue that, under Horton , ORS 30.265(6)(a) is unconstitutional on its face.

In response, the state argues that we need not address plaintiff's first assignment of error. That is because, by its terms, ORS 30.265(6)(a) immunizes from liability not just the state but also the individual defendants. See ORS 30.265(6)(a) (making immune "[e]very public body and its officers, employees and agents acting within the scope of their employment or duties" for "[a]ny claim for injury to or death of any person covered by any workers’ compensation law"). Accordingly, the state reasons, it does not matter whether the trial court erred in dismissing Fuller and Womack under ORS 30.265(3), given the immunity supplied to them by ORS 30.265(6)(a). The state then argues that, under Horton and the prior case law that it revived, the application of ORS 30.265(6)(a) to limit plaintiff's remedy to the workers’ compensation remedy, does not violate the remedy clause of Article I, section 10. Citing City of Corvallis v. State of Oregon , 304 Or App 171, 180-81, 464 P.3d 1127 (2020), the state also asserts that plaintiff's argument does not supply a basis for facially invalidating ORS 30.265(6)(a) because "that argument does not extend to the full range of cases or circumstances to which the OTCA's workers’-compensation immunity may apply[.]"

STANDARD OF REVIEW

Although this case was resolved on summary judgment, the facts are undisputed and the questions on appeal are solely ones of law. Filipetti v. Dept. of Fish & Wildlife , 224 Or App 122, 125, 197 P.3d 535 (2008). Accordingly, we review for legal error. Id.

ANALYSIS

We begin by defining the scope of the issues we must resolve. We agree with the state that we need not address the question whether the trial court properly substituted the state for the individual defendants and dismissed those defendants, in view of the fact that ORS 30.265(6)(a) by its terms precludes the imposition of tort liability on either the state or the individuals. We also agree with the state that neither plaintiff's arguments, nor the arguments by amicus , provide a basis for facially invalidating ORS 30.265(6)(a) because those arguments center on why the statute, as applied to a person in plaintiff's situation, results in a remedy-clause violation. City of Corvallis , 304 Or App at 180-81, 464 P.3d 1127 ("A statute is facially unconstitutional if it is incapable of constitutional application in any circumstance." (Internal quotation marks omitted.)). Accordingly, the question we must answer is whether ORS 30.265(6)(a), if applied to bar plaintiff's tort claims against individual state employees, violates the remedy clause of Article I, section 10.³

We start by explaining how, through its enactment of the Workers’ Compensation Act and the OTCA, the legislature has adjusted the remedies available to an injured person in plaintiff's position. We then turn to the question of whether those legislative choices violate Article I, section 10, as applied to plaintiff. Ultimately, we conclude that they do not.

Under the common law, plaintiff would have been entitled to seek tort remedies against Fuller and Womack for harm alleged to be caused by their tortious conduct. Horton , 359 Or. at 221-22, 376 P.3d 998 ; Neher v. Chartier , 142 Or App 534, 539, 923 P.2d 653, rev. den. , 324 Or. 323, 927 P.2d 599 (1996). As for the state, sovereign immunity would have precluded plaintiff's claims against it. Horton , 359 Or. at 221-22, 376 P.3d 998. To the extent that plaintiff's employer played a role in his injuries, plaintiff would have been entitled to seek tort remedies against his employer. See Sacher v. Bohemia, Inc. , 302 Or. 477, 482, 731 P.2d 434 (1987) (describing remedies available at common law to worker injured on the job).

Through the Workers’ Compensation Act and the OTCA, the legislature altered that common-law status quo by providing for workers’ compensation benefits, by abrogating the state's sovereign immunity and providing for tort remedies against the state, and by restricting the availability of tort remedies against individual state employees in some circumstances, including those circumstances in which workers’ compensation benefits are available.

First, as a result of the Workers’ Compensation Act, a person injured on the job, as plaintiff was, is entitled to workers’ compensation benefits for the injury, regardless of fault and without having to bring a lawsuit. ORS 656.202(1) ("If any subject worker sustains a...