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

District of Oregon, CHRISTOPHER DAVID BOYLE and

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 Christopher 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
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 section 30.270(1) (2007), repealed by Or.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 contributory 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 damage 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 Oregon. 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 constitutional 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

1Former 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 February 9, 2007, before the new limit took effect. 

720 HOWELL v. BOYLE
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 resident 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 hospitalization at considerable expense. She brought a diversity action in

the District of Oregon against Boyle and the City seeking economic 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 emasculated 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

2Or. 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.” 

HOWELL v. BOYLE 721
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 unconstitutional emasculated remedy. The district court was persuaded 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

3Boyle’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 section 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 memorandum 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. 

722 HOWELL v. BOYLE
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 negligence would have completely barred recovery of any damages. See Lawson v. Hoke, 119 P.3d 210, 214 (Or. 2005)

(“[I]n 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.”). 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 presented. 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 doctrine 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 unconstitutional 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 statutory law when the accident occurred.” 119 P.3d at 215. In

HOWELL v. BOYLE 723
explaining its ruling, the court noted that contributory negligence would have barred recovery at common law as an

example “illustrat[ing] that the right to bring an action at common 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 recovery at common law, there is no constitutional barrier to capping 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 contributory negligence. Thus, unlike the statute in Lawson, the statutory 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 substituted 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 common 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 defendant was unconstitutional where the plaintiff would have

recovered $1,212,000 at common law.4 The court announced

4An 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

724 HOWELL v. BOYLE
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 Ackerman rule. Just as with the first constitutional question, we are

unsure how Howell’s contributory negligence and her potential common law defenses affect the application of the

Ackerman factors.

III. Questions Certified

Accordingly, we respectfully certify the following questions to the Oregon Supreme Court:

1. Is Howell’s negligence action constitutionally

protected under the Oregon constitution’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 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 omitted). 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.

HOWELL v. BOYLE 725
We respectfully ask the Oregon Supreme Court to exercise

its discretionary authority to accept and decide these questions. 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 inappropriate 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 notification 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.

726 HOWELL v. BOYLE