Filed: June 7, 2002

NANCY J. STORM,
Personal Representative for the Estate of
Jon E. Storm, Deceased,

Respondent on Review/Petitioner on Review,

v.

RICK McCLUNG,

Respondent on Review,

and

CITY OF OREGON CITY,
a municipal corporation,

Petitioner on Review/Respondent on Review.

On review from the Court of Appeals.*

Argued and submitted May 8, 2001.

Robert E. Franz, Jr., Springfield, argued the cause for petitioner on review/respondent on review City of Oregon City. With him on the briefs were Kathryn D. Piele and Michael O. Whitty.

W. Eugene Hallman, of Hallman & Dretke, Pendleton, argued the cause and filed the briefs for respondent on review/petitioner on review Storm.

No appearance on behalf of respondent on review McClung.

Maureen Leonard and Kathryn H. Clarke, Portland, filed briefs on behalf of amicus curiae Oregon Trial Lawyers Association.

David L. Runner, Salem, filed a brief on behalf of amici curiae SAIF Corporation, Pape Group, Inc., and Timber Products Company.

Marjorie A. Speirs and Janet M. Schroer, of Hoffman, Hart & Wagner, LLP, Portland, filed a brief on behalf of amicus curiae Oregon Association of Defense Counsel.

Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices.**

DE MUNIZ, J.

The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed. The case is remanded to the circuit court for further proceedings.

*Appeal from Clackamas County Circuit Court, Robert D. Herndon, Judge. 168 Or App 62, 4 P3d 66 (2000).

**Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case. Balmer, J., did not participate in the consideration or decision of this case.

DE MUNIZ, J.

Plaintiff, the widow of Jon Storm and the personal representative of his estate, brought this wrongful death action, under ORS 30.020 against the City of Oregon City (the city) for the benefit of Storm's mother, Myrtha Storm, and his daughters, Sonia and Tami Storm. A jury found that Storm and the city were each 50 percent negligent in causing Storm's death and awarded damages. In accordance with ORS 30.050, the trial court entered a judgment for plaintiff that apportioned the damages between Storm's mother and daughters. The city appealed. The Court of Appeals held that Storm's daughters each had received a substantial remedy under the Workers' Compensation Law and, therefore, plaintiff was not entitled to any recovery on their behalf. Because the Court of Appeals concluded that plaintiff was not entitled to a recovery on behalf of her daughters, the court reversed the judgment and remanded the case for a retrial limited to assessing damages on behalf of Storm's mother. Storm v. McClung, 168 Or App 62, 64-69, 4 P3d 66 (2000). We allowed each party's petition for review.

We take the following facts from the opinion of the Court of Appeals:

"Storm was an employee of Bud's Towing, an Oregon City business owned by Del Bullock. Bullock was active in civic affairs, at times loaning his business equipment and employees for city projects. Storm was similarly involved; among other things, he was a member of the Arbor Day Clean Up Committee, which Rick McClung, the City's director of public works, chaired. The members of the committee other than McClung were, like Storm, volunteers interested in the 'beautification and enhancement of the city.'

"Storm died on May 4, 1994, in the process of an Arbor Day project at the City's Clackamette Park, which is located at the confluence of the Clackamas and Willamette rivers. The city wanted to top a number of cottonwood trees in the park, both because the trees were potentially dangerous and to create nesting sites for birds. It had previously paid a professional tree service to fell a number of trees in the park; city employees did not believe that they were qualified to do the work safely. The jury could have found that topping a tree is more dangerous than felling it. A city employee examined the trees in April 1994 and identified six that were particularly dangerous because of their location and condition. The City knew from the employee's written report that tree 'F' contained rotten wood, which increases the dangerousness of a cottonwood. McClung suggested that the Arbor Day committee include topping those six trees among the projects for its spring clean-up period, which ran for several weeks in May and June. If the City had been unable to find volunteers, either through the committee or otherwise, it would again have hired a contractor; its own employees would not have done the job.

"Storm was one of the volunteers who worked on topping the trees. Bud's Towing provided equipment for use on the job. Bullock was present for only a small part of the time, but Storm participated throughout the day. The equipment that Bud's Towing provided included a crane that had a bucket at one end; of those present, only Storm and Bullock were qualified to operate it. Michael Huffman, the person cutting the trees, stood in the bucket thirty feet above the ground in order to top the trees. Storm did not originally do any of the cutting because he had to operate the crane. After the group successfully topped several trees, it turned to tree 'F.' After Huffman had cut a significant distance through the trunk of that tree, the top began to move toward him, rather than away from him. The movement ultimately trapped the saw within the cut. Huffman shut off the saw, and the group spent about an hour discussing what to do next. Bullock arrived during the discussion.

"The group ultimately decided that Storm would go up in the bucket, at least to retrieve the saw and see exactly what the situation was, while Bullock operated the crane. Storm went up, pounded wedges into the saw cut, and freed the saw. Instead of coming down at that point, he started the saw and attempted to finish topping the tree. The top again moved toward the saw rather than away from the crane, but this time it came completely down. In doing so, the top knocked the crane off the truck, threw Storm out of the bucket, and landed on top of him. Storm died soon afterwards. City employees observed and videotaped the entire proceedings, but they were not involved in the decisions and did not warn Storm or anyone else of the dangers that the trees presented.

"The jury found that Storm and the City were each 50 percent negligent in causing Storm's death. * * * The jury then determined that the estate's economic damages were $147,923 and that its noneconomic damages, on behalf of Tami, Sonia and Myrtha, were $400,000. In accordance with the jury's finding of comparative fault, the court entered judgment against the City for $73,961.50 in economic damages and $200,000 in noneconomic damages. It thereafter entered an order of distribution under ORS 30.050, apportioning economic damages of $24,653.83 each to Sonia and Tami and $24,653.84 to Myrtha, and noneconomic damages of $75,000 each to Sonia and Tami and $50,000 to Myrtha."

168 Or App at 64-66 (footnote omitted).

On review, plaintiff relies on this court's decision in Neher v. Chartier, 319 Or 417, 879 P2d 156 (1994), and contends that, as applied to Storm's daughters, the immunity provisions in ORS 30.265(3)(a) (1) violate Article I, section 10, of the Oregon Constitution, (2) because the workers' compensation benefits that the daughters received are not a "substantial" remedy. The city asserts that the trial court erred in submitting plaintiff's specification of negligence to the jury, that the Court of Appeals decision with regard to Storm's daughters is correct and that, in any event, the Recreational Land Act, former ORS 105.655 to ORS 105.680 (1971), repealed by Oregon Laws 1995, chapter 456, section 9, and the Woodcutting Act, former ORS 105.685 to ORS 105.697 (1979), repealed by Oregon Laws 1995, chapter 456, section 9, completely immunized the city. Therefore, the city contends that the Court of Appeals incorrectly ordered a retrial to determine Storm's mother's damages.

We reject at the outset, for the reasons that the Court of Appeals expressed, the city's argument regarding the sufficiency of the evidence and the city's argument that the immunity provisions in the Recreational Land Act or the Woodcutting Act apply in this case. 168 Or App at 66-67. We turn to plaintiff's argument.

Relying on this court's decision in Neher, plaintiff contends that application of the immunity provisions in ORS 30.265(3)(a) denied her daughters a remedy in violation of Article I, section 10, of the Oregon Constitution. The Court of Appeals rejected that argument on the ground that, unlike the decedent's parents in Neher, who had received only burial expenses under the Workers' Compensation Law, plaintiff's daughters each had received death benefits and were entitled to an additional $215 for every month that they attend college. That court concluded that, because those benefits were "substantial," Neher was distinguishable and the application of "ORS 30.265(3)(a) to Sonia and Tami [did] not violate Article I, section 10." 168 Or App at 74.

We need not decide whether the Court of Appeals correctly concluded that Neher was distinguishable on the basis that the workers' compensation benefits that Sonia and Tami received were "substantial." Rather, for the reasons that follow, we reject plaintiff's argument that Article I, section 10, prohibits application of the immunity provisions in ORS 30.265(3)(a) to plaintiff's statutory wrongful death action.

We begin with Neher. In that case, the decedent had been hit and killed by a Tri-Met bus while crossing the street. The decedent's estate received workers' compensation benefits (limited to burial expenses) because, at the time of the accident, the decedent was in the course and scope of her employment. Her father, as personal representative of the estate, also brought a statutory wrongful death action against Chartier, the bus driver, and his employer, Tri-Met. The trial court granted the defendants' motion for summary judgment, concluding that ORS 30.265(3)(a) provided the defendants with immunity from the plaintiff's wrongful death action.

The decedent's father appealed, arguing that ORS 30.265(3)(a) effected the denial of a remedy for his daughter's death and, therefore, violated Article I, section 10. The defendants responded that Article I, section 10, "applies only to rights established at common law, * * * and that wrongful death is a statutory, not a common law, remedy." Neher v. Chartier, 124 Or App 220, 223, 862 P2d 1307 (1993). Therefore, the defendants argued, the legislature could limit or even eliminate entirely the wrongful death cause of action. The Court of Appeals affirmed, on different grounds, applying this court's reasoning in Hale v. Port of Portland, 308 Or 508, 783 P2d 506 (1989). Hale explained that the legislature may alter or limit a cause of action "so long as the party injured is not left entirely without a remedy." Id. at 523. The remedy provided, explained the Hale court, simply must be "substantial." Id. Thus, the Court of Appeals in Neher, relying on Hale, concluded that, although $3,000 may be a small amount, the court could not say that the plaintiff was denied a substantial remedy.

On review, this court reversed, holding that ORS 30.265(3)(a) violated Article I, section 10, because the provision insulated the defendants from liability to the decedent's parent while, at the same time, the wrongful death statute recognized the existence of a right of recovery for surviving parents. Neher, 319 Or at 428. The court began the Neher opinion by observing that "[t]his court's case law * * * interpreting Article I, section 10, * * * ha[d] failed definitively to establish and consistently to apply any one theory regarding the protections afforded by the remedies guarantee." Id. at 423. The court then noted that it had summarized the application of Article I, section 10, to governmental bodies in Hale, which, relying on Noonan v. City of Portland, 161 Or 213, 249-50, 88 P2d 808 (1939), had explained that, "'Article I,