Is there a common law claim for wrongful death in Oregon?

September 2006
By Judge John Wittmayer, Multnomah County Circuit Court

When the Supreme Court issued its decision in Greist v. Phillips, 322 Or 281 (1995), many thought that the issue was settled, and that the Supreme Court had clearly said that a wrongful death claim is solely a creature of statute, and no common law right existed to assert such a claim when the Oregon Constitution was adopted in 1857 (even though it took two years after that to become a state). Later, with its opinion in Lakin v. Senco Products, Inc. 329 Or 62 (1999), the Supreme Court corrected certain language from Greist, which the Lakin court described as dicta. With this "correction" came the argument from plaintiffs that the Griest court's decision, that no common law wrongful death action existed in 1857, was no longer viable.

It now appears that this issue has been squarely presented to the Supreme Court. The Supreme Court has accepted review in Hughes v. PeaceHealth, 204 Or App 614 (2006). One of the issues for review is whether a wrongful death action was cognizable, and a remedy available, under common law when the Oregon Constitution was adopted.

All of this is important because the Legislature's "cap" on non-economic damages can apparently apply only to claims that are a creature of the legislature, and can not apply to claims that existed at common law when the Oregon Constitution was adopted. Lakin, supra.

Practice tip: You should expect that it will be necessary to make whatever record you think appropriate to preserve this issue pending the Supreme Court's decision in Hughes.