Oregon Supreme Court Sidesteps Issue of "Common Law Wrongful Death"

In an En Banc decision, the Oregon Supreme Court in Juarez v. Winsor Rock Products, Inc. sidestepped the one issue the parties and many others in Oregon have argued recently; namely, whether Oregon recognizes a cause of action for "common law wrongful death." 

Following the workplace death of Felix Juarez, his adult children and mother brought a claim for "loss of society, companionship, guidance, emotional support, services and financial assistance."  Because in this situation the workers' compensation system only allows a burial payment and no compensation to the adult children and parents of the decedent, and because the workers' compensation system provides the exclusive remedy for workplace injuries, plaintiffs sued in civil court.  There they sought the typical statutory wrongful death damages and argued that the workers' compensation system violates Article I, section 10 of the Oregon Constitution by depriving them of a common law remedy (a wrongful death cause of action) available in 1857 when the Constitution was adopted.

Applying the methodology adopted in an earlier case, Smothers v. Gresham Transfer, Inc., the court concluded that the plaintiffs' claims for "loss of society, companionship, guidance, emotional support, services and financial assistance" did not include an injury to one of the rights protected by Article I, section 10.  Accordingly, without even deciding whether Oregon recognizes a cause of action for "common law wrongful death," the court affirmed the lower court's dismissal of the lawsuit.

You may view the entire opinion at:  http://www.publications.ojd.state.or.us/S52352.htm