Displaying 3 category results for September 2013.x

Justice questions Oregon Supreme Court's remedy clause jurisprudence

By Lori Irish Bauman
September 30, 2013

Last week the Oregon Supreme Court invalidated a statutory cap on noneconomic tort damages.  The plaintiffs in Klutschkowski v. PeaceHealth asserted a medical malpractice claim to recover for injuries their son had sustained during birth.  Plaintiffs contended that the damages cap violated the right to a remedy of Article I, Section 10 of the Oregon Constitution, and the right to jury trial of Article I, Section 17.  The Court applied the reasoning of the 2001 case Smothers v. Gresham Transfer, which held that if the common law recognized a right to recover when the Oregon Constitution was adopted in 1857, then a court may enforce a statute abolishing the remedy only if the legislature provides a constitutionally adequate substitute remedy.  The Court concluded that the claim at issue in this case did exist in 1857 and could not be limited by a statutory cap.

Justice Jack Landau wrote a lengthy concurring opinion, acknowledging that the majority properly applied the Smothers analysis, but questioning Smothers and other cases requiring "imaginative reconstruction of nineteenth-century case law" in order to resolve issues of state constitutional law.  Justice Landau challenged "the notion that this state's constitution today means no more than what it meant in 1857" and characterized the "hyper-originalism" required by the case law as "untenable."  He next disputed the historical interpretation of the remedy clause adopted in Smothers:  "My own view is that it is unlikely that the framers intended the remedy clause to serve as a limitation on legislative authority."  He suggests that the Court in future cases "should invite advocacy . . . to address the issues that I have raised."

The question now is whether other members of the judiciary will take up Justice Landau's call to broadly re-think how they interpret the Oregon Constitution.

Register for Ater Wynne's Seminar on Gender Equality: Emerging LGBT Issues in the Workplace

By Lori Irish Bauman
September 18, 2013

Ater Wynne invites you to attend its next employment law seminar, on Thursday, September 19, 8 a.m. to 10 a.m., at Portland's World Trade Center.  A panel will discuss Gender Equality: Emerging LGBT Issues in the Workplace.  For details and on-line registration, go to the Ater Wynne Resources Page.


Oregon Court of Appeals invokes imputed knowledge doctrine to defeat rescission claim

By Lori Irish Bauman
September 4, 2013

The Court of Appeals last week thwarted an effort to unwind a sale of real property, holding that the disappointed purchaser had imputed knowledge of problems with the property at the time of the sale.

In Atkeson v. T&K Lands, LLC, the plaintiff contended that he was not aware of a number of problematic conditions when he purchased land for a vacation home, including improvements that had been built without the necessary permits, and violation of a riparian setback from a creek. 

Plaintiff claimed he later learned of the problems which restricted his use of the property, and he sued to rescind on the grounds of mutual mistake and misrepresentation.  But the lawyer whom plaintiff had hired to research the property testified during pretrial discovery that he was aware of the problems and had informed plaintiff. 

While plaintiff disputed that he received the information from the lawyer, the trial court nonetheless granted summary judgment for the sellers.  The result turned on the imputed knowledge doctrine:  plaintiff was deemed to know facts learned by his lawyer, regardless of his actual knowledge.  The Court of Appeals affirmed, noting that the relationship between a lawyer and a client is one of agent and principal, and the knowledge that the agent obtains within the scope of the agency is imputed to the principal as a matter of law.