Article I, Section 10 Bars OTCA Workers’ Compensation Immunity from Eliminating Third‑Party Negligence Claims Against State Employees (Private Workers)
1. Introduction
Crandall is a personal-injury case arising from a wildfire operation in which a privately employed bulldozer operator alleged that Oregon Department of Forestry supervisors negligently directed and coordinated nighttime work in dangerously low visibility, resulting in the bulldozer leaving a narrow road and tumbling into a canyon. The plaintiff received workers’ compensation benefits through his private employer, but also sued two individual state employees (Fuller and Womack) and sought to hold the State vicariously liable.
The central issue was constitutional: whether the Oregon Tort Claims Act (OTCA) immunity in ORS 30.265(6)(a)—which
makes “every public body and its officers, employees and agents” immune from “[a]ny claim for injury to or death of any
person covered by any workers’ compensation law”—can constitutionally eliminate a common-law negligence remedy for a privately
employed worker injured on the job by negligent state employees, in light of Article I, section 10’s guarantee that “every man
shall have remedy by due course of law for injury done him in his person, property, or reputation.”
2. Summary of the Opinion
The Supreme Court held that ORS 30.265(6)(a) exceeds the legislature’s authority under Article I, section 10 when it
entirely eliminates the common-law negligence remedy against individual state employees for privately employed workers injured
on the job. The Court reasoned that workers’ compensation benefits (medical care and partial wage replacement) do not supply a
constitutionally adequate substitute for the eliminated third-party negligence action—particularly because Oregon’s workers’
compensation scheme ordinarily preserves third-party claims (ORS 656.154) and because workers’ compensation provides no
noneconomic damages.
The Court reversed the dismissal and remanded for further proceedings, effectively permitting the plaintiff to pursue claims against the individual state employees notwithstanding the OTCA immunity provision.
3. Analysis
3.1 Precedents Cited
The majority’s reasoning is best read as an application—and a tightening—of the post-Horton remedy-clause framework to an OTCA provision that does not merely cap recovery but abolishes a common-law claim for a defined class of plaintiffs.
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Horton v. OHSU, 359 Or 168, 376 P3d 998 (2016)
Horton supplies the governing framework: Article I, section 10 protects a substantive right, uses common-law remedies as a “baseline,” and permits legislative modification only when justified by reasons “measured against the extent” of the departure. The Crandall majority treats Horton as highly fact-dependent: it upheld an OTCA damages cap because of sovereign-immunity underpinnings, indemnification needs, a quid pro quo (a solvent defendant), and legislative calibration of a cap intended to provide complete recovery in many cases. Crandall uses Horton as a contrast case:ORS 30.265(6)(a)offers no comparable accommodation when it wipes out the third-party claim. -
Busch v. McInnis Waste Systems, Inc., 366 Or 628, 468 P3d 419 (2020)
Busch is the majority’s main lever. It reinforces that the analysis is not a simple “substantial remedy” inquiry and that noneconomic damages are part of the common-law remedy. Crandall extends Busch’s emphasis on the absence of quid pro quo and the lack of legislative effort to set a substitute remedy “capable of restoring the right” to the setting of outright immunity. -
Smothers v. Gresham Transfer, Inc., 332 Or 83, 23 P3d 333 (2001) (overruled in part by Horton)
The opinion references Smothers largely to situate the modern doctrine: Horton rejected Smothers’s “1857 freeze” on common-law baselines. Crandall underscores that post-Smothers Court of Appeals reasoning (including workers’ compensation immunity cases) must be treated cautiously. -
Mattson v. Astoria, 39 Or 577, 65 P 1066 (1901)
Mattson exemplifies early remedy-clause decisions: the legislature cannot immunize both a municipality and its officials so as to eliminate all remedies when a duty remains. Crandall invokes this line to characterize complete remedy-elimination as constitutionally suspect, even if the legislature could have altered duties or liability structures differently. -
Clarke v. OHSU, 343 Or 581, 175 P3d 418 (2007) and Hale v. Port of Portland, 308 Or 508, 783 P2d 506 (1989)
These decisions are used to separate sovereign immunity (where Article I, section 10 does not create a remedy that never existed against the sovereign) from individual-liability claims. The majority accepts that the State may retain immunity, but insists the constitutional problem is the extension of immunity to individual employees where the common law would have afforded a negligence remedy. -
Neher v. Chartier, 319 Or 417, 879 P2d 156 (1994) and Storm v. McClung, 334 Or 210, 47 P3d 476 (2002)
Neher held the OTCA workers’ compensation immunity violated Article I, section 10 as applied to wrongful death beneficiaries left with no workers’ compensation benefits. Crandall treats Neher’s observation about limited workers’ compensation benefits as dictum and declines to transform it into a categorical “workers’ comp is always substantial” rule. -
Gunn v. Lane County, 173 Or App 97, 20 P3d 247 (2001)
The Court of Appeals relied on Gunn to uphold the immunity; the Supreme Court critiques Gunn as predating Horton/Busch and as misreading Neher in a way that “swims against the tide of Horton.” -
Bonner v. American Golf Corp. of California, 372 Or 814, 558 P3d 812 (2024) and Jensen v. Whitlow, 334 Or 412, 51 P3d 599 (2002)
These cases frame methodological points: remedy-clause categories are not mechanical (Bonner), and “facial vs as-applied” labels often track whether a record on damages is necessary (Jensen). Crandall characterizes the plaintiff’s challenge as one that can be resolved categorically becauseORS 30.265(6)(a)mandates dismissal based solely on coverage status. -
Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 734 P2d 1326 (1987), McBride v. Magnuson, 282 Or 433, 578 P2d 1259 (1978), and workplace/third-party cases including Woodbury v. CH2M Hill, Inc., 335 Or 154, 61 P3d 918 (2003) and Sacher v. Bohemia, Inc., 302 Or 477, 731 P2d 434 (1987)
These decisions establish the common-law baseline: a general duty of reasonable care (Fazzolari), third-party tort claims for workplace injuries (Woodbury, Sacher), and the limits of discretionary immunity for officials (McBride). -
Vasquez v. Double Press Mfg., Inc., 364 Or 609, 437 P3d 1107 (2019)
Cited for the key substantive point that Oregon workers’ compensation provides no noneconomic damages—central to the majority’s conclusion that workers’ compensation is not an adequate substitute for the eliminated common-law remedy. -
State v. Davis, 350 Or 440, 256 P3d 1075 (2011) and Priest v. Pearce, 314 Or 411, 840 P2d 65 (1992)
These cases supply general constitutional-interpretation methodology for original provisions: text, history, and case law. -
Greist v. Phillips, 322 Or 281, 906 P2d 789 (1995)
Referenced via Busch to reject a simplistic “always substantial” approach to remedy adequacy. -
Turner, Adm'r, v. McCready et al., 190 Or 28, 222 P2d 1010 (1950)
Cited in a footnote to clarify “gross negligence” includes negligence plus more; the majority treats the case as functionally an ordinary negligence/remedy question.
3.2 Legal Reasoning
(a) The doctrinal test applied. The Court squarely applies the Horton/Busch inquiry for statutes that leave the common-law duty intact but modify the remedy: assess “the extent to which the legislature has departed from the common-law model measured against its reasons for doing so.”
(b) Defining the relevant “departure.” The opinion is careful to separate:
- Claims against the State: barred at common law by sovereign immunity; retaining that immunity does not offend Article I, section 10.
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Claims against individual employees: available at common law;
ORS 30.265(6)(a)eliminates them categorically when the injured person is covered by any workers’ compensation law.
Importantly, the Court does not treat workers’ compensation as merely a smaller-dollar alternative to tort. It treats it as an
incomplete replacement because (i) it does not include noneconomic damages and (ii) Oregon workers’ compensation generally preserves
third-party claims (ORS 656.154), meaning the “ordinary” statutory bargain for workers is “benefits + third-party tort rights,” not
“benefits only.”
(c) Rejecting a categorical “workers’ comp is substantial, end of story” defense. Echoing Busch, the Court refuses to collapse the analysis into a one-step inquiry about whether the remaining remedy is “substantial.” Even assuming workers’ compensation benefits are relevant, the Court insists the constitutional question remains whether the additional elimination of a third-party negligence remedy against state employees is justified by sufficiently weighty reasons and adequate accommodation.
(d) Why the State’s proffered reasons were insufficient here. The Court accepts that the State’s interests (sovereign immunity and
indemnification concerns) are legitimate and were central in Horton. But it finds the immunity in ORS 30.265(6)(a) lacks the
counterbalancing features that carried the day in Horton:
- No meaningful quid pro quo to the injured worker: unlike the OTCA damages cap upheld in Horton, this immunity does not give the affected plaintiffs a solvent defendant up to a legislatively calibrated amount.
- No legislative tailoring to preserve “complete recovery in many cases”: the Court finds no indication the legislature attempted to calibrate the substitute remedy for this class, and in any event workers’ compensation structurally cannot replace noneconomic damages.
- Cost shifting to uninvolved parties: the Court frames the scheme as forcing workers, private employers, and insurers to bear losses caused by negligent state employees—without any commensurate remedial substitute.
(e) The holding’s scope. The Court frames its holding as an Article I, section 10 limit on applying ORS 30.265(6)(a)
to “deny entirely” a negligence remedy to “persons who are injured on the job by negligent state employees—at least when those persons are privately employed.”
That formulation signals (i) the Court is focused on third-party injury settings (private worker vs state employee), and (ii) it leaves open other
applications (including injuries to state workers or other configurations) for future cases.
(f) The dissent’s competing frame. The dissent (Garrett, J., joined by Duncan, J.) treats workers’ compensation as a constitutionally adequate substitution and emphasizes certainty and guaranteed recovery (no-fault benefits) as the quid pro quo for limiting tort rights, arguing the statutory scheme assures “some form of remedy” for every injured person and that comparative disadvantage (state-employee tortfeasors vs others) is not the remedy clause’s concern. The majority rejects that approach as insufficient under Horton/Busch because it does not justify the additional elimination of third-party claims that workers’ compensation law otherwise preserves.
3.3 Impact
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Revival of third-party negligence suits against state employees in workplace settings. Privately employed workers injured by alleged negligence of
state employees while covered by workers’ compensation may pursue common-law negligence claims against the individual employees despite
ORS 30.265(6)(a). - Pressure on OTCA structure and indemnification practice. If employees become proper defendants, public employers may face increased indemnification exposure (even if sovereign immunity limits direct state liability), and litigation strategy will shift toward employee-focused pleading and defenses.
- Legislative response likely. The Court’s critique centers on the absence of an adequate substitute remedy. The legislature could respond by: (i) creating a calibrated state-funded remedy for this class, (ii) expanding OTCA waiver (with limits) for these injuries, or (iii) restructuring immunity in a way that preserves some actionable remedy.
- Remedy-clause doctrine strengthened against “all-or-nothing” immunities. The opinion signals that complete elimination of a common-law remedy, especially without a plaintiff-centered quid pro quo and without evidence of legislative calibration, is constitutionally vulnerable—even when the State invokes interests that supported narrower liability limits in Horton.
- Doctrinal clarification for lower courts. The Court disapproves reliance on pre-Horton reasoning (e.g., Gunn v. Lane County) that treats workers’ compensation as automatically dispositive of remedy-clause challenges to OTCA immunities.
4. Complex Concepts Simplified
- Article I, section 10 (“remedy clause”). A constitutional guarantee that the legislature cannot, without adequate justification and accommodation, take away the ability to obtain a legal remedy for injuries to person, property, or reputation.
- Sovereign immunity. The State historically could not be sued for torts unless it consented; retaining that immunity generally does not violate the remedy clause because the common law provided no claim against the sovereign.
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OTCA (Oregon Tort Claims Act). A statutory system that partially waives sovereign immunity and manages public-employee liability (including substitution
rules and damages caps), but also contains immunity provisions such as
ORS 30.265(6)(a). -
Workers’ compensation exclusivity vs third-party claims. Workers’ compensation typically replaces tort claims against the employer with no-fault benefits,
but it often preserves tort claims against third parties who contributed to the injury. Oregon codifies that preservation in
ORS 656.154. - Noneconomic damages. Compensation for pain, suffering, loss of enjoyment of life, and similar harms. Oregon workers’ compensation does not provide them, while common-law negligence does.
- Quid pro quo. A tradeoff: the legislature may limit a remedy if it confers a counterbalancing benefit on the affected class (in Horton, access to a solvent defendant up to a significant cap). Crandall holds that the OTCA immunity here lacks a comparable counterbalance.
- “As-applied” vs “facial” (in this context). The Court treats the challenge as resolvable categorically because the statute mandates dismissal based on workers’ compensation coverage alone, without needing a damages record.
5. Conclusion
Crandall v. State of Oregon establishes a significant remedy-clause limitation on statutory immunities: the OTCA cannot, consistent with Article I, section 10, be applied to entirely eliminate a privately employed worker’s common-law negligence remedy against individual state employees when the injury is covered by workers’ compensation. The decision deepens Horton and Busch by making clear that sovereign-immunity and indemnification interests that justify calibrated damages limits do not automatically justify categorical remedy elimination—especially where the “substitute” remedy omits core components of the common-law remedy and where Oregon law otherwise preserves third-party claims for workplace injuries.
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