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State High Court to Weigh Woman’s Damages Award

(CN) - The 9th Circuit asked Oregon's Supreme Court to decide if a woman who was injured when a police officer hit her with his cruiser deserves more than $500,000 in damages, even though a jury found her to be equally at fault for walking across a highway.

Jean Howell sued the city of Beaverton and Officer Christopher Boyle after Boyle struck her with his vehicle as she crossed a highway in 2007.

Howell initially sought $4.8 million in economic damages and $1 million in other damages, but a jury found that both Howell and Boyle were each 50 percent responsible for the accident.

Howell received an award of $507,000 after the district court reduced the jury's award under Oregon's comparative negligence law. Later, Boyle and the city asked the district court to cap the damages at $200,000 under the Oregon Tort Claims Act. The district court, however, ruled that such a cap would be unconstitutional under the state's remedy clause, considering the disparity between the nearly $6 million she had requested and the $200,000 cap the defendants proposed.

On appeal, Boyle and the city asked the federal appeals panel in Portland to reverse the district court ruling, arguing that Howell was not protected by the remedy clause because she was equally responsible for the accident. The defendants also argued that, even if she were protected by the remedy clause, the $200,000 cap on damages was a "constitutionally adequate substitute" for the $500,000 jury award, according to the ruling.

Howell argued that she could still recover damages under the doctrine of last clear chance since Boyle had the last opportunity to avoid the accident and was "grossly negligent."

Finding that the "defendants' arguments raise important questions of Oregon constitutional law that are unresolved by previous decisions of the Supreme Court or intermediate appellate courts of Oregon," the three-judge panel certified two questions to the Oregon Supreme Court on Friday.

The judges asked whether a jury's finding of comparative negligence invalidates protection of Howell's negligence action under the Oregon remedy clause and whether a $200,000 award is "an unconstitutional emasculated remedy." To each question, they requested consideration of how the decision is affected by the common law defenses to contributory negligence of last clear chance, the emergency doctrine and gross negligence.

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