BREWER, J.
The issues presented in this case are whether ORS 243.303(2),
Analyzing the duty imposed on local governments by ORS 243.303(2) under that standard, we decline to create an additional common-law right of action for its enforcement because (1) plaintiffs have failed to identify a cognizable common-law claim for relief whose creation is appropriate and necessary to effectuate the legislature's purpose, (2) a declaratory judgment and supplemental relief are adequate to enforce the statutory duty, and (3) a significant change in existing law would result from judicial creation of a tort claim permitting the recovery of noneconomic damages in the circumstances here, and there is no other need to create a common-law tort claim where, as here, a declaratory judgment and supplemental relief would fully redress plaintiffs' compensable injuries, if any. We also conclude that plaintiffs have a claim for a determination of the parties' rights and duties under the statute that is actionable under the Declaratory Judgments Act.
Accordingly, we reverse the decision of the Court of Appeals and remand to that court for a determination of the other issues that that court did not reach, including whether plaintiffs were entitled to summary judgment on the ground that the city violated ORS 243.303(2) as evaluated under ORS Chapter 28.
Plaintiffs are retirees, each of whom retired from employment with the City of Medford and attempted to elect to continue the health insurance coverage that the city had provided to them as employees. The city declined to make that coverage available to plaintiffs because, among other reasons, the city's health insurance plan that had applied to plaintiffs at the time of their retirements did not include coverage for retirees, and the city took the position that the cost of providing such coverage was prohibitive. Plaintiffs brought this action against the city and its manager, asserting, among other claims for relief, a tort-based claim that the city was required by ORS 243.303(2) to make such coverage available to them.
Although plaintiffs alleged that the city intentionally did not provide them with an opportunity to participate in its health insurance program after they retired, plaintiffs did not allege that, in failing to do so, the city had intentionally, recklessly, or negligently violated the statute.
Plaintiffs also alleged noneconomic damages, in their ORS 243.303(2) claim, in the amount of
In addition, plaintiffs re-alleged a paragraph from another claim in their complaint "seek[ing] declaratory relief," and plaintiffs asked for "such additional remedies, both legal and equitable, that the law provides and the Court deems just and proper."
The city moved for partial summary judgment, arguing that ORS 243.303(2) did not require it to provide health insurance coverage to plaintiffs; alternatively, the city asserted that there is no civil remedy for a violation of ORS 243.303.
The circuit court denied the city's motion, explaining that,
The circuit court did not elaborate on the nature of the "private right of action" that it believed was necessary to effectuate the intent of the legislature in enacting ORS 243.303(2) or determine whether the city had breached a tort standard of conduct in failing to provide insurance coverage to retirees. The circuit court rejected the city's argument that, because providing insurance coverage to retirees was prohibitive in light of its cost, it had not violated the statute. The court explained that "[the city] ha[s] not presented the court with undisputed evidence that no entity providing health care insurance was (and is) willing to provide such coverage for both current and retired employees" and that, because the text of ORS 243.303(2) did not provide an exception to the statutory duty based on the cost of coverage, the court could not rely on increased cost as "indicating impossibility."
Based on the same reasoning, the circuit court subsequently granted plaintiffs' motion for partial summary judgment contending that the city violated ORS 243.303(2). The parties then tried to a jury the issue of what damages plaintiffs had suffered as a result of the city's violation of ORS 243.303(2). At the close of the evidence, the circuit court instructed the jury that
The court further instructed the jury that noneconomic damages could be based on
Plaintiffs and the city appealed the ensuing judgment.
Plaintiffs petitioned for review of the Court of Appeals' decision. Pursuant to ORAP 9.20(2), this court limited its grant of review to determining whether Oregon law provides "retired public employees a civil remedy for breach of the duty to make group health insurance coverage available to retirees under ORS 243.303." We also invited the parties to discuss the application of this court's decision in Scovill to that statute.
On review, plaintiffs assert that ORS 243.303(2) impliedly created a private right of action sounding in tort to enforce the city's duty and that, even if it did not, the circuit court nonetheless properly concluded that judicial creation of a common-law right of action serves to enforce the duty.
Statutory liability arises when a statute either expressly or impliedly creates a private right of action for the violation of a statutory duty.
The legislature sometimes has expressly imposed civil liability for the violation of a statutory duty. See, e.g., ORS 607.044 ("A person shall be liable to the owner or lawful possessor of land if the person permits an animal of a class of livestock to run at large upon such land and the land is located in a livestock district in which it is unlawful for such class of livestock to be permitted to run at large."). In other circumstances, this court has considered whether legislative intent to create a private right of action for violation of a statutory duty is implied by the text, context, or legislative history of the statute creating the duty. See, e.g., Chartrand v. Coos Bay Tavern Inc., 298 Or. 689, 696, 696 P.2d 513 (1985) (by enacting ORS 30.950, the legislature "stat[ed] or impl[ied] in reverse language, that a tavern owner will be held liable for the acts of a person who has been served alcoholic liquor while visibly intoxicated."); Nearing, 295 Or. at 710-711, 670 P.2d 137 (where mandatory arrest statute, ORS 133.310(3), did not expressly create a right of action, such a right was implied by the grant of immunity from civil liability to police officers under ORS 133.315 for arrests made in good faith and without malice pursuant to ORS 133.310(3)).
In determining whether the legislature impliedly intended to create a private right of action for violation of a statutory duty, this court has generally focused on two factors: (1) whether the statute refers to civil liability in some way, Chartrand, 298 Or. at 696, 696 P.2d 513; Nearing, 295 Or. at 708, 670 P.2d 137; and (2) whether the statute provides no express remedy, civil or otherwise, for its violation and, therefore, there would be no remedy of any sort unless the court determined that the legislature impliedly created one or the court itself provided one. Chartrand, 298 Or. at 696, 696 P.2d 513; Nearing, 295 Or. at 708-10, 670 P.2d 137.
If a statute that imposes a duty neither expressly nor impliedly creates a private
In Burnette v. Wahl, 284 Or. 705, 588 P.2d 1105 (1978), this court acknowledged the existence of such authority but declined to provide a private right of action on behalf of children who had been abandoned by their parents arising from the parents' violation of a statute prohibiting child abandonment. The court explained:
Id. at 711-12, 588 P.2d 1105 (footnote omitted).
In Burnette, this court looked not only to the statutes that criminalized child abandonment and nonsupport and that the plaintiffs asserted accorded them a private right of action to recover emotional distress damages; it also examined statutes that comprehensively regulated assistance to children and families. See Burnette, 284 Or. at 708-10, 588 P.2d 1105. As the court elaborated:
Id. at 712, 588 P.2d 1105.
This court conducted a similar analysis in Miller v. City of Portland, 288 Or. 271, 604 P.2d 1261 (1980). In that case, the court declined to accord to minors who had injured themselves while intoxicated, after illegally purchasing alcohol from licensed alcohol sellers
Id. at 277-78, 604 P.2d 1261 (footnote omitted). The court referred the reader to Restatement (Second) of Torts § 874A (1979) for "a further and more detailed discussion of the entire subject." Id. at 279 n. 9, 604 P.2d 1261.
In Miller, this court determined the legislature's purpose by looking to two statutes: ORS 471.130(1) and ORS 471.430. The first statute proscribed the selling of liquor to minors by licensees, and the second criminalized the purchase of liquor by minors. The court in Miller ultimately concluded that it would be "inappropriate to use ORS 471.130(1) as a basis for civil liability by licensees to the underage minor," because "[i]t would be inconsistent with the apparent legislative policy to reward the violator with a cause of action based upon his or her conduct which the legislature has chosen to prohibit and penalize." Id. at 279, 604 P.2d 1261. The court also declined to provide a right of "action for physical injuries to minors caused by their illegal purchase of alcoholic liquor," because doing so would also be "contrary to apparent legislative policy." Id.
In Bob Godfrey Pontiac, Inc., this court concluded that conduct allegedly violating a statute setting out ethics obligations for attorneys did not give rise to a private right of action in favor of an opposing litigant. The court found "nothing in the statute or legislative history to indicate that the legislature intended that there should be liability for violation of its provisions." 291 Or. at 329, 630 P.2d 840. Accordingly, the court concluded, "this court must decide, on the basis of its own appraisal of the policy considerations involved, whether to bring into existence a new type of tort liability" for violations of the statute. Id. (internal quotation marks omitted). After reviewing its previous decisions in Burnette and Miller, this court stated that
Bob Godfrey Pontiac, Inc., 291 Or. at 328-29, 630 P.2d 840. The court ultimately "decline[d] to `create' or `recognize' a new private cause of action" for violation of the
Finally, in Cain v. Rijken, 300 Or. 706, 717 P.2d 140 (1986), this court created a new private right of action for the tort of negligence based on the alleged violation of a statute that neither expressly nor impliedly created such a right. Cain was killed when his car collided with a vehicle driven by Rijken. Cain's personal representative sued Providence Medical Center for negligently failing to supervise or control Rijken. Id. at 708, 717 P.2d 140. At the time of the accident, Rijken had been conditionally released by the Psychiatric Security Review Board to a day treatment program of Providence, which provided community mental health services under ORS 161.390(3), which stated that Providence may take a person such as Rijken into custody but did not mandate such action.
No common-law right of action previously had been recognized in the circumstances presented in Cain. The court nevertheless created a private right of action based on a claim for relief that included the usual elements of common-law negligence. It noted:
Id. at 715-16, 717 P.2d 140. The court further stated that "[c]ommon law principles of reasonable care and foreseeability of harm are relevant because this case does not fall within a mandated statutory duty." Id. at 717, 717 P.2d 140.
This court later described Chartrand, Nearing, and Cain as having "recognized `statutory tort' duties in contexts where no common-law duty exists but where a statute or ordinance created a special duty owed by a defendant to a plaintiff, usually arising from the status of the parties or the relationship between them." Nelson v. Lane County, 304 Or. 97, 107-08, 743 P.2d 692 (1987). Although that statement is correct, it does not capture a fundamental difference between Chartrand and Nearing on the one hand, and Cain on the other. In the first two cases, this court concluded that the legislature intended to create statutory liability, whereas, in Cain, the legislature had established a statutory duty, but this court had provided a common-law right of action to enforce that duty. That distinction is reinforced by the principles set out in section 874A of the Restatement (Second) of Torts.
Restatement section 874A sets out principles to guide judicial determinations of whether to create a private right of action to enforce a statutory duty where there is no indication that the legislature intended to create or deny such a right of action. As noted, this court has looked to that provision for guidance in this area of the law. See, e.g., Bob Godfrey Pontiac, Inc., 291 Or. at 329-30, 630 P.2d 840 (analyzing a statutory duty claim under section 874A); Miller, 288 Or. at 279 n. 9, 604 P.2d 1261 (referring the reader to that provision); Burnette, 284 Or. at 725-26, 588 P.2d 1105 (Linde, J. dissenting) (referring to section 874A as indicating that sometimes "a common law court will assimilate the statutory duty into an existing principle of liability, as for instance [a] negligence action * * *, but that is not always so"). Section 874A provides:
In such cases, comment d to section 874A sets out the pertinent inquiry:
Courts undertaking such an inquiry must determine the nature and dimensions of the legislative purpose or purposes embedded in the statutory provision at issue. Restatement § 874A comment i. After identifying the legislative purpose underlying the statute, the court must determine whether to create a common-law right of action for violation of the statutory duty. The court's determination in that regard is guided by a variety of legal and prudential considerations. As noted, section 874A sets out pertinent factors to be considered in comment h, which provides:
The Restatement factors are not exclusive, but they are consistent with and, where applicable, supplement the factors that this court has considered in its previous decisions. For example, although this court did not specifically refer to it, the substance of the third factor in comment h played a significant role in its decisions not to create private rights of action in Burnette, Miller, and Bob Godfrey Pontiac, Inc. In each of those cases, the court stressed that such a right would interfere with the balance of policies embodied in a comprehensive statutory scheme. Bob Godfrey Pontiac, Inc., 291 Or. at 332, 337, 630 P.2d 840; Miller, 288 Or. at 279, 604 P.2d 1261; Burnette, 284 Or. at 712, 588 P.2d 1105.
In Cain, Bob Godfrey Pontiac, Inc., Miller, and Burnette, this court reached the issue of whether it should create a common-law right of action for a statutory violation after having determined that no legislative intent to create a right of action was discernible. However, in Scovill, this court followed a somewhat different analytical path, which has been a subject of contention between the parties in this case and among other observers.
In Scovill, the plaintiff's decedent died after she walked out of an Astoria police station and into a street, where she was struck by a passing truck. The decedent had been brought to the station by a friend because she was visibly intoxicated and disoriented. 324 Or. at 165, 921 P.2d 1312. The decedent's personal representative brought an action against the City of Astoria, alleging that the officers on duty had violated ORS 426.460(1) (1989) by allowing her to leave the station in a visibly intoxicated state. Id. That statute provided:
This court began its analysis by framing its inquiry:
Scovill, 324 Or. at 166, 921 P.2d 1312. The court emphasized that its task was "to discern the legislature's intent" and that, in carrying out that task, the court would look "at the text and context of [the] statutes * * * because they are the best evidence of the legislature's intent." Id. (citing PGE v. Bureau of Labor & Indus., 317 Or. 606, 610, 859 P.2d 1143 (1993)). In interpreting ORS 426.460(1) (1989), the court treated ORS 426.470 (1989) as important context. The latter statute provided, in part:
Because ORS 426.460(1) — by its use of the mandatory term "shall" — required officers to take a visibly intoxicated person to a treatment facility when the other requirements of the statute were met, the court concluded that the statute imposed a statutory duty. Scovill, 324 Or. at 168, 921 P.2d 1312. The court found a parallel between the statutes at issue before it and the mandatory arrest statutes at issue in Nearing because, in the second sentence of ORS 426.460(1), the legislature declined to grant officers any discretion whether to take a visibly intoxicated person to a treatment facility; that absence of discretion established a mandatory duty on the part of the officers. Id. at 169, 921 P.2d 1312; cf. Nearing, 295 Or. at 708-10, 670 P.2d 137.
Scovill, 324 Or. at 168, 921 P.2d 1312 (emphasis in original). Thus, the court concluded that
Id. at 169, 921 P.2d 1312 (emphasis added).
Having reached that conclusion, the court rejected the city's argument that, under the statutory construction methodology set out in PGE, "no statutory tort can arise unless this court can hold that the legislature expressly intended that a tort remedy would arise from breach of a duty created or imposed by statute." Id. (emphasis in original). To the contrary, the court reasoned, "[A]s we believe our discussion above has made clear, the legislature did contemplate that there could be liability in connection with the authority and duty to take the actions referred to in ORS 426.460(1) * * *." Id. at 170, 921 P.2d 1312 (emphasis in original). In short, because (1) the legislature had contemplated civil liability for failure to act pursuant to ORS 426.460(1) (1989); (2) the decedent was a member of the class of persons that the statute was meant to protect; (3) the officers violated their statutory duty; and (4) the decedent lost her life as a consequence, ORS
At that juncture, the court might well have concluded its analysis. Instead, however, the court continued:
Id. at 170, 921 P.2d 1312 (emphasis added).
The court then stated in a footnote:
Id. at 170-71 n. 9, 921 P.2d 1312 (emphasis added).
The court continued:
Scovill, 324 Or. at 170-72, 921 P.2d 1312 (emphases added).
However, nothing in comment c suggests that legislative intent to create a private right of action for enforcement of a statutory duty cannot be inferred in the absence of a provision for an "alternate remedy" in the statute. To the contrary, as discussed, this court has held that the legislature impliedly created a right of action for the violation of a statutory duty where there otherwise would no remedy of any sort for a violation of the duty. Chartrand, 298 Or. at 696, 696 P.2d 513; Nearing, 295 Or. at 708-10, 670 P.2d 137. Moreover, by its terms, comment d applies only where the court "does not reach either conclusion regarding the actual intent of the legislative body, but recognizes instead that that body had no specific intent in fact on the issue." Because the court in Scovill concluded that "the legislature did contemplate that there could be liability in connection with the authority and duty to take the actions referred to in ORS 426.460(1)," 324 Or. at 169-70, 921 P.2d 1312 (emphasis in original), it was inappropriate for the court to resort to the additional inquiry that comment d contemplates, and unnecessary to the result that the court reached. That said, as discussed above, this court recognized its authority to create a common-law right of action to enforce a statutory duty in several decisions preceding Scovill, and our conclusion that this court's erroneous reliance on such authority in Scovill was unnecessary to its ultimate holding, does not itself call into question the continuing validity of those earlier decisions.
Focusing on the court's statement in Scovill that "recognition of a statutory tort is governed by the weight that a court finds reasonable to give to the protective purpose spelled out in the legislation," 324 Or. at 171, 921 P.2d 1312, the city argues that "[i]t should not be the court's function to determine whether a statute provides a cause of action for damages if it is `reasonable,' rather the court should apply the law as it is written consistent with the legislative intent." In that respect, the city argues, Scovill and this court's other decisions holding that a court may in certain circumstances provide a private right of action to enforce a statutory duty where the legislature did not intend either to create or deny such a right, are inconsistent with Article IV, section 1, of the Oregon Constitution,
So understood, such a right of action is conceptually analogous to a negligence per se claim to the extent that both are judicially created based on common-law principles but depend on the existence of statutory duties. See Miller, 288 Or. at 276-77, 604 P.2d 1261 ("If courts believe in given circumstances there should be a common law cause of action, and there also are criminal or regulatory statutes which delineate the defendant's conduct under such circumstances, courts may adopt the conduct required by the statutes as that which would be expected of a reasonably prudent person providing courts believe the statutorily required conduct to be appropriate for establishing civil liability."). Bluntly, if the city's view were correct, it is difficult to conceive how application of the doctrine of negligence per se likewise could avoid unlawfully impinging on the legislature's authority. However, we are aware of no authority that so holds.
Consistently with this court's previous decisions in Cain, Bob Godfrey Pontiac, Inc., Miller, and Burnette, and with the principles set out in section 874A of the Restatement, we reaffirm that, in proper circumstances, even when there is no indication that the legislature intended to create such a right, judicial creation of a private right of action for violation of a statutory duty does not unlawfully interfere with the legislature's constitutional authority, nor does it violate this court's statutory construction responsibilities.
To summarize: When a party asserts a right of action to enforce a duty created by a statute, the first question is whether the statute expressly or impliedly indicates that the legislature intended to create or to deny such a right of action. That is a matter of statutory construction. If that inquiry discloses no discernible legislative intent to create or deny a right of action, the court must then decide whether creating a common-law right of action would be consistent with the statute, appropriate for promoting its policy, and needed to ensure its effectiveness. In making that determination, the court should consider, among the factors identified in Restatement section 874A along with any other pertinent factors, the nature of the legislative provision at issue, the adequacy of existing claims for relief and associated remedies, the extent to which a common-law right of action will aid, supplement, or interfere with existing claims and remedies and other means of enforcement, the significance of the purpose that the legislative body is seeking to effectuate, the extent of the change in existing common-law principles that provision of a right of action
Before we apply those principles in this case, it is useful to consider this court's prior construction of the nature of the duty created by ORS 243.303(2). Again, that statute provides:
(Emphasis added.)
We have previously held that ORS 243.303(2)
Doyle II, 347 Or. at 566, 227 P.3d 683. In reaching that conclusion, we rejected the city's argument that the statute "merely provides authorization to make health insurance coverage available to retirees, rather than mandating that coverage." Id. at 570, 227 P.3d 683. Rather, we concluded that the term "shall" "impose[d] an obligation on local governments." Id. at 573, 227 P.3d 683. Accordingly, we rejected the city's argument that it had "complete discretion to choose whether to make health insurance available to retirees." Id.
We further concluded that, by using the phrase "insofar as and to the extent possible," the legislature had intended to qualify the duty created by its use of the word "shall." Id. In particular, by using that phrase, the legislature provided "some flexibility" to local governments in meeting the obligation imposed by ORS 243.303(2). Id. at 574, 227 P.3d 683. We rejected the plaintiff's argument that a local government could be relieved of its obligation only if providing health insurance to retirees was factually impossible, because the legislature's use of the terms "insofar as" and "to the extent possible" "emphasize[d] the concept of degree or amount, indicating that the legislature did not view the health insurance coverage obligation as one that necessarily was either `possible' or `not possible,'" but rather as a flexible obligation that "might be possible only to some degree or to some extent." Id. Our examination of the legislative history of the 1985 amendment to ORS 243.303(2) confirmed that the phrase "insofar as and to the extent possible" "was intended to create flexibility within the statute as a whole." Id. at 579, 227 P.3d 683.
In sum, this court concluded that the statute
Doyle II, 347 Or. at 579, 227 P.3d 683.
The city renews here its argument from Doyle II that ORS 243.303(2) does not impose an obligation on local governments, because "the discretionary language `to the extent possible' wipes out any mandatory duty supported by the use of the word `shall.'" The city relies on excerpts from the legislative history of the 1981 and 1985 amendments to ORS 243.303(2) for that proposition — excerpts that the city also proffered to this court in Doyle II. This court in Doyle II rejected the city's argument that the legislature did not intend the term "shall" to have its ordinary, mandatory, meaning in ORS 243.303(2). The city advances no new support for that argument to persuade us that our decision in Doyle II was "seriously in error." Farmers Ins. Co. v. Mowry, 350 Or. 686, 695, 261 P.3d 1 (2011) (citing Severy/Wilson v. Board of Parole, 349 Or. 461, 474, 245 P.3d 119 (2010)). Accordingly, we adhere to our prior construction of the statute — that is, that it imposed "an obligation on local governments to make the health insurance coverage that they provide to active employees available to retired employees" insofar as and to the extent that it is possible to do so. Doyle II, 347 Or. at 579, 227 P.3d 683.
We turn to the question of whether ORS 243.303(2) expressly or impliedly creates a private right of action for a local government's asserted failure to comply with the statute's command. It is undisputed that the text does not expressly do so. Accordingly, we look to the context and legislative history to determine whether the legislature nevertheless impliedly intended to create such a right of action in favor of plaintiffs. Scovill, 324 Or. at 166, 921 P.2d 1312.
As discussed, in previous cases in which this court has discerned an implied legislative intent to create statutory liability, references to civil liability in related statutes were important to the court's conclusion. See, e.g., Scovill, 324 Or. at 168-69, 921 P.2d 1312 (provision of immunity from civil liability in ORS 426.470 for "acts pursuant" to ORS 426.460(1) supported conclusion that legislature intended to impose civil liability for statutory violations); Nearing, 295 Or. at 708-10, 670 P.2d 137. The parties have identified no such references in statutes related to ORS 243.303, and we have found none. Nor does the legislative history of ORS 243.303(2) include any references — direct or indirect — to civil liability for a statutory violation.
Plaintiffs remonstrate that, despite the absence of any helpful evidence of legislative intent in the surrounding statutes or legislative history, "the legislature's enactment of a mandate implicitly [shows that] the legislature intended to create a civil remedy to enforce the mandate" and, further, that this court's decision in Doyle II "infers" that a private right of action exists to enforce ORS 243.303(2). We disagree with both arguments.
Plaintiff's first argument reduces to the proposition that the imposition of a statutory duty necessarily creates an inference that the legislature also intended to confer a private right of action to enforce that obligation. To state the proposition is to refute it; many statutory obligations are enacted without any legislative intent to confer a private right of action on a person who is harmed by a violation of the statute. As discussed above, the determination of implied legislative intent is made through the statutory construction analysis prescribed in PGE and Gaines, including consideration of statutory context and legislative history. The mere existence
We also reject plaintiffs' understanding of the scope of our decision in Doyle II. The precise issue before us here was not before the court in Doyle II. That case arose from a question certified to this court by the Ninth Circuit Court of Appeals. The question there was: "What amount of discretion does [ORS] 243.303 confer on local governments to determine whether or not to provide health insurance coverage to their employees after retirement?" Doyle II, 347 Or. at 566, 227 P.3d 683. In answering that question, we were not called on to determine whether the legislature impliedly created a right of action to enforce the obligation that ORS 243.303(2) imposes on local governments, and plaintiffs' argument that the court nevertheless decided that issue in Doyle II is unpersuasive.
In short, we conclude that neither the text, context, nor legislative history of ORS 243.303 indicate that the legislature expressly or impliedly intended to create a private right of action to remedy a violation of the duty that the statute imposes on local governments. That is not the end of the inquiry, however. The question remains whether creation of the common-law right of action that plaintiffs advance would be consistent with the legislative purpose, appropriate for promoting its policy, and needed to ensure its effectiveness. Bob Godfrey Pontiac, Inc., 291 Or. at 330, 630 P.2d 840; Restatement § 874A comment h.
As we explained in Doyle II, the purpose underlying ORS 243.303(2) is to require local governments, insofar as and to the extent possible, to provide the same health insurance coverage to retirees that is made available to their officers and current employees. Doyle II, 347 Or. at 579, 227 P.3d 683. The circuit court in this case concluded that "[a] private right of action is necessary to effectuate the legislature's intent." However, as discussed, the court did not elaborate on the nature of the right of action that it provided; in particular, although plaintiffs asserted a tort theory, the court did not describe the right of action that it provided in conventional tort terms. In particular, the court did not determine that, by violating the statute, the city had breached a standard of conduct sounding in tort. Nevertheless, the circuit court instructed the jury that it could award both economic damages (consisting of amounts that plaintiffs had paid out-of-pocket for substitute health insurance coverage), as well as noneconomic damages for any "emotional distress that the plaintiff[s] ha[ve] sustained from the time [they were] injured until the present and that the plaintiff[s] probably will sustain in the future." The court further instructed the jury that, in considering noneconomic damages, it could take into account "[a]ny inconvenience and interference with the plaintiff[s'] normal and usual activities" past and future and "any other subjective non-monetary losses."
Having been so instructed, the jury awarded economic damages and noneconomic damages to both plaintiffs. The ultimate question before us is whether creation of a common-law right of action based on a claim for relief sounding in tort that includes the remedies of economic and noneconomic damages would be consistent with the purpose underlying ORS 243.303(2), appropriate for promoting its policy, and needed to ensure its effectiveness. To make that determination, we consider the factors set out in Restatement § 874A comment h.
The first factor set out in comment h asks a question:
That question has important implications in this case.
On the one hand, the city's duty under ORS 243.303(2) is specific: The city shall provide health insurance to retirees on the same basis as provided to current employees. That is, the legislature's use of the word "shall" suggests that a strict liability standard of conduct might apply to a violation of the statute. On the other hand, however, the "insofar as and to the extent possible" clause modifies the statutory duty in a way that gives a local government a measure of flexibility and makes the applicable standard of conduct less certain.
As discussed, plaintiffs have not asserted that the city violated any tort standard of conduct. The issue, however, is whether that failure breached the city's statutory duty to plaintiffs.
In that statutory setting, plaintiffs' theory of liability bears close scrutiny. Although plaintiffs ask us to create a right of action that sounds in tort, they have not identified any existing tort claim that comports with their pleaded theory. For this court to create one, it would be necessary to pick among various elements that plaintiffs have not taken the trouble to identify. For example, if the proper theory is one of strict liability, plaintiffs have not explained how the statutory qualification of the city's duty comports with such a standard.
Plaintiffs remonstrate that, unless a tort claim is provided, there will be no effective means to enforce the city's statutory duty. We disagree. Although no right of action is provided in the statute itself, the question remains
Restatement § 874A comment h. As we now explain, we conclude that an existing claim for relief and associated remedies are sufficient to effectuate the legislature's purpose in enacting ORS 243.303(2).
ORS 28.010 provides:
ORS 28.020 further provides:
Finally, ORS 28.080 provides:
To establish a justiciable controversy under those statutes based on asserted statutory rights, a plaintiff must show that his or her "rights, status, or other legal relations" are "affected by" the relevant statute. Morgan v. Sisters School Dist. #6, 353 Or. 189, 195-96, 301 P.3d 419 (2013). That requirement implicates three related but separate considerations. Id. The first consideration is that there must be "some injury or other impact upon a legally recognized interest beyond an abstract interest in the correct application or the validity of a law." League of Oregon Cities v. State of Oregon, 334 Or. 645, 658, 56 P.3d 892 (2002). Plaintiffs here satisfy that requirement: They are members of the class of persons to whom the duty imposed by ORS 243.303(2) is owed, and they claim injuries based on the city's asserted violation of that duty. The second consideration is that the injury must be real or probable, not hypothetical or speculative. TVKO v. Howland, 335 Or. 527, 534, 73 P.3d 905 (2003). Plaintiffs also satisfy that requirement: There is a present and actual dispute between the parties about the existence and scope of plaintiffs' rights and the city's obligations under the statute. The third and final consideration is that the court's decision must have a practical effect on the rights that the plaintiff is seeking to vindicate. Kellas v. Dept. of Corrections, 341 Or. 471, 484-85, 145 P.3d 139 (2006). Again, that requirement is satisfied. A judgment to the effect that plaintiffs are entitled to health insurance benefits under the statute would afford plaintiffs a judicial declaration of rights that, at least prospectively, would vindicate their rights under ORS 243.303(2).
Because plaintiffs satisfy the justiciability requirements for a declaratory judgment adjudicating their rights under ORS 243.303(2), they need not plead or prove what would amount to a claim for relief apart from establishing their rights under that statute. See, e.g., Lewis v. Miller, 197 Or. 354, 358-59, 251 P.2d 876 (1952) (claim for declaratory relief is legally sufficient if it alleges facts showing the existence of a justiciable controversy); Central Or. Irr. Dist. v. Deschutes Co., 168 Or. 493, 507, 124 P.2d 518 (1942) (same); Walter H. Anderson, Declaratory Judgments 588-89 (1951) (to state a claim for declaratory judgment with respect to statutory rights, "the plaintiff's pleading need not state what would amount to a cause of action apart from the statute").
In addition, plaintiffs have a right to seek supplemental relief under ORS 28.080 for
Finally, although it is true that the decision whether to grant declaratory relief sometimes has been described as "discretionary," courts are justified in refusing such relief only where "more effective relief can and should be obtained by another procedure and * * * for that reason a declaration will not serve a useful purpose." Edwin Borchard, Declaratory Judgments 302-03 (2d ed 1941) (footnotes omitted; emphasis in original) (cited with approval in Brooks v. Dierker, 275 Or. 619, 624, 552 P.2d 533 (1976)). That is not the circumstance here, where the city's position is that plaintiffs have no right of action at all. In short, a claim for declaratory judgment would provide plaintiffs with both a declaration of their rights under ORS 243.303(2) and, if they prevail, the right to recover cognizable damages for past violations of the city's statutory duty.
Plaintiffs plausibly assert that judicial provision of an additional private right of action in this case would not interfere with any other vehicle for enforcement of the city's duty under ORS 243.303(2). In particular, enforcement of the statute is not delegated to an administrative body authorized to investigate, correct, or adjudicate claims of noncompliance. Cf. Restatement § 874A comment h ("If application of the legislation has been placed in the hands of an administrative agency, for example, this may have been done with the intent that the agency exercise a discretionary enforcement or treat the matter from an administrative standpoint."). Although the city suggests that enforcement of its statutory duty is better left to collective bargaining or federal law, those arguments are unconvincing. ORS 243.303(2) imposes a duty under Oregon law that its courts are, when their authority is properly invoked, equipped to vindicate. The ultimate question is what claims for relief and accompanying remedies are appropriate and needed to enforce that duty. Thus, this factor marginally favors plaintiffs, but does not furnish an answer to that ultimate question.
To a certain extent, as applied here, this factor begs a larger question: Whether the statutory purpose is so important, as a matter of public policy, that the legislature would have provided an additional right of action if it had considered the matter. Needless to say, the statutory duty to provide health insurance benefits to retirees is important. However, as noted, that purpose is not unfettered. It is limited to an extent by the flexibility that the legislature provided to local governments based on the "insofar as and to the extent possible" phrase in the statute. On balance, it is difficult to determine — based on the "significance" factor —
This factor poses the questions of "[h]ow drastic is the change from established law?" and "[h]ow near is the factual situation before the court to an existing tort?" Restatement § 874A comment h. In this case, the answer to that question is clear and its implications are significant. Plaintiffs ask us to create a tort right of action that provides them with emotional distress damages. However, in the absence of the infliction of physical injury, this court has permitted tort recovery for psychic injury in three situations. Hammond v. Central Lane Communications Center, 312 Or. 17, 22-23, 816 P.2d 593 (1991). The first is where the defendant intended to inflict severe emotional distress. See Brewer v. Erwin, 287 Or. 435, 454-58, 600 P.2d 398 (1979) (evidence sufficient to go to jury on theory that defendant engaged in abusive conduct intended to frighten or distress plaintiff); Turman v. Central Billing Bureau, 279 Or. 443, 445-49, 568 P.2d 1382 (1977) (evidence of extreme and outrageous conduct sufficient). The second is where the defendant intended to commit an injury-inflicting act with knowledge that it would cause severe distress, and the defendant's relationship to the plaintiff involves some responsibility aside from the tort itself. Hall v. The May Dept. Stores Co., 292 Or. 131, 135-37, 637 P.2d 126 (1981) (evidence sufficient to support verdict for employee against employer under theory of intentional infliction of emotional distress). Finally, the third arises where the defendant's negligent conduct infringed on some legally protected interest of the plaintiff apart from causing the claimed psychic injury. See Nearing, 295 Or. at 706, 670 P.2d 137 (1983) (recognizing that Oregon law allows recovery of damages for psychic harm when defendant's conduct infringes some legal right of plaintiff independent of an ordinary tort claim for negligence); McEvoy v. Helikson, 277 Or. 781, 562 P.2d 540 (1977) (negligent delivery of passport, in violation of a court order, resulting in removal of plaintiff's child).
Here, as noted, plaintiffs did not allege that the city negligently violated the statute or, for that matter, that it acted with any other culpable mental state. And, importantly, plaintiffs have not alleged any physical injury that accompanied their asserted psychic injuries. Accordingly, plaintiffs have failed to satisfy any exception to the general rule that tort damages for psychic injury in the absence of physical injury are not recoverable. In that circumstance, judicial creation of a right of action based on a tort claim permitting the recovery of such damages would constitute a significant departure from current law in this state. We discern no basis for concluding that the creation of such a remedy would be appropriate or necessary to effectuate the legislative purpose underlying ORS 243.303(2); accordingly, we decline to do so.
Of course, noneconomic damages are a type of remedy, not a claim for relief. Therefore, this court could create a tort claim that would permit the recovery of economic damages alone if it were appropriate and necessary to do so. However, as explained, declaratory relief is adequate to redress plaintiffs' economic losses, and it also provides them with an important declaration of rights that a tort recovery would not. Accordingly, we conclude that creating a tort claim that would include economic damages alone — the only cognizable damage remedy that plaintiffs seek — also would not be necessary to effectuate the purpose of the legislature in enacting ORS 243.303(2).
Although the city suggests that creation of a common-law right of action to enforce ORS 243.303(2) would place a significant burden on the courts, it is not obvious why that would be so, and we decline to give weight to that factor here.
On balance, we conclude that the pertinent factors weigh against this court's creation of a common-law right of action sounding in tort
We turn briefly to the concurrence, which has done a commendable job of advocating for the creation of a private tort right of action in these circumstances. As we see things, our most important differences of opinion involve (1) the import of the holdings in Nearing and Chartrand; and (2) the extent to which the court should be willing to fashion a new common-law right of action for violation of a statutory duty where there is no indication that the legislature itself intended to create a right of action.
First, it appears that the concurrence concludes that Nearing and Chartrand involved the creation by this court of a common-law right of action to enforce a statutory duty. In particular reference to those cases, the concurrence writes:
Doyle v. City of Medford, 356 Or. 336, 337 P.3d 797, 2014 WL 5088228 (2014) (Walters, J. concurring).
We do not share that understanding of Nearing and Chartrand. Rather than involving judicially-created rights of action, those cases involved implied statutory liability claims; that is, the court concluded that the legislature itself had intended to provide a remedy for a statutory violation.
The court explained it this way in Bellikka:
306 Or. at 650, 762 P.2d 997. Similarly, in Gattman v. Favro, 306 Or. 11, 15, 757 P.2d 402 (1988) the court stated:
See also Solberg v. Johnson, 306 Or. 484, 488, 760 P.2d 867 (1988) (citing Gattman and
In Cain, a case where this court did create a common-law cause of action, the court distinguished Nearing:
300 Or. at 717-18, 717 P.2d 140 (emphasis in original).
Which brings us to our caution about the circumstances under which the court should create a new common-law right of action for the violation of a statutory duty where there is no indication that the legislature intended to create a right of action. In such circumstances,
Restatement § 874A, comment d. There is good reason for such caution. This case illustrates why that is so. To begin with, plaintiffs have not identified any particular common-law tort on which they rely. The concurrence asserts that, "[i]f plaintiffs could identify such a tort, they would not need to ask this court for assistance." Doyle, 356 Or. at 390, 337 P.3d 828 (Walters, J. concurring). However, plaintiffs were required to plead and prove the elements of a cognizable common-law tort claim, so that a court responsible for ascertaining the legal sufficiency of their theory of recovery can make that determination. See ORCP 18 A (pleading that asserts a claim for relief shall contain "[a] plain and concise statement of the ultimate facts constituting a claim for relief without unnecessary repetition").
To the extent that the concurrence asserts that plaintiffs were not required to identify a common-law tort because the alleged violation
Instead, a court's creation of a common-law right of action to effectuate the purpose of a statute ordinarily will consist of adapting or assimilating an existing tort to the contours of the statutory duty. In that vein, the Restatement contemplates that a judicially-created tort right of action will have substantive elements that are drawn from conventional tort principles:
Restatement § 874A, comment j.
Consistently with that premise, to date, this court has not created a common-law tort right of action that merely tracked the terms of a statute. Instead, this court in Cain adapted an existing common-law right of action — negligence — to effectuate the statutory duty that the court identified. The court first concluded that Providence had a duty to the plaintiff's decedent that arose from the statutes governing community mental health, rather than from a general common-law duty of due care. Cain, 300 Or. at 717, 717 P.2d 140. The court then turned to "common law principles of reasonable care and foreseeability of harm," because the statute at issue was a permissive one. The court gave substance to that duty of reasonable care by referring to two statutes:
Id. at 718, 717 P.2d 140 (alterations in original). Having concluded that the statutes both imposed a duty and informed the standard of care, the court explained that the question then became "whether Providence reasonably should have foreseen that those acts posed a risk of the kind of harm to a person such as Cain, i.e., to someone using the streets, that occurred here." Id. The court ultimately concluded that it could not determine, as a matter of law, that the harm Cain suffered was the reasonably foreseeable result of Providence's failure to take Rijken into custody. Id. at 720, 717 P.2d 140.
To summarize: We conclude that (1) the legislature neither expressly nor impliedly intended to create (or not to create) a private right of action for the violation of ORS 243.303(2); (2) the circuit court therefore correctly considered whether, nevertheless, it should provide a private right of action, based on the considerations described in this court's decisions in Cain, Bob Godfrey Pontiac, Inc., Miller, and Burnette, and Restatement § 874A, to effectuate the legislative purpose underlying ORS 243.303(2); and (3) for the reasons explained above, judicial creation of the tort-based right of action that plaintiffs assert in this case is not appropriate for promoting the policy of the statute or needed to ensure its effectiveness. However, we also conclude that plaintiffs have a claim for a determination of the parties' rights and duties under the statute that is actionable under the Declaratory Judgments Act.
Accordingly, we reverse the decision of the Court of Appeals and remand to that court for a determination of the other issues that that court did not reach, including whether plaintiffs are entitled to summary judgment on the ground that the city violated ORS 243.303 as evaluated under ORS Chapter 28.
The decision of the Court of Appeals is reversed. The case is remanded to that court for further proceedings.
WALTERS, J., concurring.
ORS 243.303(2) requires defendant to make available to its retirees, such as plaintiffs, the same health insurance coverage that it makes available to its current employees. I agree with the court that plaintiffs have a right to bring a claim for damages against defendant for its failure to fulfill that statutory duty. Doyle v. City of Medford, 356 Or. 336, 337 P.3d 797 (2014). I disagree, however, with the court's conclusion that plaintiffs' claim should be analyzed and adjudicated as a claim under the Declaratory Judgments Act. In my view, this court instead should recognize, in accordance with its prior case law and Restatement (Second) of Torts § 874A comment h (1979), that plaintiffs have a tort claim for damages and analyze and adjudicate plaintiffs' claim as such.
In analyzing and adjudicating a tort claim for damages, a court may be called on to decide the elements of the claim, the applicable defenses, and the cognizable damages. Courts have considered those questions for decades, if not eons, and have used myriad tort principles to decide them. In contrast, although the Declaratory Judgments Act provides remedies for statutory violations and permits a court that grants declaratory relief to grant supplemental relief, including monetary damages, a claim under the Declaratory Judgments Act is not a tort claim governed by tort principles. Thus, when proceeding under the Declaratory Judgments Act, a court that must decide the elements of a plaintiff's claim, the applicable defenses, and the cognizable damages does not have the guidance that tort principles provide. In this case, I do not see a good reason to conclude that plaintiffs' claim seeking monetary damages for a violation of ORS 243.303(2) must be analyzed and adjudicated under the Declaratory Judgments Act rather than as a tort claim.
One of the principal reasons that the court abjures a tort claim in this case is that it is unwilling to decide what "mental state" the tort would require. 356 Or. at 385, 337 P.3d at 825. The court ponders whether a tort
Moreover, the questions that the court raises about the elements of a claim for a violation of ORS 243.303(2), including the requisite "mental state," are readily answered by this court's tort law jurisprudence. In cases in which the court has considered the elements of torts claims for violating statutorily imposed duties, the court has looked for instruction to the statute imposing the duty.
For example, in Nearing v. Weaver, 295 Or. 702, 670 P.2d 137 (1983), the plaintiffs alleged that the husband violated a restraining order, that the wife reported that violation to the defendant, who was a police officer, and that the defendant refused to arrest the husband in breach of a statutory requirement. Id. at 704-06, 670 P.2d 137. The court acknowledged that the plaintiffs had not alleged a violation of "an ordinary common law duty of due care to avoid predictable harm to another." Id. at 707, 670 P.2d 137. Rather, the plaintiffs had alleged the violation of "a specific duty imposed by statute for the benefit of individuals previously identified by a judicial order." Id. The court held that the plaintiffs' complaint was sufficient to plead "an infringement by [the] defendants of a legal right arising independently of the ordinary tort elements of a negligence action." Id. The court went on to explain that, although the plaintiffs had described their claim to the trial court as a claim for the negligent performance of duty, they had not used that label in their complaint, nor were they required to do so: The duty, the court explained, "arises from the statute coupled with the court order." Id. at 708, 670 P.2d 137 The plaintiffs' reference to negligence was "immaterial" to the defendants' liability, "because the result would not be different if defendants had acted, or failed to act, willfully or intentionally or with some other state of mind." Id. In an actionable claim for breach of a statutory duty, the plaintiff need prove only the statutory duty and its violation; the plaintiff need not prove that the defendant failed to take reasonable care or that the harm that occurred was foreseeable. Id. at 708-09, 670 P.2d 137.
The court adhered to that reasoning in Chartrand v. Coos Bay Tavern, 298 Or. 689, 696 P.2d 513 (1985), when it recognized that the plaintiff could proceed on both a common-law negligence theory and on a theory that the defendant had violated a statute prohibiting service of alcoholic beverages to a visibly intoxicated patron. The court explained:
Id. at 696, 696 P.2d 513; see also Davis v. Campbell, 327 Or. 584, 592, 965 P.2d 1017 (1998) (holding that the common-law standard for negligence "says nothing about whether the legislature intended that legal standard to apply to a statutory claim under the RLTA") (citation omitted); Gattman v. Favro, 306 Or. 11, 15, 757 P.2d 402 (1988) ("[I]f a statutory tort is created, foreseeability
Similarly, in this case, if this court were to recognize that plaintiffs have a tort claim for violation of ORS 243.303(2), then plaintiffs' claim should be viewed not as a claim for negligence, nor as a claim that the city acted "willfully or intentionally or with some other state of mind." Instead, plaintiffs' claim is a claim that the city violated the statute and that plaintiffs suffered damages as a result. Because plaintiffs pleaded those necessary facts, their pleading is sufficient.
The court takes a different view and discounts Nearing and Chartrand, because, in those cases, the court did not create a tort claim. Instead, the court implied a legislative intent to create tort claims from the terms of the applicable statutes.
Scovill is illustrative. In Scovill, the court stated two different rationales for its conclusion that the plaintiff had a tort remedy for violation of ORS 426.460(1) (1989): that the legislature intended that remedy and that the court would recognize that remedy. Scovill, 324 Or. at 169-73, 921 P.2d 1312. Under either rationale, however, the elements of the plaintiff's claim were the same: that defendant violated the statute by allowing the decedent to leave the police station and that the decedent was injured as a result. Id. at 166-67, 921 P.2d 1312. It is the statutory duty that determines the elements of the tort claim, not whether the legislature intended or the court created the remedy.
In determining whether to recognize a tort claim for damages in this case, the court should have considered whether such a claim would be consistent with ORS 243.303(2), appropriate for promoting its policy, and needed to ensure its effectiveness. Restatement at § 874A comment h. The court should not have become distracted by a need to label the claim or determine its elements, including its requisite "mental state." The latter issues are, at this stage, easily resolved by focusing on the statute at issue and the duty it imposes.
When correctly applied, the six nonexclusive Restatement factors designed to assist courts in considering whether to recognize a tort remedy for violation of ORS 243.303(2) weigh in favor of judicial recognition.
The first Restatement factor is the nature of the statutory duty:
Restatement at § 874A comment h(1). This factor asks whether the statute at issue sufficiently notifies the court and potential defendants of the risk of liability.
In this case, the court recognizes that "the city's duty under ORS 243.303(2) is specific: The city shall provide health insurance to retirees on the same basis as provided to current employees." 356 Or. at 391, 337 P.3d at 829 (emphasis in original). The court then notes that the statute qualifies that specific and mandatory duty with the phrase "insofar as and to the extent possible" and that that qualification makes the "standard of conduct less certain." Id. at 365, 337 P.3d at 814. But whether a statutory standard of conduct is "less certain" than it theoretically could be does not address whether the statutory duty is sufficiently certain to satisfy the first Restatement factor. The court does not engage in that analysis. Instead, the court questions whether plaintiffs' claim comports with "any existing tort claim." Id. at 370, 337 P.3d at 817. Because plaintiffs do not label the tort claim that they seek to bring except as a "violation of ORS 243.303," the court expresses
The court's analysis is off-base in two different directions. First, the court incorrectly assumes that it can recognize only common-law tort claims that comport with existing torts. Second, the court does not address the question actually posed by the first Restatement factor — whether the statutory duty at issue is sufficiently specific to be enforceable in a private right of action.
As to the first bar that the court raises, it should not be at all surprising that plaintiffs "have not identified any existing tort that comports with their pleaded theory." Id. at 379, 337 P.3d at 817. If plaintiffs could identify such a tort, they would not need to ask this court for assistance. In each instance in which a plaintiff asks this court to recognize or create a private right of action for damages based on the breach of a statutory duty, it is the statute that the plaintiff seeks to enforce that establishes the nature of that duty and the elements of the plaintiff's claim. Thus, this court has held, "[O]ne who violates a statute enacted for protection of others may be civilly liable in damages for injuring the protected interest even when there is no corresponding common law basis of recovery." Cain v. Rijken, 300 Or. 706, 715-16, 717 P.2d 140 (1986).
In this case, plaintiffs, like the plaintiffs in Nearing and Chartrand, pleaded that defendant violated an Oregon statute and that plaintiffs suffered damages as a result. The fact that plaintiffs did not reference or incorporate additional elements of existing torts does not mean that the statute at issue is insufficiently clear to permit a tort remedy. The correct question for analysis is whether the duty imposed by ORS 243.303(2) is sufficiently specific that a tort claim is an appropriate means of enforcement.
The court's second error is in its consideration of that question. The statutory duty at issue is the duty to provide health insurance to retirees on the same basis as provided to current employees. ORS 243.303(2). That duty is subject to an affirmative defense — "that it was not possible, under the statutory standard, to make coverage available to retirees." Doyle v. City of Medford, 347 Or. 564, 579, 227 P.3d 683 (2010). The court does not take the position that that defense makes the statutory duty so general that it does not give rise to an action for damages. In fact, the court acknowledges that that duty is actionable under the Declaratory Judgments Act, and correctly so.
In other cases, this court has considered statutory duties that are more general than the duty imposed by ORS 243.303(2) and statutory duties that are subject to affirmative defenses and has concluded that those duties permit tort remedies. For instance, in Cain, the court considered a statutory duty to "act reasonably in treating and controlling conditionally released patients," 300 Or. at 721, 717 P.2d 140, and the statutory duty at issue in Nearing is subject to affirmative defenses, 295 Or. at 709, 670 P.2d 137. In both cases, the court held that the legislatively created duties gave rise to tort claims.
In Nearing, a police officer had a statutory obligation to arrest a person if the officer had probable cause to believe that the person had violated a restraining order. 295 Or. at 710, 670 P.2d 137. Thus, whether the officer had an obligation to act depended on the officer's determination of "probable cause." Id. Nevertheless, the court held that relevant statutes "identify with precision when, to whom, and under what circumstances" the police must arrest a person. Id. at 712, 670 P.2d 137.
Just as the availability of an affirmative defense did not preclude a tort claim for damages in Nearing, the availability of an affirmative defense should not preclude a similar claim here. It was the legislature that imposed the statutory duty in both cases. And if the legislature deemed the duty at issue in Nearing sufficiently certain to give rise to tort liability, I do not see why this court should hesitate to do likewise when it considers the clarity of the duty imposed by ORS 243.303(2).
I also wonder how that statutory duty can be sufficiently certain to give rise to a remedy for monetary damages under the Declaratory Judgments Act, but not sufficiently certain to permit the same tort remedy. Perhaps the court gleans from the Declaratory Judgments Act a legislative intent to permit an award of monetary damages for violation of ORS 243.303(2) regardless of that statute's specificity or lack of clarity. However, if the court's decision rests on its recognition of legislative intent, then the court should not hesitate to give effect to that intent by recognizing a damages remedy in tort.
By requiring local governments to make available to retirees the same health insurance benefits that they make available to current employees, ORS 243.303(2) specifically advises the court and potential defendants what conduct is required. The first Restatement factor weighs in favor of recognizing a tort remedy for violation of that statutory duty.
The second factor identified in Restatement § 874A is:
Restatement at § 874A comment h(2).
The court concludes that, "[b]ecause declaratory relief would be effective to redress the injuries that plaintiffs assert (including the right to damages for past statutory violations), the adequacy of such relief disfavors the provision of an additional common law claim for relief sounding in tort." 356 Or. at 369, 337 P.3d at 816. That does not answer the question that the Restatement poses. The Restatement asks whether declaratory judgment or injunctive relief will prove better than a damages remedy, indicating that the drafters of the Restatement considered an action for a declaratory judgment to be a claim seeking only a declaration of the rights or duties of the parties and not a claim for monetary relief. If the Restatement's reference to "declaratory judgment" were intended to include a judgment for monetary damages, then the question would not make sense. It would ask, in effect, whether a damages remedy would "prove better" than a damages remedy.
In this case, if the second Restatement factor is understood as asking whether a declaration of rights or duties would better effectuate the purpose of ORS 243.303(2) than a damages remedy, the answer to the question is an obvious no. Declaratory or injunctive relief would not be sufficient to effectuate the policy behind that statute — to protect local government retirees from the cost of independently obtaining health insurance. The pecuniary nature of the interest protected by the statute suggests that a damages remedy is appropriate. The court appears to agree, but concludes that the second Restatement factor weighs against plaintiffs, based on its view that plaintiffs can recover their costs by means of a claim under the Declaratory Judgments Act. That is not, however, the analysis that the Restatement contemplates, and it is not a convincing reason to refuse to recognize the existence of a common-law tort claim.
That is, of course, unless the court intends to use tort principles to decide issues raised under the Declaratory Judgments Act. That that may, in fact, be the court's intent is apparent from the court's analysis of the recoverable damages in this case. The Declaratory Judgments Act permits a court to award supplemental relief "whenever necessary or proper." ORS 28.080. The court notes, correctly, that such supplemental relief may include "cognizable damages," 356 Or. at 373, 337 P.3d at 819, and that those "cognizable damages" include "economic damages for the cost of obtaining substitute health insurance," id. at 373, 337 P.3d at 819. Although the court does not state the basis for that conclusion in that part of its opinion, the court later addresses the damages that plaintiffs could recover if the court were to recognize their claims as a tort claim. Id. at 388, 337 P.3d at 827. There, the court explains that permitting plaintiffs to recover damages for their psychic injuries would require an extension of current tort law. Id. at 385, 337 P.3d at 825. If the court means to imply that the damages that plaintiffs may recover under the Declaratory Judgments Act are defined by reference to tort law and similarly intends to look to tort law for the answers to other questions necessary to adjudicate plaintiffs' claims, I fail to see why a remedy under the Declaratory Judgments Act proves better than a tort remedy. Refusing to call plaintiffs' claim a tort but expecting courts to incorporate tort principles introduces unnecessary confusion.
I agree with the court's conclusion that judicial recognition of a tort claim for damages would not interfere with any other vehicle for enforcement of the city's duty under ORS 243.303(2). 356 Or. at 377, 337 P.3d at 821. I also agree that that third Restatement factor favors plaintiffs. Id. at 395, 337 P.3d at 830.
I agree with the court's conclusion that a local government's statutory duty to provide health care benefits to retirees on the same basis that it provides those benefits to current employees is important. Id. at 389, 337 P.3d at 827. When it amended ORS 243.303(2), the legislature deliberately made that duty mandatory rather than permissive. Although the legislature also permitted local governments to demonstrate impossibility of compliance as an affirmative defense, that defense does not make the duty it imposed any less important. The fourth Restatement factor favors plaintiffs.
The fifth Restatement factor poses the following two questions:
Restatement at § 874A comment h(5). When assessing that factor, the court changes the questions and undertakes an analysis of whether allowing plaintiffs to recover noneconomic damages would require a change in existing law. 356 Or. at 377, 337 P.3d at 821. The fifth Restatement factor focuses on the nature of the claim that the court is asked to recognize, not on the extent of the damages that the plaintiff may be entitled to recover. The court recognizes as much when it states that, "[o]f course, noneconomic damages are a type of remedy, not a claim for relief. Therefore, this court could create a tort
Thus, when properly understood, the fifth Restatement factor also weighs in favor of plaintiffs. As explained at the outset, this court has recognized tort claims for the breach of specific statutory duties and, as the court concludes, permits a claim for violation of such duties under the Declaratory Judgments Act. If this court were to recognize a tort claim for breach of the duty established by ORS 243.303(2), the change in the law would not be drastic. There could be an issue, if appropriately and timely raised, of the type of damages available for such a claim. However, the fact that plaintiffs prayed for damages that may have been subject to a motion to strike is not a basis for deciding that plaintiffs have no tort remedy for a violation of ORS 243.303(2).
I agree with the court that the judicial recognition of a tort action would not place a burden on the courts that should weigh against plaintiffs in this case. 356 Or. at 385, 337 P.3d at 825.
When correctly analyzed, all of the Restatement factors weigh in favor of judicial recognition of a tort remedy for damages: Such a tort claim for damages is consistent with the statute, appropriate for promoting its policy, and needed to ensure its effectiveness. Although I agree with the court that plaintiffs are entitled to seek damages for a violation of ORS 243.303(2), I would embrace tort principles to reach that conclusion and to decide the other issues that such a claim may present.
BALDWIN, J., joins in this concurring opinion.
(Emphasis added.)
(Emphasis added.)
Forell, 77 Or Rev at 508. Likewise, in Nearing,
Forell, 77 Or L Rev at 511-12.
When the legislature imposes a specific duty for the benefit of a specific class of persons that includes the plaintiffs, and the applicable factors indicate that a tort claim is appropriate, necessary, and consistent with the statute, we conclude that we should be no more loath to create a remedy for a violation of the statute than we are when we imply a legislative intent to create a remedy. In both instances, the legislature has failed to expressly create a remedy. In both instances, the court appropriately is attempting to determine the intent of the legislature and to effectuate the legislature's policy choices; the court is not creating its own policy from whole cloth.
