Case Briefing Assignment A. Introduction “Case law” is a term describing the published decisions of courts of appeal (e.g. the Oregon Court of Appeals, which is the court that reviews appeals of cases in Oregon county Circuit Courts—see http://courts.oregon.gov/COA/). These published decisions set important case precedent, meaning that other courts usually must use these decisions as a template for how to rule on a controversy involving similar facts and circumstances. Typically, the higher the court, the more important the precedent (e.g., the decisions of Oregon’s case, the Oregon Supreme Court supersede decisions of the Oregon Court of Appeals involving the same facts and circumstances). Case law is important for many reasons. For instance, case law interprets statutes, ordinances, and other law made by Congress, state legislators, city councils, and other lawmakers. Case law also interprets the U.S. Constitution, and the constitutions of the various states. As such, case-law decisions effectively modify the applicable law. Case law is also important for businesses. This is because case law provides important information regarding how a business should operate under certain facts and circumstances, and how businesses should interpret the law adopted by lawmakers. For instance, in the case of Berry v. Richfiled Oil Corp., 189 Or 568, 587-588 (1950), the Oregon Supreme Court held that a person who has not bothered to read or seek clarification of his or her contract cannot later prevail in court on the basis that the contract has been misrepresented. In the case of Lukas v. J.C. Penney Co., 233 Or 345 (1963), the Oregon Supreme Court ruled that a “cause of action” (meaning a basis for legal liability) for false imprisonment may arise even if the period of confinement is for a few minutes and not a much longer period; hence, businesses cannot necessarily rely on the relatively short duration of improper confinement (e.g. a minute or two) to escape liability for false imprisonment. Ideally, there would be at least one case describing how the law applies (i.e. how a court would rule) to each possible business controversy. That way, a business could act both proactively (e.g. how to design its store to minimize negligence claims, how to properly prepare employee contracts to minimize claims for breach of contract, etc.) and reactively (e.g. exactly what to do if someone slips and falls, what to do if the business is sued, etc.) for every possible set of facts and circumstances. Of course, in reality, each event in life is a bit different from others. Hence, it is difficult to find a case “on all fours” (i.e. identical) to any particular set of actual facts and circumstances. However, cases can serve as extremely important guides for what to do--and what not to do--in business and in personal lives. Finding a “good case” (i.e. similar facts and circumstances to the issue or problem at hand) is important to lawyers and bu ...

1. Case Briefing Assignment
A.
Introduction
“Case law” is a term describing the published decisions of
courts of appeal (e.g. the Oregon Court of Appeals, which is the
court that reviews appeals of cases in Oregon county Circuit
Courts—see http://courts.oregon.gov/COA/). These published
decisions set important case precedent, meaning that other
courts usually must use these decisions as a template for how
to rule on a controversy involving similar facts and
circumstances. Typically, the higher the court, the more
important the precedent (e.g., the decisions of Oregon’s case,
the Oregon Supreme Court supersede decisions of the Oregon
Court of Appeals involving the same facts and circumstances).
Case law is important for many reasons. For instance, case law
interprets statutes, ordinances, and other law made by Congress,
state legislators, city councils, and other lawmakers. Case law
also interprets the U.S. Constitution, and the constitutions of
the various states. As such, case-law decisions effectively
modify the applicable law.
Case law is also important for businesses. This is because case
law provides important information regarding how a business
should operate under certain facts and circumstances, and how
businesses should interpret the law adopted by lawmakers. For
instance, in the case of Berry v. Richfiled Oil Corp., 189 Or
568, 587-588 (1950), the Oregon Supreme Court held that a
person who has not bothered to read or seek clarification of his
or her contract cannot later prevail in court on the basis that the
contract has been misrepresented. In the case of Lukas v. J.C.
Penney Co., 233 Or 345 (1963), the Oregon Supreme Court
ruled that a “cause of action” (meaning a basis for legal

2. liability) for false imprisonment may arise even if the period of
confinement is for a few minutes and not a much longer period;
hence, businesses cannot necessarily rely on the relatively short
duration of improper confinement (e.g. a minute or two) to
escape liability for false imprisonment.
Ideally, there would be at least one case describing how the law
applies (i.e. how a court would rule) to each possible business
controversy. That way, a business could act both proactively
(e.g. how to design its store to minimize negligence claims, how
to properly prepare employee contracts to minimize claims for
breach of contract, etc.) and reactively (e.g. exactly what to do
if someone slips and falls, what to do if the business is sued,
etc.) for every possible set of facts and circumstances. Of
course, in reality, each event in life is a bit different from
others. Hence, it is difficult to find a case “on all fours” (i.e.
identical) to any particular set of actual facts and
circumstances. However, cases can serve as extremely
important guides for what to do--and what not to do--in
business and in personal lives. Finding a “good case” (i.e.
similar facts and circumstances to the issue or problem at hand)
is important to lawyers and businesses alike in responding to
lawsuits—and perhaps more importantly, in providing
information on how to avoid them.
Don’t be surprised when your business attorney enthusiastically
says “I have found a great case for you” because attorneys are
trained to find cases for use in good, proactive business
planning and also to predict the outcome of legal controversies.
B.
Assignment
Pick a topic of in interest and express it in a few simple
words—for instance, the words “real estate fraud” or “false
imprisonment” or “battery.” You can also add more specific
words such as “store” or “stress” or “weapon.” Then add the
name of a court with your words—for instance “Oregon Court
of Appeals” Google these terms. Many published cases will

3. appear.
Instead of Google, you may also search the powerful lexis/nexis
legal data base available free to SOU students by using the
following link:
http://glacier.sou.edu/login?url=http://www.lexisnexis.com/univ
erse (see “Look up a Legal Case” then use “or by topic” box for
search terms).
Any published state or federal case will be fine, but please
don’t hesitate to contact me if you would like suggestions.
For specific instructions, please see pages 30-31 and Appendix
A in the text. If you wish, additional briefing instructions are
available on-line under a search of “how to brief a case” or the
like. Length should be approximately four to five pages, double
spaced.
Please submit the brief to me on or before the due date. The
assignment counts for five percent (5%) of course grade.
State v. Kuperus
Court of Appeals of Oregon
2011 Ore. App. Lexis 396 (2011)
Facts:
The defendant, Scott Russell Kuperus, II, and the victim were
engaged in a physical altercation when the defendant bit off a
segment of the victim’s ear. There is a noticeable scar where the
missing part of the ear should be and the victim needs to wear a
prosthetic device.
The defendant was charged with first-degree assault and second-
degree assault. Defendant requested that he be acquitted on both
charges. Defendant disputed that teeth are not a dangerous
weapon which is a required component of first-degree assault.
He also argued that there was not enough evidence to prove
second-degree assault because the victim did not endure a

4. serious physical injury. The trail court denied his request and
found the defendant guilty on both charges. The defendant
appealed the trial court’s ruling renewing his arguments.
The Oregon Court of Appeals overturned the first-degree
conviction and upheld the second-degree assault conviction. The
court sent the case back to the trial court for resentencing.
Issue:
1. Can teeth be considered a dangerous weapon?
2. Were the requirements of a serious physical injury met?
Decision:
1. No. The Oregon Court of Appeals found that defendant’s own
teeth are not a dangerous weapon and that the trial court made a
mistake in rejecting defendant’s request to drop the first-degree
assault charge.
2. Yes. The Oregon Court of Appeals agreed with the state
arguing that there was enough evidence to show that the victim
suffered a serious physical injury.
Reason:
The Oregon Court of Appeals first concentrated on the
defendant’s dispute to his first-degree assault conviction. They
originally looked at the wording and framework of the law.
Under state law, first-degree assault is committed when a
person intentionally uses a dangerous weapon to cause a serious
physical injury. State law defines a dangerous weapon as any
weapon used capable of causing serious physical injury. In
order to prove first-degree assault by way of a dangerous
weapon, the state needs to establish that the defendant’s teeth
are a weapon capable of causing serious physical injury. The
trial court determined that teeth are a dangerous weapon but
failed to state whether teeth are indeed a weapon. Since the trial
court failed to specify whether teeth are a weapon, the court
usually presumes that the trial court intended terms to have
their plain meaning which in this case suggests that a weapon is
something outside the human body and would not include the
defendant’s own teeth. Under a previous decision of the
Supreme Court of Oregon, the court held that a weapon is

5. something with which a person is armed and fortified. Based on
this decision, the Oregon Court of Appeals determined that a
defendant cannot arm himself with his own body, including his
teeth, removing it from being considered a dangerous weapon
for purposes of first-degree assault. The Oregon Court of
Appeals concluded that teeth cannot be considered a dangerous
weapon for the purpose of establishing a basis for first-degree
assault conviction of defendant.
The Oregon Court of Appeals turned to the defendant’s request
for the second-degree assault charges to be dropped because
there was insufficient evidence to demonstrate that the victim
suffered a serious physical injury. According to state law, to be
convicted of second-degree assault requires the defendant to
have intentionally caused serious physical injury to someone
else. Under state law, serious physical injury includes physical
injury which causes serious and prolonged disfigurement. The
lower portion of the victim’s ear is noticeably missing and there
is a visible scar. The victim needs to wear a prosthetic device.
Based on the facts, there was sufficient evidence for the trial
court to find that the victim suffered a serious and protracted
disfigurement and, thus, a serious physical injury. The Oregon
Court of Appeals agreed with the state arguing that the trial
court reasonably found that the victim suffered a serious and
protracted disfigurement presenting sufficient evidence that the
victim suffered a serious physical injury exists.
Miller v. Tri-Met, 250 P.3d 27 (Or. Ct. App. 2011)
Court of Appeals of Oregon
Filed: February 23rd, 2011

6. Precedential Status: Precedential
Citations: 250 P.3d 27, 241 Or. App. 86
Docket Number: 080608671 A142393
Judges: Schuman, Presiding Judge, and Wollheim, Judge, and
Rosenblum, Judge
Nature of suit: Unknown
250 P.3d 27 (2011)
241 Or. App. 86
Stephanie MILLER, Personal Representative for the Estate of
Austin Miller, Deceased, Plaintiff-Respondent,
v.
TRI-COUNTY METROPOLITAN DISTRICT, dba Tri-Met, a
governmental agency, Defendant-Appellant.
Nos. 080608671; A142393.
Court of Appeals of Oregon.
Argued and Submitted July 29, 2010.
Decided February 23, 2011.
Kimberly Sewell, Portland, argued the cause and filed the briefs
for appellant.
Elden Rosenthal, Portland, argued the cause for respondent.
With him on the brief was Rosenthal & Greene, P.C.
Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge,
and ROSENBLUM, Judge.
WOLLHEIM, J.
In this action for wrongful death, the issue is whether the
personal representative brought two claims�one for each
beneficiary�or one claim on behalf of the decedent. A provision
of the Oregon Tort Claims Act (OTCA), former ORS 30.270
(2007), repealed by Oregon Laws 2009, chapter 67, section
20,[1] sets the limit of liability of any public body to any
claimant at $200,000 general and special damages combined.
Thus, if the personal representative brought two claims, the
total limit was $400,000, but, if the personal representative
brought one claim, the cap was $200,000. The trial court
entered a judgment awarding plaintiff $375,000, $187,500 for

7. each beneficiary. We affirm, because, in a wrongful death
action, each beneficiary's claim is independently subject to the
damages limit under ORS 30.270.
The material facts are not in dispute. Austin Miller was struck
and killed by a bus operated by Tri-County Metropolitan
Transportation District of Oregon (Tri-Met). His parents are his
only statutory heirs, and his mother is the personal
representative of his estate, the plaintiff in this case. Plaintiff
filed this action for wrongful death against Tri-Met as the sole
defendant.
The parties reached a settlement agreement that provided, in
part:
*28 "2. * * * For purposes of this settlement, the parties
stipulate that each parent sustained damages of $187,500.00,
$100,000.00 of which are general damages and $87,500.00 of
which are special damages.
"3. The parties disagree on the amount of the judgment that
would properly be entered based upon a jury verdict if plaintiff
would prevail at trial.
"4. In order to avoid the necessity of trial, and in order to fully
and finally settle the plaintiff's claim against Tri-Met, the
parties agree:
"a. Tri-Met will pay the sum of $200,000 to the Estate of Austin
Miller within two weeks of the Estate receiving Probate Court
approval for the settlement.
"b. The Estate will submit a form of judgment to the Multnomah
County Circuit Court seeking entry of judgment in the sum of
$375,000, inclusive of any costs and fees. Tri-Met will submit a
form of judgment to the Court seeking entry of judgment in the
sum of $200,000, inclusive of any costs and fees. It is the intent
of the parties that the Court will determine whether, based upon
the stipulated facts and applicable legal authority, judgment
shall be entered in the sum of $200,000 or $375,000. Any
judgment entered shall not exceed $375,000 and will
acknowledge and give Tri-Met satisfaction for the payment of
the $200,000 sum as set out in paragraph 4a.

8. "c. Either party to this agreement may appeal from the
judgment. The parties intend that they be able to present the
issue of the damages limitation contained in the Oregon Tort
Claims Act for consideration by Oregon's appellate courts. If an
appeal from the judgment is dismissed for a procedural error
related to the structure of this settlement or because of form,
then the parties will attempt to restructure the judgment so as to
enable the parties to pursue the appeal. In the event the parties
are unable to achieve that result, the parties agree to submit the
issue for consideration by way of a declaratory judgment
action."
Accordingly, the parties submitted dueling proposed forms of
judgment to the trial court. Tri-Met contended that the OTCA
limited the recoverable damages in this wrongful death action to
$200,000 in total. Plaintiff replied that the issue has been
resolved in her favor by the Supreme Court in Christensen v.
Epley,287 Or. 539, 601 P.2d 1216 (1979), a case that we
followed in Neher v. Chartier, 142 Or.App. 534, 923 P.2d 653,
rev. den., 324 Or. 323, 927 P.2d 599 (1996). Both cases hold
generally that, in a wrongful death action under the OTCA, the
personal representative acts as a nominal party and brings
claims on behalf of each beneficiary that are independently
subject to the OTCA limitations. Christensen, 287 Or. at 545,
601 P.2d 1216; Neher, 142 Or.App. at 542, 923 P.2d 653. The
trial court agreed with plaintiff and entered a judgment
awarding plaintiff $375,000 in damages, $187,500 for each
parent.
On appeal, the parties renew their arguments. Tri-Met concedes
that, under Christensen and Neher, both parents are individual
claimants under the OTCA and that the individual limits under
ORS 30.270(1)(b) apply to each person entitled to damages
under the wrongful death statute, ORS 30.020. Nonetheless, Tri-
Met presents two related arguments: First, Tri-Met argues that
Christensen and Neher did not address ORS 30.270(2) and leave
room for us to interpret the statute in the first instance. Second,
according to Tri-Met, ORS 30.270(2) demonstrates a legislative

9. intent to treat wrongful death actions involving loss of services
and support as derivative of a claim by a single claimant�the
decedent�and therefore subject to a single $200,000 limitation.
Ultimately, Tri-Met argues, "no matter how many parents,
spouses, or children there are who properly may state claims for
loss of consortium arising from an injury to a single person, a
public body's total limit of liability for all claims is the single
limit of $200,000."
Tri-Met's argument presents an issue of the meaning and
application of the OTCA, ORS 30.270, and the wrongful death
act, ORS 30.020. We construe the statutes in accordance with
the methodology prescribed by PGE v. Bureau of Labor and *29
Industries,317 Or. 606, 610-12, 859 P.2d 1143 (1993), as
amplified in State v. Gaines,346 Or. 160, 171-72, 206 P.3d 1042
(2009), whereby we examine the text of the statute in context
and consider any helpful legislative history offered by the
parties. Prior Supreme Court construction of a statute is
authoritative and controls our construction of the statute. Takata
v. State Farm Mutual Auto. Ins. Co., 217 Or.App. 454, 458, 176
P.3d 415 (2008) (citing Mastriano v. Board of Parole,342 Or.
684, 693, 159 P.3d 1151 (2007)). Accordingly, we disregard
Tri-Met's suggestion that, if its argument is foreclosed by
Christensen, then that case was incorrectly decided; this court is
not in a position to overrule Supreme Court precedent.[2]
Thus, we turn to whether Tri-Met's interpretation of ORS
30.270(2) can be reconciled with the Supreme Court's
interpretation of ORS 30.270 and the wrongful death statute in
Christensen. ORS 30.270 provides, in part:
"(1) Liability of any public body or its officers, employees or
agents acting within the scope of their employment or duties on
claims within the scope of ORS 30.260 to 30.300 shall not
exceed:
"* * * * *
"(b) $100,000 to any claimant as general and special damages
for all other claims arising out of a single accident or
occurrence unless those damages exceed $100,000, in which

10. case the claimant may recover additional special damages, but
in no event shall the total award of special damages exceed
$100,000.
"(c) $500,000 for any number of claims arising out of a single
accident or occurrence.
"(2) No award for damages on any such claim shall include
punitive damages. The limitation imposed by this section on
individual claimants includes damages claimed for loss of
services or loss of support arising out of the same tort."
(Emphasis added.) Tri-Met relies on the italicized portion of
ORS 30.270(2) to support its argument that the statute indicates
a legislative intent to treat wrongful death actions involving
claims for damages for loss of services or support as single
claims derivative of a claim by the decedent and subject to a
single limitation on damages under the OTCA.
We note, initially, that the damages a beneficiary may recover
in a wrongful death action are not limited to loss of services and
support. ORS 30.020(2) provides:
"In an action [for wrongful death,] damages may be awarded in
an amount which:
"(a) Includes reasonable charges necessarily incurred for
doctors' services, hospital services, nursing services, other
medical services, burial services and memorial services
rendered for the decedent;
"(b) Would justly, fairly and reasonably have compensated the
decedent for disability, pain, suffering and loss of income
during the period between injury to the decedent and the
decedent's death;
"(c) Justly, fairly and reasonably compensates for pecuniary
loss to the decedent's estate;
"(d) Justly, fairly and reasonably compensates the decedent's
spouse, children, stepchildren, stepparents and parents for
pecuniary loss and for loss of the society, companionship and
services of the decedent; and
"(e) Separately stated in finding or verdict, the punitive
damages, if any, which the decedent would have been entitled to

11. recover from the wrongdoer if the decedent had lived."
Thus, although a loss of services and support may be among the
losses claimed in a wrongful death action, they are not the
exclusive damages; therefore, we do not consider the
legislature's reference in ORS 30.270(2) to "damages claimed
for loss of services or loss of support" to be an indirect
reference to wrongful death actions.
*30 The more fundamental problem with Tri-Met's
interpretation is that it is inconsistent with what the Supreme
Court has said in Christensen about the interplay of the OTCA
and the Wrongful Death Act. In Christensen, the court held that
the Wrongful Death Act "provides, in effect, for an action to be
brought in the name of the personal representative of the estate
to enforce the individual claims of the [survivors] for the
pecuniary loss to each of them and for the loss to each of them
of the decedent's society, companionship and services." 287 Or.
at 546, 601 P.2d 1216. Thus, the court held, the personal
representative, in prosecuting such claims under the OTCA,
"acts only as a nominal party, and is not a single claimant
within the meaning of ORS 30.270(1)(b) so as to be subject to
the * * * limitation imposed by that section." Id. at 548, 601
P.2d 1216.
In reaching its conclusion, the court observed that, under a prior
version of Oregon's Wrongful Death Act enacted in 1862, the
measure of damages was the pecuniary loss suffered by the
estate "`without any solatium for the grief and anguish of
surviving relatives or pain and suffering of the deceased.'" Id. at
544, 601 P.2d 1216 (quoting Carlson v. Oregon Short Line Ry.
Co., 21 Or. 450, 457-58, 28 P. 497 (1892)). The court explained
that the prior version of the Act was abandoned and recovery
under the current Act expressly provides "for the benefit of the
spouse, children and parents of the decedent, not only for their
pecuniary loss, but also for their loss of decedent's society,
companionship and services, as well as for recovery to the
estate of medical and funeral expenses, among other things." Id.
at 545, 601 P.2d 1216 (emphasis in original). Christensen held,

12. in effect, that each beneficiary is entitled to recover up to the
statutory limit of damages under the OTCA for those damages,
which are a part of a claim for wrongful death, including
damages for loss of companionship and services.
We followed the court's holding in Neher. In that case, the
decedent was killed by the driver of a Tri-Met bus, and the
decedent's father, as the personal representative of the estate,
brought a wrongful death action. The beneficiaries of the estate
were the decedent's parents. One of the issues in the case was
whether, under ORS 30.270(1), special damages, in total, were
limited to $100,000, or whether each beneficiary's recovery
could include $100,000 in special damages. We rejected Tri-
Met's contention that a single limit on special damages applied,
as inconsistent with Christensen. Rather, we said that, when a
personal representative brings a wrongful death claim under the
OTCA, the personal representative sues on behalf of the
decedent's beneficiaries, who individually constitute
"claimants," and that the special damages limitation of ORS
30.270(1)(b) limits the amount that each claimant may recover.
Neher, 142 Or.App. at 542, 923 P.2d 653. We said in Neher that
ORS 30.270(1)(b) "does not address aggregate amounts, i.e., it
does not establish a cap on the total amount of money
recoverable as a result of one individual's wrongful death." Id.
Although neither Christensen nor Neher specifically address
ORS 30.270(2), the cases together establish that, in a wrongful
death action brought under the OTCA, the personal
representative sues on behalf of the decedent's beneficiaries,
that the measure of damages includes, among other things, loss
of society, companionship, and services, as well pecuniary
losses, and that each beneficiary on whose behalf the personal
representative sues is entitled to a separate limitation on
damages. Thus, Tri-Met's argument that ORS 30.270(2) imposes
a single-claimant limit on the recovery of damages in wrongful
death actions involving damages for loss of services and support
is foreclosed by case law.
In any event, if we were interpreting the statute on a clean slate,

13. we would reach the same conclusion. The unambiguous text of
the statute makes clear that the reference in ORS 30.270(2) to
two of the categories of damages that a beneficiary may recover
in a wrongful death action does not reflect a legislative intent to
limit those types of damages to a single claimant. Rather, the
intention of the subsection is to emphasize that those types of
damages are included within each individual claimant limitation
set out in ORS 30.270(1)(b).
*31 Finally, Tri-Met argues that we should follow the
Minnesota Supreme Court's interpretation of the Minnesota tort
claim act in Rowe v. St. Paul Ramsey Medical Center,472
N.W.2d 640 (Minn.1991). In Rowe, the court held "that a
spouse's claim for loss of consortium is included in the same
liability cap that limits recovery by the injured spouse under
[the Minnesota tort claims act]." Id. at 643. That case construes
the relationship between the Minnesota tort claim act and a
Minnesota action for loss of consortium, which distinguishes it
from this wrongful death action under the OTCA. In any event,
we conclude that Christensen and Neher preclude that result in
Oregon. Christensen, 287 Or. at 545, 601 P.2d 1216; Neher, 142
Or.App. at 542, 923 P.2d 653.
The trial court did not err in entering a judgment awarding each
beneficiary $187,500, totaling $375,000.
Affirmed.
NOTES
[1] Former ORS 30.270 (2007), repealed by Or. Laws 2009, ch.
67, § 20, was repealed during the 2009 legislative session in a
revision of the Oregon Tort Claims Act. That revision became
effective on July 1, 2009, Or. Laws 2009, ch. 67, § 20, and is
not applicable to this case. We refer to the 2007 version of the
statute throughout this opinion.
[2] Tri-Met appears to appreciate the thin ice upon which it
stands, as it quotes the appellate briefing in Christensen in
which the parties cited ORS 30.270(2) for some of its
arguments. Thus, it appears that the parties put ORS 30.270(2)
before the Supreme Court in Christensen and the Supreme Court

14. rejected Tri-Met's argument.