Notes of Decisions
Personal representative of decedent's estate who prosecutes claim under Oregon Tort Claims Act for wrongful death acts only as nominal party and is not single "claimant" subject to $100,000 limitation on damages. Christensen v. Epley, 287 Or 539, 601 P2d 1216 (1979)
Right to assert dollar limitation on tort liability under this section was not waived by governmental defendant who failed to assert it before judgment. Espinosa v. Southern Pacific Transportation, 50 Or App 561, 624 P2d 162 (1981), aff'd 291 Or 853, 635 P2d 638 (1981)
Limitation on amount of liability under this section is not waived by governmental defendant purchasing liability insurance in excess of dollar limitation. Espinosa v. Southern Pacific Transportation, 291 Or 853, 635 P2d 638 (1981); Southern Pacific Transportation v. School District No. 40, 291 Or 867, 635 P2d 645 (1981)
Since if decedent leaves heirs, personal representative of estate has no authority to maintain action for wrongful death against tortfeasor, personal representative on behalf of estate does not become independent claimant for purpose of recovery of damages. Mendez v. State of Oregon, 64 Or App 581, 669 P2d 364 (1983)
$100,000 public-body damage limitation does not violate Article IV, section 24, Oregon Constitution. Hale v. Port of Portland, 308 Or 508, 783 P2d 506 (1989)
This section does not violate Article I, section 10 of the Oregon Constitution because it does not deprive plaintiff of any preexisting remedy against Port of Portland and although it alters plaintiff's remedy against City of Portland, plaintiff is still left with substantial remedy. Hale v. Port of Portland, 308 Or 508, 783 P2d 506 (1989)
Plaintiff's settlement with joint tortfeasor does not extinguish claim against public body or public employees whose liability is limited unless settlement equals or exceeds actual damages suffered by plaintiff. Dee v. Pomeroy, 109 Or App 114, 818 P2d 523 (1991), Sup Ct review denied
Pecuniary loss based on estimated net future earnings of decedent is analogous to claim for impaired future earning capacity under ORS 18.560 (renumbered ORS 31.710 (Noneconomic damages)) and therefore is special damage. Neher v. Chartier, 142 Or App 534, 923 P2d 653 (1996), Sup Ct review denied
Limitation on "total award of special damages" is limitation on special damages awarded to individual claimant, not limitation on aggregate amount awarded to all claimants. Neher v. Chartier, 142 Or App 534, 923 P2d 653 (1996), Sup Ct review denied
Because recovery of damages against government is limited by statute, injured party is not "legally entitled to recover" excess damages through insurance providing uninsured motorist coverage required by ORS 742.504 (Required provisions of uninsured motorist coverage). Surface v. American Spirit Insurance Cos., 154 Or App 696, 962 P2d 717 (1998), aff'd 335 Or 356, 67 P3d 938 (2003)
Prohibition on imposing punitive damages against public body overrides availability of punitive damages under ORS 659.121 in unlawful employment practice actions. Faro v. Highway Division, 326 Or 317, 951 P2d 716 (1998)
Attorney fees are not subject to limitation imposed on liability for general and special damages. Anglin v. Dept. of Corrections, 160 Or App 463, 982 P2d 547 (1999), Sup Ct review denied
Where multiple tortfeasors are involved, maximum limit on liability of public body for general and special damages is applied only to amount determined to be public body's share of total general and special damages awarded. Tenbusch v. Linn County, 172 Or App 172, 18 P3d 419 (2001), Sup Ct review denied
Limitation on liability for "claims for damage to or destruction of property" does not apply to inverse condemnation claim. Vokoun v. City of Lake Oswego, 189 Or App 499, 76 P3d 677 (2003), Sup Ct review denied
Where two claimants hold damaged or destroyed property as tenancy by entireties, each claimant is entitled to one-half of judgment amount, with amount awarded to each claimant being separately subject to statutory limit on liability for property damage or destruction. McCormick v. City of Portland, 191 Or App 383, 82 P3d 1043 (2004), Sup Ct review denied
Atty. Gen. Opinions
Indemnification when there is a judgment in excess of limitations, (1975) Vol 37, p 911; in pari material construction of ORS 30.285 (Public body shall indemnify public officers), with this section, (1977) Vol 38, p 1565
Law Review Citations
69 OLR 153 (1990); 31 WLR 179 (1995)
Notes of Decisions
Dismissal of action for personal injuries was improper where based solely upon allegations of complaint and allegations did not state sufficient facts for court to determine whether particular governmental act was discretionary function or duty. Hulen v. City of Hermiston, 30 Or App 1141, 569 P2d 665 (1977)
Where plaintiff was mistakenly arrested following computer retrieval of identifying and locator data for individual of similar name, demurrer as to three of defendants was properly sustained because plaintiff failed to allege sufficient facts from which duty to plaintiff could be discerned, and summary judgment as to two of defendants was improperly allowed because affidavits did not reveal whether defendant's acts were discretionary or ministerial. Murphy v. City of Portland, 36 Or App 745, 585 P2d 732 (1978)
Complaint allegation that plaintiff submitted application for building permit in proper form was sufficient to allow prosecution of claim against public officer. Dykeman v. State, 39 Or App 629, 593 P2d 1183 (1979)
Even if Children's Services Division's failure to follow required APA rulemaking procedures could constitute tort within meaning of these sections, CSD was immune from tort liability under ORS 30.265 (Scope of liability of public body, officers, employees and agents) (3)(f) where it terminated its benefit program without prior rulemaking procedures. Burke v. Children's Services Division, 288 Or 533, 607 P2d 141 (1980)
Actions brought under 42 U.S.C. 1981 are subject to two-year statute of limitations of Tort Claims Act. Loiseau v. Dept. of Human Resources, 558 F Supp 521 (1983)
Where police officer pursued plaintiff in marked police car with lights and siren activated in area defendant was assigned to patrol, with no known motive other than to fulfill duty as police officer, trial court was correct in concluding that defendant was acting in course and scope of employment, despite plaintiff's claim that defendant's acts were excessive. Brungardt v. Barton, 69 Or App 440, 685 P2d 1021 (1984)
Plaintiff in 42 U.S.C. 1983 action brought under the Oregon Tort Claims Act against municipality for actions of its employes need not show that employes acted according to "custom or usage" as in federal §1983 action. Haase v. City of Eugene, 85 Or App 107, 735 P2d 1258 (1987)
Limitations of Oregon Tort Claims Act do not apply to claims brought in state court alleging violation of federal Civil Rights Act. Rogers v. Saylor, 306 Or 267, 760 P2d 232 (1988)
Mayor was immune from liability in tort claim under this section where former chief of police brought tort action in connection with her removal from office. Harrington v. City of Portland, 708 F Supp 1561 (D. Or. 1988)
Where plaintiffs brought action under 42 U.S.C 1983 and this section after defendant Children's Services Division employees removed plaintiff's child from home following reports of abuse, defendants are entitled to absolute immunity under this section for their discretionary acts as provided by ORS 30.265 (Scope of liability of public body, officers, employees and agents) (3). Tennyson v. Children's Services Division, 308 Or 80, 775 P2d 1365 (1989)
There is no legislative purpose to extend definition of "agent" to control to include ostensible agent when doctrine of apparent authority is intended to achieve different purpose. Giese v. Bay Area Health District, 101 Or App 410, 790 P2d 1198 (1990), Sup Ct review denied
Because there was evidence that resident was not hospital's agent in first place, fact that "loaned servant" doctrine does not eliminate agency relationship between hospital and employee who assists physician in surgery did not give plaintiff grounds for directed verdict. Shepard v. Sisters of Providence, 102 Or App 196, 793 P2d 1384 (1990)
Completed Citations
State Forester v. Umpqua R. Nav. Co., 258 Or 10, 478 P2d 631 (1970), cert. denied, 404 US 826 (1971)
Atty. Gen. Opinions
Liability of members of the State Water Resources Board for damages of party adversely affected by reclassification, (1972) Vol 36, p 250; faculty members scope of employment, (1975) Vol 37, p 911; state liability for negligent operation by drivers of state-owned vehicles in authorized car pool, (1978) Vol 39, p 101; State Accident Insurance Fund Corporation as public body, (1980) Vol 40, p 344; Use of Liability Fund balances to pay cost of claims for which date of loss precedes authorized implementation date of state self-insurance program, (1981) Vol 41, p 329; Department of Veterans Affairs fee appraisers and inspectors as agents of state for purposes of tort liability, (1981) Vol 42, p 103; CPAs and PAs volunteering services to investigate and review complaints against accountancy licensees as employes or agents of public body, (1983) Vol 43, p 145; Cause of action under Oregon Tort Claims Act for declarative or injunctive relief or for violation of federal statute, (1985) Vol. 44, p 416; Oregon Medical Insurance Pool, board, members, employes and agents immune from tort claims, (1989) Vol 46, p 155; director and other state employes are covered by Oregon Tort Claims Act, (1989) Vol 46, p 155; various persons have immunity from prosecution for criminal acts committed in carrying out pool programs, (1989) Vol 46, p 155
Law Review Citations
53 OLR 371 (1974); 23 WLR 493, 507 (1987); 69 OLR 157 (1990); 38 WLR 657 (2002)