ORS 30.270¹

Amount of liability

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)