2015 ORS 30.297¹
Liability of certain state agencies for damages caused by foster child or youth offender
  • conditions
  • exceptions

(1) Notwithstanding ORS 125.235 (Liability of fiduciary), the Department of Human Services is liable for damages resulting from the intentional torts of a foster child who is residing in:

(a) A foster home that has been certified by the department under the provisions of ORS 418.625 (Definitions for ORS 418.625 to 418.645) to 418.645 (Appeal from decision of department), even though the child is temporarily absent from that home;

(b) An approved home that is receiving payment from the department under the provisions of ORS 418.027 (Agreements for custody, care or treatment) or under the provisions of ORS 420.810 (Placement of youths in foster homes) and 420.815 (Placement agreements with persons or families), even though the child is temporarily absent from that home; or

(c) A developmental disability child foster home that has been certified by the department under the provisions of ORS 443.830 (Definitions for ORS 443.830 and 443.835) and 443.835 (Certificate required), even though the foster child is temporarily absent from that home.

(2) Notwithstanding ORS 125.235 (Liability of fiduciary), the Oregon Youth Authority is liable for damages resulting from the intentional torts of a youth offender who is residing in a youth offender foster home that has been certified by the authority under the provisions of ORS 420.888 (Definitions for ORS 420.888 to 420.892) to 420.892 (Certification standards), even though the youth offender is temporarily absent from that home.

(3) Except as otherwise provided in this section, the liability of the department and the authority under this section is subject to the same requirements and limitations provided in ORS 30.260 (Definitions for ORS 30.260 to 30.300) to 30.300 (ORS 30.260 to 30.300 exclusive), and a claim under this section shall be treated as a claim for damages within the scope of ORS 30.260 (Definitions for ORS 30.260 to 30.300) to 30.300 (ORS 30.260 to 30.300 exclusive) for the purposes of ORS 278.120 (Claims management).

(4) Notwithstanding subsections (1) and (2) of this section:

(a) The department and the authority are not liable for any damages arising out of the operation of a motor vehicle by a foster child or youth offender; and

(b) The department and the authority are only liable for theft by a foster child or youth offender upon a showing by clear and convincing evidence that the foster child or youth offender committed the theft.

(5) For the purposes of this section:

(a) Authority means the Oregon Youth Authority.

(b) Department means the Department of Human Services.

(c) Foster child means:

(A) A minor child under the custody or guardianship of the department by reason of appointment pursuant to ORS chapter 125, 419A, 419B or 419C;

(B) A minor child under the physical custody of the department pursuant to a voluntary agreement with the parent under ORS 418.015 (Custody and care of needy children by department) (1);

(C) A minor child placed in a certified foster home, pending hearing, by any person authorized by the department to make that placement;

(D) A person under 21 years of age who has been placed in an approved home that is receiving payment from the department under the provisions of ORS 418.027 (Agreements for custody, care or treatment) or under the provisions of ORS 420.810 (Placement of youths in foster homes) and 420.815 (Placement agreements with persons or families); or

(E) A child residing in a developmental disability child foster home certified under ORS 443.830 (Definitions for ORS 443.830 and 443.835) and 443.835 (Certificate required).

(d) Youth offender has the meaning given in ORS 419A.004 (Definitions). [1991 c.756 §2; 1993 c.33 §370; 1995 c.664 §76; 1997 c.130 §1; 1999 c.316 §6; 2001 c.900 §10; 2003 c.232 §1; 2005 c.374 §4]

Note: 30.297 (Liability of certain state agencies for damages caused by foster child or youth offender) and 30.298 (Liability of certain state agencies to foster parents for injury or damage caused by foster child or youth offender) were added to and made a part of 30.260 (Definitions for ORS 30.260 to 30.300) to 30.300 (ORS 30.260 to 30.300 exclusive) by legislative action but were not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

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 defendants 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 Childrens Services Divisions 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. Childrens 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 plaintiffs claim that defendants 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 Childrens Services Division employees removed plaintiffs 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. Childrens 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 hospitals 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); 50 WLR 619 (2014)


1 Legislative Counsel Committee, CHAPTER 30—Actions and Suits in Particular Cases, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors030.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 30, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano030.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.