Vaughn v. First Transit, Inc.

• Decision Date: 16 April 2009
• Docket Number: CA A133676.,CC 0603-03099.,SC S055981.
• Citation: 346 Or. 128,206 P.3d 181
• Parties: Cheryl VAUGHN, Petitioner on Review, v. FIRST TRANSIT, INC., a Delaware corporation; First Transit Transportation, LLC, a Delaware corporation; and Clara Zavoral, Respondents on Review, and Port of Portland, Intervenor.
• Court: Oregon Supreme Court

206 P.3d 181

346 Or. 128

Cheryl VAUGHN, Petitioner on Review, v. FIRST TRANSIT, INC., a Delaware corporation; First Transit Transportation, LLC, a Delaware corporation; and Clara Zavoral, Respondents on Review, and Port of Portland, Intervenor.

CC 0603-03099.

CA A133676.

SC S055981.

Supreme Court of Oregon, En Banc.

Argued and submitted January 13, 2009.

Decided April 16, 2009.

On review from the Court of Appeals.^*

Helen C. Tompkins, Law Office of Helen Tompkins, P.C., Lake Oswego, argued the cause and filed the brief for petitioner on review.

Thomas M. Christ, Cosgrave Vergeer Kester LLP, Portland, argued the cause and filed the briefs for respondents on review.

William F. Gary, Harrang Long Gary Rudnick, P.C., Portland, argued the cause and filed the brief for intervenor Port of Portland. With him on the brief were Sharon A. Rudnick and Susan D. Marmaduke.

Kathryn H. Clarke, Portland, filed a brief for amicus curiae Oregon Trial Lawyers Association.

C. Randall Tosh, Salem, filed a brief for amici curiae League of Oregon Cities, Association of Oregon Counties, Special Districts Association of Oregon, Multnomah County, Marion County, Deschutes County, Clackamas County, Metro, City of Portland, City of Eugene, City of Salem, City of Boardman, City County Insurance Services, Housing Authority of Portland, Oregon School Boards Association, and City of Hood River.

Karla H. Ferrall, Assistant Attorney General, filed a brief for amicus curiae State of Oregon. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

BALMER, J.

This tort case requires us to determine the meaning of the word "agent" for purposes of the Oregon Tort Claims Act (OTCA). The OTCA permits tort claims against public bodies, with certain limitations, and provides that the sole cause of action for any tort committed by officers, employees, and agents of a public body who are acting within the scope of their employment or duties is one against the public body.¹ Plaintiff was injured while riding on an airport shuttle bus. She filed this action against the shuttle bus driver and the driver's employer, a transportation company that provides shuttle bus service for the Port of Portland (the Port) under a contract. Defendants claimed that, as "agents" of the Port, a public body, plaintiff did not have a cause of action against them, but only against the Port. The trial court agreed that plaintiff did not have a cause of action against defendants and granted their motion for summary judgment.² Plaintiff appealed, and the Court of Appeals affirmed without opinion. Vaughn v. First Transit, Inc., 218 Or.App. 375, 180 P.3d 185 (2008). We allowed review and now reverse.

When reviewing a grant of summary judgment, we view the facts and all reasonable inferences that we may draw from those facts in the light most favorable to the nonmoving party — here, plaintiff. See Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or. 329, 332, 83 P.3d 322 (2004) (stating standard). Defendant First Transit, Inc., contracted with the Port, a public body that owns and operates Portland International Airport, to provide shuttle services between the airport terminal and three airport parking lots. Under that contract, the Port supplied office space, utilities, buses, radios, and fuel to First Transit and assumed responsibility for bus repair and licensing. First Transit provided the labor, along with any equipment and materials not provided by the Port. As a general matter, decisions regarding hiring and training new employees were left to First Transit. When hiring new employees, First Transit agreed to adhere to all state and federal laws, "ensure that all drivers are properly qualified and licensed," "research the driving record of each driver [and] ensure that appropriate safe driving history standards are met," implement a drug testing program including random drug tests, and subject each applicant to a criminal history check. First Transit also agreed to "establish a written employee training program," make a "good faith effort" to modify that program if the Port requested a modification, ensure appropriate training — including driver training, customer service training, and airport security training — and keep employee training records, making those records available to the Port upon the Port's request. First Transit also agreed to provide the Port with all "reasonable reports requested by the Port," including "a monthly report of hires and terminations during the previous month." The contract provided certain "appearance and behavior" standards for all employees, and the Port retained the right to require First Transit to "temporarily or permanently bar" any employee from performing the duties enumerated in the contract.

In the event of an accident, First Transit agreed to "immediately notify the Port Police," to "take photographs to document the circumstances and effects of any accident," and to provide those photographs to the Port. Additionally, First Transit agreed to maintain automobile liability insurance "covering liability for bodily injury and property damage arising from the use, loading, and unloading of the Port's buses," along with commercial general liability insurance "covering liability for personal injury, bodily injury, death, and damage to property (including loss of use thereof) arising from, or in any way related to," the shuttle system. The limits of those plans were to be not less than $3,000,000 per incident. Finally, First Transit agreed to indemnify the Port against any claims arising out of the negligence of First Transit or its employees.

In 2004, plaintiff was injured while riding on a shuttle bus driven by defendant Zavoral, an employee of First Transit. Plaintiff sued defendants, alleging that Zavoral negligently had caused plaintiff's injuries when Zavoral "unnecessarily, suddenly and unexpectedly slammed on the vehicle's brakes to avoid a small rodent in the roadway," which caused plaintiff to be "thrown against a metal luggage rack, striking her shoulders and face."³

Defendants moved for summary judgment, arguing that they were "agents" of the Port at the time of the accident and therefore, under the OTCA, any tort action must be brought against the Port only. ORS 30.265(1) provides that the "sole cause of action" of a person injured by the tort of an officer, employee, or agent of a public body acting within the scope of his or her employment or duties is "an action against the public body only."⁴ Thus, under the OTCA, public officers employees, and agents are not subject to actions for torts committed while acting within the scope of their employment or duties, and the injured person must bring any claim based on their actions against the public body only. Defendants argued that, based on the contract described above, they were "agents" of a public body under the meaning of the OTCA and that Zavoral had been acting within the scope of her employment — which was within the scope of First Transit's duties as an agent for the Port — when the accident occurred. Defendants contended that, as a result, "the sole cause of action" for Zavoral's negligence was one against the public body, the Port. As noted, the trial court agreed and granted defendants' motion for summary judgment. Plaintiff appealed, and the Court of Appeals affirmed without opinion.

This case involves two alleged "agency" relationships: Zavoral as the agent of First Transit, and First Transit as the agent of the Port. It is undisputed that Zavoral was an agent of First Transit; more specifically, she was an employee of First Transit acting within the scope of her employment at the time of the accident. As Zavoral's employer, First Transit ordinarily would be liable for claims arising out of Zavoral's allegedly negligent driving. See Minnis v. Oregon Mutual Ins. Co., 334 Or. 191, 201, 48 P.3d 137 (2002) (employer liable in tort for acts of employees when acting within the scope of employment). The issue in this case, however, is whether First Transit and Zavoral are "agents" — as that term is used in the OTCA — of the Port so as to be protected from tort claims by ORS 30.265.⁵

We begin with an overview of the statutory scheme. In 1967, the legislature enacted the OTCA and abrogated, in part, the state's sovereign immunity. As originally enacted, the OTCA permitted claims against public bodies — with some limitations — for their own torts and for the torts committed by their "officers, employe[e]s and agents acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function." Or Laws 1967, ch 627, § 2. The original statute provided that the public body was permitted, but not required, to "defend, save harmless and indemnify any of its officers, employe[e]s and agents * * * against any tort claim or demand * * * arising out of an alleged act or omission occurring in the performance of duty." Id. at § 7. In 1975, the legislature amended the OTCA to provide for mandatory indemnification by the public body. Or Laws 1975, ch 609, § 16. Finally, in 1991, the legislature eliminated any tort claim against those officers, employees, and agents who are eligible for indemnification, making the sole cause of action one against the public body. Or Laws 1991, ch 861, § 1. See generally Clarke v. OHSU, 343 Or. 581, 588-90, 175 P.3d 418 (2007) (discussing history of OTCA, including effect of 1975 and 1991 amendments).

As noted, because First Transit does not claim to be an "officer" or "employee" of the Port, the question is whether it is an "agent" as that term is used in the OTCA. The OTCA does not contain a definition of agent, so we begin by looking to the well-established legal meaning of that term. See McIntire v. Forbes, 322 Or. 426, 431, 909 P.2d 846 (1996) ("Analysis of text also includes reference to well-established legal meanings for terms that the...