Adams v. Oregon State Police

• Decision Date: 03 June 1980
• Citation: 611 P.2d 1153,289 Or. 233
• Parties: Steve ADAMS, Petitioner, v. OREGON STATE POLICE, an agency of the State of Oregon, and Greg Dawson and Nancy Dawson, bda Cedar Hills Towing, Respondents. TC 76-06-08194; CA 11811; SC 26367. . *
• Court: Oregon Supreme Court

Page 1153

611 P.2d 1153

289 Or. 233

Steve ADAMS, Petitioner, v. OREGON STATE POLICE, an agency of the State of Oregon, and Greg Dawson and Nancy Dawson, bda Cedar Hills Towing, Respondents.

TC 76-06-08194; CA 11811; SC 26367.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted Oct. 1, 1979.

Decided June 3, 1980.

Ron D. Ferguson, Tualatin, argued the cause and filed the brief for petitioner

Michael A. Lehner, Portland, argued the cause for respondent Oregon State Police. With him on the brief were Bruce L. Mowery and Hershiser, Mitchell, Mowery & Davis, Portland.

No brief was filed for respondent Cedar Hills Towing.

LENT, Justice.

Two issues are presented in this action under ORS 30.260 to 30.300 (Tort Claims Act) for damages resulting from negligence of the Oregon State Police (herein "OSP"). ¹ The first issue is whether the 180 day notice period prescribed by ORS 30.275(1) commences from the date of the incident precipitating plaintiff's injury or from the date plaintiff discovers the identity of the tortfeasor. We hold it commences on the date of discovery. ² The second issue is whether the allegation that "demand was made upon the Oregon State Police * * * for damages incurred" is sufficient to plead that notice was caused to be presented under ORS 30.275(1) and (3). We hold that it is sufficient.

ORS 30.275(1) provides that one who claims damages under the Tort Claims Act "shall cause to be presented to the public body within 180 days after the alleged loss or injury a written notice"

ORS 30.275(3) provides:

"No action shall be maintained unless such notice has been given and unless the action is commenced within two years after the date of such accident or occurrence * * *."

Plaintiff appealed from a judgment for OSP entered when plaintiff declined to plead over after OSP's demurrer to plaintiff's third amended complaint (herein "complaint") was sustained. On appeal, sustaining of the demurrer was assigned as error. The Court of Appeals affirmed. Adams v. Oregon State Police, 40 Or.App. 721, 596 P.2d 588 (1979). We allowed plaintiff's petition for review, ORS 2.520, 287 Or. 355 (1979), primarily to consider the first issue posed above.

The facts are established by the complaint as admitted by the demurrer. On May 5, 1975, OSP caused plaintiff's vehicle to be towed without his knowledge. On May 6, 1975, plaintiff "contacted" OSP, who denied that OSP was responsible for the towing. The vehicle was returned to plaintiff on January 23, 1976, which was the first date plaintiff knew of OSP's part in the towing. On February 24, 1976, plaintiff made demand upon OSP for damages arising from the towing and storage of his vehicle during the eight months and eighteen day period involved. ³

OSP's demurrer was on the grounds that it appeared from the face of the complaint

"that the requisite notice of the alleged cause of action contained therein was not given within the 180 days period provided for by ORS 30.275(1) of the Tort Claims Act and therefore does not state facts sufficient to constitute a cause of action against this defendant. ⁴

COMMENCEMENT OF 180 DAY PERIOD

OSP contends, in support of the demurrer, that the 180 day period commenced either on May 5, 1975, the date of towing, or on May 6, 1975, the date OSP denied responsibility for the towing. In either event January 23, 1976, the date plaintiff discovered OSP's part in the matter, was more than 180 days after the event; consequently, the sustaining of the demurrer has the effect of foreclosing plaintiff's claim under the Tort Claims Act before he knew he had a claim under that Act.

The Court of Appeals reached that result by holding: (a) that the "loss or injury" occurred the date of towing or the day after; (b) that the 180 day period from "loss or injury" in ORS 30.275(1) should commence at the same date as the two year period of limitations in ORS 30.275(3); (c) that under the Court of Appeals' decision in Dowers Farms, Inc. v. Lake County, 39 Or.App. 685, 593 P.2d 1207, 40 Or.App. 647, 595 P.2d 1385 (1979) the two year period was not tolled to allow discovery, but commenced Subsequent to the Court of Appeals' decision in the case at bar we allowed review of Dowers Farms, Inc. v. Lake County, supra, and held that the two year statute of limitations in ORS 30.275(3) does not began to run until there is a reasonable opportunity for plaintiff to discover his injury resulting from defendant's negligence. Dowers Farms v. Lake County, 288 Or. 669, 607 P.2d 1361 (1980). We found no reason to construe the Tort Claims Act narrowly and therefore applied the body of law previously developed by this court in US Nat'l Bank v. Davies, 274 Or. 663, 548 P.2d 966 (1976) and Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966). In Berry we stated:

upon the "accident or occurrence;" and (d) that the 180 day period is not delayed to give a plaintiff a reasonable period for discovery.

"To say that a cause of action accrues to a person when she may maintain an action thereon and, at the same time, that it accrues before she has or can reasonably be expected to have knowledge of any wrong inflicted upon her is patently inconsistent and unrealistic. She cannot maintain an action before she knows she has one. To say to one who has been wrong, 'You had a remedy, but before the wrong was ascertainable to you, the law stripped you of your remedy,' makes a mockery of the law." 245 Or. at 312, 421 P.2d at 998.

In US Nat'l Bank v. Davies, supra, we extended the period in which the statute of limitations is tolled to such time as it appeared probable that plaintiff's "damage actually suffered" was caused by defendant. See, also, Niedermeyer v. Dusenberry, 275 Or. 83, 549 P.2d 1111 (1976). In Schiele v. Hobart Corporation, 284 Or. 483, 587 P.2d 1010 (1978), we held that the statute of limitations begins to run when a reasonably prudent person perceives the role which the defendant has played in the plaintiff's injury.

The notice of claim provision preserves for public bodies a special protection from action and, as such, is a vestige of the former doctrine of governmental immunity. In Dowers Farms v. Lake County, supra, we noted that the legislature largely abolished governmental tort immunity when it passed the Tort Claims Act and that a narrow construction of that legislation would be contrary to its remedial purposes. The logic of allowing a reasonable discovery period in the statute of limitations in ORS 30.275(3) is equally applicable to the 180 day notice period in ORS 30.275(1).

OSP has candidly urged in the brief on appeal that the 180 day notice period and the two year statute of limitations should commence to run from the same date. The Court of Appeals was of like disposition in Hall v. City of Hillsboro, 29 Or.App. 161, 562 P.2d 597 (1977). We agree and hold that the 180 day period and the period of limitations does not commence to run until plaintiff has a reasonable opportunity to discover his injury and the identity of the party responsible for that injury.

Upon the facts presented by this record, therefore, the 180 day period began to run on January 23, 1976, the date when plaintiff discovered that OSP was in fact the party responsible for his injury.

PLEADING NOTICE

ORS 30.275 provides that no action may be "maintained" unless written notice was caused to be presented in the manner statutorily prescribed within 180 days of the loss or injury. On February 24, 1976, plaintiff made "demand" upon OSP for damages incurred by reason of the towing and storage of his vehicle. On oral argument before this court plaintiff took the position that his allegation of such "demand" was the pleading upon which he relied to satisfy his right to "maintain" this cause. It is under that allegation that plaintiff contends that he will prove that written notice was caused to be presented as required by the Tort Claims Act.

This court has not been entirely consistent in its assessment of the sufficiency of allegations tested by general demurrer. At one end of the spectrum are cases such as Sponseller v. Meltebeke, 280 Or. 361, 363- 364, 570 P.2d 974, 975 (1977), in which we have stated and applied the strict rule:

"In considering the sufficiency of a complaint upon demurrer, we must presume that plaintiff has stated his case as strongly as the facts will permit, and the complaint must therefore be construed most strongly against the plaintiff."

At the other end of the spectrum is Mezyk v. National Repossessions, 241 Or. 333, 337, 405 P.2d 840, 842 (1965), where we held that sufficiency of an allegation to withstand attack by general demurrer must be decided

"upon the basis of any facts that conceivably could be introduced under the allegations * * *."

In a very recent case, Davidson v. Wyatt, 289 Or. 47, 609 P.2d 1298 (1980), we stated that not only is plaintiff entitled to the benefit of all well-pleaded facts, but also to the benefit of inferences that can properly and reasonably be drawn from those facts.

Obviously, in the cases just mentioned, the end of the journey was preordained by the gate chosen for entry upon the journey. We do not regard this case as a particularly suitable vehicle for trying to select a firm rule, i. e., to choose the gate through which entry should always be made.

In disposing of the case before us, we do draw attention to a statute in effect when this case was filed, ORS 16.120:

"In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view of substantial justice between the parties."

That statute has since been repealed. Or.Laws 1979, ch. 284, § 199. In its place we find ORCP 12:

"A. All pleadings shall be liberally construed with a view of substantial justice between the parties.

"B. The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of...