Adams v. Oregon State Police

• Decision Date: 18 June 1979
• Docket Number: No. 76-06-08194,76-06-08194
• Parties: Steve ADAMS, Appellant, v. OREGON STATE POLICE, an agency of the State of Oregon, and Greg Dawson and Nancy Dawson, dba Cedar Hills Towing, Respondents. ; CA 11811.
• Court: Oregon Court of Appeals

Page 588

596 P.2d 588

40 Or.App. 721

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

No. 76-06-08194; CA 11811.

Court of Appeals of Oregon.

Argued and Submitted April 25, 1979.

Decided June 18, 1979.

Ron D. Ferguson, Tualatin, argued the cause and submitted the brief for appellant.

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

J. W. Darr, Hillsboro, waived appearance for respondents Dawson and Cedar Hills Towing.

Before SCHWAB, C. J., and GILLETTE and CAMPBELL, JJ.

CAMPBELL, Judge.

Plaintiff brought an action in negligence against defendants Oregon State Police (OSP) and Greg Dawson and Nancy Dawson, doing business as Cedar Hills Towing, arising out of the towing of his vehicle. He appeals from the trial court ruling sustaining OSP's demurrer to his third amended complaint for plaintiff's failure to comply with the notice provisions of the Tort Claims Act, ORS 30.275(1). He also assigns error to an instruction given to the jury during the trial against Cedar Hills Towing, which resulted in a judgment against plaintiff. We affirm.

Insofar as pertinent to this appeal, plaintiff's third amended complaint alleges the following. On or about May 5, 1975, defendant OSP, acting through Trooper McGraw, who was on duty at that time, and defendants Greg Dawson and Nancy Dawson, doing business as Cedar Hills Towing, acting through their agent in the scope of his duty, caused plaintiff's vehicle to be towed. On or about May 6, 1975, plaintiff contacted OSP, which denied responsibility for towing the vehicle. On January 23, 1976, the vehicle was returned to plaintiff. That event was plaintiff's first notice that OSP was responsible for the towing. On or about February 24, 1976, "demand was made upon the Oregon State Police and Cedar Hills Towing for damages incurred through defendants' actions." In causing the towing and storage of the vehicle, OSP was negligent in one or more of the following particulars:

"1. In failing to notify the plaintiff from May 5, 1975, until January 23, 1976, that his vehicle had been towed.

"2. In failing to record the towing of the vehicle in Trooper McGraw's personal notebook.

"3. In failing to file a report covering the towing of said vehicle.

"4. In failing to log the towing of said vehicle.

"5. In failing to record the towing of the vehicle into the Law Enforcement Data System.

"6. In failing to give information of the towing to the plaintiff upon inquiry from on or around May 6, 1976 (sic) until January 23, 1976."

Plaintiff also alleged various acts of negligence on the part of Cedar Hills Towing. He prayed for general, special and punitive damages.

The first issue is whether plaintiff complied with ORS 30.275(1) and (3), which provide:

"(1) Every person who claims damages from a public body or from an officer, employe or agent of a public body acting within the scope of his employment or duties for or on account of any loss or injury within the scope of ORS 30.260 to 30.300 shall cause to be presented to the public body within 180 days after the alleged loss or injury a written notice stating the time, place and circumstances thereof, the name of the complaint and his representative or attorney, if any, and the amount of compensation or other relief demanded * * *."

"(3) 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 * * *."

Pleading of notice is jurisdictional. Johnson v. Smith, 24 Or.App. 621, 546 P.2d 1087, Rev. den. (1976). Plaintiff's third amended complaint does not allege compliance with the notice requirement. Neither the allegation that plaintiff "contacted" OSP on or about May 6, 1975, concerning his vehicle nor the allegation that plaintiff made "demand" upon OSP for damages on February 24, 1976, states that plaintiff gave OSP "Written notice stating the time, place and circumstances (of the alleged loss or injury)." ORS 30.275(1). (Emphasis added.)

Plaintiff, citing Hall v. City of Hillsboro, 29 Or.App. 161, 562 P.2d 597 (1977), argues that the 180 day notice period commences when the cause of action accrues. He then contends that under common law principles governing the accrual of a cause of action in negligence, his cause of action accrued January 23, 1976, the date upon which he was first aware of OSP's responsibility for the towing, rather than May 5, 1975, the date of the towing, or May 6, 1975, the date he contacted OSP and was informed that OSP was not responsible for towing his vehicle. If we accept plaintiff's arguments, then the demurrer was improperly sustained. The record discloses that plaintiff's original complaint was served on OSP June 16, 1976, less than 180 days after January 23, 1976. That complaint satisfied ORS 30.275(1), insofar as it stated the time, place and circumstances of the alleged loss, the plaintiff's name and that of the attorney, and the relief demanded. Although plaintiff did not plead this notice, such pleading would be "unnecessary and superfluous, * * * inasmuch as the complaint on its face satisfies the notice requirement." Yunker v. Mathews, 32 Or.App. 551, 577, 574 P.2d 696, 700 (1978). We turn to the plaintiff's contentions as to the date his cause of action accrued.

First, plaintiff contends that, if the defendant's negligence is latent, the cause of action does not accrue until the plaintiff has had a reasonable time to discover the negligence. In Hall v. City of Hillsboro, supra, we expressly declined to decide whether under ORS 30.275(1), a plaintiff should be given a reasonable opportunity for discovery. We held, however, that "both the 180 day notice period and the two year statute of limitations (in ORS 30.275(3)) run from the same date." 29 Or.App. at 164, 562 P.2d at 599. In Dowers Farms, Inc. v. Lake County, 39 Or.App. 685, 593 P.2d 1207 (1979), we held that the two year limitations period is not tolled to give plaintiff a reasonable opportunity for discovery. In that case, we held that the two year limitations period commences upon the "accident or occurrence." It follows that under ORS 30.275(1) the accrual of a cause of action is not delayed to give a plaintiff a reasonable period for discovery. ¹ A contrary holding could lead to the absurd situation where although a person's notice was timely, the statute of limitations had run on his cause of action. We decline to construe the statute in such a manner.

Plaintiff contends that OSP committed continuing negligence until January 23, 1976, so that his cause of action did not accrue until that date. Plaintiff's specifications of negligence in his third amended complaint, set out above, concern OSP's failure to notify plaintiff of the towing and failure to make a record of the towing. He argues that under Hotelling v. Walther, 169 Or. 559, 130 P.2d 944 (1942), those actions constitute continuing negligence. Hotelling v. Walther involved an action against a dentist for malpractice arising out of a continuous course of treatment. The court held that the statute of limitations began to run from the last date of the continuous negligent treatment. See also Shives v. Chamberlain, 168 Or. 676, 126 P.2d 28 (1942). Here in contrast, "(n)o continuous or repeated acts of negligence are involved." Industrial Plating Co. v. North, 175 Or. 351, 356, 153 P.2d 835, 837 (1944). In Industrial Plating Co. v. North, plaintiff sued the constable of Multnomah County for wrongful seizure of plaintiff's property. The constable failed to make a return for nearly two years. The court held that the statute of limitations began to run at the time of the wrongful seizure, noting that after the property was seized, it was stored and the constable took no further action with respect to it. The present case thus bears some resemblance to Industrial Plating Co. v. North. In that case, however, the court qualified its holding with the following statement:

"We do not mean to say that the statute of limitations would not, under any factual situation, commence to run from the time of the officer's return. In some cases it is plain that the injury would result from the failure of the sheriff or constable to make the return in the time provided by statute." 175 Or. at 355, 153 P.2d at 836.

Similarly, in the present case, plaintiff's injury arose from OSP's failure to inform him that it was responsible for the towing of his vehicle. Thus, Industrial Plating Co. v. North does not settle the issue.

In Josephs v. Burns & Bear, 260 Or. 493, 491 P.2d 203 (1971), plaintiffs sued for damages for the negligent construction of a roof. The complaint alleged that defendants' negligence consisted in part of defendants' failure to warn plaintiffs of the hazards, which negligence continued up to the time the roof...