Benson v. State of Oregon

• Decision Date: 10 November 2004
• Citation: 100 P.3d 1097,196 Or. App. 211
• Parties: Roger BENSON, Respondent, v. STATE of Oregon, Appellant, and County of Lane, Defendant.
• Court: Oregon Court of Appeals

100 P.3d 1097

196 Or. App. 211

Roger BENSON, Respondent, v. STATE of Oregon, Appellant, and County of Lane, Defendant.

0108-07955; A119452.

Court of Appeals of Oregon.

Argued and Submitted July 21, 2004.

Decided November 10, 2004.

Judy Lucas, Assistant Attorney General, argued the cause for appellant. With her on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Charles Carreon, Ashland, argued the cause and filed the brief for respondent. With him on the brief was Online Media Law, PLLC.

Before EDMONDS, Presiding Judge, and WOLLHEIM and SCHUMAN, Judges.

SCHUMAN, J.

Oregon officials provided California officials with a criminal history report erroneously indicating that plaintiff was a thrice-convicted felon. That error caused California officials wrongly to incarcerate plaintiff for 43 days, leading to this negligence action. At trial, both plaintiff and the state moved for a directed verdict on the issue of whether plaintiff had given the state timely notice of his impending tort claim. The trial court denied the state's motion, granted plaintiff's, and subsequently entered judgment in favor of plaintiff for $106,500.00. The state appeals. We conclude that an issue of material fact remains unresolved. We therefore reverse and remand.

On August 3, 1999, police officers in Yreka, California, arrested plaintiff, a California resident who had briefly worked in Lane County, Oregon. In the course of processing his arrest, the officers discovered a gun in his truck. They also received a report, originating in Oregon and transmitted through the California Law Enforcement Telecommunications System, showing that plaintiff had three felony convictions. In fact, he had never been convicted of a felony; unbeknownst to him (or to anybody else), a computer error for which some person within Oregon government was responsible had attributed another individual's felony convictions to plaintiff. Based on that report, the police arrested plaintiff for being a felon in possession of a firearm and, over his protests that he was no felon, took him to the jail. He could not provide bail.

On August 25, 1999, before a preliminary hearing, plaintiff met with an attorney named Bergstrom who was retained for him by a friend. At the meeting, plaintiff told Bergstrom he had no felony convictions. Bergstrom assured plaintiff he was "going to get this worked out." Bergstrom employed a private investigator, Ellingson, and on September 1, 1999, Ellingson sent Bergstrom a memo reporting a conversation with a clerk at the Lane County Circuit Court suggesting that the felony convictions on plaintiff's criminal record actually belonged to an altogether different individual. The closing paragraph of the memo stated:

"It would appear that [plaintiff] is being inaccurately held responsible for these prior felony convictions, and that further investigation is warranted to establish he has no prior felony convictions, anywhere."

The parties dispute whether Bergstrom actually read the memo, but they agree that he did not give the information that it contained to plaintiff.

On September 8, 1999, the Siskiyou County district attorney's office investigated the Oregon criminal history report and discovered the error. At around the same time, plaintiff received a copy of the report. Under a caption consisting of cryptic text,¹ it identified him as a "convicted felon" and listed three crimes along with dates and docket numbers. These entries were in the following form:

"11-24-1998 OR020025J-CIR CRT EUGENE CONVICTED-FELONY

ORS 163.205 CRIMINAL MISTREATMENT 1ST DEG

$15000-FINE 3Y PROB DOCKET # /XXXXXXXXX"

Below the list of felony convictions, the report also contained the following information:

"OREGON STATE POLICE

IDENTIFICATION SERVICES SECTION

3772 PORTLAND ROAD NE

SALEM, OREGON 97303-2500

OR0SP0000 (503) 378-3070"

At a September 15 hearing, the California court conditionally released plaintiff. On September 22, 1999, one week after his release and exactly 180 days before he filed his claim against the state, plaintiff and a friend drove from California to Springfield, Oregon, where plaintiff had received some traffic tickets. At the municipal court, they showed plaintiff's criminal history report to a clerk. She directed them to the Lane County courthouse. There, a clerk discovered what the investigator had discovered earlier: the report erroneously attributed another person's felony convictions to plaintiff. One hundred eighty days later, the state received notice of plaintiff's tort claim.

The outcome of this case hinges on what plaintiff knew (or should have known) and when he knew it (or should have known it). Under ORS 30.275(1), "[n]o action arising from any act or omission of a public body" may be maintained unless the plaintiff gives the public body notice "within 180 days after the alleged loss or injury." The 180-day period does not begin to run until the plaintiff knows or, in the exercise of reasonable care should know, facts that would make an objectively reasonable person aware of a substantial possibility that all three of the following elements exist: an injury occurred, the injury harmed one or more of the plaintiff's legally protected interests, and the defendant is the responsible party. Gaston v. Parsons, 318 Or. 247, 256, 864 P.2d 1319 (1994); Adams v. Oregon State Police, 289 Or. 233, 239, 611 P.2d 1153 (1980). If the plaintiff's actual or imputed knowledge falls short of the quantum necessary to establish one of the elements but that knowledge should trigger a duty to pursue a further inquiry, then the relevant date for starting the statutory period is not when the plaintiff learns the necessary facts but when the inquiry that those facts should trigger would disclose the existence of the element. Greene v. Legacy Emanuel Hospital, 335 Or. 115, 123, 60 P.3d 535 (2002).

In the present case, the parties agree that, as soon as California authorities informed plaintiff that he was under arrest for being a felon in possession of a firearm and incarcerated him on that charge, he knew that someone had invaded a legally protected interest. They also agree that he notified the state of his tort claim on March 20, 2000. Therefore, the dispositive question is whether a reasonable person would have perceived the state's role in causing the injury before September 22, 1999. Schiele v. Hobart Corporation, 284 Or. 483, 490, 587 P.2d 1010 (1978).

Plaintiff maintains that he neither knew nor should reasonably have known that the State of Oregon was responsible for the injury until his visit to the Lane County Courthouse on September 22. If he is correct, then the 180 days began on that date, and his notice was filed on time. The state argues that plaintiff either knew or should have known that Oregon officials caused his harm when he received a copy of the criminal history report before he was released from jail on September 15, and, in any event, that, before that date, his attorney had or should have had facts from which plaintiff could have concluded that the state was responsible — and that the attorney's knowledge is attributed to plaintiff. If the state is correct, the 180 days began before September 22 and plaintiff's notice was not filed on time. As noted above, after both sides moved for a directed verdict on the issue of notice, the trial court denied the state's motion and granted plaintiff's. On appeal, the state assigns error to both the denial and the grant.

We begin with the state's contention that the trial court erred in denying its motion. We review for errors of law, viewing the facts and all reasonable inferences in the light most favorable to plaintiff because he is the nonmoving party with respect to this assignment of error. Mauri v. Smith, 324 Or. 476, 479, 929 P.2d 307 (1996). The inquiry, therefore, is whether, under the correct legal principles, a rational juror could have found only in favor of the state.

The state's first contention centers on plaintiff's actual knowledge of the contents of his Oregon criminal history report. According to the state, that document contained information from which plaintiff learned (or should have learned) with substantial certainty that Oregon was to blame for his erroneous incarceration. At the least, the state argues, it imposed on him a duty to make further inquiry to the Oregon State Police at the telephone number located below the list of felonies. We disagree. One witness, a professional investigator, testified that, even if he had possessed all of the information on the form, he could not have determined that the error originated in Oregon. Given the appearance of the report and its coded contents, a rational factfinder would be entitled not only to believe that testimony but, independently of it, to find that the form did not disclose Oregon's responsibility with substantial certainty. Further, nothing in the record compels the conclusion that a telephone call to the Oregon State Police at the listed number would have produced information sufficient to allow plaintiff to discern Oregon's role; for that reason, the form did not put him on "inquiry" notice. Greene, 335 Or. at 123,60 P.3d 535. In sum, we reject the state's argument that plaintiff's knowledge of the information on the criminal history form provided him, as a matter of law, with sufficient knowledge of Oregon's responsibility so as to begin the limitation period.

The state's...