Bradford v. Davis

• Decision Date: 21 April 1981
• Citation: 290 Or. 855,626 P.2d 1376
• Parties: Phillip Warren BRADFORD, aka Phillip Groner, by and through his guardian ad litem, David H. Williams, Petitioner, v. Richard A. DAVIS, Individually and in his capacity as Director of the Oregon Department of Human Resources; Children's Services Division; J.N. Peet, Individually and in his capacity as Administrator of the Oregon Children's Services Division; Gordon Gilbertson, in his capacity as former Administrator of the Family and Children's Services Department of the Public Welfare Division; Barbara Davis Spencer, Individually and in her capacity as Manager of the Adoption Unit of Children's Services Division; Lewis L. Winchester, Individually and in his capacity as former Director of Children's Services Model Cities District and the Albina Branch of Children's Services Division; Ruth Cahill, Individually; Roy Odrin, Individually and in his capacity as Albina Branch Manager for Children's Services Division; Mike Beaver, Individually and in his capacity as Supervisor, Albina Branch of Children's Services Division; Monica Bacon, Individually and in her capacity as Caseworker, Community Resources Branch of Children's Services Division; Linda Beachell, Individually and in her capacity as Caseworker, Albina Branch of Children's Services Division; Rosemarie Orange, Individually and in her capacity as Social Worker, Albina Branch of Children's Services Division; Mary L. Carson, Individually and in her capacity as Caseworker, Albina Branch of Children's Services Division; Virginia Freeland, Individually; and the State of Oregon, Respondents. TC A7810, 16902; CA 14381; SC 27169.
• Court: Oregon Supreme Court

Page 1376

626 P.2d 1376

290 Or. 855

Phillip Warren BRADFORD, aka Phillip Groner, by and through

his guardian ad litem, David H. Williams, Petitioner, v. Richard A. DAVIS, Individually and in his capacity as

Director of the Oregon Department of Human Resources;

Children's Services Division; J.N. Peet, Individually and in

his capacity as Administrator of the Oregon Children's

Services Division; Gordon Gilbertson, in his capacity as

former Administrator of the Family and Children's Services

Department of the Public Welfare Division; Barbara Davis

Spencer, Individually and in her capacity as Manager of the

Adoption Unit of Children's Services Division; Lewis L.

Winchester, Individually and in his capacity as former

Director of Children's Services Model Cities District and

the Albina Branch of Children's Services Division; Ruth

Cahill, Individually; Roy Odrin, Individually and in his

capacity as Albina Branch Manager for Children's Services

Division; Mike Beaver, Individually and in his capacity as

Supervisor, Albina Branch of Children's Services Division;

Monica Bacon, Individually and in her capacity as

Caseworker, Community Resources Branch of Children's

Services Division; Linda Beachell, Individually and in her

capacity as Caseworker, Albina Branch of Children's Services

Division; Rosemarie Orange, Individually and in her capacity

as Social Worker, Albina Branch of Children's Services

Division; Mary L. Carson, Individually and in her capacity

as Caseworker, Albina Branch of Children's Services

Division; Virginia Freeland, Individually; and the State of

Oregon, Respondents.

TC A7810, 16902; CA 14381; SC 27169.

Supreme Court of Oregon.

Argued and Submitted Dec. 3, 1980.

Decided April 21, 1981.

Alan Baily, Legal Aid Service, Portland, and Robert L. Walker, National Center for Youth Law, San Francisco, Cal., argued the cause for petitioner. With them on the briefs were Michael H. Marcus, Legal Aid Service and Julie H. McFarlane, Certified Law Student, Legal Aid Service, Portland, and Abigail English, National Center for Youth Law, Oakland, Cal.

Ridgway K. Foley, Jr., Portland, argued the cause for respondents. With him on the brief were Souther, Spaulding, Kinsey, Williamson & Schwabe, Kenneth E. Roberts and Jan K. Kitchel, Portland.

Before DENECKE, C.J., and LENT, LINDE, PETERSON and CAMPBELL, JJ.

LINDE, Justice.

Plaintiff sued the director of the Department of Human Resources, a number of officers and employees of the Children's Services Division and the division itself to recover damages for injuries which he claims to have suffered as a child in the legal custody of the division. The circuit court sustained defendants' demurrers to the complaint and entered judgment for defendants. The Court of Appeals affirmed the judgment, 46 Or.App. 213, 611 P.2d 326 (1980), and we allowed review. We reverse and remand the case to the circuit court.

The complaint presents a detailed statement of allegations common to several or all of plaintiff's legal claims, followed by statements of four causes of action. We take the following summary from the opinion of the Court of Appeals:

"Plaintiff, who was 17 years old when suit was filed on October 17, 1978, became a ward of Multnomah County shortly before his fourth birthday in 1964. He was released to the custody of CSD's predecessor, the Family and Children's Services Department of the Public Welfare Division, in 1968, after both of his parents had signed adoptive release forms. From September 10, 1968 until October 7, 1977, when he was committed to MacLaren Training School, plaintiff continuously resided in foster homes where he was placed by CSD.

"The complaint alleges that from March, 1969, until August, 1973, plaintiff remained in a foster home where he suffered both physical abuse and neglect.

"The complaint further alleges that these physical injuries as well as emotional injuries described therein were the result of acts and omissions of defendants which are set out in four causes of action. Plaintiff's allegations are essentially as follows:

"1) That, in discharging statutory or other responsibilities, defendants, except defendant Spencer who is described as Manager of CSD's Adoption Unit, have 'failed properly to exercise that degree of professional skill required of ordinary, prudent social workers, caseworkers, supervisors, and administrators * * *.' The cause of action goes on to list a series of acts and omissions of defendants during the time that plaintiff was in the foster home where he was allegedly abused....

"2) That, in discharging statutory and other responsibilities, defendants have 'failed to take reasonable actions to find plaintiff an adoptive home.'

"3) That defendant CSD breached a third party beneficiary contract with plaintiff's parents in which CSD promised to find plaintiff an adoptive home in consideration for the parents' relinquishment of their parental rights.

"4) That defendants, except defendant Spencer who had responsibility for plaintiff's case after 1972, contrary to their statutory obligation, failed to report and investigate a complaint which they received from a third party in 1972 about the mistreatment of plaintiff in his foster home."

46 Or.App. at 215-217, 611 P.2d 326 (footnotes omitted).

The trial court sustained the demurrers of all defendants on the ground that all the alleged causes of actions were "essentially tort actions and governed by the Oregon Tort Claims Act," and that plaintiff had failed to allege facts to show that he had given the notice of his claims required by that act. On appeal, defendants conceded that their objections to the timeliness of the complaint applied only to two of the four causes of action, those relating to the alleged mistreatment of plaintiff in foster homes prior to August 1973 and failure to follow up a complaint about that mistreatment in 1972. They relied on the "discretionary functions" exception of the tort Claims Act, ORS 30.265(3)(c), to sustain the demurrer to the second and third causes of action, which allege defendants' failure to find plaintiff an adoptive home. The Court of Appeals accepted this defense.

Plaintiff asserts that the time limits of the Tort Claims Act do not, and constitutionally cannot, insulate these defendants from liability to a minor in his position, that their alleged departures from their duties were not discretionary, and that in any event his third cause of action lies outside the Tort Claims Act. We take up the issues in that order.

I. The Tort Claims Act

ORS 30.265 makes "every public body" liable for two classes of torts, one described as "its torts" and the other described as "those of its officers, employes and agents acting within the scope of their employment or duties." ¹ Recognizing that the state and its subdivisions and agencies act only through human agents, it appears that a public body's liability for "its torts" under this section states the public body's direct responsibility for its official actions or failures to act, if these are tortious and not excluded by other provisions, while its statutory liability for the torts of its personnel as individuals states a form of respondeat superior. Plaintiff's complaint asserts claims both against the Children's Services Division, as a state agency within the statutory definition of a public body, and also against individual officers and employees. These claims present different issues regarding theories of liability, regarding the exception for "discretionary functions," see, e. g., Dizick v. Umpqua Community College, 287 Or. 303, 599 P.2d 444 (1979); Brennen v. City of Eugene, 285 Or. 401, 591 P.2d 719 (1979), and regarding the required notice of claim. The notice of claim is prescribed in ORS 30.275, along with a two-year time limit on commencing an action. ² The Court of Appeals held that this time limit barred two of plaintiff's four causes of action. We turn first to that holding.

A. The two-year limit. ORS 30.275(3) prescribes that "(n)o action shall be maintained ... unless the action is commenced within two years after the date of such accident or occurrence...." The present action was commenced on October 17, 1978, so that it can be maintained only for claims arising on or after October 17, 1976, unless plaintiff is entitled to an extension by virtue of being a minor.

Plaintiff claims that he is entitled to the extension, up to a maximum of five years, provided by ORS 12.160:

"If, at the time the cause of action accrues, any person entitled to bring an action mentioned in ORS 12.010 to 12.050, 12.070 to 12.260, 109.100 or 109.125 is:

"(1) Within the age of 18 years,

....

the time of such disability shall not be a part of the time limited for the commencement of the action; but the period within which the action shall be brought shall not be extended more than five years by any such disability, nor shall it be extended in any case longer than one year after such disability ceases."

The Court of Appeals rejected this contention as follows:

"Because the Tort Claims Act is complete in itself, ... the provision found at ORS 12.160 for tolling during minority has no application here; ORS 30.275(3) sets forth a clear two-year limitation on commencement of suit without making provision for tolling during minority. The term 'two years' is unambiguous; plaintiff has failed to meet this statutory requirement. Besides: ORS 12.160 is limited by its terms to ORS 12.010-12.050 and 12.070 to 12.260."

46 Or.App. at 224, 611 P.2d 326.

We read the statutes somewhat differently. Actions under the Tort Claims Act are tort actions, not special statutory causes of action created by that Act. ORS 30.265 provides that "every public body is liable for its torts and those (i. e. the torts) of its officers, etc." In other words, ORS 30.265(1) withdraws governmental immunity from tort actions, with the exceptions stated in the following subsections (2) to (6) and in ORS 30.270. ...