Brown v. Portland School Dist. No. 1

CourtSupreme Court of Oregon
Writing for the CourtTANZER; TONGUE; LENT; LINDE; PETERSON
Citation291 Or. 77,628 P.2d 1183
Decision Date27 May 1981
PartiesJeff BROWN, Petitioner, v. PORTLAND SCHOOL DISTRICT NO. 1, and Clackamas County, Respondents. CA 17422; SC 27366.

Page 1183

628 P.2d 1183
291 Or. 77
Jeff BROWN, Petitioner,
v.
PORTLAND SCHOOL DISTRICT NO. 1, and Clackamas County, Respondents.
CA 17422; SC 27366.
Supreme Court of Oregon, In Banc.
Argued and Submitted March 2, 1981.
Decided May 27, 1981.

[291 Or. 78]

Page 1184

Gerald R. Pullen, Portland, argued the cause and filed a brief for petitioner.

James N. Westwood, Portland, argued the cause for respondent Portland School District No. 1. On the brief were William B. Crow and Miller, Nash, Yerke, Wiener & Hager, Portland.

Michael E. Judd, Oregon City, Asst. County Counsel, argued the cause and filed a brief for respondent Clackamas County.

W. Eugene Hallman, Pendleton, filed a brief for the Oregon Trial Lawyers Association as amicus curiae.

[291 Or. 79] TANZER, Justice.

Plaintiff brought this tort action against Portland School District No. 1 and Clackamas County for damages for personal injuries arising from an automobile accident that occurred in 1978. The complaint alleged that notice of the claim was sent by first class mail to the clerk of the school district and that the letter was "received by" that defendant and "processed and investigated * * * as a tort claim." The complaint also alleged that notice was twice sent to Clackamas County by first class mail: first, to the Clackamas County Highway Maintenance Division, and subsequently, to the County Clerk. It was alleged that each of these notices was "received by defendant" and "processed and investigated * * * as a tort claim."

Defendants demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action because plaintiff failed to plead compliance with the notice provisions of the Tort Claims Act, as specified in ORS 30.275(1). Defendants contend that plaintiff's allegation that his notice was sent by first class mail is insufficient because the statute requires that notice be sent by certified mail.

The trial court sustained the demurrers. Plaintiff did not plead further, and the complaint was dismissed. Plaintiff appealed from the order of dismissal and the Court of Appeals affirmed. We accepted review to examine whether plaintiff's complaint sufficiently alleges compliance with the notice requirements of ORS 30.275(1). We hold that plaintiff has alleged substantial compliance with ORS 30.275(1).

ORS 30.275(1), at the time this action was brought, provided:

"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 claimant and his representative or attorney, if any, and the amount of compensation or other [291 Or. 80] relief

Page 1185

demanded. Claims against the State of Oregon or a state officer, employe or agent shall be presented to the Attorney General. Claims against any local public body or an officer, employe or agent thereof shall be presented to a person upon whom process could be served upon the public body in accordance with subsection (3) of ORS 15.080. Notice of claim shall be served upon the Attorney General or local public body's representative for service of process either personally or by certified mail, return receipt requested. A notice of claim which does not contain the information required by this subsection, or which is presented in any other manner than herein provided, is invalid, except that failure to state the amount of compensation or other relief demanded does not invalidate the notice." 1 (Emphasis supplied.)

This court has applied the theory of substantial compliance in order to ignore technical errors in otherwise valid notice under prior versions of the Tort Claims Act. Urban Renewal Agency v. Lackey, 275 Or. 35, 549 P.2d 657 (1976) (timely notice in the form of a counterclaim). See also Yunker v. Matthews, 32 Or.App. 551, 574 P.2d 696 (1978) (timely notice in the form of a complaint); Croft v. Gulf & West./Highway Comm., 12 Or.App. 507, 506 P.2d 541 (1973) (letter to Regional Engineer of agency, forwarded to counsel to the agency). Compare Dowers Farms v. Lake Co., 288 Or. 669, 607 P.2d 1361 (1980). 2 Defendants argue, however, that language added to ORS 30.275(1) subsequent to those cases reflects a legislative intention that the notice requirements be strictly complied with. Defendants refer to what is now the final sentence of ORS 30.275(1), added by 1977 Oregon Laws, ch. 823, § 3, which we italicized above.

[291 Or. 81] The legislative history of the 1977 amendments to the Tort Claims Act shows that the legislature was primarily concerned with the insurability of local governments, but that it also addressed relaxation by the courts of the notice requirements. One of the draftsmen of the amendment to ORS 30.275(1) explained that:

"The last sentence was added because of a tendency by the court to relax the notice requirement. Not only in the State of Oregon, but more radically in other states, it is becoming the effect of the law that if you give a handwritten notice scrawled on the back of an envelope to a janitor at city hall at 3 a. m. you have effectively tendered a claim. Even when the notice ends up in a wastebasket somewhere." 3

The legislative concern that notice actually be received at the proper level of authority by the governmental body in question is manifested by language emphasizing the strictness of the required notice. The language appears to have been intended to confine the doctrine of substantial compliance within narrow limits, but not necessarily to eliminate it. There is no suggestion that the proponents or the legislature intended to preclude recovery or escape liability by draconian enforcement of technical requirements or to preclude compliance

Page 1186

where notice proper in form and content was actually received by the statutorily designated official.

The sufficiency of the notice given must be determined with the object of the statute in mind and technically deficient claims should not be barred where the purpose of the statute is served. Sprague, supra, 100 Or. at 304-305, 195 P. 789. The doctrine of substantial compliance has previously been used by this court to avoid the harsh results of insisting on literal compliance with statutory notice provisions where the purpose of these requirements has been met.

In Urban Renewal, supra, we held that the purpose of the Tort Claims Act notice sections is to give the public [291 Or. 82] body timely notice of the tort claim and to allow its officers an opportunity to investigate matters promptly and ascertain all necessary facts. 275 Or. at 41, 549 P.2d 657. We noted that the Minnesota Supreme Court had held the purpose of their Tort Claims Act, upon which Oregon's statute was based, to be

" ' * * * (T)o protect against dissipation of public funds by requiring that the municipality be promptly furnished with information concerning a claim against it so that full opportunity is provided to investigate it, to settle those of merit without litigation, and to correct any deficiency in municipal functions revealed by the occurrence. By timely service of notice, the municipality is also afforded protection against stale or fraudulent claims or the connivance of corrupt employees or officials.' " 275 Or. at 41, n.5, 549 P.2d 657.

To achieve the Act's purpose of prompt notice to public bodies, notice of claims must be timely received by the correct official. The amended statute describes the manner in which notice is to be given, but its purpose is to bar claims where proper notice is not received by the proper official. That purpose allows for substantial compliance with the notice requirements, but the margin for divergence from strict compliance is narrow.

Where the notice required by ORS 30.275(1) is actually received in the requisite time period by the statutorily designated official, the statutory purpose is satisfied. To automatically require that the notice be sent by certified mail under these circumstances would be to ignore the purpose of the statute and to make it a mere trap for the deserving but unwary claimant. In Stroh v. SAIF, 261 Or. 117, 492 P.2d 472 (1972), involving a similar requirement that a notice be sent by certified or registered mail, we held that actual notice is the equivalent of notice by certified mail. We stated that the effect of the statute specifying notice by certified mail is to make a notification so sent effective even though it is not received. However, the court stated that it does not follow that failure to certify the notification renders it ineffective where it is actually received by the noticee. 261 Or. at 120, 492 P.2d 472. That reasoning is also applicable here.

Thus, we hold that where the notice required by ORS 30.275(1) is actually received by the statutorily designated official, the statute has been substantially complied [291 Or. 83] with and the notice of claim is valid. Because plaintiff's allegations that proper notice was received by defendants and processed and investigated as tort claims are amenable to proof that proper notice was actually received by the correct officials, we hold that he has sufficiently pled substantial compliance with the notice requirement.

Our opinion states our difference of opinion with the dissent of Lent, J., but a few additional words in answer to the dissent of Peterson, J., are appropriate. His dissent concludes with a call for literal application of clear statutes "unless an absurd result is reached thereby." In this, the dissent is consistent with Johnson v. Star Machinery Co., 270 Or. 694, 530 P.2d 53 (1974), where we said:

" * * * (I)f the literal import of the words is so at variance with the apparent policy of the legislation...

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  • Gessele v. Jack in the Box, Inc., 3:14-CV-01092-BR
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • November 13, 2019
    ...on his part." Baumgarner v. Cmty. Svcs., Inc. , 992 F. Supp. 2d 1081, 1088 (D. Or. 2014) (quoting Brown v. Portland Sch. Dist. No. 1 , 291 Or. 77, 84, 628 P.2d 1183 (1981) ). The Ninth Circuit has made clear that "[w]aiver of a contractual right to arbitration is not favored," and, therefor......
  • Whipple v. Howser, Nos. 80-0708-J-3
    • United States
    • Supreme Court of Oregon
    • August 11, 1981
    ...counsel, properly relying upon Smith, would correctly have advised against amending the statute. Cf. Brown v. Portland School Dist. # 1, 291 Or. 77, 628 P.2d 1183 (1981) (dissenting opinion of Peterson, J.). Similarly, it is reasonable to infer that drivers and insurers governed their affai......
  • Jack Doe 1 v. Lake Oswego Sch. Dist., CV08020740; A140979.
    • United States
    • Court of Appeals of Oregon
    • May 18, 2011
    ...to the OTCA notice requirement); Brown v. Portland School Dist. # 1, 48 Or.App. 571, 576, 617 P.2d 665 (1980), rev'd on other grounds, 291 Or. 77, 628 P.2d 1183 (1981) (rejecting an equal protection challenge to the OTCA notice requirement); see also Nored v. Blehm, 743 F.2d 1386 (9th Cir.1......
  • Ross Dress for Less, Inc. v. Makarios-Oregon, LLC, Case No. 3:14-cv-01971-SI
    • United States
    • U.S. District Court — District of Oregon
    • March 25, 2016
    ...A party's conduct may imply a waiver, but there must be a “clear, unequivocal, or decisive act.” Brown v. Portland Sch. Dist. No. 1 , 291 Or. 77, 84, 628 P.2d 1183 (1981) (quoting Waterway Terminals v. P. S. Lord , 242 Or. 1, 26–27, 406 P.2d 556 (1965) ) (quotation marks omitted); see also ......
  • Request a trial to view additional results
62 cases
  • Gessele v. Jack in the Box, Inc., 3:14-CV-01092-BR
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • November 13, 2019
    ...on his part." Baumgarner v. Cmty. Svcs., Inc. , 992 F. Supp. 2d 1081, 1088 (D. Or. 2014) (quoting Brown v. Portland Sch. Dist. No. 1 , 291 Or. 77, 84, 628 P.2d 1183 (1981) ). The Ninth Circuit has made clear that "[w]aiver of a contractual right to arbitration is not favored," and, therefor......
  • Whipple v. Howser, Nos. 80-0708-J-3
    • United States
    • Supreme Court of Oregon
    • August 11, 1981
    ...counsel, properly relying upon Smith, would correctly have advised against amending the statute. Cf. Brown v. Portland School Dist. # 1, 291 Or. 77, 628 P.2d 1183 (1981) (dissenting opinion of Peterson, J.). Similarly, it is reasonable to infer that drivers and insurers governed their affai......
  • Jack Doe 1 v. Lake Oswego Sch. Dist., CV08020740; A140979.
    • United States
    • Court of Appeals of Oregon
    • May 18, 2011
    ...to the OTCA notice requirement); Brown v. Portland School Dist. # 1, 48 Or.App. 571, 576, 617 P.2d 665 (1980), rev'd on other grounds, 291 Or. 77, 628 P.2d 1183 (1981) (rejecting an equal protection challenge to the OTCA notice requirement); see also Nored v. Blehm, 743 F.2d 1386 (9th Cir.1......
  • Ross Dress for Less, Inc. v. Makarios-Oregon, LLC, Case No. 3:14-cv-01971-SI
    • United States
    • U.S. District Court — District of Oregon
    • March 25, 2016
    ...A party's conduct may imply a waiver, but there must be a “clear, unequivocal, or decisive act.” Brown v. Portland Sch. Dist. No. 1 , 291 Or. 77, 84, 628 P.2d 1183 (1981) (quoting Waterway Terminals v. P. S. Lord , 242 Or. 1, 26–27, 406 P.2d 556 (1965) ) (quotation marks omitted); see also ......
  • Request a trial to view additional results

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