Croft v. Gulf & Western Industries, Inc.

Citation96 Adv.Sh. 736,12 Or.App. 507,506 P.2d 541
CourtCourt of Appeals of Oregon
Decision Date15 May 1973
PartiesLester Raymond CROFT, Respondent, v. GULF & WESTERN INDUSTRIES, INC., a Delaware corporation, and Don E. Seawood, Defendants, Oregon State Highway Commission, composed of Glenn L. Jackson, Thaddeus B. Bruno and Fred E. Hill, Appellant.

Edward H. Warren, Portland, argued the cause for appellant. With him on the briefs were Hershiser, Mitchell & Warren, Portland.

Marvin S. Nepom, Portland, argued the cause for respondent. With him on the brief was Lester L. Rawls, Portland.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

THORNTON, Judge.

Plaintiff brought this action under the Oregon Tort Claims Act 1 against defendant Oregon State Highway Commission and others to recover damages for personal injuries received in a two-car collision allegedly caused by faulty electric traffic control signals.

Trial was had before a jury which returned a verdict against defendant Oregon State Highway Commission and in favor of plaintiff in the amount of $50,000. A judgment was entered on such verdict. Defendant Commission appeals.

Defendant Gulf and Western Industries, Inc., manufacturers of the signals, and defendant Don E. Seawood, operator of the other car involved, were allowed judgments of involuntary nonsuit and are not parties in this appeal.

Three questions are presented on appeal:

I. Did plaintiff comply with ORS 30.275 in presenting his claim?

II. Was any substantial evidence produced on trial from which the jury could reasonably determine that the defendant knew or should have known that the signal malfunctioned?

III. Was any substantial evidence produced on trial from which the jury could reasonably determine that defendant was negligent in failing to properly repair the traffic control signal at the intersection after receiving complaints prior to May 26, 1969, that the signal malfunctioned?

The essential facts are as follows:

State Road 217 and Highway 99W intersect at approximately right angles on the easterly side of the city of Tigard, Washington County, Oregon. The intersection is controlled by five three-phase, green, red and amber electrically operated traffic control signals.

On May 26, 1969, at approximately 6:24 a.m., plaintiff was operating his vehicle in a southerly direction on State Road 217 on his way to work. Defendant Seawood was operating his vehicle in a westerly direction on Highway 99W at the place where the two thoroughfares intersect. A collision occurred within the intersection from which accident plaintiff sustained his claimed injuries.

Plaintiff was hospitalized on May 26, 1969, and remained hospitalized until his discharge on July 13, 1969.

Clayton D. Brown, a Tigard police officer, arrived at the scene of the accident at 6:27 a.m. Shortly after the officer arrived a bystander called the officer's attention to the malfunctioning of the traffic control signals at the intersection--they were showing 'green' simultaneously from two conflicting directions.

At the scene of the accident both plaintiff and defendant Seawood claimed to have had the green light.

Officer Brown remained at the accident scene approximately 45 minutes and observed between 12 to 14 cycles of the light, during which time the functioning was erratic. However before he left the scene the lights spontaneously commenced to function properly. He testified that on two previous occasions he had observed malfunctioning of the lights and reported the malfunctions. On one occasion he reported the condition to the State Police. On the second occasion he reported it to the State Highway Department. The first of the two occasions occurred in late winter of 1968, the other in the early months of 1969, prior to the May 26 accident.

Officer Brown testified that in his observation the signal malfunctioned when the conditions were wet or damp. The two reported previous malfunctions did not, however, involve 'green' in two different directions; they were either 'out or locked up in one condition.'

The signal lights in question were purchased from the Eagle Signal Company and installed on January 17, 1967. Defendant Commission had the responsibility to repair and maintain the signals at the intersection. The evidence was that defendant followed a regular program of inspecting each signal on a six-months' basis. The usual procedure for signal maintenance of either relays or controllers is a visual inspection. If the inspection discloses a problem, the parts are removed and replaced at the scene. The electrician for defendant carried with him three separate tools, voltmeter, ammeter and ohmmeter, some of them combined in one meter. He made a visual inspection of the light on the several occasions he was called to make repairs prior to the accident, replaced a relay, but did not use the instruments available to him to make a check of the signal.

The record of maintenance at this intersection revealed that frequent straightening of the signals was required due to high wind at the intersection. When a complaint was received that a light was out at an intersection the normal procedure was to change the relay, which was accomplished by removing the old and plugging the new one into an electrical panel like a part on a television set.

On May 26, 1969, after the accident, a visual inspection of the box in which the relays are housed failed to reveal any moisture in the box. The lights were functioning properly when the defendant's personnel arrived at 7:30 a.m. Replacement was made of one of the relays, inasmuch as it was slightly discolored. This change was made as a precautionary measure.

On July 28, 1969, plaintiff's attorney addressed a letter to L. W. Rulien, the regional engineer for the State Highway Department, advising that plaintiff had been injured on May 26, 1969, as the result of an accident allegedly caused by a defective traffic control signal at the named intersection. Plaintiff's attorney directed another letter to Mr. Rulien on September 10, which was acknowledged by a reply on September 11, and a request for information concerning the signal forwarded to G. E. Rohde, Chief Counsel for the State Highway Department. 2 On September 15, Mr. Rohde acknowledged the letter of September 10 and indicated that the matter was being forwarded to the insurer for the State Highway Department. There was no evidence to show that the State Highway Commission or any member thereof received notice of the claim.

I

Did plaintiff's letter to Mr. Rulien, dated July 28, constitute written notice of plaintiff's claim to the State Highway Department?

Defendant contends that plaintiff failed to prove that proper statutory notice was given as provided in ORS 30.275(1).

ORS 30.275, as of the date of the accident, 3 provided as follows:

'(1) Every person who claims damages from a public body 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 governing body of the public body within 45 days after the alleged loss or injury a written notice stating the time, place and circumstances thereof, and the amount of compensation or other relief demanded. Failure to state the amount of compensation or other relief demanded does not invalidate the notice; but, in such case, the claimant shall furnish full information regarding the nature and extent of the injuries and damages within 30 days after written demand by the public body.

'* * *.'

It will be noted that the above provision does not require that the notice be presented to the governing body but rather that the claimant shall cause it to be presented to that body. Secondly, under the Tort Claims Act a claimant, by submitting his claim, is not seeking to establish personal liability against the individual members of the governing body of the public agency, but against the public agency itself. ORS 30.275.

The regional engineer testified he was in charge of construction and maintenance activities of the department in his region, including the operation of the allegedly defective signals. There was evidence that plaintiff's letter was forwarded through channels to the chief counsel of the defendant Commission and its maintenance engineer in Salem.

It is our conclusion that plaintiff's letter dated July 28, 1969, to Mr. Rulien, together with Mr. Rulien's action in reporting the letter to the chief counsel of the department and the maintenance engineer in Salem, constituted substantial compliance with the provisions of ORS 30.275(1) which were in effect on the date of the accident.

Jurisdictions which have taken a similar liberal view in favor of the claimant in interpreting comparable notice provisions of various tort claims statutes include Indiana, 4 Texas, 5 and California. 6

We recognize that appellate courts of at least two jurisdictions have taken a stricter view of similar notice provisions. 7 However we believe that our interpretation is more consistent with the intent of the legislature in enacting this remedial statute. The purpose of our Tort Claims Act is to permit injured citizens to obtain reimbursement for damages suffered as a result of torts of public bodies. The purpose of the notice provision (ORS 30.275) is simply to give the public body timely notice of the tort, and allow its officers an opportunity to investigate the matter promptly and ascertain all the necessary facts. As the court observed in Galbreath v. City of Indpls., 253 Ind. 472, 479--480, 255 N.E.2d 225, 229 (1970):

'* * * (W)e see no need to endorse a policy which renders the statute a trap for the unwary Where such purpose (of the notice provision) Has in fact been satisfied * * *.'

Moreover, a liberal interpretation of ORS 30.275 is in harmony with the rationale of Stroh v. State Accident Ins. Fund, 93 Or.Adv.Sh. 1819, 492 P.2d 472 (1972). I...

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