Dunn v. City of Milwaukie

• Decision Date: 22 April 2015
• Docket Number: A139386.,CV07040247
• Citation: 348 P.3d 301,270 Or.App. 478
• Parties: Sharon DUNN, Plaintiff–Respondent, v. CITY OF MILWAUKIE, an Oregon municipality, Defendant–Appellant.
• Court: Oregon Court of Appeals

270 Or.App. 478

348 P.3d 301

Sharon DUNN, Plaintiff–Respondent

v.CITY OF MILWAUKIE, an Oregon municipality, Defendant–Appellant.

CV07040247

A139386.

Court of Appeals of Oregon.

Submitted on Remand July 22, 2014.

Decided April 22, 2015.

Michael A. Lehner and Lehner & Rodrigues P.C., filed the briefs for appellant.

Kenneth Dobson and Buckley LeChevallier, P.C., filed the briefs for respondent.

Before DUNCAN, Presiding Judge, and HASELTON, Chief Judge, and LAGESEN, Judge.

Opinion

DUNCAN, P.J.

Defendant, the City of Milwaukie (the city), used highly pressurized water to clean the sewer lines adjacent to plaintiff's house, which caused sewer water to back up through plaintiff's toilets and bathroom fixtures. Plaintiff subsequently brought this action against the city, alleging tort claims and a claim for inverse condemnation. The trial court granted summary judgment against the tort claims on the ground that plaintiff had failed to give the city notice of those claims within 180 days of the injury as required under ORS 30.275, but the inverse condemnation claim was tried to a jury, which found for plaintiff and awarded $58,333 in damages.

The city appealed, arguing that the trial court should have directed a verdict in its favor on the inverse condemnation claim because plaintiff failed to prove a compensable taking of property under Article I, section 18, of the Oregon Constitution. In response, plaintiff cross-assigned error to the dismissal of her tort claims. We affirmed the judgment in plaintiff's favor on the inverse condemnation claim without reaching her cross-assignment of error, but the Supreme Court subsequently reversed that decision on the ground that plaintiff's evidence was insufficient to prove the intentional invasion of property necessary for inverse condemnation. Dunn v. City of Milwaukie, 241 Or.App. 95, 102, 250 P.3d 7 (2011), rev'd, 355 Or. 339, 328 P.3d 1261 (2014). The Supreme Court explained, however, that plaintiff was “not necessarily without any remedy” as a result of its holding, because “Oregon has abrogated its traditional sovereign immunity; both the state and other governmental units can be sued on common-law tort theories.” Dunn, 355 Or. at 362, 328 P.3d 1261. The court explained that plaintiff had in fact attempted to recover in tort, and it remanded the case for us to consider her cross-assignment of error regarding whether she had provided a timely tort-claim notice. We now consider that cross-assignment and conclude that the trial court correctly dismissed plaintiff's tort claims for lack of timely notice under ORS 30.275.

BACKGROUND

Although plaintiff's inverse condemnation claim was tried to a jury, the issue before us concerns claims that were dismissed on summary judgment; therefore, we confine our statement of facts to the evidence in the summary judgment record. We state those facts and all reasonable inferences that can be drawn from them in the light most favorable to plaintiff, the nonmoving party. See Jones v. General Motors Corp., 325 Or. 404, 408, 939 P.2d 608 (1997).

In August 2005, plaintiff was inside her home when she heard a loud roar. She went into each of her two bathrooms and found wastewater coming out of the toilets and showers. The wastewater was grayish, had material floating in it, and smelled. Plaintiff ran out of the house and saw a work crew pumping water into a manhole; the crew was using highly pressurized water—a process called “hydrocleaning”—to clean the city's sewer lines. Plaintiff and her neighbor, who had experienced the same phenomenon in her house, approached the crew about the problem. When the neighbor asked a woman in the crew what was happening, she responded, “oh, my god, he used too much pressure.”

When plaintiff went back inside her house, the wastewater was running down the hallway and into every room in her house—her living room, family room, kitchen, entryway, and all of her bedrooms. Plaintiff observed three to four inches of water, and saw water going down her heating vents, including vents in both bathrooms, her entryway, and her family room. Plaintiff grabbed towels and blankets from her closet and her garage and threw them down in the hallway and doorways to stop the water.

By the time that plaintiff returned from the garage, the roar had stopped and water was dripping from the walls and ceilings. Plaintiff got a “wet and dry vacuum” from her garage and tried sucking up some of the water. She spent hours trying to clean up the wastewater with the vacuum and by soaking up the wastewater with towels and blankets. She cleaned the floors with vinegar and water, and she used a special cleaning solution to disinfect the bathroom.

At the time of the incident, plaintiff did not observe any buckling, warping, or other signs of water damage to the floors or walls. It did not occur to plaintiff to go under the house to see if there was any damage from water that had gone down the heating vents. She “assum[ed] that the problem had been solved and without any obvious signs of damage to the house, * * * put the incident behind [her].”

The following winter, plaintiff noticed that her average heating bills were higher, but she did not associate that with the wastewater incident. In March 2006, she noticed that her floors had buckled and were wet to the touch. She also noticed that her paint and wallpaper was bubbling and peeling in her entryway, near a heating vent. In April 2006, she detected a sewer smell coming from her heating vents and decided to inspect the crawl space. She discovered “pockets of sewer waste and wet insulation on the vent pipes.”

Throughout April and May 2006, plaintiff asked various contractors to inspect the house, and they determined that wastewater from the August incident had made its way to the furnace, which caused it to malfunction. They also determined that water had likely saturated the subflooring and was the cause of the buckling in the floors. The contractors were unable to assess the full scope of damage without an assessment by an industrial hygienist.

Beginning in May 2006, plaintiff approached the city about damage to her home. In November 2006, an insurance agent for the city informed plaintiff that her claims were being denied because she had not submitted a tort claim notice within the applicable time period. Plaintiff then filed this action in early 2007, alleging claims against the city for negligence, nuisance, trespass, and inverse condemnation.

The city moved for summary judgment on the negligence, nuisance, and trespass claims on the ground that plaintiff failed to provide notice of her claim to the city within 180 days of her injury or loss, as required by the Oregon Tort Claims Act. See ORS 30.275(1), (2). Plaintiff, in response, argued that the notice period did not begin to run until she discovered that her home had suffered structural damage—something that she did not realize (and, because of the latent nature of water damage, could not have realized) until March 2006, less than 180 days before she approached the city about her claim.

During the hearing on the city's motion, plaintiff explained that she had suffered different injuries as a result of the August 2005 incident. She argued,

“This Court may today say that damage to the furnace is precluded by the 180–day notice, but there's a genuine question of fact as to the structural damage, the water damage to the building materials in the house as to when those building materials started to rot, started to buckle. And water doesn't just sit stagnant, it sometimes soaks up and leaches up into walls through a wick effect. The—I mean, the loss or the injury is ongoing. There comes a point where, yes, it, you know, some of it may be barred by the torts claim notice and some of it may fall within the 180 days. But we're * * * dealing with water damage to a building, in which it is—the damage or the injury or the loss is ongoing.”

The trial court rejected that argument, concluding that plaintiff knew that she was injured by the city's conduct on the day of the wastewater incident, even if she did not appreciate the full extent of the harm. The court explained:

“It's very clear that [plaintiff] was present the day the sewage came into the house and knew that the person that caused the sewage to come into the house was the City of Milwaukie. I interpret the statute to mean that that was the loss or injury date that triggered her obligation to send a written notice to the City, ‘Hey, something happened. I might sue you over it.’ ”

Accordingly, the court granted the city's motion for summary judgment and dismissed plaintiff's negligence, nuisance, and trespass claims based on untimely notice under ORS 30.275.

ANALYSIS

On appeal, plaintiff again argues that her notice of claim was timely based on the application of the discovery rule. That is, she contends that the trial court erred in ruling that “the 180–day period began to run when the water first entered plaintiff's home in August 2005 and not when plaintiff discovered the water damage in March and April 2006.” As discussed below, plaintiff's argument is inconsistent with the well-established principle that the notice period in ORS 30.275 begins to run when the plaintiff “knows that he or she has suffered some harm and knows that it is the result of tortious conduct,” even if the plaintiff “did not know the full extent of the harm or that those facts had legal significance.” Doe v. Lake Oswego School District, 353 Or. 321, 335, 297 P.3d 1287 (2013).

Under ORS 30.275(2)(b), a plaintiff cannot maintain a tort action against a public body, its officers, its employees, or its agents unless sufficient “notice of claim” is given “within 180 days after the alleged loss or injury.” ORS 30.275 incorporates a “discovery rule.” See Adams v. Oregon State Police, 289 Or. 233, 239, 611 P.2d 1153 (1980) ; Dowers Farms v. Lake County, 288 Or. 669, 681, 607 P.2d 1361 (1980). Thus, the 180–day notice period does not begin to run until...