Johnson v. Gibson, Case No. 3:11–CV–432–AC.
| Court | United States District Courts. 9th Circuit. United States District Court (Oregon) |
| Citation | 918 F.Supp.2d 1075 |
| Docket Number | Case No. 3:11–CV–432–AC. |
| Parties | Emily JOHNSON, Plaintiff, v. Scott GIBSON and Robert Stillson, Defendant. |
| Decision Date | 14 January 2013 |
918 F.Supp.2d 1075
Emily JOHNSON, Plaintiff,
v.
Scott GIBSON and Robert Stillson, Defendant.
Case No. 3:11–CV–432–AC.
United States District Court, D. Oregon.
Jan. 14, 2013.
Thane W. Tienson, Landye Bennett Blumstein, LLP, Portland, OR, for Plaintiff.
Robert T. Yamachika, City Attorney's Office, J. Scott Moede, City of Portland, Portland, OR, for Defendants.
[918 F.Supp.2d 1076]
ACOSTA, United States Magistrate Judge.
Plaintiff Emily Johnson (“Johnson”) filed this action asserting a single negligence claim against defendants Scott Gibson and Robert Stillson (collectively “Defendants”) for injuries she sustained when she fell while jogging in Tom McCall Waterfront Park (the “Park”). Defendants move for summary judgment and seek substitution of the City of Portland (“City”), owner of the Park and Defendants' employer, as the sole defendant under Or.Rev.Stat. 30.265. Johnson asks the court to take judicial notice of opinions entered by Judge Jones in her previous action filed in this court in February 2010 (the “First Action”).
The court finds that Defendants are proper defendants 1 in this action and denies the motion to substitute the City.2 Because Johnson's request for judicial notice is related primarily to Defendants' motion to substitute, and the court is ruling in Johnson's favor on that motion, Johnson's request for judicial notice is denied as moot. Defendant are properly characterized as “owners” under Oregon's recreational use statute, which Oregon courts have held to be constitutional as applied to individual landowners, and they are entitled to the immunity provided landowners therein. Accordingly, Defendants are immune from Johnson's negligence claim and are entitled to summary judgment.
For the second time in the ongoing litigation between these parties, Defendants move to substitute the City as sole defendant relying on the Oregon Tort Claims Act (Or.Rev.Stat. 30.260–30.300)(the “OTCA”). The version of the OTCA in effect at the time of Johnson's accident on July 16, 2009, and at the time this action was filed on April 6, 2011, provided, in pertinent part, that:
Subject to the limitations of ORS 30.260 to 30.300, every public body is subject to action or suit for its torts and those of its officers, employees, and agents acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function.... The sole cause of action for any tort of officers, employees or agents of a public body acting within the scope of their employment or duties and eligible for representation and indemnification under ORS 30.285 or 30.287 shall be an action against the public body only. The remedy provided by ORS 30.260 to 30.300 is exclusive of any other action or suit against any such officer, employee or agent of a public body whose act or omission within the scope of the officer's, employee's or agent's employment or duties gives rise to the action or suit. No other form of civil action or suit shall be permitted. If an action or suit is filed against an officer, employee or agent of a public body, on appropriate motion the public body shall be substituted as the only defendant.
Judge Jones denied Defendants' motion to substitute the City as the sole defendant
[918 F.Supp.2d 1077]
in the First Action under this version of the OTCA. Johnson v. City of Portland, CV No. 10–117–JO (D.Or. Feb. 10, 2010). Judge Jones acknowledged the language of the OTCA appeared to mandate the substitution of the City as the sole defendant but then held that such substitution would ultimately violate the “remedy clause” found in Article I, section 10, of the Oregon constitution (“Remedy Clause”). Id.
First, Judge Jones found that because cities were immune from tort liability with regard to their governmental functions under common law and Oregon courts consider the creation and maintenance of parks to be a governmental function, Johnson could not bring an action for negligence against the City for injuries she received while jogging in the Park. Id. at 3–4 (quoting Schlesinger v. City of Portland, 200 Or.App. 593, 599, 116 P.3d 239 (2005)). Accordingly, he dismissed Johnson's negligence claim against the City, with prejudice.
Judge Jones then addressed the question of whether substitution of the City for the Defendants, which would effectively eliminate any recovery by Johnson for her injuries, violated the Remedy Clause. The Remedy Clause provides that “every man shall have remedy by due course of law for injury done him in his person, property, or reputation.” The Oregon courts have construed the Remedy Clause to guarantee a remedy for any injury that existed in common law. Id. at 3 (quoting Jensen v. Whitlow, 334 Or. 412, 418, 51 P.3d 599 (2002)). Therefore, the legislature may not abolish a common law remedy without simultaneously providing a “constitutionally adequate substitute remedy.” Id.
Judge Jones recognized that “at common law, city employees who negligently performed their job duties did not enjoy ... immunity” and could be held liable for such negligence under common law. Id. at 4. He then explained that if he substituted the City for the Defendants, as apparently required under the OTCA, Johnson “would have no remedy in tort, emasculated or otherwise, for the injuries she suffered as a result of the individual defendants' alleged negligence” and that such action would “violate the remedy clause of Article I, section 10.” Consequently, he denied Defendants' motion to substitute the City as the sole defendant and allowed Johnson to proceed on her negligence claims against the Defendants. Id. at 5.
The current version of the OTCA, which became effective on January 1, 2012, and was in effect when Defendants filed their motion to substitute on April 5, 2012, provides, in pertinent part, that:
(1) Subject to the limitations of ORS 30.260–30.300, every public body is subject to civil action for its torts and those of its officers, employees and agents acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function....
(2) The sole cause of action for a tort committed by officers, employees or agents of a public body acting within the scope of their employment or duties and eligible for representation and indemnification under ORS 30.285 or 30.287 is an action under ORS 30.260 to 30.300. The remedy provided by ORS 30.260 to 30.300 is exclusive of any other action against any such officer, employee or agent of a public body whose act or omission within the scope of the officer's, employee's or agent's employment or duties gives rise to the action. No other form of civil action is permitted.
(3) If an action under ORS 30.260 to 30.300 alleges damage in an amount equal to or less than the damages allowed under ORS 30.271, 30.272 or 30.273, the sole cause of action for a tort committed by officers, employees or agents of a public body acting within the
[918 F.Supp.2d 1078]
scope of their employment or duties and eligible for representation and indemnification under ORS 30.285 or 30.287 is an action against the public body. If an action is filed against an officer, employee or agent of a public body, and the plaintiff alleges damages in an amount equal to or less than the damages allowed under ORS 30.271, 30.272 or 30.273, the court upon motion shall substitute the public body as the defendant....
(4) If an action under ORS 30.260 to 30.300 alleges damages in an amount greater than the damages allowed under ORS 30.271, 30.272 or 30.273, the action may be brought and maintained against an officer, employee or agent of a public body, whether or not the public body is also named as a defendant. An action brought under this subsection is subject to the limitations on damages imposed under ORS 30.271, 30.272 or 30.273, and the total combined amount recovered in the action may not exceed those limitations for a singled accident or occurrence without regard to the number or types of defendants named in the action.
Or.Rev.Stat. 30.265 (2012).
Or.Rev.Stat. 30.272, which limits liability for local public bodies for personal injury and death provides, in pertinent part, that:
(1) The limitations imposed by this section apply to claims that:
(a) Are subject to ORS 30.260 to 30.300;
(b) Are made against a local public body, or against an officer, employee or agent of a local public body acting within the person's scope of employment or duties;
(c) Arise out of a single accident or occurrence; and
(d) Are not claims for damage to or destruction of property.
(2) The liability of a local public body, and the liability of the public body's officers, employees and agents acting within the scope of their employment or duties, to any single claimant for claims described in subsection (1) of this section may not exceed:
(a) $500,000 for causes of action arising on or after July 1, 2009, and before July 1, 2010.
Or.Rev.Stat. 30.272 (2012). The impetus for the revisions to the OTCA were two cases in which the Oregon courts held that requiring substitution of a government body as the sole defendant in a negligence action against government employees violated the Remedy Clause by entirely eliminating a cause of action against the individuals and depriving the plaintiff of a constitutionally adequate remedy for their injuries, Clarke v. Oregon Health Sciences Univ., 343 Or. 581, 585, 175 P.3d 418 (2007), and Ackerman v. OHSU Medical Group, 233 Or.App. 511, 533, 227 P.3d 744 (2010).
In Clarke, the Oregon Supreme Court addressed the issue of “whether the Oregon Tort Claims Act ..., specifically ORS 30.265(1) and ORS 30.270(1), as applied to this case, violates the Remedy Clause of Article I, section 10, of the Oregon Constitution.” Clarke, 343 Or. at 585, 175 P.3d 418. The parents of an infant who suffered brain damage as the result of negligent treatment by individuals employed by a hospital filed an...
To continue reading
Request your trial
-
Johnson v. Gibson, 13–35087.
...contentions, found the defendants' arguments persuasive and granted the defendants' motion for summary judgment. See Johnson v. Gibson, 918 F.Supp.2d 1075 (D.Or.2013). It first held that Stillson and Gibson were “owners” for purposes of the Public Use of Lands Act because they “were respons......
-
Johnson v. Gibson, US Court of Appeals Ninth Circuit 1335087
...369 P.3d 1153court agreed with the prior ruling in Johnson I that substitution of the City was not appropriate. Johnson v. Gibson, 918 F.Supp.2d 1075, 1082 (D.Or.2013). Then, the individual defendants filed a motion for summary judgment, contending that they were immune from liability under......
-
Rains v. Edwards, 3:15-cv-00915-CL
...immunity at common law." Id. at 434. In 2011, in response to Clarke, the Oregon Legislature amended the OTCA. Johnson v. Gibson, 918 F. Supp. 2d 1075, 1078 (D. Or. 2013). The legislature amended the law in three ways. First, it dramatically increased the level at which damages are capped. S......