Krieger v. Just

Decision Date21 July 1994
Citation876 P.2d 754,319 Or. 328
Parties, 92 Ed. Law Rep. 677 David KRIEGER, Petitioner on Review/Respondent on Review, v. Valva Doree JUST, Respondent on Review/Petitioner on Review. CC CV90-122; CA A69602; SC S39923, S39994.
CourtOregon Supreme Court

J. Michael Alexander, of Burt, Swanson, Lathen, Alexander & McCann, Salem, argued the cause and filed the petition and a response for petitioner on review/respondent on review Krieger.

Gregory B. Snook, of Allen, Kilmer, Chenoweth, Voorhees & Laurick, P.C., Portland, argued the cause and filed the petition and a response for respondent on review/petitioner on review Just.

Richard M. Rogers, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Ass'n.

Before CARSON, C.J., and PETERSON, * GILLETTE, VAN HOOMISSEN, FADELEY, UNIS, and GRABER, JJ.

FADELEY, Justice.

Plaintiff seeks damages for injury allegedly resulting form defendant's negligent driving of her personal automobile. The collision that caused plaintiff's injury occurred in May of 1988. Plaintiff's complaint alleges a common-law negligence claim against defendant, seeks damages only from defendant individually, and states no facts related to any public body or public employment. No public body is a party to this litigation. Defendant, who was represented at all times by her private automobile insurer, first asserted, after plaintiff's complaint had been filed and more than two years after the injury, that defendant was driving at the time of the accident for a purpose related to her public employment with a public school district. At the time of plaintiff's injury, ORS 30.275(1) (1987) provided:

"No action arising from any act or omission of a public body or an officer, employe or agent of a public body within the scope of ORS 30.260 to 30.300 [the Oregon Tort Claims Act] shall be maintained unless notice of claim is given as required by this section." (Emphasis added.)

It is agreed that plaintiff has not given any notice of claim to defendant's public employer. The issue is whether that special notice provision of the Oregon Tort Claims Act applies in the circumstances of this case.

The trial court granted defendant's motion for summary judgment against plaintiff; deciding that the notice provision of the Oregon Tort Claims Act applied as a matter of law. The trial court also found, as a matter of fact, that plaintiff knew, or by exercising reasonable diligence would have discovered, that defendant was acting in the course and scope of her public employment at the time that her negligent driving injured plaintiff and that plaintiff had failed to give the notice that ORS 30.275 requires in cases falling within the Oregon Tort Claims Act.

On plaintiff's appeal, the Court of Appeals reversed the grant of summary judgment and remanded the case to the trial court. The majority opinion in the Court of Appeals agreed that the 180-day notice provision of the Oregon Tort Claims Act applied. That court reversed, however, because it held that there was a disputed issue of fact that only a jury could resolve, namely, whether plaintiff knew or should have discovered that defendant was acting within the course and scope of her employment at the time of the accident. Krieger v. Just, 117 Or.App. 64, 843 P.2d 473 (1992).

A specially concurring opinion agreed with the reversal of summary judgment but did so on the basis that the then-existing notice provisions of the Oregon Tort Claims Act were not applicable as a matter of law to plaintiff's action, because plaintiff sought damages only against defendant as a private individual. Id. at 69, 77, 843 P.2d 473 (Warren, J., specially concurring).

For the reasons set forth below, we affirm the decision of the Court of Appeals. The claim pleaded here, for injuries in 1988, is asserted against defendant as a private individual only. That claim was not covered by the Oregon Tort Claims Act. Thus, plaintiff's failure to give notice under that Act does not provide a basis for summary judgment in favor of defendant.

When a summary judgment granted by the trial court is assigned as error on appeal, the question is whether the moving party is entitled to judgment as a matter of law. ORCP 47 C; Stevens v. Bispham, 316 Or. 221, 223, 851 P.2d 556 (1993). ORCP 47 C requires that, before a summary judgment may be granted, "there is no genuine issue as to any material fact and * * * the moving party is entitled to a judgment as a matter of law." To determine whether those conditions are satisfied, we review the record in the light most favorable to the non-moving party in this case, plaintiff. Whitaker v. Bank of Newport, 313 Or. 450, 452, 836 P.2d 695 (1992).

To determine whether a moving party is entitled to judgment as a matter of law, we first determine what the law is. We turn to that inquiry as it relates to the issue presented in this case--whether the Oregon Tort Claims Act and its 180-day notice provision apply to the type of claim pleaded by plaintiff.

Before the Oregon Tort Claims Act was adopted in 1967, and notwithstanding the sovereign immunity of the government that the Oregon Tort Claims Act partially removed, this court had held that public employees were not immune as individuals from an action for injuries caused by torts that they committed, even though they were acting in the course and scope of their public employment at the time of their tortious acts. Ogle v. Billick, 253 Or. 92, 453 P.2d 677 (1969) (applying pre-1967 law). 1 As this court has later explained, the sovereign immunity then enjoyed by government did not extend to its employees except as to exercising discretionary governmental decision-making. Smith v. Pernoll, 291 Or. 67, 69, 628 P.2d 729 (1981).

Defendant does not dispute that a claim against the individual was available at common law or that that right of action remained after passage of the Oregon Tort Claims Act in 1967. Defendant relies on amendments made in 1975 and 1977 to ORS 30.275(1) for her argument that the Oregon Tort Claims Act and its notice provisions apply to this case. However, after the Oregon Tort Claims Act was adopted, and both before and after the 1975 and 1977 amendments to ORS 30.275(1) on which defendant relies, this court has held that public employees are not immune from personal liability for their individual torts committed in the course of their governmental employment.

In Bradford v. Davis, 290 Or. 855, 626 P.2d 1376 (1981), this court upheld a child's claim against an employee of Children's Services Division for a tort committed in 1973 in the course of the defendant's employment even though no Oregon Tort Claims Act notice was given to the government or its employee. This court stated:

"We agree with the Court of Appeals that failure to give the required notice precludes holding the public body liable under ORS 30.265 both for 'its torts' and, under the statutory form of respondeat superior, for 'those of its officers, employees and agents.' The Tort Claims Act, however, does not assume that the government's liability under ORS 30.265 for the torts of its officers, employees and agents is exclusive of any liability on their part. The contrary seems implicit in the original 1967 act, which authorized a public body to procure liability insurance not only for itself but also for its officers, employees, and agents, and to 'defend, save harmless and indemnify any of its officers, employees and agents, whether elective or appointive, against any tort claim or demand ...' " 290 Or. at 863, 626 P.2d 1376.

In Smith v. Pernoll, supra, the tort committed by the public employees occurred in 1976. The complaint did not allege that the defendants were public employees or that the tort occurred in the scope and course of the defendants' duties as public employees. The defendants, instead, raised the fact that they were public employees in their answer, just as defendant has done here. This court held:

"The 1967 Act in no way restricted the common law tort liability of public employees arising from nondiscretionary acts." 291 Or. at 70, 628 P.2d 729.

See also Rogers v. Saylor, 306 Or. 267, 760 P.2d 232 (1988) (concluding that, even though the tortious conduct was committed by a public employee, a common-law claim against the individual was still available outside the scope of the Oregon Tort Claims Act).

When the Oregon Oregon Tort Claims Act was first adopted, it enacted a partial waiver of sovereign immunity. Smith v. Pernoll, supra; Bradford v. Davis, supra; see also Lansing, The King Can Do Wrong! The Oregon Tort Claims Act, 47 Or.L.Rev. 357 (1968). At the same time, the sovereign, acting through the legislature, exacted certain conditions as a part of that partial waiver of sovereign immunity. One condition was a dollar limitation on the amount that an injured party may recover from the sovereign. Another condition was timely notice. Under the Oregon Tort Claims Act, it was insufficient for the sovereign that a summons and complaint might show up on the sovereign's doorstep any time within the period of the statute of limitations. The sovereign required additional and earlier notice.

At the time of the injury in this case, the Oregon Tort Claims Act contained a section, ORS 30.265, specifically dealing with immunities that the state sovereign waived and those that it retained. As to the waiver of sovereign immunity, ORS 30.265 (1987) in part provided:

"(1) 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, employes and agents acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function or while operating a motor vehicle in a ridesharing arrangement authorized under ORS 276.598."

As to immunities, ORS 30.265 (1987) in part provided:

"(3) Every public body and its officers,...

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