Krieger v. Just

Decision Date20 April 1993
Citation117 Or.App. 64,843 P.2d 473
Parties, 79 Ed. Law Rep. 1087 David KRIEGER, Appellant, v. Valva Doree JUST, Respondent. CV90-122; CA A69602. . *
CourtOregon Court of Appeals

J. Michael Alexander, Salem, argued the cause for appellant. With him on the briefs was Burt, Swanson, Lathen, Alexander & McCann, Salem.

Gregory B. Snook, Portland, argued the cause for respondent. On the brief were G. Kenneth Shiroishi, Joseph P. Shannon and Dunn, Carney, Allen, Higgins & Tongue, Portland.


Plaintiff filed this action on April 12, 1990, for damages that he incurred as a result of the collision of his vehicle and one driven by defendant. The accident occurred at 10 a.m. on May 2, 1988, in front of a public elementary school of which defendant is the principal. Defendant interposed as an affirmative defense that she was a public employee acting in the course and scope of her employment at the time of the accident and that plaintiff did not file a timely notice of his claim with the school district that employs defendant. ORS 30.275. In his reply, plaintiff denied that defendant was acting in the course and scope of her employment at the time of the accident, but after defendant's deposition was taken, it was developed that defendant was so acting. Defendant then moved for summary judgment. The trial court granted that motion, and plaintiff appeals from the resulting judgment. We reverse.

Although plaintiff does not now dispute that defendant was acting within the course and scope of her employment at the time of the accident, he argues that he is suing her for her negligence as a driver, not for any conduct more specifically related to her work. Therefore, he argues, neither the notice provision nor anything else in the Oregon Tort Claims Act (OTCA) is applicable to the case. Defendant takes the contrary view and relies on the express language of OTCA.

At the relevant time, ORS 30.265(1) provided, in part, that 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." ORS 30.275(1) provided:

"No action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 shall be maintained unless notice of a claim is given as required by this section."

ORS 30.275(2) required a notice to be given to the public employer within 180 days of the loss or injury and, under ORS 30.285(1), every public employer was required to defend and indemnify its employees for any tort claim "arising out of an * * * act or omission occurring in the performance of duty."

Plaintiff argues that his action is against defendant, not her employer, and that the quoted statutes,

"when read together, appear to apply only to situations where the injured party is seeking compensation from the public body, or is otherwise seeking to establish the liability of the employee in his public capacity. The statute[s] would not appear to apply to situations such as here, where the tortious act of the employee, although technically within the course and scope of employment, has no relationship to her official duties vis-a-vis the injured party.

" * * * * *

"The liability of the Defendant in this case rests on her general duties as a driver, and is unrelated to her status as an employee of the School District. No claim has been made against the District. The Defendant's private carrier is defending the claim and providing indemnity. The notice provisions of the Tort Claims Act are inapplicable." (Emphasis plaintiff's.)

Plaintiff relies on legislative history. Defendant responds that there is no ambiguity in the statutes to be resolved by legislative history or other extrinsic tools of construction. We agree with defendant. The relevant statutes are clear: Public bodies are amenable to action and are required to defend and indemnify for tort claims against employees "acting within the scope of their employment or duties," and claimants are required to provide the public body with a notice of claim as a prerequisite to bringing an action "arising from any act or omission of a[n] * * * employee * * * of a public body within the scope of" OTCA. ORS 30.275(1) did not make the notice requirement dependent on whether the public body was joined with its employee as a defendant. See Smith v. Pernoll, 291 Or. 67, 628 P.2d 729 (1981).

Plaintiff's attempt to distinguish defendant's role as a driver and "her official duties" is unpersuasive. She was driving from her regular work location to a meeting place where she was to perform a work activity. As noted, plaintiff does not contend that defendant was not acting within the course and scope of her employment. His use of the modifier "technically" does not alter that fact. Plaintiff is not aided, with respect to the notice requirement, by his point that, from his standpoint, defendant was engaging in an activity that he perceived as more private than public. OTCA allows for no distinction of that kind. It applies to all claims for negligent conduct by public employees acting within the course and scope of their employment. Plaintiff was required to give the statutory notice. 1

Plaintiff argues next that, in any event, there is a question of fact as to whether he reasonably should have discovered that defendant was acting within the course and scope of her employment before he took her deposition in December, 1990, after this action was filed and two and one-half years after the accident. By that time, the school district had actual knowledge of the action. Therefore, he concludes, summary judgment was improper, because there is a jury question as to whether the notice period was tolled by the discovery rule. See Stephens v. Bohlman, 314 Or. 344, 838 P.2d 600 (1992); Adams v. Oregon State Police, 289 Or. 233, 611 P.2d 1153 (1980). We review the record in the light most favorable to plaintiff, against whom summary judgment is sought. Whitaker v. Bank of Newport, 313 Or. 450, 836 P.2d 695 (1992).

Within a short time after the accident, plaintiff knew that defendant was employed at the school; that the accident had occurred in front of the school; that the accident was caused by defendant's making a u-turn into plaintiff's path while she was leaving her parking place near the school; and that the accident occurred during regular school hours. He contends, however, that he had no reason to believe that she was driving on school business rather than on an errand of her own. Defendant's affirmative defense alleging defendant's status was filed May 31, 1990, and for the first time alerted plaintiff that OTCA might be applicable. Although defendant asserted the defense of no notice, her insurer did not tender defense of the action to the public body until August, 1990, over 2 months after filing the answer. Defendant did not move for summary judgment until after her deposition was taken on December 10, 1990.

We believe that a reasonable juror could find that, despite the exercise of reasonable diligence, plaintiff did not discover until defendant's deposition was taken that she was traveling on school business at the time of the accident. Because there is a genuine issue of material fact, it was error to grant defendant's motion for summary judgment. Peterson v. Mult. Co. Sch. Dist. No. 1, 64 Or.App. 81, 668 P.2d 385, rev. den. 295 Or. 773, 670 P.2d 1036 (1983).

Reversed and remanded.

WARREN, Judge, specially concurring.

I agree with the majority's result but differ with its analysis.

The majority holds that plaintiff's failure to give a formal notice of claim under ORS 30.275(3)(a) to defendant's school district within 180 days after the injury is a jurisdictional bar to his action. 1 I disagree, because I do not believe ORS 30.275 applies to a tort action against an individual public employee, even if the employee commits the tort while acting in the scope of the employment.

Before 1967, public bodies were immune from tort liability. Bacon v. Harris, 221 Or. 553, 352 P.2d 472 (1960). Public employees were not immune, however, unless the liability arose from the performance of "discretionary functions." Jarrett v. Wills, 235 Or. 51, 56, 383 P.2d 995 (1963); see also ORS 30.265(3)(c). If a public employee was performing a nondiscretionary act, the employee was not immune, even if liability was incurred in the course of employment. Ogle v. Billick, 253 Or. 92, 95, 453 P.2d 677 (1969); Marchant v. Clark 225 Or. 273, 275, 357 P.2d 541 (1960); see also Anderson v. Maloney, 111 Or. 84, 225 P. 318 (1924).

When OTCA was enacted in 1967, it was not intended to restrict in any way "the common law liability of public employees arising from nondiscretionary acts." Smith v. Pernoll, 291 Or. 67, 70, 628 P.2d 729 (1981). The 1967 act then prescribed a notice requirement for persons who claimed damages from public bodies only. 291 Or. at 70, 628 P.2d 729; Or.Laws 1967, ch. 627, § 5. That notice requirement was retained in the 1975 amendment to ORS 30.275. However, in 1975, the legislature also added to ORS 30.275 the language that "claims against * * * a state officer, employee or agent acting within the scope of his employment or duties shall be presented to the Attorney General." 291 Or. at 72, 628 P.2d 729; Or.Laws 1975, ch. 609, § 14. In Smith v. Pernoll, 45 Or.App. 395, 608 P.2d 590 (1980), we read that language to require a notice of claim as a prerequisite to an action against a state employee acting in the scope of employment. The Supreme Court rejected that conclusion. It held that, under the 1975 amendment, the notice requirement was not intended as a condition precedent to liability of individual state employees. Rather, it was a 1977 amendment th...

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5 cases
  • State v. Smith
    • United States
    • Oregon Court of Appeals
    • October 9, 2002
    ...understand that, technically speaking, the prior version of the statute is "context" and not legislative history. Krieger v. Just, 117 Or.App. 64, 66-67, 843 P.2d 473 (1992),aff'd on other grounds,319 Or. 328, 876 P.2d 754 (1994). In this case, however, because we have concluded that it is ......
  • Neher v. Chartier
    • United States
    • Oregon Court of Appeals
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    ...acts or omissions occurring in the performance of their duties. See ORS 30.285(1). Although the concurrence in Krieger v. Just, 117 Or.App. 64, 76-77, 843 P.2d 473 (1992), rev. allowed 316 Or. 142, 852 P.2d 838 (1993), argued that the immunity provided to public employees constituted both a......
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    • November 15, 1994 "defend, save harmless and indemnify" its officers and limits those duties to "tort claim[s] or demand[s.]" In Krieger v. Just, 117 Or.App. 64, 67, 843 P.2d 473 (1992), aff'd on different grounds 319 Or. 328, 876 P.2d 754 (1994), we discussed the scope of the OTCA in relation to the noti......
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    ...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-existi......
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