Rogers v. Saylor

• Decision Date: 26 July 1988
• Parties: , 57 USLW 2119 Lonnie ROGERS, Petitioner on Review, v. Sam SAYLOR, John Blackman, Jerry R. Hill, Robert Peterson, Multnomah County, and City of Gresham, Respondents on Review, Harold R. Boehmer, Defendant. CC A8409-05447; CA A35289; SC S34838.
• Court: Oregon Supreme Court

Page 232

760 P.2d 232

306 Or. 267, 57 USLW 2119

Lonnie ROGERS, Petitioner on Review, v. Sam SAYLOR, John Blackman, Jerry R. Hill, Robert Peterson, Multnomah County, and City of Gresham, Respondents on Review, Harold R. Boehmer, Defendant.

CC A8409-05447; CA A35289; SC S34838.

Supreme Court of Oregon,

In Banc.

Argued and Submitted April 6, 1988.

Decided July 26, 1988.

Gregory Kafoury, Portland, argued the cause and filed the petition for petitioner on review.

Janet Noelle Billups, Sp. Counsel for Multnomah County Counsel, Portland, argued the cause for respondents on review Saylor, Blackman, Hill and Multnomah County. With her on the response to the petition for review was Laurence Kressel, County Counsel for Multnomah County, Oregon, Portland.

Elden M. Rosenthal, of Rosenthal & Greene, P.C., Portland, filed a brief on behalf of amicus curiae American Civil Liberties Union.

Richard C. Baldwin, of Baldwin & Brischetto, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers' Ass'n.

David B. Williams, Asst. County Counsel, Lane County Office of Legal Counsel, Eugene filed a brief on behalf of amicus curiae Ass'n of Oregon Counties.

Robert D. Durham, of Durham, Drummonds, Colombo & Smith, Portland, filed a brief on behalf of amicus curiae Oregon Educ. Ass'n.

Jerome Lidz, Asst. Atty. Gen., and Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem, filed a brief on behalf of amicus curiae Dept. of General Services.

Douglas R. Andres and I. Franklin Hunsaker, of Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland, filed a brief on behalf of amicus curiae Oregon Ass'n of Defense Counsel.

JONES, Justice.

This case presents the question whether the limitations on individual and governmental liability contained in the Oregon Tort Claims Act (OTCA), ORS 30.260 to 30.300, most specifically in ORS 30.270, ¹ apply to an action which states a claim under the federal civil rights act, 42 U.S.C. § 1983, ² when that federal claim is brought in state court.

Plaintiff's complaint contains two claims. His first claim is against deputies for the Multnomah County Sheriff's Office for assaulting him in violation of his rights under the Fourth, Fifth and Fourteenth Amendments to the federal constitution. By alleging that this was done under color of law, plaintiff stated a cause of action under section 1983. Plaintiff alleged that the deputies' conduct was "within the course and scope of their employment," ³ and that, as a result of the attack, he suffered general damages of $110,000. He further alleged that the officers acted with malicious intent and that he was entitled to $25,000 in punitive damages. Plaintiff also sought reasonable attorney fees under federal law 42 U.S.C. section 1988. ⁴

Plaintiff alleged a second claim for relief, claiming the same damages against Multnomah County. This claim was not based upon any acts of the county, but solely on the terms of ORS 30.265(1), which makes public bodies liable for the tortious conduct of their employes.

The trial court dismissed the first claim when plaintiff refused to replead after the court granted defendants' motion to strike plaintiff's allegation of general damages in excess of $100,000, punitive damages and attorney fees. The trial court granted defendants' motion on the ground that plaintiff's remedy against the individual defendants was subject to the limitations of the OTCA as set forth in ORS 30.270. The OTCA limits liability of public bodies and their employes acting within the scope of their employment to $100,000 per claimant for all claims arising out of a single occurrence and prohibits any award of punitive damages. The circuit court held in abeyance any action on the second claim of relief against the county, pending disposition of plaintiff's first claim on appeal. ⁵

The Court of Appeals held that plaintiff could not recover damages in excess of $100,000 under the OTCA, nor could he recover punitive damages. The court allowed attorney fees, and this decision as to attorney fees is not contested here. Rogers v. Saylor, 88 Or.App. 480, 746 P.2d 718 (1987). We reverse the decision of the Court of Appeals and the judgment of the circuit court and remand the case to the circuit court for further proceedings consistent with this opinion.

We dispose of this case as follows:

I. Plaintiff may assert a cause of action either under Oregon common law or section 1983 of the federal act against the deputy sheriffs as individuals, unfettered by any (a) compensatory or (b) punitive damages limitation. Plaintiff's claim under the OTCA is subject to the Act's damages limitations.

II. Plaintiff may proceed against Multnomah County under the OTCA ⁶ solely for compensatory damages not to exceed $100,000 for tortious conduct by the deputies acting within the scope of their employment.

I. CLAIMS AGAINST THE DEPUTIES AS INDIVIDUALS

In reaching the above conclusions, we first address the claims against the officers as individuals. In order to hold the officers potentially liable without a limitation on damages, we must address whether the officers are immune because of any provisions of the OTCA. ORS 30.265(3) provides:

"Every public body and its officers, employes and agents acting within the scope of their employment or duties * * * are immune from liability for:

* * *

* * * (d) Any claim which is limited or barred by the provision of any other statute."

ORS 30.270 limits the liability of officers acting within the scope of their employment to $100,000 to any claimant for all claims arising out of a single occurrence. Thus, it would appear that the statute would limit the individual liability of the officers to $100,000 for conduct within the scope of their employment. ORS 30.285 provides that the state shall indemnify the officers against any tort claim up to this amount. The OTCA purportedly immunizes the officers for any claim beyond the amount of reimbursement for tortious conduct by the officers acting within the scope of their employment or duties. Neither the OTCA nor section 1983 alters any state common-law claim that plaintiff may have against the officers as individuals acting outside the scope of their duties.

The question before us specifically concerns a section 1983 action brought in state court. Distinguishing the related actions is necessary, however, because it is the interplay among the common law, section 1983 and the OTCA which gives rise to the question before the court and which we must understand to resolve that question. Assuming, then, that the OTCA provides a limited immunity to the officers when sued in an individual capacity under the OTCA, does the statutory immunity have any effect on the officers' liability under section 1983? The quick and final answer is "no."

Defendants rely on two related themes to support their argument that the OTCA can limit liability under section 1983. The first is the reasoning of the Court of Appeals that, while Congress created section 1983, it did not intend to override state law. From this the Court of Appeals concluded that state-created limits can apply to federal claims brought in state court. The second approach skirts the issue whether federal law overrides state law by viewing the question as one of procedural jurisdiction. Under this view, whether Congress created a federal right is irrelevant to the question whether Oregon state courts procedurally may limit section 1983 actions in any fashion the legislature dictates. We will begin with the first question.

A. Did Congress override state law for individual liability under section 1983?

Section 1983 was passed at a time when few, if any, states had a corresponding statutory cause of action. Thus the question is not strictly whether Congress, in passing section 1983, intended to override conflicting state statutes in effect at that time. The question, instead, is whether Congress intended that the federal remedy created by section 1983 would be a self-contained remedy, unaffected by any subsequent state law. ⁷

At common law, prior to the enactment of the OTCA in 1968, police officers were not immune from liability for tortious conduct committed within the scope of employment. See, e.g., Anderson v. Maloney, 111 Or. 84, 225 P. 318 (1924). So far as we can tell from the history of this state, police officers have never enjoyed such an immunity. In this regard, Oregon law corresponded to the general common law of the other states. It is important to focus on the status of police officers as it existed in 1871, for that was the year Congress passed what is now section 1983. The United States Supreme Court has held on numerous occasions that the common-law immunities well grounded in the history and reason of the period were included in section 1983, where that inclusion did not conflict with the intent of section 1983. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (prosecutors' immunity from a section 1983 suit); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (judges and police officers); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (legislators). Subsequent changes in the common law can have an effect on section 1983 only to the extent that they comport with the original intent of Congress in 1871. Smith v. Wade, 461 U.S. 30, 34 & n. 2, 103 S.Ct. 1625, 1629 & n. 2, 75 L.Ed.2d 632 (1983).

Section 1983 is derived from Section 1 of the Civil Rights Act of April 20, 1871. 17 Stat 13. The Act was an exercise of Congressional power under section 5 of the Fourteenth Amendment to enforce the provisions of that amendment. ⁸ Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct. 473, 475-76, 5 L.Ed.2d 492, 496 (1961). It was intended to create "a species of tort liability in favor of federally secured rights." Smith v. Wade, supra, 461 U.S. at 34, 103 S.Ct. at 1628. There is no question that Congress meant section 1983 to...