Smith v. Pernoll

Decision Date27 May 1981
Docket NumberNo. A7804-05907,A7804-05907
Citation628 P.2d 729,291 Or. 67
PartiesCyndi SMITH, Petitioner, v. M. L. PERNOLL, M.D., Miles Seeley, M.D., Richard Wopat, M.D., C. Conway, M.D., Ronald Marcum, M.D., Respondents. ; CA 14972; SC 26998. . *
CourtOregon Supreme Court

Richard S. Mannis, Portland, argued the cause for petitioner. With him on the briefs was Kenneth D. Orcutt, Portland.

Karen H. Green, Asst. Atty. Gen., Salem, argued the cause for respondents. On the brief were James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen. and James C. Rhodes, Asst. Atty. Gen., Salem.

PETERSON, Justice.

This is a civil action alleging a cause of action against defendant doctors arising from their treatment of the plaintiff in 1976. Plaintiff's amended complaint does not allege that the doctors were employees of the state of Oregon. Defendants answered and affirmatively alleged that the defendants were employed at the University of Oregon Health Sciences Center, were employees of the state of Oregon, and that no notice of claim had been given, as required by ORS 30.275(1). Plaintiff's demurrer to the affirmative defense was overruled, plaintiff elected not to plead further, and judgment was entered for the defendants. Plaintiff appealed, contending that under the 1975 version of ORS 30.275(1) there was no requirement that the claimant give the public body or the individual defendants notice of a claim against the individual defendants. The Court of Appeals, in a divided decision, affirmed. Smith v. Pernoll, 45 Or.App. 395, 608 P.2d 590 (1980). 1

STATUTORY HISTORY

Prior to 1967, public bodies were immune from tort liability. Bacon v. Harris, 221 Or 553, 352 P.2d 472 (1960). The tort immunity of public bodies did not extend to employees of public bodies. Employees were, however, immune from tort liability arising from the performance of "discretionary functions." Jarrett v. Wills, 235 Or. 51, 54, 383 P.2d 995 (1963).

In 1967, the Tort Claims Act was passed. Or. Laws 1967, ch. 627. It made every public body " * * * liable for its torts (with specified exceptions not relevant hereto) and those of its officers, employes and agents (with specified exceptions not relevant hereto) acting within the scope of their employment or duties * * *." The 1967 Act in no way restricted the common law tort liability of public employees arising from nondiscretionary acts. The Act made public bodies derivatively liable in tort, up to a specified dollar amount, for tortious acts of their officers, agents and employees. Or. Laws 1967, ch. 627, §§ 2, 4.

The 1967 version of ORS 30.275(1) provided (section 5 of ch. 627):

"(1) Every person who claims damages from a public body for or on account of any loss or injury within the scope of this Act shall cause to be presented to the governing body of the public body within 45 days after the alleged loss or injury a written notice stating the time, place and circumstances thereof, and the amount of compensation or other relief demanded. * * * "

ORS 30.275(1) was amended in 1969 (Or. Laws 1969, ch. 429, § 3) to read as follows (a line is drawn through stricken language; new wording is italicized):

"(1) Every person who claims damages from a public body for or on account of any loss or injury within the scope of ORS 30.260 to 30.300 shall cause to be presented to (the-governing-body-of) the public body within (45) 180 days after the alleged loss or injury a written notice stating the time, place and circumstances thereof, and the amount of compensation or other relief demanded. Claims against the State of Oregon shall be presented to the state agency against whom the claim is made or to the Attorney General. Claims against any other public body shall be presented to a person upon whom process could be served in accordance with subsection (2) of ORS 15.080. * * *."

This 1969 amendment introduced the directive to whom claims against the state or other public bodies were to presented, but it did not require notice of claims against public employees.

The Tort Claims Act was comprehensively revised in 1975. Some amendments concerned claims against the state and against its employees, officers and agents. Other sections dealt with claims against any "local public body" (which was defined in section 11 now ORS 30.260(4) as " * * * any public body other than the state") and against the employees, agents or officers of such bodies.

Amendments dealing with claims against the state or its officers, agents or employees included provision for the creation of a Liability Fund to provide insurance or self-insurance for such claims (Sections 2 and 10, now ORS 278.100 and ORS 278.020(1)); appropriations for the Liability Fund (Section 5, now ORS 278.115); apportionment of contributions among state agencies (Section 4, now ORS 278.110(1)); and provision for investigation, defense, compromise and settlement of covered claims by the attorney general (Section 6, now ORS 278.120(1)). Specific directions were given to the attorney general to defend claims against state officers, agents and employees, and to direct payment of such claims from the Liability Fund (Section 6, now ORS 278.120(1)).

Similar but not identical amendments concerned claims against public bodies other than the state. Section 16 amended ORS 30.285 to require all public bodies to defend and indemnify their officers, employees or agents against tort claims " * * * arising out of an alleged act or omission occurring in the performance of duty." Section 17 amended ORS 30.290 and authorized local public bodies to " * * * compromise, adjust and settle tort claims against the public body or its officers, employes or agents acting within the scope of their employment * * * " (new matter in italics). Section 19 (now ORS 30.282(1)) authorized local public bodies to establish self-insurance funds or to procure insurance against the liability of the public body "and its officers, employes and agents."

The monetary limitation of liability, which previously had applied only to public bodies, was extended to officers, employees and agents of all public bodies. See ORS 30.270. 2 Section 14 amended 30.275(1) to read as follows (new matter is italicized):

"(1) Every person who claims damages from a public body for or on account of any loss or injury within the scope of ORS 30.260 to 30.300 shall cause to be presented to the public body within 180 days after the alleged loss or injury a written notice stating the time, place and circumstances thereof, and the amount of compensation or other relief demanded. Claims against the State of Oregon or a state officer, employe or agent acting within the scope of his employment or duties shall be presented to the Attorney General. Claims against any other public body shall be presented to a person upon whom process could be served in accordance with subsection (3) of ORS 15.080. * * * "

In 1977, further amendments were introduced at the request of the League of Oregon Cities. Members of the League's Task Force on Tort Liability appeared and testified. The testimony of one of the members, Bill Blair, was summarized as follows:

"Section 3 has been a considerable bugaboo to the insurance industry representatives, Mr. Blair advised. Again he feels it was basically an oversight made in 1975. Today there is no requirement for a claimant to give 180-day notice to a public body if all they are going to sue is the employe, and yet the government is required to indemnify its employes. This section clarifies the fact notice must be given if a claim will be filed against an employe and also the process."

The 1977 amendments to ORS 30.275(1) are set out in the margin. 3 The first sentence of the 1977 amendments made it clear that if a claim for damages is to be made against any "officer, employe or agent of a public body acting within the scope of his employment or duties," notice of such claim must be given to the public body. The second and third sentences name the person to whom notice should be delivered.

DISCUSSION

We are persuaded that the 1975 amendments to the Tort Claims Act did not require, as a condition to suing an individual state employee, agent or officer, the giving of notice under ORS 30.275(1). The 1975 amendments, as to all public bodies, were designed to achieve three common goals: (1) all public bodies were required, under section 16 (now ORS 30.285) to defend and indemnify their officers, employees or agents against tort claims "arising out of an alleged act or omission occurring in the performance of duty"; (2) the monetary liability of all public bodies and their officers, employees or agents on such claims was limited (Section 13, now ORS 30.270); and (3) all public bodies were authorized or directed to create liability funds against such liability (Sections 19, 2, 5 and 10, now ORS 30.282(1), ORS 278.100, ORS 278.115 and ORS 278.020(1)).

Beyond these common goals, however, specific duties were given to the attorney general alone relative to claims against the state, its employees, agents and officers. The attorney general had the duty to investigate the claims, defend state employees, agents or officers, negotiate, compromise and settle claims against state officers, agents or officers, and direct payment of such claims out of the Liability Fund (Section 6, now ORS 278.120(1)).

Our analysis of the 1975 amendments leads us to the conclusion that the provision in the second sentence of ORS 30.275, "Claims against the State of Oregon or a state officer, employe or agent acting within the scope of his employment or duties shall be presented to the attorney general," was intended not to create a notice requirement as a condition precedent to liability by the individual state employee, agent or officer, but to aid the attorney general in discharging the responsibilities imposed by other sections of the 1975 Act. The Court of Appeals decision creates an...

To continue reading

Request your trial
11 cases
  • Clarke v. Ohsu
    • United States
    • Oregon Supreme Court
    • December 28, 2007
    ...then analyze the issue at hand. A. Overview of the OTCA Before 1967, public bodies were immune from tort liability. Smith v. Pernoll, 291 Or. 67, 69, 628 P.2d 729 (1981). A person injured by the negligence of a public employee acting within the scope of his or her employment could pursue an......
  • Rogers v. Saylor
    • United States
    • Oregon Court of Appeals
    • February 5, 1988
    ...have been asserted against the individual defendants, who would not have been immune from liability before OTCA. See Smith v. Pernoll, 291 Or. 67, 628 P.2d 729 (1981). The narrow question is whether the state may impose limitations on the section 1983 remedy when the action is brought in a ......
  • Krieger v. Just
    • United States
    • Oregon Court of Appeals
    • April 20, 1993
    ...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......
  • Hughes v. City of Portland
    • United States
    • Oregon Court of Appeals
    • February 13, 2013
    ...it beyond the PIP reimbursement request. See Smith v. Pernoll, 45 Or.App. 395, 398, 608 P.2d 590 (1980), rev'd on other grounds,291 Or. 67, 628 P.2d 729 (1981) (“The policy behind the 180 day notice requirement is to afford the public body timely notice of the alleged tort to allow its offi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT