Smith v. Pernoll
| Decision Date | 27 May 1981 |
| Docket Number | No. A7804-05907,A7804-05907 |
| Citation | 628 P.2d 729,291 Or. 67 |
| Parties | Cyndi 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. . * |
| Court | Oregon 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.
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
Prior to 1967, public bodies were immune from tort liability. Bacon v. Harris, 221 Or. 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.
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).
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):
* * *."
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 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):
* * * " (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."
* * * "
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:
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.
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...
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