Is The Mere Giving Of A Tort Claim Notice The Equivalent Of Discovery Claim For Relief?
By Susan K. Eggum
On May 27, 1998, the Hon. Anna J. Brown signed an Order and Rule 67B Judgment dismissing on summary judgment common law negligence claims on the ground that, as a matter of law, the giving of a tort claim notice constitutes discovery of the plaintiffs' claims for statute of limitations purposes.Uruo v. Clackamas County, et. al., Multnomah County Circuit Court, Case No. 9703-02451. This ruling, if affirmed on appeal, will mark a significant change in law and will have a profound effect on the rights of litigants involved in public body tort disputes.
Plaintiffs brought this action for massive and permanent injuries suffered when their car was hit head-on by another car traveling the wrong way on the I-205 freeway. The collision occurred just south of the I-205 bridge. At the time of the collision, the driver of the car traveling the wrong way on the freeway was being chased by law enforcement personnel of the Oregon State Police ("OSP") and the Clackamas County Sheriff's Office ("CCSO"). The driver of the car being chased, according to one police report, was thrown from her vehicle and was "obviously" dead at the scene.
The accident occurred on June 7, 1995. On November 7, 1995, plaintiffs sent tort claims notices to OSP and CCSO, as well as a tort claim notice to the City of Oregon City ("Oregon City"). Oregon City had participated in the chase for a period of time, but had dropped out some time before the fatal collision. Thereafter, plaintiffs commenced a lengthy investigation of the chase and, based on that investigation, determined to raise claims against OSP and CCSO for common law negligence and for violations of Section 1983. Plaintiffs filed their original Complaint on March 28, 1997.
On December 18, 1997, as part of on-going discovery in the action, plaintiffs subpoenaed and deposed Oregon City police officer David Ratto. The testimony of this officer under subpoena disclosed that, just north of the Johnson Creek Blvd. Exit on I-205, Oregon City, with the assistance of the other law enforcement personnel, had accomplished a "textbook" box of the suspect's vehicle; that the box was "perfect"; that the suspect's vehicle was being pushed to the grassy meridian at "5 to 10 mph"; and that he saw the suspect vehicle stopping, when Oregon City's police chief, Bruce Jenness, gave an Order from a remote location, not to box the suspect vehicle. All personnel followed that order and the chase resumed.
Officer Ratto's signed police report, however, prepared just after the collision had occurred, omitted any reference whatsoever to this boxing maneuver. Of the 18 police reports that had been submitted just after the collision, only three reports mentioned this boxing maneuver and, of those three, the reports described the maneuver in passing as something officers were preparing to do, or had attempted to do. In addition, police reports indicated that, at or about the time of this boxing maneuver, the suspect vehicle was traveling at a high speed. At a high speed, a boxing maneuver is neither safe to execute nor reasonably likely to succeed. Furthermore, although police reports had disclosed Chief Jenness' no box order, nothing in any of the emergency dispatch tapes and transcripts, or the reports, had indicated that this no box order had called off a successful maneuver that was bringing the suspect to a stop.
Following Ratto's deposition, subsequent deposition testimony of another subpoenaed Oregon City officer indicated that, shortly after the collision, Chief Jenness had placed pressure on his officers not to "speak out" concerning matters related to Oregon City's role in the ultimate outcome of the chase. This officer also indicated that he was willing to come forward believing that, as a subpoenaed witness, he would have some protection if any retaliation by Chief Jenness were to occur.
As a result of certain deposition testimony, plaintiffs were in possession of facts to amend their Complaint to raise negligence and Section 1983 claims against Oregon City and Jenness. Plaintiffs were granted leave to do so and filed their Third Amended Complaint in January 1998, less than a month after discovering facts sufficient to demonstrate that Oregon City's conduct was tortious and a cause of the eventual collision.
Oregon City and Jenness then filed a motion for summary judgment contending that the claims were barred by the applicable two year statute of limitations in ORS 30.275(8). Moving defendants argued that, as a matter of law, plaintiffs' claims against Oregon City and Jenness accrued more than two years before plaintiffs named them as defendants. The thrust of defendants' opposition was that plaintiffs were on notice that the conduct of Oregon City was (allegedly) tortious and a cause of the eventual collision.
The Oregon Supreme Court recently held in discussing the standard applicable to a motion for summary judgment on statute of limitations grounds, that "[d]efendants, as the moving party, have the burden of showing that there are no genuine issues of fact and that they are entitled to judgment as a matter of law." Doe v. American Red Cross, 322 Or 502, 505 (1996). Defendants conceded in their motion that the discovery rule is applicable to the tort claims statute of limitations. The Oregon Supreme Court has repeatedly so held. The discovery rule is based upon fundamental concepts of fairness:
"It is manifestly unrealistic and unfair to bar a negligently injured party's cause of action before he has had an opportunity to discover that it exists. * * * We do not believe that the danger of spurious claims is so great as to necessitate the infliction of injustice on persons having legitimate claims which were undiscoverable by the exercise of ordinary care prior to the lapse of two years from the time of the act inflicting the injury."
Frohs v. Greene, 253 Or 1, 4 (1969). A plaintiff discovers her claim, and the statute of limitations begins to run, "when the plaintiff knows or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility that each of three elements (harm, causation and tortious conduct) exists." , , 322 Or at 512; , 318 Or 247, 256 (1994). "A plaintiff's discovery of the injury includes discerning the defendant's negligence in causing the harm." , 148 Or App 415, 419 (1997). A "mere suspicion" that the elements required for a claim are present does not start the statute of limitations running. , , 322 Or at 512. In sum, the statute of limitations begins to run when a reasonable person knows or in the exercise of ordinary care should have known of a substantial possibility that each of the three elements -- harm, causation and tortious conduct by the defendant -- exists. Doe, supra, 322 Or at 513; Gaston, supra, 318 Or at 256.
Tort claim notice is not subject to the requirements of Rule 17 that an attorney certify that the claim asserted is warranted under the law and that all factual allegations made are supported by evidence. ORCP 17C(3) and (4). The purpose of the tort claim notice requirement is to enable public bodies to promptly investigate claims which may be made against them. Urban Renewal Agency v. Lackey, 275 Or 35 (1976).
Although the argument had not been made in Oregon City's moving papers or reply, at the hearing on summary judgment, Judge Brown found that, as a matter of law, even if the record reasonably available to a claimant cannot reasonably be said to disclose the elements of the claim, the claim is barred if not filed within two years of giving tort claims notice:
"...the giving of tort claims notice and the two years for running of a negligence cause of action commence simultaneously. I think that requires, on my part, a conclusion that where tort claims notice was given, there is no more than two years to commence the action."
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"[Adams v. Oregon State Police]... leads to the inescapable conclusion that the law assumes one has discovered the claim in order to give tort claims notice ..."(1)
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"I think, as a matter of law, plaintiff is required to sue or not sue within two years after giving tort claims notice to a defendant, and that is the legislatively prescribed period of time within which an action shall be commenced even if the record reasonably available to that claimant who [has] given that tort claim notice could not reasonably be said to disclose the elements of the claim."
The trial court ruling eliminates the discovery rule in tort claim notice cases. If the ruling is affirmed on appeal, then plaintiffs who have given tort claim notices to public bodies will no longer be afforded the opportunity to demonstrate on summary judgment issues of fact as to whether they knew, or reasonably could have discovered, that the conduct of an entity sued more than two years from the date of injury was tortious and was a cause of their injury.
1. 1 Adams v. Oregon State Police, 289 Or 233 (1980), stands only for the proposition, in part, that neither the obligation to give tort claim notice nor the running of the statute of limitations shall be triggered until the claimant discovers the identity of the tortfeasor.