Chapter 30

30.010 to 30.100

NOTES OF DECISIONS

Parents of minor child may not recover compensation for loss of child’s society and companionship when child is negligently injured. Beerbower v. State ex rel Oregon Health Sciences, 85 Or App 330, 736 P2d 596 (1987), Sup Ct review denied

30.010

LAW REVIEW CITATIONS: 10 WLJ 217, 221, 222 (1974)

30.020

NOTES OF DECISIONS

In general

Under former provisions of this section providing for action for benefit of “dependents,” status of parenthood would not by itself establish dependency, and thus mother was not dependent of deceased son. Hines v. Hines, 32 Or App 209, 573 P2d 1260 (1978), Sup Ct review denied

Action against public body for wrongful death must be commenced pursuant to ORS 30.275 rather than this section. Housen v. Morse Brothers, 32 Or App 491, 574 P2d 361 (1978), Sup Ct review denied

Wrongful death products liability action is governed by two-year limitations period of Oregon Products Liability Act not three-year limitations period of wrongful death statute. Thompson v. Communications Technology, Inc. (CTI), 877 F2d 27 (9th Cir. 1989)

Where cause of action is within scope of wrongful death action, common law claim by beneficiary of decedent is not available. Horwell v. Oregon Episcopal School, 100 Or App 571, 787 P2d 502 (1990)

Where differential treatment is inherent in any statutory scheme which continues partial sovereign immunity and Oregon Constitution permits sovereign immunity, challenged statutory scheme which extends three-year statute of limitations to most wrongful death actions but only provides two-year statute of limitations when wrongful death was government-inflicted does not violate Article I, Section 20 of the Oregon Constitution. Van Wormer v. City of Salem, 309 Or 404, 788 P2d 443 (1990)

For death caused by product defect, time limitation for commencement of action under ORS 30.905 supersedes time limitation provided by this section. Kambury v. DaimlerChrysler Corp., 334 Or 367, 50 P3d 1163 (2002)

Except in limited range of cases, substantial factor standard of causation does not relieve plaintiff of burden to show death would not have occurred but for wrongful act or omission. Joshi v. Providence Health System of Oregon Corp., 198 Or App 535, 108 P3d 1195 (2005), aff’d 342 Or 152, 149 P3d 1164 (2006)

Action by personal representative

In wrongful death action allegedly resulting from medical malpractice, three year wrongful death limitation under this section applied rather than two year medical malpractice limitation under ORS 12.110. Baxter v. Zeller, 42 Or App 873, 601 P2d 902 (1979), Sup Ct review denied

Effect of this section is not to allow single claim for benefit of decedent’s estate but rather to allow action to be brought in name of personal representative to enforce individual claims of spouse and each child for pecuniary losses and losses of society, companionship, and services resulting from decedent’s death. Christensen v. Epley, 287 Or 539, 601 P2d 1216 (1979); Graves v. Tulleners, 205 Or App 267, 134 P3d 990 (2006)

Contributory negligence of sole beneficiaries to action can be asserted as defense. Robinson v. Children’s Services Division, 140 Or App 429, 914 P2d 1123 (1996)

Ability of estate to bring action is dependent on decedent having cause of action at time of death. Union Bank of California v. Copeland Lumber Yards, 213 Or App 308, 160 P3d 1032 (2007); Hobart v. Holt, 222 Or App 550, 194 P3d 820 (2008)

Action commenced within three years

Where dermatologist misdiagnosed mole on decedent’s scalp, injury occurred no earlier than time when mole began to grow, because that event was earliest time when decedent could have been aware of any harm traceable to physician. Repp v. Hahn, 45 Or App 671, 609 P2d 398 (1980), Sup Ct review denied

Action for death of child

Plaintiff was entitled to submit to jury issue whether defendant’s nurse was negligent in failing to properly monitor child’s heartbeat while its mother was in labor prior to delivery. Libbee v. Permanente Clinic, 268 Or 258, 518 P2d 636 (1974)

Action for wrongful death of viable unborn child can be maintained in Oregon. Libbee v. Permanente Clinic, 268 Or 258, 518 P2d 636 (1974)

Where there are surviving children of decedent, parent of decedent has cause of action for wrongful death independent of laws of intestate succession. Rake v. Boise Cascade, 43 Or App 767, 604 P2d 421 (1979), Sup Ct review denied

Nonviable fetus is not “person” for purposes of wrongful death action. LaDu v. Oregon Clinic, P.C., 165 Or App 687, 998 P2d 733 (2000), Sup Ct review denied

Action for death of spouse

Person with whom decedent maintained domestic relationship without marriage for five years was not “surviving spouse” within meaning of this section. Ore-Ida Foods v. Gonzalez, 43 Or App 393, 602 P2d 1132 (1979), Sup Ct review denied

Damages

Where decedent had agreed to perform valuable services for sole beneficiary of decedent’s estate without monetary compensation, measure of damages is pecuniary value of lost services. Goheen v. Gen. Motors Corp., 263 Or 145, 502 P2d 223 (1972)

In wrongful death action, plaintiff need not show heirs that would have survived decedent if he had lived normal life span in order to recover damages for pecuniary loss to decedent’s estate, so long as there are living heirs at time action is brought. Goddard v. Munson, 108 Or App 342, 816 P2d 619 (1991), Sup Ct review denied

Economic damages awarded for pecuniary loss in wrongful death actions are not limited to objectively verifiable monetary losses. Ingram v. Acands, Inc., 977 F2d 1332 (1992)

Child’s loss of “services” of deceased parent is item of economic damages. Kahn v. Pony Express Courier Corp., 173 Or App 127, 20 P3d 837 (2001), Sup Ct review denied

LAW REVIEW CITATIONS: 10 WLJ 217, 221-228, 296-306 (1974); 74 OLR 379 (1995)

30.030

NOTES OF DECISIONS

Under this section attorney fees incurred by personal representative in preparing and settling wrongful death action were properly charged against beneficiaries’ share of settlement proceeds as well as against personal representative’s share. Hughes v. White, 289 Or 13, 609 P2d 365 (1980)

Where there is no order of distribution under this section, ORS 30.060 does not establish appellate jurisdiction to determine whether there should have been such an order. Roe v. Pierce, 313 Or 228, 832 P2d 1226 (1992)

Where recipients of distribution are not limited to workers’ compensation claimants, distribution formula takes precedence over paying agency lien right established under workers’ compensation statute. Worthen v. Lumbermen’s Underwriting, 137 Or App 368, 904 P2d 1088 (1995)

LAW REVIEW CITATIONS: 10 WLJ 217, 229, 230 (1974)

30.040

NOTES OF DECISIONS

Court may consider collateral sources of income in apportioning amount to be distributed among multiple beneficiaries for pecuniary loss. Stanfield v. Stanfield, 192 Or App 447, 86 P3d 77 (2004), Sup Ct review denied

LAW REVIEW CITATIONS: 10 WLJ 217, 229, 230 (1974)

30.050

LAW REVIEW CITATIONS: 10 WLJ 217, 229, 230 (1974)

30.060

NOTES OF DECISIONS

Legislative intent is that beneficiaries of wrongful death claim be made parties to distribution proceeding. Hughes v. White, 289 Or 13, 609 P2d 365 (1980)

Where there is no order of distribution under 30.030, this section does not establish appellate jurisdiction to determine whether there should have been such an order. Roe v. Pierce, 313 Or 228, 832 P2d 1226 (1992)

LAW REVIEW CITATIONS: 10 WLJ 217, 229, 230 (1974)

30.070

NOTES OF DECISIONS

Under this section, beneficiaries of wrongful death claim are not entitled to notice and opportunity to participate in proceedings for approval of settlement. Hughes v. White, 289 Or 13, 609 P2d 365 (1980)

Approval by court is condition precedent to negotiation of legally binding agreement for settlement of wrongful death claim. Busch v. Farmington Centers Beaverton, 203 Or App 349, 124 P3d 1282 (2005), Sup Ct review denied

30.075

NOTES OF DECISIONS

Where person dies while having right to bring action for personal injury, time limit for personal representative to bring personal injury suit on behalf of estate is governed by this section instead of ORS 12.190. Giulietti v. Oncology Associates of Oregon, 178 Or App 260, 36 P3d 510 (2001)

LAW REVIEW CITATIONS: 10 WLJ 230 (1974)

30.115

NOTES OF DECISIONS

In general

Evidence of driver’s drinking substantial amount of beer, known to the guest, and nothing more, will support submission of contributory negligence to jury. Trotter v. McKellip, 265 Or 334, 509 P2d 31 (1973)

“Reckless disregard” means act or failure to act that creates obvious danger with high probability of serious physical harm. Sherman v. McAllister, 265 Or 630, 509 P2d 1176 (1973)

It is unnecessary for plaintiff to show that defendant was intoxicated in order to obtain an instruction which informs the jury that it may consider defendant’s prior drinking for whatever effect it might have had on the issues of lookout and control. Gatten v. Widman, 269 Or 112, 523 P2d 1007 (1974)

This section does not deny injured passengers equal protection of the law. Duerst v. Limbocker, 269 Or 252, 525 P2d 99 (1974); Reinholtz v. Ressler, 269 Or 249, 525 P2d 55 (1974); Salmon v. Miller, 269 Or 267, 525 P2d 104 (1974)

A plaintiff guest should be entitled to plead either or both intoxication or gross negligence and be allowed to have either or both theories submitted to the jury if supported by the evidence. Jenson v. Spencer, 269 Or 411, 525 P2d 153 (1974)

This section will not bar an action for loss of consortium with a spouse; overruling Whang v. Hong, 206 Or 125, 290 P2d 185, 291 P2d 270 (1955). Naber v. Thompson, 274 Or 309, 546 P2d 467 (1976)

Comparative fault statute, [former] ORS 18.470, applies to cases governed by this section. Johnson v. Tilden, 278 Or 11, 520 P2d 1188 (1977)

Guest passenger laws of British Columbia should have been applied where Oregon’s involvement was merely that of forum state and Oregon’s policy did not conflict with British Columbia policy. Fisher v. Huck, 50 Or App 635, 624 P2d 177 (1981)

Guest

There may be benefit to defendant (other than social) which keeps plaintiff from being guest, even though benefit does not qualify as payment because it is not “substantial benefit in a material or business sense.” Havlina v. Guaranty Chevrolet Co., 265 Or 562, 509 P2d 415 (1973)

If plaintiff was riding as “favor” to operator but only in sense that it was in furtherance of mutually desirable social relationship, plaintiff would be guest. Havlina v. Guaranty Chevrolet Co., 265 Or 562, 509 P2d 415 (1973)

Question of plaintiff’s status as guest passenger, due to the possibility of benefit conferred upon defendant, is properly left to jury. Ghafoor v. Taj, 267 Or 205, 516 P2d 75 (1973)

When plaintiff was swimming from defendant’s boat for the purpose of waterskiing behind it, she was still a guest passenger. Hankins v. Bates, 271 Or 676, 534 P2d 170 (1975)

Two elements must coexist to create host-guest relationship (1) absence of substantial benefit to host; and (2) invitation motivated by host’s spirit of hospitality. Baker v. Stutzman, 273 Or 530, 542 P2d 478 (1975)

Where trip of over 400 miles at night was undertaken solely at request of and accommodation for plaintiff, payment of $10 for gas did not remove plaintiff from guest passenger status. Fullerton v. White, 273 Or 649, 542 P2d 1017 (1975)

Person is not being “transported” where that person has made no voluntary contact with vehicle. Kruse v. Fitzpatrick, 278 Or 185, 563 P2d 680 (1977)

Where accident occurred in British Columbia but both host and guest were Oregon residents, guest passenger statute applied because, while Oregon had interest in protection of Oregon hosts, British Columbia’s interest in ability of its residents to obtain compensation was unaffected by application of Oregon law. Tower v. Schwabe, 284 Or 105, 585 P2d 662 (1978)

Section requiring airplane guest passengers to prove gross negligence to recover for injuries without placing corresponding burden on motor vehicle and other guest passengers does not violate Article I, section 20 of Oregon Constitution or Equal Protection or Due Process Clauses of Fourteenth Amendment. Urton v. Hudson, 101 Or App 147, 790 P2d 12 (1990), Sup Ct review denied

Gross negligence

Although it may be shown that occurrence was preceded by several acts of ordinary negligence, it is only when all of these acts combined with existing circumstances show a foolhardy attitude on part of driver that gross negligence has been established. Bottom v. McClain, 260 Or 186, 489 P2d 940 (1971)

Proof of drinking and erratic driving prior to an accident, plus ordinary negligence, can equal gross negligence. Gatten v. Widman, 269 Or 112, 523 P2d 1007 (1974)

Defendant’s failure to keep a lookout, even if found by jury, would have been insufficient evidence of gross negligence. Salmon v. Miller, 269 Or 267, 525 P2d 104 (1974)

If there is evidence of substantial consumption of alcohol or evidence of consumption of a smaller amount but corroboration by external manifestations of such influence, then inference that the defendant’s conduct was affected by his consumption is allowed. Jenson v. Spencer, 269 Or 411, 525 P2d 153 (1974)

Mere inadvertence, brief inattention or error in judgment as to proper speed does not constitute gross negligence without some basis for inferring acts were done with reckless mental state or conscious indifference to safety of others. Smith v. Barry, 37 Or App 319, 587 P2d 483 (1978)

Evidence that defendant driver was warned by his passenger to cease his reckless driving, that defendant considered warnings, rejected them and continued to drive in the same manner was sufficient to support a finding of gross negligence under this section. Wootten v. Dillard, 286 Or 129, 592 P2d 1021 (1979)

LAW REVIEW CITATIONS: 51 OLR 469, 471 (1972); 8 WLJ 38, 46, 47 (1972); 54 OLR 491-495 (1975); 13 WLJ 53 (1976); 16 WLR 125 (1979); 18 WLR 329 (1982)

30.140

NOTES OF DECISIONS

Prohibition against construction agreement requiring person to indemnify another against liability applies to prohibit requiring party to purchase additional insurance covering other party. Walsh Construction Co. v. Mutual of Enumclaw, 189 Or App 400, 76 P3d 164 (2003), aff’d 338 Or 1, 104 P3d 1146 (2005)

ATTY. GEN. OPINIONS: “Design” includes specifications, (1974) Vol 37, p 22

30.155 to 30.175

See annotations under ORS 31.205 to 31.220.

30.160

See annotations under ORS 31.210.

30.165

See annotations under ORS 31.215.

30.190

See annotations under ORS 30.198.

30.198

(formerly 30.190)

LAW REVIEW CITATIONS: 18 WLR 197 (1982); 28 WLR 455 (1992)

30.200

LAW REVIEW CITATIONS: 18 WLR 197 (1982)

30.260 to 30.300

NOTES OF DECISIONS

Dismissal of action for personal injuries was improper where based solely upon allegations of complaint and allegations did not state sufficient facts for court to determine whether particular governmental act was discretionary function or duty. Hulen v. City of Hermiston, 30 Or App 1141, 569 P2d 665 (1977)

Where plaintiff was mistakenly arrested following computer retrieval of identifying and locator data for individual of similar name, demurrer as to three of defendants was properly sustained because plaintiff failed to allege sufficient facts from which duty to plaintiff could be discerned, and summary judgment as to two of defendants was improperly allowed because affidavits did not reveal whether defendant’s acts were discretionary or ministerial. Murphy v. City of Portland, 36 Or App 745, 585 P2d 732 (1978)

Complaint allegation that plaintiff submitted application for building permit in proper form was sufficient to allow prosecution of claim against public officer. Dykeman v. State, 39 Or App 629, 593 P2d 1183 (1979)

Even if Children’s Services Division’s failure to follow required APA rulemaking procedures could constitute tort within meaning of these sections, CSD was immune from tort liability under ORS 30.265 (3)(f) where it terminated its benefit program without prior rulemaking procedures. Burke v. Children’s Services Division, 288 Or 533, 607 P2d 141 (1980)

Actions brought under 42 U.S.C. 1981 are subject to two-year statute of limitations of Tort Claims Act. Loiseau v. Dept. of Human Resources, 558 F Supp 521 (1983)

Where police officer pursued plaintiff in marked police car with lights and siren activated in area defendant was assigned to patrol, with no known motive other than to fulfill duty as police officer, trial court was correct in concluding that defendant was acting in course and scope of employment, despite plaintiff’s claim that defendant’s acts were excessive. Brungardt v. Barton, 69 Or App 440, 685 P2d 1021 (1984)

Plaintiff in 42 U.S.C. 1983 action brought under the Oregon Tort Claims Act against municipality for actions of its employes need not show that employes acted according to “custom or usage” as in federal §1983 action. Haase v. City of Eugene, 85 Or App 107, 735 P2d 1258 (1987)

Limitations of Oregon Tort Claims Act do not apply to claims brought in state court alleging violation of federal Civil Rights Act. Rogers v. Saylor, 306 Or 267, 760 P2d 232 (1988)

Mayor was immune from liability in tort claim under this section where former chief of police brought tort action in connection with her removal from office. Harrington v. City of Portland, 708 F Supp 1561 (D. Or. 1988)

Where plaintiffs brought action under 42 U.S.C 1983 and this section after defendant Children’s Services Division employees removed plaintiff’s child from home following reports of abuse, defendants are entitled to absolute immunity under this section for their discretionary acts as provided by ORS 30.265 (3). Tennyson v. Children’s Services Division, 308 Or 80, 775 P2d 1365 (1989)

There is no legislative purpose to extend definition of “agent” to control to include ostensible agent when doctrine of apparent authority is intended to achieve different purpose. Giese v. Bay Area Health District, 101 Or App 410, 790 P2d 1198 (1990), Sup Ct review denied

Because there was evidence that resident was not hospital’s agent in first place, fact that “loaned servant” doctrine does not eliminate agency relationship between hospital and employee who assists physician in surgery did not give plaintiff grounds for directed verdict. Shepard v. Sisters of Providence, 102 Or App 196, 793 P2d 1384 (1990)

COMPLETED CITATIONS: State Forester v. Umpqua R. Nav. Co., 258 Or 10, 478 P2d 631 (1970), cert. denied, 404 US 826 (1971)

ATTY. GEN. OPINIONS: Liability of members of the State Water Resources Board for damages of party adversely affected by reclassification, (1972) Vol 36, p 250; faculty members scope of employment, (1975) Vol 37, p 911; state liability for negligent operation by drivers of state-owned vehicles in authorized car pool, (1978) Vol 39, p 101; State Accident Insurance Fund Corporation as public body, (1980) Vol 40, p 344; Use of Liability Fund balances to pay cost of claims for which date of loss precedes authorized implementation date of state self-insurance program, (1981) Vol 41, p 329; Department of Veterans Affairs fee appraisers and inspectors as agents of state for purposes of tort liability, (1981) Vol 42, p 103; CPAs and PAs volunteering services to investigate and review complaints against accountancy licensees as employes or agents of public body, (1983) Vol 43, p 145; Cause of action under Oregon Tort Claims Act for declarative or injunctive relief or for violation of federal statute, (1985) Vol. 44, p 416; Oregon Medical Insurance Pool, board, members, employes and agents immune from tort claims, (1989) Vol 46, p 155; director and other state employes are covered by Oregon Tort Claims Act, (1989) Vol 46, p 155; various persons have immunity from prosecution for criminal acts committed in carrying out pool programs, (1989) Vol 46, p 155

LAW REVIEW CITATIONS: 53 OLR 371 (1974); 23 WLR 493, 507 (1987); 69 OLR 157 (1990); 38 WLR 657 (2002)

30.260

NOTES OF DECISIONS

Private, nonprofit corporation in business of providing hospital services which employed medical residents through contractual arrangement with University of Oregon Health Sciences Center did not thereby become “instrumentality” of the state. Themins v. Emanuel Lutheran Charity Bd., 54 Or App 901, 637 P2d 155 (1981), Sup Ct review denied

An irrigation district is a public body. Miller v. Grants Pass Irrigation Dist., 297 Or 312, 686 P2d 324 (1984)

Breach of fiduciary duty claim is subject to tort claim notice requirements. Hanggi v. Hartford Fire Ins. Co., 132 Or App 601, 889 P2d 365 (1995)

Violation of federal labor laws is tort of failure to comply with statutory duty, not breach of duty arising out of employment contract. Butterfield v. State of Oregon, 163 Or App 227, 987 P2d 569 (1999), Sup Ct review denied

Action for money had and received concerns legally imposed duty arising from quasi-contract and, thus, is not subject to Oregon Tort Claims Act. Comcast of Oregon II, Inc. v. City of Eugene, 346 Or 238, 209 P3d 800 (2009)

ATTY. GEN. OPINIONS: Tort Claims Act coverage of individuals contracting with CSD to provide medical, etc. services for students at juvenile training schools, (1980) Vol 41, p 11

30.265

NOTES OF DECISIONS

Public officers and employes are generally immune from liability for alleged negligence in planning and designing highways. Smith v. Cooper, 256 Or 485, 475 P2d 78 (1970); Leonard v. Jackson, 6 Or App 613, 488 P2d 838 (1971), Sup Ct review denied

Exception for tort claims by persons covered by workers’ compensation laws was constitutional. Edwards v. State Military Dept., 8 Or App 620, 494 P2d 891 (1972), Sup Ct review denied; Millspaugh v. Port of Portland, 65 Or App 389, 671 P2d 743 (1983), Sup Ct review denied; Taylor v. Lane County, 213 Or App 633, 162 P3d 356 (2007), Sup Ct review denied

Determination of whether public employee is acting in discretionary function or in ministerial function is a question of law to be decided by court. Weaver v. Lane County, 10 Or App 281, 499 P2d 1351 (1972)

Maintenance of highway is not “discretionary function or duty.” Lanning v. State Hwy. Comm., 15 Or App 310, 515 P2d 1355 (1973)

Decision to erect highway warning signs is discretionary function for which there is immunity under paragraph (2)(d). Turrini v. Gulick, 16 Or App 167, 517 P2d 1230 (1974), Sup Ct review denied

The act of selecting a site for a public gathering is a discretionary function for which no liability may attach; however, once selected the duty to maintain the site in a safe condition is a ministerial function for which liability may attach. Baker v. State Bd. of Higher Educ., 20 Or App 277, 531 P2d 716 (1975), Sup Ct review denied

Maintenance of its fairgrounds by the county was clearly a ministerial rather than a discretionary duty. Baker v. State Bd. of Higher Educ., 20 Or App 277, 531 P2d 716 (1975), Sup Ct review denied

Immunity from liability for claim in connection with assessment and collection of taxes encompasses any manifestation of power of taxation. Hall v. City of Hillsboro, 29 Or App 161, 562 P2d 597 (1977)

In suit under Oregon Tort Claims Act burden is on defendant to plead immunity, and plaintiff has no burden to plead in his complaint that conduct complained of is not immune from liability. Hulen v. City of Hermiston, 30 Or App 1141, 569 P2d 665 (1977)

The scope of a public employe’s or agent’s common law immunity and the immunity afforded by this section are the same. Pickett v. Washington County, 31 Or App 1263, 572 P2d 1070 (1977)

City decision holding up processing of pending applications for building permits in order to establish Design Review Committee was discretionary and thus demurrer to complaint alleging pecuniary damage from delay in processing was properly sustained. Robert Randall Co. v. City of Milwaukie, 32 Or App 631, 575 P2d 170 (1978)

Where large boulder which projected over shoulder of county roadway and onto traveled portion of road was consequence of initial design of road, placement of warning sign with respect to boulder was discretionary act, and county was immune from motorist’s suit alleging negligent failure to post warning sign. Mayse v. Coos County, 35 Or App 779, 583 P2d 7 (1978)

In wrongful death action resulting from auto collision at intersection designed and maintained by county and allegedly identified by county as hazardous condition for which county authorized minor changes in traffic control, allegations of plaintiffs complaint were not specific enough to determine whether county’s alleged delay in changes was conduct falling within discretionary act exception to this section. Moody v. Lane County, 36 Or App 231, 584 P2d 335 (1978)

Design and installation of traffic signals were discretionary acts, and city was immune from liability for collision which occurred at intersection where driver was able to see green as well as red light from his position. Gallison v. City of Portland, 37 Or App 145, 586 P2d 393 (1978), Sup Ct review denied

Operation or application of traffic signal constitutes exercise of discretionary function for which public bodies are immune. Morris v. Oregon State Transportation Comm. 38 Or App 331, 590 P2d 260 (1979)

County may be sued if it, or its officers, employes and agents acting within scope of their employment or duties, deprive person of any rights, privileges or immunities secured by United States Constitution. Rosacker v. Multnomah County, 43 Or App 583, 603 P2d 1216 (1979), Sup Ct review denied

In damage action for fraudulent misrepresentation, college personnel who assured student that certain material and equipment would be available for use in instruction were not performing immune “discretionary function.” Dizick v. Umpqua Community College, 287 Or 303, 599 P2d 444 (1979)

Police officer was not immune, as matter of law, from liability for conversion where jury could have found that he ate most of sturgeon which he seized under mistaken impression that it had been illegally caught, since such an act would not be within scope of his employment or duties. Dickens v. DeBolt, 288 Or 3, 602 P2d 246 (1979)

Fire chief was immune from any liability for inspection of movie theater, during regularly scheduled showing of movie, to discover fire safety violations as this was discretionary act within scope of his employment or duties. Disney-Marine Co., Inc. v. Webb, 47 Or App 985, 615 P2d 1125 (1980)

Where plaintiff, in action against county for death of her horses in fire while horses were stabled at county fairgrounds, alleged that county failed to equip barn with alarm system and adequate fire-fighting equipment, county’s decision on those matters was discretionary and it was immune from any liability for those failures. Dundas v. Lincoln County, 48 Or App 1025, 618 P2d 978 (1980)

Even if Children’s Services Division’s failure to follow required APA rulemaking procedures could constitute tort within meaning of Tort Claims Act, CSD was immune from tort liability where it terminated its benefit program without prior rulemaking procedures. Burke v. Children’s Services Division, 288 Or 533, 607 P2d 141 (1980)

Highway Division was not immune from liability for its arrangement of traffic lights and design of shielding for traffic lights. Stevenson v. State ex rel Dept. of Transportation, 290 Or 3, 619 P2d 247 (1980)

Alleged negligence of county’s employes in failing to inspect, maintain and repair steel grid surface of bridge was not discretionary act, immune from tort liability, even though technical expertise may have been required. Saracco v. Multnomah County, 50 Or App 145, 622 P2d 1118 (1981)

Immunity from liability for performance of discretionary duty is inapplicable to acts of employment discrimination. Clackamas Co. Fire Protection Dist. v. Bureau of Labor, 50 Or App 337, 624 P2d 141 (1981), Sup Ct review denied

Applicability of immunity for performance or nonperformance of discretionary act depends not on “discretionary” nature of overall function of public body, but degree of discretion, if any, allowed individual defendant whose immunity is at issue. Bradford v. Davis, 290 Or 855, 865 P2d 1376 (1981)

Acts of defendant, state agency, in issuing and overseeing certificate of approval for day care facility were not, as matter of law, discretionary, allowing immunity from liability under this section, absent showing that decisions were matters of policy. Brasel v. Childrens Services Div., 56 Or App 559, 642 P2d 696 (1982)

Immunity provision in former version of this section did not apply to city’s invalid attempt, by charter provision, to exempt itself from liability for its torts. Brookwell v. Frakes, 56 Or App 687, 642 P2d 1183 (1982), Sup Ct review denied

Tort Claims Act bars recovery for injuries suffered by prisoner shot by prison employes during riot. Albers v. Whitley, 546 F Supp 726 (1982)

Allegations that agency did not develop adequate procedures to implement underlying policy did not, on their face, pertain to discretionary governmental acts and trial court did not err by denying motion to strike. Pendergrass v. State of Oregon, 66 Or App 607, 675 P2d 505 (1984)

Parole Board is immune from tort liability for paroling inmate under statutory scheme existing at time of decisions in 1974 and 1977. Hendricks v. State, 67 Or App 453, 678 P2d 759 (1984), Sup Ct review denied

Failure of city to inspect and repair sidewalks is discretionary act and immune from liability. Sager v. City of Portland, 68 Or App 808, 684 P2d 600 (1984), Sup Ct review denied

Where agency authority to act is discretionary, agency has no mandatory duty to consider whether to take action. Miller v. Grants Pass Irrigation Dist., 297 Or 312, 686 P2d 324 (1984)

Where public body exercises consideration of alternative methods of fulfilling non-discretionary duty to act, body is immune to suit for failure to make discretionary choice among alternatives before injury occurred. Miller v. Grants Pass Irrigation Dist., 297 Or 312, 686 P2d 324 (1984)

Where allegation is that SAIF conspired with employer to eliminate worker’s entitlement to benefits, there is no discretionary act immunity. Crosby v. SAIF, 73 Or App 372, 699 P2d 198 (1985)

City’s failure to inspect sidewalk on which plaintiff fell was discretionary act and city was immune from liability for fall. Ramsey v. City of Salem, 76 Or App 29, 707 P2d 1295 (1985)

Employer of injured employe may not recover indemnity from alleged negligent public body when public body has no liability whatsoever to injured employe due to this section. Jones Oregon Stevedoring v. Port of Portland, 82 Or App 608, 729 P2d 582 (1986), Sup Ct review denied

Where plaintiff sued county, claiming court clerk negligently failed to docket divorce decree and accompanying property settlement agreement as judgment, clerk and county were protected by judicial immunity because clerk was acting under instructions of judge in proper judicial capacity. Praggastis v. Clackamas County, 87 Or App 378, 742 P2d 669 (1987), aff’d 305 Or 419, 752 P2d 302 (1988)

In absence of evidence that decision regarding installation of warning signs at intersection was made as policy judgment by person or body with governmental discretion, decision is not immune from liability. Little v. Wimmer, 303 Or 580, 739 P2d 564 (1987)

APA provided exclusive procedure for review, where alleged tort liability was premised on finding that Highway Division’s order in other than contested case was improper. Clarke Electric, Inc. v. State Highway Division, 93 Or App 693, 763 P2d 1199 (1988)

Exemption from liability for claims of injury or death by person covered under workers’ compensation law does not violate Privileges and Immunities Clause of Oregon Constitution. Jungen v. State of Oregon, 94 Or App 101, 764 P2d 938 (1988), Sup Ct review denied

This section does not violate section 20, Article I, Oregon Constitution. Ward v. Romig, 101 Or App 235, 790 P2d 44 (1990); Gunn v. Lane County, 173 Or App 97, 20 P3d 247 (2001), Sup Ct review denied

Actions of employee who fails to follow official policy are not immune as performance of discretionary function or duty. Egner v. City of Portland, 103 Or App 623, 798 P2d 721 (1990)

City ordinances that imposed concomitant responsibility and liability on abutting property owners do not relieve city of liability for nondiscretionary duty to maintain visibility of stop sign. Pritchard v. City of Portland, 310 Or 235, 796 P2d 1184 (1990)

Police officer’s decision to pursue vehicle was not policy judgment that would render decision discretionary and immune from liability. Lowrimore v. Dimmitt, 310 Or 291, 797 P2d 1027 (1990); Dee v. Pomeroy, 109 Or App 114, 818 P2d 523 (1991); Hawkins v. City of La Grande, 315 Or 57, 843 P2d 400 (1992)

When statute is discretionary by its terms, public entity is immune from liability if entity does not take action pursuant to statute. Fielding v. Heiderich, 113 Or App 280, 832 P2d 1244 (1992)

Where claim included allegations of negligence in city’s implementation or performance of inspection and maintenance program, discretionary immunity did not apply. Tozer v. City of Eugene, 115 Or App 464, 838 P2d 1104 (1992)

Statute expressly retains state’s immunity from tort for claims alleging unconstitutional taxation. Anderson v. Dept. of Rev., 313 Or 1, 828 P2d 1001 (1992)

Where principal was acting as responsible policy-making official, decisions concerning number and location of security personnel within high school were classic policy choices entitled to discretionary immunity. Mosley v. Portland School Dist. No. 1J, 315 Or 85, 843 P2d 415 (1992)

Probation officer entitled to judicial immunity against negligent supervision claim because officer carried out directive of court and acted within authority granted by court. Jones-Clark v. Severe, 118 Or App 270, 846 P2d 1197 (1993)

Worker was entitled to pursue employment related intentional tort claim against state even though worker was person covered by workers’ compensation coverage. Moustachetti v. State of Oregon, 122 Or App 598, 858 P2d 487 (1993), aff’d on other grounds, 319 Or 319, 877 P2d 66 (1994)

City was immune from negligence claim based on failure to develop inspection and maintenance program. Bakr v. Elliott, 125 Or App 1, 864 P2d 1340 (1993), Sup Ct review denied

Ordinance providing for indemnity by joint tortfeasor did not constitute illegal grant of immunity to local government where indemnity obligation under ordinance included amount of any contribution payable by local government to joint tortfeasor who was indemnity obligor. Simons v. City of Portland, 132 Or App 74, 887 P2d 824 (1994)

Allegation of same facts underlying workers’ compensation claim did not create employer immunity to tort claim for separate injury. Moustachetti v. State of Oregon, 319 Or 319, 877 P2d 66 (1994)

General maritime law does not preempt or abrogate state sovereign immunity. Ortega v. Port of Portland, 147 Or App 489, 936 P2d 1037 (1997)

Grant of immunity is constitutional where plaintiff is not left wholly without remedy for injury. Brentano v. Marion County, 150 Or App 538, 946 P2d 705 (1997); Gunn v. Lane County, 173 Or App 97, 20 P3d 247 (2001), Sup Ct review denied

Public body immunity from liability applies only to financial liability for damages and does not preclude grant of injunctive relief against public body. Penland v. Redwood Sanitary Sewer Service Dist., 327 Or 1, 956 P2d 964 (1998)

Existence of common law nuisance may permit injunctive relief against public body, but does not overcome immunity given public body for discretionary acts. Mark v. Dept. of Fish and Wildlife, 158 Or App 355, 974 P2d 716 (1999), Sup Ct review denied

Judicial immunity does not apply where jurisdiction is absent, but does apply where jurisdiction exists and is erroneously exercised. Heusel v. Multnomah County District Attorney’s Office, 163 Or App 51, 989 P2d 465 (1999)

To qualify for discretionary immunity, government function or duty must result from exercise of judgment involving public policy by public body or person with authority or responsibility to make policy choice. Ramirez v. Hawaii T and S Enterprises, Inc., 179 Or App 416, 39 P3d 931 (2002), Sup Ct review denied

Public body immunity provided by workers’ compensation coverage applies for claims arising from type of common law legal injury or wrong for which legislature intended coverage to provide substitute remedy. Stone v. Finnerty, 182 Or App 452, 50 P3d 1179 (2002), modified 184 Or App 111, 55 P3d 531 (2002), Sup Ct review denied

Where workers’ compensation law provides remedy for type of legal injury or wrong suffered, public body is immune from liability notwithstanding that certain types of damage arising out of legal injury or wrong are not compensable under workers’ compensation law. Stone v. Finnerty, 182 Or App 452, 50 P3d 1179 (2002), modified 184 Or App 111, 55 P3d 531 (2002), Sup Ct review denied

Discretionary immunity defense requires evidence regarding actual consideration process by which decision was reached. Sande v. City of Portland, 185 Or App 262, 59 P3d 595 (2002)

Decision is discretionary decision entitled to immunity if within nature and scope of duties delegated to decision maker, regardless of office or level of position held by decision maker. Garrison v. Deschutes County, 334 Or 264, 48 P3d 807 (2002)

Limitation on cause of action for tort committed by employee of public body does not, on its face, violate provisions of Oregon Constitution regarding remedy for injury, trial by jury or granting of privileges and immunities. Jensen v. Whitlow, 334 Or 412, 51 P3d 599 (2002)

Waiver of state immunity against suit does not waive prohibition under United States Constitution against person suing own state in federal court. Estate of Pond v. Oregon, 322 F. Supp. 2d 1161 (D. Or. 2004)

Public body is immune from claims covered by workers’ compensation law regardless of whether public body was employer of injured party. Taylor v. Lane County, 213 Or App 633, 162 P3d 356 (2007), Sup Ct review denied

Determination that existing policy has been complied with is not policy decision entitled to discretionary immunity. John v. City of Gresham, 214 Or App 305, 165 P3d 1177 (2007)

Whether limited recovery against public body is adequate substitute for common law action against public employee is subject to “as applied” comparison between recovery limit and amount of damages recoverable at common law. Clarke v. Oregon Health Sciences University, 343 Or 581, 175 P3d 418 (2007)

For public body to be subject to tort for actions of agent, public body must have same ability to control physical details of agent performance that public body has to control physical details of employee performance. Vaughn v. First Transit, Inc., 346 Or 128, 206 P3d 181 (2009)

If plaintiff is injured by person in scope of that person’s duties as employee of more than one public body, then plaintiff can bring action against each employer. Ackerman v. OHSU Medical Group, 233 Or App 511, 227 P3d 744 (2010)

ATTY. GEN. OPINIONS: Public agency’s liability for injury to member of public during evacuation drill at Trojan nuclear plant, (1980) Vol 40, p 180; Costs of defending and indemnifying county-funded staffs of district attorneys and circuit and district court judges under state Tort Liability Program, (1980) Vol 41, p 90; inapplicability of constitutional provision requiring payments based on government regulations restricting use of property, (2001) Vol 49, p 284

LAW REVIEW CITATIONS: 22 WLR 147 (1986); 23 WLR 493, 507 (1987); 67 OLR 859 (1988); 74 OLR 379 (1995); 38 WLR 657 (2002)

30.270

NOTE: Repealed as of July 1, 2009

NOTES OF DECISIONS

Personal representative of decedent’s estate who prosecutes claim under Oregon Tort Claims Act for wrongful death acts only as nominal party and is not single “claimant” subject to $100,000 limitation on damages. Christensen v. Epley, 287 Or 539, 601 P2d 1216 (1979)

Right to assert dollar limitation on tort liability under this section was not waived by governmental defendant who failed to assert it before judgment. Espinosa v. Southern Pacific Transportation, 50 Or App 561, 624 P2d 162 (1981), aff’d 291 Or 853, 635 P2d 638 (1981)

Limitation on amount of liability under this section is not waived by governmental defendant purchasing liability insurance in excess of dollar limitation. Espinosa v. Southern Pacific Transportation, 291 Or 853, 635 P2d 638 (1981); Southern Pacific Transportation v. School District No. 40, 291 Or 867, 635 P2d 645 (1981)

Since if decedent leaves heirs, personal representative of estate has no authority to maintain action for wrongful death against tortfeasor, personal representative on behalf of estate does not become independent claimant for purpose of recovery of damages. Mendez v. State of Oregon, 64 Or App 581, 669 P2d 364 (1983)

$100,000 public-body damage limitation does not violate Article IV, section 24, Oregon Constitution. Hale v. Port of Portland, 308 Or 508, 783 P2d 506 (1989)

This section does not violate Article I, section 10 of the Oregon Constitution because it does not deprive plaintiff of any preexisting remedy against Port of Portland and although it alters plaintiff’s remedy against City of Portland, plaintiff is still left with substantial remedy. Hale v. Port of Portland, 308 Or 508, 783 P2d 506 (1989)

Plaintiff’s settlement with joint tortfeasor does not extinguish claim against public body or public employees whose liability is limited unless settlement equals or exceeds actual damages suffered by plaintiff. Dee v. Pomeroy, 109 Or App 114, 818 P2d 523 (1991), Sup Ct review denied

Pecuniary loss based on estimated net future earnings of decedent is analogous to claim for impaired future earning capacity under [former] ORS 18.560 and therefore is special damage. Neher v. Chartier, 142 Or App 534, 923 P2d 653 (1996), Sup Ct review denied

Limitation on “total award of special damages” is limitation on special damages awarded to individual claimant, not limitation on aggregate amount awarded to all claimants. Neher v. Chartier, 142 Or App 534, 923 P2d 653 (1996), Sup Ct review denied

Because recovery of damages against government is limited by statute, injured party is not “legally entitled to recover” excess damages through insurance providing uninsured motorist coverage required by ORS 742.504. Surface v. American Spirit Insurance Cos., 154 Or App 696, 962 P2d 717 (1998), aff’d 335 Or 356, 67 P3d 938 (2003)

Prohibition on imposing punitive damages against public body overrides availability of punitive damages under [former] ORS 659.121 in unlawful employment practice actions. Faro v. Highway Division, 326 Or 317, 951 P2d 716 (1998)

Attorney fees are not subject to limitation imposed on liability for general and special damages. Anglin v. Dept. of Corrections, 160 Or App 463, 982 P2d 547 (1999), Sup Ct review denied

Where multiple tortfeasors are involved, maximum limit on liability of public body for general and special damages is applied only to amount determined to be public body’s share of total general and special damages awarded. Tenbusch v. Linn County, 172 Or App 172, 18 P3d 419 (2001), Sup Ct review denied

Limitation on liability for “claims for damage to or destruction of property” does not apply to inverse condemnation claim. Vokoun v. City of Lake Oswego, 189 Or App 499, 76 P3d 677 (2003), Sup Ct review denied

Where two claimants hold damaged or destroyed property as tenancy by entireties, each claimant is entitled to one-half of judgment amount, with amount awarded to each claimant being separately subject to statutory limit on liability for property damage or destruction. McCormick v. City of Portland, 191 Or App 383, 82 P3d 1043 (2004), Sup Ct review denied

Damages for loss of services and loss of support may be claimed by multiple beneficiaries who may each recover up to statutory limitations on damages. Miller v. Tri-Met, 241 Or App 86, 250 P3d 27 (2011), Sup Ct review denied

ATTY. GEN. OPINIONS: Indemnification when there is a judgment in excess of limitations, (1975) Vol 37, p 911; in pari materiaconstruction of ORS 30.285, with this section, (1977) Vol 38, p 1565

LAW REVIEW CITATIONS: 69 OLR 153 (1990); 31 WLR 179 (1995)

30.275

NOTES OF DECISIONS

It is not necessary that notice under this section be pleaded in the complaint. Baker v. State Bd. of Higher Educ., 20 Or App 277, 531 P2d 716 (1975), Sup Ct review denied

Where attorney for state agency files action against person having claim under Oregon Tort Claims Act against agency, serving attorney with counterclaim containing required allegations is sufficient to meet notice requirement. Urban Renewal Agency v. Lackey, 275 Or 35, 549 P2d 657 (1976)

Minor’s filing of notice was timely under 90-day extension of this section, notwithstanding she did not allege causal connection between delayed filing and minority status. Pickett v. Washington County, 31 Or App 1263, 572 P2d 1070 (1977)

Action against public body for wrongful death must be commenced pursuant to this section and not ORS 30.020. Housen v. Morse Brothers, 32 Or App 491, 574 P2d 361 (1978), Sup Ct review denied

Complaint describing security interest brought 78 days following judicial sale was sufficient notice, and separate allegation of timely notice was unnecessary, as complaint filed within 180 days on its face satisfies notice requirement. Yunker v. Mathews, 32 Or App 551, 574 P2d 696 (1978), Sup Ct review denied

Third party complaint in Tort Claims Act action alleging only that third-party defendant was sole and proximate cause of plaintiff’s damages and not alleging any relationship between third party plaintiff and third party defendant or their relative duties, faults or liabilities was insufficient. Page v. Cameron, 33 Or App 441, 576 P2d 837 (1978), Sup Ct review denied

Limitation period of this section barred damage action for death of dormitory resident where action was based on warranty of habitability theory which incorporated general standard of care. Villalobos v. Univ. of Oregon, 47 Or App 103, 614 P2d 107 (1980), Sup Ct review denied

Where plaintiff-landowner brought proceeding against county for herbicide spraying which destroyed plaintiff’s potato crop, statute of limitations in this section did not begin to run until plaintiff discovered that young potato plants were deformed. Dowers Farms v. Lake County, 288 Or 669, 607 P2d 1361 (1980)

Where Oregon State Police towed plaintiff’s car but denied responsibility for towing, 180-day notice period began to run when plaintiff discovered, upon return of vehicle, that Oregon State Police were in fact responsible for injury. Adams v. Oregon State Police, 289 Or 233, 611 P2d 1153 (1980)

Where notice of claim presented on December 22, 1977 alleged that plaintiff’s injury or loss resulting from county’s failure to maintain its roads occurred from “time to time” beginning in 1974 and thereafter and action was brought in January of 1978, continuing tort was alleged and both notice and commencement of action were timely. Holdner v. Columbia County, 51 Or App 605, 627 P2d 4 (1981)

Notice of claim alleging that damage to plaintiff’s property arose from negligent maintenance of county’s roads, was sufficient to advise county of its negligent maintenance of adjacent ditches. Holdner v. Columbia County, 51 Or App 605, 627 P2d 4 (1981)

Under former version of this section, presentation by third party defendant of its notice of claim against state agency for contribution and indemnity could not be used by plaintiff to satisfy notice of claim requirements. Leonard v. State Highway Dept., 52 Or App 923, 630 P2d 85 (1981), Sup Ct review denied

Presentation of notice of claim to county’s insurance adjuster did not comply with requirements of this section. Riddle v. Cain, 54 Or App 474, 635 P2d 392 (1981), Sup Ct review denied

Private, nonprofit corporation in business of providing hospital services which employed medical residents through contractual arrangement with University of Oregon Health Sciences Center did not thereby become “instrumentality” of the state entitled to tort claim notice under this section. Themins v. Emanuel Lutheran Charity Bd., 54 Or App 901, 637 P2d 155 (1981), Sup Ct review denied

Time extension for commencement for actions provided by ORS 12.160 applies to actions against public bodies. Bradford v. Davis, 290 Or 855, 626 P2d 1376 (1981)

Under former version of this section, notice of claim provisions did not apply to public employes sued in their individual capacity. Bradford v. Davis, 290 Or 855, 626 P2d 1376 (1981)

Where plaintiff brought suit against state employees as private individuals but did not join state as defendant, plaintiff was not required to present notice of claim to state. Smith v. Pernoll, 291 Or 67, 628 P2d 729 (1981); Krieger v. Just, 319 Or 328, 876 P2d 754 (1994)

Where notice of claim required by this section was actually received by statutorily designated official within proper time period, notice was valid even though sent by first class mail. Brown v. Portland School Dist. No. 1, 291 Or 77, 628 P2d 1183 (1981)

Action for deprivation of civil rights alleging harassment by local government entities was controlled by two-year statute of limitations of Tort Claims Act. Kosikowski v. Bourne, 659 F2d 105 (1981)

Where notice of claim required by this section was actually received by the proper official, notice was valid even though the letter used technically improper form of address. Webb v. Highway Division, 293 Or 645, 652 P2d 783 (1982)

Letter informing defendant that investigation was underway and requesting medical reports setting forth physician’s findings, diagnosis, prognosis and causation of plaintiff’s resulting condition failed to identify any claim or intent to make claim by plaintiff against defendant and therefore failed to fulfill notice requirements of this section. Robinson v. Shipley, 64 Or App 794, 669 P2d 1169 (1983), Sup Ct review denied

Under version of this statute in effect at time plaintiff’s cause of action arose in January, 1979, and procedural rules then in effect but since repealed, plaintiff’s notice of intent to file claim under this section was deemed to be made on day deposited in post office and complied with 180-day time limitation. Shervey v. Clackamas County, 66 Or App 886, 675 P2d 1124 (1984)

Requirement that claimant “shall cause [notice] to be presented to public body within 180 days” requires that public body receive notice within 180 days. McDonald v. CSD, 71 Or App 751, 694 P2d 569 (1984), Sup Ct review denied

This section does not violate equal protection by differentiating between governmental and private parties in statute of limitations. Nored v. Blehm, 743 F2d 1386 (1984)

Contribution claim notice by defendant pursuant to [former] ORS 18.440 is insufficient to make state liable in tort to claimant. Beaver v. Pelett, 299 Or 664, 705 P2d 1149 (1985); Mitchell v. Sherwood, 161 Or App 376, 985 P2d 870 (1999), Sup Ct review denied

Plaintiffs did not waive right to replead and allege diligence in trying to discover cause of injury where trial court judgment was based solely on ground that notice of claim had not been timely rather than that plaintiffs had failed to plead diligence. Siegfried v. Pete Wilson Realty, 79 Or App 670, 720 P2d 392 (1986)

Dismissal of civil rights action for wrongful arrest was proper where both general tort statute and Oregon Tort Claims Act statute provide for two-year limitations period, though limitation of general tort statute should have been applied. Davis v. Harvey, 789 F2d 1332 (1986)

Where minor child, allegedly injured by negligence of public body, had not yet filed negligence claim but sought declaratory relief to determine whether potential tort claim was time-barred or whether minor’s disability pursuant to ORS 12.160 suspended Statute of Limitations, complaint seeking declaratory relief did not present justiciable controversy. Lawson v. Coos Co. Sch. Dist. No. 13, 81 Or App 358, 724 P2d 943 (1986)

Filing of claim in Tax Court is not “commencement of an action on the claim” within meaning of this section. Sanok v. Grimes, 88 Or App 536, 746 P2d 725 (1987), aff’d on other grounds, 306 Or 259, 760 P2d 228 (1988)

Accrual, under this section, of action on negligence theory for damage to plaintiffs’ crops caused by failure of timely water delivery by defendant irrigation district occurred with knowledge by plaintiffs of facts giving rise to claim and did not await awareness by plaintiffs of negligence on part of defendant. Duyck v. Tualatin Valley Irrigation Dist., 304 Or 151, 742 P2d 1176 (1987)

Plaintiff’s status as minor did not, by operation of ORS 12.160, toll two-year time limit for commencing action. Lawson v. Coos Co. Sch. Dist. #13, 94 Or App 387, 765 P2d 829 (1988)

“Advance payment” would not, by operation of ORS 12.155, toll two-year time limit for commencing action. Lawson v. Coos Co. Sch. Dist. #13, 94 Or App 387, 765 P2d 829 (1988)

Notice requirements of Oregon Torts Claims Act do not apply to claims based on federal claim. Sanok v. Grimes, 306 Or 259, 760 P2d 228 (1988)

Statutory objective of this section is to limit liability of public bodies and their officers, employees and agents. Giese v. Bay Area Health District, 101 Or App 410, 790 P2d 1198 (1990), Sup Ct review denied

Under former ORS 133.739 injury occurs when communication is intercepted and two-year period runs from that date. Gill v. City of Eugene, 103 Or App 381, 797 P2d 399 (1990), Sup Ct review denied

Limitation of actions for professional malpractice under ORS 12.110 did not bar action. O’Brien v. State of Oregon, 104 Or App 1, 799 P2d 171 (1990)

Where there was genuine issue of material fact as to when plaintiff discovered injury that resulted in daughter’s death, summary judgment on ground that plaintiff had failed to give timely notice of tort claim was improper because one-year notice period begins to run from date of discovery of injury rather than from date of death. Stephens v. Bohlman, 107 Or App 533, 813 P2d 43 (1991), aff’d 314 Or 344, 838 P2d 600 (1992)

Letter from plaintiff’s counsel to Superintendent of State Police describing situation as gender based discrimination describes both personnel matter and tort and provides actual notice. McCabe v. State of Oregon, 108 Or App 672, 816 P2d 1192 (1991), aff’d on other grounds, 314 Or 605, 841 P2d 635 (1992)

Whether Superintendent of State Police has required authority to respond to notice as tort claim is question of fact. McCabe v. State of Oregon, 108 Or App 672, 816 P2d 1192 (1991), aff’d on other grounds, 314 Or 605, 841 P2d 635 (1992)

Statute of limitations began running when plaintiff learned of injury, cause of injury and identity of tortfeasor, although plaintiff did not not understand full extent of injury and believed second surgery could cure condition. Raethke v. Oregon Health Sciences University, 115 Or App 195, 837 P2d 977 (1992), Sup Ct review denied

Notice of claim against public body must actually be received within stated period to be timely. Tyree v. Tyree, 116 Or App 317, 840 P2d 1378 (1992), Sup Ct review denied

Where Oregon State Police superintendent investigates claims involving agency, superintendent qualifies as person “responsible for administering claims” and Actual Notice of Claim received by superintendent satisfies notice requirements of Tort Claims Act. McCabe v. State of Oregon, 314 Or 605, 841 P2d 635 (1992)

Notice period for claim by minor child against public body is not tolled pending appointment of guardian ad litem. Perez v. Bay Area Hospital, 315 Or 474, 846 P2d 405 (1993); Cooksey v. Portland Public School District No. 1, 143 Or App 527, 923 P2d 1328 (1996), Sup Ct review denied

Notice period commenced when plaintiff was able to deduce false report must have been made by individual connected with defendant hospital since on that date plaintiff had all facts necessary to commence action against hospital. Perez v. Bay Area Hospital, 315 Or 474, 846 P2d 405 (1993)

Where action is filed under federal Emergency Medical Treatment and Active Labor Act, state’s one-year notice requirement is not preempted. Draper v. Chiapuzio, 9 F3d 1391 (9th Cir. 1993)

“Injury” occurs at time legally protected interest is invaded. Cooksey v. Portland Public School District No. 1, 143 Or App 527, 923 P2d 1328 (1996), Sup Ct review denied

Actual notice to member of staff of attorney representing public body is not actual notice to attorney. Orr v. City of Eugene, 151 Or App 541, 950 P2d 397 (1997)

Two-year statute of limitations does not apply to action based on public employer conduct prohibited by whistleblower law ([former] ORS 659.510). Draper v. Astoria School District No. 1C, 995 F. Supp. 1122 (D. Or. 1998)

Giving of tort claim notice does not necessarily mean that claim has accrued for purposes of commencing statute of limitations period. Uruo v. Clackamas County, 166 Or App 133, 997 P2d 269 (2000)

Notice communicating time, place and circumstances giving rise to claim does not need to specify nature or theory of claim. Flug v. University of Oregon, 335 Or 540, 73 P3d 917 (2003)

ORS 12.020, providing that action commences upon filing if summons is served within 60 days following, applies to claims under Oregon Tort Claims Act. Baker v. City of Lakeside, 343 Or 70, 164 P3d 259 (2007)

For purposes of discovery rule, circumstances presenting mere possibility that inquiry would uncover tortious conduct of third party do not create duty to inquire. Johnson v. Multnomah County Department of Community Justice, 344 Or 111, 178 P3d 210 (2008)

Notice period for claim by minor child against public body is tolled for as long as minor is under 18 years of age. Funez v. Guzman, 687 F. Supp. 2d 1214 (D. Or. 2009)

30.282

NOTES OF DECISIONS

Limitation on amount of liability under [former] ORS 30.270 is not waived by governmental defendant purchasing liability insurance in excess of dollar limitation. Espinosa v. Southern Pacific Transportation, 291 Or 853, 635 P2d 638 (1981)

ATTY. GEN. OPINIONS: Entry into intergovernmental agreement for provision of joint self-insurance by local public bodies as invalid attempt to bind future governing bodies, (1978) Vol 39, p 140

30.285

NOTES OF DECISIONS

Because of statutory mandate that school district indemnify employes against tort claims arising from acts performed during execution of employe’s job duties, school district’s insurer is not entitled to apportioned contribution from teacher’s personal insurer for tort claims arising out of teacher’s acts performed during execution of job responsibilities. United Pacific/Reliance Ins. v. Horace Mann Ins., 65 Or App 21, 670 P2d 172 (1983)

Where plaintiff, personal auto insurer of school administrator, also insured district’s vicarious liability for administrator, plaintiff could not, under this section, recover indemnity from district for administrator’s on-job auto accident. Calif. Cas. Ins. v. David Douglas School Distr., 71 Or App 549, 693 P2d 54 (1984), Sup Ct review denied

Where plaintiff volunteered at request of Workers’ Compensation Department to establish and chair peer review committee to review at request of department particular chiropractor billings to compensation insurance carriers, control exercised over committee was sufficient to establish agency relationship. Samuel v. Frohnmayer, 82 Or App 375, 728 P2d 97 (1986), Sup Ct review denied, as modified by 84 Or App 80 (1987)

Where plaintiff insurer, which insured van that was loaned to defendant University of Oregon, sought declaration that state’s duty to indemnity its employes against tort claims under this section rendered state primarily liable and absolved plaintiff insurer of its contractual duty to defend and indemnify defendants against liability claims of third persons arising out of automobile accident, trial court properly granted defendants’ motion for summary judgment. Fircrest Poultry Farms Co. v. State of Oregon, 82 Or App 695, 728 P2d 968 (1986), Sup Ct review denied

Where former assistant director of Puerto Rico’s Commercial Development Company brought 1983 action against company and other defendants for allegedly dismissing him in violation of First and Fourteenth Amendment rights, former executive director entitled to qualified immunity and any back pay awarded to plaintiff reduced by interim earnings. Figueroa-Rodriguez v. Aquino, 863 F2d 1037 (1st Cir. 1988)

Where public employer conducted no investigation other than complaint against employee before declining his tendered defense, employer failed to satisfy investigation requirement of ORS 30.287 and was therefore required to indemnify employee. Cunliffe v. Pomplin, 102 Or App 403, 794 P2d 816 (1990), Sup Ct review denied

Where expense of defending officer, employee or agent of public body is incurred by third party, third party may not claim right to indemnification. Gill v. SAIF, 110 Or App 533, 823 P2d 447 (1992), aff’d as modified 314 Or 719, 842 P2d 402 (1992)

Allegation of ethics violation does not constitute tort claim or demand. City of Tualatin v. City-County Insurance Services Trust, 129 Or App 198, 878 P2d 1139 (1994), aff’d 321 Or 164, 894 P2d 1158 (1995)

Duty of public employer to indemnify and defend employee against suits arising in performance of employee’s duty does not impose duty on plaintiff to give employer notice when suing employee in private capacity. Krieger v. Just, 319 Or 328, 876 P2d 754 (1994)

Court must make separate inquiry to determine whether to substitute state as sole defendant rather than relying on Attorney General’s determination. Berry v. Dept. of General Services, 141 Or App 225, 917 P2d 1070 (1996)

Prohibition against public expenditure for defense of malfeasance or willful or wanton neglect does not apply to defense of claims other than tort claims. Eugene Police Employees’ Association v. City of Eugene, 157 Or App 341, 972 P2d 1191 (1998), Sup Ct review denied

Where insurance policy applies to officer, employee or agent but not to public body, policy releases public body only from obligation under ORS 30.287 to appoint counsel, not from duty to defend, save harmless and indemnify. Genesis Indemnity Insurance Co. v. Deschutes County, 194 Or App 446, 95 P3d 748 (2004)

30.287

NOTES OF DECISIONS

Where public employer conducted no investigation other than complaint against employee before declining his tendered defense, employer failed to satisfy investigation requirement of this section and was therefore required to indemnify employee. Cunliffe v. Pomplin, 102 Or App 403, 794 P2d 816 (1990), Sup Ct review denied

Assertion by officer, employee or agent that claim is based on alleged performance of duty does not expand duty to defend to acts not set out under ORS 30.285. City of Tualatin v. City-County Insurance Services Trust, 129 Or App 198, 878 P2d 1139 (1994), aff’d 321 Or 164, 894 P2d 1158 (1995)

Where insurance policy applies to officer, employee or agent but not to public body, policy releases public body only from obligation to appoint counsel, not from duty under ORS 30.285 to defend, save harmless and indemnify. Genesis Indemnity Insurance Co. v. Deschutes County, 194 Or App 446, 95 P3d 748 (2004)

ATTY. GEN. OPINIONS: Construing “malfeasance or wilful or wanton neglect of duty,” (1975) Vol 37, p 911; indemnification when there is a judgment in excess of limitations, (1975) Vol 37, p 911; constitutionality of indemnity provision, (1975) Vol 37, p 911; in pari materia construction of [former] ORS 30.270 with this section, (1977) Vol 38, p 1565; District attorneys as state employes for purposes of Tort Claims Act, (1980) Vol 41, p 177

30.310 to 30.400

ATTY. GEN. OPINIONS: Activities of National Guard personnel as within Tort Claims Act, (1981) Vol 41, p 441

30.310

ATTY. GEN. OPINIONS: Human Resources Department authority to compromise or settle support debt, (1979) Vol 39, p 474

30.315

NOTES OF DECISIONS

Where forfeiture sanction is imposed by cities and counties for conduct that is defined and punishable as crime under state law, ORS 30.315 (3) denies use of state courts to enforce forfeitures. City of Springfield v. $10,000.00 In U.S. Currency, 309 Or 272, 786 P2d 723 (1990); Linn County v. 22.16 Acres, 309 Or 279, 786 P2d 726 (1990); Multnomah County v. $5,650 In U.S. Currency, 309 Or 285, 786 P2d 729 (1990)

LAW REVIEW CITATIONS: 69 OLR 170 (1990)

30.320

NOTES OF DECISIONS

In action against Housing Division for breach of alleged contract to make construction loan, terms of which contract violated Division’s rule, rule became as binding as if legislature itself had acted and private party was not entitled to damages for agency’s breach of contract which violated rule. Harsh Investment Corp. v. State Housing Div., 88 Or App 151, 744 P2d 588 (1987), Sup Ct review denied

LAW REVIEW CITATIONS: 40 WLR 563 (2004)

30.510 to 30.640

LAW REVIEW CITATIONS: 2 EL 329 (1972); 15 EL 247 (1985)

30.510

NOTES OF DECISIONS

Proceeding brought in accordance with this section is exclusive remedy to decide whether one purporting to act as public officer is holding office lawfully. State ex rel Madden v. Crawford, 207 Or 76, 295 P2d 174 (1956); State ex rel Boe v. Straub, 282 Or 387, 578 P2d 1247 (1978)

Trial court lacks jurisdiction to hear action unless action is commenced and prosecuted by district attorney for district in which action is triable. Mabon v. Wilson, 198 Or App 340, 108 P3d 598 (2005), aff’d 340 Or 385, 133 P3d 899 (2006)

30.650

NOTES OF DECISIONS

Limitation on recovery of noneconomic damages by incarcerated plaintiff does not violate section 10, section 17 or section 20, Article I, or section 3, Article VII (Amended) of Oregon Constitution. Voth v. State of Oregon, 190 Or App 154, 78 P3d 565 (2003), Sup Ct review denied

30.670 to 30.685

NOTE: Subject sections all subsequently renumbered or repealed

NOTES OF DECISIONS

Lion’s Club was business or commercial enterprise to which these sections, proscribing discrimination in places of public accommodation, were applicable. Lloyd Lions Club v. Int. Assoc. of Lions Clubs, 81 Or App 151, 724 P2d 887 (1986)

ATTY. GEN. OPINIONS: Hotel limiting use to members of religious foundation as place of public accommodation, (1983) Vol 44, p 20

LAW REVIEW CITATIONS: 56 OLR 361 (1977)

30.670

See annotations under ORS 659A.403.

30.675

See annotations under ORS 659A.400.

30.680

NOTE: Repealed as of January 1, 2002; but see sec. 91, c. 621, Oregon Laws 2001

NOTES OF DECISIONS

This section does not cover the sale of insurance. Thompson v. IDS Life Ins. Co., 274 Or 649, 549 P2d 510 (1976)

30.685

See annotations under ORS 659A.406.

30.740

ATTY. GEN. OPINIONS: Construing criminal statutes prohibiting promotion of social gambling, (1971) Vol 35, p 1004

30.765

NOTES OF DECISIONS

Allegation of intentional use of automobile by unemancipated minor, even without intent to damage it, was sufficient to bring complaint within terms of this section. Francis v. Farnham, 58 Or App 469, 648 P2d 1349 (1982), Sup Ct review denied

This section makes parents responsible for their children’s intentional torts and general and special damages that flow therefrom and general damages, including cuts, bruises, bleeding and emotional distress are recoverable as “actual damages.” Garrett v. Olsen, 71 Or App 93, 691 P2d 123 (1984)

Parent’s liability for check forged by unemancipated minor child includes amount of check and costs, but trial court erred in awarding punitive damages, prejudgment interest and attorney fees in summary judgment in favor of credit union, where nothing in statute confers right to damages other than actual damages. Rogue Federal Credit Union v. Phillips, 121 Or App 630, 855 P2d 1146 (1993)

LAW REVIEW CITATIONS: 28 WLR 455 (1992)

30.800

ATTY. GEN. OPINIONS: Application of “Good Samaritan Law” to emergency medical technicians receiving training in University of Oregon Health Sciences Center, (1977) Vol 38, p 1891

30.810

See annotations under ORS 31.700.

30.840

See annotations under ORS 31.980.

30.860

ATTY. GEN. OPINIONS: Recommendation of Board of Higher Education to divest stock in companies doing business in Southern Africa, (1978) Vol 38, p 2017

LAW REVIEW CITATIONS: 16 WLR 207 (1979)

30.866

NOTES OF DECISIONS

Context of “personal safety” in statute and “danger” in ORS 163.730 definition of “alarm” clearly refers to concern over physical forms of harm and therefore terms are not vague. Delgado v. Souders, 146 Or App 580, 934 P2d 1132 (1997), aff’d 334 Or 122, 46 P3d 729 (2002)

Appellate review of protective order is de novo. Hanzo v. deParrie, 152 Or App 525, 953 P2d 1130 (1998), Sup Ct review denied

Where predicate contacts involve expression, order may issue only where expression or other associated conduct so unambiguously, unequivocally and specifically communicates determination to cause harm that objectively reasonable person in recipient’s situation would fear for personal safety or safety of household members. Hanzo v. deParrie, 152 Or App 525, 953 P2d 1130 (1998), Sup Ct review denied

“Contact” includes acts that, when learned of, give rise to unwanted relationship or association between petitioner and respondent. Boyd v. Essin, 170 Or App 509, 12 P3d 1003 (2000), Sup Ct review denied

“Intentionally,” “knowingly” and “recklessly” have meaning given those terms in Oregon Criminal Code. Delgado v. Souders, 334 Or 122, 46 P3d 729 (2002)

Procedure for issuance of stalking protective order is type historically exempted from right to jury trial and other constitutional safeguards for criminal prosecutions. Delgado v. Souders, 334 Or 122, 46 P3d 729 (2002)

Unless admitted by adverse party, factual allegations in petition do not constitute evidence in hearing for issuance of stalking protective order. Jones v. Lindsey, 193 Or App 674, 91 P3d 781 (2004)

This provision does not confer right to jury trial. Foster v. Miramontes, 236 Or App 381, 236 P3d 782 (2010), Sup Ct review allowed

30.875

NOTES OF DECISIONS

Deterrence of juvenile shoplifting is unquestionably legitimate state purpose and this section does not violate Due Process clause of federal Fourteenth Amendment. Payless Drug Stores v. Brown, 80 Or App 255, 722 P2d 31 (1986), Sup Ct review denied

Shoplifter’s payment of penalty to private party is not punishment for purposes of double jeopardy under federal Constitution. State v. Reetz, 142 Or App 421, 920 P2d 568 (1996)

Payment of civil penalty is civil compromise for purposes of accusatory instrument dismissal under ORS 135.705. State v. Johnsen, 327 Or 415, 962 P2d 689 (1998)

LAW REVIEW CITATIONS: 16 WLR 207 (1979); 60 OLR 431 (1981); 28 WLR 455 (1992)

30.895

See annotations under ORS 31.230.

30.900 to 30.925

LAW REVIEW CITATIONS: 58 OLR 545 (1980); 18 WLR 613, 631 (1982); 64 OLR 517 (1986); 69 OLR 147 (1990)

30.900

NOTES OF DECISIONS

“Product liability civil action,” as defined in this section, embraces all theories plaintiff can adduce in action based on product defect. Marinelli v. Ford Motor Co., 72 Or App 268, 696 P2d 1 (1985), Sup Ct review denied

Strict liability in product liability civil actions is limited to sellers and lessors of defective products and does not include non-seller distributors. Johnson v. Water Sausage Corp., 83 Or App 637, 733 P2d 59 (1987), Sup Ct review denied

“Product liability civil actions” means all claims for property damage arising out of a “design, inspection, testing, manufacturing or other defect in a product” and section was applicable even though plaintiffs pleaded strict liability, negligence and breach of warranty claims. Bancorp Leasing and Financial Corp. v. Agusta Aviation Corp., 813 F2d 272 (1987)

Where custom installation of component parts was necessary to produce finished product, allegation of improper installation was product defect claim. Jamison v. Spencer R.V. Center, Inc., 98 Or App 529, 779 P2d 1091 (1989)

In product liability action brought under this section, article is dangerously defective when in condition unreasonably dangerous to user. Johnson by and through Grandys v. Les Schwab Tire Centers, 766 F. Supp. 1554 (1991)

Although adequate warning on faultlessly-made product will prevent reliance on theory of strict liability in failure-to-warn defect case, product with manufacturing defect cannot be made nondefective simply by placing warning on product. Glover v. BIC Corp., 987 F2d 1410 (1993)

Manufacturer issuance of product warning to learned intermediary does not create defense to strict liability claim. Griffith v. Blatt, 334 Or 456, 51 P3d 1256 (2002)

Where initial failure to warn of known defect occurs prior to sale, continuation of failure to warn after date of sale is not sufficient to state claim independent of product liability civil action. Kambury v. DaimlerChrysler Corp., 185 Or App 635, 60 P3d 1103 (2003)

For determining whether claim asserts liability for product defect or failure, predominant characteristic of claim, as indicated by operative facts alleged, controls over caption or labeling of claim. Weston v. Camp’s Lumber & Building Supply, Inc., 205 Or App 347, 135 P3d 331 (2006)

Unlawful trade practice claim for misrepresentation of consumer goods and breach of express warranty claim to enforce specific contractual promise are not product liability claims. Weston v. Camp’s Lumber & Building Supply, Inc., 205 Or App 347, 135 P3d 331 (2006)

“Manufacturer”, “distributor” and “seller” have same meanings as in ORS 30.920, including incorporated provisions of Restatement of Torts. Mason v. Mt. St. Joseph, Inc., 226 Or App 392, 203 P3d 329 (2009)

Noncommercial reuse of product does not make person “distributor” of product. Mason v. Mt. St. Joseph, Inc., 226 Or App 392, 203 P3d 329 (2009)

30.905

NOTES OF DECISIONS

ORS 12.160 tolled running of statute of limitations in action brought under this section during plaintiff’s minority. Kearney v. Montgomery Ward & Co., 55 Or App 641, 639 P2d 682 (1982)

Statute of limitations for product liability claims does not violate Remedy Clause of Oregon Constitution or Equal Protection Clause of United States Constitution. Davis v. Whiting Corp., 66 Or App 541, 674 P2d 1194 (1983), Sup Ct review denied

Physician’s third-party claim for indemnity against manufacturer of medicine is not product liability civil action subject to period of ultimate repose of this section. Huff v. Shiomi, 73 Or App 609, 699 P2d 1178 (1985)

In third-party action against product manufacturer, fact that original plaintiff’s claim against one tortfeasor is time-barred does not preclude second tortfeasor who discharges obligation to plaintiff from bringing indemnity action and proving that first tortfeasor was liable to plaintiff at time plaintiff’s claim accrued. Huff v. Shiomi, 73 Or App 609, 699 P2d 1178 (1985)

This section applies only to acts, omissions or conditions existing or occurring before or at “date on which the product was first purchased for use or consumption.” Erickson Air-Crane v. United Tech. Corp., 303 Or 281, 735 P2d 614 (1987), as modified by303 Or 452, 736 P2d 1023 (1987)

“Product liability civil actions” as defined in this section means all claims for property damage arising out of a “design, inspection, testing, manufacturing or other defect in a product” and section was applicable even though plaintiffs pleaded strict liability, negligence and breach of warranty claims. Bancorp Leasing and Financial Corp. v. Agusta Aviation Corp., 813 F2d 272 (1987)

Retroactive application of provision creating special exception for IUD manufacturers is valid because rationally related to legitimate state interest. Shadburne-Vinton v. Dalkon Shield Claimants Trust, 60 F3d 1071 (4th Cir. 1995)

State, county and public corporation statutory and common law exemptions from statutes of limitation do not create exemption from statute of ultimate repose. Shasta View Irrigation District v. Amoco Chemicals Corp., 329 Or 151, 986 P2d 536 (1999)

For death caused by product defect, time limitation provided by this section supersedes time limitation for commencement of action under ORS 30.020 for wrongful death. Kambury v. DaimlerChrysler Corp., 334 Or 367, 50 P3d 1163 (2002)

Disability preventing person from bringing action tolls two-year personal injury statute of limitations, but does not toll eight-year statute of ultimate repose. Simonsen v. Ford Motor Co., 196 Or App 460, 102 P3d 710 (2004), Sup Ct review denied

Legislature’s retroactive application of limitation period amendments to revive actions previously dismissed by courts for lack of timeliness did not violate state constitutional provisions governing separation of powers. McFadden v. Dryvit Systems, Inc., 338 Or 528, 112 P3d 1191 (2005); Fox v. Collins, 213 Or App 451, 162 P3d 998 (2007), Sup Ct review denied

ATTY. GEN. OPINIONS: Constitutionality of statute of ultimate repose for product liability civil action for damages resulting from asbestos-related disease, (1984) Vol. 44, p 321

LAW REVIEW CITATIONS: 19 WLR 322 (1983); 70 OLR 685 (1991); 28 WLR 565 (1992); 88 OLR 963 (2009)

30.907

NOTES OF DECISIONS

Where defendant acted in dual capacity of manufacturer and installer of asbestos products, ORS 12.135 limitation on actions applicable to construction, alteration and repair of real property was superseded by limitation on asbestos product liability. Purcell v. Asbestos Corp., Ltd., 153 Or App 415, 959 P2d 89 (1998), modified 155 Or App 1, 963 P2d 729 (1998), Sup Ct review denied

Plaintiff is not required to be aware of defendant’s tortious conduct in order for running of statute of limitations to commence. Keller v. Armstrong World Industries, Inc., 197 Or App 450, 107 P3d 29 (2005), modified 200 Or App 406, 115 P3d 247 (2005), aff’d 342 Or 23, 147 P3d 1154 (2006)

“Discovered” means plaintiff had high degree of certainty about facts necessary to support claim elements of disease existence and causation. Keller v. Armstrong World Industries, Inc., 197 Or App 450, 107 P3d 29 (2005), modified 200 Or App 406, 115 P3d 247 (2005), aff’d 342 Or 23, 147 P3d 1154 (2006)

30.910

NOTES OF DECISIONS

In deciding whether evidence of defective design is sufficient question for jury, court must balance utility of risk created against magnitude of risk, then determine if alternative has been shown practicable in terms of cost, overall design and operation of product. Glover v. BIC Corp., 987 F2d 1410 (1993)

30.915

NOTES OF DECISIONS

Prima facie case for product liability is established if: 1) dangerous defect is shown to have existed at time of manufacture, regardless of later modification; or 2) dangerous defect is not shown to have existed at time of manufacture and it is shown that modification probably was not essential to cause of injury. Ensley v. Strato-Lift, Inc., 134 F. Supp. 2d 1191 (D. Or. 2001)

30.920

NOTES OF DECISIONS

While this section codifies rules set forth in section 402A of Restatement (Second) of Torts (1965) to govern design defect cases, and provides that rules should be construed in accordance with comments a to m of section 402A, statute does not prescribe particular construction of the rule or its comments; because test for unreasonably dangerous, cast in terms of reasonable seller, is equivalent to comment i’s test cast in terms of consumer, trial court did not err in giving jury instruction cast only in terms of reasonable seller. Willamette Essential Oils v. Herrold & Jensen, 68 Or App 401, 683 P2d 1374 (1984)

Where stated intent of Legislative Assembly is that this section is to be construed in accordance with comments to section 402A of Restatement (Second) of Torts and such comments do not limit application of section to manufactured products, live skunk purchased from defendants was product within meaning of this section; right to recover for emotional distress is limited to recovery for emotional distress suffered by persons who suffer physical harm. Sease v. Taylor’s Pets, 74 Or App 110, 700 P2d 1054 (1985), Sup Ct review denied

Word “consumer” in this section does not include all who might be affected by product. Ewen v. Mc Lean Trucking Co., 300 Or 24, 706 P2d 929 (1985)

Availability of strict tort liability claim depends on type of defect, not type of injury. Agristor Credit Corp. v. Schmidlin, 601 F Supp 1307 (1985)

In adopting statutory analog of Restatement (Second) Torts, §402A, legislature made substantial modification by using phrase “user, consumer or injured party,” and injury to person by consumption of prescription medication was subject to this section, even though medication had not been prescribed for person who consumed it. Docken v. Ciba-Geigy, 86 Or App 277, 739 P2d 591 (1987), Sup Ct review denied

In action against pharmacy for negligently filling prescription, expert testimony of community standard of care is required to prove that pharmacist negligently failed to warn of dangers of prescription drug. Docken v. Ciba-Geigy, 101 Or App 252, 790 P2d 45 (1990), Sup Ct review denied

Where defendant acted as service provider by affixing new tread to casing, there was no sale of defective product. Watts v. Rubber Tree, Inc., 118 Or App 557, 848 P2d 1210 (1993), Sup Ct review denied, as modified by 121 Or App 21, 853 P2d 1365 (1993)

Reasonable manufacturer test has been repudiated and replaced with consumer expectation as sole test. Burns v. General Motors Corp., 133 Or App 555, 891 P2d 1354 (1995)

Supplier of component part that is not inherently defective is not strictly liable for failure to warn of dangers that may arise upon integration of part into machine built by another. Hoyt v. Vitek, Inc., 134 Or App 271, 894 P2d 1225 (1995)

Plaintiff must allege facts sufficient to infer unreasonable danger to persons or to property other than product itself. Carpenter v. Land O’ Lakes, Inc., 880 F Supp 758 (D. Or. 1995)

Allegation of commercial loss due to product failure or damage to product is insufficient to state claim for relief. Carpenter v. Land O’ Lakes, Inc., 880 F Supp 758 (D. Or. 1995)

On-site manufacture of hybrid product is not exempt where injury is due to defect in product provided rather than defect in repair or installation. Brokenshire v. Rivas and Rivas, Ltd., 142 Or App 555, 922 P2d 696 (1996)

Design safety is viewed only from consumer expectation perspective, not from reasonable manufacturer perspective. McCathern v. Toyota Motor Corp., 332 Or 59, 23 P3d 320 (2001)

To prove product was unreasonably dangerous due to defect, plaintiff must prove that at time product left seller’s hands, product was in unreasonably dangerous condition to extent not contemplated by ultimate consumer and in dangerous condition beyond expectation of ordinary consumer having knowledge common to community regarding characteristics of product. McCathern v. Toyota Motor Corp., 332 Or 59, 23 P3d 320 (2001)

Defect that causes mere economic damage without physical destruction or injury to other property does not provide basis for product liability claim. Russell v. Deere & Co., 186 Or App 78, 61 P3d 955 (2003)

LAW REVIEW CITATIONS: 16 WLR 219 (1979); 59 OLR 374 (1981); 32 WLR 851 (1996); 78 OLR 1 (1999)

30.925

NOTES OF DECISIONS

Consideration of profitability of misconduct is not limited to illicit portion of profit. Williams v. Philip Morris, Inc., 344 Or 45, 176 P3d 1255 (2008)

LAW REVIEW CITATIONS: 16 WLR 219 (1979); 24 WLR 304 (1988); 26 WLR 762 (1990); 22 EL 573 (1992); 30 WLR 635 (1994); 46 WLR 449 (2010)

30.930 to 30.940

LAW REVIEW CITATIONS: 18 WLR 153 (1982)

30.950

See annotations under ORS 471.565.

30.955

See annotations under ORS 30.950.

30.960

See annotations under ORS 471.567.

30.970

NOTES OF DECISIONS

Where plaintiff did not argue to trial court that her injuries were caused by combination of inherent risk of skiing and operator negligence which would have made doctrine of comparative fault applicable, trial court did not err in instructing jury that if plaintiff’s injury was caused by inherent risk of skiing, plaintiff could not recover. Jessup v. Mt. Bachelor, Inc., 101 Or App 670, 792 P2d 1232 (1990), Sup Ct review denied

Vicarious liability of ski area operator for negligence of its employee is not removed solely by fact that employee is skier. Nolan v. Mt. Bachelor, Inc., 317 Or 328, 856 P2d 305 (1993)

30.975

NOTES OF DECISIONS

[Former] ORS 18.470 allows jury to consider comparative negligence of skier’s own or another’s negligence as well as inherent risk of skiing. Nolan v. Mt. Bachelor, Inc., 115 Or App 27, 836 P2d 770 (1992), aff’d 317 Or 328, 856 P2d 305 (1993)

Collision between skier and ski instructor employed by ski area operator was not collision with another skier that skier accepts as inherent risk of skiing. Nolan v. Mt. Bachelor, Inc., 317 Or 328, 856 P2d 305 (1993)

Assumption of risk defense is available only to ski area operators. Stiles v. Freemotion, Inc., 185 Or App 393, 59 P3d 548 (2002), Sup Ct review denied