When Government Does Wrong

Government is ubiquitous. From the federal government down to obscure local districts, government agencies get involved in all sorts of things. Those involvements sometimes wrongfully harm private citizens, who may or may not have enforceable rights against the government, depending on the circumstances.

Claims against the federal government are governed by the Federal Tort Claims Act, which has a variety of interesting provisions. These include bench trials in U.S. District Court, agency review periods before commencing a civil action, and limitations on attorney fees.

Claims against the State of Oregon and other Oregon public bodies are governed in part by the Oregon Tort Claims Act (OTCA), ORS 30.020 et seq, and sometimes by the doctrine of sovereign immunity. This Tort Tips considers some issues arising under the OTCA that can affect any Oregon practitioner.

Who or what is a "public body" in Oregon?

Sometimes, its obvious that the potential defendant is a public body, but occasionally it's not. Special districts are lumped into the public body category, but it can be easy to forget that some organizations are in fact public. For example, some local hospitals are in fact run by hospital districts, and are therefore treated as public bodies under Oregon law. Some other surprises in OTCA coverage arise due to legislative attempts to immunize certain individuals from tort liability; more on this below.

Claims against the State of Oregon and other Oregon public bodies are governed in part by the Oregon Tort Claims Act (OTCA).

Tort Claims Notices: Attorney malpractice traps

One of your clients may ask you about "something" that may turn out to be subject to the Oregon Tort Claims Act. It may be a car crash involving a government auto, medical negligence at a publicly-owned hospital, physical harm from police misconduct, or any of a number of problems. Most attorneys are accustomed to thinking about time limitations periods in years, not days or months. The OTCA requires that notice be made within 180 days (1 year for wrongful death cases). The details of proper notice are outlined in ORS 30.275.

An attorney may forget to have a tort claims notice alarm bell go off when a client is talking about a problem that potentially could evolve into a claim against a public body. You do not want the 180 day notice period to expire on your watch without having either properly taken care of the notice, or clearly telling your client–and documenting that counsel -- that there is a notice deadline and that meeting the deadline is their responsibility.

OTCA damages caps

Interesting issues arise where the wrongful conduct was committed by an individual who turns out to be a public body employee or agent. At common law, such individuals were fully liable for their wrongful conduct; sovereign immunity did not protect the individual tortfeasor. Thus, there was no arbitrary damages cap applicable to the public employee, unlike the public body itself. And under the OTCA, public bodies indemnify their employees who are acting within the course and scope of their employment relationship, ORS 30.285.

The Legislature attempted to change this situation by providing a mechanism for the public body to have its employees and agents dismissed from the case. The apparent legislative intent was to limit the injured individual to the arbitrarily-capped damages allowed against public bodies under the OTCA, not the full damages against public employees allowed by the common law. This gave great incentive for tortfeasors to claim that they were agents of a public body and therefore should enjoy immunity from liability. For example, in one of our cases, a national staffing company claimed that the tortfeasor, despite the fact that the tortfeasor was the private company's employee and on that company's payroll, was a public body's "agent."

The statutory scheme of immunizing government agents was successfully challenged in Clarke v. OHSU , 343 Or 581 (2007). There, although Oregon Health Sciences University was entitled to protection under the OTCA as a "public body," and the Legislature could limit the amount recoverable against a public body, the Court held that the claims against individual employees could not be dismissed. The statutory limitation on claims against the individual employees would not apply in cases where the arbitrary OTCA limit would "emasculate" the injured person's right to an adequate remedy. (Section 1, Article 10 of the Oregon Constitution).

What next?

At a minimum, Clarke strongly suggests that if damages may exceed the arbitrary OTCA limits, then the specific public employee or agent(s) who caused the harm should be individually named. It also suggests that in such cases, counsel for the injured party should vigorously oppose dismissal of the individual tortfeasor(s).

The Legislature will be asked to revisit at least some OTCA issues in the 2009 session. Recently, OHSU and the Oregon Trial Lawyers Association (OTLA) jointly agreed to a proposal to raise the damages caps in at least certain cases. The joint proposal would raise the OTCA "per claim" limit to $1.5 million, the "per occurrence" limit to $3 million (for multiple claimants); there would be one combined cap for both economic and non-economic damages, and there would be future adjustments in the amounts of the limits.