Actions and Suits in Particular Cases

ORS 30.275
Notice of claim

  • time of notice
  • time of action


(1)

No action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 (Definitions for ORS 30.260 to 30.300) to 30.300 (ORS 30.260 to 30.300 exclusive) shall be maintained unless notice of claim is given as required by this section.

(2)

Notice of claim shall be given within the following applicable period of time, not including the period, not exceeding 90 days, during which the person injured is unable to give the notice because of the injury or because of minority, incompetency or other incapacity:

(a)

For wrongful death, within one year after the alleged loss or injury.

(b)

For all other claims, within 180 days after the alleged loss or injury.

(3)

Notice of claim required by this section is satisfied by:

(a)

Formal notice of claim as provided in subsections (4) and (5) of this section;

(b)

Actual notice of claim as provided in subsection (6) of this section;

(c)

Commencement of an action on the claim by or on behalf of the claimant within the applicable period of time provided in subsection (2) of this section; or

(d)

Payment of all or any part of the claim by or on behalf of the public body at any time.

(4)

Formal notice of claim is a written communication from a claimant or representative of a claimant containing:

(a)

A statement that a claim for damages is or will be asserted against the public body or an officer, employee or agent of the public body;

(b)

A description of the time, place and circumstances giving rise to the claim, so far as known to the claimant; and

(c)

The name of the claimant and the mailing address to which correspondence concerning the claim may be sent.

(5)

Formal notice of claim shall be given by mail or personal delivery:

(a)

If the claim is against the state or an officer, employee or agent thereof, to the office of the Director of the Oregon Department of Administrative Services.

(b)

If the claim is against a local public body or an officer, employee or agent thereof, to the public body at its principal administrative office, to any member of the governing body of the public body, or to an attorney designated by the governing body as its general counsel.

(6)

Actual notice of claim is any communication by which any individual to whom notice may be given as provided in subsection (5) of this section or any person responsible for administering tort claims on behalf of the public body acquires actual knowledge of the time, place and circumstances giving rise to the claim, where the communication is such that a reasonable person would conclude that a particular person intends to assert a claim against the public body or an officer, employee or agent of the public body. A person responsible for administering tort claims on behalf of a public body is a person who, acting within the scope of the person’s responsibility, as an officer, employee or agent of a public body or as an employee or agent of an insurance carrier insuring the public body for risks within the scope of ORS 30.260 (Definitions for ORS 30.260 to 30.300) to 30.300 (ORS 30.260 to 30.300 exclusive), engages in investigation, negotiation, adjustment or defense of claims within the scope of ORS 30.260 (Definitions for ORS 30.260 to 30.300) to 30.300 (ORS 30.260 to 30.300 exclusive), or in furnishing or accepting forms for claimants to provide claim information, or in supervising any of those activities.

(7)

In an action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 (Definitions for ORS 30.260 to 30.300) to 30.300 (ORS 30.260 to 30.300 exclusive), the plaintiff has the burden of proving that notice of claim was given as required by this section.

(8)

The requirement that a notice of claim be given under subsections (1) to (7) of this section does not apply if:

(a)

(A) The claimant was under the age of 18 years when the acts or omissions giving rise to a claim occurred;

(B)

The claim is against the Department of Human Services or the Oregon Youth Authority; and

(C)

The claimant was in the custody of the Department of Human Services pursuant to an order of a juvenile court under ORS 419B.150 (When protective custody authorized), 419B.185 (Evidentiary hearing), 419B.337 (Commitment to custody of Department of Human Services) or 419B.527 (Disposition of ward after termination), or was in the custody of the Oregon Youth Authority under the provisions of ORS 419C.478 (Commitment to Oregon Youth Authority or Department of Human Services), 420.011 (Admissions to youth correction facilities) or 420A.040 (Provision of juvenile corrections programs and services to tribal youth offender), when the acts or omissions giving rise to a claim occurred.

(b)

The claim is against a private, nonprofit organization that provides public transportation services described under ORS 30.260 (Definitions for ORS 30.260 to 30.300) (4)(d).

(9)

Except as provided in ORS 12.120 (Action on escape), 12.135 (Action for damages from construction, alteration or repair of improvement to real property) and 659A.875 (Time limitations), but notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action, an action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 (Definitions for ORS 30.260 to 30.300) to 30.300 (ORS 30.260 to 30.300 exclusive) shall be commenced within two years after the alleged loss or injury. [1967 c.627 §5; 1969 c.429 §3; 1975 c.604 §1a; 1975 c.609 §14; 1977 c.823 §3; 1979 c.284 §64; 1981 c.350 §1; 1993 c.500 §4; 1993 c.515 §1; 2001 c.601 §1; 2001 c.621 §89; 2005 c.684 §2; 2009 c.67 §18]

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 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)

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)

Notice of claim by minor must be given within 270 days of discovery of alleged injuries, and ORS 12.160 does not toll this notice period. Catt v. Dept. of Human Services, 251 Or App 488, 284 P3d 532 (2012)

For purpose of determining whether notice is satisfied, "[p]ayment of all or any part of the claim" includes payment of all or part of specific claim or claims ultimately asserted against public body. Hughes v. City of Portland, 255 Or App 271, 296 P3d 642 (2013)

to Determine Limitation On Commencement of Action for Battery, "Injury" Occurs When Plaintiff Knows or Should Have Known of Existence of Three Elements

(1) harm; (2) causation; and (3) tortious conduct. Doe v. Lake Oswego School District, 353 Or 321, 297 P3d 1287 (2013)

Plaintiff, who filed complaint but did not serve summons on defendants within 180 days of alleged injury, but served summons within 60 days after filing, commenced action on date of filing. Cannon v. Dept. of Justice, 261 Or App 680, 322 P3d 601 (2014)

"Notwithstanding" provision of this section does not bar application of ORS 12.160 (2005) to plaintiff's claim under Oregon Tort Claims Act even where claim is against public body. Smith v. OHSU Hospital and Clinic, 272 Or App 473, 356 P3d 142 (2015)

For purpose of tolling statute of limitations under ORS 12.155, "payment," as used in subsection (3) of this section, includes provision of discounted fee or free medical services. Humphrey v. OHSU, 286 Or App 344, 398 P3d 360 (2017)

§§ 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); 50 WLR 619 (2014)


Source

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