Actions and Suits in Particular Cases

ORS 30.298
Liability of certain state agencies to foster parents for injury or damage caused by foster child or youth offender

  • conditions
  • limitations


(1)

Except as otherwise provided in this section, the Department of Human Services is liable, without regard to fault, for injury to the person of foster parents or damage to the property of foster parents caused by a foster child if the foster child is residing in:

(a)

A foster home that is maintained by the foster parents and that has been certified by the department under the provisions of ORS 418.625 (Definitions for ORS 418.625 to 418.645) to 418.645 (Appeal from decision of department);

(b)

An approved home that is maintained by the foster parents and that is receiving payment from the department under the provisions of ORS 418.027 (Agreements for custody, care or treatment) or under the provisions of ORS 420.810 (Placement of youths in foster homes) and 420.815 (Placement agreements with persons or families); or

(c)

A developmental disability child foster home that has been certified by the department under the provisions of ORS 443.830 (Definitions for ORS 443.830 and 443.835) and 443.835 (Certificate required).

(2)

Except as otherwise provided in this section, the Oregon Youth Authority is liable, without regard to fault, for injury to the person of foster parents or damage to the property of foster parents caused by a youth offender if the youth offender resides in a youth offender foster home that is maintained by the foster parents and that has been certified by the authority under the provisions of ORS 420.888 (Definitions for ORS 420.888 to 420.892) to 420.892 (Certification standards).

(3)

Except as otherwise provided in this section, the liability of the department and of the authority under this section is subject to the same requirements and limitations provided in ORS 30.260 (Definitions for ORS 30.260 to 30.300) to 30.300 (ORS 30.260 to 30.300 exclusive), and a claim under this section shall be treated as a claim for damages 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) for the purposes of ORS 278.120 (Claims management).

(4)

Notwithstanding ORS 30.260 (Definitions for ORS 30.260 to 30.300) to 30.300 (ORS 30.260 to 30.300 exclusive):

(a)

In no event shall the liability of the department or the authority under this section exceed $5,000 for any number of claims arising out of a single occurrence;

(b)

The liability of the department and the authority under this section is limited to economic damages, and in no event shall the department or the authority be liable for noneconomic damages;

(c)

The department and the authority are liable under this section only to the extent the loss is not covered by other insurance; and

(d)

No claim shall be allowed under this section unless written notice of the claim is delivered to the Oregon Department of Administrative Services within 90 days after the alleged loss or injury.

(5)

The department and the authority are not liable under this section for:

(a)

Damage to or destruction of currency, securities or any other intangible property;

(b)

The unexplained disappearance of any property; or

(c)

Loss or damage that is due to wear and tear, inherent vice or gradual deterioration.

(6)

In no event does the liability of the department or the authority under this section for damage to property exceed the difference between the fair market value of the property immediately before its damage or destruction and its fair market value immediately thereafter. The department and the authority are not liable for the costs of any betterments to the property that may be required by code, statute or other law as a condition of repair, replacement or reconstruction.

(7)

The liability imposed under this section is in addition to that imposed for the intentional torts of a foster child or youth offender under ORS 30.297 (Liability of certain state agencies for damages caused by foster child or youth offender), but any amounts paid under this section shall reduce any recovery that may be made under ORS 30.297 (Liability of certain state agencies for damages caused by foster child or youth offender).

(8)

For the purposes of this section:

(a)

“Authority” means the Oregon Youth Authority.

(b)

“Department” means the Department of Human Services.

(c)

“Economic damages” and “noneconomic damages” have those meanings given in ORS 31.710 (Noneconomic damages).

(d)

“Foster child” has that meaning given in ORS 30.297 (Liability of certain state agencies for damages caused by foster child or youth offender).

(e)

“Youth offender” has the meaning given in ORS 419A.004 (Definitions). [1991 c.756 §3; 1997 c.130 §2; 1999 c.316 §11; 2001 c.900 §11; 2003 c.232 §2; 2005 c.374 §5]
Note: See note under 30.297 (Liability of certain state agencies for damages caused by foster child or youth offender).
§§ 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

Last accessed
Jun. 26, 2021