Brown v. Portland School District No. 1

628 P.2d 1183, 291 Or. 77, 1981 Ore. LEXIS 841

• Court: Oregon Supreme Court
• Decided: May 27, 1981
• Docket: CA 17422, SC 27366
• Status: Published

Opinions

TANZER, J.

Plaintiff brought this tort action against Portland School District No. 1 and Clackamas County for damages for personal injuries arising from an automobile accident that occurred in 1978. The complaint alleged that notice of the claim was sent by first class mail to the clerk of the school district and that the letter was “received by” that defendant and “processed and investigated * * * as a tort claim.” The complaint also alleged that notice was twice sent to Clackamas County by first class mail: first, to the Clackamas County Highway Maintenance Division, and subsequently, to the County Clerk. It was alleged that each of these notices was “received by defendant” and “processed and investigated * * * as a tort claim.”

Defendants demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action because plaintiff failed to plead compliance with the notice provisions of the Tort Claims Act, as specified in ORS 30.275(1). Defendants contend that plaintiffs allegation that his notice was sent by first class mail is insufficient because the statute requires that notice be sent by certified mail.

The trial court sustained the demurrers. Plaintiff did not plead further, and the complaint was dismissed. Plaintiff appealed from the order of dismissal and the Court of Appeals affirmed. We accepted review to examine whether plaintiffs complaint sufficiently alleges compliance with the notice requirements of ORS 30.275(1). We hold that plaintiff has alleged substantial compliance with ORS 30.275(1).

ORS 30.275(1), at the time this action was brought, provided:

“Every person who claims damages from a public body or from an officer, employe or agent of a public body acting within the scope of his employment or duties for or on account of any loss or injury within the scope of ORS 30.260 to 30.300 shall cause to be presented to the public body within 180 days after the alleged loss or injury a written notice stating the time, place and circumstances thereof, the name of the claimant and his representative or attorney, if any, and the amount of compensation or other relief demanded. Claims against the State of Oregon or a state officer, employe or agent shall be presented to the Attorney General. Claims against any local public body or an officer, employe or agent thereof shall be presented to a person upon whom process could be served upon the public body in accordance with subsection (3) of ORS 15.080. Notice of claim shall be served upon the Attorney General or local public body’s representative for service of process either personally or by certified mail, return receipt requested. A notice of claim which does not contain the information required by this subsection, or which is presented in any other manner than herein provided, is invalid, except that failure to state the amount of compensation or other relief demanded does not invalidate the notice. ” ¹ (Emphasis supplied.)

This court has applied the theory of substantial compliance in order to ignore technical errors in otherwise valid notice under prior versions of the Tort Claims Act. Urban Renewal Agency v. Lackey, 275 Or 35, 549 P2d 657 (1976) (timely notice in the form of a counterclaim). See also Yunker v. Matthews, 32 Or App 551 574 P2d 696 (1978) (timely notice in the form of a complaint); Croft v. Gulf & West/Highway Comm., 12 Or App 507, 506 P2d 541 (1973) (letter to Regional Engineer of agency, forwarded to counsel to the agency). Compare Dowers Farms v. Lake Co., 288 Or 669, 607 P2d 1361 (1980).² Defendants argue, however, that language added to ORS 30.275(1) subsequent to those cases reflects a legislative intention that the notice requirements be strictly complied with. Defendants refer to what is now the final sentence of ORS 30.275(1), added by Oregon Laws 1977, ch 823, § 3, which we italicized above.

The legislative history of the 1977 amendments to the Tort Claims Act shows that the legislature was primarily concerned with the insurability of local governments, but that it also addressed relaxation by the courts of the notice requirements. One of the draftsmen of the amendment to ORS 30.275(1) explained that:

“The last sentence was added because of a tendency by the court to relax the notice requirement. Not only in the State of Oregon, but more radically in other states, it is becoming the effect of the law that if you give a handwritten notice scrawled on the back of an envelope to a janitor at city hall at 3 a.m. you have effectively tendered a claim. Even when the notice ends up in a wastebasket somewhere.”³

The legislative concern that notice actually be received at the proper level of authority by the governmental body in question is manifested by language emphasizing the strictness of the required notice. The language appears to have been intended to confine the doctrine of substantial compliance within narrow limits, but not necessarily to eliminate it. There is no suggestion that the proponents or the legislature intended to preclude recovery or escape liability by draconian enforcement of technical requirements or to preclude compliance where notice proper in form and content was actually received by the statutorily designated official.

The sufficiency of the notice given must be determined with the object of the statute in mind and technically deficient claims should not be barred where the purpose of the statute is served. Sprague, supra, 100 Or at 304-305. The doctrine of substantial compliance has previously been used by this court to avoid the harsh results of insisting on literal compliance with statutory notice provisions where the purpose of these requirements has been met.

In Urban Renewal, supra, we held that the purpose of the Tort Claims Act notice sections is to give the public body timely notice of the tort claim and to allow its officers an opportunity to investigate matters promptly and ascertain all necessary facts. 275 Or at 41. We noted that the Minnesota Supreme Court had held the purpose of their Tort Claims Act, upon which Oregon’s statute was based, to be

« <* * * protec{. against dissipation of public funds by requiring that the municipality be promptly furnished with information concerning a claim against it so that full opportunity is provided to investigate it, to settle those of merit without litigation, and to correct any deficiency in municipal functions revealed by the occurrence. By timely service of notice, the municipality is also afforded protection against stale or fraudulent claims or the connivance of corrupt employees or officials.’ ” 275 Or at 41, n.5.

To achieve the Act’s purpose of prompt notice to public bodies, notice of claims must be timely received by the correct official. The amended statute describes the manner in which notice is to be given, but its purpose is to bar claims where proper notice is not received by the proper official. That purpose allows for substantial compliance with the notice requirements, but the margin for diver gence from strict compliance is narrow.

Where the notice required by ORS 30.275(1) is actually received in the requisite time period by the statutorily designated official, the statutory purpose is satisfied. To automatically require that the notice be sent by certified mail under these circumstances would be to ignore the purpose of the statute and to make it a mere trap for the deserving but unwary claimant. In Stroh v. SAIF, 261 Or 117, 492 P2d 471 (1972), involving a similar requirement that a notice be sent by certified or registered mail, we held that actual notice is the equivalent of notice by certified mail. We stated that the effect of the statute specifying notice by certified mail is to make a notification so sent effective even though it is not received. However, the court stated that it does not follow that failure to certify the notification renders it ineffective where it is actually received by the noticee. 261 Or at 120. That reasoning is also applicable here.

Thus, we hold that where the notice required by ORS 30.275(1) is actually received by the statutorily designated official, the statute has been substantially complied with and the notice of claim is valid. Because plaintiffs allegations that proper notice was received by defendants and processed and investigated as tort claims are amenable to proof that proper notice was actually received by the correct officials, we hold that he has sufficiently pled substantial compliance with the notice requirement.

Our opinion states our difference of opinion with the dissent of Lent, J., but a few additional words in answer to the dissent of Peterson, J., are appropriate. His dissent concludes with a call for literal application of clear statutes “unless an absurd result is reached thereby.” In this, the dissent is consistent with Johnson v. Star Machinery Co., 270 Or 694, 530 P2d 53 (1974), where we said:

«* * * [X]f the literal import of the words is so at variance with the apparent policy of the legislation as a whole as to bring about an unreasonable result, the literal interpretation must give way and the court must look beyond the words of the act. * * *” 270 Or at 704.

To deny a claim because his notice of claim was not posted correctly even though it was actually received by the very official to whom the statute requires posting seems to us an absurd result which the legislature did not or would not have intended. Although the dissent takes an arguable position, we find the arguments in favor of substantial compliance to be more persuasive.

Plaintiff also argues that he need not allege literal compliance with the notice requirements because he has alleged actions of defendants which are tantamount to waiver or which act as an estoppel. If plaintiffs proof of substantial compliance fails, then waiver and estoppel will become material. Assuming for argument that a governmental body can waive notice requirements or be estopped from asserting them, we hold nevertheless that plaintiff has not sufficiently alleged facts which show waiver or estoppel.⁴

As in Adams v. OSP, 289 Or 233, 611 P2d 1153 (1980), on demurrer, we examine plaintiffs allegations of both waiver and estoppel by allowing all reasonable inferences from the pleadings. See also Christensen v. Epley, 287 Or 539, 601 P2d 1216 (1979). Even under liberal scrutiny, however, we conclude that plaintiff has not alleged the essential elements of either waiver or estoppel.

In Waterway Terminals v. P. S. Lord, 242 Or 1, 406 P2d 556 (1965), we defined waiver as the intentional relinquishment of a known right, quoting an earlier Oregon case regarding the applicable rule for pleading waiver:

“ * * * in the absence of an express agreement a waiver will not be presumed or implied contrary to the intention of the party whose rights would be injuriously affected thereby, unless by his conduct the opposite party has been misled, to his prejudice, into the honest belief that such waiver was intended or consented to. To make out a case of waiver of a legal right there must be a clear, unequivocal, and decisive act of the party showing such a purpose or acts amounting to an estoppel on his part. * * * ” 242 Or at 26-27.

Accord Great American Ins. v. General Ins., 257 Or 62, 72-73, 475 P2d 415 (1970). Plaintiffs allegations that each defendant received a notice and processed and investigated it as a tort claim pursuant to ORS 30.275 does not sufficiently allege defendants’ intentional relinquishment of their right to rely on proper notice as a condition precedent to commencement of a tort action against them. Plaintiff alleges no clear, unequivocal or decisive act showing a purpose to waive the tort claims notice requirements; prudent public officials may well process and investigate alleged claims without intending to waive their objection to improper notice of such claims. Thus, we conclude that the complaint is insufficient to allege waiver.

The traditional theory of equitable estoppel requires that plaintiff plead a misrepresentation and his reliance thereon. See Earls et ux v. Clarke et al, 223 Or 527, 530-531, 355 P2d 213 (1960). Plaintiff has pled neither of these elements. However, plaintiff argues that defendants’ alleged actions fall under a doctrine which has been advanced as an alternative branch of estoppel, estoppel through “standing by without action.” See Belleville v. Davis, 262 Or 387, 498 P2d 744 (1972). In Belleville, a specific peformance case, the court recognized that type of estoppel, quoting Prosser, Torts 692-93, § 105 (4th ed):

“The second branch does not depend upon positive misrepresentation, but is based upon a mere failure to take take action. It arises where the party ‘stands by’ and allows another to deal with his property, or to incur some liability toward him, without informing the other of his mistake. Thus he may not remain silent when he sees his goods sold to a stranger, or improvements made upon his land, and still enforce his rights against the innocent wrongdoer. The law of estoppel creates a duty to speak, under penalty of loss of the right to assert the truth at a later time. Since in such a case there is no active misleading of the other party, who has misled himself, the courts have insisted upon some fault in connection with the conduct of the one to be estopped. There is no estoppel where he had remained silent reasonably and in good faith; he must be aware of his rights, and must realize that the other is about to act under a mistaken belief. Thus this branch of estoppel requires either an intent to mislead or unreasonable conduct amounting to negligence in failing to act, rather than the strict responsibility imposed in estoppel by misrepresentation.” 262 Or at 398, n.6.

Plaintiff has not alleged that the defendants were guilty of “unreasonable conduct amounting to negligence in failing to act” or “an intent to mislead.” Hence he does not allege a cause of action based on either branch of estoppel.

We reverse the Court of Appeals and hold that defendants’ demurrers were improperly sustained.

Reversed and remanded.

1 This is ORS 30.275(1) as amended by Or Laws 1977, ch 823, § 3. The statute was amended again by Or Laws 1979, ch 284, § 64, to include a reference to the new Oregon Rules of Civil Procedure; the sections dealt with in this opinion were not substantively altered.

2 This court has also applied the theory of substantial compliance in the context of notice requirements in other statutory schemes. Stroh v. SAIF, 261 Or 117, 492 P2d 472 (1972) (involving notice of appeal in workers’ compensation case); School Dist. #1 v. Rushlight & Co., 232 Or 341, 375 P2d 411 (1962) (involving the notice provisions of mechanic’s lien statute); Cross et ux. v. Harris, 230 Or 398, 370 P2d 703 (1962), and Loe v. Lenhard, 227 Or 242, 362 P2d 312 (1961) (both involving notice provisions of statute providing liability for aerial crop spraying damages); Sprague v. Astoria, 100 Or 298, 195 P 789 (1921) (involving notice provisions of municipal tort claims ordinance).

3 Hearings on HB 3106 before House Judiciary Committee, 60th Or Legis Ass’y (April 14, 1977), testimony of Mr. Bill Blair, proponent of the bill, Minutes pp. 8, 9. Mr. Blair’s later explanations also suggest that the sentence was motivated by decisions of courts in other states which were more forgiving of statutorily inadequate notice thant the decisions of Oregon courts. Ibid, (May 24,1977), pp. 4-5.

4 We do not reach the issues of whether a public body can waive compliance with the notice requirements of ORS 30.275 or whether public entities may be estopped from insisting on strict compliance with those requirements.