Cook v. State

104 P.3d 1153, 197 Or. App. 125, 2005 Ore. App. LEXIS 57
CourtCourt of Appeals of Oregon
DecidedJanuary 19, 2005
Docket01 CV 0193; A117618
StatusPublished

This text of 104 P.3d 1153 (Cook v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. State, 104 P.3d 1153, 197 Or. App. 125, 2005 Ore. App. LEXIS 57 (Or. Ct. App. 2005).

Opinion

ORTEGA, J.

Plaintiff appeals from a judgment dismissing his claims for alleged violations of his federal constitutional rights to due process and equal protection and his rights under the federal Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act (ADA), as well as a federal retaliation claim and a state tort claim for intentional infliction of emotional distress (IIED). At oral argument, plaintiffs counsel conceded, and we agree, that all of plaintiffs claims, except his claim for retaliation, are necessarily premised on the assumption that the state employees involved in this case applied an erroneous interpretation of Oregon statutes and regulations regarding the need for amputees to wear prosthetic devices. Because we reject plaintiffs premise, we affirm the trial court’s judgment dismissing all of those claims.1 We likewise affirm the judgment on plaintiffs retaliation claim without written discussion.

The parties agree on the following facts. Plaintiff is a truck driver whose left arm was amputated above the elbow when he was a child. Plaintiff has not held an Oregon Commercial Driver License (CDL) since 1994, but he drove a log truck commercially in Oregon off and on until at least January 2001. According to state officials, plaintiffs amputation disqualifies him from obtaining a CDL in Oregon unless he receives a “waiver of physical disqualification,” which he can obtain only by wearing a prosthetic device so that he can demonstrate gripping ability with both upper limbs. Plaintiff disputes that such a requirement exists, refuses to wear a prosthesis, and has not applied for either a CDL or a waiver.

In March 2000, defendant Barry Lampert, a motor carrier enforcement officer with the Oregon Department of Transportation (ODOT), cited plaintiff for driving without a waiver. A judge later found plaintiff not guilty of that offense, stating that he was giving plaintiff a “break” but encouraging [128]*128plaintiff to obtain a waiver so that he would not receive further citations. In January 2001, plaintiffs truck was placed “out of service” for equipment violations, because plaintiff was driving commercially without a waiver, and because his regular (noncommercial) license was suspended. At various times, both Lampert and defendant Gregg Dal Ponte, deputy director of ODOT’s Motor Carrier Transportation Division, informed plaintiff that the law required him to have a waiver in order to obtain a CDL and to wear a prosthesis in order to obtain that waiver.

Plaintiff brought this action against the state and several of its employees, asserting the following claims: (1) that Dal Ponte and Lampert deprived him of due process and equal protection by informing him “that he must have a prosthesis in order to obtain a waiver,” entitling plaintiff to relief under 42 USC section 1983; (2) that Lampert directed issuance of the January 2001 out-of-service notice in retaliation for his having contested the March 2000 citation and for his having refused Lampert permission to place a portable weigh scale on plaintiffs property, entitling plaintiff to relief under 42 USC section 1983; (3) that defendants’ “denial of [pllaintiffs right to operate his log truck, failure to follow their own regulations, and failure to grant him a waiver because he has only a portion of his left arm is a violation of the Rehabilitation Act of 1973”; (4) that defendants’ actions violated Title II of the ADA; and (5) that Lampert directed issuance of the January 2001 out-of-service order and “misrepresented the requirements of [state] regulations” with the intent to inflict severe emotional distress on plaintiff. The trial court granted defendants’ motions to dismiss the Rehabilitation Act and ADA claims and granted their motion for summary judgment as to plaintiffs section 1983 claim against Dal Ponte. Plaintiff then filed a third amended complaint asserting only his retaliation and IIED claims against the state and Lampert. Those claims went to trial, and the court granted defendants’ motions for a directed verdict at the close of plaintiffs case. Plaintiff initiated this appeal challenging the judgment for defendants on all of his claims.

As indicated above, all of plaintiffs claims except for the claim for retaliation are premised on the assumption that state employees applied an erroneous interpretation of [129]*129Oregon statutes and regulations regarding the need for amputees to wear prosthetic devices. It follows that, if that assumption is incorrect, plaintiffs claims fail as a matter of law, and the trial court’s rulings granting motions to dismiss, for summary judgment, and for a directed verdict as to those claims were correct. Because the relevant facts are undisputed, we review for errors of law2 and affirm.

We begin with ORS chapter 807, which sets forth the requirements for driving privileges, licenses, and permits. ORS 807.040 imposes certain requirements for obtaining a CDL, including submission of “the report of a medical examination that establishes, to the satisfaction of [ODOT], that the applicant meets the medical requirements for the particular class of license.” ORS 807.040(7) (emphasis added). The statute further provides:

“[ODOT], by rule, shall establish medical requirements for purposes of this subsection. The medical requirements established under this subsection may include any requirements the department determines are necessary for the safe operation of vehicles permitted to be operated under the class of license for which the requirements are established.”

Id. (emphasis added). Thus, ORS 807.040(7) authorizes ODOT to establish medical requirements for all commercial drivers. Commercial drivers demonstrate that they meet those requirements by obtaining medical certificates that are renewed every two years. OAR 735-060-0150.

Oregon statutes also contemplate that some disabled people will not be qualified to drive, either commercially or otherwise. See ORS 807.060(6) (a person is not eligible for any driver’s license if ODOT “reasonably believes [that the person] has a physical or mental disability or disease serving to prevent the person from exercising reasonable and ordinary control over a motor vehicle while operating it upon the highways”). However, an individual whose disability might otherwise disqualify him or her from driving under ORS 807.060(6) may establish eligibility for a license if he or she “personally demonstrates] to the satisfaction of [ODOT] that [130]*130notwithstanding the disease or disability the person is qualified to safely operate a motor vehicle.” ORS 807.090(l)(a).

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Related

Bidwell v. Baker
91 P.3d 793 (Court of Appeals of Oregon, 2004)
Checkley v. Boyd
14 P.3d 81 (Court of Appeals of Oregon, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
104 P.3d 1153, 197 Or. App. 125, 2005 Ore. App. LEXIS 57, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-state-orctapp-2005.