Neher v. Chartier

923 P.2d 653, 142 Or. App. 534, 1996 Ore. App. LEXIS 1174
CourtCourt of Appeals of Oregon
DecidedAugust 21, 1996
DocketA9112-08001; CA A87545
StatusPublished
Cited by3 cases

This text of 923 P.2d 653 (Neher v. Chartier) 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
Neher v. Chartier, 923 P.2d 653, 142 Or. App. 534, 1996 Ore. App. LEXIS 1174 (Or. Ct. App. 1996).

Opinion

RIGGS, P. J.

In this action for wrongful death, the issues are whether the trial court erred in holding that the liability cap contained in the 1989 version of the Oregon Tort Claims Act (OTCA), ORS 30.270, applied to a claim brought against a public employee and whether the court erred in concluding that a calculation of the pecuniary loss to the decedent’s estate was a form of “special” damages under the OTCA. We affirm.

On June 17,1991, Julie Neher (the decedent) was hit and killed by a bus when she crossed a street in a marked crosswalk while the green light/walk signal was activated. Defendant Chartier, the bus driver, was an employee of defendant Tri-County Metropolitan Transportation District of Oregon (Tri-Met), a municipal corporation that operates a public transportation system in the Portland area. The decedent’s father (plaintiff), acting as personal representative of the estate, brought this wrongful death action against both Chartier and Tri-Met.

On defendants’ motion for judgment on the pleadings, the trial court denied plaintiff recovery on the basis of ORS 30.265(3)(a) (1989) a provision of the OTCA that granted immunity to public bodies and their employees if the person injured or killed was covered by any workers’ compensation law. On appeal, we affirmed. Neher v. Chartier, 124 Or App 220, 862 P2d 1307 (1993). The Supreme Court allowed review, declared that ORS 30.265(3)(a) (1989) violated Article I, section 10, of the Oregon Constitution, and remanded the case to the circuit court. Neher v. Chartier, 319 Or 417, 879 P2d 156 (1994). See also Kilminster v. Day Magnet Corp., 323 Or 618, 919 P2d 474 (1996) (discussing Neher and its holding).

On remand, the parties stipulated to a verdict that defendants Chartier and Tri-Met had been negligent and that their negligence had directly caused the decedent’s death. The parties stipulated that the decedent’s estate had incurred medical and burial expenses of $20,820.86 and also had suffered a pecuniary loss of $150,000, which was based on the present value of the decedent’s future earnings, had [537]*537she survived, less her reasonably anticipated future expenditures. They further stipulated that “$429,179.14 represents the sum of money necessary to compensate decedent’s estate for decedent’s pain and suffering, and for the loss of society, companionship and services suffered by decedent’s two surviving heirs, her parents[.]” In all, the damages totaled $600,000.

Plaintiff prepared and submitted for the trial court’s signature a form of judgment awarding $600,000 to plaintiff. Defendants objected on the grounds that plaintiffs claim against Chartier was limited by the OTCA’s $100,000 liability cap and that the estate’s $150,000 “pecuniary loss” was not an example of “special” damages, as that term was used in the OTCA. The trial court agreed that the OTCA’s liability cap applied to Chartier, but rejected defendants’ second argument. Accordingly, the court entered a judgment in which it ruled that the estate’s pecuniary loss, medical expenses and costs of burial were all “special damages” (totaling $170,820.86) and that the amount of recoverable damages, including those assessable against Chartier, was limited by the OTCA’s liability cap. It concluded that, because the decedent was survived by only two heirs, general damages were limited by the OTCA to $200,000, i.e., $100,000 per heir, and special damages were likewise limited to $100,000 per heir. The court therefore awarded damages totaling $370,820.86 ($200,000 general damages plus $170,820.86 special damages).

Plaintiff appeals, arguing that the liability cap contained in ORS 30.270(1) (1989) does not apply in a suit against an individual public employee such as Chartier. Defendants cross-appeal, arguing that the damages that were designated as “pecuniary loss” are actually damages for impaired future earnings, which should be viewed as general damages, not special damages.

We begin with plaintiffs appeal, which calls for an interpretation of ORS 30.270 (1989). That statute provided, in relevant part:

“(1) Liability of any public body or its officers, employees or agents acting within the scope of their employment or [538]*538duties on claims within the scope of [the OTCA] shall not exceed:
“(b) $100,000 to any claimant as general and special damages for all other claims arising out of a single accident or occurrence unless those damages exceed $100,000, in which case the claimant may recover additional special damages, but in no event shall the total award of special damages exceed $100,000.
“(c) $500,000 for any number of claims arising out of a single accident or occurrence.”1 (Emphasis supplied.)

Defendants focus on the portion of the statute that refers to employees “acting within the scope of their employment.” They contend that, because plaintiff specifically alleged that Chartier was acting within the scope of his employment at the time of the accident, the liability cap in subsection (l)(b) applies. Plaintiff focuses on the portion of subsection (1) that refers to “claims within the scope of [the OTCA]” and contends that the claim against Chartier is, instead, a “common law claim.”

The record does not support plaintiffs contention. The complaint is captioned “Second Amended Complaint for Wrongful Death.” It alleges that

“[a]t all times pertinent, Larry Lee Chartier was a Tri-Met bus operator acting within the course and scope of his employment in operating a Tri-Met bus.”

The complaint also alleges that the decedent was killed as a direct result of defendants’ negligence and it states that notice of this claim was given to Tri-Met pursuant to the OTCA. Nothing in the complaint suggests that the claim against Chartier is a common-law claim that is being brought against him in his capacity as a private individual. Instead, it clearly reveals that the action is against Tri-Met under the [539]*539doctrine of respondeat superior and against Chartier in his capacity as a Tri-Met bus driver, i.e., in his capacity as an employee of a public body. Accordingly, it is a claim “within the scope of’ the OTCA, ORS 30.270(1) (1989), and it is subject to the damages limitation in subsection (1)(b) of that statute. See also ORS 30.265(1) (1989) (scope of liability under OTCA encompasses torts committed by public officers, employees and agents who are acting within the scope of their employment or duties).

Plaintiff argues that such a conclusion is contrary to the Supreme Court’s holding in Krieger v. Just, 319 Or 328, 876 P2d 754 (1994). In Krieger,

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Bluebook (online)
923 P.2d 653, 142 Or. App. 534, 1996 Ore. App. LEXIS 1174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neher-v-chartier-orctapp-1996.