holding that plaintiffs who sent notice by regular mail instead of certified mail, at time that ORS 30.275 required notice to be sent by certified mail, had "substantially complied" with the statute despite technical error
How later courts described this case
- holding that plaintiffs who sent notice by regular mail instead of certified mail, at time that ORS 30.275 required notice to be sent by certified mail, had "substantially complied" with the statute despite technical error
- asserting that Oregon Tort Claims Act contained “no suggestion that the proponents or the legislature intended to preclude recovery *** where notice proper in form and content was actually received by the statutorily designated official”
- rejecting an equal protection challenge to the OTCA statute of limitations
- noting that to withstand a motion to dismiss, allegations sufficient to establish proper notice must be plead in the complaint.
Written by the judges who cited it.
Distinguished
Distinguished by Liles v. Damon Corp., 210 Or. App. 303 (2006)
” Id. at 81. Brown, however, is inapposite because this case does not involve a mere technical defect.
The opinion
LENT, J.,
dissenting.
The majority opinion holds that the complaint states facts sufficient to allow the plaintiff to proceed to trial and to present evidence that the notice of claim was served upon “a person upon whom process could be served upon the public body in accordance with subsection (3) of ORS 15.080.”
The majority holds the complaint is sufficient because it alleges by implication that the “person upon whom process could be served” actually received the notice. The majority finds this to be substantial compliance with the statute, and I agree that it is. My disagreement with the majority is that the legislature has decreed, as commandingly as the English language permits, that substantial compliance is not sufficient.
In 1967 the Oregon Legislature enacted the “general law” required by Or Const Art IV, § 24, to allow actions against the state and other public bodies for recovery of damages for tortious injury. One of the statutory conditions of the waiver of prior immunity was the giving of notice of the claim in the manner and to the person described. Or Laws 1967, ch 627, § 5. Absent the giving of the required notice, a cause of action could not be maintained. Id.
As the majority has noted, the Court of Appeals and this court had allowed causes to be maintained where notice had been presented in a manner not strictly in compliance with the statute. 1 When the statute was amended in 1977 to add what is now the last sentence of ORS *90 30.275(1), the attention of the legislature was focused directly upon the tendency of the courts to relax the terms of the statutory condition precedent to maintaining a cause of action. The sentence quite simply says that a notice is invalid if it is presented in any manner other than “personally or by certified mail, return receipt requested.”
I perceive that by this amendment the legislature sought to narrow the scope of trial upon the issue of whether the proper person had received the required notice. The amendment would allow proof of satisfaction of the notice requirement only by evidence showing personal service upon the proper person or production of the return receipt, which would demonstrate service had been made by certified mail. Proof could be accomplished in no other way.
It is tempting to agree that substantial compliance suffices because if the person statutorily designated to receive notice actually receives the notice, the purposes of requiring notice are served; however, the legislature clearly manifested its intent that evidence of actual receipt in any manner other than that specified in the statute would not suffice to satisfy the condition precedent to maintaining the cause of action. The legislative purpose was to relieve public bodies from having to defend against assertions of notice having been given other than as prescribed. A consequence would be avoidance of spending judicial resources upon trial of the issue of whether the right person actually received the notice in other than the prescribed manner. While I might disagree with the policy decision, it is not absurd and does not produce any absurd result. The majority, by holding that a plaintiff can present evidence that the proper person actually received notice in some other manner, simply vitiates the amendment.
After all, it is not difficult strictly to comply with the statute. Its terms are simple, direct and easily understandable. The physical acts required are themselves not onerous or complicated. Dowers Farms v. Lake County, 288 Or 669 , 607 P2d 1361 (1980).
I agree with the majority that the plaintiff has not alleged the essential elements to prevail upon a theory of either waiver or estoppel. I express no opinion as to *91 whether either theory is available to a plaintiff in this kind of action.
I would affirm the trial court and the Court of Appeals.
Linde, J., joins in this dissent.
Urban Renewal Agency v. Lackey, 275 Or 35 , 549 P2d 657 (1976); Yunker v. Matthews, 32 Or App 551 , 574 P2d 696 (1978) (dealing with facts which predated the 1977 amendments); Croft v. Gulf & West/Highway Comm., 12 Or App 507 , 506 P2d 541 (1973).