Johnson v. State ex rel. Oregon National Guard
Johnson v. State ex rel. Oregon National Guard
Opinion of the Court
Plaintiff, a national guardsman who was on two weeks’ active duty for training purposes at Camp Withycombe, was injured when an armored personnel carrier belonging to the Oregon National Guard and being operated by defendant Matchett, a fellow guardsman, struck plaintiff’s automobile and injured plaintiff.
The issue presented is whether the trial judge erred in granting defendants’ motion for summary judgment.
Defendants, in support of their motion for summary judgment in the trial court, argued that (1) defendants are immune from liability for any act of negligence by defendant Matchett while on active service with the Oregon National Guard by virtue of ORS 399.225(1)
On appeal plaintiff argues: (1) "Active service” under the immunity provision of ORS 399.065 is not
We note that plaintiff’s brief does not mention defendant’s third ground for summary judgment, namely, that plaintiff failed to allege and prove that he gave the notice of tort claim required by ORS 30.275. When questioned concerning this point during oral argument, plaintiff stated that such omission had been corrected by an affidavit filed in the trial court averring that such notice was given to the Military Department and the State Attorney General according to law.
We conclude that defendant Matchett is immune from civil liability under the provisions of ORS 399.225. While it is true that the legislature used the term "active service” in ORS 399.065 and "active duty” in ORS 399.075, we do not regard this difference as a basis for giving a narrow and restrictive construction to the immunity provision, ORS 399.225. As we read ORS 399.225, it is apparent that the legislature intended to give guardsmen personal immunity from both civil and criminal liability for acts done while acting in line of duty under lawful orders and while performing all types of active military duty.
Plaintiff does not contend that defendant Matchett was not acting in line of duty at the time of the accident or was not acting under lawful orders.
As defendant Matchett was immune from civil liability under ORS 399.225, the defendant State of Oregon and the defendant Oregon National Guard were likewise immune from suit under ORS 30.265(2)(a).
Since we have concluded that the trial court must be affirmed on the first ground urged, we do not reach the remaining grounds for summary judgment relied upon by the defendants.
Affirmed.
ORS 399.225(1) provides:
"Members of the organized militia ordered into active service of the state pursuant to this chapter shall not be hable civilly or criminally for any act or acts done by them in the performance of their duty. * *
ORS 30.265(2) provides in part:
"(2) Every public body is immune from liability for:
“(a) Any claim for injury to or death of any person or injury to property resulting from an act or omission of an officer, employe or agent of a public body when such officer, employe or agent is immune from liability.
"(b) Any claim for injury to or death of any person covered by any workmen’s compensation law.
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A11 parties have apparently assumed that defendant was ordered to "active duty” pursuant to 32 USCA § 503 (1959) and ORS 399.075(1), and not "active service” pursuant to either ORS 399.065(1) or (2). We proceed consistent with that assumption, although the record is unclear as to the nature of the state authorization.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.