Neher v. Chartier
Neher v. Chartier
Opinion of the Court
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
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 duties 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
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, the court analyzed the 1987 version of the OTCA
Even if Krieger were relevant, the critical difference between that case and the present is that here, plaintiffs wrongful death claim was against both a public body and a public employee acting in his official capacity, and as a result, Tri-Met was obligated to defend and indemnify Chartier.
We turn to defendants’ cross-appeal, which presents an issue of first impression: Are the damages for “pecuniary loss” to the decedent’s estate assessable against Tri-Met as “general” damages, or did the trial court properly conclude that they are “additional special damages” under ORS 30.270(l)(b)? The OTCA does not define those terms, but the parties appear to agree, correctly, that for purposes of the OTCA, “special” damages are the equivalent of “economic” damages. See Whitman-McCoy v. Dept. of Corrections, 132 Or App 45, 50, 887 P2d 375 (1994) (after the change in nomenclature, general damages are “noneconomic” damages and special damages are “economic” damages).
ORS 18.560(2)(a) (1989) defines economic damages as
“objectively verifiable monetary losses including but not limited to * * * loss of income and past and future impairment of earning capacity [.]” (Emphasis supplied.)
“subjective, nonmonetary losses, including but not limited to pain, mental suffering, emotional distress, * * * loss of care, comfort, companionship and society, loss of consortium, inconvenience and interference with normal and usual activities apart from gainful employment.” ORS 18.560(2)(b) (1989) (emphasis supplied).
See also Greist v. Phillips, 322 Or 281, 291, 906 P2d 789 (1995) (interpreting ORS 18.560). Defendants contend that the $150,000 “pecuniary loss” to which the parties stipulated — based on their calculation of the present value of the decedent’s future earnings, had she survived, less her reasonably anticipated future expenditures — is analogous to a claim for impaired future earning capacity, which was treated as a form of general damages in Kinney v. General Construction Company, 248 Or 500, 509, 435 P2d 297 (1967) (“impairment of future earning capacity is part of general damages and is incapable of exact monetary computation”). However, Kinney was decided under the common law and not under ORS 18.560. That statute, which controls the present case, specifically provides that “future impairment of earning capacity” is a type of economic damage. ORS 18.560(2) (1989)
Defendants also argue, in the alternative, that plaintiff’s total recovery cannot exceed $300,000, because ORS 30.270(1)(b) provides that “any claimant” may recover $100,000 as general and special damages, but then states that “in no event shall the total award of special damages exceed $100,000.” Defendants apparently interpret the latter clause as a limitation on the aggregate amount recoverable as special damages on a wrongful death claim. Hence, they arrive at a maximum available recovery of $300,000: $100,000 in general damages for each of the two claimants, plus $100,000 for special damages. That interpretation is incorrect and inconsistent with the balance of the statute. As the Supreme Court said in Christensen v. Epley, 287 Or 539, 601 P2d 1216 (1979), when the personal representative of an estate brings a wrongful death claim under the OTCA, the representative sues on behalf of the decedent’s beneficiaries, whose number determines the number of “claims” and therefore the number of “claimants.” By its terms, the $100,000 special damages limitation in ORS 30.270(1)(b) applies to “any claimant” and therefore limits the amount that each claimant may recover as special damages. That subsection does not address aggregate amounts, i.e., it does not establish a cap on the total amount of money recoverable as a result of one individual’s wrongful death. ORS 30.270(1)(c) (1989), however, does. It provides that a damage award payable by a public body in an action under the OTCA is limited to $500,000 regardless of the number of claims (and therefore claimants) in that action.
Thus, so long as the aggregate damage award for all claimants is within that $500,000 cap, the maximum award possible for each claimant is $200,000: $100,000 for general damages and $100,000 for special damages. ORS 30.270(1)(b) (1989). Such an award ($200,000 to one individual) is possible only when the general and special damages together exceed $100,000, “in which case the claimant may recover additional special damages, but in no event shall the total
Affirmed on appeal and on cross-appeal.
The OTCA has since been amended to provide that the “sole cause of action for any tort of [public employees] acting within the scope of their employment or duties and eligible for representation and indemnification * * * shall be an action against the public body only.” ORS 30.265(1) (emphasis supplied). See Berry v. Dept. of General Services, 141 Or App 225, 917 P2d 1070 (1996) (similar issue, but decided under current version of the statute).
The relevant portion of the 1987 version of the OTCA is identical to the language of the 1989 version that is at issue in this case.
We need not address plaintiffs equal protection arguments because our holding does not impair the ability to recover against public employees in their private capacities. See also Hale v. Port of Portland, 308 Or 508, 525, 783 P2d 506 (1989) (rejecting equal protection challenge to OTCA’s damage limitations); Rogers v. Saylor, 306 Or 267, 286, 760 P2d 232 (1988) (the OTCA limits damages to the extent that public employees acted within the scope of their duties, but a common-law claim without limitation on damages can be brought to redress acts committed outside that scope).
ORS 18.560(1) (1989) provides:
“Except for claims subject to [the OTCA] and [the Oregon Workers’ Compensation Act], in any civil action seeking damages arising out of bodily injury, including emotional injury or distress, death or property damage of any one person including claims for loss of care, comfort, companionship and society and loss of consortium, the amount awarded for noneconomic damages shall not exceed $500,000." (Emphasis supplied.)
By its specific citation to the OTCA in subsection (1) but not in subsection (2), which provides the definitions for economic and noneconomic damages, we understand ORS 18.560 to be inapplicable to OTCA claims only with regard to the liability cap in subsection (1). See Rogers v. Saylor, 306 Or 267, 272 n 6, 760 P2d 232 (1988) (an OTCA case citing ORS 18.560 for its definition of noneconomic damages); see also Griffin v. Tri-Met, 318 Or 500, 517 n 4, 870 P2d 808 (1994) (Unis, J., dissenting) (same).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.