Chapter 30 — Actions and Suits in Particular Cases

2011 EDITION

ACTIONS AND SUITS IN PARTICULAR CASES

SPECIAL ACTIONS AND PROCEEDINGS

ACTIONS FOR INJURY OR DEATH

30.010 Who may maintain action for injury or death of child

30.020 Action for wrongful death; when commenced; damages

30.030 Distribution of damages

30.040 Apportionment among dependents upon settlement

30.050 Apportionment among dependents after judgment

30.060 Appeal from order of distribution or apportionment

30.070 Settlement; discharge of claim

30.075 Procedure upon death of injured person

30.080 Effect of death of wrongdoer

30.090 Appointment of administrator of estate of wrongdoer

30.100 Substitution of personal representative as party defendant

ACTIONS BY GUEST PASSENGERS

30.115 Aircraft and watercraft guest passengers; definitions

30.130 Public carriers by aircraft and prospective aircraft purchasers

LIABILITY OF CERTAIN PERSONS PROVIDING MOTOR VEHICLES

30.135 Liability of certain persons that lend, rent, donate use of, make available for test drive or otherwise provide motor vehicle

ENFORCEMENT OF RIGHTS UNDER SERVICEMEMBERS CIVIL RELIEF ACT

30.136 Action to enforce right or remedy under Servicemembers Civil Relief Act

30.138 Remedies for violation of Servicemembers Civil Relief Act

ACTIONS ON CERTAIN CONSTRUCTION AGREEMENTS

30.140 Certain indemnification provisions in construction agreement void

30.145 Certain provisions relating to waivers in construction agreements void

ACTIONS AGAINST FORMER EMPLOYER FOR DISCLOSURE OF INFORMATION

30.178 Liability of employer for disclosing information about employee to new employer; no action based on compelled self-publication

ACTIONS ARISING OUT OF PROVISION OF UTILITY SERVICES

30.180 Definitions for ORS 30.180 to 30.186

30.182 Civil action for taking of or tampering with utility services

30.184 Amount recoverable; attorney fees

30.186 Remedies not exclusive

ACTIONS ARISING OUT OF PROVISION OF CABLE SERVICES

30.192 Definitions for ORS 30.192 to 30.196

30.194 Prohibitions relating to cable services

30.195 Civil action for violation of prohibitions relating to cable services

30.196 Amount recoverable; attorney fees

ACTIONS FOR INTIMIDATION

30.198 Civil action for intimidation; remedies; attorney fees; liability of parents

30.200 Action by district attorney; effect on others

ACTIONS ON OFFICIAL BONDS

30.210 To whom official bonds are security

30.220 Parties

30.230 Leave to begin action

30.240 Subsequent delinquencies on same bond

30.250 Amount of judgment

TORT ACTIONS AGAINST PUBLIC BODIES

(Generally)

30.260 Definitions for ORS 30.260 to 30.300

30.261 Limitation on applicability of ORS 30.260 to 30.300 to certain private, nonprofit organizations

30.262 Certain nonprofit facilities and homes public bodies for purposes of ORS 30.260 to 30.300

30.264 Liability insurance for students involved in off-campus experiential activities; coverage under ORS 30.260 to 30.300

30.265 Scope of liability of public body, officers, employees and agents; liability in nuclear incident

30.267 Liability for certain medical treatment at Oregon Health and Science University facilities

30.268 Liability for certain medical treatment at facilities other than Oregon Health and Science University

30.269 Limitations on awards under Oregon Tort Claims Act generally

30.271 Limitations on liability of state for personal injury and death

30.272 Limitations on liability of local public bodies for personal injury and death

30.273 Limitations on liability of public bodies for property damage or destruction

30.274 Direct appeal of constitutionality of limitations

30.275 Notice of claim; time of notice; time of action

30.278 Reporting notice of claim of professional negligence to licensing board

30.282 Local public body insurance; self-insurance program; action against program

30.285 Public body shall indemnify public officers; procedure for requesting counsel; extent of duty of state; obligation for judgment and attorney fees

30.287 Counsel for public officer; when public funds not to be paid in settlement; effect on liability limit; defense by insurer

30.290 Settlement of claims by local public body

30.295 Payment of judgment or settlement; remedies for nonpayment; tax levy for payment; installment payments

30.297 Liability of certain state agencies for damages caused by foster child or youth offender; conditions; exceptions

30.298 Liability of certain state agencies to foster parents for injury or damage caused by foster child or youth offender; conditions; limitations

30.300 ORS 30.260 to 30.300 exclusive

(Certain Retired Physicians)

30.302 Certain retired physicians to be considered agents of public bodies

ACTIONS AND SUITS BY AND AGAINST GOVERNMENTAL UNITS AND OFFICIALS

30.310 Actions and suits by governmental units

30.312 Actions by governmental units under federal antitrust laws

30.315 Proceedings by cities and counties to enforce ordinances and resolutions

30.320 Contract and other actions and suits against governmental units

30.330 Contracts of Department of Transportation providing for arbitration

30.340 Title of proceedings by or against county; control of proceedings by county court

30.360 Governmental unit as defendant in actions involving liens on realty

30.370 Service of summons on Attorney General; content

30.380 Action by assignee of claim for money illegally charged or exacted

30.390 Satisfaction of judgment against public corporation

30.395 Settlement of certain claims against municipal corporations; manner of payment

30.400 Actions by and against public officers in official capacity

INJUNCTIONS BY PUBLIC SERVANT OR PUBLIC SERVANT’S EMPLOYER

30.405 Injunction for criminal conduct related to employment or status of public servant

30.407 Request for hearing following issuance of order under ORS 30.405

RECOVERY OF FINES AND FORFEITURES

30.410 In whose name action brought

30.420 Venue of action for forfeiture

30.430 Amount of penalty

30.440 Judgment by collusion not a bar

30.460 Payment of fines or costs in proceeding to enforce county ordinance or resolution; defendant personally liable

VOLUNTEERS TRANSPORTING OLDER PERSONS AND PERSONS WITH DISABILITIES

30.475 Legislative policy

30.480 Limitation on liability of volunteers; conditions

30.485 Apportionment of damages; insurance issues excluded from jury consideration

VOLUNTEERS PROVIDING ASSISTANCE OR ADVICE IN RESPONSE TO DISCHARGE OF HAZARDOUS MATERIAL OR RELATING TO COMPLIANCE WITH DISPOSAL LAWS

30.490 Definitions for ORS 30.490 to 30.497

30.492 Limitation on liability of volunteer providing assistance or advice related to mitigation or cleanup of discharge of hazardous material

30.495 Exceptions to limitation

30.497 When limitation on liability not applicable

30.500 Definitions for ORS 30.500 and 30.505

30.505 Limitation on liability of volunteer providing assistance relating to compliance with hazardous waste disposal laws; exceptions

ACTIONS FOR USURPATION OF OFFICE OR FRANCHISE; TO ANNUL CORPORATE EXISTENCE; TO ANNUL LETTERS PATENT

30.510 Action for usurpation of office or franchise, forfeiture of office or failure to incorporate

30.520 Joinder of defendants

30.530 Determining right of person claiming an office or franchise

30.540 Rights of person adjudged entitled to office or franchise

30.550 Action for damages

30.560 Judgment against usurper; imposition of fine

30.570 Action to annul corporate existence on direction of Governor

30.580 Action to annul corporate existence on leave of court

30.590 Judgment against corporation

30.600 Action to annul letters patent

30.610 Prosecutor; verification of pleadings; affidavit for leave of court; relator as coplaintiff

30.620 Duty of district attorney

30.630 Filing copy of judgment with Secretary of State

30.640 Enforcement of judgment

ACTIONS AGAINST PUBLIC BODY BY INMATES

30.642 Definitions for ORS 30.642 to 30.650

30.643 Waiver or deferral of fees and costs in action against public body by inmate

30.645 Waiver or deferral of fees after three dismissals of action

30.646 Payment of costs under judgment against inmate

30.647 Dismissal of inmate action during proceedings

30.648 Small claims actions by inmates against public bodies

30.650 Award of noneconomic damages in inmate action

ACTIONS BASED ON COMPUTER DATE FAILURE

30.655 Definitions for ORS 30.655 to 30.665

30.656 Action for computer date failure

30.658 Opportunity to cure

30.660 Affirmative defense; notice and repair

30.661 Affirmative defense; reliance

30.662 Affirmative defense; compliance testing

30.664 Punitive damages

30.665 Applicability

ACTIONS ARISING OUT OF EQUINE ACTIVITIES

30.687 Definitions for ORS 30.687 to 30.697

30.689 Policy

30.691 Limitations on liability; exceptions

30.693 Additional exceptions to limitations on liability; effect of written release

30.695 Effect of written release on liability of veterinarian or farrier

30.697 Effect on workers’ compensation benefits

MISCELLANEOUS ACTIONS

30.701 Actions against maker of dishonored check; statutory damages and attorney fees; handling fee

30.715 Successive actions or suits

30.740 Right of gambling loser to recover double losses

30.750 Liability of abstractors

30.765 Liability of parents for tort by child; effect on foster parents

30.780 Liability for damages caused by gambling

30.785 Liability of construction design professional for injuries resulting from failure of employer to comply with safety standards

30.788 Liability of architect, engineer, inspector or building evaluator for emergency relief services

30.792 Liability of health care provider or health clinic for volunteer services to charitable corporations

30.794 Liability of physician or hospital arising out of care provided by direct entry midwife

30.800 Liability for emergency medical assistance

30.802 Liability for use of automated external defibrillator

30.803 Liability of licensed emergency medical services provider acting as volunteer

30.805 Liability for emergency medical assistance by government personnel

30.807 Liability for emergency transportation assistance

30.809 Liability of fraternal organization that provides used eyeglasses or hearing aids

30.820 Action against seller of drugged horse; attorney fees

30.822 Action for theft of or injury to search and rescue animal or therapy animal; attorney fees

30.825 Action for unlawful tree spiking; attorney fees

30.860 Action for trade discrimination; treble damages; attorney fees

30.862 Action for public investment fraud; attorney fees

30.864 Action for disclosure of certain education records; limitation of action; attorney fees

30.865 Action for invasion of personal privacy; attorney fees

30.866 Action for issuance or violation of stalking protective order; attorney fees

30.867 Action for violation of criminal laws relating to involuntary servitude or trafficking in persons

30.868 Civil damages for custodial interference; attorney fees

30.870 Definitions for ORS 30.870 and 30.875

30.875 Civil damages for shoplifting or taking of agricultural produce

30.876 Treble damages and costs in actions arising out of interference with agricultural research

30.877 Treble damages and costs in actions arising out of research and animal interference and arising out of interference with livestock production

30.882 Award of liquidated damages to sports official subjected to offensive physical contact; attorney fees

30.890 Liability of food gleaners, donors and distributors

30.892 Liability of donors and distributors of general merchandise and household items

PRODUCT LIABILITY ACTIONS

30.900 “Product liability civil action” defined

30.902 Products provided by physicians

30.905 Time limitation for commencement of action

30.907 Action for damages from asbestos-related disease; limitations

30.908 Action arising out of injury from breast implants; limitations

30.910 Product disputably presumed not unreasonably dangerous

30.915 Defenses

30.920 When seller or lessor of product liable; effect of liability rule

30.925 Punitive damages

30.927 When manufacturer of drug not liable for punitive damages; exceptions

30.928 Time limitation for actions for damages caused by certain light bulbs

FARMING AND FOREST PRACTICES

30.930 Definitions for ORS 30.930 to 30.947

30.931 Transport or movement of equipment, device, vehicle or livestock as farming or forest practice

30.932 Definition of “nuisance” or “trespass”

30.933 Legislative findings; policy

30.934 Prohibition on local laws that make forest practice a nuisance or trespass; exceptions

30.935 Prohibition on local laws that make farm practice a nuisance or trespass

30.936 Immunity from private action based on farming or forest practice on certain lands; exceptions

30.937 Immunity from private action based on farming or forest practice allowed as preexisting nonconforming use; exceptions

30.938 Attorney fees and costs

30.939 When use of pesticide considered farming or forest practice

30.940 Effect on other remedies

30.942 Rules

30.943 Certain agencies not required to investigate complaints based on farming or forest practice

30.947 Effect of siting of destination resorts or other nonfarm or nonforest uses

ACTIONS ARISING OUT OF FOOD-RELATED CONDITION

30.961 Actions against sellers of food for food-related condition

30.963 Claim requirements for actions involving food-related conditions

SKIING ACTIVITIES

30.970 Definitions for ORS 30.970 to 30.990

30.975 Skiers assume certain risks

30.980 Notice to ski area operator of injury to skier; injuries resulting in death; statute of limitations; informing skiers of notice requirements

30.985 Duties of skiers; effect of failure to comply

30.990 Operators required to give skiers notice of duties

ACTIONS FOR INJURY OR DEATH

30.010 Who may maintain action for injury or death of child. (1) A parent having custody of a child of the parent may maintain an action for the injury of the child.

(2) A parent may recover damages for the death of a child of the parent only under ORS 30.020. [Amended by 1961 c.344 §102; 1973 c.718 §1; 2003 c.14 §16]

30.020 Action for wrongful death; when commenced; damages. (1) When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the decedent’s surviving spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedent’s domicile would be entitled to inherit the personal property of the decedent, and for the benefit of any stepchild or stepparent whether that stepchild or stepparent would be entitled to inherit the personal property of the decedent or not, may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission. The action shall be commenced within three years after the injury causing the death of the decedent is discovered or reasonably should have been discovered by the decedent, by the personal representative or by a person for whose benefit the action may be brought under this section if that person is not the wrongdoer. In no case may an action be commenced later than the earliest of:

(a) Three years after the death of the decedent; or

(b) The longest of any other period for commencing an action under a statute of ultimate repose that applies to the act or omission causing the injury, including but not limited to the statutes of ultimate repose provided for in ORS 12.110 (4), 12.115, 12.135, 12.137 and 30.905.

(2) In an action under this section damages may be awarded in an amount which:

(a) Includes reasonable charges necessarily incurred for doctors’ services, hospital services, nursing services, other medical services, burial services and memorial services rendered for the decedent;

(b) Would justly, fairly and reasonably have compensated the decedent for disability, pain, suffering and loss of income during the period between injury to the decedent and the decedent’s death;

(d) Justly, fairly and reasonably compensates the decedent’s spouse, children, stepchildren, stepparents and parents for pecuniary loss and for loss of the society, companionship and services of the decedent; and

(e) Separately stated in finding or verdict, the punitive damages, if any, which the decedent would have been entitled to recover from the wrongdoer if the decedent had lived.

(3) For the purposes of this section:

(a) Two persons shall be considered to have a stepchild-stepparent relationship if one of the biological parents of the stepchild, while the stepchild is a minor and in the custody of this first biological parent, marries the stepparent who is not the second biological parent or the adoptive parent of the stepchild;

(b) The stepchild-stepparent relationship shall remain in effect even though the stepchild is older than the age of majority or has been emancipated;

(c) The stepchild-stepparent relationship shall remain in effect even though one or both of the biological parents of the stepchild die; and

(d) The stepchild-stepparent relationship shall end upon the divorce of the biological parent and the stepparent. [Amended by 1953 c.600 §3; 1961 c.437 §1; 1967 c.544 §1; 1973 c.718 §2; 1991 c.471 §1; 1991 c.608 §1; 1995 c.618 §19]

30.030 Distribution of damages. (1) Upon settlement of a claim, or recovery of judgment in an action, for damages for wrongful death, by the personal representative of a decedent under ORS 30.020, the amount of damages so accepted or recovered shall be distributed in the manner prescribed in this section.

(2) The personal representative shall make payment or reimbursement for costs, expenses and fees incurred in prosecution or enforcement of the claim, action or judgment.

(3) The personal representative shall make payment or reimbursement for reasonable charges necessarily incurred for doctors’ services, hospital services, nursing services or other medical services, burial services and memorial services rendered for the decedent.

(4) If under ORS 30.040 or 30.050 or by agreement of the beneficiaries a portion of the damages so accepted or recovered is apportioned to a beneficiary as recovery for loss described in ORS 30.020 (2)(d), the personal representative shall distribute that portion to the beneficiary.

(5) The remainder of damages accepted or recovered shall be distributed to the beneficiaries in the proportions prescribed under the laws of intestate succession of the state of decedent’s domicile, or as agreed by the beneficiaries, but no such damages shall be subject to payment of taxes or claims against the decedent’s estate. [Amended by 1973 c.718 §3; 2009 c.51 §1]

30.040 Apportionment among dependents upon settlement. Except when all beneficiaries otherwise agree, if settlement, with or without action, is effected and there is more than one beneficiary, the amount to be distributed to each beneficiary as recovery for loss described in ORS 30.020 (2)(d) shall be apportioned by the probate court to each beneficiary in accordance with the beneficiary’s loss. [Amended by 1973 c.718 §4]

30.050 Apportionment among dependents after judgment. Except when all beneficiaries otherwise agree, if the action described in ORS 30.020 is brought, and a judgment for the plaintiff is given, and there is more than one beneficiary, the amount to be distributed to each beneficiary as recovery for loss described in ORS 30.020 (2)(d) shall be apportioned by the trial court to each beneficiary in accordance with the beneficiary’s loss. [Amended by 1973 c.718 §5]

30.060 Appeal from order of distribution or apportionment. In the case of an order of distribution under ORS 30.030 (5) or an order of apportionment made under either ORS 30.040 or 30.050, any individual who in the probate court or trial court claims to be a beneficiary may appeal therefrom, or from any part thereof, to the Court of Appeals, within the time, in the manner and with like effect as though such order was a judgment of the circuit court. [Amended by 1973 c.718 §6]

30.070 Settlement; discharge of claim. The personal representative of the decedent, with the approval of the court of appointment, shall have full power to compromise and settle any claim of the class described in ORS 30.030, whether the claim is reduced to judgment or not, and to execute such releases and other instruments as may be necessary to satisfy and discharge the claim. The party paying any such claim or judgment, whether in full or in part, or in an amount agreed upon in compromise, shall not be required to see that the amount paid is applied or apportioned as provided in ORS 30.030 to 30.060, but shall be fully discharged from all liability on payment to the personal representative.

30.075 Procedure upon death of injured person. (1) Causes of action arising out of injuries to a person, caused by the wrongful act or omission of another, shall not abate upon the death of the injured person, and the personal representatives of the decedent may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission. The action shall be commenced within the limitations established in ORS 12.110 by the injured person and continued by the personal representatives under this section, or within three years by the personal representatives if not commenced prior to death.

(2) In any such action the court may award to the prevailing party, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees.

(3) Subsection (2) of this section does not apply to an action for damages arising out of injuries that result in death. If an action for wrongful death under ORS 30.020 is brought, recovery of damages for disability, pain, suffering and loss of income during the period between injury to the decedent and the resulting death of the decedent may only be recovered in the wrongful death action, and the provisions of subsection (2) of this section are not applicable to the recovery. [1965 c.620 §4; 1971 c.473 §2; 1981 c.810 §1; 1981 c.897 §6; 1995 c.618 §21]

30.080 Effect of death of wrongdoer. Claims for relief arising out of injury to or death of a person, caused by the wrongful act or negligence of another, shall not abate upon the death of the wrongdoer, and the injured person or the personal representatives of the one meeting death, as above stated, shall have a claim for relief against the personal representatives of the wrongdoer as if the wrongdoer had survived, except for those damages provided for in ORS 30.020 (2)(e). [Amended by 1953 c.600 §3; 1961 c.437 §2; 1967 c.544 §2; 1973 c.742 §1; 1983 c.662 §1]

30.085 [1987 c.774 §10; 1997 c.734 §1; renumbered 30.698 in 1997]

30.090 Appointment of administrator of estate of wrongdoer. If no probate of the estate of the wrongdoer has been instituted within 60 days from the death of the wrongdoer, the court, upon motion of the injured person, or of the personal representatives of one meeting death, as stated in ORS 30.080, shall appoint an administrator of the estate of the wrongdoer.

30.100 Substitution of personal representative as party defendant. In the event of the death of a wrongdoer, as designated in ORS 30.080, while an action is pending, the court, upon motion of the plaintiff, shall cause to be substituted as defendant the personal representative of the wrongdoer, and the action shall continue against such personal representative.

ACTIONS BY GUEST PASSENGERS

30.110 [Repealed by 1961 c.578 §1 (30.115 enacted in lieu of 30.110 and 30.120)]

30.115 Aircraft and watercraft guest passengers; definitions. No person transported by the owner or operator of an aircraft or a watercraft as a guest without payment for such transportation, shall have a cause of action for damages against the owner or operator for injury, death or loss, in case of accident, unless the accident was intentional on the part of the owner or operator or caused by the gross negligence or intoxication of the owner or operator. As used in this section:

(1) “Payment” means a substantial benefit in a material or business sense conferred upon the owner or operator of the conveyance and which is a substantial motivating factor for the transportation, and it does not include a mere gratuity or social amenity.

(2) “Gross negligence” refers to negligence which is materially greater than the mere absence of reasonable care under the circumstances, and which is characterized by conscious indifference to or reckless disregard of the rights of others. [1961 c.578 §2 (30.115 enacted in lieu of 30.110 and 30.120); 1979 c.866 §7]

30.120 [Repealed by 1961 c.578 §1 (30.115 enacted in lieu of 30.110 and 30.120)]

30.130 Public carriers by aircraft and prospective aircraft purchasers. ORS 30.115 shall not relieve a public carrier by aircraft, or any owner or operator of aircraft while the same is being demonstrated to a prospective purchaser, of responsibility for any injuries sustained by a passenger.

LIABILITY OF CERTAIN PERSONS PROVIDING MOTOR VEHICLES

30.135 Liability of certain persons that lend, rent, donate use of, make available for test drive or otherwise provide motor vehicle. (1) Subject to the provisions of this section, a person that lends, rents, donates use of, makes available for test drive or otherwise provides a motor vehicle, as defined in ORS 801.360, to another person is not liable for any injury, death or damage that arises out of the use of that motor vehicle by the other person, unless the person providing the motor vehicle is negligent in maintaining the motor vehicle or in providing the motor vehicle and the injury, death or damage results from that negligence.

(2) The limitation on liability provided by this section applies only if the person providing the motor vehicle is engaged in the business of selling, renting, leasing or repairing motor vehicles and the motor vehicle is provided to another person in the course of that business.

(3) The limitation on liability provided by this section applies only if there is a written agreement between the person providing the motor vehicle and the person receiving the motor vehicle, and the agreement specifically indicates that the person receiving the motor vehicle is liable for any injury, death or damage arising out of the use of the motor vehicle. The limitation on liability provided by this section applies to injury, death or damage suffered during the period specified in the written agreement, or until the return of the motor vehicle, whichever is later.

(4) The limitation on liability provided by this section applies without regard to whether the motor vehicle is provided for consideration or is provided without charge.

(5) Nothing in this section affects the liability of a manufacturer, distributor, seller or lessor of a product under the provisions of ORS 30.900 to 30.920.

(6) Nothing in this section increases, reduces or relates to those obligations that a self-insurer may choose to undertake pursuant to ORS 806.130. Nothing in ORS 806.130 increases, reduces or relates to the limitations of this section. [1999 c.438 §1; 2001 c.291 §1; 2003 c.331 §1; 2007 c.287 §4]

ENFORCEMENT OF RIGHTS UNDER SERVICEMEMBERS CIVIL RELIEF ACT

30.136 Action to enforce right or remedy under Servicemembers Civil Relief Act. (1) As used in this section and ORS 30.138, “servicemember” has the meaning given that term in 50 U.S.C. App. 511 as in effect on May 8, 2009.

(2) An action brought by a servicemember to enforce a right or remedy under 50 U.S.C. App. 501 et seq. is not subject to court-ordered arbitration under ORS 36.400 to 36.425 unless the parties to the action stipulate in writing to arbitration after the action is commenced.

(3) In addition to the counties specified in ORS 14.080, an action brought by a servicemember to enforce a right or remedy under 50 U.S.C. App. 501 et seq. may be brought in the Oregon county where the servicemember resides or where the servicemember was a resident at the time of bringing the action.

(4) Any contract term or provision providing for a choice of forum other than Oregon in an agreement entered into by a servicemember who resides in Oregon or is a resident of Oregon is voidable at the election of the servicemember. [2009 c.83 §1]

Note: Section 4, chapter 83, Oregon Laws 2009, provides:

Sec. 4. Sections 1 and 2 of this 2009 Act [30.136 and 30.138] apply only to conduct that violates 50 U.S.C. App. 501 et seq. that occurs on or after the effective date of this 2009 Act [May 8, 2009]. [2009 c.83 §4]

30.138 Remedies for violation of Servicemembers Civil Relief Act. (1) In addition to any other remedy payable to a servicemember for the enforcement of a right under 50 U.S.C. App. 501 et seq., a court shall award a servicemember reasonable attorney fees and the amounts specified in subsection (2) of this section if the court finds that written demand as described in subsection (3) of this section was mailed to the opposing party demanding relief under 50 U.S.C. App. 501 et seq., and the opposing party failed to remedy the violation of 50 U.S.C. App. 501 et seq. within 30 days after the mailing of the demand.

(2) If a court finds that notice was mailed as required by this section, and the opposing party failed to remedy the violation of 50 U.S.C. App. 501 et seq. within the time allowed, the court shall award the servicemember:

(a) The greater of $1,000 or actual damages, including damages for emotional distress; or

(b) If the court finds that the opposing party’s conduct was willful, as described in ORS 646.605, the court shall award the servicemember the greater of $5,000, or three times the amount of actual damages, including damages for emotional distress.

(3) A written demand under subsection (1) of this section must be sent by certified mail, return receipt requested. The demand must include the servicemember’s name and address, the date on which the servicemember went on active duty and a description of the alleged violation of 50 U.S.C. App. 501 et seq. [2009 c.83 §2]

Note: See note under 30.136.

ACTIONS ON CERTAIN CONSTRUCTION AGREEMENTS

30.140 Certain indemnification provisions in construction agreement void. (1) Except to the extent provided under subsection (2) of this section, any provision in a construction agreement that requires a person or that person’s surety or insurer to indemnify another against liability for damage arising out of death or bodily injury to persons or damage to property caused in whole or in part by the negligence of the indemnitee is void.

(2) This section does not affect any provision in a construction agreement that requires a person or that person’s surety or insurer to indemnify another against liability for damage arising out of death or bodily injury to persons or damage to property to the extent that the death or bodily injury to persons or damage to property arises out of the fault of the indemnitor, or the fault of the indemnitor’s agents, representatives or subcontractors.

(3) As used in this section, “construction agreement” means any written agreement for the planning, design, construction, alteration, repair, improvement or maintenance of any building, highway, road excavation or other structure, project, development or improvement attached to real estate including moving, demolition or tunneling in connection therewith.

(4) This section does not apply to:

(a) Any real property lease or rental agreement between a landlord and tenant whether or not any provision of the lease or rental agreement relates to or involves planning, design, construction, alteration, repair, improvement or maintenance as long as the predominant purpose of the lease or rental agreement is not planning, design, construction, alteration, repair, improvement or maintenance of real property; or

(b) Any personal property lease or rental agreement.

(5) No provision of this section shall be construed to apply to a “railroad” as defined in ORS 824.200. [1973 c.570 §§1,2; 1987 c.774 §25; 1995 c.704 §1; 1997 c.858 §1; 2007 c.413 §1]

30.142 [2001 c.616 §1; renumbered 31.150 in 2003]

30.144 [2001 c.616 §2; renumbered 31.152 in 2003]

30.145 Certain provisions relating to waivers in construction agreements void. (1) Except as provided in this section, a provision in a construction agreement is void to the extent that the provision requires a party or the party’s surety or insurer to waive a right of subrogation, indemnity or contribution for amounts paid by reason of death or bodily injury, or damage to property, caused in whole or in part by the negligence of another person.

(2) This section does not apply to a provision for waiver of subrogation, indemnity or contribution in an insurance policy issued pursuant to ORS 737.602 or to a provision for waiver of subrogation, indemnity or contribution that applies to proceeds of a property insurance policy.

(3) This section does not apply to a provision for waiver of subrogation, indemnity or contribution in a real property lease or rental agreement between a landlord and tenant, whether or not any provision of the lease or rental agreement relates to or involves planning, designing, constructing, altering, repairing, improving or maintaining, as long as the predominant purpose of the lease or rental agreement is not planning, designing, constructing, altering, repairing, improving or maintaining real property.

(4) This section does not apply to a provision for waiver of subrogation, indemnity or contribution in a personal property lease or rental agreement.

(5) This section does not apply to a provision for waiver of subrogation, indemnity or contribution in a construction agreement in which one of the parties is a railroad as defined in ORS 824.200.

(6) As used in this section, “construction agreement” has the meaning given that term in ORS 30.140. [2011 c.518 §1]

30.146 [2001 c.616 §3; renumbered 31.155 in 2003]

30.150 [Formerly 30.760; renumbered 31.200 in 2003]

30.155 [1955 c.365 §1; renumbered 31.205 in 2003]

30.160 [1955 c.365 §2; renumbered 31.210 in 2003]

30.165 [1955 c.365 §3; 1991 c.249 §4; renumbered 31.215 in 2003]

30.170 [1955 c.365 §4; renumbered 31.220 in 2003]

30.175 [1955 c.365 §5; renumbered 31.225 in 2003]

ACTIONS AGAINST FORMER EMPLOYER FOR DISCLOSURE OF INFORMATION

30.178 Liability of employer for disclosing information about employee to new employer; no action based on compelled self-publication. (1) An employer who discloses information about a former employee’s job performance to a prospective employer of the former employee upon request of the prospective employer or of the former employee is presumed to be acting in good faith and, unless lack of good faith is shown by a preponderance of the evidence, is immune from civil liability for such disclosure or its consequences. For purposes of this section, the presumption of good faith is rebutted upon a showing that the information disclosed by the employer was knowingly false or deliberately misleading, was rendered with malicious purpose or violated any civil right of the former employee protected under ORS chapter 659 or 659A.

(2) A civil action for defamation may not be maintained against an employer by an employee who is terminated by the employer based on a claim that in seeking subsequent employment the former employee will be forced to reveal the reasons given by the employer for the termination. [1995 c.330 §1; 1997 c.754 §1; 2001 c.621 §68]

ACTIONS ARISING OUT OF PROVISION OF UTILITY SERVICES

30.180 Definitions for ORS 30.180 to 30.186. As used in ORS 30.180 to 30.186:

(1) “Customer” means the person in whose name a utility service is provided.

(2) “Divert” means to change the intended course or path of the utility service without the authorization or consent of the utility.

(3) “Person” means any individual, partnership, firm, association, corporation or government agency.

(4) “Reconnection” means the commencement of utility service to a customer or other person after service has been lawfully disconnected by the utility.

(5) “Tamper” means to rearrange, injure, alter, interfere with or otherwise prevent from performing the normal or customary function.

(6) “Utility” means a private corporation, a municipal corporation or an agency thereof, any other public corporation or any district that provides electricity, gas, water, telephone or cable television to customers on a retail or wholesale basis.

(7) “Utility service” means the provision of electricity, gas, water, telephone, cable television, electronic communications, steam or any other service or commodity furnished by the utility for compensation. [1989 c.670 §3]

30.182 Civil action for taking of or tampering with utility services. A utility may bring a civil action for damages against any person who knowingly and willfully commits, authorizes, solicits, aids, abets or attempts to:

(1) Divert, or cause to be diverted, utility services by any means whatsoever;

(2) Make, or cause to be made, any connection or reconnection with property owned or used by the utility to provide utility service without the authorization or consent of the utility;

(3) Prevent any utility meter or other device used in determining the charge for utility services from accurately performing its measuring function by tampering or by any other means;

(4) Tamper with any property owned or used by the utility to provide utility services; or

(5) Use or receive the direct benefit of all or a portion of the utility service with knowledge of, or reason to believe that, the diversion, tampering or unauthorized connection existed at the time of the use or that the use or receipt was without the authorization or consent of the utility. [1989 c.670 §1]

30.184 Amount recoverable; attorney fees. In any civil action brought under this section, the utility shall recover from the defendant the greater of actual damages, if any, or $100. Actual damages include the costs incurred on account of the bypassing, tampering or unauthorized reconnection, including but not limited to costs and expenses for investigation, disconnection, reconnection and service calls. The utility may recover punitive damages in addition to actual damages. The court may award reasonable attorney fees and expert witness fees to the prevailing party in an action under this section. [1989 c.670 §2; 1993 c.217 §1; 1995 c.618 §22]

30.186 Remedies not exclusive. The remedies provided in ORS 30.180 to 30.186 are in addition to, and not in lieu of, any and all other remedies, both civil and criminal, provided by law. [1989 c.670 §4]

30.190 [1981 c.785 §3; 1983 c.521 §3; 1995 c.618 §23; renumbered 30.198 in 1999]

ACTIONS ARISING OUT OF PROVISION OF CABLE SERVICES

30.192 Definitions for ORS 30.192 to 30.196. As used in ORS 30.192 to 30.196:

(1) “Cable operator” means a person who:

(a) Lawfully provides cable service over a cable system in which the person, directly or through one or more affiliates, owns a significant interest; or

(b) Lawfully controls or is responsible for the management and operation of a cable system through an arrangement.

(2) “Cable service” means:

(a) One-way transmission to subscribers of a video programming service;

(b) Two-way interactive services delivered over a cable system; or

(3) “Cable system” means a facility consisting of closed transmission paths and associated signal operation, reception and control equipment that is designed to provide cable service. [1999 c.705 §1]

30.194 Prohibitions relating to cable services. A person shall not knowingly:

(1) Obtain cable service from a cable operator by trick, artifice, deception, use of an unauthorized device or decoder, or other means without authorization or with the intent to deprive the cable operator of lawful compensation for services rendered;

(2) Make or maintain, without authorization from or payment to a cable operator, a connection or connections, whether physical, electrical, mechanical, acoustical or otherwise with any cable, wire, component or other device used for the distribution of cable services, except that nothing in this subsection is intended to make unlawful circumstances in which the person has attached a wire or cable to extend authorized or paid cable services to an additional outlet or in which the cable operator has failed to disconnect previously authorized or paid cable service;

(3) Modify, alter or maintain a modification or alteration to a device installed by a cable operator if the modification or alteration is for the purpose of intercepting or otherwise receiving cable service without authorization from or payment to the cable operator;

(4) Possess, with intent to receive cable services without authorization from or payment to a cable operator, a printed circuit board or other device designed in whole or in part to facilitate:

(a) Receiving cable services offered for sale over a cable system; or

(b) Performing or facilitating any act described in subsections (1) to (3) of this section;

(5) Manufacture, import into this state, distribute, sell, lease or offer for sale or lease, with intent to promote the receipt of cable services without authorization from or payment to a cable operator, any printed circuit board, plan or other device, or a kit for such a device, designed in whole or in part to facilitate:

(a) Receiving cable services offered for sale over a cable system; or

(b) Performing or facilitating any act described in subsections (1) to (3) of this section; or

(6) Fail to return or surrender, upon demand and after service has been terminated, equipment provided by a cable operator to receive cable service. [1999 c.705 §2]

30.195 Civil action for violation of prohibitions relating to cable services. (1) A cable operator may bring a civil action for damages against any person who violates any provision of ORS 30.194.

(2) A cable operator who alleges a violation of ORS 30.194 may file for injunctive relief in the circuit court for the county where the alleged violation occurred or is occurring.

(3) A cable operator who files an action under this section is not required to plead damages with particularity as a condition of filing or maintaining the action.

(4) In any action brought under this section, there shall be a rebuttable presumption that a person has violated ORS 30.194 (1) if the person is in actual possession of a device that permits the reception of unauthorized cable services for which payment has not been made and for which no legitimate purpose exists.

(5) In any action brought under this section, there shall be a rebuttable presumption that a person has violated ORS 30.194 (2) if cable service to the person’s business or residence was disconnected by a cable operator, notice of the disconnection was provided to the person by certified mail, and a connection exists at the person’s business or residence after the date of the notice.

(6) In any action brought under this section, there shall be a rebuttable presumption that a person has violated ORS 30.194 (3) if the cable operator as standard procedure:

(a) Places written warning labels on its converters or decoders indicating that tampering with the devices is a violation of law and a converter or decoder is found to have been tampered with, altered or modified to allow the reception of cable services without authorization from or payment to the cable operator; or

(b) Seals its converters or decoders with a label or mechanical device and the label or device has been removed or broken.

(7) In any action brought under this section, there shall be a rebuttable presumption that a person has violated ORS 30.194 (4) if a person possesses 10 or more printed circuit boards or other devices designed to receive cable services. A person who is found to have violated ORS 30.194 (4) shall be subject to penalties described in ORS 30.196 (2).

(8) In any action brought under this section, there shall be a rebuttable presumption that a person has violated ORS 30.194 (5) if the person made representations to a buyer that the device offered for sale would allow the purchaser to obtain cable service without authorization from or payment to a cable operator. A person who is found to have violated ORS 30.194 (5) shall be subject to penalties described in ORS 30.196 (2).

(9) In any action brought under this section, there shall be a rebuttable presumption that a person has violated ORS 30.194 (6) if a cable operator sent to the person by certified mail, at the most recent address for the person shown in the records of the cable operator, a written demand for the return of converters, decoders or other equipment owned by the cable operator. The demand shall allow the person to make reasonable arrangements to return the equipment within 15 days of receiving the notice. Reasonable arrangements may include a request that the cable operator pick up the equipment, subject to the cable operators written policies.

(10) Statements from a manufacturer or retailer regarding the intended use or uses of a product shall not constitute a defense to an alleged violation of ORS 30.194 (5). [1999 c.705 §3]

30.196 Amount recoverable; attorney fees. (1) In addition to any other penalty provided by law, a cable operator who prevails on a claim under ORS 30.195 may recover the amount of $3,000.

(2)(a) A court may increase an award under subsection (1) of this section to an amount not to exceed $50,000 if the court determines that the violation was committed for purposes of commercial advantage.

(b) As used in this subsection, “commercial advantage” does not include any monetary gain realized by a person’s private use of unauthorized cable services.

(3) The prevailing party in an action brought under ORS 30.195 shall be awarded reasonable court costs and attorney fees and all costs including but not limited to the cost of investigation, disconnection or reconnection, service calls, labor, equipment and expert testimony. [1999 c.705 §4]

ACTIONS FOR INTIMIDATION

30.198 Civil action for intimidation; remedies; attorney fees; liability of parents. (1) Irrespective of any criminal prosecution or the result thereof, any person injured by a violation of ORS 166.155 or 166.165 shall have a civil action to secure an injunction, damages or other appropriate relief against any and all persons whose actions are unlawful under ORS 166.155 and 166.165.

(2) Upon prevailing in such action, the plaintiff may recover:

(a) Both special and general damages, including damages for emotional distress; and

(b) Punitive damages.

(3) The court shall award reasonable attorney fees to the prevailing plaintiff in an action under this section. The court may award reasonable attorney fees and expert witness fees incurred by a defendant who prevails in the action if the court determines that the plaintiff had no objectively reasonable basis for asserting a claim or no reasonable basis for appealing an adverse decision of a trial court.

(4) The parent, parents or legal guardian of an unemancipated minor shall be liable for any judgment recovered against such minor under this section, in an amount not to exceed $5,000. [Formerly 30.190]

30.200 Action by district attorney; effect on others. If any district attorney has reasonable cause to believe that any person or group of persons is engaged in violation of ORS 166.155 or 166.165, the district attorney may bring a civil claim for relief in the appropriate court, setting forth facts pertaining to such violation, and request such relief as may be necessary to restrain or prevent such violation. Any claim for relief under this section does not prevent any person from seeking any other remedy otherwise available under law. [1981 c.785 §4]

ACTIONS ON OFFICIAL BONDS

30.210 To whom official bonds are security. The official undertaking or other security of a public officer to the state, or to any county, city or other public corporation of like character therein, is a security to the state, county, city or public corporation, as the case may be, and also, to all persons severally for the official delinquencies against which it is intended to provide.

30.220 Parties. When a public officer by official misconduct or neglect of duty forfeits an official undertaking or other security of the public officer, or renders the sureties of the public officer liable thereon, any person injured by the misconduct or neglect, or who is by law entitled to the benefit of the security, may maintain an action thereon in the name of the person, against the officer and the sureties of the officer, to recover the amount to which the person may by reason thereof be entitled.

30.230 Leave to begin action. Before an action can be commenced by a plaintiff other than the state, or the public corporation named in the undertaking or security, leave shall be obtained of the court or judge thereof where the action is triable. Such leave shall be granted upon the production of a certified copy of the undertaking or security, and an affidavit of the plaintiff or some person on behalf of the plaintiff showing the delinquency; but if the matters set forth in the affidavit are such that, if true, the party applying would clearly not be entitled to recover in the action, the leave shall not be granted. If it does not appear from the complaint that leave has been granted, the defendant on motion shall be entitled to judgment of dismissal without prejudice; if it does, the defendant may controvert the allegation, and if the issue be found in favor of the defendant, judgment shall be given accordingly. [Amended by 1979 c.284 §63]

30.240 Subsequent delinquencies on same bond. A judgment in favor of a party for one delinquency shall not preclude the same or another party from maintaining another action on the same undertaking or security for another delinquency.

30.250 Amount of judgment. In an action upon an official undertaking or security, if judgments have already been recovered on the same undertaking or security against the surety therein, other than by confession, and if such recovery is established on the trial, judgment shall not be given against the surety for an amount exceeding the difference between the amount of the penalty and the amount that already has been recovered against the surety.

TORT ACTIONS AGAINST PUBLIC BODIES

(Generally)

30.260 Definitions for ORS 30.260 to 30.300. As used in ORS 30.260 to 30.300, unless the context requires otherwise:

(1) “Department” means the Oregon Department of Administrative Services.

(2) “Director” means the Director of the Oregon Department of Administrative Services.

(3) “Governing body” means the group or officer in which the controlling authority of any public body is vested.

(4) “Public body” means:

(a) A public body as defined in ORS 174.109;

(b) Any nonprofit corporation that is organized and existing under ORS chapter 65 and that has only political subdivisions or municipal, quasi-municipal or public corporations in this state as members;

(c) A private child-caring agency, as defined in ORS 418.205, that meets the criteria specified in ORS 278.322 (1)(a) and that receives more than 50 percent of its funding from the state for the purpose of providing residential treatment to children who have been placed in the care and custody of the state or that provides residential treatment to children more than half of whom have been placed in the care and custody of the state; or

(d) A private, nonprofit organization that provides public transportation services if more than 50 percent of the organization’s funding for the purpose of providing public transportation services is received from governmental bodies.

(5) “State” means:

(a) State government as defined in ORS 174.111;

(b) The State Accident Insurance Fund Corporation; and

(6) “Local public body” means any public body other than the state.

(7) “Nuclear incident” has the meaning given that term in 42 U.S.C. 2014(q).

(8) “Tort” means the breach of a legal duty that is imposed by law, other than a duty arising from contract or quasi-contract, the breach of which results in injury to a specific person or persons for which the law provides a civil right of action for damages or for a protective remedy. [1967 c.627 §1; 1975 c.609 §11; 1977 c.823 §1; 1981 c.109 §1; 1987 c.915 §9; subsections (7) and (8) enacted as 1987 c.705 §6; 1989 c.905 §1; 1989 c.1004 §2; 1993 c.500 §3; 1997 c.215 §4; 2005 c.684 §1; 2005 c.798 §2; 2009 c.67 §9]

Note: Sections 7 and 8, chapter 67, Oregon Laws 2009, provide:

Sec. 7. Task Force on Oregon Tort Claims Act. (1) There is created the Task Force on the Oregon Tort Claims Act, consisting of four members appointed as follows:

(a) The President of the Senate shall appoint two members from among members of the Senate.

(b) The Speaker of the House of Representatives shall appoint two members from among members of the House of Representatives.

(2) The task force shall:

(a) Study the impact of sections 2 to 6 of this 2009 Act and the operation of other laws governing the tort liability of public bodies; and

(b) Prepare a report for submission to the Legislative Assembly that contains the task force’s findings and recommendations relating to the tort liability of public bodies.

(3) A majority of the members of the task force constitutes a quorum for the transaction of business.

(4) Official action by the task force requires the approval of a majority of the members of the task force.

(5) The task force shall elect one of its members to serve as chairperson.

(6) If there is a vacancy for any cause, the appointing authority shall make an appointment to become immediately effective.

(7) The task force shall meet at times and places specified by the call of the chairperson or of a majority of the members of the task force.

(8) The task force may adopt rules necessary for the operation of the task force.

(9) The task force may presession file legislation in the manner provided in ORS 171.130 for interim committees. All legislation recommended by official action of the task force must indicate that it is introduced at the request of the task force.

(10) The task force shall report to the Legislative Assembly in the manner provided in ORS 192.245 at any time within 30 days after its final meeting or at such later time as the President and Speaker may designate.

(11) The Legislative Administrator may employ persons necessary for the performance of the functions of the task force. The Legislative Administrator shall fix the duties and amounts of compensation of these employees. The task force shall use the services of permanent legislative staff to the greatest extent practicable.

(12) All agencies of state government, as defined in ORS 174.111, are directed to assist the task force in the performance of its duties and, to the extent permitted by laws relating to confidentiality, to furnish such information and advice as the members of the task force consider necessary to perform their duties. [2009 c.67 §7]

Sec. 8. (1) Section 7 of this 2009 Act becomes operative on January 1, 2014.

(2) Section 7 of this 2009 Act is repealed on March 1, 2015. [2009 c.67 §8]

30.261 Limitation on applicability of ORS 30.260 to 30.300 to certain private, nonprofit organizations. A private, nonprofit organization described under ORS 30.260 (4)(d) is subject to ORS 30.260 to 30.300 only for the purposes of providing public transportation services. [2005 c.684 §4; 2009 c.67 §17]

Note: 30.261 was added to and made a part of 30.260 to 30.300 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

30.262 Certain nonprofit facilities and homes public bodies for purposes of ORS 30.260 to 30.300. (1) The following facilities and training homes are public bodies for the purposes of ORS 30.260 to 30.300:

(a) A nonprofit residential training facility as defined in ORS 443.400, nonprofit residential training home as defined in ORS 443.400 or nonprofit facility as defined in ORS 427.005, organized and existing under ORS chapter 65, that receives more than 50 percent of its funding from the state or a political subdivision of the state for the purpose of providing residential or vocational services to individuals with intellectual or other developmental disabilities.

(b) A nonprofit residential training facility as defined in ORS 443.400, nonprofit residential training home as defined in ORS 443.400 or nonprofit facility as defined in ORS 427.005, organized and existing under ORS chapter 65, that receives less than 50 percent of its funding from the state or a political subdivision of the state but that provides residential or vocational services to individuals with intellectual or other developmental disabilities, more than half of whom are eligible for funding for services by the Department of Human Services under criteria established by the department.

(2) The provisions of this section apply only to a nonprofit residential training facility, nonprofit residential training home or nonprofit facility that provides services to individuals with intellectual or other developmental disabilities under a contract with:

(a) The Department of Human Services; or

(b) A community mental health program or community developmental disabilities program established pursuant to ORS 430.620. [1997 c.579 §2; 2001 c.900 §9; 2007 c.70 §8; 2011 c.658 §30; 2011 c.720 §52]

Note: 30.262 was added to and made a part of 30.260 to 30.300 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

30.264 Liability insurance for students involved in off-campus experiential activities; coverage under ORS 30.260 to 30.300. (1) The State Board of Higher Education may authorize public universities listed in ORS 352.002 to provide liability insurance coverage for students involved in off-campus experiential activities, including, but not limited to, student teaching, internships, clinical experiences, capstone projects and related activities.

(2) If commercial liability insurance coverage is not available to the public universities, students participating in the activities described in subsection (1) of this section shall be considered to be acting within the course and scope of state employment duties for purposes of ORS 30.260 to 30.300. [2001 c.370 §2; 2011 c.637 §60]

30.265 Scope of liability of public body, officers, employees and agents; liability in nuclear incident. (1) Subject to the limitations of ORS 30.260 to 30.300, every public body is subject to civil action for its torts and those of its officers, employees and agents acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function or while operating a motor vehicle in a ridesharing arrangement authorized under ORS 276.598.

(2) The sole cause of action for a tort committed by officers, employees or agents of a public body acting within the scope of their employment or duties and eligible for representation and indemnification under ORS 30.285 or 30.287 is an action under ORS 30.260 to 30.300. The remedy provided by ORS 30.260 to 30.300 is exclusive of any other action against any such officer, employee or agent of a public body whose act or omission within the scope of the officer’s, employee’s or agent’s employment or duties gives rise to the action. No other form of civil action is permitted.

(3) If an action under ORS 30.260 to 30.300 alleges damages in an amount equal to or less than the damages allowed under ORS 30.271, 30.272 or 30.273, the sole cause of action for a tort committed by officers, employees or agents of a public body acting within the scope of their employment or duties and eligible for representation and indemnification under ORS 30.285 or 30.287 is an action against the public body. If an action is filed against an officer, employee or agent of a public body, and the plaintiff alleges damages in an amount equal to or less than the damages allowed under ORS 30.271, 30.272 or 30.273, the court upon motion shall substitute the public body as the defendant. Substitution of the public body as the defendant does not exempt the public body from making any report required under ORS 742.400.

(4) If an action under ORS 30.260 to 30.300 alleges damages in an amount greater than the damages allowed under ORS 30.271, 30.272 or 30.273, the action may be brought and maintained against an officer, employee or agent of a public body, whether or not the public body is also named as a defendant. An action brought under this subsection is subject to the limitations on damages imposed under ORS 30.271, 30.272 or 30.273, and the total combined amount recovered in the action may not exceed those limitations for a single accident or occurrence without regard to the number or types of defendants named in the action.

(5) Every public body is immune from liability for any claim for injury to or death of any person or injury to property resulting from an act or omission of an officer, employee or agent of a public body when such officer, employee or agent is immune from liability.

(6) Every public body and its officers, employees and agents acting within the scope of their employment or duties, or while operating a motor vehicle in a ridesharing arrangement authorized under ORS 276.598, are immune from liability for:

(a) Any claim for injury to or death of any person covered by any workers’ compensation law.

(b) Any claim in connection with the assessment and collection of taxes.

(c) Any claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.

(d) Any claim that is limited or barred by the provisions of any other statute, including but not limited to any statute of ultimate repose.

(e) Any claim arising out of riot, civil commotion or mob action or out of any act or omission in connection with the prevention of any of the foregoing.

(f) Any claim arising out of an act done or omitted under apparent authority of a law, resolution, rule or regulation that is unconstitutional, invalid or inapplicable except to the extent that they would have been liable had the law, resolution, rule or regulation been constitutional, valid and applicable, unless such act was done or omitted in bad faith or with malice.

(7) This section applies to any action of any officer, employee or agent of the state relating to a nuclear incident, whether or not the officer, employee or agent is acting within the scope of employment, and provided the nuclear incident is covered by an insurance or indemnity agreement under 42 U.S.C. 2210.

(8) Subsection (6)(c) of this section does not apply to any discretionary act that is found to be the cause or partial cause of a nuclear incident covered by an insurance or indemnity agreement under the provisions of 42 U.S.C. 2210, including but not limited to road design and route selection. [1967 c.627 §§2,3,10; 1969 c.429 §1; 1975 c.609 §12; 1977 c.823 §2; 1981 c.490 §4; 1985 c.731 §31; 1987 c.705 §7; 1991 c.861 §1; 2005 c.22 §19; 2007 c.803 §4; 2011 c.270 §1]

30.266 [1977 c.781 §2; 1981 c.109 §2; 1985 c.731 §20; 1989 c.873 §1; repealed by 1991 c.756 §5]

30.267 Liability for certain medical treatment at Oregon Health and Science University facilities. (1) For the purposes of ORS 30.260 to 30.300, all services constituting patient care, including, but not limited to, inpatient care, outpatient care and all forms of consultation, that are provided on the Oregon Health and Science University campus or in any Oregon Health and Science University clinic are within the scope of their state employment or duties when performed by:

(a) Salaried physicians or dentists employed at any full-time equivalent by the Oregon Health and Science University;

(b) Nonsalaried or courtesy physicians or dentists affiliated with the Oregon Health and Science University;

(d) Volunteer physicians or dentists affiliated with the Oregon Health and Science University; or

(e) Any nurses, students, orderlies, volunteers, aides or employees of the Oregon Health and Science University.

(2) As used in this section:

(a) “Nonsalaried or courtesy physician or dentist” means a physician or dentist who receives a fee or other compensation for those services constituting patient care which are within the scope of state employment or duties under this section. The term does not include a physician or dentist described under subsection (1)(a) of this section.

(b) “Volunteer physician or dentist” means a physician or dentist who does not receive a salary, fee or other compensation for those services constituting patient care which are within the scope of state employment or duties under this section. [1977 c.851 §2]

30.268 Liability for certain medical treatment at facilities other than Oregon Health and Science University. (1) For the purposes of ORS 30.260 to 30.300, all services constituting patient care, including, but not limited to, inpatient care, outpatient care and all forms of consultation that are provided at a location other than the Oregon Health and Science University campus or one of the Oregon Health and Science University clinics are within the scope of state employment or duties when:

(a) Provided by members of the Oregon Health and Science University faculty or staff, Oregon Health and Science University students under prior written express authorization from the president of the Oregon Health and Science University or a representative of the president to provide those services at that location;

(b) The services provided are within the scope of the express authorization; and

(A) Derives revenue in a similar amount or percentage as it would for care rendered on the Oregon Health and Science University campus or at an Oregon Health and Science University clinic; or

(B) Is performing a salaried, nonfee-generating or volunteer public community or nonfee-generating educational service by providing the services.

(2) For the purposes of ORS 30.260 to 30.300, services constituting patient care that are provided at a location other than the Oregon Health and Science University campus or one of the Oregon Health and Science University clinics are not within the scope of state employment or duties when:

(a) Such services constitute an exclusively private relationship between the patient and a person described in subsection (1)(a) of this section; and

(b) The requirements of subsection (1)(b) and (c) of this section are not met. [1977 c.851 §3; 1995 c.84 §1]

30.269 Limitations on awards under Oregon Tort Claims Act generally. (1) Punitive damages may not be awarded on any claim subject to ORS 30.260 to 30.300.

(2) Claims subject to ORS 30.260 to 30.300 are not subject to the limitation imposed by ORS 31.710.

(3) A court may not apply the limitations imposed on recovery under ORS 30.271, 30.272 and 30.273 until after the entry of a verdict or a stipulation by the parties to the amount of the damages.

(4) The limitations imposed under ORS 30.271 (2) and 30.272 (2) on single claimants include damages claimed for loss of services or loss of support arising out of the same tort.

(5) If two or more claimants recover on a claim that arises out of a single accident or occurrence, and the recovery is subject to a limitation imposed by ORS 30.271 (3), 30.272 (3) or 30.273 (2)(b), any party to the action in which the claim is made may apply to the court to apportion to each claimant the proper share of the amount allowed by ORS 30.271 (3), 30.272 (3) or 30.273 (2)(b). The share apportioned to each claimant shall be in the proportion that the ratio of the award or settlement made to the claimant bears to the aggregate awards and settlements for all claims arising out of the accident or occurrence.

(6) Liability of any public body and one or more of its officers, employees or agents, or two or more officers, employees or agents of a public body, on claims arising out of a single accident or occurrence, may not exceed in the aggregate the amounts allowed by ORS 30.271, 30.272 and 30.273.

(7) ORS 30.271, 30.272 and 30.273 do not apply to a claim arising in connection with a nuclear incident covered by an insurance or indemnity agreement under 42 U.S.C. 2210.

(8) For the purposes of the limitations imposed by ORS 30.271, 30.272 and 30.273, events giving rise to a proclamation of a state of emergency under ORS 401.165, or a proclamation of a public health emergency under ORS 433.441, do not constitute a single accident or occurrence. [2009 c.67 §2; 2009 c.718 §15]

Note: 30.269 to 30.274 were added to and made a part of 30.260 to 30.300 by legislative action but were not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

30.270 [1967 c.627 §4; 1969 c.429 §2; 1975 c.609 §13; 1987 c.705 §8; 1987 c.915 §13; repealed by 2009 c.67 §20]

30.271 Limitations on liability of state for personal injury and death. (1) The limitations imposed by this section apply to claims that:

(a) Are subject to ORS 30.260 to 30.300;

(b) Are made against the state, or against an officer, employee or agent of the state acting within the person’s scope of employment or duties;

(d) Are not claims for damage to or destruction of property.

(2) The liability of the state, and the liability of the state’s officers, employees and agents acting within the scope of their employment or duties, to any single claimant for claims described in subsection (1) of this section may not exceed:

(a) $1.5 million, for causes of action arising on or after December 28, 2007, and before July 1, 2010.

(b) $1.6 million, for causes of action arising on or after July 1, 2010, and before July 1, 2011.

(d) $1.8 million, for causes of action arising on or after July 1, 2012, and before July 1, 2013.

(e) $1.9 million, for causes of action arising on or after July 1, 2013, and before July 1, 2014.

(f) $2 million, for causes of action arising on or after July 1, 2014, and before July 1, 2015.

(g) The adjusted limitation provided by subsection (4) of this section, for causes of action arising on or after July 1, 2015.

(3) The liability of the state, and the liability of the state’s officers, employees and agents acting within the scope of their employment or duties, to all claimants for claims described in subsection (1) of this section may not exceed:

(a) $3 million, for causes of action arising on or after December 28, 2007, and before July 1, 2010.

(b) $3.2 million, for causes of action arising on or after July 1, 2010, and before July 1, 2011.

(d) $3.6 million, for causes of action arising on or after July 1, 2012, and before July 1, 2013.

(e) $3.8 million, for causes of action arising on or after July 1, 2013, and before July 1, 2014.

(f) $4 million, for causes of action arising on or after July 1, 2014, and before July 1, 2015.

(g) The adjusted limitation provided by subsection (4) of this section, for causes of action arising on or after July 1, 2015.

(4) Beginning in 2015, and every year thereafter, the State Court Administrator shall determine the percentage increase or decrease in the cost of living for the previous calendar year, based on changes in the Portland-Salem, OR-WA Consumer Price Index for All Urban Consumers for All Items as published by the Bureau of Labor Statistics of the United States Department of Labor. On or before July 1 of the year in which the State Court Administrator makes the determination required by this subsection, the State Court Administrator shall adjust the limitations imposed under subsections (2) and (3) of this section for the following calendar year by multiplying the limitation amounts applicable to the calendar year in which the adjustment is made by the percentage amount determined under this subsection. The adjustment may not exceed three percent for any year. The State Court Administrator shall round the adjusted limitation amount to the nearest $100, but the unrounded amount shall be used to calculate the adjustments to the limitations in subsequent calendar years. The adjusted limitation becomes effective on July 1 of the year in which the adjustment is made, and applies to all causes of action arising on or after July 1 of that year and before July 1 of the subsequent year.

(5) The limitations imposed by this section apply to claims against Oregon Health and Science University. [2009 c.67 §3]

Note: See note under 30.269.

30.272 Limitations on liability of local public bodies for personal injury and death. (1) The limitations imposed by this section apply to claims that:

(a) Are subject to ORS 30.260 to 30.300;

(b) Are made against a local public body, or against an officer, employee or agent of a local public body acting within the person’s scope of employment or duties;

(d) Are not claims for damage to or destruction of property.

(2) The liability of a local public body, and the liability of the public body’s officers, employees and agents acting within the scope of their employment or duties, to any single claimant for claims described in subsection (1) of this section may not exceed:

(a) $500,000, for causes of action arising on or after July 1, 2009, and before July 1, 2010.

(b) $533,300, for causes of action arising on or after July 1, 2010, and before July 1, 2011.

(d) $600,000, for causes of action arising on or after July 1, 2012, and before July 1, 2013.

(e) $633,300, for causes of action arising on or after July 1, 2013, and before July 1, 2014.

(f) $666,700, for causes of action arising on or after July 1, 2014, and before July 1, 2015.

(g) The adjusted limitation provided by subsection (4) of this section, for causes of action arising on or after July 1, 2015.

(3) The liability of a local public body, and the liability of the public body’s officers, employees and agents acting within the scope of their employment or duties, to all claimants for claims described in subsection (1) of this section may not exceed:

(a) $1 million, for causes of action arising on or after July 1, 2009, and before July 1, 2010.

(b) $1,066,700, for causes of action arising on or after July 1, 2010, and before July 1, 2011.

(d) $1,200,000, for causes of action arising on or after July 1, 2012, and before July 1, 2013.

(e) $1,266,700, for causes of action arising on or after July 1, 2013, and before July 1, 2014.

(f) $1,333,300, for causes of action arising on or after July 1, 2014, and before July 1, 2015.

(g) The adjusted limitation provided by subsection (4) of this section, for causes of action arising on or after July 1, 2015.

(5) The limitations imposed by this section do not apply to claims against Oregon Health and Science University. [2009 c.67 §4]

Note: See note under 30.269.

30.273 Limitations on liability of public bodies for property damage or destruction. (1) The limitations imposed by this section apply to claims that:

(a) Are subject to ORS 30.260 to 30.300;

(b) Are made against a public body, or against a public body’s officers, employees and agents acting within the scope of their employment or duties;

(d) Are claims for damage to or destruction of property, including consequential damages.

(2) The liability of a public body, and the liability of the public body’s officers, employees and agents acting within the scope of their employment or duties, for claims described in subsection (1) of this section may not exceed:

(a) $100,000, or the adjusted limitation provided by subsection (3) of this section, to any single claimant.

(b) $500,000, or the adjusted limitation provided by subsection (3) of this section, to all claimants.

(3) Beginning in 2010, and every year thereafter, the State Court Administrator shall determine the percentage increase or decrease in the cost of living for the previous calendar year, based on changes in the Portland-Salem, OR-WA Consumer Price Index for All Urban Consumers for All Items as published by the Bureau of Labor Statistics of the United States Department of Labor. On or before July 1 of the year in which the State Court Administrator makes the determination required by this subsection, the State Court Administrator shall adjust the limitations imposed under subsection (2) of this section for the following calendar year by multiplying the limitation amounts applicable to the calendar year in which the adjustment is made by the percentage amount determined under this subsection. The adjustment may not exceed three percent for any year. The State Court Administrator shall round the adjusted limitation amount to the nearest $100, but the unrounded amount shall be used to calculate the adjustments to the limitations in subsequent calendar years. The adjusted limitation becomes effective on July 1 of the year in which the adjustment is made, and applies to all causes of action arising on or after July 1 of that year and before July 1 of the subsequent year. [2009 c.67 §5]

Note: See note under 30.269.

30.274 Direct appeal of constitutionality of limitations. (1) At the request of any party to an action under ORS 30.260 to 30.300, the court shall enter a limited judgment that is limited to the issue of the application of the limitations imposed by ORS 30.271, 30.272 or 30.273. A limited judgment may be entered under this section only after:

(a) The parties have stipulated to the total damages in the action; or

(b) The finder of fact has decided the total damages in the action.

(2) If a limited judgment is entered under this section, the court may not enter a general judgment until an appellate judgment on any appeal of the limited judgment has been entered.

(3) A limited judgment entered under this section may be appealed only by filing a notice of appeal directly with the Supreme Court within the time and in the manner specified in ORS chapter 19 for civil appeals to the Court of Appeals. Any party filing a notice of appeal under this subsection must note in the notice of appeal that the case is subject to this subsection.

(4) An appeal filed under this section may not raise any issue relating to the case other than the application of a limitation imposed under ORS 30.271, 30.272 or 30.273.

(5) If a limited judgment is not requested under this section, a party may seek judicial review of the imposition of any of the limitations under ORS 30.271, 30.272 or 30.273 in an appeal from the general judgment in the action. [2009 c.67 §6]

Note: See note under 30.269.

30.275 Notice of claim; time of notice; time of action. (1) No action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 shall be maintained unless notice of claim is given as required by this section.

(2) Notice of claim shall be given within the following applicable period of time, not including the period, not exceeding 90 days, during which the person injured is unable to give the notice because of the injury or because of minority, incompetency or other incapacity:

(a) For wrongful death, within one year after the alleged loss or injury.

(b) For all other claims, within 180 days after the alleged loss or injury.

(3) Notice of claim required by this section is satisfied by:

(a) Formal notice of claim as provided in subsections (4) and (5) of this section;

(b) Actual notice of claim as provided in subsection (6) of this section;

(c) Commencement of an action on the claim by or on behalf of the claimant within the applicable period of time provided in subsection (2) of this section; or

(d) Payment of all or any part of the claim by or on behalf of the public body at any time.

(4) Formal notice of claim is a written communication from a claimant or representative of a claimant containing:

(a) A statement that a claim for damages is or will be asserted against the public body or an officer, employee or agent of the public body;

(b) A description of the time, place and circumstances giving rise to the claim, so far as known to the claimant; and

(5) Formal notice of claim shall be given by mail or personal delivery:

(a) If the claim is against the state or an officer, employee or agent thereof, to the office of the Director of the Oregon Department of Administrative Services.

(b) If the claim is against a local public body or an officer, employee or agent thereof, to the public body at its principal administrative office, to any member of the governing body of the public body, or to an attorney designated by the governing body as its general counsel.

(6) Actual notice of claim is any communication by which any individual to whom notice may be given as provided in subsection (5) of this section or any person responsible for administering tort claims on behalf of the public body acquires actual knowledge of the time, place and circumstances giving rise to the claim, where the communication is such that a reasonable person would conclude that a particular person intends to assert a claim against the public body or an officer, employee or agent of the public body. A person responsible for administering tort claims on behalf of a public body is a person who, acting within the scope of the person’s responsibility, as an officer, employee or agent of a public body or as an employee or agent of an insurance carrier insuring the public body for risks within the scope of ORS 30.260 to 30.300, engages in investigation, negotiation, adjustment or defense of claims within the scope of ORS 30.260 to 30.300, or in furnishing or accepting forms for claimants to provide claim information, or in supervising any of those activities.

(7) In an action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300, the plaintiff has the burden of proving that notice of claim was given as required by this section.

(8) The requirement that a notice of claim be given under subsections (1) to (7) of this section does not apply if:

(a)(A) The claimant was under the age of 18 years when the acts or omissions giving rise to a claim occurred;

(B) The claim is against the Department of Human Services or the Oregon Youth Authority; and

(C) The claimant was in the custody of the Department of Human Services pursuant to an order of a juvenile court under ORS 419B.150, 419B.185, 419B.337 or 419B.527, or was in the custody of the Oregon Youth Authority under the provisions of ORS 419C.478, 420.011 or 420A.040, when the acts or omissions giving rise to a claim occurred.

(b) The claim is against a private, nonprofit organization that provides public transportation services described under ORS 30.260 (4)(d).

(9) Except as provided in ORS 12.120, 12.135 and 659A.875, but notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action, an action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 shall be commenced within two years after the alleged loss or injury. [1967 c.627 §5; 1969 c.429 §3; 1975 c.604 §1a; 1975 c.609 §14; 1977 c.823 §3; 1979 c.284 §64; 1981 c.350 §1; 1993 c.500 §4; 1993 c.515 §1; 2001 c.601 §1; 2001 c.621 §89; 2005 c.684 §2; 2009 c.67 §18]

30.278 Reporting notice of claim of professional negligence to licensing board. When notice is received under ORS 30.275 of a claim of professional negligence against a physician, optometrist, dentist, dental hygienist or naturopath who is acting within the scope of employment by a public body or within the scope of duties as defined by ORS 30.267, the person receiving the notice shall report to the appropriate licensing board, in the same manner as required by ORS 742.400, the information required by ORS 742.400 to be reported by insurers or self-insured associations. [1987 c.774 §64]

Note: 30.278 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 30 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

30.280 [1967 c.627 §6; repealed by 1975 c.609 §25]

30.282 Local public body insurance; self-insurance program; action against program. (1) The governing body of any local public body may procure insurance against:

(a) Tort liability of the public body and its officers, employees and agents acting within the scope of their employment or duties; or

(b) Property damage.

(2) In addition to, or in lieu of procuring insurance, the governing body may establish a self-insurance program against the tort liability of the public body and its officers, employees and agents or against property damage. If the public body has authority to levy taxes, it may include in its levy an amount sufficient to establish and maintain a self-insurance program on an actuarially sound basis.

(3) Notwithstanding any other provision of law, two or more local public bodies may jointly provide by intergovernmental agreement for anything that subsections (1) and (2) of this section authorize individually.

(4) As an alternative or in addition to establishment of a self-insurance program or purchase of insurance or both, the governing body of any local public body and the Oregon Department of Administrative Services may contract for payment by the public body to the department of assessments determined by the department to be sufficient, on an actuarially sound basis, to cover the potential liability of the public body and its officers, employees or agents acting within the scope of their employment or duties under ORS 30.260 to 30.300, and costs of administration, or to cover any portion of potential liability, and for payment by the department of valid claims against the public body and its officers, employees and agents acting within the scope of their employment or duties. The department may provide the public body evidence of insurance by issuance of a certificate or policy.

(5) Assessments paid to the department under subsection (4) of this section shall be paid into the Insurance Fund created under ORS 278.425, and claims paid and administrative costs incurred under subsection (4) of this section shall be paid out of the Insurance Fund, and moneys in the Insurance Fund are continuously appropriated for those purposes. When notice of any claim is furnished as provided in the agreement, the claim shall be handled and paid, if appropriate, in the same manner as a claim against a state agency, officer, employee or agent, without regard to the amount the local public body has been assessed.

(6) A self-insurance program established by three or more public bodies under subsections (2) and (3) of this section is subject to the following requirements:

(a) The annual contributions to the program must amount in the aggregate to at least $1 million.

(b) The program must provide documentation that defines program benefits and administration.

(c) Program contributions and reserves must be held in separate accounts and used for the exclusive benefit of the program.

(d) The program must maintain adequate reserves. Reserve adequacy shall be calculated annually with proper actuarial calculations including the following:

(A) Known claims, paid and outstanding;

(B) Estimate of incurred but not reported claims;

(D) Unearned contributions; and

(E) A claims trend factor.

(e) The program must maintain an unallocated reserve account equal to 25 percent of annual contributions, or $250,000, whichever is greater. As used in this paragraph, “unallocated reserves” means the amount of funds determined by a licensed independent actuary to be greater than what is required to fund outstanding claim liabilities, including an estimate of claims incurred but not reported.

(f) The program must make an annual independently audited financial statement available to the participants of the program.

(g) The program must maintain adequate excess or reinsurance against the risk of economic loss.

(h) The program, a third party administrator or an owner of a third party administrator may not collect commissions or fees from an insurer.

(7) A program operated under subsection (6) of this section that fails to meet any of the listed requirements for a period longer than 30 consecutive days shall be dissolved and any unallocated reserves returned in proportional amounts based on the contributions of the public body to the public bodies that established the program within 90 days of the failure.

(8) A local public body may bring an action against a program operated under subsection (6) of this section if the program fails to comply with the requirements listed in subsection (6) of this section. [1975 c.609 §19; 1977 c.428 §1; 1981 c.109 §4; 1985 c.731 §21; 2005 c.175 §2; 2009 c.67 §19]

30.285 Public body shall indemnify public officers; procedure for requesting counsel; extent of duty of state; obligation for judgment and attorney fees. (1) The governing body of any public body shall defend, save harmless and indemnify any of its officers, employees and agents, whether elective or appointive, against any tort claim or demand, whether groundless or otherwise, arising out of an alleged act or omission occurring in the performance of duty.

(2) The provisions of subsection (1) of this section do not apply in case of malfeasance in office or willful or wanton neglect of duty.

(3) If any civil action, suit or proceeding is brought against any state officer, employee or agent which on its face falls within the provisions of subsection (1) of this section, or which the state officer, employee or agent asserts to be based in fact upon an alleged act or omission in the performance of duty, the state officer, employee or agent may, after consulting with the Oregon Department of Administrative Services file a written request for counsel with the Attorney General. The Attorney General shall thereupon appear and defend the officer, employee or agent unless after investigation the Attorney General finds that the claim or demand does not arise out of an alleged act or omission occurring in the performance of duty, or that the act or omission complained of amounted to malfeasance in office or willful or wanton neglect of duty, in which case the Attorney General shall reject defense of the claim.

(4) Any officer, employee or agent of the state against whom a claim within the scope of this section is made shall cooperate fully with the Attorney General and the department in the defense of such claim. If the Attorney General after consulting with the department determines that such officer, employee or agent has not so cooperated or has otherwise acted to prejudice defense of the claim, the Attorney General may at any time reject the defense of the claim.

(5) If the Attorney General rejects defense of a claim under subsection (3) of this section or this subsection, no public funds shall be paid in settlement of said claim or in payment of any judgment against such officer, employee or agent. Such action by the Attorney General shall not prejudice the right of the officer, employee or agent to assert and establish an appropriate proceedings that the claim or demand in fact arose out of an alleged act or omission occurring in the performance of duty, or that the act or omission complained of did not amount to malfeasance in office or willful or wanton neglect of duty, in which case the officer, employee or agent shall be indemnified against liability and reasonable costs of defending the claim, cost of such indemnification to be a charge against the Insurance Fund established by ORS 278.425.

(6) Nothing in subsection (3), (4) or (5) of this section shall be deemed to increase the limits of liability of any public officer, agent or employee under ORS 30.260 to 30.300, or obviate the necessity of compliance with ORS 30.275 by any claimant, nor to affect the liability of the state itself or of any other public officer, agent or employee on any claim arising out of the same accident or occurrence.

(7) As used in this section, “state officer, employee or agent” includes district attorneys and deputy district attorneys, special prosecutors and law clerks of the office of district attorney who act in a prosecutorial capacity, but does not include any other employee of the office of district attorney or any employee of the justice or circuit courts whose salary is paid wholly or in part by the county. [1967 c.627 §7; 1975 c.609 §16; 1981 c.109 §5; 1981 c.913 §2; 1985 c.731 §22; 1987 c.763 §1; 2009 c.67 §11]

30.287 Counsel for public officer; when public funds not to be paid in settlement; effect on liability limit; defense by insurer. (1) If any civil action, suit or proceeding is brought against any officer, employee or agent of a local public body which on its face falls within the provisions of ORS 30.285 (1), or which the officer, employee or agent asserts to be based in fact upon an alleged act or omission in the performance of duty, the officer, employee or agent may file a written request for counsel with the governing body of the public body. The governing body shall thereupon engage counsel to appear and defend the officer, employee or agent unless after investigation it is determined that the claim or demand does not arise out of an alleged act or omission occurring in the performance of duty, or that the act or omission complained of amounted to malfeasance in office or willful or wanton neglect of duty, in which case the governing body shall reject defense of the claim.

(2) Any officer, employee or agent of a local public body against whom a claim within the scope of this section is made shall cooperate fully with the governing body and counsel in the defense of such claim. If the counsel determines and certifies to the governing body that such officer, employee or agent has not so cooperated or has otherwise acted in prejudice of the defense of the claim, the governing body may at any time reject the defense of the claim.

(3) If the governing body rejects defense of a claim under subsection (1) of this section, no public funds shall be paid in settlement of the claim or in payment of any judgment against such officer, employee or agent. Such action by the governing body shall not prejudice the right of the officer, employee or agent to assert and establish in an appropriate proceedings that the claim or demand in fact arose out of an alleged act or omission occurring in the performance of duty, or that the act or omission complained of did not amount to malfeasance in office or willful or wanton neglect of duty, in which case the officer, employee or agent shall be indemnified by the public body against liability and reasonable costs of defending the claim.

(4) Nothing in subsection (1), (2) or (3) of this section shall be deemed to increase the limits of liability of any public officer, agent or employee under ORS 30.260 to 30.300, or relieve any claimant of the necessity of compliance with ORS 30.275, nor to affect the liability of the local public body itself or of any other public officer, agent or employee on any claim arising out of the same accident or occurrence.

(5) The provisions of this section may be superseded to the extent that the claim against the public officer, employee or agent may be defended by any insurer, or may be subject under ORS 30.282 to agreement with the Oregon Department of Administrative Services, in which case the provisions of the policy of insurance or other agreement are applicable. [1975 c.609 §20; 1985 c.565 §3; 1989 c.1004 §1; 2009 c.67 §12]

30.290 Settlement of claims by local public body. The governing body of any local public body may, subject to the provisions of any contract of liability insurance existing, compromise, adjust and settle tort claims against the public body or its officers, employees or agents acting within the scope of their employment for damages under ORS 30.260 to 30.300 and may, subject to procedural requirements imposed by law or other charter, appropriate money for the payment of amounts agreed upon. [1967 c.627 §8; 1975 c.609 §17; 1989 c.655 §1]

30.295 Payment of judgment or settlement; remedies for nonpayment; tax levy for payment; installment payments. (1) When a judgment is entered against or a settlement is made by a public body for a claim within the scope of ORS 30.260 to 30.300, including claims against officers, employees or agents required to be indemnified under ORS 30.285, payment shall be made and the same remedies shall apply in case of nonpayment as in the case of other judgments or settlements against the public body except as otherwise provided in this section.

(2) If the public body is authorized to levy taxes that could be used to satisfy a judgment or settlement within the scope of ORS 30.260 to 30.300, and it has, by resolution, declared that the following conditions exist, interest shall accrue on the judgment or settlement, but the same shall not be due and payable until after the canvass and certification of an election upon a special tax levy for purposes of satisfying the judgment or settlement:

(a) The amount of the judgment or settlement would exceed amounts budgeted for contingencies, tort claims and projected surplus in the current budget;

(b) The amount of the judgment or settlement would exceed 10 percent of the total of the next fiscal year’s projected revenues that are not restricted as to use, including the maximum amount of general property tax that could be levied without election but excluding any levy for debt service;

(c) Payment of the judgment or settlement within less than a certain number of years would seriously impair the ability of the public body to carry out its responsibilities as a unit of government; and

(d) The public body has passed an appropriate ordinance or resolution calling a special election to submit to its electors a special levy in an amount sufficient to satisfy the judgment or settlement.

(3) A certified copy of the resolution provided for in subsection (2) of this section shall be filed with the clerk of the court in which an order permitting installment payments could be entered.

(4) If the public body is not authorized to levy taxes as provided in subsection (2) of this section, and it has, by resolution, declared that the applicable conditions specified in subsection (2)(a) to (c) of this section exist, it may petition for an order permitting installment payments as provided in subsection (6) of this section.

(5)(a) The provisions of subsections (2) and (4) of this section do not apply to the State of Oregon.

(b) Notwithstanding paragraph (a) of this subsection, if the conditions specified in subsection (4) of this section exist, the Secretary of State may, under Seal of the State of Oregon, attest thereto in lieu of a resolution, and the State of Oregon may thereafter petition for an order permitting installment payments as provided in subsection (6) of this section.

(6) If the procedure specified in subsections (2) to (5) of this section has been followed, and, with respect to public bodies subject to subsection (2) of this section, the tax levy failed, the public body may petition for an order permitting installment payments. The petition shall be filed in the court in which judgment was entered or, if no judgment has been entered, it shall be filed in the circuit court of the judicial district in which the public body has its legal situs. Petitions by the State of Oregon when no judgment has been entered shall be filed in Marion County Circuit Court.

(7) The court in which a petition is filed shall order that the judgment or settlement be paid in quarterly, semiannual or annual installments over a period of time not to exceed 10 years. The court shall determine the term of years based upon the ability of the public body to effectively carry out its governmental responsibilities, and shall not allow a longer term than appears reasonably necessary to meet that need. The order permitting installment payments shall provide for annual interest at the judgment rate. [1967 c.627 §9; 1977 c.823 §4; 2005 c.22 §20]

30.297 Liability of certain state agencies for damages caused by foster child or youth offender; conditions; exceptions. (1) Notwithstanding ORS 125.235, the Department of Human Services is liable for damages resulting from the intentional torts of a foster child who is residing in:

(a) A foster home that has been certified by the department under the provisions of ORS 418.625 to 418.645, even though the child is temporarily absent from that home;

(b) An approved home that is receiving payment from the department under the provisions of ORS 418.027 or under the provisions of ORS 420.810 and 420.815, even though the child is temporarily absent from that home; or

(c) A developmental disability child foster home that has been certified by the department under the provisions of ORS 443.830 and 443.835, even though the foster child is temporarily absent from that home.

(2) Notwithstanding ORS 125.235, the Oregon Youth Authority is liable for damages resulting from the intentional torts of a youth offender who is residing in a youth offender foster home that has been certified by the authority under the provisions of ORS 420.888 to 420.892, even though the youth offender is temporarily absent from that home.

(3) Except as otherwise provided in this section, the liability of the department and the authority under this section is subject to the same requirements and limitations provided in ORS 30.260 to 30.300, and a claim under this section shall be treated as a claim for damages within the scope of ORS 30.260 to 30.300 for the purposes of ORS 278.120.

(4) Notwithstanding subsections (1) and (2) of this section:

(a) The department and the authority are not liable for any damages arising out of the operation of a motor vehicle by a foster child or youth offender; and

(b) The department and the authority are only liable for theft by a foster child or youth offender upon a showing by clear and convincing evidence that the foster child or youth offender committed the theft.

(5) For the purposes of this section:

(a) “Authority” means the Oregon Youth Authority.

(b) “Department” means the Department of Human Services.

(A) A minor child under the custody or guardianship of the department by reason of appointment pursuant to ORS chapter 125, 419A, 419B or 419C;

(B) A minor child under the physical custody of the department pursuant to a voluntary agreement with the parent under ORS 418.015 (1);

(C) A minor child placed in a certified foster home, pending hearing, by any person authorized by the department to make that placement;

(D) A person under 21 years of age who has been placed in an approved home that is receiving payment from the department under the provisions of ORS 418.027 or under the provisions of ORS 420.810 and 420.815; or

(E) A child residing in a developmental disability child foster home certified under ORS 443.830 and 443.835.

(d) “Youth offender” has the meaning given in ORS 419A.004. [1991 c.756 §2; 1993 c.33 §370; 1995 c.664 §76; 1997 c.130 §1; 1999 c.316 §6; 2001 c.900 §10; 2003 c.232 §1; 2005 c.374 §4]

Note: 30.297 and 30.298 were added to and made a part of 30.260 to 30.300 by legislative action but were not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

30.298 Liability of certain state agencies to foster parents for injury or damage caused by foster child or youth offender; conditions; limitations. (1) Except as otherwise provided in this section, the Department of Human Services is liable, without regard to fault, for injury to the person of foster parents or damage to the property of foster parents caused by a foster child if the foster child is residing in:

(a) A foster home that is maintained by the foster parents and that has been certified by the department under the provisions of ORS 418.625 to 418.645;

(b) An approved home that is maintained by the foster parents and that is receiving payment from the department under the provisions of ORS 418.027 or under the provisions of ORS 420.810 and 420.815; or

(c) A developmental disability child foster home that has been certified by the department under the provisions of ORS 443.830 and 443.835.

(2) Except as otherwise provided in this section, the Oregon Youth Authority is liable, without regard to fault, for injury to the person of foster parents or damage to the property of foster parents caused by a youth offender if the youth offender resides in a youth offender foster home that is maintained by the foster parents and that has been certified by the authority under the provisions of ORS 420.888 to 420.892.

(3) Except as otherwise provided in this section, the liability of the department and of the authority under this section is subject to the same requirements and limitations provided in ORS 30.260 to 30.300, and a claim under this section shall be treated as a claim for damages within the scope of ORS 30.260 to 30.300 for the purposes of ORS 278.120.

(4) Notwithstanding ORS 30.260 to 30.300:

(a) In no event shall the liability of the department or the authority under this section exceed $5,000 for any number of claims arising out of a single occurrence;

(b) The liability of the department and the authority under this section is limited to economic damages, and in no event shall the department or the authority be liable for noneconomic damages;

(c) The department and the authority are liable under this section only to the extent the loss is not covered by other insurance; and

(d) No claim shall be allowed under this section unless written notice of the claim is delivered to the Oregon Department of Administrative Services within 90 days after the alleged loss or injury.

(5) The department and the authority are not liable under this section for:

(a) Damage to or destruction of currency, securities or any other intangible property;

(b) The unexplained disappearance of any property; or

(6) In no event does the liability of the department or the authority under this section for damage to property exceed the difference between the fair market value of the property immediately before its damage or destruction and its fair market value immediately thereafter. The department and the authority are not liable for the costs of any betterments to the property that may be required by code, statute or other law as a condition of repair, replacement or reconstruction.

(7) The liability imposed under this section is in addition to that imposed for the intentional torts of a foster child or youth offender under ORS 30.297, but any amounts paid under this section shall reduce any recovery that may be made under ORS 30.297.

(8) For the purposes of this section:

(a) “Authority” means the Oregon Youth Authority.

(b) “Department” means the Department of Human Services.

(d) “Foster child” has that meaning given in ORS 30.297.

(e) “Youth offender” has the meaning given in ORS 419A.004. [1991 c.756 §3; 1997 c.130 §2; 1999 c.316 §11; 2001 c.900 §11; 2003 c.232 §2; 2005 c.374 §5]

Note: See note under 30.297.

30.300 ORS 30.260 to 30.300 exclusive. ORS 30.260 to 30.300 are exclusive and supersede all home rule charter provisions and conflicting laws and ordinances on the same subject. [1967 c.627 §11]

(Certain Retired Physicians)

30.302 Certain retired physicians to be considered agents of public bodies. (1) As used in this section, “retired physician” means any person:

(a) Who holds a degree of Doctor of Medicine or Doctor of Osteopathy or has met the minimum educational requirements for licensure to practice naturopathic medicine;

(b) Who has been licensed and is currently retired in accordance with the provisions of ORS chapter 677 or 685;

(c) Who is registered with the Oregon Medical Board as a retired emeritus physician or who complies with the requirements of the Oregon Board of Naturopathic Medicine as a retired naturopath;

(d) Who registers with the county health officer in the county in which the physician or naturopath practices; and

(e) Who provides medical care as a volunteer without compensation solely through referrals from the county health officer specified in paragraph (d) of this subsection.

(2) Any retired physician who treats patients pursuant to this section shall be considered to be an agent of a public body for the purposes of ORS 30.260 to 30.300. [1991 c.952 §1; 2009 c.43 §2]

ACTIONS AND SUITS BY AND AGAINST GOVERNMENTAL UNITS AND OFFICIALS

30.310 Actions and suits by governmental units. A suit or action may be maintained by the State of Oregon or any county, incorporated city, school district or other public corporation of like character in this state, in its corporate name, upon a cause of suit or action accruing to it in its corporate character, and not otherwise, in the following cases:

(1) Upon a contract made with the public corporation.

(2) Upon a liability prescribed by law in favor of the public corporation.

(3) To recover a penalty or forfeiture given to the public corporation.

(4) To recover damages for injury to the corporate rights or property of the public corporation.

30.312 Actions by governmental units under federal antitrust laws. The State of Oregon, any city, county, school district, municipal or public corporation, political subdivision of the State of Oregon or any instrumentality thereof, or any agency created by two or more political subdivisions to provide themselves governmental services may bring an action in behalf of itself and others similarly situated for damages under section 4 of the Act of October 15, 1914, ch. 323, as amended prior to January 1, 1965 (38 Stat. 731, 15 U.S.C. 15). [1965 c.465 §1; 2005 c.22 §21]

30.315 Proceedings by cities and counties to enforce ordinances and resolutions. (1) An incorporated city or any county may maintain civil proceedings in courts of this state against any person or property to enforce requirements or prohibitions of its ordinances or resolutions when it seeks:

(a) To collect a fee or charge;

(b) To enforce a forfeiture;

(d) To enjoin continuance of a violation that has existed for 10 days or more; or

(e) To enjoin further commission of a violation that otherwise may result in additional violations of the same or related penal provisions affecting the public morals, health or safety.

(2) The remedies provided by this section are supplementary and in addition to those described in ORS 30.310.

(3) Nothing in this section shall affect the limitations imposed on cities and counties by ORS 131A.010 (3) and (4). [1961 c.313 §2; 1963 c.338 §1; 1985 c.626 §1; 1989 c.882 §§1,2; 2009 c.78 §53]

30.320 Contract and other actions and suits against governmental units. A suit or action may be maintained against any county and against the State of Oregon by and through and in the name of the appropriate state agency upon a contract made by the county in its corporate character, or made by such agency and within the scope of its authority; provided, however, that no suit or action may be maintained against any county or the State of Oregon upon a contract relating to the care and maintenance of an inmate or patient of any county or state institution. An action or suit may be maintained against any other public corporation mentioned in ORS 30.310 for an injury to the rights of the plaintiff arising from some act or omission of such other public corporation within the scope of its authority. An action may be maintained against any governmental unit mentioned in ORS 30.310 for liability in tort only as provided in ORS 30.260 to 30.300. An action or suit to quiet title may be maintained against any governmental unit mentioned in ORS 30.310. [Amended by 1959 c.614 §1; 1969 c.429 §4; 1993 c.289 §1]

30.330 Contracts of Department of Transportation providing for arbitration. The provisions of ORS 30.310 and 30.320 do not apply to contracts made by the Department of Transportation that provide for arbitration under the provisions of ORS 36.600 to 36.740. [Amended by 2003 c.598 §32]

30.340 Title of proceedings by or against county; control of proceedings by county court. All actions, suits or proceedings by or against a county shall be in the name of the county, but the county is represented by the county court, which has the power to control the proceeding as if it were plaintiff or defendant, as the case may be.

30.350 [Repealed by 1979 c.284 §199]

30.360 Governmental unit as defendant in actions involving liens on realty. (1) In any suit, action or proceeding brought in any circuit court of this state, affecting the title to real property on which a governmental unit has, or claims to have, a lien, other than a suit, action or proceeding to foreclose tax liens or special improvement liens, the governmental unit may be made a party defendant, and its rights or interests adjudicated. When property has been or is acquired in the name of a governmental unit upon which there are valid, unpaid special improvement liens at the time of the acquisition, the governmental unit may be made a party defendant in a suit to foreclose the lien.

(2) In any suit, action or proceeding brought in any circuit court of this state involving the title to real property where a governmental unit has record title to contested real property, the governmental unit may be made a party defendant, and its rights or interests adjudicated.

(3) In no event shall any money judgment be rendered or recovery made against a governmental unit in any suit, action or proceeding brought under the provisions of this section.

(4) For the purposes of this section, “governmental unit” means the State of Oregon or any county, incorporated city, school district or other public corporation of like character in this state. [Amended by 1959 c.586 §1; 1993 c.289 §2]

30.370 Service of summons on Attorney General; content. In any suit, action or proceeding commenced under the provisions of ORS 30.360 to which the state is made a party, service of summons upon the state shall be made upon the Attorney General. In addition to other required content, any summons served pursuant to this section shall state the state agency involved in the suit, action or proceeding. [Amended by 1959 c.586 §2; 1979 c.284 §65]

30.380 Action by assignee of claim for money illegally charged or exacted. No assignee of any claim against any county, city or municipal corporation of this state or any county, city or municipal officer in this state, for money claimed to have been illegally charged or exacted by such county, city or municipal corporation or such officer, except money collected as taxes or license, or money due on contract, shall have the right to institute or maintain any action or suit for the recovery thereof in any court in this state.

30.390 Satisfaction of judgment against public corporation. If judgment is given for the recovery of money or damages against a public corporation mentioned in ORS 30.310, no execution shall issue thereon for the collection of such money or damages, but the judgment shall be satisfied as follows:

(1) The party in whose favor the judgment is given may, at any time thereafter, when an execution might issue on a like judgment against a private person, present a certified copy of the judgment document, to the officer of the public corporation who is authorized to draw orders on the treasurer thereof.

(2) On the presentation of the copy, the officer shall draw an order on the treasurer for the amount of the judgment, in favor of the party for whom the judgment was given. Thereafter, the order shall be presented for payment, and paid, with like effect and in like manner as other orders upon the treasurer of the public corporation.

(3) The certified copy provided for in subsection (1) of this section shall not be furnished by the clerk, unless at the time an execution might issue on the judgment if the same was against a private person, nor until satisfaction of the judgment in respect to such money or damages is acknowledged as in ordinary cases. The clerk shall provide with the copy a memorandum of such acknowledgment of satisfaction and the entry thereof. Unless the memorandum is provided, no order upon the treasurer shall issue thereon. [Amended by 2003 c.576 §185]

30.395 Settlement of certain claims against municipal corporations; manner of payment. (1) The governing body of any municipal corporation, as defined in ORS 297.405, may compromise, adjust and settle claims other than tort claims against the municipal corporation, its officers, employees or agents acting within the scope of their employment, and may, subject to procedural requirements imposed by law or charter, appropriate money for the payment of amounts agreed upon.

(2) When a judgment is entered or a settlement is made pursuant to subsection (1) of this section, payment therefor may be made in the same manner as payment for tort claims under ORS 30.295. [1979 c.630 §2; 1987 c.396 §1]

30.400 Actions by and against public officers in official capacity. An action may be maintained by or against any public officer in this state in an official character, when, as to such cause of action, the officer does not represent any of the public corporations mentioned in ORS 30.310, for any of the causes specified in such section and ORS 30.320. If judgment is given against the officer in such action, it may be enforced against the officer personally, and the amount thereof shall be allowed to the officer in the official accounts of the officer.

30.402 [1991 c.847 §1; renumbered 17.095 in 2003]

INJUNCTIONS BY PUBLIC SERVANT OR PUBLIC SERVANT’S EMPLOYER

30.405 Injunction for criminal conduct related to employment or status of public servant. (1) A public servant or the public servant’s employer may petition a circuit court for an order enjoining a person who engages in conduct that:

(a) Is directed at the public servant;