Most Oregon personal injury claims involve private parties (an individual or a business) on both sides of the case, but what if the entity you think is at fault for your injury happens to be a government employee or government agency?
Filing an injury claim against the government can be an uphill battle in Oregon -- and even if your claim is successful, your compensation may be limited. But if you are injured in a slip and fall accident in a state building, hit by a negligent driver of a government vehicle, or harmed in some other way by a government employee or agency in Oregon, here's what you need to know.
The Oregon Tort Claims Act can be found in Oregon Revised Statutes sections 30.260 through 30.300. Section 30.265 says that "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" -- with certain limitations.
In this way, the Tort Claims Act works as a partial waiver of sovereign immunity, which is a legal doctrine that makes the state immune from civil liability for harm caused by the government's negligence or misconduct.
The Oregon Tort Claims Act also specifies that it offers the sole remedy for harms committed by government employees or agents of the state. Other types of legal actions are not permitted.
Although Section 30.265 of the Oregon Tort Claims Act states that "every public body is subject to civil action," other sections of the Tort Claims Act limit the types of lawsuits that may be filed and the circumstances in which they can be brought.
Generally speaking, claims that can be filed under the Tort Claims Act include:
Watch out! Even though these categories of claims are generally covered, they are not covered if certain other factors exist. For example, claims are not covered if workers’ compensation insurance applies to your injuries. For example, suppose that you work as a delivery driver. While driving your route, you are hit by a government vehicle that runs a red light. Because your injuries happened while you are on the job, workers’ compensation will probably apply -- and you will not be able to make a claim under the OTCA.
It also helps to remember that these rules only apply when injuries are caused by negligence. If a government employee or agency causes injury due to malfeasance in office or willful, wanton neglect of their duties (ORS 30.285(2)), these rules do not apply.
The Oregon Tort Claims Act governs all cases filed against a unit of government in Oregon, at both the state and the local levels. However, claims against local or municipal governments must be filed with those governments directly.
For example, the City of Portland offers detailed instructions on its website for understanding and filing claims against the city. Claims must be filed within 180 days of the accident. The city provides both a general liability claim form and a claim form dealing specifically with auto accidents.
Notice of the claim must be filed within very specific time limits. Claims for personal injury, property loss, or other damages must be filed within 180 days. A claim involving a wrongful death must be filed within one year.
Injured or legally-incapacitated persons have some leeway. The Tort Claims Act provides an additional 90 daysimmediately following the injury, in which a person might be too injured, or not have the legal capacity (for instance, because they are a minor), to file their claim.
Damages available in a claim under the Oregon Tort Claims Act are also limited. The amount of damages available changes on July 1 of each year and is published by the Office of the State Court Administrator (OSCA). As of 2016, damages in injury or death claims against the state government were capped at $2,073,600 for a single injured person and $4,147,100 for multiple people injured in the same accident. Caps on claims against local governments, or claims only involving damaged property, are lower.
The amount of damages available depends on the date the injury or accident occurred, not the date on which the claim is filed. For instance, suppose that a person is injured in a car accident caused by a government driver on June 24, 2016, but they do not file their claim until July 7, 2016. The damage caps that apply are those that were in effect on June 24, not on July 7 (when they are likely to be slightly higher). Learn more about Damages in a Personal Injury Case.