Dunn v. City of Milwaukie

Under Oregon's Discovery Rule and ORS 30.275, the timeline to file a claim begins as soon as a harm is cognizable, and is not tolled to the date that the full extent of the harm is recognized.

The City of Milwaukie used pressurized water to clean their sewer lines which resulted in damage to the Plaintiff's home. The Plaintiff's sued, but the suit was dismissed for lack of timely notice, under ORS 30.275, but allowed the suit to proceed on an inverse condemnation claim. The City appealed the judgment arguing the evidence failed to show a compensable taking of property under Art. I, Section 18 of the Oregon Constitution, and the Plaintiff cross-appealed stating that the dismissal pursuant to ORS 30.275 was improper. The Court of Appeals affirmed and never reached the issue as to timely notice. Subsequently, the Oregon Supreme Court reversed and remanded for reconsideration, holding that it was improper to allow an inverse condemnation claim, and that the Court of Appeals should have considered the issue of timely notice.

On reconsideration of the issue of timely notice under ORS 30.275, the Plaintiff argues that under the Discovery Rule, she had made a timely notice to the city, as it was not until a later time that she recognized the legally cognizable harm that was created as a result of the City's action. However, the day of the incident, she heard a loud roar and had sewage come through her water lines and into her home. The Court held that while the full extent of the harm may have not been recognized until later, the discovery of the harm as a result of the tortious conduct was immediately recognizable and thus discovered under Oregon's Discovery Rule doctrine. Reversed and remanded with instructions to enter judgment in favor of the City on Plaintiff's claim of inverse condemnation; otherwise affirmed.