Curzi v. Oregon State Lottery

Under ORS 30.275(2)(b), the time period by which a plaintiff must provide notice of his or her tort claims to defendants “begins to run when the plaintiff knows[,] or in the exercise of reasonable care should have known[,] facts which would make a reasonable person aware of a substantial possibility that each of the three elements (harm, causation, and tortious conduct) exists.” Uruo v. Clackamas County, 166 Or App 133, 143, (2000) (emphasis added; internal quotation marks omitted).

Plaintiff appealed from a judgment dismissing Plaintiff’s claims with prejudice against the Oregon State Lottery (the Lottery) and several manufacturers who make video poker machines for the Lottery (Defendants). Plaintiff assigned error to the trial court’s determinations that Plaintiff (1) had failed to provide timely notice of his tort claims against Lottery as require by ORS 30.275(2)(b). On appeal, Plaintiff argued his claims were not by untimely under ORS 30.275(2)(b) because the Lottery’s tort was continuing. Alternatively, Plaintiff contended that even if the Lottery’s tort was not continuing that Plaintiff did not discover his claim pursuant to the “discovery rule” until he received the response to his public records request on August 8, 2014. Under ORS 30.275(2)(b), the time period by which a plaintiff must provide notice of his or her tort claims to defendants “begins to run when the plaintiff knows[,] or in the exercise of reasonable care should have known[,] facts which would make a reasonable person aware of a substantial possibility that each of the three elements (harm, causation, and tortious conduct) exists.” Uruo v. Clackamas County, 166 Or App 133, 143, (2000) (emphasis added; internal quotation marks omitted). The Court of Appeals determined that Plaintiff was or reasonably should have been aware that he had been “harmed” by the Lottery’s conduct when the Lottery indicated to him—in an email citing the relevant OAR within the 180 period provided by ORS 30.275(2)(b)—that the auto-hold feature was not recommending optimal playing strategies, but only “a strategy” and not the “only strategy” to have an opportunity for a winning hand. Therefore, the Court held trial court did not err when it dismissed Plaintiff’s claims with prejudice for lack of subject matter jurisdiction. Supplemental judgment reversed and remanded; otherwise affirmed.