Kutz v. Lee

When bringing an action under the Oregon Tort Claims Act, “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 claims is given as required by this section. For claims other than wrongful death, the notice period is 180 days. 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 OTCA shall be commenced within two years after alleged loss or injury." ORS 30.275(1), (2)(b), (9).

Plaintiffs appealed the trial court's motion to dismiss for Defendant against Plaintiffs' claims. Plaintiffs assigned error to the trial court's determination that Plaintiffs lacked standing, failed to give timely notice under the Oregon Tort Claims Act (OTCA), and claims were barred by the OTCA statute of limitations. On appeal, Plaintiffs argued lawful access was not a requirement for an easement claim, so their complaint was well-pleaded and sufficient for standing. Additionally, Plaintiffs argued the OTCA 180-day notice period and the two-year statute began when Plaintiffs discovered their claims against Defendant. In response, Defendant argued Plaintiffs did not have lawful means to access the easement in dispute, so they did not meet all requirements for an easement claim, and the notice period under the OTCA began when Defendant recorded use agreements in 2009, not when Plaintiffs discovered their claims. When bringing an action under the OTCA, "No action arising from any act or omission of a public body . . . within the scope of ORS 30.260 to 30.300 shall be maintained unless notice of claims is given as required by this section. For claims other than wrongful death, the notice period is 180 days. An action arising from any act or omission of a public body . . . within the scope of OTCA shall be commenced within two years after alleged loss or injury." ORS 30.275(1), (2)(b), (9). The Oregon Court of Appeals held Plaintiffs' claims related to lawful access were sufficient to survive Defendant's motion to dismiss and the OTCA notice period runs on an individual basis, thus Plaintiffs' claims should have survived under the notice issue as well. Reversed and Remanded.