Sherman v. State

OTCA makes a public body liable for its tortious acts or omissions, subject only to the limitations set out in that act. ORS 30.265(1). By its terms, ORS 12.117 applies, in lieu of ORS 12.115, without exception or limitation, to actions “based on conduct that constitutes child abuse,” and we cannot read an exception for public entities or a limitation on the statute’s application into that statute. See Gaines, 346 Or at 173.

Plaintiff sued Defendant, the Department of Human Services, for negligently failing to protect her from abuse while in foster care in 2006. Defendant moved to dismiss under the Oregon Torts Claims Act (OTCA) claiming that it was immune from liability. Plaintiff argued that Defendant was not immune from liability and that her “claims were not barred by ORS 12.115” because child abuse is included within the statute. OTCA makes a public body liable for its tortious acts or omissions, subject only to the limitations set out in that act. ORS 30.265(1). By its terms, ORS 12.117 applies, in lieu of ORS 12.115, without exception or limitation, to actions “based on conduct that constitutes child abuse,” and we cannot read an exception for public entities or a limitation on the statute’s application into that statute. See Gaines, 346 Or at 173. Plaintiff does not need to find an express waiver of immunity for the specific claim which she has brought, the OTCA waives civil tort claim immunity subject to the limits of the act. Thus the Court does not read an exception for public entities and the lower court erroneaously dismissed Plaintiff's child abuse claims. Affirmed.