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Oregon Supreme Court upholds two year statute of limitations for survival and wrongful death actions against public bodies
The Oregon Tort Claims Act establishes a two year statute of limitations for tort actions against public bodies. This limitation applies notwithstanding any other provision of Oregon law “providing a limitation on the commencement of an action”. ORS 30.275(9).
In Baker v. City of Lakeside, the Oregon Supreme Court held this statue did not preempt ORS 12.020(2), which allows a timely filed lawsuit to be served up to 60 days after the statute of limitations has run. The court reasoned that ORS 30.279(9) only preempted statutes that provide a limitation on the commencement of an action, which ORS 12.020(2) did not.
Bell v. Tri-Met, is a survival action that was brought two weeks too late to comply with ORS 30.275(9). Citing Baker, plaintiff argued the three year survival action statute of limitation should instead apply. ORS 30.175. According to plaintiff, that statute was not a limitation on the commencement of an action as it merely tolled the limitation period for one year following death. The Supreme Court rejected that argument, holding ORS 30.175 to establish a three year limitation period for survival actions which was subject to preemption under ORS 30.279(9). As the suit was filed after the two year limitation period established by that statute, it was untimely.
Note: Wrongful death actions are also covered under ORS 30.175 so this decision should equally apply to them.
The Court of Appeals issued its decision today in Bell v. TriMet, finding that survival actions are subject to the Tort Claims Act’s two year statute of limitations.
In Bell, a passenger died from unrelated causes more than a year after he was allegedly injured while exiting a TriMet bus. No suit was filed prior to his death, so the estate commenced a survival action against TriMet. That suit was filed outside the two year limitation period provided under the Tort Claims Act (ORS 30.275(9)), but within the three year period provided for survival actions (ORS 30.075). The trial court granted TriMet’s motion to dismiss, reasoning:
“ORS 30.075 is a statute of limitations. * * * And so it falls under the language there in ORS 30.275(9) that says [‘]or other statute providing a limitation on the commencement of an action.[‘] That’s what 30.075 is. And it says, notwithstanding that, [‘]an action arising from any act or omission of a public body or [an] officer * * * shall be commenced within two years after the alleged loss * * *.[‘]”
On appeal, plaintiff argued that the survival statute had the effect of tolling the statute of limitations for one year, making it analogous to other statutes that toll the statute of limitations. Plaintiff pointed the court to Baker v. City of Lakeside, where the Supreme Court found tolling statutes are not subject to ORS 30.275(9).
Find links to access the statutes and opinions referenced in this post on the Resources page of my website. Congratulations Kimberly Sewell, TriMet’s Director of Legal Services, who briefed and argued this appeal.