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Dunn v. City of Milwaukie

Court of Appeals of Oregon

April 22, 2015

Sharon DUNN, Plaintiff-Respondent,
v.
CITY OF MILWAUKIE, an Oregon municipality, Defendant-Appellant

Submitted on Remand July 22, 2014.

Clackamas County Circuit Court. CV07040247; On remand from the Oregon Supreme Court, Dunn v. City of Milwaukie, 355 Or. 339, 328 P.3d 1261 (2014) . Eve L. Miller, Judge.

Michael A. Lehner and Lehner & Rodrigues PC filed the briefs for appellant.

Kenneth Dobson and Buckley LeChevallier, P.C., filed the briefs for respondent.

Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Lagesen, Judge.

OPINION

Page 302

[270 Or.App. 480] DUNCAN, P. J.

Defendant, the City of Milwaukie (the city), used highly pressurized water to clean the sewer lines adjacent to plaintiff's house, which caused sewer water to back up through plaintiff's toilets and bathroom fixtures. Plaintiff subsequently brought this action against the city, alleging tort claims and a claim for inverse condemnation. The trial court granted summary judgment against the tort claims on the ground that plaintiff had failed to give the city notice of those claims within 180 days of the injury as required under ORS 30.275, but the inverse condemnation claim was tried to a jury, which found for plaintiff and awarded $58,333 in damages.

The city appealed, arguing that the trial court should have directed a verdict in its favor on the inverse condemnation claim because plaintiff failed to prove a compensable taking of property under Article I, section 18, of the Oregon Constitution. In response, plaintiff cross-assigned error to the dismissal of her tort claims. We affirmed the judgment in plaintiff's favor on the inverse condemnation claim without reaching her cross-assignment of error, but the Supreme Court subsequently reversed that decision on the ground that plaintiff's evidence was insufficient to prove the intentional invasion of property necessary for inverse condemnation. Dunn v. City of Milwaukie, 241 Or.App. 95, 102, 250 P.3d 7 (2011), rev'd, 355 Or. 339, 328 P.3d 1261 (2014). The Supreme Court explained, however, that plaintiff was " not necessarily without any remedy" as a result of its holding, because " Oregon has abrogated its traditional sovereign immunity; both the state and other governmental units can be sued on common-law tort theories." Dunn, 355 Or. at 362. The

Page 303

court explained that plaintiff had in fact attempted to recover in tort, and it remanded the case for us to consider her cross-assignment of error regarding whether she had provided a timely tort-claim notice. We now consider that cross-assignment and conclude that the trial court correctly dismissed plaintiff's tort claims for lack of timely notice under ORS 30.275.

BACKGROUND

Although plaintiff's inverse condemnation claim was tried to a jury, the issue before us concerns claims that [270 Or.App. 481] were dismissed on summary judgment; therefore, we confine our statement of facts to the evidence in the summary judgment record. We state those facts and all reasonable inferences that can be drawn from them in the light most favorable to plaintiff, the nonmoving party. See Jones v. General Motors Corp., 325 Or. 404, 408, 939 P.2d 608 (1997).

In August 2005, plaintiff was inside her home when she heard a loud roar. She went into each of her two bathrooms and found wastewater coming out of the toilets and showers. The wastewater was grayish, had material floating in it, and smelled. Plaintiff ran out of the house and saw a work crew pumping water into a manhole; the crew was using highly pressurized water--a process called " hydrocleaning" --to clean the city's sewer lines. Plaintiff and her neighbor, who had experienced the same phenomenon in her house, approached the crew about the problem. When the neighbor asked a woman in the crew what was happening, she responded, " oh, my god, he used too much pressure."

When plaintiff went back inside her house, the wastewater was running down the hallway and into every room in her house--her living room, family room, kitchen, entryway, and all of her bedrooms. Plaintiff observed three to four inches of water, and saw water going down her heating vents, including vents in both bathrooms, her entryway, and her family room. Plaintiff grabbed towels and ...


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