and submitted May 11, 2016.
County Circuit Court CV13060545; Susie L. Norby, Judge.
M. Garza argued the cause for appellant. With him on the
briefs were Kimberly Sewell and Law Office of Keith M. Garza.
E. Teitelman argued the cause for respondent. With him on the
brief were Wendy D. Leik and Law Office of Andrew E.
Ortega, Presiding Judge, and Lagesen, Judge, and Garrett,
Summary: TriMet appeals a judgment entered against it after a
jury found it liable for injuries that plaintiff Thompson
suffered as a result of being stabbed by another passenger on
the bus that he was riding. TriMet's sole assignment of
error concerns the trial court's denial of TriMet's
motions for a directed verdict based on its position that
Thompson did not provide timely notice of his negligence
action against TriMet as required by the Oregon Tort Claims
Act (OTCA). TriMet argues on appeal that Thompson knew at the
time of the attack that he had been harmed and of the
circumstances of the bus operator's conduct, which are
the basis for his claim against TriMet. Consequently, TriMet
contends, [289 Or. 775] Thompson's tort claims notice was
untimely as a matter of law. Held: Thompson's
OTCA notice was untimely because no reasonable trier of fact
could conclude that Thompson did not know of the critical
facts that supported his claim that TriMet negligently failed
to protect him at the time the injury occurred.
reversed as to Thompson; otherwise affirmed.
Or. 776] ORTEGA, P. J.
TriMet appeals a judgment entered against it after a jury
found it liable for injuries that plaintiff Thompson suffered
as a result of being stabbed by another passenger on the bus
that he was riding. TriMet's sole assignment of error
concerns the trial court's denial of TriMet's motions
for a directed verdict based on its position that Thompson
did not provide timely notice of his negligence action
against TriMet as required by the Oregon Tort Claims Act
(OTCA), ORS 30.260 to 30.300. TriMet argues on appeal that
Thompson knew at the time of the attack that he had been
harmed and of the circumstances of the bus operator's
conduct, which are the basis for his claim against TriMet.
Consequently, TriMet contends, Thompson's tort claims
notice was untimely as a matter of law. We agree with TriMet
that the trial court erred and therefore reverse.
stabbing occurred on October 2, 2012. Initially, another
passenger on the bus who was also stabbed, Dickson, timely
provided notice to TriMet in February 2013 that he intended
to file a claim against it. Dickson filed a negligence action
against TriMet and the bus driver, James, in June 2013, and
on September 5, 2013, the complaint was amended to add
Thompson as a plaintiff and to remove James as a defendant.
TriMet moved for summary judgment against Thompson's
claims, asserting that Thompson failed to provide timely tort
claims notice. The trial court denied that motion. At the
close of plaintiffs' case at trial, TriMet moved for a
directed verdict on the ground, among others, that Thompson
had failed to provide timely tort claims notice. The court
also denied that motion. At the close of all the evidence,
TriMet renewed its motion for a directed verdict, which was
denied. The jury found that TriMet was negligent in failing
to protect Thompson and Dickson. TriMet appeals the judgment
as to Thompson.
review the trial court's denial of TriMet's motions
for a directed verdict for legal error. Cohen v. Awbrey
Glen Homeowners Assn., 283 Or.App. 244, 250, 388 P.3d
1160 (2016). In doing so, we view the evidence and reasonably
derived inferences in the light most favorable to the
prevailing party-here, Thompson-and determine whether that
[289 Or. 777] party adduced legally sufficient evidence to
prevail. Walsh v. Spalding & Son, Inc., 216
Or.App. 55, 60, 171 P.3d 1032 (2007), rev den, 344
Or. 391 (2008). As to the discovery of tortious conduct, a
"court cannot decide that question as a matter of law
unless the only conclusion that a reasonable trier of fact
could reach is that the plaintiff knew or should have known
of the critical facts at a specified time." Doe v.
Lake Oswego School District, 353 Or. 321, 333, 297 P.3d
1287 (2013) (citing Kaseberg v. Davis Wright Tremaine,
LLP, 351 Or. 270, 278, 265 P.3d 777 (2011)).
the following facts from Thompson's testimony at trial
where he recounted the circumstances of the stabbing that
took place on October 2, 2012. Thompson was a passenger on a
TriMet bus. He noticed another passenger, Vanhagen, talking
on the phone and, based on the tone of Vanhagen's voice,
could tell that he was upset. After 10 to 15 minutes,
Thompson saw Vanhagen walk toward the front of the bus at a
stop. At the front of the bus, Vanhagen assaulted another
passenger and argued with the bus driver, James. Vanhagen
stepped off the bus and continued to argue with James.
Vanhagen tried to get back on the bus a couple of times, and
each time James pushed him off. In one of his attempts to get
back on the bus, Vanhagen punched James, at which point James
stepped off the bus to follow Vanhagen outside.
followed James off the bus and observed James hit Vanhagen
three to five times as Vanhagen was retreating. Thompson told
James to stop hitting Vanhagen, get on the bus, and call the
police-essentially to "do [his] job." Dickson
unsuccessfully attempted to restrain Vanhagen, and Thompson
observed the "aftermath" of Vanhagen stabbing
Dickson and informed James, "There's a knife."
Thompson got back on the bus and told James to close the
doors, but while James was on the phone with dispatch, James
"continuously opened and closed the doors, " for
reasons that Thompson could not understand. Shortly after,
Thompson saw that Vanhagen "was coming through the
bus" and that the doors were open. Thompson
"actually went to the doors to try to close them as soon
as" he saw Vanhagen. Thompson saw Vanhagen stab James,
and then Vanhagen [289 Or. 778] stabbed Thompson in the back
six times. With the help from another passenger, Thompson
restrained Vanhagen until the police arrived. Thompson was
hospitalized for five days and missed about a month of work.
trial, Thompson testified that he believed "in
hindsight" that James should have handled the situation
differently in two ways. First, Thompson believed that the
bus door should have been shut the instant that Vanhagen was
off the bus. Second, Thompson believed that James
"should not have pursued [Vanhagen] and out of anger
assaulted him." According to Thompson, it was not until
he met with his attorney in June 2013 that he
"realize[d] that TriMet may have some liability for what
transpired." He also remarked that he did not