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Dickson v. Trimet

Court of Appeals of Oregon

January 10, 2018

Richard DICKSON, Plaintiff,
v.
TRIMET, Defendant-Appellant, and Jeremy THOMPSON, Plaintiff-Respondent, and Leonard JAMES, Defendant.

          Argued and submitted May 11, 2016.

         Clackamas County Circuit Court CV13060545; Susie L. Norby, Judge.

          Keith M. Garza argued the cause for appellant. With him on the briefs were Kimberly Sewell and Law Office of Keith M. Garza.

          Andrew E. Teitelman argued the cause for respondent. With him on the brief were Wendy D. Leik and Law Office of Andrew E. Teitelman, PC.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case 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.

         Judgment reversed as to Thompson; otherwise affirmed.

         [289 Or. 776] ORTEGA, P. J.

         Defendant 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.

         The 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.

         We 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)).

         We take 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.

         Thompson 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.

         At 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 ...


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