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Lee v. State

Court of Appeals of Oregon

February 14, 2018

Jung Nyeo LEE and Woon Jae Lee, wife and husband and the marital community composed thereof; Woon Jae Lee, as Personal Representative of the Estate of Ae Ja Kim on behalf of such Estate and all statutory benefciaries; Man Sun Kim, an individual; Yoon Sang Kim and Hye Jin Kim, husband and wife and the marital community composed thereof; Yoon Sang Kim, Guardian ad litem for his two minor daughters, Soo Min Kim and Ji Min Kim; Myung Sup Choi and Yi Yeon Choi, husband and wife and the marital community composed thereof; Cheul Woo Yang and Choon Sook Yang, husband and wife and the marital community composed thereof; John Choi and Yoonhee Choi, husband and wife and the marital community composed thereof; Michael Sohn and Rachel Sohn, husband and wife and the marital community composed thereof; Michael Sohn, Personal Representative of the Estate of Richard Sohn, on behalf of such Estate and all statutory benefciaries, Plaintiffs-Appellants,
v.
STATE OF OREGON and Department of Transportation, Defendants-Respondents.

          Argued and submitted September 26, 2017

         Umatilla County Circuit Court CV142169; Eva J. Temple, Judge.

          Charles Hermann, Washington, argued the cause for appellants. With him on the brief were Crystal R. Lloyd and Herrmann Scholbe. With them on the reply brief were Mark Jurva, Katharine Martin, and Jurva Martin.

          [290 Or. 311] Jona J. Maukonen, Assistant Attorney General, argued the cause for respondents. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary:

         Plaintiffs appeal a grant of summary judgment to defendants, arguing that the trial court erred in ruling that plaintiffs had not provided timely notice of their claims under ORS 30.275, a provision of the Oregon Tort Claims Act. Plaintiffs brought suit against the state and the Oregon Department of Transportation on behalf of individuals killed or injured in a bus crash on Interstate 84. Defendants moved for summary judgment, arguing that plaintiffs had failed to provide timely notice under the Oregon Tort Claims Act. The trial court granted summary judgment. Plaintiffs appealed, arguing that the state had actual notice of their claims or that they had substantially complied with the statute. Held: The trial court did not err in granting summary judgment to defendants because defendants did not have actual notice that plaintiffs were likely to assert a claim.

          [290 Or. 312] AOYAGI, J.

         This case arises out of a bus crash on an icy stretch of Interstate 84 near Pendleton. The accident resulted in numerous deaths and injuries. Nearly two years later, plaintiffs filed this action against the state, [1] asserting negligence and wrongful death claims. The trial court granted summary judgment to defendants on the ground that plaintiffs had not provided timely notice of their claims under ORS 30.275, a provision of the Oregon Tort Claims Act. On appeal, plaintiffs assign error to that ruling, arguing that defendants had actual notice of plaintiffs' claims under ORS 30.275(6) or, alternatively, that plaintiffs substantially complied with ORS 30.275(6).[2] For the reasons that follow, we affirm.

         On review of a grant of summary judgment, we view the record in the light most favorable to the nonmoving party to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law. Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997). In this case, the facts relevant to the grant of summary judgment are largely undisputed.

         Plaintiffs were participants in a nine-day bus tour that originated in Washington. On a December morning in 2012, the bus was travelling west on 1-84, carrying 47 passengers. According to ODOT records, the air temperature had been below freezing for several days, and the area had ground fog, spots of ice, and a trace of new snow. The right westbound lane had been plowed recently, while the left westbound lane was in the process of being plowed for the first time in 15 hours. Plaintiffs' tour bus passed the snowplow [290 Or. 313] as it travelled west. A few miles later, the bus pulled into the left lane to pass a car in front of it in the right lane. Upon entering the left lane, the bus lost control, collided with a barrier, toppled over the guardrail, and plummeted down a 200-foot embankment. Nine passengers died, and many more were seriously injured.

         ODOT responded to the scene to render aid, and, given the severity of the crash, immediately began an investigation. The ODOT district manager was one of the ODOT employees at the scene. Defendants do not dispute that ODOT had a full opportunity to investigate the circumstances of the crash.

         Plaintiffs are a group of crash survivors, relatives of crash survivors, and personal representatives of people who died in the crash. Shortly after the crash, plaintiffs retained counsel and filed an action in Washington against the tour bus company, its owner, and the bus driver, asserting claims for willful or wanton misconduct and negligence. Approximately two months after the crash, plaintiffs' counsel requested a copy of the accident report and other information from the Oregon Department of Motor Vehicles (DMV), stating, "We represent several passengers in claims arising from the bus crash of 12/30/12 on 1-84." The request named two crash survivors and attached a copy of the complaint filed in Washington.

         In December 2014, nearly two years after the crash, plaintiffs filed this action against the state and ODOT, asserting claims for negligence and wrongful death. With respect to notice under ORS 30.275, plaintiffs pleaded that defendants had received "actual notice of the time, place and circumstances giving rise to Plaintiffs' claim, such that a reasonable person would conclude that Plaintiffs would intend to assert a claim against Defendants." Plaintiffs cited ODOT's investigation of the circumstances of the crash, ODOT's accident report, ODOT's ...


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