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,
STATE OF OREGON and Department of Transportation, Defendants-Respondents.
and submitted September 26, 2017
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.
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,
DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi,
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.
Or. 312] AOYAGI, J.
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,
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). For the reasons that follow, we affirm.
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.
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
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.
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
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 ...