If the death was caused by a public entity, or someone working for a public entity, then a “Tort Claim Notice” has to be received by the proper person or department within one year of the incident that caused the death (If it’s an injury that does not cause death, the time limit is only 180 days). The “tort claim notice” is basically the official notice for a public body that someone believes they have grounds for a lawsuit. This is not the lawsuit itself, which will later need to be proved, but just the first step in the process – and if this step is not taken properly, and within the time limit, then any lawsuit will later be thrown out.
Tort claim notices can be tricky; it would not be good to wait until the last minute to send one, as it has to be actually received by the deadline, and it has to go to the correct person or entity. ORS 30.275 describes exactly what must be in the tort claim notice, and to whom it must be mailed. If you are suing a private business or individual, a tort claim notice is not necessary – but do not assume you don’t need one. If one is required and it is not received in time, you will forfeit your right to sue that public entity.
This one-year time limit is very important and it sometimes applies even when you think it doesn’t. For example, if a car heading north goes through a green light, and meanwhile a truck heading east T-bones the car in the intersection, people will assume the trucker had a red light and was at fault. But what if the trucker actually had a green light because the signal was broken, and so the truck and the car both had green lights? In that case, the fault may be with the city or county responsible for keeping the signal working, not with the truck driver. Even if nobody finds out until over a year later that the signal was broken, the lawsuit against the city or county that was responsible for the broken traffic signal will likely still be barred because the tort claim notice was not sent to them in time.
It is not always clear what a “public body” is. If a person works for a city, county, or the state, then it’s pretty obvious. But did you know that OHSU (Oregon Heath Science University) can be considered a “public body” for the purpose of this rule? “Public body” is defined in ORS 30.260, and includes things like “any nonprofit corporation that is organized and existing under ORS Chapter 65 and that has only political subdivisions or municipal, quasi-municipal or public corporations in this state as members.” A lawyer can help you understand when that applies.
Sometimes a fight over whether the Tort Claim Notice requirements apply to a particular defendant have to be argued in court and decided by a judge, because nobody is actually sure. Even if you call a law office, they may not be able to give you a clear answer to this question without some research on past cases.
Childcare agencies, for example, which meet certain standards, count as public bodies as well. If any party that may have been even partially responsible for the death is anything other than a clearly private individual or company, then the best bet is to hire a lawyer early on, way before a year has passed, even if you limit that lawyer’s job to “determining who the defendants are, and whether any of them is covered by the Oregon Tort Claims Act.”
Note that the Tort Claim Notice must be received within the year. Not sent, not postmarked; but actually received. And again, the clock starts ticking on the day of the injury that ultimately caused the death; not on the day of death.
The details on how to send a Tort Claim Notice, what it must include, and who to send it to, are in ORS 30.275, but all of ORS 30.260 to ORS 30.300 should be read and understood, because all of these laws work together to make it difficult to sue public bodies.
The one-year limit for the Tort Claim Notice is not the only deadline that you must follow. In Oregon, under normal circumstances, you have three years to file a wrongful death claim. In cases against public bodies, this time period is reduced to two years. So in wrongful death cases, the Tort Claim Notice must be received within one year of the incident that caused the death, and the lawsuit must be filed within two years of the same date. Attorneys in Oregon recently (May 2013) attempted to show that the three-year period should still apply but the Oregon Supreme Court decided that the two-year limit in ORS 30.275(9) overrides the three-year limit in ORS 30.075(1). If you have an experienced wrongful death attorney, he or she will know and understand these deadlines – and this is one more reason hiring a specialist is important.
There are also limitations on the amount of money that can be gotten from a lawsuit against a public body or its employees. The limitation changes each year to keep up with inflation, and the amount of the limit depends upon when the cause of action “arose,” which usually means when the person was injured. As of July 1, 2014, the limit that a local public body (meaning any public body in Oregon other than the State of Oregon) would have to pay is $666,700 / $1,333,300 and $2,000,000 / $4,000,000.
There are two limits because the first is the limit that will be paid for any one person, and the second is the limit that will be paid in total for any one incident. For example, if ten people were hurt or killed due to the fault of a local public body, that local public body would never have to pay more than $666,700 to any one person, but it would not have to pay more than $1,333,300 in total, for all 10 people.
The exact amounts are in ORS 30.271 and 30.272, and they are raised each year on July 1st.
And finally, there are also specific limits on the amount of money that can be paid for non-economic damages in wrongful death cases generally. S