Hall v. City of Hillsboro

THORNTON, J.,

dissenting.

I cannot agree with the majority that the 180-day limitation began running when the defendant city announced the formation of the improvement district in the fall of 1972, and that therefore plaintiffs did not give timely notice.

As I understand the facts, a private developer apparently could not make good on his obligation to put in a serviceable street. For reasons not appearing in the complaint, the defendant city repaired the street, and finally decided to assess the abutting property owners with the cost of the repairs rather than assuming the cost itself.

*167Assuming arguendo that the facts alleged in plaintiffs’ complaint are otherwise actionable under our Tort Claims Act, I would hold that plaintiffs did give timely notice, and that the trial court erred in sustaining defendant’s first affirmative defense and dismissing plaintiffs’ complaint.

My research indicates that under the applicable authorities, the alleged tort of defendant was not complete until the assessments were levied against plaintiffs’ properties.

First, the universally accepted rule applicable in tort cases is that damages are the sine qua non for the beginning of the running of the statute of limitations. U S. Nat’l Bank v. Davies, 274 Or 663, 548 P2d 966 (1976). See also, Industrial Plating Co. v. North, 175 Or 351, 153 P2d 835 (1944); 51 Am Jur2d 681 et seq, Limitation of Actions § 109 (1970). The majority, after expressly recognizing this rule, fails to follow it. Instead, it fashions one of its own which is contrary to law in my view.

There is a further reason why we should adopt the above construction of the Act in preference to the construction adopted in the majority opinion. The Tort Claims Act is a remedial statute.1 Our Supreme Court has expressly declared that a remedial statute must, if possible, be construed liberally so as to afford all the relief within the power of the court which the language of the Act indicates that the legislature intended to grant. Sunshine Dairy v. Peterson et al., 183 Or 305, 193 P2d 543 (1948). This rule has been invoked in reference, for example, to our Workmen’s Compensation Act (Johnson v. Timber Structures, Inc., 203 Or 670, 281 P2d 723 (1955)), and to the Unemployment Compensation Act (Puget Sound B. & D. Co. v. S.U.C.C., 168 Or 614, 126 P2d 37 (1942)). Accord: Myers/Sherwood v. Tualatin RFD, 5 Or App 142, 483 P2d 95 (1971) (firemen’s civil service law).

*168Here the legislative intent is evident on the face of the statute: to afford a remedy to all citizens (with certain exceptions) who suffer injury through the negligence of governmental agencies, but who could not heretofore obtain compensation because of the doctrine of sovereign immunity.

If we follow the above rule of statutory construction as declared by our Supreme Court, I believe that we must place a liberal interpretation in favor of the claimant upon the notice requirement here in order to accomplish the purpose of the subject Act. See, Urban Renewal Agency v. Lackey, 275 Or 35, 549 P2d 657 (1976); Croft v. Gulf & West./Highway Comm., 12 Or App 507, 506 P2d 541, Sup Ct review denied (1973). Accordingly, I would hold that the time limitation in issue did not begin to run until defendant city adopted the ordinance assessing the cost of the street improvement against plaintiffs’ property. This did not take place until January 2, 1974. Inasmuch as plaintiffs filed their notices on February 8,1974, it follows that the same were filed within the time specified in the Act.

Lastly, I cannot agree with the conclusion by the majority that plaintiffs’ claims are also barred by ORS 30.265(2)(c), which provides:

"(2) Every public body is immune from liability for:
* * * *
"(c) Any claim in connection with the assessment and collection of taxes.”

It appears that the majority’s conclusion on this point is based upon a misconception of the theory of plaintiffs’ complaint. The thrust of the complaint is not, as the majority apparently concludes, against the street assessments per se. As plaintiffs state in their brief: "Plaintiffs are not raising the validity of the assessment nor the power of the city to impose it * * Rather, it is against the alleged earlier nonfea*169sanee of the city officials in failing to follow those ordinances which were enacted to prevent the mischief which plaintiffs say occurred here. The assessments then, under plaintiffs’ theory, are merely the end result of defendant’s alleged nonfeasance and the measure of damages claimed.

There is an additional reason. A special or local assessment is not normally considered a "tax.” Raz et ux v. City of Portland et al, 203 Or 285, 280 P2d 394 (1955); Smith et al. v. Hurlburt et al., 108 Or 690, 217 P 1093 (1923); 11 Op Att’y Gen 498 (Or 1922-24); 70 Am Jur2d 842 et seq, Special or Local Assessments § 1 (1973).

For the above reasons I do not believe the provision quoted above should be held to bar these claims.

A remedial statute is defined as one which gives a party a mode of remedy for a wrong where he had none, or a different one, before. Perkins v. Willamette Industries, Inc., 273 Or 566, 542 P2d 473 (1975).