dissenting.
There is a straightforward resolution to the problems presented by this case. Simply stated, a violation of 42 USC § 1983 was actionable in Oregon courts before the Oregon Tort Claims Act (OTCA) was amended to define “tort” to include section 1983 claims. Or Laws 1975, ch 609, § 12. That amendment did not affect the jurisdiction of state courts; rather, it created an alternative basis, with alternative benefits and detriments, for bringing a section 1983 claim. The damages that are recoverable depend on the course that a plaintiff chooses to follow.
Circuit courts are courts of general jurisdiction. Or Const, Art VII (Original), § 9. District courts have jurisdiction in cases seeking only the recovery of money or damages up to a jurisdictional limit. ORS 46.060(1)(a). The jurisdiction of those courts includes jurisdiction over federally-created claims, unless Congress provides otherwise. Testa v. Katt, 330 US 386, 391, 67 S Ct 810, 91 L Ed 967 (1947). Section 1983 claims come under that rule. Martinez v. California, 444 US *491277, 283 n 7, 100 S Ct 553, 62 L Ed 2d 481 (1980). The 1975 amendment to ORS 30.265 did not create state court jurisdiction over section 1983 cases; neither did it remove any immunities which previously existed. 444 US at 284 n 8. A state court was as available to a plaintiff asserting a section 1983 claim after the 1975 amendment as it was before the amendment. Because section 1983 is a federal remedy for the violation of a federal right, an Oregon court must apply federal law in actions brought under it, including federal damages rules. See, e.g., Blankenship v. Union Pacific Railroad Co., 87 Or App 410, 742 P2d 680 (1987); Rea v. Union Pacific Railroad Co., 87 Or App 405, 742 P2d 678 (1987) (Federal Employers Liability Act).
That the inclusion of 42 USC § 1983 in the OTCA as a tort did not give Oregon courts their first jurisdiction over such claims does not make the legislature’s action meaningless. Under federal law, as it existed in 1975, only individuals were liable for section 1983 violations; a plaintiff could not sue a governmental body under that section, no matter how direct in the incident the body’s involvement. Monroe v. Pape, 365 US 167, 81 S Ct 473, 5 L Ed 2d 492 (1961). Although the Supreme Court partially overruled Monroe in 1978, governmental liability under section 1983 still requires that the claimed violation be based on an official governmental policy or custom. Respondeat superior is not a basis for governmental liability under section 1983. Monell v. New York City Dept. of Soc. Serv., 436 US 658, 98 S Ct 2018, 56 L Ed 2d 611 (1978).
The OTCA, in contrast, is based on respondeat superior. Under it the governmental employer must indemnify and defend its employes; only the employer is liable to pay the plaintiffs damages. ORS 30.265(1); ORS 30.285. Accordingly, we have held that a plaintiff may recover on a section 1983 claim under the OTCA from governmental units without meeting the federal requirements for that liability; the OTCA has “imposed vicarious liability on public bodies for their agents’ violation of § 1983.” Haase v. City of Eugene, 85 Or App 107, 110, 735 P2d 1258 (1987).
In short, there were two 42 USC § 1983 claims available in Oregon when the incident of which plaintiff complains *492occurred.1 The federal claim was available because of the jurisdiction of Oregon trial courts to hear and resolve alleged violations of federal rights. A court hearing that kind of claim would necessarily apply federal law, including federal law concerning who is liable and what damages and attorney fees the plaintiff may recover. The other section 1983 claim is under the OTCA. That claim modifies section 1983 law by eliminating individual liability and using respondeat superior as the basis for governmental liability; in return, plaintiff must follow OTCA notice procedures and must accept the OTCA’s limitations on the amount of damages, including the prohibition of punitive damages. ORS 30.270(2).
The final question is which claim plaintiff intended to assert. In his complaint, he alleges that he gave OTCA notice within the appropriate time. That allegation suggests that he was bringing the claim under the OTCA. On the other hand, his arguments, both at the trial court and on appeal, rely on his assertion that federal law controls his section 1983 rights. It appears that plaintiff, like the other opinions by my colleagues, confused the federal and OTCA claims. Accordingly, I would reverse and remand so that plaintiff may plead the claims he wishes to assert in the light of this opinion.
I respectfully dissent.
We need not decide in this case whether a section 1983 violation is still a tort under the OTCA despite the 1985 amendment to ORS 30.265(1). Or Laws 1985, ch 731, §31.