Buchwalter-Drumm v. Dept. of Human Services

Summarized by:

  • Court: Oregon Court of Appeals
  • Area(s) of Law: Tort Law
  • Date Filed: 09-27-2017
  • Case #: A158270
  • Judge(s)/Court Below: Flynn, J. for the Court; DeVore, P. J. & Powers, J.
  • Full Text Opinion

Under the Oregon Tort Claims Act, a minor’s actual or imputed knowledge begins the statutorily required notice period, however, a minor’s claim is not tolled by an adult relative until they become a guardian ad litem. Banda v. Danner, 87 Or App 69, 73 (1987), aff’d 307 Or 302 (1988).

Plaintiff, a minor represented his guardian ad litem, appealed the trial court’s grant of summary judgment in favor of the State. He assigned error to trial court’s ruling that Plaintiff’s failure to give timely notice of a tort claim under the Oregon Tort Claims Act, (OTCA), barred Plaintiff’s claim. On appeal, Plaintiff argued that the obligation to give notice under the OTCA is triggered when the person who suffered the harm discovers the cognizable injury. The State countered that the notice obligation is triggered when the minor’s guardian ad litem discovered the injury, which fell outside the proscribed 270 days. Under the Oregon Tort Claims Act, a minor’s actual or imputed knowledge begins the statutorily required notice period, however, however a minor’s claim is not tolled by a relative’s knowledge until that relative becomes the child’s guardian ad litem. Banda v. Danner, 87 Or App 69, 73 (1987), aff’d 307 Or 302 (1988). The Court of Appeals held that the trial court erred in determining that the minor child’s claims were barred for failure to give timely notice because the 270-day statutory period commenced when the minor discovered the cognizable injury, and thus, the claim was timely when filed under OTCA. Reversed and remanded. 

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