51 Trial Lawyer • Summer 2023 the context of the OTCA suggests that the term “liability” in ORS 30.272 refers to an obligation to pay damages, not attorney fees. The court recognized that, in Griffin v. Tri-Met, 318 Or 500 (1994), the Supreme Court held that the word “liability” in former ORS 30.270 (a predecessor of ORS 30.272) included attorney fees. The Court of Appeals also noted that in 1987 the legislature had amended ORS 30.270 to specify that “liability” consists of “damages”; that Griffin had interpreted the pre-1987 version of that statute; and that, in Anglin v. Dept. of Corrections, 160 Or App 463 (1999), the court held that the 1987 version of the statute did not apply to attorney fees. The Court of Appeals also noted that in 2009 the Legislature repealed ORS 30.270 and replaced it with ORS 30.272, which does not refer to damages, just like the pre-1987 version of ORS 30.270. The court held that this did not mean the Legislature intended to return to Griffin, however, because the legislative history from 2009 showed that the Legislature was focused on governmental liability for damages; the Legislature did not discuss attorney fees. The court distinguished Burley v. Clackamas County, 313 Or App 287 (2021), because the plaintiff in that case did not argue that ORS 30.272 does not apply to attorney fees. Judge Mooney dissented, explaining that she would apply Griffin because the language of ORS 30.272 is, in all material respects, the same as the language of ORS 30.270 that was at issue in Griffin. Judge Mooney discounted the majority’s reliance on legislative history, noting that the absence of legislative history on the subject of attorney fees says nothing about whether the Legislature meant to include them within the meaning of the word “liability.” Cody Hoesly specializes in appeals, financial fraud and commercial cases. He contributes to OTLA Guardians at the Guardians Club level. Hoesly is a shareholder at Barg Singer Hoesly PC, 121 SW Morrison St., Ste. 600, Portland, OR 97204. He can be reached at choesly@bargsinger.com or 503-241-8521. Lisa T. Hunt specializes in appeals and trial and motions support for plaintiff attorneys. Recent practice areas include class actions, Oregon’s wage and hour law, product and premises liability, personal and business injury, and UIM. She can be reached at lthunt@lthuntlaw.com or 503515-8501. Nadia Dahab specializes in appeals, civil rights, and general civil and class action litigation. She contributes to OTLA Guardians at the Guardians Club level. Dahab is a shareholder at Sugerman Dahab, 707 SW Washington St., Ste. 600, Portland, OR 97205. She can be reached at nadia@sugermandahab.com or 503228-6474.
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