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Statement by City Attorney on sewer back-up at 288 Morton St.

February 16, 2016
 
Legal Context
The State of Oregon has a statute that places a ceiling on the liability of local governments for damage to property – the Oregon Tort Claims Act. Tort claims are about negligence or mistakes people make. The policy reasons the Legislature established such a cap have to do with keeping taxpayers from having to bear the expense of guaranteeing fail-safe city systems and services.

The current statutory limit on a city’s liability for a tort to $112k per claimant for property damages. Because of the Tort Claims Act, no insurer will provide coverage for claims beyond what the statute sets as the most a city can be held legally responsible for.

Also because of the City Charter and the Tort Claims Act, the City Council cannot reimburse someone for tort damages in excess of the statutory ceiling. The Ashland City Charter, which is what gives City Council its legal powers and sets limits on those powers, says in Article 16, Section 2, “The City’s immunity of liability for torts shall be as determined by State law.” Insurers act independently from the insured party and tell those they insure not to become involved in the claims process. Insurance contracts contain clauses requiring client cooperation, including staying out of the way of the claims process, to keep it objective and free of political pressures or interpersonal partiality.

Attorneys tell their clients who have been threatened with litigation to avoid communications with prospective plaintiffs. Misinterpreted or inadvertently inaccurate statements to plaintiffs by clients who otherwise have no personal knowledge of the incident or the factors involved can be called as witnesses for the other side at depositions or trial and dramatically impact trial outcomes.
 
Response Timeline


October 28, 2015. 
  • The backup apparently resulted from a brick that got into the sewer line, probably from an old brick-lined manhole. Whether the brick was inadvertently dislodged during replacement of an old manhole upstream of the Shaffer house two weeks before the incident or just fell at some other time from some other upstream, aging brick-lined manhole without having been disturbed has not been determined and probably cannot be determined.
     
  • The calls for assistance that were made and the times they were made on the day of the incident are not yet clear. According to the attorney for Ms. Shaffer, she discovered the problem at approximately 4:30 PM. The City employee on call for dealing with wastewater collection problems first learned of the problem at 6:18 PM; immediately left from home to pick up a Jet/Vac truck; and stopped the flow of sewage into the home by 7:40 PM.
October 29, 2015 (the day after the incident)
  • At approximately 9:00 AM, City Risk Management staff talked to Ms. Shaffer about the claims process. 
  • A City Public Works employee called Ms. Shaffer in the morning and advised her of the cause of the backup.
  • City submitted a claim to its insurer, CIS and asked CIS to contact Ms. Shaffer immediately to expedite her claim.
  • At 11:03 AM, CIS claims adjuster called Ms. Shaffer to discuss the claims process.
November 3, 2015 (6 days after the incident)
  • CIS issued to Ms. Shaffer an advance payment check for $25,000.
November 10, 2015
  • CIS claims adjuster met with Ms. Shaffer and her attorney at the house.
December 17, 2015
  • CIS made the maximum offer allowed under the Oregon Tort Claims Act for property damage to the co-owners of 288 Morton.

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