720 P.2d 392 | Or. Ct. App. | 1986
This is a negligence action.
Plaintiffs’ complaint alleged that, in 1977, plaintiffs Robert and Charmaigne Siegfried purchased and then moved onto a lot in the Greentree mobile homes subdivision. Toby Siegfried was born in January, 1979, while plaintiffs still lived at Greentree. In April, 1982, Toby was diagnosed as having damage to his central nervous system and as being autistic. In March, 1984, plaintiffs discovered that the cause of Toby’s mental retardation and neurological injury was the high level of iron and manganese in the water at Greentree.
The issue of diligence was not raised below. In the absence of special circumstances, issues not raised in the trial court will not be considered on appeal. Travelers Indemn. v. American Ins., 278 Or 193, 199, 563 P2d 684 (1977). There are no special circumstances in this case. Plaintiffs cannot be held to have waived their right to replead when the judgment granted by the trial court was based solely on the ground that the notice of claim had not been timely, rather than on the ground, which the state now asserts, that plaintiffs failed to plead diligence.
Reversed and remanded.
Plaintiffs’ complaint included negligence, strict product liability and breach of contract claims against other parties in addition to their claims against the Health Division and the Real Estate Division. Only the negligence claim was alleged against the state. All references to defendant in this opinion refer only to the state. The trial court entered final judgment for the state on June 6,1985, under ORCP 67B.
ORS 30.275 provides in part:
“(1) No action arising from any act or omission of a public body or an officer, employe or agent of a public body within the scope of ORS 30.260 to 30.300 shall be maintained unless notice of claim is given as required by this section.
“(2) Notice of claim shall be given within the following applicable period of time, not including the period, not exceeding 90 days, during which the person injured is unable to give the notice because of the injury or because of minority, incompetency or other incapacity:
“(a) For wrongful death, within one year after the alleged loss or injury.
“(b) For all other claims, within 180 days after the alleged loss or injury.”
The summary of facts in plaintiffs’ brief relates that the Green Tree subdivision had been approved by the Real Estate Division. The Health Division had notified the Real Estate Division that the water for the subdivision had been approved, relying on statements made by counsel for the developer of the subdivision, Pacific Northwest Development Corporation. When the original well in Greentree was dug in 1970 by Willamette Well Drilling, tests of the water indicated very high levels of manganese and iron. The Health Division was notified that the levels of manganese were above the levels permitted by Oregon law. The Health Division provisionally approved the plans for the water supply system, subject to compliance with the treatment plan proposed to control the excess iron and manganese. The proposed plan was never implemented, and the state Divisions failed to ensure that the plan was carried out. Defendants have not challenged plaintiffs’ summary of facts.