 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Nelson v. Lane County9/15/1987
spections).
In this case, neither the state nor the county officials point to a statute or ordinance establishing an administrative scheme allowing sobriety roadblocks to prevent driving while intoxicated. The state's reliance on ORS 181.030 is misplaced. That statute sets forth only the general criminal law enforcement duties of the Oregon State Police. See 304 Or 103 n 3.
Police stopped and seized plaintiff and her vehicle and interrogated her. This conduct was unauthorized and therefore unlawful, and plaintiff is entitled to declaratory judgment. ORS 28.010 to 28.160. Injunctive relief for this plaintiff is not necessary.
II. TORT REMEDIES
In addition to a declaration of the illegality of the roadblock and a plea for injunctive relief, plaintiff seeks general damages of $100 and punitive damages of $5,000. She makes her claim for damages, in part, pursuant to the Oregon Tort Claims Act, ORS 30.260 to 30.300.
ORS 30.265(1) defines a tort for purposes of liability of public bodies, officers, employees and agents as
"* * * the breach of a legal duty that is imposed by law, other than a duty arising from contract or quasi-contract, the breach of which results in injury to a specific person or persons for which the law provides a civil right of action for damages or for a protective remedy."
The duty may derive from the common law, from statute or ordinance or from our constitution itself. Plaintiff apparently attempts to cover any of these alternative theories with her pleaded facts, which may state a claim for common law trespass, and by reference to the stop and inquire statute, ORS 131.615, and the state constitution, Article I, section 9.
Under the common law, an unauthorized intentional intrusion upon one's person, property, or effects is a trespass. The tort traditionally has encompassed a damage action against police officers for exceeding their authority to search or seize.
In addition, we have recognized "statutory tort" duties in contexts where no common law duty exists but where a statute or ordinance created a special duty owed by a defendant to a plaintiff, usually arising from the status of the parties or the relationship between them. See Cain v. Rijken, 300 Or 706, 717 P2d 140 (1986) (statute governing commitment and release of patients imposed a duty on hospital serving as a community health provider to use reasonable care to protect the public); Chartrand v. Coos Bay Tavern, 298 Or 689, 696 P2d 513 (1985) (recognizing tort recovery under statute implicitly creating civil liability of tavern owner for injuries caused by visibly intoxicated patrons); Nearing v. Weaver, 295 Or 702, 707,
670 P2d 137 (1983) (recognizing duty to arrest imposed by statute "for the benefit of individuals previously identified by a judicial order"); Brennen v. City of Eugene, 285 Or 401, 591 P2d 719 (1979) (city held to duty to enforce ordinance requiring adequate insurance for taxicabs); Urban Renewal Agency v. Lackey, 275 Or 35, 549 P2d 657 (1976) (counterclaim for breach of duty imposed by agency regulations held to allege a tort).
Plaintiff's claim here is that the stop and inquire statute, ORS 131.615, creates a duty for law enforcement officers to seize persons only as prescribed by that statute. However, in State v. Tourtillott, supra,
|