300 P.3d 247
Or. Ct. App.2013Background
- Plaintiff sued Lannie Haszard, AMR Northwest, and AMR's parent company for battery alleging sexual touching during an ambulance transport.
- Trial court granted summary judgment on two grounds: statute of limitations and lack of genuine issue of material fact due to plaintiff's memory loss.
- Plaintiff had amnesia about the transit; after hospital stay she developed symptoms and later learned Haszard's predatory history.
- Defendants argued the battery claim was time-barred under ORS 12.110(1) and that discovery rule did not apply to battery claims.
- Plaintiff relied on an ORCP 47 E affidavit from her attorney stating an expert would testify to traumatic amnesia and a battery occurred, creating a factual dispute.
- Court reversed and remanded, holding the discovery rule can apply to battery claims and the ORCP 47 E affidavit can create a genuine issue of material fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the discovery rule toll ORS 12.110(1) for battery claims? | Berry provides tolling for bodily injuries; discovery occurs in 2007. | Battery claims are not subject to discovery rule; inherently discoverable. | Yes; discovery rule applies to battery claims; factual disputes remain. |
| Does ORCP 47 E affidavit create a genuine issue of material fact as to occurrence of battery? | Attorney's ORCP 47 E affidavit suffices to defeat summary judgment. | 47 E alone cannot prove battery absence of memory issues; expert testimony required is not guaranteed. | Yes; affidavit, with corroborating evidence, creates a factual dispute for trial. |
| Is the ORCP 47 E affidavit admissible under Southard analysis in this context? | Affidavit is admissible and relevant to traumatic amnesia caused by battery. | Southard bars expert conclusions of abuse without physical corroboration. | Admissible here; does not trigger Southard's prejudice concerns given record. |
Key Cases Cited
- Berry v. Branner, 245 Or 307 (1966) (accrual and discovery rule for bodily injury torts)
- T. R. v. Boy Scouts of America, 344 Or 282 (2008) (discovery rule concept for accrual)
- Doe v. Lake Oswego School District, 353 Or 321 (2013) (applies discovery rule to sexual battery; OTCA context)
- Cole v. Sunnyside Marketplace, LLC, 212 Or App 509 (2007) (discovery rule in bodily injury actions; accrual timing)
- State v. Southard, 347 Or 127 (2009) (limits on expert testimony admissibility in abuse cases)