*1 SUMMERS, J., present gas involved an oil in part case. Whale concurs and part. dissents royalty sought lease where owners to recover mineral the sum of from the lessee $750.00 HODGES, J., recused. liability for annual rentals. The of lessee’s surety assigned Lessee was issue. had lease, rights court
his under the and the assign-
concerned itself with whether such operate surety might
ment to relieve the However, recognized
liability. this Court assignment prohibited by was not
that where lease, liability then the terms Harry CRUSE and Maude surety be would not affected Cruse, Appellants, assignment. case, present Moody agreed In the to re- BOARD OF COUNTY COMMISSIONERS extension. The notes lan- newals or included COUNTY, Oklahoma, OF ATOKA guage reflecting understanding makers’ Appellee. might notes renewed be or extended No. 81733. any agreement between the holder parties makers that all would remain Supreme Court Oklahoma. liable on each extension or renewal.12 Dec. Moody not be as co-maker will released of obligation through equitable his defenses as Rehearing Denied Jan. agreed in
he advance to renewals or exten- surety
sions the notes he is not a
any portion of the loan which he bene-
fited. conclusion, primary
In hold we
obligors, present with and future interest
loan, obligations cannot defeat their rais
ing surety/accommodation maker status. present case we find the district finding
court’s of fact was correct and we will findings clearly disturb are not
contrary weight to the evidence.
CERTIORARI PREVIOUSLY GRANT-
ED; COURT OF APPEALS OPINION PART; IN TRIAL
VACATED COURT
JUDGMENT AFFIRMED.
KAUGER, V.C.J., LAVENDER,
SIMMS, WATT, JJ., OPALA and concur. consideration, operates Commercial Code Comment as waiver of Uniform 3-606, dealing Impairment 12A O.S.1981 consenting party’s right claim dis- of Collateral reads: charge. goes Impair- advance, comment This defense given Consent and is discharge commonly incorporated parties, in the ment Collateral or both of instrument requires party afterward. It no which are accommodation defenses. *2 Chiaf, Chiaf, City,
Joey
Chiaf &
Atoka,
Oklahoma,
Whittington,
Okla-
Neil
homa,
appellants.
for
McGehee,
Attorney,
Theresa
District
Jeff
Durant,
Mixon,
Attorney,
Assistant District
Oklahoma,
appellee.
for
WILSON,
ALMA
Chief Justice:
presented
The issue
is whether a
timely
tort
governmental
filed
claims action
O.S.1991,
pursuant
may be
refiled
O.S.1991,
op
100. We hold
refiling
timely-filed
erates to allow the
governmental
tort claims action within one
year
governmental
from the date the
action failed other than on its merits.
case
further find
must
re
We
manded for the district court to determine
by O.S.1991,
the action
barred
whether
155(8).
6,May
appellant, Harry
On
Cruse,
his automobile into a washout
drove
Oklahoma,
county
County,
on a
road Atoka
injury.
resulting
personal
property
(Cruse)
May
appellants
On
damages arising
claim
mailed a notice of
May
to the Board of
out of the
6th incident
County
County
Commissioners
Atoka
(Board).
by the
The notice was received
May
County Clerk
1990. The
Atoka
on
did
act
the claim and was
Board
14,1990.
August
denied on
deemed
10, 1991,
timely
January
Cruse
filed a
On
tort claims action
the dis-
governmental
County against
trict court of Atoka
Board,
alleging that the Board failed
ade-
1)
2)
road, manage
maintain the
quately:
3)
road,
drainage
discover the
around
4)
area,
warn drivers
washout
answer, the Board denied
In its
washout.
allegations
alleged
negligence
county road
due to
any defect in the
was
for which the Board
weather conditions
155(8).
O.S.1991, §
pursuant to 51
On
liable
February
Board filed a motion
sovereign
summary judgment asserting
exemption in
immunity
pursuant
155(8).
4,1992,
O.S.1991,
ruling
prior
operates
March
to a
On
Title
to allow
refiling
statutory
common law2 and
summary judgment Cruse
dismissed the
O.S.1991, 100,
provides:
actions.3
prejudice
refiling.
action without
any
If
action is commenced within due
19, 1993,
January
On
refiled
Cruse
*3
time,
judgment
and a
thereon for the
governmental
against
tort claims action
the
reversed,
plaintiff
plaintiff
or if the
fail
County.
Board in the district court of Atoka
upon
such action
than
otherwise
the
merits,
filed a motion to
or,
Board
dismiss contend-
plaintiff,
die,
the
if he should
survive,
O.S.1991,
ing
repre-
§
and the
of action
apply
that 12
100 does not
his
sentatives
a
commence
new action
governmental
a
tort claims action
allow
(1) year
within one
the
after
reversal or
refiling
expiration
of
action after
the
the
of
failure although the time limit
com-
180-day
period specified
the
in 51 O.S.
mencing
expired
the action shall have
be-
157(B).
1991, §
The district court dismissed
fore
new action is filed.
of Appeals
the action. The Court
affirmed
Prior to enactment of the Governmental
dismissal,
O.S.1991,
relying upon
51
Act,4 §
operated
Tort
100
Claims
to allow the
Wynnewood
§§ 157
170 and Johns v.
refiling
against
governmental
of an
a
Education,
School Board
P.2d 248
656
of
entity
applicable
outside the
time limitation.
(Okla.1982).
previously granted
We
certiora-
Valley
In
Development Corporation,
Vista
ri.
Arrow,5
City
Inc. v.
Broken
this Court
operated
determined
100
that
to allow the
Cruse contends that the
to maintain
refiling
a contract action
a munici-
preserved upon timely
this action was
com-
pality.
original
action had failed be-
pliance
O.S.1991,
with the
of 51
plaintiff
cause the
did
present
evidence
157;
O.S.1991,
§§
that
relating
city’s budget
limita-
debt
subjects
expressly
timely-filed governmen-
required
tions as
statute to vest
court
tal tort claims
to all
actions
Oklahoma civil
authority
money judgment
to render a
law; and,
procedure
the Governmental Tort
municipality. Valley
Vista con-
expressly
Claims
does
preclude ap-
Act
cluded that the failure of an action because
O.S.1991,
plication
12of
100 to allow refil-
authority
the court lacked
judg-
to render a
ing. The Board contends that the trial court
ment
municipality
constituted a
jurisdiction
subject
lacked
matter
because
failure
than
otherwise
on the
within
merits
refiled
was not
filed
unambiguous provisions
In
100.6
days after the claim was deemed denied un-
Guthrie,7
City
v.
Herwig
the Court held
157;
der
the Governmental Tort
operates
refiling
allow
of a
Claims Act creates to file an action
municipality,
nuisance case
180-day
and the
time limitation is condition
timely-filed
action was dismissed without
and,
right;
that failure to fulfill the
prejudice and refiled after the initial statute
extinguishes
right.1
condition
expired.
City
limitations had
Tulsa
and,
Allen,
1. Few states have addressed the
Mining
issue whether
Rock Island
Co. v.
106 Okla.
governmental
claims action
be refiled
(1924), wrongful
ing of an action an excavation in plaintiff fell into application when the inconsistent with our unless city streets. one construction of Governmental Tort Act. Claims appli The remedial nature liberal part of our law when cation of 1009 was repudiated common When Court Tort Claims Act was the Political Subdivision sovereign immunity law bar doctrine 14 of the Political Subdi enacted.10 Section governmental tort claims as to effective Act, provided that
vision Tort Claims
accruing
or causes of action
of the State
laws and statutes
a.m.,
1, 1985,16 Legislature
12:01
October
apply
govern
all actions
*4
the Governmental Tort Claims Act.17
enacted
laws
act to the extent that the
are
under the
adopted
The
Tort
Act
Governmental
Claims
provisions of
with the
the
not inconsistent
sovereign
the
doctrine of
immu-
common law
reading
§
at
plain
A
codified
act.11
immunity,
nity
partially
then
and
waived the
apply
§
a
§
that
would
to
tort
is
first, “The
providing:
State
Ap
against
political
a
subdivision.12
action
hereby adopt
sovereign
the
does
doctrine of
against
§
to tort actions
a
plication of
state,
then,
immunityO”18
“The
and
supported by
the rea
political subdivision
provided in
the
and in the manner
this
extent
soning
Conway
Casualty
Insur
in
Ohio
act,
immunity
politi-
and that of its
waives
finding
§
Company,13
that
164 is au
ance
cal
The doctrine of sover-
subdivisions.”19
O.S.1981, §
thority
application of 12
323.14
immunity
eign
“concept
the
embodied
Tort
The Political
Claims Act
Subdivision
government
part
the
a
and
courts were
and became the Governmental
was amended
against
to enforce
could not
used
claims
Unchanged, O.S.Supp.
Tort
Act.15
Claims
government
express permis-
without the
1978, 164,
part
§
a
was left intact as
government."20
sion of
Governmen-
Act.
Tort Claims
There were
Governmental
expressly
tal
Act
withholds con-
Tort Claims
provisions in
Political Subdivision Tort
no
judicial
sent to
enforcement
tort
Act,
any in
nor are there
the Govern-
Claims
local,
government,
Act,
against the
state or
expressly pro-
mental Tort Claims
which
judicial
governmental
expressly
§
enforce-
application of 100 to a
then
consents
scribe
plain
a
will be
a
12. The words of
statute
8. 184 Okla.
to be sued
removed,
judicial remedy for
statutory require
comply
and a
with a
ty bar is
failure to
claim
Johns,
the tort
enforcement of
tort claim as in
ment forever bars the
main-
political subdivision
state or
prescribed by §§
the time limitations
tained.
accomplish
construed so
157 have been
as
clearly
statutory
expresses
purpose. Trent v. Board
language
§in
filing
one-year
for
limitation
intent that the
County Commissioners
Johnston Coun
operates as
of claim
the written notice
90-day period for a
ty,
that the
concluded
language
the claim.25 Similar
absolute bar to
deny
prevents
political subdivision to
a claim
Act
Tort Claims
in the Political Subdivision
injured
delay
of the
needless
for the benefit
determined,
face,
absolute-
has been
and held that actual notice of
claimant
Wynnewood
ly
a claim.
In Johns v.
bar
trig
attorney
denial of
claim claimant’s
Education,26 written notice
Board
School
running
180-day
for
gers
presented school
claim was
Whitley
commencement of suit.
v. Oolo
years
plaintiff
the minor
was
nearly two
Independent
No.
gah
School District
I-4 of
§ 156
injured. Relying
language
90-day
Rogers County,29
period
unless
claim
be forever barred
deny the
was deemed
school district to
claim
hun-
presented
within one
notice thereof
negotiations
there
tolled
settlement
twenty
occurs
days
dred and
after the loss
180-day period
commencing an
fore
language excluding period
triggered.30
action was not
incapacitated
days during
party is
which the
injury,
Johns held that
result of the
Upon
of the various versions
consideration
O.S.1981,
apply
do not
attendant
of the statutes
our
decisional
give
of claim on
to extend the time to
notice
law,
days
com-
purpose
the 180
behalf of a minor under
Political Subdivi-
*6
two-year time
an action within the
mence
case,
In the instant
sion Tort Claims Act.27
appar-
§§
in
156 and 157 is
period delineated
Appeals
the
the
court and
Court
district
the
preserves
It
ent.
180-day
period
time
for com-
substituted the
tort actions
two-year
time limitation on
120-day time
action for the
mencement of
pro-
against private persons. Section 156
in
period
giving
notice of claim the 1978
not be maintained
that an action shall
vides
§
thus determined that
version of
156 and
eighty
within
hundred
commenced
one
unless
authority.
controlling
language
The
Johns is
(180)
given
days after valid notice has been
however,
157,
significantly
§
from
in
differs
(1
incapacity)
year plus
days
156,
do
language
the
in
hence we
not find
(90 days).
general
The
denial of the claim
dispositive.
to be
Johns
1992,
body
political
one
subdivision within
Okla.
the
25.
In
was amended. 1992
Sess.Laws,
twenty
days
the loss oc-
Legislature
after
4. The
deleted
hundred
ch.
requiring
percent
provision
ten
reduction in
curs.
the
judgment
notice of claim
the amount of
(Okla.1988).
ninety days
loss
after
after the
occurred
28. 755
was filed
year
the date of loss. Sec-
but within one
156(B) now reads:
tion
(Okla.1987).
29.
P.2d 455
against
political
the state or a
B. Claims
presented
are to
within one
subdivision
injury
on
Whitley, the
occurred
June
30.
year of
date the loss occurs. A claim
the
1982;
superintendent of the school district
the
against
political
state or a
subdivision
the
13, 1982;
July
settle-
the claim on
was notified of
pre
notice thereof is
be forever barred unless
proceeded,
negotiations
the
insurer
ment
(1) year
the
occurs.
one
loss
sented within
July
Subse-
filed on
1983.
when suit was
Lawton,
See,
ed as and more sister-state limitations. latter result II clearly repugnant now-prevailing THE TIME LIMIT IN WHICH A GTCA national choice-of-lawrules. MAY CLAIM BE BROUGHT OR MUST BE AFTERWARD FOREVER I LOST MUST BE TREATED AS SUB- THE ANATOMY OF LITIGATION STANTIVE IN CHARACTER AND AS A CONDITION THE UPON EXER- Harry [the and Maude Cruse Cruses] A CISE OF RATHER RIGHT THAN timely County notified6 the Atoka clerk [the A TRUE STATUTE OF LIMITA- County] bodily injury of their claim for TIONS property damage arising single- out of a county automobile accident on a washed-out only legal The common law is the system claim, road. That having was met with a right/remedy the world dichoto- response statutory die,9 favorable within my. While a can never limitations ninety days, is hence to merely be deemed of time bar the demandant’s reme- dy.,10 legally denied.7 The Cruses dis- lost be revived an First, 4. For a By plaintiff, definition of ius maius see note 9. before the sub- final infra court, jury, mission of the case or to the ” * * * 5. See Okl. Const. infra the terms trial the court. 46. Art. See Coke Littleton, on Institutes the Law of provide 6. The terms 51 O.S.1991 §§ aggrieved An England pertinent part: party always at common law retained a mai- ius person Any having "A. a claim (a greater right), us called in the Norman French political scope state or a subdivision within the (droit majeur). dreit mere A Histo- Holdsworth, present [the GTCA]shall a claim to the state ry "An immor- English Common Law political any appropriate subdivision for re- bring eternally prohibited tal action is including money damages. lief the award of metaphysical produced subtlety” for the En- B. Claims the state or a sub- glish jurists. Ames, common law medieval presented division are to History Legal Legal Lectures and Miscellaneous " * * * days of the date loss occurs. Essays original Jus merum is the *9 English Latin term which old law referred 157(A)provide 7. The terms of 51 O.S.1991 in right” to a "mere or bare which is without either pertinent part: possession right possession. Pryse or "A claim is deemed denied if the state or etc., Court, Okl., v. Monument Co. District 595 approve subdivision fails to the claim 435, (1979); Gaines, P.2d 438 n. 14 v. 140 Stolfa (90) entirety days....” in its within 292, 563, (1930). Okl. 283 P. 567-570 It also is used to a provide 8. The describe ius maius terms of 12 683 after its detachment O.S.1991 in remedy. pertinent part: dismissed, may preju- “An action be without (1882). dice to a future action: 10. See of Actions Wood, Limitations element of the claim. When payment upon substantive-law promise or obligor’s renewed expires, merely the statute of limitations obligation; when so revital extinguished remedy extinguished; is when a substantive- ized, rejoin but still it will the onee-detaehed right again. lapses, dies. A dead law time bar right actionable once to become viable right in be revived. This ancient aptly explained can never As so Justice Jackson verity expressions in ex- Corporation repeated finds our v. Donaldson Chase Securities jurisprudence.12 The common-law tant 11 : distinguished term “right” is to be from the always have limitations vexed “Statutes “right phrase of action”. The latter mind for it difficult to philosophical is —which concept New identifies a borrowed from the logical sym- completely a fit them into con- York Field Code—is found our state has system of law. There been metrical right effectively to and means the stitution controversy as their are of effect. Some remedy,14 com- pursue an available not the analogous civil law opinion like the right concept of immortal mon law’s an prescription limitations statutes doctrine —ius extinguishing the maius. should be viewed right Ad- destroying the claim and 157(B) itself. period time in which Whether mittedly a it is troublesome sustain as repre- public-tort claim be commenced a no ‘right’ can find a claim that right an on the exercise a or sents limit hand, some its invasion. On other (to action) bring ordinary an limitation regarded true courts have common-law legislative The question of intent.15 terms doing no more of limitation as statutes 157(B) plainly expedien- concern for evince than to cut resort to the courts for off That all claims. cy prosecuting GTCA not need a claim. We do enforcement language spells that no tort out section’s arguments.” to settle these beyond be the 180- claim shall maintained omitted.) mine.) (Footnotes short, in- day period. In time merely dichotomy remedial. of the En- terval is not intended to be right/remedy today right on the of a in the form It is condition exercise glish common law survives (1) one-year hence extended conceptually distinct time cannot be of two bars — saving Nothing statute. can ever revive “ordinary” “true” statute of limitations right has died.16 contrast regulates bring time to an action 157(B), certain limit that conditions exer- terms limita- § 9517—the true statute of to be treated as a O.S.1991 and is hence cise of 304, 313, 1137, 1142, 11. 325 U.S. S.Ct. Const. Constitution Okl. Williams, 23, 7; Art. (1945). See also in L.Ed. 1628 Oklahoma 300-301 (1941). o f 16. § connection N.Y. Const. Art. Wells, Okl., v. 351 P.2d 12. See Hiskett Merrill, Okl., v. 386 P.2d 785-786 14. Roberts 1),¶ (the syllabus says "A where the court court’s (1963). of limitation a condition substantive statute enforced, right sought to be limitation on 653; Speake, supra State ex rel. note 12 part generally created Reed, Okl., Hosp. Cent. Mem. State Griffin statute, generally creates a the same P.2d 817-818 it, liability, an action to enforce new authorizes Praescriptio Temporis Opala, P. 16. See Marian [it the time within which and limits Okl., Prescriptive Easements in Speake, Relation to brought].”; Its Matter Estate Law, (1987); Anglo-American Trinity Broadcasting 7 Tulsa L.J. 108-109 743 P.2d Co., Okl., Corp. P.2d v. Leeco Oil (1984); Company Phillips Petroleum United provide terms of 12 O.S.1991 17. The Co., Okl., & G. States Fidel. pertinent part; Hicks, Okl., (1968); Saak recovery of other than for the "Civil actions Robertson, 197 Okl. Pinson v. property can real following Whitley v. See also Oolo periods, cause of Okl., County, Rogers gah S.D. 1-4 of accrued, not afterwards: shall have J., concurring), (Opala, 457-459 explained the difference be where the author *10 (2) years: action ... for pre-suit pro Within two An 90-day notice Third. tween the GTCA’s (Emphasis rights injury of 180-day another....” claim-commencement vision added.) time bar. 1008 (and applicable negligence
tions actions the United States an “ordi keenly ignored today’s opinion) nary limitation”.23 In a case from the U.S. —do judicial presume cognizance to limit of a Appeals Circuit, Court of for the Tenth tardy They negligence claim. allow a “saving explicitly statute” was specific within a time but not held unavailable as a device for extending the saving afterward. While the 100 statute18 time to file a Today’s federal-tort claim.24 may be invoked to extend the for the rejects pronouncement teachings Johns pursuit private remedy, it can never progeny. and its It sets us an adrift on avail press to resurrect a lost away uncharted sea from the national main public tort. stream. Ill IV OPINION,
TODAY’S
WHEN MEASURED
STANDARDS,
BY NATIONAL
REP-
157(B)
THE COURT
CONSTRUES
IN
RESENTS ABERRATIONAL JURIS-
MANNER THAT MAKES ITS PRO-
25
PRUDENCE FOR PUBLIC TORT
156(B)
VISIONS AND THOSE OF
LAW
VIOLATIVE OF OUR FUNDAMEN-
TAL LAW
previously
This court has
committed itself
157(B)
treating
to not
time limit
anas
today’s opinion
Since
declares
ordinary
juris
statute of limitations. Extant
bar to be a true statute
limita-
prudence
Wynnewood
v.
Bd.
School
—Johns
by timely §
tions extendible
refiling,
100
principle
Educ.19—rests
that be
implicitly characterizes that
provi-
time-limit
cause the GTCA crafts a
unknown
purely procedural
sion as
indistinguish-
law,
pressing
common
its time
bar
a claim
able from that
applies
private
torts.
constitutes
substantive-law condition on the
“Special” limitations for actions that
fall
right.20
exercise
The GTCA’s time
directly
within the same class run
afoul of
limit
general statutory
controls over
law.21
5, §
46.26 Section 46 man-
Okl.Const. Art.
similarly
public-tort
Other states
consider
procedural uniformity
dates a
limits
entire
preconditions
substantive-law
suing
government,
similarly
class of
persons
situated
not statutes
limitat
ions,22
jurisprudence
things.27
Federal
Legislative
does
enactments must be
construed,
treat
pressing
the time limit for
torts
if possible,
give
them constitu-
Ltd.., Okl.,
U.S.,
See
Corporation,
1286,
(10th
Hester v.
Benge
Purex
534
23.
v.
17 F.3d
1288
Cir.
1306,
(1975).
1994);
P.2d
Serv.,
1308
Pipkin v. United States Postal
951
272,
(10th
1991).
F.2d
274
Cir.
100,
18. 12
supra
O.S.1991
note 1.
supra
Benge,
24.
23 at
note
1288.
Okl.,
19.
1009 (and 157(B) purely proce § limit of limitations are hence validity.28 If time tional dural) on limitations, casts cloud the constitutional procedural merely a statute its validity provisions of that section when government regime for vindication of by are the standards of Okl. measured prescribed must identical that for torts be 5, § My 46.32 own view—that Const. Art. private wrongs; and tortfeasors 157(B) text establishes substantive- singled out for the cannot hence be benefit right law condition the new to sue the pre-suit negative notice and of its “special” sovereign 180-day place the —would during litigation no period limitations beyond prohibitory limit reach of 46. brought.29 neither of these Because tortfeasors, private provisions applies to it V govern public ac-
could not be extended short, only recognize govern- if tors.30 In we THE COURT’S CONCLUSION WILL generis,
ment
torts as a class sui
can we
SUBJECT OKLAHOMA GOVERN-
justify applying
pre-suit
to them the
notice
MENTAL ENTITIES TO FOREIGN
negative
of limitations
statute
OF
STATUTES
LIMITATIONS
embodied in the GTCA. Where there are
only
possible meanings
two
of a
one
statute —
nationally accepted
According to
choice-of-
its
of which would render
text unconstitu-
norms,
apply
law
forum
its
will
own statute
adopt the
tional —the court should
construc-
grounded
limitations
an action
for-
uphold the
tion that would
enactment.31 To-
eign
foreign
law33 unless the
limitation bars
day’s pronouncement
the terms
merely
remedy.34 In
and not
apply
of the
latter event
the substantive law
—which
Legislative
against public
govern.
actors —create a true statute
other state would
limits
Op Conflict
principle
28.
law
33. Restatement
Of
It is
of our constitutional
Laws,
(Second)
(1971 version)
every
provides:
statute is
be treated as valid until its
142
nonconformity
clearly
law
to fundamental
"(1)
it
An action will not be maintained if
Service, Inc.,
v.
shown. Black
Ball Janitorial
by the
of the fo-
barred
statute
limitations
510,
Okl.,
(1986);
730 P.2d
512
Public Service
rum, including provision borrowing
the stat-
State, Okl.,
Company
465,
v.
Oklahoma
645 P.2d
state.
(1982);
ute
limitations of another
466
Oklahoma Gas & Electric Com
Commission, Okl.,
it is
pany Corporation
An action will be maintained if
v.
543 P.2d
546,
(1975); McCrady
551
v. Western Farmers
barred
rum,
the statute
limitations
fo-
Okl.,
356,
Cooperative,
P.2d
361
though
Electric
323
even
be barred
would
(1958).
of another state...."
statute of limitations
added.)
(Emphasis
special provisions
51
29. These
are found in O.S.
156, supra
1991
note 6.
Op Conflict
34.
Of
Laws,
(Second)
Restatement
(1971 version) provides:
823; Macura,
Reynolds, supra
note
su-
26,
pra note
on time to an action a define a new ac- wrong,38 generally fall tionable or a ment tortfeasor into this latter court divine its availability regulatory from a category. They scheme if a constitute a substantive-law action, redress-seeking party belongs to a class— component of the of mak- thus (lex large public narrower than the ing fori) inapplicable. The whose law —for forum devised, special the new tort today only was court not invites sister states benefit statutory scheme indicates the law-mak- apply longer their limitations to claims body’s ing intent to create rather than to governmental Oklahoma but entities deny private right a of action and the new our also abdicates law’s control over the max- private claim’s nature does render it filing imum time for these claims. The underlying inconsistent the statute’s clearly contrary takes is course to the purpose.39 jurisprudence. extant national The latter strongly treating counsels substan- The GTCA fashions no new actionable civ- tive time limits as true statutes of limita- wrong il is alien to the common-law tions.35 catalogue delicts. Neither does it craft a of regulatory implicitly scheme which creates a
YI By new of delictual action. the GTCA’s terms, private explicit law tort is neither THE GTCA DOES NOT CREATE constricted,40 expanded recog- nor The Act A “STATUTORY TORT” which, nizes accountability, tort At wrong.36 common law a tort is a present, civil where is be coextensive with that “statutory a legislatively-craft- tort” creates private wrongdoers41 and establishes sui of 42 duty, law, ed generis unknown to the liability common rubric govern- for recovery authorizes a for its breach.37 The ment actors.43 It does not introduce new 143, supra Okl., Hughey note 34. Authority, The 1988 Grand River Dam Restatement. 142, 33, 1138, supra (1995). Restatement, revision 897 P.2d 1141 substantive/proce §of deletion 143 abandons the dichotomy choosing dural in favor the statute 153(A) provide 41. The terms of 51 O.S.1991 having signifi of limitations of the state the most pertinent part: relationship par cant ties; to the occurrence and the resulting “The state ... be shall liable for loss i.e., always treating statutes of limitation subject from torts ... limitations approach substantive. This new derived from exceptions specified only in this act and Inc., single Uniroyal, case — Heavner v. .J. 63 N state, private person ... entity, would if (1973). 305 A.2d 418 money damages for liable under the laws of ” added.) (Emphasis this state.... wrong 36. A tort is civil for "[a] which the unliquidated is a common law for dam generis category 42. A sui is said to be that which ages, exclusively the breach aof “the one its kind or ". class See Black’s merely contract or the breach of trust or other (6th ed.1990). Dictionary Law added.) equitable (Emphasis obligation.” Sal mond, (10th 1945). Law of Torts ed. represents legislative response 43. The GTCA Green, 37. Bellikka v. Or. abrogation sovereign immunity our in Vander (1988). State, Okl., pool v. 672 P.2d 1156-1157 adoption act is both an Moose, Cavaness, Loyal Lodge Order 1785 v. sovereign immunity conditional waiver of the Okl., (1977). Examples 563 P.2d doctrine. The terms of 51 O.S.1991 152.1 legislatively-crafted are torts afforded 85 O.S. provide pertinent part: (prohibiting discharge of an em hereby adopt "A. State of Oklahoma does ployee bringing in retaliation for a workers’ sovereign immunity. doctrine The state claim) 1053(A) compensation and O.S.1991 performing governmental pro- ... whether (establishing liability corporate directors prietary functions shall be immune liabili- dividends). mispayment negligent willful or ty torts. Sewer, See Gunn v. Consolidated Rural Water & state, only B. The to the extent and in the Okl., Akin, (1992); Gay 839 P.2d provided manner ty....” in this act waives its immuni- Okl., (1988); Pierce v. Frank Co., Okl., lin Elec. 153(A) provide The terms 51 O.S.1991 Co., Inc., Okl., 39. Walter pertinent part: v. Chouteau Lime Echeverria, P.2d Okl., resulting Holbert "The state ... liable for loss subject from its torts ... to the limitations and pub- foreign apply tribunals to sion invites -wrong a new class but rather civil of tortfea- short, pressed be analo- lic-tort the GTCA cannot sors. own, long- their much statutory governmental entities tort. gized to a er limitations. *13 widely provisions of 100 have been like the purely remedial. Much construed as today’s pronounce- I recede from hence statutory for them limitations intended would affirm the trial court’s dis- ment and affect, they solely remedy operate deny certiorari to al- missal order would being extinguished. Nowhere it from keep Appeals’ opinion to stand as low Court law, Anglo-American in which world of exposition of our law. the correct common, is are there similar enactments authority give recognized that would body of ours, statute, capacity to resurrect like right.44
a dead
YII SUMMARY R. LIST and Linda Clarence erroneously Today’s opinion treats Plaintiffs, List, 157(B) by the as extendible time limit v. statute”, “saving 12 O.S. terms of Oklahoma’s living It from the memo- 1991 100. erases PAINT MANUFACTURING ANCHOR ry from obedience of the law withholds COMPANY, Fowler, Wanda nearly this state’s consistent nine decades of Chip Mead, Defendants. jurisprudence.45 No. 85226. 157(B) a condition I view sue the exercise Supreme Court Oklahoma. expiration Its deals death tort. time bar’s legislative to the not to the but 9, 1996. Jan. gov- plaintiffs right to a vindicated itself. (or her) legislatively- wrong
ernment —his It dies maius —is not immortal. created ius 157(B) time limit. lapse
with the My
Nothing it. rea- can revive thereafter 157(B)’s are: sons for this conclusion clearly legislative
language demonstrates judicial cognizance
intent withhold prescribed public-tort claims all (2) the 180-day period lapsed, court’s had infirmity of a exposes
view meaning
“special within the law” Okl. today’s conelu- Art. Const. (21 English Jac. Limitation Act from the exceptions specified where in this act I, 16, 4).§ c. state, entity, would private person ... if damages money under the laws be liable for 653; Trinity 12 at Speake, supra Broad note state_” 1367; Johns, supra note 12 at note casting, supra 249; Petroleum, 12 at supra note 19 at Phillips of 12 O.S.1991 For the historical antecedents 300; Saak, 305; Hiskett, supra supra note 12 at n. note 12 Speake, supra see 429; Pinson, supra note 12 at opin- Cardozo’s court refers Justice Rock Island at 627. See also in this connection York, Allen, N.Y. ion in Gaines New Okl. 233 P. Mining Coal Co. There, Johnson, Justice N.E. 595-596 1063-1064 Amsden “saving P. Okl. the evolution of statutes” Cardozo traces