*1 September Argued and submitted March affirmed DORTCH, Appellant, INC., CO., A. H. ROBINS Respondent.
(No. A8009-05162, A21613) CA P2d *2 argued Susak, Frank Portland, J. the cause and filed the appellant. brief for argued Blackhurst, Portland,
Steven K. the cause for respondent. Haselton, On brief were Rick T. Steven K. Lindsay, Weigler, Hart, Blackhurst and Neil & Portland. Presiding Judge, Buttler, Before and Warren and Judges. Rossman,
WARREN, J. dissenting.
Rossman, J.,
WARREN, J. brought
Plaintiff action seek- damages personal injuries allegedly by caused ing device, intrauterine birth control manufac- Daikon Shield judg- tured and sold defendant. Defendant moved for IB, under ORCP 2 on the pleadings ground ment on limitations, statute of that ORS barred the claim. The trial court allowed the motion and entered for defendant. Plaintiff We judgment appeals. affirm. alleged
The facts before us are those in the com- 1, 1971, plaint. May On about a Daikon Shield in plaintiff purpose inserted for the of birth control. From chronic intrauterine infec- through she suffered her causing build-up fallopian tions of scar tissue in left pregnancy, requir- tube. This condition resulted in a tubal On ing ectopic tubal abortion December ligation December underwent tubal prevent pregnancies. consequence further tubal As a of this procedure, longer she can no bear children. were alleged injuries
Plaintiff these caused unreasonably the Daikon and that this device “was Shield *3 * * * * * product design as a due to its basic dangerous learn, did she alleged She further that she “did not nor learn, relationship have reason to between the defec- * * * the [product] [physical injury] tive nature of and her * * * filed May complaint until about 1980.” was i.e., 11, 1980; approx- the action commenced September was nine and four months from the date the imately years nine purchased years Daikon Shield was and two and ligation.1 months from the date of the tubal parties agree that the 30.905, provides limitations is ORS which as follows: “(1) Notwithstanding ORS 12.115 or 12.140 and section, (2) except provided in a as subsection of this liability product civil shall be commenced not later action years product eight after the date on which the was than purchased consumption. first for use or “(2) product liability A civil action shall be com- the date on menced not later than two after which death, complained of occurs.” damage dissent, diagram See n 1 at 326. infra not this statute does bar Plaintiff contends Mart, v. Electro action, holding our in Baird relying on liability (1980), product that a 30.905(1), although com- by ORS action is not barred as purchase, after date eight menced more than are requirements met: case, following as the long in this so (1) injuries were sustained within ten (2) brought the action purchase; product’s (3) requirements purchase; product’s 30.905(2) are met. dispute Plaintiff not does that her action would be barred if the 30.905(2) began limitation of ORS run on December the date of ligation, the tubal which was the last alleged to have been caused contends, however, Daikon She Shield. that ORS action, does not “discovery bar the because the doctrine” recognized in Schiele v. Corporation, Hobart Or 483, 587 P2d delays accrual of cause product case until date which discovered or should have discovered that defendant’s had caused her injuries; and that “this subject only extension is ten-year to the period of ultimate repose” provided by ORS 30.905. responds
Defendant the filing of this action complies (1) with neither subsection nor subsection 30.905, because action was filed more than eight years from the date more than two from the of injury. date argues Defendant language legislative history 30.905(2) preclude of ORS recog- rule,2 nition of a discovery discovery even if a legislative history help determining A review of the affords no what legislature may respect discovery points have intended to a rule. Defendant adopt out that 1981 the considered “[i]n and refused SB which provide would have amended ORS 30.905 to rule for claims.” SB discovery, 800 would have amended ORS insofar as is relevant follows: *4 “(3) product liability damages A resulting civil action for from disease
having latency period material, an identifiable and which resulted a from body entering plaintiff substance or emission the of the shall be commenced discovered, not later than two after the date on which the first care, or in the of exercise reasonable should have discovered the disease and the cause thereof.” barred, applied, be this claim would still be
rule were to not have occurred until “injury” the would because 1980, the date May, of in nine after learned its cause a words, if defendant contends purchase. of other injury’s of occurrence discovery applied, rule is the date the discovery, to mean the date interpreted should be Mart, supra, requires in Baird v. Electro holding that our date discovery place take of the that such is this action barred. purchase, with the result addition, form, note, original expressly provided in for We in its ORS 30.905 provided time-of-discovery application HB a rule. Section follows: 12.115, “(1) product liability Notwithstanding civil action shall occurs, within_years when the commenced from date care should have been discovered. or the exercise of reasonable discovered However, every product liability shall be commenced within civil action following periods: of the shorter product purchased “(a)_years is first for date the consumption; or use or “(b) equal anticipated product to life of the A of time purchased commencing is first for use or con- on date the sumption. “(2) apply not to a civil action based This section does express warranty.” upon of an a breach Judiciary Committee or Senate unable to find the records of the We are bill, Development, which also considered on Trade and Economic Committee concerning discovery any language that the of Section indication witnesses, to members of the committee or or or referred was discussed discovery injuries problems from defective there were discussions 18, May Judiciary, April Minutes, products generally. Committee of See House 27, 1977; on Trade and Economic Minutes Senate Committee 16 and Development, 1977. June pass any legislature’s refusal SB 800 inference from the to interpretations, We decline to draw choosing among quite different HB We would be in 1981 or may guide legislature expressions us. The have omitted of intent to with no (1) any legislature to language did not want ORS 30.905 number of reasons: rule; time-of-discovery legislature incorporating wished be construed as respect judicial of the then construction the course it had established follow limitations, expressly providing not leaving option so construe ORS 30.905 and rule to the courts the repose provisions relying of that establish ultimate statute to ultimate actions, regardless commencing of when cut-off date for discovered; (3) may damage well be it or when act omission resulted problem discovery reluctance at all. Our not consider the that the did holding history rely legislative case is with our consistent on the den Compensation Dept., rev 624 P2d v. Workers’ OSEA (1981), in stated that: Or 9 which we *5 although that, u. conclude Schiele Hobart Cor We poration, supra, under another lim was decided statute of discovery apply product liability itations, rule does to a conclude, however, actions. We rule does not operate eight-year to extend the statute as will be discussed below. agree notwithstanding that,
We provisions 30.905(1), a filed of ORS purchase eight more than necessarily appears after the date of is not face, barred 30.905. On its ORS 30.905 require actions be com- filed, menced, i.e. no later than after the date of purchase period, and within that no more than two injury. after the construction, occurrence of the Under such plaintiff injured day a a on the last of the sixth year complaint. would have two to file a A injured eight years, time, after that but still within would time, have less no event more than after complaint. in which to file a That construc- rejected supra. Mart, tion was in Baird v. Electro despite legislative Baird, we decided language, it was clear that the drafters of ORS 30.905 policy intended a result consistent with a facturer’s to limit a manu- liability exposure ten-year period to a and to injured period afford all period of time in which to an action. In Baird we commence stated:
“* * * determined, matter, policy The committee aas. exposure it wished to limit manufacturer’s to a ten-year period. After discussion the extensive committee adopted following motion: QUESTION
‘“THE
CALLED ON REP.
WAS
THE
RUTHERFORD’S MOTION TO REDUCE
PERIOD
THE
OF ULTIMATE REPOSE TO 8 YEARS FROM
reasoning
persuasive.
is not
An amendment
[Petitioner's
may
many
pass
legislature
be defeated for
reasons.
failure of the
particular proposal
interpreting
legislation
is of dubious value
which
passed. Springfield
Dist.,
App
Ed.
Assn v. Sch.
“It is clear from the discussions objective legislative what which became ten-year period of to enact a wanted was. *6 liability comparable to repose product actions ultimate for 12.115. The committee discus- set out ORS accomplished by objective was to be indicate this sions eight injury if occurred within providing that party purchased, injured product was first the date the injury two-year period following the to as an additional had period was characterized bring the action. That * * * Accordingly, we period’ the committee. ‘grace commencement of an action that ORS 30.905 allows hold for liability product within two injury based on injury injury complained of if the occurred use or purchase of the for of the first * * *” 570, App consumption. 47 Or Baird, plaintiffs discovery and the injury In were injury causal connection with the the defendant’s no occasion to define or simultaneous. We therefore had significance discuss the “injury” construe the term a physical injury term in the context of a case in which that purchase, of the date of occurs within until after causal involvement is not discovered defendant’s Baird, referred to “injury” In the context of period. i.e., its causal connection with injury, was an actionable of this key known. The to the resolution defendant was claims, turn, upon whether case does not It turns actions. applies rule occurs of when an upon our determination instead statutes of limitation. purposes analyzing for the occurred, start we when determining In of a statute ordinarily the terms proposition
317
plain
are
accordance with their
or common
construed
780,
292 Or
meaning.
Satterfield,
See
v.
643 P2d
Satterfield
Co.,
(1982);
v.
Farm
336
Perez
State
Mutual
Ins.
289 Or
(1980). However,
P2d 32
if the
613
terms
legal meaning,
statute have a well-defined
the court should
meaning.
Dumond,
give
854,
the terms that
State v.
270 Or
* * *
(1974).
858,
As v. Shaughnessy Spray, observed 55 Or App 42, 48-49, (1982): rev 292 den Or 589 tendency Supreme
“The
Court and
court in
interpret
recent
commencing
has been to
statutes of limitations as
to run at the time of the
reasonable
* * *”
discovery
ing
(Cit-
of the defendant’s causal involvement.
County,
Dowers Farms v. Lake
288 Or
607 P2d
(1980) (Tort
Act);
Hahn,
1361
v.
Repp
Claims
(Wrongful
P2d
rev den
P2d 996
foundation
trend.
Berry,
alleged
physician
that a
had left a
surgical needle
her
surgery
performed
abdomen. The
*7
1956,
but the needle was not
until 1965.
discovered
The
statute,
12.110(1), provided
that actions
* * *
any
“for
person
shall be commenced
years,”
within two
provided
ORS 12.010
two-
* * *
year period began to run when the “cause of action
added.)
accrued.” (Emphasis
The court held that
the cause
of action had accrued
plaintiff
at the time the
discovered or
reasonably should have
object
discovered the
Berry
that caused
majority
it.
was critical of the
Vaughn
opinion
542,
v.
Or
Langmack, 236
318 legal ordinary legislative meaning as intent determined from the ” added.) (Emphasis of the word ‘accrued.’ 245 Or “ordinary Following examination of term’s legal meaning,” court concluded follows: say person To that a cause of action accrues ato and, may when she maintain an action thereon at the same
time, reasonably it accrues before she has or can knowledge any wrong upon expected to her have inflicted patently inconsistent and unrealistic. She cannot main- * * *” tain an action she knows she has one. before 245 at 312. Davies, 663, Nat’l Bank v. 274 Or 548 P2d U.S. (1976), Supreme
966 Court decided that cause of legal malpractice did not “accrue” under action for added) (emphasis harm,” 12.110 “until the occurrence of the damage 274 Or at and that occurred when the aware, aware, or have been that the harm was was caused should by the defendant. Corporation, supra, plain- v. Hobart In Schiele upon brought based theories
tiff an action against negligence of a meat- the manufacturer damages injuries seeking wrapping others, for machine and produced polyvinyl allegedly chloride fumes caused complaint more than three her the machine. She filed problems her health associated after she first being breathing fumes, after less than two but by physician its nature of her disease and informed supra, Berry possible Branner, v. and U.S. As in cause. supra, Davies, in Schiele had v. the court Bank Nat’l con- statute of limitations “when determine (i.e., 12.110(1) begins run the cause of tained in ORS accrues) [plaintiffs Or at 487. The claim].” upon analysis rely in those decisions not court did Thompson, v. to the decisions in Urie turned instead (1949); L 2d 1282 Hutchison 1018, 93 Ed 69 S Ct US P2d 704 al, P2d Semler et (1961); Corp. v. Accident Industrial Indem. and Associated all Commission, Cal by plaintiffs involving who, like the claims occupational recovery sought “an disease.” Schiele, that: court concluded *8 proposition
“These cases stand for the
that the statute
involving negligent
of limitations on claims
infliction of an
occupational
begin
plain-
disease
run
does not
until the
knows,
reasonably prudent
know,
person
tiff
or as a
should
brought
that he has the condition for which his action'is
* * *”
and that defendant has caused it.
“The
begins
statute of limitations
to run when a reason-
ably prudent person
symptoms
associates his
with a serious
permanent
perceives
at the
condition and
same time
played
inducing
role which the
has
that
defendant
** *”
added.)
(Emphasis
condition.
In Baird we held that the injury must occur within eight years of the date the purchased. was first Plaintiff would have us hold that the injury which must occur eight years within only physical injury, (i.e., legal injury physical injury concerning which the plaintiff has or should have identified defendant’s involvement) causal causing the commencement of the run- ning statute of only limitations need occur years. within ten
In Baird we construed ORS 30.905 permit commencement of an action for based on injury complained within two occurred within of the first if consumption.” (Empha- use or added.) at 572. sis must be an that there words, we said In other within two commenced the action must be *9 saying injury. sound reason There is no the two-year not commence limitations does statute of the legal injury, i.e., but to actionable, is an run unless there to eight years injury say must occur within which the upon action could then an be one which need not argument difficulty brought. is that she with “injury” mean two different to the term asks us to construe difficulty things is of the same statute. in the context “injury” must occur in Baird which we said avoided if the running triggering injury eight years the and the within 30.905(2) are in ORS of limitations “legal injury.” consistently mean construed to run until cannot start of limitations The statute above, a referred to the cases actionable. Under a claim is injury physical until a actionable action is not cause of occurs and recognized as the source defendant is until the eight case, not occur within that did harm. In this of the years. plain date of from ORS It is running purchase triggers the commencement period. eight-year accrues cause of action If no limitation DeLay years, eight claim is lost. the undiscovered within Sales, P2d v. Marathon LeTourneau Supreme Court said: * * “* enacting the stat- intent of the supplement repose was to ultimate utes of provides within a time Such a statute statute of limitations. extended brought and cannot be has to be which an action plaintiff. to discover Failure regardless unfairness to the statute practice until after work or the defective statute.” run not toll the repose had would ultimate supra, Mart, that, in v. Electro held in Baird We injury legislative an intent, when effectuate order to years, plaintiff eight an afforded was within occurred an to commence which of two additional period” “grace though part was all of that action, even beyond eight years. Baird, the In the context Although have did not we it occurred. actionable when there, actionable say so occasion period.3 non grace qua is the sine plain by plaintiff, urged the construction Under purchase date of injury on the physical discovers tiff who to discover year the tenth day of until the last have would would be causal connection defendant’s day. on the same file her claim required we deter- in accord with what is Our construction in Baird. It limits intent legislative to be the mined each gives and it ten liability to manufacturer’s after the an action years to commence a full two on the injury occurs physical If a of action accrues. cause not involvement causal but defendant’s date of has year, plaintiff day eighth the last until discovered action, Baird her unless years under two delayed that her finding a basis for provides evidence discover does not unreasonable. If discovery was eighth until after causal connection the defendant’s and the cause of action accrues within year, no *10 Sales, DeLay v. Marathon LeTourneau claim is barred. supra. That is the case here.
Affirmed.
ROSSMAN, J., dissenting. limitation and stat- of statutes of application
The is, results; that to harsh repose often leads utes of ultimate dis- meritorious, many times must be actions otherwise the time within they are not commenced missed because time-of-discovery mitigates rule by law. The provided by providing that statutes of limitation operation of be measured brought an must be which period within or should have knew injured person the time an from provides an action must with which This is consistent (2).” provided years purchase “except eight in subsection within commenced year, “exception” day eighth injury of the on the last If an becomes actionable period operates grace repose applies and the eight-year ultimate to the years the action. plaintiff to commence two which afford the Judiciary’s motion the House Committee on This is also consistent provide repose (infra, p 5) eight-year period a two- provide ultimate and liability eight-year period. year for occurrence that occurred limitation plaintiff was or (Harm legal contemplation when and results occurs Nat’l defendant. U.S. reasonably was caused been aware that harm should have (1976)). Davies, 663, 668, 679, P2d 966 Bank v. eliminating injury cause, and thus of his or her its known requirement person file a that the suit before the unrealistic responsible becoming injury it. A or those aware repose an ultimate time limit on the statute of establishes filing action, in this case ten from the date of of an injury product’s purchase, or not an and its cause whether Although majority accepts the time-of- known. are although plaintiff filed her action rule and within repose, ten-year period majority holds that this result, I am harsh action is barred. convinced remedy, is which leaves and others like her without required by Therefore, I statute. must not respectfully reversed and dissent. This case should be remanded for trial. my opinion, did not intend ORS these circum- to bar the claim of a under
30.905 stances:
(1) plaintiffs injury was sustained and the fact of injury her known within of the insertion Shield; Daikon
(2) recovery seeking for that was the action not later than two from the date on which commenced she knew or should have known of the fact of it; causal connection with defendant’s not more than ten the action commenced the date of the Daikon Shield’s insertion. requires majority concludes that ORS 30.905 and reasons cause of action to “accrue” plaintiff alleges complaint that, because in her she did her not learn of defendant’s causal connection with approximately Daikon until nine after the date of the majority’s insertion, Shield’s her action barred. following assumptions construction is based on the *11 deductions theréfrom: (a) Mart, App Baird 615 “In Electro 47 Or [v. * * * (1980)], that the drafters of ORS
P2d 335 we decided policy limit a with a 30.905 intended a result consistent ten-year period exposure to a and manufacturer’s injured period two-year that afford all within an action.” 59 Or time in which to commence added.) App (Emphasis at 315.
323 “ (b) objec- ‘The committee discussions indicate this accomplished by injury providing tive was to be that if an eight years occurred within date the was purchased, injured party first year had an additional two- * * * period following injury the action. injury injury ORS 30.905 allows commencement of an for action based on within two complained injury occurred within if consumption. the first of the for use or * * *’ App App at citing Or 572.” Or Mart, added.) supra. (Emphasis Baird Electro (c) Baird, “In ‘injury’ the context of referred to i.e., injury, an causal was actionable its with the connection key defendant known. The to the resolution of this * * * * * * upon case turns our when an determination of injury purposes occurs of analyzing statutes of added.) App (Emphasis limitation.” 59 Or at 316.
(d) purposes 30.905(2), For the of ORS is a legal injury physical injury and “actionable” when “a * * * recognized occurs the defendant is the source added.) App (Emphasis the harm.” 59 Or at 320.
(e) ‘injury’ which we said Baird must occur “[T]he eight years triggering running within two-year 30.905(2) of limitations ” consistently ‘legal injury.’ construed to mean [should be] added.) App (Emphasis at 320. (f) Because did not “discover the defendant’s year, until eighth causal connection after no cause of [plaintiffs] action within claim is accrue[d] barred.” 59 Or at 321. The majority’s analysis depends largely on the validity assumption is appropriate that it to construe “injury” to which we in our referred decision Baird v. Mart, App 565, Electro P2d to mean “legal injury,” however the term might latter be defined. assumption means, effect, That that event, any regardless character, intended that of its running initiates limitation of ORS 30.905(2) place must take the eight-year period 30.905(1), or else an of an arising out during eight-year period sustained is barred. This primary assumption resulting and the determination of a application “pushes” rule to ORS *12 “legal beyond injury” eight-year the date of the period action, of ORS and bars this as the purpose majority appear holds, to have other no basis or preservation symmetry than the to the attributed (2) by interaction of subsections court in Baird of ORS 30.905 this fundamentally a different context on the legislative history problem a the basis of of that was silent on discovery.
Finally, adopted of ORS 30.905 the construction contrary majority intent of the the legislature leads to a result by the 30.905 that a to insure enactment ORS prod- person sustaining injury attributable to a defective an years product’s purchase eight have uct would within bring an a time within which to action to reasonable damages injury. for the recover
THE DECISION BAIRD supra, plaintiff pur- Mart, Baird v. Electro January 1970. On chased television on March eight years purchase, within of the date television exploded, causing damaged her She filed a a fire that home. eight product liability more than action March purchase, less than ten from the date of but contended that 30.905 from that date. The defendants required two that an be commenced within action injury, in no event more than purchase. product’s From a review of the date of the legislative legislature history 30.905, we determined that the ten-year period had intended to enact comparable repose ultimate the for actions out in ORS and that set “*** accomplishedby provid- objective was to eight ing if of the date an occurred purchased, injured party product an was first had two-yearperiod following additional two-yearperiod ‘grace was characterizedas action. That ** *” (Empha- period’ committee. at 572. added.) sis We it would be inconsistent determined imposing expressed intent construe ORS 30.905 liability product filing limitation on eight-year overall and held that: of an action allows commencement ORS 30.905 years of the within two injury based on if occurred within injury complained of for use or of the first demurrer.” consumption. It was error to sustain defendants’ App at 572. *13 majority “injury” The observes that in Baird the discovery cause were simultaneous plaintiffs and the of its therefore, did not consider the issue presented we addition, of implications here. In we did not consider events, occurring the two whether simul- distinguishing taneously implications or otherwise. Those in the context of only action have evident in light become today of our that a rule apply decision should such Having acknowledged actions. difference between cases, nevertheless, majority, attempts adapt the two in Baird holding circumstances of this case conforming “injury” concept “injury” Baird to the that follows from a statute of limitations construing incorporating discovery rule. The two contexts are funda- mentally different, and the application begs question purports rule it is cer- resulting Although resolve. true, asserts, (1) tainly majority “injury” as the Baird an and that we “legal injury,” “actionable” or an held in Baird that ORS 30.905 allows commencement of complained years action for within two product’s if occurred within not the events we have deter- purchase, it does follow “injury” required mined here are to occur before place “actionable” must also take becomes eight-year period. deci- scope of our majority expanded has holding. support Baird to its Baird and then used
sion in unsound, rule analytically generated and the process only in consistent leads to results thereby, applied, when the abstract.
326
(A) Comparison of Facts and Results in Baird and Present Case:1
Baird Plaintiff Injury Sustained 7 6 and 7 date
months from date months from purchase purchase Complaint Filed days and months purchase date date of from Action
Commenced Yes Yes2 Within Limitation
Period
ORS 30.905 Bars No Yes3 The Action
(B) a Discovery Baird in Context: sequence of the same Assume existence Baird, except following: for the the cause of events the time of fire in the home was unknown occurrence; not learn the cause of the fire did report department received a from the fire until she *14 1 helpful understanding sequence following of events illustration is in this case.
2 today. adopt we the construction of Under 3 repose, provided eight-year ultimate If ORS 30.905 fact beyond years i.e., eight the date of of actions the commencement barred course, would, case purchase, in Baird and the action the action both 11-12, barred. See discussion infra.
327 April eight years and one month from the date the plaintiff purchased her television.
Injury Sustained years 7 and 10 months from purchase
date of Injury Cause Learned 8 1 and month from purchase date of Complaint (i) Filed days
from date of (ii) Within 2 of date injury sustained (iii) Within 2 ORS 30.905 Bars the Action Yes
The majority holds that “actionable within the date of purchase] is the sine qua non of [of grace period” and that “a cause of action is not actionable until a physical injury occurs and until defendant is recognized as the source of the harm.” example above, according majority’s to the analysis, there was no actionable injury purchase, therefore, the action would be barred. true, This is even though the complaint was filed within two years of the fire.
LEGISLATIVE HISTORY What was to become ORS 30.9054 was introduced as HB Section during Regular Session of legislature.5 originally drafted, As HB 3039 contained Or Laws ch § 3. sponsored by Representatives Gilmour, Magruder, Kulongoski, bill was Markham, Martin, Whallon, passage Van Vliet and and its introduction and were by community (particularly engaged advocated members of the business those production equipment) and sale of industrial and members of the insurance industry. urged they These advocates enactment of HB 3039 as a solution what asserted to be a “crisis” in the area of insurance. The crisis was by ever-increasing product liability which, premiums according support caused ers, deeply profits forcing many cut into businesses to either close or become self- single plaintiff. insured and risk the loss of their assets to a successful Those supporters to, increasing among things: large attributed the insurance costs other damage juries; product liability suits; increasing awards number of “liberal” interpretations courts; arising and “unusual” of tort law the and actions out of *15 injuries by Minutes, products equipment. caused old or modified and House Judiciary, 18, April Committee on 1977.
328 be, of the essence,
24 and was to a “renovation sections “renova- liability.”6 part law of As of the products common tion,” for ultimate provisions the bill included a statute of product to repose applied and a statute of limitations to liability actions. 6Vetri, Liability Legislative Oregon, Law in Strict Products Codification of article, (1981). original L In this Professor Vetri notes that its Or Rev
form, provisions: following HB 3039 embodied — “(1) ‘unreasonably dangerous’ ‘dangerous legislative A definition of ordinary beyond contemplated and that which would be extent * * purchaser reasonable “(2) liability A uses’ instead of foreseeable limitation of to ‘intended uses;
“(3) liability preclusion bystanders; A industry “(4) presumption against liability conformity if A rebuttable shown; practice is “(5) compliance liability with the the art is A total defense to if state of shown; “(6) any barring purpose of evidence Evidence rules the admission for custom, industry changes regarding in the state of the art or or of evidence change changes design regarding in the manufacture the product; if the or place design took after manufacture “(7) Statutory safety provisions regulatory for were to be inadmissible and any purpose;
“(8) repose; special product liability A statute of ultimate fees; “(9) contingent A limitation on liability “(10) product by A rule a user would bar that modification of seller; liability “(11) punitive requirement damages A limitation on and a doubt; proven beyond damages and must be reasonable those liability “(12) panel pre-screen procedure A for a review issues products liability damages in and cases.” 5, 1977, May Judiciary significant During work session on Committee’s proponents. changes the form substance were offered the bill’s in both (See changes language n 7. at 313 included a revision of Section bill, 2.) effect, supporters sponsors of other and advocates of proposals, agreed their and to submit certain bills had to withdraw amendments, proposed immediate HB form “for sections 1-2, Minutes, Judiciary, May pp passage.” 1977. Those House Committee on requiring passage” to Sec- “immediate were distributed amendments sections B, D, A, 4, 6, C House Committee tions 7 and 10 of HB Exhibits May agree Judiciary, table the The committee did other form, i.e., proposed HB 3039 its amended bills and thereafter considered Proposed only proposed consisting 7 and 10. amended Sections provided that: amended Section his legislative in our discussion stated We Mart, supra, in Baird v Electro 30.905 tory of ORS *16 specific problems intended to correct were provisions these 12.110(1) to and ORS 12.1Í5 application from the arising actions, liability (1) i.e., product to actions; applied such 12.115, could under ORS repose, ultimate period *****7 defendants;* for different end at different times begin years from allowed two (2) though even causes complaint, action to file accrual of the cause of end of the years from the accruing less than two of action two filed in less than repose had to be period of ultimate years.8 12.140, “(1) Notwithstanding subsection of ORS 12.115 or ORS an death, recovery personal injury damage damages real action for or to personal property, including any upon implied or action based an war- ranty, arising any design, inspection, testing, manufacturing out of or other product, any product arising regarding in defect arising out of failure to warn or any properly product out of failure to instruct in the use of a shall be years death, commenced within two damage the date on which the or occurs, but not later than ten after the manufacture of the
product. “(2) Nothing any period in this section shall be construed to extend law, by including limitation otherwise established but limited to the not by added.) (Emphasis limitations established ORS 12.110 and ORS 72.725.” 7 repose, provided the statute of ultimate as follows: “(1) any property negligent injury person In no event shall action for to or of another be commenced more than 10 from the date of the act or complained omission of. “(2) Nothing any period in this section shall construed to extend law, by including limitation otherwise established but not limited to the by limitations established ORS 12.110.” applied product liability Supreme in Court That statute was first to actions Co., (1974). Machinery u. the ten- Johnson year period Star 270 Or Because omission,” period repose could ran from “the date of the act or product begin in and end at different times as to individual defendants the same because, liability presumably, is true the “date of the act or omission” action. This product date of manufac- for a defendant-manufacturer of a defective would be the effect, ture, defendant-retailer, and for a the date of sale. ORS 12.115 remains applicable longer actions. is no actions at the time The statute of limitations Co., 12.110(1). Machinery proposed v. Star HB was was ORS See Johnson part, supra, provided, pertinent at That statute that: Or assault, battery, imprisonment, for criminal An action for false another,
conversation, arising any injury person rights not or for to the contract, chapter, especially shall be com- and not enumerated this * * menced within two
To problem, solve the first it the express was intent of the period repose be identi cal particular action, for all defendants in a and to achieve purpose, it period was determined that would run for all defendants from “the date on which the purchased first consumption.” for use or ORS 30.905. See Minutes, Judiciary, May May House Committee on May Mart, 1977. See also Baird v. Electro supra, 47 App at 569-70.
The solution to the problem second was more complex. The legislature intended its enactment of ORS ten-year and, 30.905 to retain a repose of ultimate at time, same to allow all injured within the time provided, a full two action. In Baird u. Mart, supra, Electro we explained that the legislature sought accomplish goal by providing a plaintiff would have a “grace period” of two *17 bring which to an action following sustained the during after the the of defective Thus, product. the legislature supposed, party injured a day the designated period last would have the same amount of time file injured his action as one on the first day, yet, before, as no action could be commenced more Minutes, than ten from the date purchase. See 16, House Judiciary, May Committee on 1977.
The in legislature, attempting remedy prob- the above, lems noted did not have “occasion to define or * * * two-year period began The to run at the time “the cause of action accrued.” circumstances, repose statute, ORS 12.010. Under certain ORS the ultimate cutting two-year period provided by have the would effect of either short the 12.110(1) eliminating right bring altogether. the the A action would have less than if two to commence the action his cause of action “accrued” eighth of,” following complained between the and tenth “the act or omission year, and if the cause of action “accrued” after the tenth would be Bear, Josephs unable to the action at all. As the court in & stated Burns (1971): “* * * QRg 12.115(1) ten-year apply was intended to as a limitation from regardless damage the date of the act or omission of when the resulted or when the act or omission was discovered.” has since been amended to delete the reference to “criminal “* * * provided following: conversation” and to add the in an at law upon only based fraud or deceit the shall be deemed to commence limitation effect, discovery of the fraud or deceit.” The statute remains in otherwise although inapplicable liability it is now actions. significance or to discuss the ‘injury’ the term construe in of a situation whieh term” in the context physical injury, a sustained occurrence of a defen- discovery and the purchase, the date of are not simultaneous causal involvement dant’s events.9 Judiciary of by the House Committee on The discussions 30.905, indicate 3039, which became ORS HB bill, it refined the mechanics of that assumed immediately upon accrue that a cause of action would Thus, designing when physical injury.10 occurrence of a 313, 2). (59 App taped by majority n record of See discusion meeting the Senate Committee on Trade and Economic June Development made reference to the indicates that a witness before that committee question expressly issue but that the was not considered the commit Weinstein, University Oregon, a law student at the told tee. Ms. Dana occur, eight-year period within which must committee that especially expectancy product] in inconsistent with the life a [of may regard equipment example time needed to to industrial and another drug eight-year period that is listed is too short discover adverse reaction. added.) (Emphasis Tape that." Side testimony opinion, majority 2 of its For the reasons discussed note resolving present question. of “dubious value” Law, Vetri, University Oregon 10 Professor Dominick School of participant suggested HB the need for a several committee discussions of operation period' during grace and the framework for the of such committee work session. thought question “Mr. Vetri said he section 7 recalled the old of date of point manufacture. The bill makes the ‘ten after the sale vs the date of Machinery product’. case [sic] manufacture of the applied The Johnson vs Starr liability point ultimate-repose strict tort act. It made change between the date of sale and the date of manufacture concept negligence and date of referenced to the date of manufacture for the points concept. ones in sale for the strict Those two are the critical point language terms of the bill as it is now written. One other minor accident within the needed to be dealt with and that is whether the occurred year year period brought within the ten ten period. not whether the lawsuit was injured year puts people in the ninth and a half at a Section 7 who are *18 protect people. grace period disadvantage. the interest those A is needed to of death, language injury damage have or must Mr. Vetri recommended the ‘the product’. years the sale the within ten the date occurred of of from and, year happened period in all have in the ten accident must be shown to cases, years brought the the date action must be within two the from accident. every alleged, Myers potential two ‘‘Rep. claimant has the said then full year years long injury occuring incident was within the ten [sic] the so as Judiciary, May 11, (Emphasis Minutes, period.” 1977. on House Committee added.) meetings during used this and other witnesses and committee members Other specified phrases event that must occur within a terms and to describe the similar period: two-year grace trigger running “the period the and that would 332 ten-year statutory system existing to maintain the liability actions on the commencement of
limitation 2 plaintiff a give every potential at time “to the same 11 action, file an injury” time of in which to year period from two-year period of ORS assumed that legislature 30.905(2) physical injury date the was would run from the contemplated by the nature of the sustained. Given It is assumption was understandable. legislature, Corporation, that Schiele v. Hobart significant also 483, legislature’s was decided after Schiele, and enactment of ORS 30.905. consideration 12.110(1) a incorporating ORS as court construed a action.12 applied rule when accident’; brought years “every action must be within two from the date of the - potential years alleged long full claimant has the two so as the [sic] occurring year period”; incident was within the ten “an must be filed accident”; talking year anything two “no one’s about other than a 10 period repose except talking for ultimate to the extent that we’re about some arising purposes point”; injury- extension for causing of claims within a certain “the event’; give every potential plaintiff year period 2 time “to injury”; days happens expires, “if an accident 10 before the statute it seems say person day ridiculous must institute an somehow action within that 10 period time”; length which is not a reasonable “the accident must have occurred extension”; injured 2 within a that is less than the If someone is anniversary, they 2 on the 8th would have which to their with[in] testimony lawsuit.” It should also be noted that there was substantial before the concerning on-the-job injuries machinery committee caused industrial Minutes, equipment. Judiciary, April May See House Committee on 11 and May 1977. Judiciary, May Minutes, House Committee Branner, Berry majority, v. Or As noted the decision “tendency” (1966), provided the “trend” P2d 996 the “foundation” for 12.110(1), limitations, interpret particular Supreme as statutes of Court to discovery. commencing In Johnson v. Star to run at the time of at 317. Co., 699-700, Machinery supra, that the 270 Or at court observed 12.115(1), 12.110(4), response together originally with ORS had enacted ORS Branner, Berry supra. required opinion in that a medical malpractice within two after the time the action be commenced (thus Berry) codifying holding in should have been discovered discovered or provided brought from the further that no action could be after seven the treatment or omission on which the action was based. As court time of Co., Machinery supra, explained: v. Star Johnson time, Berry legislature recognized that the rationale “At the same negligence might in which went understand- to other situations expired. ably pertinent statute limitations As undetected until after act, 12.115(1), result, legislative part it enacted ORS which the same 10-year repose cases. We said in ultimate such established Bear, supra
Josephs
498-99:
v. Burns &
*19
knowledge
The
sustains without
injury
here,
or,
knowledge
harm
as
without
of its
of the fact of the
has
cause,
problems.
majority
new and
The
presents
special
decided,
that,
but
agree,
injury
and I
where
is sustained
unknown,
the
or its cause is
the
injury
the fact of
30.905(2)
provided by ORS
should not commence
period
is
injury
approach
when the
is inflicted. This reasonable
only
prior
by
with
the Supreme
consistent not
decisions
by
perceive
Court and
this court but also
what I
to be
by
the legislature
enacting
the intent of
ORS 30.905 to
sustaining
afford those
within
the date
of
product’s purchase
of a
time
to
reasonable
within which
However,
by
an action for
the
I
bring
product.
caused
the
reaching
believe
conclusion that ORS 30.905
action,
majority
bars
the
has
the
disregarded
(1)
the
significance
following
legisla-
considerations:
apparently
ture
did not consider the problems of sustained
(2)
injury;
operation
30.905,
but undiscovered
the
of ORS
as
explained by
Baird,
the
legislature
described
assumes
the accrual of a
upon
cause of action
the occurrence of a
(3)
physical
injury; and
the majority’s
construction
of
“
Berry,
patient
‘In
we held that the cause of action did not “accrue” until the
or,
care,
knew in the exercise of reasonable
should have known of the
upon
legislative
inflicted
her. It is clear that
the
committees which were
problem
delayed
litigation brought
by
dealing
long
with the
tort
about
of
discovery
possibility
defining
lack
the
the time when a
of
considered
of
response
Berry
the
It is our
cause of action “accrued” as a
to
decision.
belief
preferable
the enactment
that the
chose as
to
amendment
12.110(4) relating specifically
malpractice
one bill ORS
to medical
claims
12.115(1)
12.115(1)
relating generally
and ORS
to other tort claims. ORS
Berry intact,
discovery
subsequently
rationale
should this court
left
chose
malpractice,
apply
Berry
rationale to torts other
than medical
[sic]
prescribed
any
an ultimate
date in
event
but
cut-off
(Emphasis
litigation.”’
commencement
tort claims
ORS 30.905 about a result inconsistent with the legislative eight years sustaining injury intent to allow those product’s purchase
of a an action so long requirements as the of ORS are satisfied and product’s pur- filed within ten chase.
By extending “injury” required redefinition analysis rule to the in Baird operation majority fundamentally of ORS has *20 major premise purports apply, altered the i.e., rule it * * eight years there must be an within App symmetry remains; Or 59 “injury” at 320. The the word form unchanged. above, is For the reasons discussed I question symmetry resulting whether there is a also substance.
ORS 30.905 DOES NOT BAR PLAINTIFF’S ACTION. , simply provided eight-year for an If ORS 30.905 repose, majority’s analysis period of ultimate and con- event, In that no action could be clusion would be correct. beyond eight years product’s commenced from the date of a purchase. determining the date The character of the event a cause of action would be of of accrual of necessarily consequence, a cause of action would no because period to accrue within that in order for the action to have period. not a be commenced within that ORS 30.905 is repose “hybrid,” of ultimate but a com- traditional statute appears eight-year period bining what, face, on its to be an (ORS 30.905(1)) repose of ultimate with a (ORS 30.905(2)) explained and, in of limitations as we supra, Mart, constructed Baird v. Electro ten-year exposure period.” “to limit the manufacturer’s product liability may 30.905, Under actions commenced between ten from the date of and allegedly product. Baird, of an defective In we presented determined under the Circumstances in that plaintiff bring period; case, the could an action within that plaintiff eight years i.e., sustained product’s purchase and commenced the action within two years of that It is within that context that the occurrence. operation period repose “grace period” and provided by contemplated by legislature my opinion, analyzed Baird, must be understood. legislative history neither the nor our decision Baird can properly excluding be read as from the benefits of the “grace period” arise whose claims under circum- particularly stances not considered therein. This is true premise where, here, a fundamental on which those authorities rest altered. application pro- of a rule in itself “grace period” during sorts; i.e.,
vides an injury sustained is either undiscovered or its cause unknown, the statute of limitation does not run. When the is sustained within product’s purchase, anomaly such a situation creates an system designed explained applied plaintiff in Baird. To allow the two full discovery may exposure potential the date of extend beyond ten-year defendants the intended on the the limitation require commencement of actions. To to file an action within two of the date the injury is sustained assures that the action will be com- ten-year period menced in all cases within the give every potential plaintiff but will not two which to two-year period though action; i.e., the runs even injury. is unaware of the Neither alternative is *21 legislative Although consistent with the intent. approach by adopted majority dilemma, avoids the approach legislative is also inconsistent with the intent. In by plaintiff case, this it serves to bar an action who injury years eight product’s sustained an of the purchase, years and filed an action within ten of that date compliance 30.905(2). and in with ORS There is another approach that avoids the dilemma and results in consider- ably damage legislative less to the intent than that .which application majority’s follows from the of the rule. propose following application
I would rule for (1) injury in such cases: where an is sustained and the fact injury years eight of the is known within from the date of (2) recovery seeking injury a suit for the is years plaintiff filed within two of the date on which the injury knew or should have known of the fact of the defendant’s connection with it but and of not more than ten years purchase, from the date of the action is not barred principle I realize under the I have
ORS 30.905.13 person, plaintiff proposed, injured case, such as in this may, practical matter, have less than the intended as a two However, an action. I do not believe that by barring problem remedied such an action would be altogether.
Assuming, conceding, majority that the without concluding must occur within correct product’s purchase, it is not clear that the trial granting judg- justified in defendant’s motion for court was pleadings. ment on
Although this action was filed more than two injury sustained, and this fact the date on which complaint, judgment the face of the on is evident from ground pleadings in favor of defendant on this is not two-year period pro- proper because, here, as we hold 30.905(2) begin does not to run when the vided and its cause are is sustained but when inquiry Thus, the relevant known or should be known. 30.905(2) purposes whether knew of ORS becomes have known more than two before com- or should dangerously mencing defective nature of this action that the injury. Shaughnessy v. caused her defendant’s Spray, P2d rev den 292 (1982). Shaughnessy, that this was we determined Or 589 alleged jury question. case, had in her In that complaint: second amended knowledge know and did had no or reason to
“Plaintiff unreasonably dangerous nature of defen- not discover - Lilly’s product Eli as herein dants Smith Klines’s and herein negligence these defendants as alleged or of the three from the alleged until a of time less than complaint Eli filing against defendants date of the - App at 45. Lilly and Smith Kline.” 55 Or alleges Plaintiff is to reach an unreasonable result. To hold otherwise of the shield “at all learn” of the defective nature she did not have “reason to herein,” i.e., which she sustained the at least from the date on material times knowledge eight-year period. such end Had she obtained until the adopt year, day eighth we under the construction of ORS the last *22 Baird, day today holding the last of the tenth she would have had until and our damages. year It is unreasonable and to file an action for after the date of insertion year, knowledge eighth acquired she such unfair to conclude because after year barred. of the tenth is somehow her suit filed the end before that: complaint her case, plaintiff alleged
In this herein, plaintiff had not material at all times chronic intrauterine of her as to the cause been advised learn, reason to did she have nor and did not infections defective nature learn, relationship between infections. intrauterine and her chronic the Daikon Shield relationship until a date not learn of did 1,May 1980.” about on or or its of an learns date on which a court in Schiele date. The pertinent not cause is 489-90, rejected 284 Or at supra, Corporation, Hobart knowledge would actual nothing that short of argument and held statutory period starting have the effect of reasonably prudent to run “when period began permanent a serious or symptoms his associates person the role which perceives time and at the same condition I am not inducing that condition.” played defendant has discovery, so complaint alleges convinced date of years from the defined, occurred more than purchase. See ORCP 12A.14 provides: 12A ORCP liberally justice pleadings with a view of substantial “All shall be construed parties.”
between the