*1 14, 1989, Appeals Argued June decision of and submitted the Court 6, 1990 judgment of the affirmed circuit court March al, et
SEALEY Review, on Petitioners al, et HICKS Defendants, CORP., TOYOTA MOTORS Respondent Review. S36025)
(TC 86-0869C; A47084; SC CA 788 P2d *2 filed the and Muller, Portland, the cause argued H. Richard on review. petitioners for petition Portland, the cause Hoffman, argued Jonathan M. on review. respondent Nash, Miller, Illinois; and Chicago,
Jay Smyser, M. Portland, Westwood, Wiener, Carlsen and James N. Hager & Liability Product curiae behalf of amicus filed a brief on Council, Inc. Advisory on behalf Fisher, Portland, a brief filed
Emerson G. Lawyers Trial Association. curiae amicus DeFrancq, Downes & Schulte, Anderson, Aronson and Lee P.C., Carter, Portland, filed brief on behalf of amicus curiae Oregon Association of Defense Counsel. Peterson, Justice, Linde,** Carson,
Before Chief Jones, Gillette, Fadeley, Van Hoomissen and Justices.
GILLETTE, J. J., Fadeley, specially concurred filed opinion. *3 ** J., Linde, 31, 1990. January retired
GILLETTE, J. primary products liability issue in this case is 30.905,1 products liability whether ORS statute of ulti- violates repose, mate either the Constitution or the or Fourteenth Amendments to the States Seventh United secondary A plaintiffs’ Constitution. issue concerns whether complaint alleges negligent, continuing part failure on the product’s the manufacturer to warn of the and dan- defective gerous pleadings adequately condition. If the such a allege theory, question arises whether the time limit imposed by 30.905(1) can by pleading ORS be avoided con- negligent tinuing failure to warn consumers of such hold dangers. We that ORS 30.905 is constitutional under both constitutions. further plaintiffs allegations We hold that are insufficient raise a theory negligent, continuing failure to warn of a dangerous product. or defective
FACTS 23, 1986, April 15-year-old Sealey, On Scott plaintiff, in a passenger Toyota was a Landcruiser. The driver, Hicks, minor, Erik defendant James also a lost control of the vehicle. The vehicle rolled over its roof off. and came Plaintiff was seriously injured quadriplegic. and is now a
Plaintiff, litem, acting through guardian his ad filed original complaint August his 1986. The defendants Hicks, Toyota Distributors, were Toyota Motor Motor (TMC). Corporation summary judgment, TMC moved for claiming the action was time barred originally May because the vehicle was sold in of 1975 and the eight years accident occurred more than later. The trial court agreed granted summary Finding no reason for judgment. provides: ORS 30.905 *4 “(1) Notwithstanding except provided 12.115 in sub- ORS or 12.140 and as (2) 30.907, liability product section of this section and ORS civil action shall be eight years product commenced not later than after the date on which the was first
purchased consumption. for use or “(2) 30.907, Except provided liability as in ORS civil action shall death, years injury be commenced later than after the date on which the or not two damage complained of occurs.”
391 plain- delay, judgment against the court entered for TMC and tiff to pursuant ORCP 67 B.2 appealed, contending that, insofar as ORS
30.905(1) upon bars a claim before the which is injury it based occurs, even the statute is unconstitutional. Plaintiff further that, constitutional, contended if even ORS he alleged ordinary also has post-purchase negligence, governed by the general repose, torts statutes of limitation and ORS 12.110(1)3 12.115, complaint and timely and his under was those statutes.4 Appeals upheld
The Court of
constitutionality
the
of
30.905(1).5
Hicks,
Sealey
ORS
App
95 Or
2 provides: 67 B ORCP action, presented “When more then one claim for relief is in an as whether claim, counterclaim, cross-claim, claim, multiple party parties or third or when involved, may entry judgment are the court direct of final as or to one more parties upon only express but than fewer all of the claims or an determination that just delay upon express entry there is no reason for and direction for of judgment. direction, any In the absence of such determination and order or other decision, adjudicates designated, form of however which fewer than all claims rights parties or and liabilities of fewer than all the shall not terminate the any parties, action subject of as the claims or order or other form of decision is any entry judgment adjudicating to revision at time before the all the rights parties.” claims and all and liabilities of 3 12.110(1) provides pertinent part: ORS assault, battery, imprisonment, any “An action for false or other person rights another, contract, arising especially not not enumer- * * chapter, ated in this shall be commenced within two provides: ORS 12.115 “(1) person negligent injury property In no shall event action for another be more from commenced than the date the act or omission complained of. “(2) Nothing any period this section be of limita- shall construed extend law, including tion otherwise established but not limited to the limitations established 12.110.” earlier, against TMC also claimed that an favorable resolution of this same claim Toyota co-defendant was it as Motor Distributors of the case and absolved rejected Appeals well.The Court of was before us contention. issue not raised and we do not consider it. provides: ORS 30.900 30.920, ‘product liability used in
“As ORS 30.900 to civil means a civil action’ *5 plaintiffs product. a We allowed result- concerning defective important issues petition for review to address ing involved.
THE STATUTE’S MEANING repose, statute ORS products The 30.905(1), “except provided it as in subsec applies states that (2) This be read to make language of this section.” could tion 30.905(1) to the time limit limit in ORS subordinate the time 30.905(2). read, it fact that plaintiff in ORS If were so years the accident commenced this action less than two after 30.905(2). timely This would make the action under 30.905(1) however, a nul interpretation, renders ORS virtual — 20, a brought 10, years or even 30 after lity an action would product consumption” “first for use or purchased was years within timely long brought still be so as it was two of.” The “death, injury damage complained or date provision intended to enact cannot have legislature legal would have no effect. legislative history legis
A at reveals the brief look statutory structure. ORS lature’s intent rational by a defec 30.905(2) Anyone injured ais statute of limitation. death, injury, years from the date of the product tive has two a civil action. ORS damage complained or commence hand, repose. 30.905(1), legis a statute of on the other injury occurring more than that an lature has determined entered the stream product a defective first eight after Minutes, Judi See House cognizable. is not legally commerce Plaintiff here filed Committee, May 16, 1977, pp 10-12. ciary occur but his did not of his injury, within two purchased. vehicle first was years of the date the eight within (1) applicable is the subsection. of ORS 30.905 Subsection by summary ended properly therefore was Plaintiffs case state or provision, judgment, unless some constitutional distributor, manufacturer, for brought against or lessor of a seller action damage arising damages personal injury, property of: out death or prod- manufacturing in a “(1) Any design, inspection, testing, defect or other uct; product; “(2) Any regarding warn failure to product.” “(3) Any properly use of instruct failure federal, application forbids the enactment of ORS 30.905(1). We turn to that issue.
THE STATUTE’S CONSTITUTIONALITY
constitutionality
attacks
of ORS
bases,
separate
on five
three
Con-
under
stitution
two under the Federal Constitution. As is our
practice,
normal
we
the three
consider
state constitutional
See,
challenges
moving
before
e.g.,
federal issues.
Kennedy,
(1983).
State v.
295 Or
1. Article Section 10 *6 I, 10, Oregon pro Article section Constitution vides: secret, administered, justice “No shall court be but shall be
openly purchase, completely delay, and without and without every remedy by and injury man shall have due course of law for person, property reputation.”
done him and his 30.905(1) Plaintiff contends that ORS violates this section it because bars his claim the accrues, thereby before claim ever him denying “remedy by of injury due course law for [an] done him and person.” his particularly is aggrieved repose because the statute of eliminates remedy his even before 30.905(1) he has suffered an injury. This is true. ORS plaintiffs does bar deny claim and remedy him a for what would legally otherwise be a cognizable injury. However, ORS 30.905(1) is nonetheless constitutional.
This court already upheld has considered and the constitutionality of repose another statute of ultimate under & Bear, similar 493, circumstances. In Josephs Burns 260 Or (1971), plaintiffs P2d 203 the were the owners of a build ing whose collapsed years roof more than 10 its after construc tion. Plaintiffs that alleged collapse the resulted from the defendant’s negligent building. construction of the 12.115(1)
At that provided: time ORS “In negligent person no event shall action property of another be commenced more than 10 complained from the of date the act or omission of.” The trial court sustained the defendant’s demurrer on the prior had the com- of limitations run that the statute
basis the court’s This court affirmed trial mencement of action.7 plaintiffs’ ruling despite contention “that statute which extinguish remedy legally protected purports before the right it is because con- becomes actionable unconstitutionable section of Constitution travenes Article * * *.” Id. 502. We held: at 12.115(1) “Assuming is abolish that the effect of ORS damage does not result causes of action tort where negligent acts or omissions com- within ten after * ** of, nothing doing. in so plained we see unconstitutional [******] always proper legisla- been function
“It has considered a availability use of tures to limit the of causes action long purpose of so it is done for the statutes of limitation as recognized public is in the interest of protecting a interest. It public possibility of there be a definite end to the permissible litigation resulting past from actions. It future possibility legislative function to balance the constitutional public outlawing legitimate against need that at claims potential litigation.” be an some definite time there end equally applicable reasoning Josephs is to civil The purposes legitimate legislative actions.8 30.905(1). support behind ORS also *7 apply like does not to situation Article section authority present legislature to deter- one. The has the the injury. legally cognizable It has mine what constitutes prod- injuries resulting to from defective chosen declare that legally cognizable they 8 are not if occur more “than ucts product purchased for was use after the date on which the first 7 Josephs 12.115(1) Although of as a “statute limita court referred to ORS tion,” prefer repose.” A “statute it in ultimate we to view this context as a “statute of party has accrued. limitation” limits the time a has to initiate action once claim hand, repose,” provides the initiation A “statute of ultimate on the other a deadline for has occurred. of an action whether or not the has been discovered or even 8 fact, v. Star Johnson prior in In we held to the enactment of ORS Co., repose, Machinery 694, 530 (1974), general torts Or P2d 53 statute 270 liability 12.115(1), applied actions. ORS also to strict consumption.” making determination, legisla- this In deprived remedy plaintiff preexisting ture has not this injury.9 his Sears, heavily on Heath v. relies Roebuck &
Co., Heath, (NH 1983). Supreme In A2d Court of Hampshire Hampshire prod- New struck down the entire New liability statutory ucts scheme as unconstitutional under the Hampshire Obviously, New state constitution. has Heath no here, authority always direct but are open persuasive we analysis However, any helpful from source. we find little opinion. assistance the Heath
Heath rests on a similar state constitution remedies one, clause. Part article fourteen of the Hampshire New Con provides: stitution
“Every subject of remedy, this state is entitled to a certain by having laws, injuries may recourse for all he receive person, property, character; right jus- his to obtain and freely, it; being obligated purchase tice without completely denial; promptly, and delay; without and without confor- mably to the laws.” Hampshire New Supreme Court this views
clause as a substantive guarantee that the state courts will provide a remedy every every injury. citizen for Based on provision, this the court “although determined that a fun- not right, damental right ‘the for personal to recover injuries ” * * * an important right.’ substantive Id. attempt at 294. An to alter or right subject eliminate this was to attack under the * * * state’s equal protection clause wherein “classifications were required to be upon ground ‘reasonable’ to ‘rest some having of difference a fair and relation to substantial ” object legislation.’ Id. at 294-95. The court reviewed provisions various of the product found that many of provisions were unreasonable or not “substan- tially legitimate related to a legislative object.” Id. at 296. The 12-year repose statute of was found unreasonable it because could deprive persons remedy of a before their claim had was, view, accrued and it because that court’s unrelated to 30.905, plaintiff Prior to the enactment of ORS this would have been barred general ten-year 12.115(1), repose, applied ultimate statute which we product liability Machinery Company, supra actions in Johnson v. Star n 9.
396 rates, holding pri- of down insurance underlying purpose in
marily products liability “the insurance had because crisis Id. of independent nationwide abated [this law].”10 reflect a fundamental difference statements Such powers Supreme duties of the Court of New between no Hampshire and of this court. There is “substantive due empowered in our constitution. We are not to process” clause it a we believe is duly simply down enacted law because strike unwise, Apparently, or unsuccessful. unnecessary, Supreme Hampshire empowered. Lacking of New is so Court position to strike down ORS power, such a we are no under a Heath 30.905(1) approach. I,
2. 17 Article Section I, 17, pro Oregon section of the Constitution Article vides: right by Jury
“In all of Trial shall remain civil cases the inviolate.” that, plaintiff any argues “[b]y denying this minor
Plaintiff
Courts,
deprived the
Oregon
access to the
ORS 30.905 has
have
heard
right
jury.”
minor
his claim
plaintiff [of]
This
is
merit. ORS
terminates
contention
without
no
what their
persons
claims for all
matter
any
or
because
right
privilege
is not
age.
deprived
designed
guarantee
jury
his
17
trial when
age.
Section
is
indepen-
action.11 It
not
right
to a trial exists in civil
is
cognizable
of a
claim.
guarantee
dent
existence
I,
3.
Section 20
Article
Article
that ORS 30.905 violates
Plaintiff contends
20,
section
Constitution:
passed granting
be
citizen or class
“No
shall
immunities, which, upon
same
privileges,
citizens
or
terms,
equally
to all
belong
shall not
citizens.”
10
support
apparently
in the form
for this conclusion
There
was some
the record
Study
Injury
report by
Hampshire Legislative Commission to
Product
of a
a New
Reparations.
By
law. There
no
an action at
“civil action” we mean what was once called
549,
Johnson,
jury
equity. Phillips
514 P2d
right
Or
trial
(1973).
class,
question
plaintiff
is whether
is a member of a
some
a privilege
immunity granted
of whom have been denied
class,
others in
same
whether the manufacturers
*9
products
granted
privilege
immunity
sellers of
have been
a
or
equally
not available
to others in the same class. See State v.
Clark,
231, 237-40,
(1981).
291 Or
In
whether a class exists under Article
20,
section
we must first determine whether the class “is cre
“by
ated
challenged law itself’
virtue
charac
* * *
Clark,
apart
question.”
teristics
in
v.
from
State
supra,
type
There are alleged three classes to be at issue in this case:
(1) products Persons injured by eight more than sale, after their initial contrasted persons with injured by products sold more recently;
(2) Potential injure tortfeasors who their victims eight-year-old with products, manufactured contrasted with injure tortfeasors who their victims in other ways; (3) by products, Persons injured contrasted with those persons by other injured causes.
The first two clearly classes are classes “created challenged Any repose, by law itself.” a setting statute of beyond time limit legislature which the to recognize declines legal the existence of injury, a will divide tortfeasors and their upon However, victims into classes based those time limits. such a decision the purview legislature. is within
The third apart class does exist from the statute. injured by Whether individual is manufactured dependent some other is upon fashion not the terms of Nevertheless, the statute. authority has the to legislature decide, for example, that increases in rates or insurance other limit the litigation legislation warrant to associated with
costs
to ensure the continued
of manufacturers
order
If
at
reasonable cost.
availability
goods
of manufactured
indi-
attempted
deny
recovery
specific
legislature
viduals,
recovery
deny
such
permit
or to
the courts
class,
members
the same
Article
sec-
arbitrarily chosen
20,
not the case here.12 See
might
tion
be violated. But
Freeland,
Portland, supra;
supra;
v.
State v.
State
Hale
Port of
Clark, supra.
4.Seventh Amendment
that ORS
violates his
contends
Amendment
in the
right
jury
to a
trial under the Seventh
right
Constitution. The Seventh Amendment
United States
See, e.g., Dohany v.
jury
apply
trial does not
to the states.
(1930).
299,
Ct
CONTINUING FAILURE WARN argument complaint Plaintiffs final is that his alleged negligent continuing failure to warn of the TMC plaintiff portion correct, Landcruiser’s defects. If complaint that of his governed by two-year negligence would be stat summary judgment limitation, 12.110, ute of would appropriate. responded, not have been Appeals agreed,13 TMC and the Court of plaintiff alleged continuing that no failure agree plaintiffs complaint to warn. We did not ade quately question continuing raise the of a failure to warn. plaintiffs complaint
The closest came to such alle- gations following allegations: were the proximate plaintiffs “[A] cause enhancementof and/or
personalinjuries negligence [TMC] was the of defendant followingparticulars: oneor moreof the * * * * failing giveadequatewarning “4. In of the vehicle’s
dangerouspropensity speeds.” to rolloverat low only reading allegations they The refer reasonable of these is that prior initial failure to warn to the first sale of the they vehicle; cannot also be read to include a failure to warn at product’s some later date after the defect was discovered. pleadings While ORCP 12 A directs that “[a]ll shall be liber- ally justice construed with a view of substantial between the parties,” pleadings, we would have to rewrite these not con- negligent them, strue to make out a claim of continued failure Appeals correctly to warn. The Court of concluded that this theory adequately pleaded.14 had not been Appeals judg-
The decision of the Court of and the ment of the circuit court are affirmed. *11 specially concurring.
FADELEY, J.,
pleadings
I concur in the result in this case. The
do
requirements
“continuing duty
not meet
for a
to warn” or for
13 Sealey Hicks,
App 182, 185,
(1989).
95 Or
some other available, complaint. two arising within
However, join opinion I am not able to the rest of the guarantee analyzing a constitutional without which discusses purposes. agree or its roots or We all in this guarantee that country rights guaranteed that the constitution and the only long over statutes. But that is true so as therein control Indeed, make the constitution effective. this coun- courts will of a revolution wherein the courts try was founded as result rights not accorded the “colonists” their fundamental had separate of three co- English under basic law. Establishment followed hard on the heels of equal government branches of con- Assigning enforcing courts the task of experience. that by our rights predeces- stitutional was a creative tour de force to assure that independent judiciary sors. The was created strong enough to always governmental there is institution way upholding charged responsibility have its with by eroded rights the constitutional of individuals attacked or governmental actions of other branches. portion opinion join of this court’s which I do not permit legislative a statute of the
appears possibly to me to right. portion That branch to overrule the constitutional unnecessarily justicia- do so because no opinion appears pleaded. in due course of law was remedy ble case for pro- Constitution Article section have rem- vides, every person “shall among things, other person, him in his injury course of law for done edy due mandatory lan- This clause uses property, reputation.” That remedy. shall have a person about two ideas. Each guage due remedy of law. The and the remedy shall be due course person. done to apply course quad case, boy is a lifetime 15-year-old In this sub may have been as a result of an accident which raplegic of a driving characteristics stantially by dangerous caused characteristics, producing These specific dangerous vehicle. the manufac accidents, may well have been known to prior injury. lifetime plaintiff suffered his turer for before price into their allow manufacturers to build In an effort to *12 401 component injury by products, of cost for future risks of their legislature period eight years.1 the chose to limit the of risk to opinion points true, out,
It is as the of the court that way. the statute could be read another It could be read to limit years eight years plus causing injury. However, two after my reading concurrence here does not take issue with the opinion legislature the court’s that the intention of the was to absolutely period eight years. limit the of risk to eight-year period expired, driving
After the acci- may dent, which have been caused the known dan- gerousness being of the driven, vehicle when occurred. That directly legislature may prop- raises the issue of whether the erly make a choice to hold down the costs to the manufacturer eight years place remaining to the first of risk and costs people may injured eighth year. those who be after the Does square every person remedy by that with “shall have a due injury person?” course of law for done him in his opinion says, “yes, legisla- effect, In the court’s may by cost-shifting ture statute make the choice notwith- standing guarantee. may the constitutional The statute guarantee.” overrule the constitution and its — concept remedy by This constitutional due — injury person course of law for to the is over seven hundred guarantee commonplace old. The is a in state constitu- phys- constitution, tions.2 In our states, that other placement guarantee ical connects it to and locates it Magna concerning being with ideas found in Carta courts open, speedy complete remedy by in their resolution. The developed rapidly Magna due course of law after Carta and provided great strength relatively to the common law. In a development yields time, short this the idea that individuals protected against sovereign. were was even The law
superior whims, wishes, to the or even the considered sovereign decisions of that where there was a conflict between them.
Thus, in Westminister; Second, the Statutes of case, In in this case occurred more than ten later. volume, (Columbia Index Constitutions of the United States National and State University (1982)) provisions. Oceana. lists 36 states with such constitutional requires provision found a A.D., in Article XXIV is though the standard case even plaintiffs to be made for
“writ” a writ provide office did not at the court clerk’s forms available made, lest it said “a writ shall be case. The statute to cover the fail long should time hereafter that the court might happen thus, And it is found complainants.” unto justice minister Rights of 1780: Declaration Article XI of the Massachusetts ought to find a cer- “Every subject of the Commonwealth laws, injuries or remedy by having recourse to the for all tain property, may person, or char- he receive his wrongswhich *13 freely, right justice and without ought to obtain acter. He any it; purchase completely, and without being obliged to conformably delay; to the denial; promptly, and without (1971). Schwartz, Rights, Bill 342 The of laws.” is to cite an analysis of the court’s The extent ten more than negligent construction involving case Supreme in a debate with the engage and to injury, before the results in a distinction Hampshire which Court of New powers the of this opinion sees as between what the court’s of depth and breadth of that court. powers court and the opinion issue in this court’s analysis of the constitutional the 1971, (a) decisions entered one of this court’s to cite (b) clause; distinguish analysis of the which contains no contrary of this court’s to the Hampshire holding case New greater courts have Hampshire basis that New opinion, on the than does this unconstitutional to declare a statute power a “statute (c) statute is labeled court; out that the point court) of the rather than opinion current of repose” (by of the by the constitution brief, disposes court of “limitation.” In its the statute and through invoking overruling provisions its cov- distinguishing the no mention of label. The court makes coverage of the from the guarantee of constitutional erage provision on the constitutional by interpreting statute meaning. of its roots or its basis only other- case is Hampshire the New
While that decision is opinion, case mentioned in the court’s state point. Of the states decisions only many one of state-court on their state question bearing considered a similar that had the statutes unconstitutional constitutions, declared seven Note, Status and Trends in State upheld six the statutes. while Repose, Statutes Limitation and J Liability Products Law: (1987). n.38 Legis. may opinion gain liability implica A reader of the court tion that where the cause action involves for harm by product duty injured where done but owed to the person arose less that two before the caused complaint duty the breach of that and where the to recover years, repose was also within that a statute of two will none prevent any remedy theless action in due course of law for injury.3 I join implication. join do not such Nor do I discarding remedy protections of the due course providing analysis law clause without the first court protections. nature those *14 3Examples may dangerous danger include: failure to recall a vehicle to correct the having appropriate governmental agency;
after been ordered to do so failure learning contraceptive spontaneous take corrective action after that a device causes abortion, sterility or cancer.