Baird v. Electro Mart Factory Direct, Inc., A7903-01323

Decision Date04 August 1980
Docket NumberNo. A7903-01323,A7903-01323
Citation615 P.2d 335,47 Or.App. 565
PartiesClydia BAIRD, Appellant, v. ELECTRO MART FACTORY DIRECT, INC., dba Randall's Stereo, T.V. & Appliance and The Magnovox Company, Respondents. ; CA 14868.
CourtOregon Court of Appeals

William N. Mehlhaf, Portland, argued the cause and filed the brief for appellant.

No appearance for respondent Electro Mart Factory Direct, Inc.

Michael J. Gentry, Portland, argued the cause for respondent The Magnavox Co. With him on the brief was Tooze, Kerr, Marshall & Shenker, Portland.

Before RICHARDSON, P. J., and THORNTON and BUTTLER, JJ.

RICHARDSON, Presiding Judge.

Plaintiff, in this product liability action, appeals a judgment for defendants. Defendants demurred to the complaint on the ground that the action was not commenced within the time limitation of ORS 30.905. The court sustained the demurrer without leave for plaintiff to replead and granted judgment for defendants.

The applicable statute provides:

"(1) Notwithstanding ORS 12.115 or 12.140 and except as provided in subsection (2) of this section, a product liability civil action shall be commenced not later than eight years after the date on which the product was first purchased for use or consumption.

"(2) A product liability civil action shall be commenced not later than two years after the date on which the death, injury or damage complained of occurs."

This statute became effective on January 1, 1978, 1977 Or.Laws, ch. 843, § 3.

Plaintiff's complaint alleged the following sequence of events. Plaintiff's home was damaged by a fire on January 1, 1978, when her television set exploded. The television set, manufactured by defendant Magnavox, had been purchased from defendant Electro Mart on March 7, 1970. Plaintiff filed her complaint on March 19, 1979. The injury occurred within eight years of the date the television set was purchased. The complaint was filed within two years of the date of the injury but more than eight years after the date of purchase.

Understandably, the parties offer different interpretations of the statute. Defendants argue the statute requires that an action be commenced within two years of the injury but in no event more than eight years from the date the product was first purchased for use or consumption. They contend this interpretation is derived from the plain, unambiguous language of the statute; i. e., that the "action shall be commenced not later than eight years after the date on which the product was first purchased."

On the other hand, plaintiff argues the statute means that if the injury occurs within eight years of the first purchase of the product, the injured party is not barred from commencing an action as long as it is commenced within two years of the injury. This interpretation is derived, plaintiff argues, from the specific exception to the eight-year limitation contained in subsection (2). The only way to read the wording of the statute, plaintiff contends, is to apply the exception as written. Thus, it is argued, the eight-year period is specifically conditioned upon the right of plaintiff to bring a cause of action within two years of the injury. To construe the statute otherwise, plaintiff contends, would bring a harsh and unjust result. Plaintiff points to her own circumstances to illustrate that point. The injury to her residence occurred less than three months prior to eight years from the date of purchase. If the construction of the statute adopted by the trial court is correct, she would have had less than three months within which to file her complaint. Plaintiff argues that we should construe the statute consistent with the obvious legislative policy to provide an ultimate repose of ten years, i. e., eight years plus two years to bring the cause of action, comparable to the ten-year statute of repose reflected in ORS 12.115.

The legislative history of the statute here at issue, ORS 30.905, is based in part on the Supreme Court's decision in Johnson v. Star Machinery Co., 270 Or. 694, 530 P.2d 53 (1974). That case involved a wrongful death action brought in a product liability framework. A plywood sanding machine, manufactured by defendant, ejected a piece of wood which hit and killed decedent. The machine had been purchased by decedent's employer in 1959. The fatal accident occurred in 1970 and the complaint was filed in 1973. The court held the claim was barred by the limitation period of ORS 12.115:

"(1) In no event shall any action for negligent injury to person or property of another be commenced more than 10 years from the date of the act or omission complained of.

" * * * * *." (Emphasis added.)

The court held that whether the omission complained of was the negligent manufacture of the product or the sale of the defective product, the ten-year period had run at the time plaintiff filed the cause of action. The court also held that product liability actions were included in the statute despite the fact that they were not actions based on negligent injury.

In response to that decision, the legislature enacted ORS 30.905, 1977 Or.Laws, Ch. 843, § 3. The legislative vehicle for enactment of this statute was House Bill 3039 of the 1977 legislative session. The House Committee on Judiciary, in reviewing that bill, discussed two primary concerns with the limitation period in response to the decision in Johnson v. Star Machinery Co., supra. Minutes, House Committee on Judiciary, May 11, 1977; May 16, 1977. The first was in determining an event which would start the running of the limitation period. As seen in ORS 30.905, it was determined that the period would run from the first purchase of the product for use or consumption.

The second concern was the period of ultimate repose for product liability actions. The early language of House Bill 3039 provided for a period of ten years. Several members of the committee expressed a concern that the ten-year period of repose would be extended to as much as twelve years if the two-year tort limitation period were added. Certain committee members apparently felt that if a person sustained injury within the ten-year period that person could bring the requisite action beyond the ten-year period as long as it was commenced within two years of the injury. The committee determined, as a policy matter, that it wished to limit the manufacturer's exposure to a ten-year period. After extensive discussion the committee adopted the following motion:

"THE QUESTION WAS CALLED ON REP. RUTHERFORD'S MOTION TO REDUCE THE PERIOD OF ULTIMATE REPOSE TO 8 YEARS FROM THE DATE OF FIRST PURCHASE FOR USE OR CONSUMPTION AND TO PROVIDE A 2 YEAR LIMITATION FOR OCCURRENCE OR LIABILITY THAT OCCURRED IN THE 8 YEAR PERIOD." Minutes, House Committee on Judiciary, May 16, 1977.

It is clear that the committee intended that if an injury occurred within the eight-year period the injured party would have two years from the date of the injury to commence the action. Assuming the full legislature embraced the policy decision of the committee, the wording of ORS 30.905 does not express that policy. The words of the statute read the action shall be commenced no later than eight...

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16 cases
  • Gladhart v. Oregon Vineyard Supply Co.
    • United States
    • Oregon Court of Appeals
    • December 22, 1999
    ...user or consumer. It does not use the word `injury'; when we used `injury' in our discussion of that subsection in Baird v. Electro Mart, [47 Or.App. 565, 615 P.2d 335 (1980),] we meant it in the sense of physical harm. There is no reason to give the concept any special, different meaning i......
  • Dortch v. A. H. Robins Co., Inc.
    • United States
    • Oregon Court of Appeals
    • September 15, 1982
    ...complained of occurs." Plaintiff contends that this statute does not bar the action, relying on our holding in Baird v. Electro Mart, 47 Or.App. 565, 615 P.2d 335 (1980), that a product liability action is not barred by ORS 30.905(1), although commenced more than eight years after the date ......
  • Allen v. GD Searle & Co.
    • United States
    • U.S. District Court — District of Oregon
    • March 3, 1989
    ...two years after the plaintiff discovered, or reasonably should have discovered, her cause of action. Baird v. Electro Mart Factory Direct, Inc., 47 Or. App. 565, 572, 615 P.2d 335 (1980). Oregon courts have construed subsections (1) and (2) together to mean that there is a ten-year period o......
  • Simonsen v. Ford Motor Co.
    • United States
    • Oregon Court of Appeals
    • December 8, 2004
    ...den., 333 Or. 655, 45 P.3d 448 (2002). Plaintiff argues that, when coupled with our reasoning and holding in Baird v. Electro Mart, 47 Or.App. 565, 572, 615 P.2d 335 (1980), tolling by virtue of ORS 12.160 can operate to extend the statute of ultimate repose for product liability civil acti......
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1 books & journal articles
  • Pro Se Defendants and the Appointment of Advisory Counsel
    • United States
    • Colorado Bar Association Colorado Lawyer No. 35-12, December 2006
    • Invalid date
    ...note 12. 15. Id. at 1148. 16. McKaskle, supra note 9. 17. People v. Woods, 932 P.3d 500, 535 (Colo. App. 1996). See also People v. Lucero, 615 P.2d 335 (Colo. 1980), approving the appointment of advisory over the objection of the defendant. 18. Lucero, supra note 17 at 662. 19. Fred R. Shap......

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