Cole v. Sunnyside Marketplace, LLC

• Decision Date: 09 May 2007
• Docket Number: 030201429.,A126877.
• Parties: Traci COLE, fka Traci Stegmann, Plaintiff-Appellant, v. SUNNYSIDE MARKETPLACE, LLC, an Oregon corporation; Elliott Associates, Inc., an Oregon corporation; Chester Lawrence Gunter, Jr.; and Starbucks Corporation, a foreign corporation, Defendants, and Harbor Security, Inc., an Oregon corporation, Defendant-Respondent.
• Court: Oregon Court of Appeals

160 P.3d 1

212 Or. App. 509

Traci COLE, fka Traci Stegmann, Plaintiff-Appellant, v. SUNNYSIDE MARKETPLACE, LLC, an Oregon corporation; Elliott Associates, Inc., an Oregon corporation; Chester Lawrence Gunter, Jr.; and Starbucks Corporation, a foreign corporation, Defendants, and Harbor Security, Inc., an Oregon corporation, Defendant-Respondent.

030201429.

A126877.

Court of Appeals of Oregon.

Argued and Submitted September 22, 2006.

Decided May 9, 2007.

Robert K. Udziela, Portland, argued the cause and filed the briefs for appellant.

Thomas W. Brown, Portland, argued the cause for respondent. With him on the brief were Robert E. Sabido and Cosgrave Vergeer Kester LLP.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and ROSENBLUM, Judge.

LANDAU, P.J.

This is a personal injury case that arises out of an incident in which plaintiff was abducted from her place of employment and raped. She initiated this action against, among others, her employer and the security contractor that her employer had hired at the time of the assault, Harbor Security, Inc. (Harbor). The sole issue on appeal is whether plaintiff's claim against Harbor is barred by the applicable statute of limitations. The trial court granted summary judgment in favor of Harbor on the ground that the action is time-barred. Plaintiff now appeals, and we reverse.

I. FACTS

The relevant facts are uncontested. Plaintiff worked in a Starbucks coffee shop located in the Sunnyside Marketplace, a moderate-sized "strip" mall in Clackamas. On December 30, 2001, plaintiff arrived at the coffee shop and prepared to open. At approximately 6:20 a.m., Chester Gunter entered the shop pretending to have a gun. He abducted plaintiff, drove her away from the mall, and raped her. He was later apprehended and, in August 2002, convicted of rape, kidnapping, robbery, and other offenses.

On February 11, 2003, plaintiff filed a complaint against Gunter; Sunnyside Marketplace, LLC (Sunnyside); and Elliott Associates, Inc. (Elliott), the mall's property manager. In her complaint, plaintiff alleged that Sunnyside and Elliott had been negligent in failing to provide adequate security, including failing to provide security patrols in the parking lot, designing the mall without considering certain security hazards, and failing to provide surveillance cameras. In June 2003, plaintiff filed an amended complaint adding Starbucks Corporation (Starbucks) as a defendant and alleging that Starbucks had similarly been negligent in failing to take adequate security measures.

On June 20, 2003, plaintiff served on Sunnyside and Elliott a request for the production of documents. The request sought, among other things, "any and all contracts with any security companies providing services to Sunnyside Marketplace." Sunnyside and Elliott responded to that request six months later, in December 2003, providing documents that showed that Harbor was providing such services to the mall. Specifically, those documents showed that Sunnyside had contracted with Harbor to patrol the mall two to three times each night, between the hours of 7:00 p.m. and 6:00 a.m.

On April 6, 2004, two years and 98 days after the incident in which plaintiff was abducted and raped, she filed a second amended complaint, adding Harbor as a defendant and alleging that Harbor was negligent in providing security services at the mall on the morning of the incident.

Harbor moved for summary judgment, contending that, under the applicable statute of limitations, ORS 12.110(1), plaintiff was required to initiate her claim within two years from the date on which she was assaulted. Harbor argued that, by the time plaintiff filed her second amended complaint, the statute of limitations had expired more than three months earlier. Plaintiff responded that her claims against Harbor were not time-barred. Under the "discovery rule," plaintiff argued, the two-year statute of limitations period did not begin until December 2003, when she learned for the first time that Harbor might be liable for her injuries.

The trial court granted Harbor's motion for summary judgment and dismissed plaintiff's claims against Harbor, concluding that plaintiff had failed to initiate her action before the statute of limitations had expired. The trial court explained that, under the circumstances of this case, the discovery rule cited by plaintiff was inapplicable. According to the trial court, Harbor's existence and identity were readily discoverable at the time of plaintiff's injury. In the absence of specific reasons why plaintiff was prevented from discovering Harbor's existence, the court concluded, there was no basis for tolling the statute of limitations.

II. ANALYSIS

On appeal, plaintiff argues that the trial court erred in granting Harbor's motion for summary judgment. Plaintiff argues that there is a basis for tolling the statute of limitations. According to plaintiff, the Supreme Court has long held that ORS 12.110(1) is subject to the discovery rule, and, under that rule, the running of the statute of limitations with respect to her claims against Harbor was tolled until she knew or reasonably should have known of the possibility that Harbor was liable for her injury. She argues that, at the time of the rape, she was completely unaware that any security company provided services for the mall and that it is at least a jury question whether she reasonably should have acquired that knowledge by April 6, 2002 — two years before she filed her second amended complaint naming Harbor as a defendant.

Harbor responds that, for two reasons, the trial court properly granted its motion for summary judgment. First, Harbor argues, as a matter of simple statutory construction, ORS 12.110(1) contains no discovery rule, and, under the rules of statutory construction set forth in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993), we cannot read a discovery rule into the statute where none exists. Harbor acknowledges that a long line of cases holds that ORS 12.110(1) is subject to the discovery rule. Harbor nevertheless insists that those cases were decided without properly applying the rules of statutory construction set forth in PGE and are therefore not controlling.

Second, Harbor contends, even if the applicable statute of limitations is generally subject to the discovery rule, the rule does not apply in this case. Harbor argues that, under Gehrke v. CrafCo, Inc., 143 Or.App. 517, 923 P.2d 1333 (1996), rev. den., 324 Or. 560, 931 P.2d 99 (1997), the discovery rule does not apply when the existence and identity of the alleged tortfeasor is "inherently discoverable" from the moment of injury. In this case, Harbor argues, the identity of the security contractor that provided services to the Sunnyside mall was inherently and easily discoverable from the time of the injury.

Thus framed, the parties' arguments on appeal raise two related issues with respect to the discovery rule and its application to this case: (1) whether the applicable statute of limitations, ORS 12.110(1) is ever properly subject to the discovery rule; and (2) if so, whether, as a matter of law, the rule did not toll the statute of limitations under the facts of this case. We consider each of those issues in turn, concluding that the statute of limitations that governs plaintiff's claims in this case is subject to the discovery rule and that, under that rule, the dispositive inquiry — whether her claims were brought within two years of the time that she knew or reasonably should have known of the substantial possibility of Harbor's liability — is a question of fact properly reserved for the jury.

A. Does ORS 12.110(1) include a "discovery" provision?

Whether ORS 12.110(1) includes a discovery provision poses a question of statutory construction, which we resolve by the application of the familiar rules described in PGE. 317 Or. at 610-12, 859 P.2d 1143. We attempt to determine the meaning of the statute that the enacting legislature intended, looking first to the text of the statute in context and, if necessary, to legislative history and other aids to construction. Id. In examining the text of the statute, we consider prior judicial construction and, in particular, any prior Oregon Supreme Court construction, which "becomes part of the statute as if written into it at the time of its enactment." Stephens v. Bohlman, 314 Or. 344, 350 n. 6, 838 P.2d 600 (1992).

ORS 12.010 provides that actions are to be commenced within the time periods described by statute, "after the cause of action shall have accrued." In this case, the parties agree that the controlling statute of limitations is ORS 12.110(1), which provides:

"An action for assault, battery, false imprisonment, or for any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter, shall be commenced within two years; provided, that in an action at law based upon fraud or deceit, the limitation shall be deemed to commence only from the discovery of the fraud or deceit."

The statute plainly provides that, in an action based on fraud or deceit, the two-year limitation period commences at the time of "discovery" of the fraud or deceit. This case, however, is not based on fraud or deceit; rather, it is based on personal injury. The question, then, is whether the statute provides that the two-year limitation in personal injury cases also commences at the time of the discovery of that injury.

On the surface, at least, the statute certainly could be read to foreclose the notion that any discovery rule applies to personal injury cases. The statute consists of two independent clauses. One — pertaining to actions for fraud or deceit — mentions a discovery rule, while the other — pertaining to other actions not based on contract — does not. And it is fairly common for courts to conclude that, in such cases, the "`use of a term in one section...