Duyck v. Tualatin Valley Irr. Dist.

Decision Date13 August 1986
Citation723 P.2d 1043,80 Or.App. 602
PartiesLloyd G. DUYCK and Geraldine Duyck, Respondents--Cross-Appellants, v. TUALATIN VALLEY IRRIGATION DISTRICT, Appellant--Cross-Respondent. 41-164; CA A32381.
CourtOregon Court of Appeals

Alfred T. McGill, Portland, argued the cause for appellant--cross-respondent. With him on the briefs were John D. Colby and McGill & Kapranos, Portland.

Thomas J. Moore, Hillsboro, argued the cause for respondents--cross-appellants. With him on the briefs were Brink, Moore, Brink & Peterson, Hillsboro.

Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.

RICHARDSON, Presiding Judge.

Defendant appeals a judgment for plaintiffs on plaintiffs' negligence claim. Plaintiffs cross-appeal, challenging the partial summary judgment on and dismissal of their breach of contract claim. We reverse on the appeal and affirm on the cross-appeal.

Plaintiffs own several farms, including the Gun Club Farm and the Gregg Farm in Washington County. Defendant is an irrigation district and a public body under the Oregon Tort Claims Act. ORS 30.260. Plaintiffs were members of defendant and paid members' fees and assessments. Defendant was formed to act as the spokesman and information source for farmers in Washington County who sought an irrigation system from the United States Interior Department's Bureau of Reclamation. The Bureau was responsible to plan, engineer and construct a new irrigation system, which included 85 miles of pipeline to deliver water to plaintiffs' and other farms in Washington County. Plaintiffs raise romano beans on the Gun Club Farm and strawberries and bush beans on the Gregg Farm. The growing season for the crops is June through August. Plaintiffs were among more than 300 members of defendant who were to receive water from the new irrigation system.

Defendant had special access to information regarding the progress of construction, and plaintiffs relied on defendant for information about the irrigation system. Early in 1978, defendant informed its members that water would be available for the 1978 growing season. Although defendant knew or should have known by the spring of 1978 that it was likely that no water would be available until late summer, it continued to represent to plaintiffs that water would be available for the 1978 growing season.

Because they believed that they would have water for the growing season, plaintiffs purchased seedlings and prepared fields before June 1 so that they could plant strawberries on the Gregg Farm shortly after that date. They also planted beans on both farms in May, 1978, and they entered into a contract to sell beans to a canner. 1 On May 28, a substantial leak occurred in the irrigation line that was to supply water to plaintiffs' farms. There was evidence that leaks had developed regularly on the lines that had been constructed, particularly on lines serving plaintiffs' farms. Defendant did not warn plaintiffs that the May 28 leak would delay water delivery or that its earlier representations were inaccurate. There was also evidence that, even had the May 28 leak not occurred, water would not have been delivered before late summer.

Plaintiffs recognized that the May 28 leak was going to delay water delivery somewhat. They believed, however, that the delay would be brief, and they planted strawberries on the Gregg Farm during the first few days of June. In the first week of June, they installed a temporary irrigation system to supply water from a neighbor's pond. That source dried up in mid-June. The construction and use of the temporary system ultimately cost plaintiffs $6,000. Because plaintiffs did not receive irrigation water at the two farms until the late summer of 1978, the strawberry and bean crops were damaged.

Plaintiffs filed this action on June 18, 1980, alleging that defendant negligently represented that irrigation water would be available to the farms for the 1978 growing season and that defendant negligently failed to warn plaintiffs that water might not be available. Plaintiffs did not make defendant's failure to deliver water a basis for their negligence claim. However, they alleged that defendant breached its contract to supply water to the farms in time for the 1978 growing season. Defendant denied plaintiffs' allegations and alleged affirmatively that the negligence claim was not filed within the two-year Statute of Limitations. ORS 30.275(8).

The court granted defendant's motion for summary judgment on plaintiffs' contract claim but denied defendant's motions for summary judgment and for a directed verdict on the negligence claim. On appeal, defendant argues that those rulings on the negligence claim were erroneous, because, inter alia, the action was barred as a matter of law by the two-year Statute of Limitations. 2

The crux of the parties' disagreement is over when plaintiffs were harmed by defendant's negligence. 3 The Statute of Limitations runs from the date when plaintiffs knew or should have known that (1) defendant was negligent, (2) plaintiffs were harmed and (3) the harm was the result of defendant's negligence. See, e.g., Peterson v. Mult. Co. Sch. Dist. No. 1, 64 Or.App. 81, 668 P.2d 385, rev. den. 295 Or. 773, 670 P.2d 1036 (1983). The question here is what harm triggered the running of the statute. Plaintiffs take the view that the relevant harm was the ultimate injury to their crops, which occurred less than two years before they brought this action. Defendant maintains that, at the latest, plaintiffs' arrangement for the alternative irrigation system in early June, 1978, more than two years before the action was brought, initiated the running of the statute.

We are constrained to agree with defendant. The controlling authority, cited by neither party, is Duncan v. Augter, 62 Or.App. 250, 661 P.2d 83, rev. den. 295 Or. 122, 666 P.2d 1344 (1983). We held there that the running of the two-year limitation period of ORS 12.110(4) did not remain tolled until the plaintiff learned in 1975 of serious consequences of the defendant physician's negligence in performing surgery in 1968, because the plaintiff knew or should have known by 1971 that the negligence had produced some harm, albeit of a lesser magnitude than the harm she discovered in 1975. We explained:

"To start the running of the statute of limitations, a plaintiff need not have knowledge of facts that, if proved, would convince every reasonable factfinder that plaintiff should win. It is sufficient that a plaintiff have knowledge, actual or implied, of facts that, if proved, will at least raise an issue of fact on each element of the claim. Therefore a plaintiff has discovered a cause of action and ORS 12.110(4) begins to run when he knows, or should know through diligent inquiry, facts from which a reasonable factfinder could conclude that the plaintiff's injury was caused by an act of the defendant that was somehow negligent.

" * * *

" * * * The general policy behind the 'discovery rule' is to delay the running of the statute of limitations until an injured person knows or should know that she has a cause of action so that the law does not strip her of a remedy before she could know she has been wronged. Berry v. Branner, [245 Or. 307, 312, 421 P.2d 996 (1966) ]. Here, plaintiff should have known in 1971 that she had a cause of action; she should have discovered facts from which a reasonable person could find that her abdominal pain was caused by an infection, that the infection was a complication from her 1968 surgery, that the complication resulted from defendant's act of removing the appendix through the gall bladder incision and that defendant's decision to remove the appendix through that incision or his decision to operate at all was negligent. Even if plaintiff could not have discovered all of the underlying medical causes of infection in 1971, including the distal end of the appendix, and even if she could not have discovered that cause before trial, she could have brought an action based on the facts outlined above, and a reasonable jury could have returned a verdict in her favor." 62 Or.App. at 255, 258, 661 P.2d 83. (Emphasis in original.)

In Peterson v. Mult. Co. Sch. Dist. No. 1, supra, we distinguished Duncan. Although the plaintiff in Peterson was aware more than two years before bringing his action of an activity of the defendant which arguably had some relationship to the events, that activity was entirely separate from the one to which the plaintiff ascribed his injury, and the first activity almost certainly could not have been an independent basis for a successful action. The Peterson distinctions cannot be extended to plaintiffs' negligence claim here. This claim is based on a single course of conduct (defendant's possession and dispensation or nondispensation of information about water availability), and plaintiffs were injured by and had a claim for defendant's negligence when they incurred costs to develop the alternative irrigation system. It is arguable that the injury was attributable more to the unavailability and nondelivery of water than to defendant's representations about its availability. (Indeed, the same is true of the subsequent crop damage.) However, it cannot be said that the representations played no causal role in producing the first injury. Plaintiffs' expectation that water would soon be available was induced by defendant's representations and played a prominent role in their decision to proceed with the planting. That decision in turn necessitated that they arrange for the temporary irrigation system. The harm which plaintiffs suffered in early June therefore resulted, at least in part, from the specific negligent conduct that plaintiffs alleged against defendant.

The dissent takes the view that the misrepresentation about the availability of water and the failure to warn that it would not be available should be treated...

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3 cases
  • Duyck v. Tualatin Valley Irr. Dist.
    • United States
    • Oregon Supreme Court
    • 22 Septiembre 1987
    ...of Appeals held that the plaintiffs' action was barred by the statute of limitations and reversed. Duyck v. Tualatin Valley Irrigation District, 80 Or.App. 602, 723 P.2d 1043 (1986). We affirm the Court of We state the facts in the light most favorable to the plaintiffs. The plaintiffs rais......
  • Frame v. Boatmen's Bank of Concord Village
    • United States
    • Missouri Court of Appeals
    • 11 Febrero 1992
    ...(1988); Onita Pacific Corp. v. Trustees of Bronson, 104 Or.App. 696, 803 P.2d 756, 762-65 (1990); Duyck v. Tualatin Valley Irrigation District, 80 Or.App. 602, 610, 723 P.2d 1043, 1048 (1986). ...
  • Duyck v. Tualatin Valley Irrigation District
    • United States
    • Oregon Supreme Court
    • 20 Noviembre 1986
    ...728 P.2d 531 302 Or. 299 Duyck v. Tualatin Valley Irrigation District NOS. A32381, S33201 Supreme Court of Oregon NOV 20, 1986 80 Or.App. 602, 723 P.2d 1043 ...

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