Gehrke v. CrafCo, Inc.

• Decision Date: 18 September 1996
• Citation: 923 P.2d 1333,143 Or.App. 517
• Parties: Virginia A. GEHRKE, Appellant, v. CRAFCO, INC., dba Ben Franklin Crafts; PJDJS, Inc., dba The Ben Franklin Store, Respondents. 94C12231; CA A89072.
• Court: Oregon Court of Appeals

Page 1333

923 P.2d 1333

143 Or.App. 517

Virginia A. GEHRKE, Appellant, v. CRAFCO, INC., dba Ben Franklin Crafts; PJDJS, Inc., dba The Ben Franklin Store, Respondents.

94C12231; CA A89072.

Court of Appeals of Oregon.

Argued and Submitted June 14, 1996.

Decided Sept. 18, 1996.

Lee Aronson, Portland, argued the cause for appellant. With him on the briefs was Schulte, Anderson, Downes, Carter & Aronson, P.C.

R. Daniel Lindahl, Portland, argued the cause for respondents. With him on the brief were David A. Ernst and Bullivant, Houser, Bailey, Pendergrass & Hoffman.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

EDMONDS, Judge.

Plaintiff appeals from a summary judgment in favor of defendants, CrafCo, Inc. (CrafCo) and PJDJS, Inc. (PJDJS). ORCP 47 C. We affirm in part and reverse in part.

In July 1992, plaintiff was allegedly injured when she tripped over a metal extension of a crafts display shelf at a crafts store in Woodburn. In July 1994, plaintiff's counsel prepared to file a complaint against the store. At the time of plaintiff's injury, the name on the store where plaintiff had fallen was "Ben Franklin." Before filing the complaint, plaintiff's counsel collected newspaper advertising and Yellow Page Ads identifying the store as "Ben Franklin Crafts." Similarly, the store provided its customers with bags indicating that the merchandise in them had been purchased from "Ben Franklin Crafts."

Based on that information, plaintiff's attorney contacted the Secretary of State and inquired as to the name and address of the owner of and the registered agent for Ben Franklin Crafts. The Secretary of State's records identified the owner as CrafCo doing business under the name of Ben Franklin Crafts and the registered agent as Paul Johnson. According to the records, the address for both CrafCo and Johnson was the same as the address of the store in Woodburn where plaintiff had fallen.

Plaintiff's complaint was filed just before the statute of limitations was to expire under ORS 12.110(1) and named CrafCo as the defendant. ¹ It alleged that the premises where plaintiff had fallen were maintained negligently. Plaintiff served the complaint on CrafCo after the limitations period expired but within the 60 days allowed for service under ORS 12.020(2). Before answering the complaint, CrafCo filed a motion for summary judgment. In support of its motion, Johnson, as president and registered agent of CrafCo, filed an affidavit in which he asserted that "CrafCo, Inc. has never owned, operated or maintained the crafts store located * * * in Woodburn, Oregon[.]"

Thereafter, plaintiff deposed Johnson and learned for the first time that the Ben Franklin Store in Woodburn was actually owned and operated by PJDJS doing business as "The Ben Franklin Store" and that CrafCo operated a store named Ben Franklin Crafts in Springfield. Plaintiff also learned that Johnson was the president and registered agent of PJDJS as well as of CrafCo. Also, Johnson testified at deposition that no CrafCo products were sold at the Woodburn store.

Based on that information, plaintiff filed an amended complaint that reiterated plaintiff's claim against CrafCo and added a similar claim against PJDJS. The amended complaint was filed in January 1995, more than two years after plaintiff's injury. In response to plaintiff's amended complaint, CrafCo renewed its motion for summary judgment. PJDJS also sought summary judgment, arguing that the complaint against it was filed beyond the statute of limitations. The trial court granted summary judgment to both CrafCo and PJDJS, and plaintiff appeals.

Summary judgment may be granted under ORCP 47 if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. We review the record in the manner most favorable to the adverse party to determine whether an objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment. ORCP 47 C; Jones v. General Motors Corp., 139 Or.App. 244, 249, 911 P.2d 1243, rev. allowed 323 Or. 483, 918 P.2d 847 (1996).

In its first assignment of error, plaintiff argues that the trial court erred in granting summary judgment to CrafCo because an issue of fact exists as to whether CrafCo was responsible for the condition of the premises where plaintiff fell. CrafCo argues that plaintiff has produced no evidence tending to prove that CrafCo was a "possessor" of the store in Woodburn, and, therefore, that it cannot be held liable. It asserts that the only evidence is that it did not own or lease any part of the building in Woodburn and that it had no responsibility for its maintenance. Plaintiff counters that the evidence in the summary judgment record would permit a jury to find that CrafCo was a possessor of the Woodburn premises. In support of its argument, plaintiff points to evidence that CrafCo was doing business as Ben Franklin Crafts, that its registered office and corporate address were the same as that of the Woodburn store, and that Johnson maintained an office at the store and received CrafCo mail at that location. Moreover, the Woodburn store identified itself in advertising, phone listings and packaging as Ben Franklin Crafts, the registered name of CrafCo. Plaintiff concludes that an inference arises from all the evidence that CrafCo is a possessor of the Woodburn store and invited plaintiff to shop there.

Both CrafCo and plaintiff rely on Restatement (Second) Torts § 328E (1965) in support of their respective positions. That section provides:

"A possessor of land is

"(a) a person who is in occupation of the land with intent to control it or

"(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or

"(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b)."

Although we are not aware of any Oregon case that has expressly adopted section 328E, we use its provisions in this case because the parties agree that it defines the applicable common law standard. ² We conclude that plaintiff has demonstrated that there is an issue of fact as to whether CrafCo was the possessor of the Woodburn store. A trier of fact would not be required to believe Johnson's testimony that no CrafCo products were sold at the Woodburn store in light of the evidence that the store held itself out to the public as a store selling products under the name of Ben Franklin Crafts, the registered name of CrafCo. Similarly, a trier of fact could reasonably infer from the same evidence that CrafCo occupied the store and was in control or "possession" of the premises. We hold that the trial court erred in granting summary judgment to defendant CrafCo.

In its second assignment of error, plaintiff argues that the trial court erred in granting summary judgment to PJDJS because there are genuine issues of fact as to whether plaintiff in the exercise of reasonable diligence should have discovered the identity of PJDJS. Both parties agree that the statute of limitations in a negligence action does not begin to run until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the identity of the tortfeasor. Duyck v. Tualatin Valley Irrigation Dist., 304 Or. 151, 742 P.2d 1176 (1987). However, defendant argues that the discovery rule does not apply to this case because, at the time of her fall, plaintiff knew that the owner/operator of the store in which she fell was causally responsible for her injury. Plaintiff contends that it was not unreasonable under the circumstances for her to believe that CrafCo was the possessor of the store and that she exercised reasonable diligence in attempting to discover the correct identity of the party responsible for her injuries.

We conclude that the discovery rule does not apply to the facts of this case. The Supreme Court first adopted the discovery rule in Berry v. Branner, 245 Or. 307, 315-16, 421 P.2d 996 (1966). The court held that an action did not accrue until the "plaintiff obtained knowledge, or reasonably should have obtained knowledge of the tort committed upon her person by defendant." Id. at 316, 421 P.2d 996. In Duncan v. Augter, 62 Or.App. 250, 258, 661 P.2d 83, rev. den. 295 Or. 122, 666 P.2d 1344 (1983), we explained:

"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."

In this case, plaintiff knew or should have known that she had been wronged by the possessor of the store at the time of the fall, even though she did not know whom the possessor was.

In Workman v. Rajneesh Foundation International, 84 Or.App. 226, 733 P.2d 908, rev. den. 303 Or. 700, 740 P.2d 1213 (1987), we concluded that the discovery rule did not apply to two actions for defamatory statements made in a public meeting, in light of the policies underlying the rule. The plaintiffs were not at the meeting and heard about the defamation afterwards. Their actions were brought one year and one day after the making of the statements. ³ We reasoned:

"Unless the language or history of the statute dictates otherwise, the threshold question should be whether the wrong and its probable consequences, by their nature, are inherently discoverable upon the occurrence. If the answer is yes, the policy underlying limitations on actions should prevail over the countervailing policy promoted by the discovery rule, even if the plaintiff in a particular case happened not to have discovered the wrong at the time when it occurred." 84 Or.App. at 230, 733 P.2d 908. (Emphasis in original.)

The issue in Workman was whether the discovery rule is categorically...