Johnson v. Star Machinery Co.

Decision Date19 December 1974
Citation99 Adv.Sh. 3065,530 P.2d 53,270 Or. 694
PartiesArthur C. JOHNSON, Personal Representative of the Estate of Floyd D. Hill, Deceased, Appellant, v. STAR MACHINERY COMPANY, a Washington Corporation, Respondent. . *
CourtOregon Supreme Court

Donald A. Bick, Eugene, argued the cause for appellant. On the briefs were Charles M. Gudger, III, and Bick, Monte & Joseph, Eugene.

Paul D. Clayton, Eugene, argued the cause for respondent. With him on the brief were Luvaas, Cobb, Richards & Fraser, Eugene.

HOLMAN, Justice.

This is an appeal from a judgment for defendant in a wrongful death action brought in products liability and negligence by plaintiff as the representative of decedent's estate. A demurrer to both counts was sustained upon the ground that the action had not been commenced within the time permitted by ORS 12.115(1).

Plaintiff's decedent was killed in the course of his employment. A plywood sander manufactured by defendant ejected a piece of plywood which hit decedent. The sander had been purchased from defendant by decedent's employer in 1959. The fatal accident occurred on February 19, 1970. This action was commenced within three years thereafter on February 16, 1973.

ORS 12.115(1) provides as follows:

'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.'

The question in this case is whether this statute is applicable to the present situation. If it is, the trial court was correct in sustaining the demurrer because the 'act or omission complained of' was either the negligent manufacture of the article in the one count or the sale of the defective article by defendant to the employer of plaintiff's decedent in the other, and both occurred more than 10 years prior to the commencement of plaintiff's action. Plaintiff's position is that the statute applies to neither count.

Plaintiff contends that ORS 12.115(1) has no application to his negligence count because the statute providing for an action for wrongful death, ORS 30.020, 1 permits such an action only had decedent been able to assert a claim for his injuries had he lived; had decedent lived, the applicable period of limitation, ORS 12.110(1), 2 would not have commenced to run until the cause of action accrued as provided by ORS 12.010; 3 plaintiff's decedent's cause of action would not have accrued until he received his injuries and, therefore, plaintiff had three years from the date the decedent was injured to bring his action as provided by ORS 30.020.

In the case of Josephs v. Burns & Bear, 260 Or. 493, 491 P.2d 203 (1971), we held that ORS 12.115(1) was applicable to an action against architects and engineers for negligent supervision and construction of a building, the roof of which collapsed some 17 years later causing the damage complained of. We there held that the statute was intended by the legislature to be one of ultimate repose which could abolish a cause of action before it accrued. We determined from the legislative history of the statute that ORS 12.115(1) was enacted in response to the opinion of this court in Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966). In Berry, a medical malpractice case involving a foreign object left in the body cavity of a surgery patient, we held that the cause of action did not 'accrue' and, therefore, the statute of limitations did not begin to run until such time as the object was discovered, or, in the exercise of reasonable care, should have been discovered by the patient. This was a reversal of previous case law which held that in such situations the cause of action accrued and the statute commenced to run at the time of the negligent act or omission. The legislative response to Berry was the enactment of ORS 12.110(4), which limited the bringing of a malpractice action to a period of two years from the time the injury was discovered or should have been discovered, and, in any event, to within a seven-year period 4 from the time of the treatment, omission, or operation upon which the action was based.

At the same time, the legislature recognized that the rationale of Berry might be applicable to other situations in which negligence went understandably undetected until after the pertinent statute of limitations expired. As a result, as part of the same legislative act, it enacted ORS 12.115(1), which established a 10-year statute of ultimate repose for such cases. We said in Josephs v. Burns & Bear, supra, 260 Or. at 498--499, 491 P.2d at 205--206:

'In Berry, we held that the cause of action did not 'accrue' until the patient knew or, in the exercise of reasonable care, should have known of the injury inflicted upon her. It is clear that the legislative committees which were dealing with the problem of long delayed tort litigation brought about by lack of discovery considered the possibility of defining the time when a cause of action 'accrued' as a response to the Berry decision. It is our belief that the legislature chose as preferable to the amendment the enactment in one bill of ORS 12.110(4) relating specifically to medical malpractice claims and of ORS 12.115(1) relating generally to other tort claims. ORS 12.115(1) left the discovery rationale of Berry intact, should this court subsequently chose (sic) to apply the Berry rationale to torts other than medical malpractice, but prescribed an ultimate cut-off date in any event for the commencement of tort claims litigation.'

Plaintiff attempts to distinguish Josephs from the present situation by claiming that in Josephs a cause of action accrued at the time the building was defectively built, despite the fact that the damage claimed was caused by the collapse of the roof 17 years later, whereas, in the present case, no cause of action accrued until decedent was fatally injured, which occurrence was less than three years prior to the commencement of this action. In other words, plaintiff is contending that in Josephs, as in Berry, preexisting but undetected damage existed from the time of defendant's negligence and a cause of action accrued from that time, while in the present case all damage occurred at the time plaintiff's decedent was fatally injured, and thus no cause of action accrued until then. Whether such a distinction is a relevant one depends on the rationale behind the enactment of a statute of ultimate repose. In general, there are usually two reasons which are advanced as justification for the imposition of such statutes. The first concerns the lack of reliability and availability of evidence after a lapse of long periods of time. This rationale primarily protects defendants who, without prior notice of pending claims, would necessarily find it extremely difficult, if not impossible, to mount a defense because of the nonpreservation of evidence and the disappearance or death of witnesses after a long lapse of time. However, the reliability of plaintiff's evidence relating to long-past occurrences, transactions or conditions is also a relevant feature.

The second rationale concerns the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability; e.g. Pearson v. Northeast Airlines, Inc., 309 F.2d 553, 559 (2d Cir. 1962) (dictum), cert. denied 372 U.S. 912, 83 S.Ct. 726, 9 L.Ed.2d 720 (1963).

These rationales are obviously applicable without regard to whether or not undetected damage had occurred at the time of the original negligence. The existence of such damage at the time of the original negligence is irrelevant to the application of the statute and its underlying policies, and we so held in Josephs. Contrary to plaintiff's analysis of when the damage first occurred in Josephs, the plaintiff there made the argument which the plaintiff makes here, I.e., that the damage did not occur until the subsequent accident, and, therefore, the cause of action did not accrue and the statute did not commence to run until that time. We stated in Josephs:

'Plaintiff points out that ORS 12.010 specifies that the limitation statutes in chapter 12 shall only commence to run from the time the cause of action accrues and that the present cause of action could not come into existence before the damage was inflicted. We can answer this argument only by saying that in our opinion ORS 12.115(1) was intended to apply as a ten-year limitation from the date of the act or omission regardless of when the damage resulted or when the act or omission was discovered.' Josephs v. Burns & Bear, Supra, 260 Or. at 500, 491 P.2d at 206.

Plaintiff also contends that such a result is in violation of the following language of the Oregon Constitution, Art. I, § 10:

'* * * (E)very man shall have remedy by due course of law for injury done him in his person, property or reputation.'

A cause of action may be constitutionally abolished or limited so long as it is not done arbitrarily and there is a legitimate, countervailing public interest or policy which arguably is served by such action. There are legitimate public policies which are served by the enactment of a statute of ultimate repose, which policies have heretofore been identified.

Plaintiff next contends that ORS 12.115(1) has no application to his products liability count because the statute by its literal terms is applicable only to 'negligent injury' and negligence is foreign and unnecessary to strict liability, which is the basis of a products liability case. In Josephs we used the term 'tort claims' rather than 'actions for negligent injury,' which were the words of the statute. The broader language was unnecessary to the disposition of that case as negligence was all that was involved. We now have a situation where it is necessary to determine whether it was the intention of the...

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