Josephs v. Burns

Decision Date01 December 1971
Citation491 P.2d 203,260 Or. 493
PartiesJoseph R. JOSEPHS and Ann R. Josephs, Appellants, v. Tom BURNS, and Tom Burns & Co., Inc., Defendants, Wyman K. Bear et al., Respondents. JOSEPHS, INC., an Oregon corporation, Appellant, v. Tom BURNS, and Tom Burns & Co., Inc., Defendants, Wyman K. Bear et al., Respondents.
CourtOregon Supreme Court

Edwin J. Peterson and E. Richard Bodyfelt, Portland, argued the cause for appellants. With them on the briefs were Arden E. Shenker, and Tooze, Powers, Kerr, Tooze & Peterson, Portland.

Ridgway K. Foley, Jr., Portland, argued the cause for respondents. With him on the brief were Kenneth E. Roberts, and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.


HOLMAN, Justice.

Plaintiffs, the owners, lessors and lessees of certain buildings, bring these consolidated actions against defendants, architects and engineers, for damages to real and personal property, as well as for the resulting loss of income. The actions are based on the collapse of a roof which allegedly resulted from defendants' negligence in supervision and construction.

The trial court entered judgments for defendants after sustaining demurrers to plaintiffs' complaints upon the basis that the statute of limitations imposed by ORS 12.115(1) had run prior to the commencement of the actions. The statute is as follows:

'(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.'

The services were rendered by defendants in 1951. The roof collapsed on January 1, 1969, approximately seventeen years later. The actions were commenced within two years from the time the roof collapsed. Plaintiffs do not allege that they contracted with defendants for the construction of the roof or that they owned any interest in the property at the time of the construction. They did have the designated interests in the property at the time of the collapse of the roof.

The plaintiffs contend that the limitation prescribed in the statute did not begin to run until the roof collapsed. They first argue that the words 'act or omission complained of' relate to the falling of the roof and that the action was thereafter brought within the statutory period. However, it seems obvious to us that such language refers to the acts of commission or to omissions which are the basis for plaintiffs' claims of defendants' negligence and that the language does not refer to the occurrence of the resulting damage.

Plaintiffs also argue that a cause of action did not come into existence until they suffered some damage, and, therefore, the statute could not have been intended to commence to run during a time when there was no cause of action upon which to sue. While defendants contend otherwise, we will assume, without deciding, that plaintiffs had no cause of action until the roof collapsed. When considered in the milieu of this court's opinions and the statute's legislative history, the apparent meaning of ORS 12.115(1) is confirmed, and it becomes clear that the inability of the damaged party to bring an action was not intended to prevent the running of the statutory period.

This court held in Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966) that the statute of limitations in a medical malpractice case, involving a foreign object left in the body cavity of a surgery patient, did not commence to run until such time as the object was discovered, or, in the exercise of reasonable care, should have been discovered by the patient. The legislature reacted to this decision by enacting Oregon Laws 1967, Chapter 406, Section 1 (ORS 12.110(4)) 1, which limited the bringing of a malpractice action to a period within two years from the time the injury was discovered or should have been discovered, and to within an over-all seven-year period from the time of the treatment, omission or operation upon which the action was based.

In addition, it is apparent from the legislative history 2 that the members of the legislature recognized that the rationale of Berry might be equally applicable to a host of other situations in which a defendant's negligence went understandably undetected until after the pertinent statutes of limitation had expired. We believe that this recognition resulted in the inclusion of ORS 12.115(1) in the same 1967 legislative enactment 3 which contained the medical malpractice limitation, and that it was thus intended to provide an overall maximum upper limit on the time within which a tort action could be brought, regardless of the date of discovery or of any other circumstances.

Plaintiffs seek to show that the contrary was intended by virtue of the fact that an amendment to ORS 12.010 4 was rejected by the Committee on the Judiciary of the House of Representatives. The proposed amendment read as follows:

'The cause of action shall be deemed to have accrued when the act or omission complained of occurred unless otherwise directed by law.'

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 'acrued' 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 sebsequently choose 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.

We realize that we were considering in Berry whether the applicable period of limitation commenced to run from the time the negligence should reasonably have been discovered and that we are considering now whether it should commence to run from the infliction of the damage (in most instances similar to the present case, these two situations would coincide in time). It would be impossible, however, to bring an action in either instance, or so we are assuming for the purpose of this case. Therefore, the simultaneous enactment of ORS 12.110(4), which contained an over-all limit for malpractice cases, and the statute now under consideration would indicate that the time prescribed in the latter statute was intended as an over-all limit regardless of circumstances. It is difficult to attach any other intention to ORS 12.115(1) in view of the fact that there is a two-year statute (ORS 12.110(1)) which is otherwise applicable unless it is concluded that the general tort limitation was intended to be increased to ten years, and no one is so contending.

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.

Plaintiffs also contend that our construction of ORS 12.115(1) is not tenable because Oregon Laws 1971, ch. 664, enacted a specific statute of limitations applicable to contractors, architects and engineers which provided that an action similar to the one in question must be brought within two years from the time of the infliction of the damage but that, in any event, it must be brought within ten years from the completion of the work claimed to have been defective. Plaintiffs argue that the legislature would not have done a useless act and that the passage of the bill would have been useless if our construction of ORS 12.115(1) is correct. We are not impressed with such a contention. It is general knowledge that enactments such as we are dealing with here do not just spontaneously occur but are proposed to the legislature by affected groups. It would not have been logical for the groups affected by the 1971 enactment to stand by and take a chance on the construction which this court would give ORS 12.115(1) when the matter could be foreclosed for the future by legislative enactment.

Plaintiffs also contend that ORS 12.115(1) is tolled during the time when plaintiffs could not have reasonably discovered the defects complained of. We believe that this contention is foreclosed by the obvious legislative response to Berry by the enactment of ORS 12.115(1) and 12.110(4), described previously. Also, the words, In no event shall any action * * * be commenced more than 10 years * * *' (emphasis ours), used in ORS 12.115(1), indicate plainly that the limitation was to be effective regardless of circumstances.

Plaintiffs next contend that defendants had a duty to warn of the defects and to take remedial action to fix them, which duty continued up until the time the roof collapsed. They allege in their complaints that defendants failed 1) to warn them of the hazards and 2) to repair or strengthen the faulty roof supports. They argue that such negligent failure was in existence up to the time the roof collapsed and that, therefore, the action was brought within the statutory period. Plaintiffs rely on Comstock v. General Motors...

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