Little v. Wimmer

• Decision Date: 08 July 1987
• Parties: Denice LITTLE, Petitioner on review, v. Luann WIMMER; Chrysler Corporation, a corporation, Mitsubishi Motor Sales of America, Inc., a California corporation; Mitsubishi Heavy Industries, Ltd., a foreign corporation; Mitsubishi Motors Corporation, a Japanese corporation; Gladstone Lincoln-Mercury, Inc., a Delaware corporation; Seattle First National Bank, a Washington banking corporation; Clackamas County, a body politic of the State of Oregon, by and through Commissioner Robert D. Schumaker, Commissioner Ralph Groener, and Commissioner Dale Harlan, Constituting the Board of County Commissioners, Defendants, and The State of Oregon by and through the Department of Transportation and State Highway Division, Respondent on review. Warren D. GROVES, Petitioner on review, v. Luann WIMMER; Chrysler Corporation, Inc., a corporation, Mitsubishi Motor Sales of America, Inc., a California corporation; Mitsubishi International Corporation, a New York corporation; Mitsubishi Motors Corporation, a Japanese corporation; Gladstone Lincoln-Mercury, Inc., a Delaware corporation; Seattle First National Bank, a Washington banking corporation; Clackamas County, a body politic of the State of Oregon, by and through Commissioner Robert D. Schumaker, Commissioner Ralph Groener, and Commissioner Dale Harlan, Constituting the Board of County Commissioners, Defendants, and State of Oregon by and through the Department of Transportation and the State Highway Division, Respondent on review. CC 84-11-103/CA A38322; CC 84-07-302/CA A38323; SC S33580.
• Court: Oregon Supreme Court

Page 564

739 P.2d 564

303 Or. 580

Denice LITTLE, Petitioner on review, v. Luann WIMMER; Chrysler Corporation, a corporation,

Mitsubishi Motor Sales of America, Inc., a California

corporation; Mitsubishi Heavy Industries, Ltd., a foreign

corporation; Mitsubishi Motors Corporation, a Japanese

corporation; Gladstone Lincoln-Mercury, Inc., a Delaware

corporation; Seattle First National Bank, a Washington

banking corporation; Clackamas County, a body politic of

the State of Oregon, by and through Commissioner Robert D.

Schumaker, Commissioner Ralph Groener, and Commissioner Dale

Harlan, Constituting the Board of County Commissioners, Defendants,

and

The State of Oregon by and through the Department of

Transportation and State Highway Division,

Respondent on review.

Warren D. GROVES, Petitioner on review, v. Luann WIMMER; Chrysler Corporation, Inc., a corporation,

Mitsubishi Motor Sales of America, Inc., a California

corporation; Mitsubishi International Corporation, a New

York corporation; Mitsubishi Motors Corporation, a Japanese

corporation; Gladstone Lincoln-Mercury, Inc., a Delaware

corporation; Seattle First National Bank, a Washington

banking corporation; Clackamas County, a body politic of

the State of Oregon, by and through Commissioner Robert D.

Schumaker, Commissioner Ralph Groener, and Commissioner Dale

Harlan, Constituting the Board of County Commissioners, Defendants,

and

State of Oregon by and through the Department of

Transportation and the State Highway Division,

Respondent on review.

CC 84-11-103/CA A38322; CC 84-07-302/CA A38323; SC S33580.

Supreme Court of Oregon In Banc.

Argued and Submitted May 12, 1987.

July 8, 1987.

Thomas J. Flaherty and Stuart O. Kendall, Lake Oswego, argued the cause for petitioners on review Denice Little and Warren D. Groves, respectively. On the petition for review was Craig A. Lytle, Lake Oswego.

John A. Reuling, Jr., Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the response to the petition were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

JONES, Justice.

Plaintiffs, Little and Groves, seek damages for personal injuries suffered in a two-car accident. Plaintiffs allege that the two vehicles collided because of defendant State of Oregon's hazardous and negligent design, construction and maintenance of the highway. The state moved for summary judgment based upon the statute of limitations, ORS 30.275(8), ¹ and the statutes of ultimate repose, ORS 12.115 ² and 12.135. ³ The circuit court allowed the state's motion for summary judgment. The Court of Appeals affirmed the circuit court without opinion. Little v. Wimmer, 82 Or.App. 748, 728 P.2d 977 (1986). We allowed review to determine the application of the limitation periods to this negligence claim. We reverse the Court of Appeals and the circuit court and remand the case for trial.

FACTS

We recite facts from the pleadings and affidavits presented to the circuit court at the summary judgment hearing. Plaintiffs' injuries occurred on March 3, 1983. Groves, as driver, and Little, as passenger, were traveling northbound at the same time that defendant Wimmer entered Highway 99E southbound from New Era Road. Plaintiffs allege that the two vehicles collided because defendant had designed, constructed and maintained the highway and intersection in such a hazardous and negligent fashion that traffic traveling north on Highway 99E could not adequately see traffic entering the highway from South New Era Road and that traffic entering the highway southbound from South New Era Road had to travel for a dangerously long distance in the northbound lanes of Highway 99E.

ANALYSIS

A. Statutes of Limitation/Repose

Plaintiffs alleged negligence in the manner in which defendant "designed, constructed and maintained" the intersection. In order to preclude plaintiffs' first two charges--faulty design and construction of the road--defendant relies on the statutes of ultimate repose. The trial court correctly held that ORS 12.115(1) and 12.135, set forth ante at n.n. 2 & 3, bar plaintiffs' action for defects existing as a result of the design or at the time of the original construction, as the intersection was designed and constructed more than 10 years prior to plaintiffs' cause of action. ORS 12.135(1) limits liability for negligent design and construction to a 10-year period "from substantial completion of such construction * * * of the improvement to real property."

But plaintiffs' action is not limited to a claim of negligent design or construction. Plaintiffs contend that defendant's ongoing maintenance of the roads and intersections was negligent as well. Specifically, plaintiffs alleged:

"That said Defendants designed, constructed, and maintained the highway and roadway grade, control signs and signals in such a hazardous and negligent condition that traffic traveling north on State Highway 99E could not adequately see traffic entering the highway from South New Era Road and that traffic entering Highway 99E from South New Era Road had to travel for a dangerously long distance in the oncoming traffic lane. Defendants failed to properly direct traffic by signs or traffic control signals so that a motorist on Highway 99E approaching South New Era Road could not pass without danger from traffic entering from South New Era Road. Defendants failed to warn Plaintiff of this dangerous condition. * * * "

At the summary judgment hearing, defendant conceded that it was responsible for the maintenance of the highway and intersection and that the intersection did not meet current safety standards. Plaintiffs claimed that defendant had reason to know of the hazards of the intersection by the high number of accidents occurring at or near this intersection. With regard to this claim, the state argues that it had "no duty" to rectify the situation.

In Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 17, 734 P.2d 1326 (1987), we identified the tautology behind claims of duty and no duty when they are made without reference to a particular standard of conduct that "creates, defines, or limits the defendant's duty." Without such a referent, which may be found in a status, a relationship, a statute or an ordinance, the invocation is no more than a conclusion the party wishes a court to reach about the foreseeability of the risk of harm that ensued. Id. at 16-17, 734 P.2d 1326; Cain v. Rijken, 300 Or. 706, 715, 717 P.2d 140 (1986).

Defendant points to no status, relationship or law that would limit its responsibility to maintain the roads. Instead, defendant attempts to cast the claimed negligence as stemming from the original intersection design. It asserts that the key issue is "whether the state's failure to correct its alleged negligence of more than ten years ago permits plaintiffs to avoid the statute of ultimate repose," relying on this court's decision in Josephs v. Burns & Bear, 260 Or. 493, 491 P.2d 203 (1971), as controlling on this question.

In Josephs, plaintiff owners, lessors and lessees brought a negligence action against the builder of a roof which collapsed more than 10 years after its construction. There, plaintiffs argued that the builder had a continuing duty to warn of the dangerousness of the roof. This court disagreed, stating:

" * * * If the statute was intended to be one of ultimate repose, regardless of circumstances, it would follow that the legislature did not intend the statute to be circumvented by allegations that subsequent to the fundamental wrong, a continuing duty existed to rectify the results of such wrong. By this statement we do not intend to prejudge a situation in which an active, continuous relationship between plaintiff and defendant exists from the time of the negligent acts to a time within the period during which an action is permitted." Id. at 501-02, 491 P.2d 203.

Defendant argues that plaintiffs here do not assert an active, continuous relationship between themselves and the state as required by Josephs and that it therefore had no duty to remedy the intersection's original defects beyond the first 10 years following its construction.

Defendant's arguments miss the mark because the complaint includes, as an independent premise, allegations of defendant's negligence in failing to remedy a dangerous condition of the highway and failure to warn motorists of the existing dangerous condition of the highway. Plaintiffs do not base their claims solely on defendant's failure to correct its original alleged negligence of more than 10 years ago.

We have recently addressed such a claim against a public body, a county, sued for failing to cut the grass at an intersection so as to ensure visibility for drivers. Donaca v. Curry Co., 303 Or. 30, 734 P.2d 1339 (1987). Here, as in Donaca, there is no dispute that the state is responsible for maintaining the intersection. The powers and duties of the Oregon Transportation Commission and the Department of Transportation include continuous "supervision and control" of maintenance and improvement of the state's highways, ORS 366.205(2), 366.290(1), and the state concedes as much. ⁴ The question remains--and it is one for the fact-finders to decide--

"whether defendant's conduct caused a foreseeable kind of harm to an interest protected against that kind of negligent invasion, and whether the conduct creating the risk of that kind of harm was unreasonable under the circumstances. The existence and magnitude of the risk at the intersection in question bear on the foreseeability of the harm; the feasibility and cost of avoiding the risk bear on the reasonableness of defendant's conduct. * * * " Donaca, 303 Or. at 38, 734 P.2d 1339.

Plaintiffs' evidence that a number of accidents have occurred at or near the intersection creates factual questions about the foreseeability of risk and the appropriateness of defendant's conduct in failing to remedy the situation or in failing to warn...