Mann v. Department of Transp.

• Decision Date: 18 November 1992
• Citation: 114 Or.App. 562,836 P.2d 1353
• Parties: James C. MANN, as the Personal Representative of the Estate of Linda Ruth Mann, Deceased, and James C. Mann, Guardian Ad Litem for Brian Joseph Mann, Appellants, v. DEPARTMENT OF TRANSPORTATION, an Agency of the State of Oregon, Respondent. 89-2161; CA A67598.
• Court: Oregon Court of Appeals

Page 1353

836 P.2d 1353

114 Or.App. 562

James C. MANN, as the Personal Representative of the Estate

of Linda Ruth Mann, Deceased, and James C. Mann, Guardian Ad Litem for Brian Joseph Mann, Appellants, v. DEPARTMENT OF TRANSPORTATION, an Agency of the State of

Oregon, Respondent.

89-2161; CA A67598.

Court of Appeals of Oregon.

Argued and Submitted Jan. 22, 1992.

Decided Aug. 12, 1992.

Reconsideration Denied Nov. 18, 1992.

Robert J. Miller, Sr., Beaverton, argued the cause for appellants. With him on the brief were Brien F. Hildebrand and Moomaw, Miller & Reel, Beaverton.

Kaye E. Sunderland, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief was Virginia L. Linder, Sol. Gen., Salem.

Before BUTTLER, P.J., and ROSSMAN and DE MUNIZ, JJ.

ROSSMAN, Judge.

This is a wrongful death and personal injury action brought under the Oregon Tort Claims Act (OTCA). The issue is whether plaintiff's claims are barred by the two-year statute of limitations.

On December 2, 1986, plaintiff's wife and minor child were travelling on a highway near Rainier Hill when an oncoming vehicle crossed the center line and collided with their vehicle. Plaintiff's wife died, and his child was injured. In investigating the cause of the accident, plaintiff sought to determine whether the highway had been sanded. He asked a police officer, who in turn asked defendant's employees. The employees said that the highway in question had recently been sanded. The police officer relayed that information to plaintiff and wrote it in an accident report. Relying on those statements, plaintiff concluded that there had been no negligence by defendant.

In November, 1989, plaintiff discovered that the highway had not been sanded on the day of the accident. Immediately thereafter, he was appointed personal representative for his wife's estate and guardian ad litem for his minor child. He commenced this action on December 1, 1989. His amended complaint alleged that the highway near Rainier Hill was icy and unsafe and that defendant negligently failed to warn motorists of the unsafe conditions, failed to place a barrier or other safety device between the lanes of traffic and failed to sand the road adequately.

Defendant moved to dismiss all claims on the grounds that plaintiff had failed to file a timely notice of tort claim and had failed to commence this action within the two-year statute of limitations. ORS 30.275(8). ¹ The trial court allowed the motion and entered a judgment of dismissal.

Plaintiff's wrongful death claim on behalf of his wife's estate was filed more than two years after the decedent's death. He acknowledges that such claims, when brought against a public body, generally must be commenced within two years. ORS 30.275(8). However, he contends that the OTCA limitation did not begin to run until he learned of defendant's misrepresentation.

The discovery rule does not aid plaintiff in this case. His complaint alleged three specifications of negligence:

"(a) The surface of the highway on Rainier Hill was icy and there were no warnings to motorists as to the potential for icy conditions;

"(b) The highway had not been adequately sanded or otherwise prepared to reduce the risk of accident due to ice; and

"(c) There was no center barrier to prevent an out of control automobile from crossing the center line and traveling into the land of oncoming traffic."

Regardless of defendant's misrepresentation, plaintiff was aware, on the date of the accident, that road conditions had been hazardous. He also knew, or should have known, that the state was responsible for maintaining the highway in question. It was apparent that the state had not constructed a central barrier and had not provided signs to warn motorists of potentially dangerous driving conditions. Those facts provided a sufficient basis for an action against the state. Plaintiff knew that his wife had been killed, that her death could be attributed to defendant's acts and that defendant arguably had been negligent in at least two respects.

A limitation is not tolled in order to allow a plaintiff "to develop facts to support or identify a theory of recovery or * * * to learn 'all of the facts which they might ultimately be able to advance to support their claim.' " Duyck v. Tualatin Valley Irrigation District, 304 Or. 151, 163, 742 P.2d 1176 (1987). (Citation omitted.) On December 2, 1986, plaintiff had sufficient information to raise an issue of fact on each element of his wrongful death claim. Accordingly, his cause of action accrued on that date. ² The trial court did not err in dismissing plaintiff's wrongful death claim.

Plaintiff's second claim for relief is for personal injuries sustained by his minor child as a result of defendant's alleged negligence. He argues that OTCA's two-year limitation and 270-day notice period for minors were tolled until a guardian ad litem is appointed for the child. That is correct. Perez v. Bay Area Hospital, 112 Or.App. 288, 294, 829 P.2d 700, recon. denied, 114 Or.App. 635, 836 P.2d 1358 (1992); Banda v. Danner, 87 Or.App. 69, 74, 741 P.2d 514 (1987), aff'd by an equally divided court, 307 Or. 302, 766 P.2d 385 (1988). Plaintiff was appointed guardian ad litem in November, 1989. The complaint was filed in December, 1989, within the notice period and the two-year limitation. ORS 30.275(2)(b), (8). Accordingly, the trial court erred in dismissing the negligence claim brought on behalf of the child.

We now turn to the issues raised by the dissent. First, it contends that we have "fail[ed] to analyze Banda v. Danner." As it acknowledges, Banda says that the time limitation for personal injury claims filed under OTCA does not begin to run until the appointment of a guardian ad litem, and then only if the guardian knows sufficient facts to initiate the running of the limitation period. 87 Or.App. at 74, 741 P.2d 514. That holding was affirmed by an equally divided Supreme Court. The dissent may well "disapprove", but it is the law in Oregon and it is on point.

Second, the dissent seeks to rely on Lawson v. Coos County School District # 13, 94 Or.App. 387, 765 P.2d 829 (1988), as a rationale for tacitly overruling Banda. In Lawson, the plaintiff brought a personal injury action against the state on behalf of a minor ward. Although the plaintiff's claim was filed after the expiration of OTCA's limitations period, ORS 30.275(8), the plaintiff proposed a novel interpretation that, if accepted, would have made ORS 12.160, a non-OTCA statute that extends the period within which minors may bring a tort claim, applicable to ORS 30.275(8). ORS 30.275(8) provides that, "[e]xcept as provided in ORS 12.120 and 12.135, but notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action," actions filed against a public body must be commenced within two years. The plaintiff in Lawson argued that, because ORS 12.160 extends the time for commencement of an action, it is not a "limitation" and therefore is not excluded by the language of ORS 30.275(8). We disagreed, noting that ORS 12.120 and 12.135 are the only two statutory exceptions to ORS 30.275(8) and that the language "notwithstanding any other provision of ORS chapter 12" excludes ORS 12.160. 94 Or.App. at 390. Lawson only held that ORS 12.160 does not toll the OTCA limitation; its holding is limited and is not relevant to the case at bar. It did not present any issue regarding the effect of a guardian ad litem appointment and had no effect on Banda.

Judgment of dismissal of personal injury claim reversed; otherwise affirmed.

BUTTLER, Presiding Judge, concurring in part; dissenting in part.

I concur in the majority's disposition of the wrongful death claim. However, the majority is wrong in reversing the dismissal of the child's personal injury claim, because it fails to analyze Banda v. Danner, 87 Or.App. 69, 741 P.2d 514 (1987), aff'd, 307 Or. 302, 766 P.2d 385 (1988), and says that our later decision in Lawson v. Coos Co. Sch. Dist. # 13, 94 Or.App. 387, 765 P.2d 829 (1988), is not relevant.

The 2-year limitation on actions against public bodies, which the majority only mentions, is in ORS 30.275(8):

"Except as provided in ORS 12.120 and 12.135, but notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action, an action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 shall be commenced within two years after the alleged loss or injury."

In Lawson v. Coos Co. Sch. Dist. # 13, supra, the plaintiff's minor ward was injured on the defendant's property in 1982. More than 2 years later, she filed a negligence action, contending that the "notwithstanding" language of that statute applies only to provisions in chapter 12 and other statutes that limit the commencement of an action. Because ORS 12.160 extends the time for a minor to commence an action, ¹ she argued that it is not subject to the 2-year time limit provided in ORS 30.275(8). We disagreed:

"The statute states two exceptions to the two-year limitation: ORS 12.120 and ORS 12.135. Immediately following the exception language, the statute provides that the two-year limitation applies 'notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action.' Further, the statute sets out the 'notwithstanding' provisions in the alternative: The time limit applies (1) notwithstanding any other provision of ORS chapter 12 and (2) notwithstanding any other statute providing a limitation on the commencement of an action.

"Our conclusion that the two-year limitation is not tolled by plaintiff's minority status is further supported by the fact that, in another subsection of ORS 30.275, minority status is specifically addressed. ORS 30.275(2) pro...