Mason v. Mt. St. Joseph, Inc.

• Decision Date: 04 March 2009
• Docket Number: 050808090.,A133639.
• Citation: 226 Or. App. 329,203 P.3d 329
• Parties: Suzanne K. MASON, personal representative of the estate of Thomas G. Mason, Deceased, Plaintiff-Appellant, v. MT. ST. JOSEPH, INC., an Oregon non-profit corporation; Rose, Breedlove & McConnell, Inc., an Oregon corporation; Providence Health System-Oregon, an Oregon non-profit corporation; and Metropolitan Life Insurance Co., a New York corporation, Defendants, and General Electric Company, a New York corporation, Defendant-Respondent.
• Court: Oregon Court of Appeals

203 P.3d 329

226 Or. App. 329

Suzanne K. MASON, personal representative of the estate of Thomas G. Mason, Deceased, Plaintiff-Appellant, v. MT. ST. JOSEPH, INC., an Oregon non-profit corporation; Rose, Breedlove & McConnell, Inc., an Oregon corporation; Providence Health System-Oregon, an Oregon non-profit corporation; and Metropolitan Life Insurance Co., a New York corporation, Defendants, and General Electric Company, a New York corporation, Defendant-Respondent.

050808090.

A133639.

Court of Appeals of Oregon.

Argued and Submitted March 13, 2008.

Decided March 4, 2009.

Meagan A. Flynn argued the cause for appellant. With her on the briefs was Preston Bunnell & Flynn LLP.

George S. Pitcher, Portland, argued the cause for respondent. With him on the brief were Williams, Kastner & Gibbs PLLC and Christopher S. Marks, Seattle, Washington.

Before WOLLHEIM, Presiding Judge, and ARMSTRONG, Judge, and SERCOMBE, Judge.

SERCOMBE, J.

[226 Or. App. 394]

Plaintiff, the personal representative of the estate of Thomas Mason, brought three claims against defendant General Electric Co. (GE) under Oregon's product liability law, ORS 30.900 to 30.920,¹ for Mason's death from mesothelioma. Mason's death was allegedly caused by his exposure to asbestos-containing products during his work as a carpenter on a construction project for GE in 1968. The trial court determined that plaintiff failed to plead a strict liability claim under Oregon's product liability law, that statutes of limitation applicable to "product liability civil actions" did not apply to the claims, and that the claims were therefore barred under the 10-year general negligence statute of ultimate repose, ORS 12.115.² The trial court dismissed plaintiff's claims on those bases and entered a limited judgment pursuant to ORCP 67 B. Plaintiff appeals, asserting three assignments of error. We conclude that the trial court did not err and affirm.

We assume the truth of the facts as set out in the second amended complaint, as well as any facts that might conceivably be adduced in proof of the pleading. Beals v. Breeden Bros., Inc., 113 Or.App. 566, 570, 833 P.2d 348, rev. den., 314 Or. 727, 843 P.2d 454 (1992). We review the trial court's granting of GE's motion to dismiss plaintiff's product liability claims for errors of law, viewing the allegations, as well as all reasonable inferences, in the light most favorable to plaintiff, the nonmoving party. Strizver v. Wilsey, 210 Or.App. 33, 35, 150 P.3d 10 (2006), rev. den., 342 Or. 474, 155 P.3d 52 (2007); Simonsen v. Ford

[226 Or. App. 395]

Motor Co., 196 Or.App. 460, 102 P.3d 710 (2004) (liberal construction of operative pleading in assessing sufficiency of claims under applicable statute of limitations).

In 1968, GE engaged contractors to partially demolish and expand its Portland Apparatus Division Warehouse. Mason's employer was one of those contractors. Mason, working as a carpenter on the project, was exposed to fibers from asbestos-containing products that were removed from the demolished structure and reused in the new construction at the direction of GE. Those recycled products had been purchased by GE and used in the original construction of the warehouse in 1953. Mason was also exposed to new asbestos-containing products that GE directed Mason's employer to purchase and use in the 1968 demolition and expansion project. The asbestos-containing products were sold to GE by unidentified entities, named in the complaint as defendants "John Doe Corporations 1-5." The products were sold by John Doe corporations to GE in an unreasonably dangerous and defective condition. As a result of Mason's exposure to those products during the 1968 project, he developed mesothelioma, a cancer of the pleura, resulting in his death on November 13, 2004.

Plaintiff pleaded three claims against GE. In her third claim for relief, she alleged that GE was negligent in causing the harms to Mason, in its direction to Mason's employer to install asbestos-containing products, and in its failure to warn of the risk of exposure to those products or to advise Mason of ways to reduce the risk of harm from that exposure. In her fourth and eighth claims for relief, plaintiff sought to hold GE vicariously liable for her product liability and negligence claims against the John Doe corporations arising from their sale or distribution of the asbestos-containing products. Plaintiff claimed that GE was vicariously liable with the seller or distributor of the products because it required the purchase or reuse of those products.

The trial court dismissed the common-law negligence and vicarious liability negligence claims, reasoning that plaintiff had failed to state product liability civil actions against GE under ORS 30.900 and that the ORS 30.907 period of limitations for product liability claims for damages

[226 Or. App. 396]

resulting from asbestos-related disease therefore did not apply. The trial court concluded that the negligence claims were time barred under ORS 12.115. It further concluded that the second amended complaint did not state a claim against GE based on any vicarious liability for the conduct of a seller or distributor of a dangerously defective product under ORS 30.920. The trial court then entered a limited judgment for GE under ORCP 67 B.³ Plaintiff's three assignments of error on appeal address each of those rulings, and we consider them in turn.

We first note the statutory context for the claims. Oregon's product liability law is governed by ORS 30.900 to 30.920. See Griffith v. Blatt, 334 Or. 456, 466, 51 P.3d 1256 (2002). ORS 30.900 sets forth the definition of a product liability civil action:

"As used in ORS 30.900 to 30.920, `product liability civil action' means a civil action brought against a manufacturer, distributor, seller or lessor of a product for damages for personal injury, death or property damage arising out of:

"(1) Any design, inspection, testing, manufacturing or other defect in a product;

"(2) Any failure to warn regarding a product; or

"(3) Any failure to properly instruct in the use of a product."

A "product liability civil action" is subject to statutory policies on the time to commence that action (ORS 30.905, ORS 30.907, and ORS 30.908), an applicable evidentiary presumption (ORS 30.910), defenses to the claim (ORS 30.915), and recoverable punitive damages (ORS 30.925 and ORS 30.927).

ORS 30.920, which sets out the elements of a strict product liability claim, provides:

"(1) One who sells or leases any product in a defective condition unreasonably dangerous to the user or consumer

[226 Or. App. 397]

or to the property of the user or consumer is subject to liability for physical harm or damage to property caused by that condition, if:

"(a) The seller or lessor is engaged in the business of selling or leasing such a product; and

"(b) The product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold or leased.

"(2) The rule stated in subsection (1) of this section shall apply, even though:

"(a) The seller or lessor has exercised all possible care in the preparation and sale or lease of the product; and

"(b) The user, consumer or injured party has not purchased or leased the product from or entered into any contractual relations with the seller or lessor.

"(3) It is the intent of the Legislative Assembly that the rule stated in subsections (1) and (2) of this section shall be construed in accordance with the Restatement (Second) of Torts sec. 402A, Comments a to m (1965). All references in these comments to sale, sell, selling or seller shall be construed to include lease, leases, leasing and lessor.

"(4) Nothing in this section shall be construed to limit the rights and liabilities of sellers and lessors under principles of common law negligence or under ORS chapter 72."

A "product liability civil action," as defined by ORS 30.900, is not confined to a strict liability claim under ORS 30.920 and can include negligence claims within its scope. See Kambury v. DaimlerChrysler Corp., 185 Or.App. 635, 639, 60 P.3d 1103 (2003) (a product liability civil action "embraces all theories a plaintiff can claim in an action based on a product defect," including both negligence and strict liability claims); Gladhart v. Oregon Vineyard Supply Co., 164 Or.App. 438, 458-59, 994 P.2d 134 (1999), rev'd on other grounds, 332 Or. 226, 26 P.3d 817 (2001) (when the gravamen of a claim is a product defect, the statutory scheme that pertains to defective products applies); Marinelli v. Ford Motor Co., 72 Or.App. 268, 273, 696 P.2d 1, rev. den., 299 Or. 251, 701 P.2d 784 (1985) (accepting view that "the term `product liability civil action,' as defined by ORS 30.900, embraces all theories a plaintiff can adduce

[226 Or. App. 398]

in an action based on a product defect" (emphasis in original)).

As noted above, a special statute of limitations applies to product liability civil actions for damages resulting from asbestos-related diseases. At the time relevant to this case, ORS 30.907 (2003) provided:

"A product liability civil action for damages resulting from asbestos-related disease shall be commenced not later than two years after the date on which the plaintiff first discovered, or in the exercise of reasonable care should have discovered, the disease and the cause thereof."⁴

If a claim for damages resulting from asbestos-related disease is not a "product liability civil action" as defined by ORS 30.900, then the period of limitations for the claim is governed by a different statute of limitations, e.g., ORS 12.115 (10-year statute of repose for negligence claims) and ORS 12.080 (six-year period for breach of contractual warranty). The parties agree that plaintiff's claims are stale unless they are "product liability civil actions" and fit within the definition of that term in ORS 30.900. Thus, the initial question that we must address...