Sealey By and Through Sealey v. Hicks

• Decision Date: 06 March 1990
• Citation: 788 P.2d 435,309 Or. 387
• Parties: , 58 USLW 2604, Prod.Liab.Rep. (CCH) P 12,407 Scott A. SEALEY, a minor, By and Through his Guardian Ad Litem, Carl SEALEY; Carl Sealey and Delores Sealey, husband and wife, Petitioners on Review, v. Erik James HICKS, a minor; Leonard C. Bloyd; Toyota Motors Distributors, Inc., a California corporation, Defendants, and Toyota Motors Corp., a foreign corporation, Respondent on Review. TC 86-0869C; CA A47084; SC S36025.
• Court: Oregon Supreme Court

Page 435

788 P.2d 435

309 Or. 387, 58 USLW 2604, Prod.Liab.Rep.

(CCH) P 12,407

Scott A. SEALEY, a minor, By and Through his Guardian Ad Litem, Carl SEALEY; Carl Sealey and Delores Sealey, husband and wife, Petitioners on Review, v. Erik James HICKS, a minor; Leonard C. Bloyd; Toyota Motors Distributors, Inc., a California corporation, Defendants and Toyota Motors Corp., a foreign corporation, Respondent on Review.

TC 86-0869C; CA A47084; SC S36025.

Supreme Court of Oregon.

Argued and Submitted June 14, 1989.

Decided March 6, 1990.

[309 Or. 388] Richard H. Muller, Portland, argued the cause and filed the petition for petitioners on review.

Jonathan M. Hoffman, Portland, argued the cause for respondent on review.

Jay M. Smyser, Chicago, Ill., Miller, Nash, Wiener, Hager & Carlsen and James N. Westwood, Portland, filed a brief on behalf of amicus curiae, Product Liability Advisory Council, Inc.

Emerson G. Fisher, Portland, filed a brief on behalf of amicus curiae, Oregon Trial Lawyers Ass'n.

Lee Aronson and Schulte, Anderson, DeFrancq, Downes & Carter, P.C., Portland, filed a brief on behalf of amicus curiae, Oregon Ass'n of Defense Counsel.

Before PETERSON, C.J., and LINDE, ^* CARSON, JONES, GILLETTE, VAN HOOMISSEN and FADELEY, JJ.

GILLETTE, Justice.

The primary issue in this products liability case is whether ORS 30.905, ¹ the products liability statute of ultimate repose, violates either the Oregon Constitution or the Seventh or Fourteenth Amendments to the United States Constitution. A secondary issue concerns whether plaintiffs' complaint alleges a negligent, continuing failure on the part of the manufacturer to warn of the product's defective and dangerous condition. If the pleadings adequately allege such a theory, a question arises whether the time limit imposed by ORS 30.905(1) can be avoided by pleading a negligent continuing failure to warn consumers of such dangers. We hold that ORS 30.905 is constitutional under both constitutions. We further hold that plaintiff's allegations are insufficient to raise a theory of negligent, continuing failure to warn of a dangerous or defective product.

FACTS

On April 23, 1986, 15-year-old Scott Sealey, the plaintiff, was a passenger in a 1975 Toyota Landcruiser. The driver, defendant Erik James Hicks, also a minor, lost control of the vehicle. The vehicle rolled over and its roof came off. Plaintiff was seriously injured and is now a quadriplegic.

Plaintiff, acting through his guardian ad litem, filed his original complaint on August 27, 1986. The defendants were Hicks, Toyota Motor Distributors, and Toyota Motor Corporation (TMC). TMC moved for summary judgment, claiming that the action was time barred by ORS 30.905(1) because the vehicle was originally sold in May of 1975 and the accident occurred more than eight years later. The trial court agreed and granted summary judgment. Finding no reason for delay, the court entered judgment for TMC and against plaintiff pursuant to ORCP 67 B. ² Plaintiff appealed, contending that, insofar as ORS 30.905(1) bars a claim before the injury upon which it is based even occurs, the statute is unconstitutional. Plaintiff further contended that, even if ORS 30.905(1) is constitutional, he also has alleged ordinary post-purchase negligence, governed by the general torts statutes of limitation and repose, ORS 12.110(1) ³ and 12.115, and his complaint was timely under those statutes. ⁴

The Court of Appeals upheld the constitutionality of ORS 30.905(1). ⁵ Sealey v. Hicks, 95 Or.App. 182, 768 P.2d 428 (1989). The Court of Appeals further ruled that plaintiff had not alleged a continuing failure to warn and, even if he had, the definition of "product liability civil action" provided in ORS 30.900 ⁶ included within its limitation any failure to warn concerning a defective product. We allowed plaintiff's resulting petition for review to address the important issues involved.

THE STATUTE'S MEANING

The products liability statute of repose, ORS 30.905(1), states that it applies "except as provided in subsection (2) of this section." This language could be read to make the time limit in ORS 30.905(1) subordinate to the time limit in ORS 30.905(2). If it were so read, the fact that plaintiff commenced this action less than two years after the accident would make the action timely under ORS 30.905(2). This interpretation, however, renders ORS 30.905(1) a virtual nullity--an action brought 10, 20, or even 30 years after a product was "first purchased for use or consumption" would still be timely so long as it was brought within two years of the date of the "death, injury or damage complained of." The legislature cannot have intended to enact a provision that would have no legal effect.

A brief look at the legislative history reveals the legislature's intent and a rational statutory structure. ORS 30.905(2) is a statute of limitation. Anyone injured by a defective product has two years from the date of the death, injury, or damage complained of to commence a civil action. ORS 30.905(1), on the other hand, is a statute of repose. The legislature has determined that an injury occurring more than eight years after a defective product first entered the stream of commerce is not legally cognizable. See Minutes, House Judiciary Committee, May 16, 1977, pp 10-12. Plaintiff here filed within two years of his injury, but his injury did not occur within eight years of the date the vehicle first was

purchased. Subsection (1) of ORS 30.905 is the applicable subsection. Plaintiff's case therefore was properly ended by summary judgment, unless some constitutional provision, state or [309 Or. 393] federal, forbids the enactment or application of ORS 30.905(1). We turn to that issue.

THE STATUTE'S CONSTITUTIONALITY

Plaintiff attacks the constitutionality of ORS 30.905(1) on five separate bases, three under the Oregon Constitution and two under the Federal Constitution. As is our normal practice, we consider the three state constitutional challenges before moving on to the federal issues. See, e.g., State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983).

1. Article I, Section 10

Article I, section 10, of the Oregon Constitution provides:

"No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him and his person, property or reputation."

Plaintiff contends that ORS 30.905(1) violates this section because it bars his claim before the claim ever accrues, thereby denying him a "remedy by due course of law for [an] injury done him and his person." Plaintiff is particularly aggrieved because the statute of repose eliminates his remedy even before he has suffered an injury. This is true. ORS 30.905(1) does bar plaintiff's claim and deny him a remedy for what would otherwise be a legally cognizable injury. However, ORS 30.905(1) is nonetheless constitutional.

This court already has considered and upheld the constitutionality of another statute of ultimate repose under similar circumstances. In Josephs v. Burns & Bear, 260 Or. 493, 491 P.2d 203 (1971), the plaintiffs were the owners of a building whose roof collapsed more than 10 years after its construction. Plaintiffs alleged that the collapse resulted from the defendant's negligent construction of the building.

At that time ORS 12.115(1) provided:

"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 trial court sustained the defendant's demurrer on the basis that the statute of limitations had run prior to the commencement of the action. ⁷ This court affirmed the trial court's ruling despite the plaintiffs' contention "that a statute which purports to extinguish a remedy before the legally protected right becomes actionable is unconstitutionable because it contravenes Article I, section 10, of the Oregon Constitution * * *." Id. at 502, 491 P.2d 203. We held:

"Assuming that the effect of ORS 12.115(1) is to abolish causes of action in tort where the damage does not result within ten years after the negligent acts or omissions complained of, we see nothing unconstitutional in so doing. * * *

" * * * *

"It has always been considered a proper function of legislatures to limit the availability of causes of action by the use of statutes of limitation so long as it is done for the purpose of protecting a recognized public interest. It is in the interest of the public that there be a definite end to the possibility of future litigation resulting from past actions. It is a permissible constitutional legislative function to balance the possibility of outlawing legitimate claims against the public need that at some definite time there be an end to potential litigation."

The reasoning of Josephs is equally applicable Article I, section 10, does not apply to a situation like the present one. The legislature has the authority to determine what constitutes a legally cognizable injury. It has chosen to declare that injuries resulting from defective products are not legally cognizable if they occur more "than 8 years after the date on which the product was first purchased for use or consumption." In making this determination, the legislature has not deprived this plaintiff of a preexisting remedy for his injury. ⁹

                to civil product liability actions. 8  The legitimate legislative purposes behind ORS 12.115(1) also support ORS 30.905(1)
                

Plaintiff relies heavily on Heath v. Sears, Roebuck & Co., 123 N.H. 512, 464 A.2d 288 (1983). In Heath, the Supreme Court of New Hampshire struck down the entire New Hampshire products liability statutory scheme as unconstitutional under the New Hampshire state constitution. Obviously, Heath has no direct authority here, but we are always open to persuasive analysis from any source. However, we find little helpful...