Shaw v. Zabel

• Decision Date: 17 January 1974
• Citation: 517 P.2d 1187,267 Or. 557
• Parties: Deborah SHAW, Appellant, v. Norma Moser ZABEL et al., Respondents.
• Court: Oregon Supreme Court

Page 1187

517 P.2d 1187

267 Or. 557

Deborah SHAW, Appellant, v. Norma Moser ZABEL et al., Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted Dec. 4, 1973.

Decided Jan. 17, 1974.

James W. Lock, Gresham, argued the cause for appellant. With him on the brief was Burns & Lock, P.C., Gresham.

Edward H. Warren and James H. Gidley, Portland, argued the cause for respondents. With them on the brief were Hershiser, Mitchell & Warren; Cosgrave & Kester, and Dezendorf, Spears, Lubersky & Campbell, Portland.

O'CONNELL, Chief Justice.

This is an action to recover damages for personal injuries caused by the alleged negligence of defendants. Defendants demurred to plaintiff's complaint on the ground that the action was not commenced within the time limited by statute. The court sustained the demurrer and, plaintiff having failed to plead further, entered judgment for defendant. Plaintiff appeals.

The complaint, which was filed on August 17, 1972, alleged that as a result of defendants' negligence plaintiff was injured on July 25, 1964. The complaint also alleged that plaintiff reached the age of twenty-one years on March 2, 1972. Thus it appears that plaintiff was thirteen years old at the time of the injury.

ORS 12.110 provides that an action for personal injuries shall be commenced within two years. However, ORS 12.160 suspends the running of the statute for persons under certain disabilities. The relevant part of ORS 12.160 reads as follows:

'If, at the time the cause of action accrues, any person entitled to bring an action mentioned in (ORS 12.115) is:

'(1) Within the age of 21 years, * * * the time of such disability shall not be a part of the time limited for the commencement of the action; but the period within which the action shall be brought shall not be extended more than five years by any such disability, nor shall it be extended in any case longer than one year after such disability ceases.'

Application of ORS 12.160 to the facts alleged in the complaint would bar plaintiff's action after July 25, 1971, which would be seven years after the injury (the two-year period under ORS 12.110 plus the five-year maximum period under ORS 12.160), when she was twenty years old.

Plaintiff contends that the five-year limitation period in ORS 12.160 is violative of the equal protection clause of the U.S. Constitution (Fourteenth Amendment, § 1) and the privileges and immunities of the Oregon Constitution (Art. I, § 20), because it sets up two classifications which are without a rational basis.

First, it is contended that since ORS 12.160 permits an action for injuries suffered as a minor to be filed within the year following one's twenty-first birthday, the imposition of a five-year maximum extension arbitrarily and unreasonably differentiates between those minors under seventeen years of age at the time the standard statute of limitations period would expire and those minors then seventeen and older. The distinction is condemned because, although the minors in both classes are under the same disability at the time of the injury, those in the latter group are given the right to sue as adults while those in the former are denied this right.

The legislature could constitutionally put minors on the same footing as adults in limiting the period within which actions can be brought. Vance v. Vance, 108 U.S. 514, 23 S.Ct. 854, 27 L.Ed. 808 (1883); Murray v. City of Milford, Conn., 380 F.2d 468 (2d Cir. 1967); Lametta v. Conn. Light & Power Co., 139 Conn. 218, 92 A.2d 731 (1952). The extension of the period in favor of minors is a legitimate exercise of the state's right to protect the interests of minor children. Plaintiff cannot argue, therefore, that as a minor she has a constitutional right to have the operation of the statute of limitations postponed until she has an opportunity...