Villalobos v. University of Oregon, 16-79-03185

• Decision Date: 14 July 1980
• Docket Number: No. 16-79-03185,16-79-03185
• Citation: 614 P.2d 107,47 Or.App. 103
• Parties: Socorro VILLALOBOS, Personal Representative for the Estate of Ricardo Villalobos, Jr., Deceased, Appellant, v. UNIVERSITY OF OREGON, Respondent. ; CA 15161.
• Court: Oregon Court of Appeals

Page 107

614 P.2d 107

47 Or.App. 103

Socorro VILLALOBOS, Personal Representative for the Estate of Ricardo Villalobos, Jr., Deceased, Appellant, v. UNIVERSITY OF OREGON, Respondent.

No. 16-79-03185; CA 15161.

Court of Appeals of Oregon.

Argued and Submitted April 21, 1980.

Decided July 14, 1980.

Mike Dye, Salem, argued the cause and filed the brief for appellant.

Jan P. Londahl, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen. and Walter L. Barrie, Sol. Gen., Salem.

Before JOSEPH, P. J., and WARDEN and WARREN, JJ.

WARREN, Judge.

This is an action under the Oregon Tort Claims Act, ORS 30.260 to 30.300, for the wrongful death of Ricardo Villalobos brought by his personal representative. Plaintiff appeals from a judgment in favor of defendant entered on defendant's demurrer in which the trial court ruled that the action was barred by the statute of limitations.

Decedent was enrolled in a high school equivalency program for minority students on the campus of defendant and was a resident in one of defendant's dormitories. Decedent was stabbed to death in the dormitory on February 11, 1977. On April 3, 1979, plaintiff filed a complaint entitled "Complaint (At Law) Wrongful Death." The first count is based on negligence and the second count on breach of an implied warranty of "habitability and safety." The theory of the second count is that decedent had surrendered control of his person and security to defendant, which thereafter breached an implied contractual duty, arising from the tenancy, to protect decedent from the criminal activities of third persons. The trial court sustained defendant's demurrer on the ground that the two-year period in which to bring the action under ORS 30.275(3) ¹ had expired before the complaint was filed. Plaintiff contends the applicable statute of limitations is ORS 12.080, ² providing that actions on express or implied contracts may be commenced within six years.

In Securities-Intermountain, Inc. v. Sunset Fuel, 289 Or. 243, 611 P.2d 1158 (decided June 19, 1980), an action for damages against a provider of services, the Supreme Court after a historical review of the statutory and case law set forth the test for determining whether the statute of limitations for contract actions is applicable when a contract is pleaded but it is contended that the action is in reality one in tort to which a shorter statute of limitations applies:

"Thus the statutes and the precedents leave us with several variations when an action for damages against one engaged to provide professional or other independent services is commenced after two years and is pleaded as a breach of contract. If the alleged contract merely incorporates by reference or by implication a general standard of skill and care to which the defendant would be bound independent of the contract, and the alleged breach would also be a breach of this noncontractual duty, then ORS 12.110 applies. Dowell v. Mossberg, supra, 226 Or. 173, 355 P.2d 624, 359 P.2d 541 (1961). Conversely, the parties may have spelled out the performance expected by the plaintiff and promised by the defendant in terms that commit the defendant to this performance without reference to and irrespective of any general standard. Such a defendant would be liable on the contract whether he was negligent or not, and regardless of facts that might excuse him from tort liability. Or the nature either of the defendant's default or of the plaintiff's loss may be of a kind that would not give rise to liability apart from the terms of their agreement. (Footnote deleted.) In such cases, there is no reason why an action upon the contract may not be commenced for the six years allowed by ORS 12.080. Again, the scope of the damages demanded may characterize a complaint as founded in tort rather than in contract. Ashmun v. Nichols, supra, 92 Or. 223, 178 P. 234, 180 P. 510 (1919); Goodman v. Fernald, supra, 154 Or. 654, 61 P.2d 1253 (1936). But if the complaint nonetheless alleges the necessary elements of an action for breach of contract, including the alleged injury, nothing in the statutes prevents proceeding on that theory and limiting the damages accordingly. (Emphasis added.) (at 259, 611 P.2d at 1167.)"

We find the emphasized language in the above paragraph dispositive in the context of this case. The alleged contract here incorporates by implication a general standard of care to which defendant would be bound independent of any warranty. While the asserted contractual relationship between decedent and defendant may have provided the occasion for the alleged misfeasance, the claimed breach of warranty is essentially a breach of a duty to...