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Walters v. Hobbs8/22/2001
. That claim, the court determined, did relate back to the original complaint because "those events appear to have occurred at the time of, and directly involve, the denial of the loan at issue in the original pleading." Id. See also Allison v. Kleinman, 126 Or App 298, 301-02, 868 P2d 764 (1994) (following Caplener, and concluding that a complaint that alleged that the defendant accountants had failed to advise the plaintiffs about delinquent fuel taxes owed by the purchaser of certain equipment did not relate back to an earlier complaint that alleged that the defendant accountants had negligently advised the plaintiffs concerning sale of equipment to the purchaser of the equipment, resulting in the plaintiffs having inadequate security interests).
We also have had occasion to apply the "relation back" provisions of ORCP 23 C on a number of occasions. Evans v. Salem Hospital, 83 Or App 23, 730 P2d 562 (1986), rev den 303 Or 331 (1987), is exemplary. In Evans, the plaintiff, who was the decedent's son, brought a wrongful death action in his capacity as personal representative of the decedent's estate against the defendant hospital, alleging that the defendant administered fluids to the decedent, after which the decedent aspirated the fluids and suffered respiratory failure. Id. at 25. The complaint alleged that the hospital was negligent in failing to observe the decedent after the administration of the fluids, in failing to have appropriate life support equipment on hand, and in failing to make sufficient effort to administer life support. The complaint sought damages on the ground that, as a result of the hospital's negligence, the decedent's heirs had been deprived of the decedent's future earnings, society, companionship and services. Id. at 25-26. After the statute of limitations had run, the plaintiff amended the complaint to add claims on behalf of the decedent's wife for intentional and reckless infliction of emotional distress and also on his own behalf as an individual rather than in his capacity as personal representative of the estate. Id. at 26. Those emotional distress claims were based on allegations that the wife and son had been informed that no effort would be made to revive the decedent, and that they had personally observed the decedent, who had been left unattended and in apparent distress after the defendant had decided to withhold life support. Id. They sought damages to compensate for their emotional distress, as well as punitive damages. Id. at 27.
In evaluating whether the new claims related back to the original pleading, we synthesized from earlier cases, including Welch, the principle that the relation-back inquiry turns "on whether there is a similarity or relationship between the original and new claims sufficient to put the defendant on notice that the specific claim which is later asserted could arise out of the conduct, occurrence or transaction originally pleaded." Evans, 83 Or App at 31 (emphasis in original). We concluded that
"a new claim cannot relate back to an earlier pleading unless there is at least enough of a nexus between the claims for the defendant to have been able to have discerned from the first that the existence of the second was a possibility." Id. at 31-32.
We then described the nexus in Evans as "tenuous to the point of non-existence" for several reasons. Id. at 32. First, we pointed out that the plaintiffs as individuals were not parties under the original complaints, and that the damages sought in the amended complaint were outside the scope of the wrongful death statute and "differ drastically from what was asserted and sought in the earlier pleadings." Id. Second, the gravamen of the new claims was that the defend
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