 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Keller v. Armstrong World Industries2/9/2005
"discover" used by the legislature thus carries a connotation of a high degree of certainty, indicating that the legislature intended that the period of limitations not begin to run until a plaintiff has a high degree of certainty about the facts that would support the elements of his or her claim identified in the statute of limitations.
That conclusion is bolstered by the court's reiteration in Gaston of the familiar principle that " he discovery rule is designed to give plaintiffs a reasonable opportunity to become aware of their claim." 318 Or at 255-56 (citing Frohs v. Greene, 253 Or 1, 4, 452 P2d 564 (1969); emphasis added). Similarly, both this court and the Supreme Court have indicated that statutes of limitations begin to run only when a plaintiff knows the facts necessary "to support his right to judgment." Stevens v. Bispham, 316 Or 221, 227, 851 P2d 556 (1993) (internal quotation marks omitted); Hoeck v. Schwabe, Williamson & Wyatt, 149 Or App 607, 612, 945 P2d 534 (1997). That requirement supports the view that, to trigger the statute of limitations, a plaintiff must have a high degree of certainty about the elements of the statute.
"Ordinarily, the question of whether and when an employee knew or should have known that he had an occupational disease is one of fact for the jury." McCoy v. Union Pacific Railroad Co., 102 Or App 620, 624, 796 P2d 646 (1990) (applying similar standard for statue of limitations under the Federal Employers' Liability Act); see also Gaston, 318 Or at 256; Hoeck, 149 Or App at 612 ("Precisely when a person reasonably should have known that the harm suffered was caused by another's negligence generally presents a question of fact."). Thus, if a factual dispute exists about whether plaintiff actually discovered the cause of his disease before 1998 and about whether a person exercising reasonable care should have discovered that cause before 1998, summary judgment was inappropriate. See Greene, 335 Or at 120. In assessing whether such a factual dispute exists, we impute to plaintiff knowledge of all facts that he had a reasonable opportunity to discover, which includes all facts in the summary judgment record in this case.
We agree with the dissent to the extent that it asserts that a plaintiff can be held to have discovered the pertinent elements of his or her claim if he or she had a reasonable opportunity to become aware of facts that would support them. Actual knowledge is not required; a plaintiff may not avoid the bar of the statute of limitations by failing to make a further inquiry that would have revealed facts that would have supported the pertinent elements of his or her claim. That is why we impute to plaintiff knowledge of all facts reasonably available to him, which in this case includes all of the evidence in the summary judgment record. To the extent, however, that the dissent suggests that we should speculate about what else plaintiff might have learned had he inquired, ___ Or App at ___ (Edmonds, J., dissenting) (slip op at 14-15), as we explain below, ___ Or App at ___ (slip op at 21-23), that approach has been squarely rejected by the Supreme Court. To the extent that the dissent argues that the facts in this record establish causation to a sufficient level of certainty as a matter of law, we disagree.
Based on the record in this case, we conclude that a factual dispute exists about whether plaintiff actually discovered the cause of his disease before 1998 and about whether a person exercising reasonable care would have discovered that cause before 1998. We agree with plaintiff that the facts available to him simply do not establish, as a matter of law, that he discovered, or reasonably should have discovered, b
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Oregon Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|