Limitations of Actions and Suits

ORS 12.110
Actions for certain injuries to person not arising on contract

  • action for overtime or premium pay
  • action for professional malpractice
  • effect of fraud or deceit
  • action for injuries to person arising from nuclear incident


(1)

An action for assault, battery, false imprisonment, or for any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter, shall be commenced within two years; provided, that in an action at law based upon fraud or deceit, the limitation shall be deemed to commence only from the discovery of the fraud or deceit.

(2)

An action upon a statute for a forfeiture or penalty to the state or county shall be commenced within two years.

(3)

An action for overtime or premium pay or for penalties or liquidated damages for failure to pay overtime or premium pay shall be commenced within two years.

(4)

An action to recover damages for injuries to the person arising from any medical, surgical or dental treatment, omission or operation shall be commenced within two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered. However, notwithstanding the provisions of ORS 12.160 (Suspension for minors and persons who have disabling mental condition), every such action shall be commenced within five years from the date of the treatment, omission or operation upon which the action is based or, if there has been no action commenced within five years because of fraud, deceit or misleading representation, then within two years from the date such fraud, deceit or misleading representation is discovered or in the exercise of reasonable care should have been discovered.

(5)

An action, arising from a nuclear incident, as defined in 42 U.S.C. 2014(q), that involves the release of radioactive material, excluding releases from acts of war, that causes bodily injury, sickness or death, shall be commenced:

(a)

Within two years from the time an injured person discovers or reasonably could have discovered the injury and the causal connection between the injury and the nuclear incident; or

(b)

Within two years from any substantial change in the degree of injury to the person arising out of a nuclear incident. [Amended by 1957 c.374 §1; 1967 c.406 §1; 1969 c.642 §1; 1971 c.473 §1; 1975 c.796 §10a; 1981 c.149 §1; 1987 c.705 §4]

Notes of Decisions

In General

A defendant's misrepresentations do not delay running of statute of limitations if, despite the representations, plaintiff knew or should have known that she had a cause of action. Duncan v. Augter, 62 Or App 250, 661 P2d 83 (1983), Sup Ct review denied; see also 286 Or 723, 596 P2d 555 (1979)

Insurer's advance payments and waiver of statute of limitations did not create duty to give notice of end of waiver period and was not enough to lull plaintiff into false sense of security so as to estop defense of statute of limitations. Johnson v. Kentner, 71 Or App 61, 691 P2d 499 (1984), Sup Ct review denied

Application of subsection (4) of this section in minor plaintiff's medical malpractice action did not violate Article I, sections 10 and 20 of Oregon Constitution, nor Equal Protection Clause of federal Constitution. Jones v. Salem Hospital, 93 Or App 252, 762 P2d 303 (1988), Sup Ct review denied

Limitation of actions for professional malpractice under this section does not bar action under ORS 30.275. O'Brien v. State of Oregon, 104 Or App 1, 799 P2d 171 (1990)

Applicable statute of limitations for actions under ORS 654.062 is one-year period for filing unlawful employment practice claim. Raptopolous v. WS, Inc., 738 F. Supp. 394 (D. Or. 1990)

Existence of continuing course of treatment does not preserve cause of action for treatment events that are time-barred. Urbick v. Suburban Medical Clinic, Inc., 141 Or App 452, 918 P2d 453 (1996), Sup Ct review denied

Running of limitation period commences when plaintiff knows or has reason to know that some harm has been incurred and cause of action exists, even though extent and details of harm may not be known. Widing v. Schwabe, Williamson & Wyatt, 154 Or App 276, 961 P2d 889 (1998)

Injury to the Person

Two year statute of limitations was applicable to action seeking damages for emotional stress and mental anguish allegedly intentionally inflicted. Davis v. Bostick, 282 Or 667, 580 P2d 544 (1978)

Where plaintiff failed to serve either defendant (whose whereabouts were unknown) or Administrator of Motor Vehicles Division within two years after automobile accident, plaintiff's action was barred by two-year limitation under this section, despite three-year limitation provided by [former] ORS 15.190. Peterson v. Day, 283 Or 353, 584 P2d 253 (1978)

Where meat wrapper brought action for permanent injuries caused by polyvinyl chloride fumes from meat wrapping machine, and there was no showing of prevalent knowledge concerning dangers of such fumes, statute did not begin to run until disease was diagnosed by physician. Schiele v. Hobart Corp., 284 Or 483, 587 P2d 1010 (1978)

In strict liability action for personal injuries, limitation period of this section was not tolled by ORS 12.150 where defendant foreign corporation could have been served under [former] ORS 57.700. Santos v. The Flxible Co. Inc., 41 Or App 89, 597 P2d 373 (1979)

In wrongful death action allegedly resulting from medical malpractice, three year wrongful death limitation under ORS 30.020 applied rather than two year medical malpractice limitation under this section. Baxter v. Zeller, 42 Or App 873, 601 P2d 902 (1979), Sup Ct review denied

In strict liability action for injury caused by insecticide, where complaint alleged that plaintiff-food packing plant employe commenced action within two years of discovery of cause of physical problems and injuries, action was not barred by statute of limitations. Colvin v. FMC Corp., 43 Or App 709, 604 P2d 157 (1979)

Tolling provisions of statute because of misleading representation apply to careless or innocent misrepresentation only if misrepresentation concerns something other than proper performance of treatment forming basis of complaint. Duncan v. Augter, 286 Or 723, 596 P2d 555 (1979)

Action for deprivation of civil rights alleging harassment by local government entities was controlled by two-year statute of limitations of Tort Claims Act. Kosikowski v. Bourne, 659 F2d 105 (1981)

Where Issue In Medical Malpractice Action Was Running of Statute of Limitations, Plaintiff Should Have Discovered Existence of Cause of Action Upon Realizing

1) an injury; 2) that injury could be attributed to act of alleged tortfeasor; and 3) that act of alleged tortfeasor was somehow negligent and failure to instruct jury based on this standard was error. Hoffman v. Rockey, 55 Or App 658, 639 P2d 1284 (1982), Sup Ct review denied

This section was applicable to claim of union member against local for breach of its duty of fair representation. McNaughton v. Dillingham Corp., 707 F2d 1042 (1983)

Action for professional malpractice was time-barred where plaintiff knew more than 2 years before commencement of action that he had been damaged and that defendants' negligence was cause of damage; knowledge by plaintiff of extent of damages was immaterial in determining when statute commences running. Godfrey v. Bick & Monte, 77 Or App 429, 713 P2d 655 (1986), Sup Ct review denied

Claims for malpractice should not have been dismissed though plaintiff did not file action within 5-year limitation period of this section. Skuffeeda v. St. Vincent Hospital, 77 Or App 477, 714 P2d 235 (1986), Sup Ct review denied

Where plaintiffs were harmed by attorney's negligent drafting of contract and knew more than 2 years before commencing malpractice action that negligence was cause of their harm, action was barred. Magnuson v. Lake, 78 Or App 620, 717 P2d 1216 (1986)

Dismissal of civil rights action for wrongful arrest was proper where both general tort statute and Oregon Tort Claims Act statute provide for two-year limitations period, though limitation of general tort statute should have been applied. Davis v. Harvey, 789 F2d 1332 (1986)

Where plaintiff alleged injury from diagnosis of glaucoma and prescription of drug Timoptic in July, 1980, in action for medical malpractice against physician, claiming he discovered source of injury in November, 1984, malpractice action was time barred by this section because complaint did not allege diagnosis or prescription of Timoptic after July, 1980. Cornell v. Merck & Co., 87 Or App 373, 742 P2d 667 (1987)

Action by plaintiff-tenant against landlord for injuries suffered in fall from common stairway outside apartment building contained common law claim independent of rental agreement and was timely when filed under two-year limitation period of this section. Jones v. Bierek, 306 Or 42, 755 P2d 698 (1988)

Two-year statute of limitations began to run when plaintiff's attorney wrote letter to defendant that demonstrated plaintiff had knowledge or reason to know that plaintiff had claim against defendant. McNeely v. Weyerhaeuser Co., 115 Or App 184, 837 P2d 546 (1992), Sup Ct review denied

Where plaintiff noticed loss of feeling in left arm after procedure performed in 1987 and was assured by defendant loss of feeling was transitory complication that could last from six months to two years, trial court erred in concluding, as matter of law, malpractice action in 1990 was time barred. Gaston v. Parsons, 117 Or App 555, 844 P2d 941 (1993), aff'd 318 Or 247, 864 P2d 1319 (1994)

Provision of prepared medical product does not constitute medical treatment of recipient. Doe v. American Red Cross, 128 Or App 38, 874 P2d 828 (1994), aff'd 322 Or 502, 910 P2d 364 (1996)

"Injury" consists of harm, causation and tortious conduct. Gaston v. Parsons, 318 Or 247, 864 P2d 1319 (1994)

Five-year repose period for medical malpractice actions does not violate section 10 or 20, Article I of Oregon Constitution. Barke v. Maeyens, 176 Or App 471, 31 P3d 1133 (2001), Sup Ct review denied

Where person dies while having right to bring action for medical malpractice, time limit for personal representative to bring personal injury suit on behalf of estate is governed by ORS 30.075 instead of ORS 12.190. Giulietti v. Oncology Associates of Oregon, 178 Or App 260, 36 P3d 510 (2001)

Injury to the Person or Rights of Another, not On Contract and not Enumerated In This Chapter

An action against the insurer under an uninsured motorist clause in a policy is governed by the contract, not the tort, statute. Turlay v. Farmers Ins. Exch., 259 Or 612, 488 P2d 406 (1971)

This section does not apply to a suit for reformation. Woodriff v. Ashcraft, 263 Or 547, 503 P2d 472 (1972)

Two-year limitations period is applicable to actions for legal malpractice. U.S. National Bank v. Davies, 274 Or 663, 548 P2d 966 (1976)

The statute of limitations is a bar to a counterclaim in the nature of a setoff if the claim would be barred if asserted in an independent action. Jewell v. Compton, 277 Or 93, 559 P2d 874 (1977)

Actions for federal civil rights violations are subject to limitation applicable to liability created by statute, not to limitation applicable to tort actions. Clark v. Musick, 623 F2d 89 (1981); Plummer v. Western International Hotels, 656 F2d 502 (1981)

Product liability action brought pursuant to ORS 30.905 is "an action mentioned" in this section. Kearney v. Montgomery Ward & Co., 55 Or App 641, 639 P2d 682 (1982)

Where action for damages by purchaser against builder-seller of house was for amounts necessary to remedy defects in construction of house, limitation period of this section was not applicable because either the action arose on contract or injuries were to interest of "another" in real property which is an action enumerated in ORS 12.080 (3). Beveridge v. King, 292 Or 771, 643 P2d 332 (1982)

Action by architectural firm for alleged copyright infringement based on copying and use of plans and drawings for migrant labor housing was governed by this section, two-year tort statute of limitations. Mention v. Gessell, 714 F2d 87 (1983)

In action for employment discrimination under 42 U.S.C. 1981, controlling limitation period was that of ORS 12.080, not that of this section. Wrighten v. Metropolitan Hospitals, Inc., 726 F2d 1346 (1984)

Where relationship is between contracting parties and claim alleges negligent performance of contract, action must be brought as contract claim unless independent standard of care is established. Marinelli v. Ford Motor Co., 72 Or App 268, 696 P2d 1 (1985), Sup Ct review denied; Georgetown Realty v. The Home Insurance Company, 313 Or 97, 831 P2d 7 (1992)

Action At Law Based On Fraud or Deceit

In a federal court action for fraud or misrepresentation under S.E.C. Rule 10b-5, the two-year statute of limitations set by this statute shall govern. Hoffert v. E.F. Hinkle & Co., Inc., 56 FRD 395 (1972); Winkelman v. Blyth and Co., 394 F Supp 994 (1973), aff'd 518 F2d 531; Williams v. Sinclair, 529 F2d 1383 (1975)

The provision as to "discovery" of the fraud means from the time the fraud was known or could have been discovered through the exercise of reasonable care. Winkelman v. Blyth and Co., 394 F Supp 994 (1973), aff'd 518 F2d 531

Action to recover damages for conspiracy and fraud in controlling of appraisal values of property was barred where plaintiffs had knowledge of alleged fraud nearly five years prior to bringing action. Compton v. Oregon State Hwy. Comm. et al, 31 Or App 919, 571 P2d 1271 (1977), Sup Ct review denied

A summary judgment is inappropriate where a disputed issue of fact exists as to diligence in the discovery of fraud so as to commence the limitations period. Forest Grove Brick Works v. Strickland, 277 Or 81, 559 P2d 502 (1977)

In fraud action arising out of remodeling of plaintiff's house by defendant contractor, evidence disclosed as matter of law that plaintiff, in exercise of reasonable care, should have discovered carpenters' and laborers' wages had not been paid as represented within time period relevant under this section. Mathies v. Hoeck, 284 Or 539, 588 P2d 1 (1978)

Where pleadings disclosed that action was commenced more than two years after alleged fraud was committed, plaintiff was required to negate lack of diligence on his part in discovering fraud and to set forth reasons why it was not earlier discovered. Kinyon v. Cardon, 69 Or App 546, 686 P2d 1048 (1984), Sup Ct review denied

Where period of limitation for fraud begins to run when plaintiff knew or through reasonable care should have known of alleged fraud and plaintiff knew by early 1982 that defendant was not respecting alleged promise but did not file claim until 1985, statute of limitations had expired. Estey & Associates, Ins. v. McCullock Corp., 663 F Supp 167 (1986)

When Statute Commences to Run

Cause of action for legal malpractice accrues at time client becomes aware that harm incurred by adverse resolution of legal matter was caused by attorney. U.S. National Bank v. Davies, 274 Or 663, 548 P2d 966 (1976); Niedermeyer v. Dusenbery, 275 Or 83, 549 P2d 1111 (1976); Barnard v. Lannan, 112 Or App 625, 829 P2d 723 (1992); Allen v. Lawrence, 137 Or App 181, 903 P2d 919 (1995), Sup Ct review denied

Statute of limitations on claim for negligence causing occupational disease begins to run when reasonably prudent person should know that he has condition for which action is brought and should be able to identify its cause. Schiele v. Hobart Corp., 284 Or 483, 587 P2d 1010 (1978)

Where three years prior to bringing malpractice action against attorney and real estate broker, plaintiff litigated worth of his assets during marriage dissolution proceedings and testified at that time that his investment losses were attributable to "bad advice" from attorney and realtor, malpractice action was barred by two-year statute of limitations under this section. Melgard v. Hanna, 45 Or App 133, 607 P2d 795 (1980)

Statute commences running upon discovery that plaintiff has some cause of action, not upon discovery of true extent of damage. Hoffman v. Rockey, 55 Or App 658, 639 P2d 1284 (1982), Sup Ct review denied; Gannon v. Rogue Valley Medical Center, 92 Or App 314, 758 P2d 873 (1988), Sup Ct review denied

In action for alleged occupational disease (asbestosis), it was error for trial court to conclude as matter of law that action accrued under this section and ORS 12.010 in December 1975 where medical report in October indicated plaintiff's condition "should improve without medication" and record amply reflected possibility plaintiff did not know what was causing his illness. Lundy v. Union Carbide Corp., 695 F2d 394 (1982)

Claim for occupational disease accrues when reasonably prudent person associates his symptoms with a serious or permanent condition and at the same time perceives the role which the defendant has played in inducing that condition. Lundy v. Union Carbide Corp., 695 F2d 394 (1982), citing Schiele v. Hobart, 284 Or 483, 587 P2d 1010 (1979)

Cause of action against realtor for negligent valuation accrued when plaintiff discovered actual market value of land, not when she was forced to convey property at loss pursuant to Court of Appeals decision. Jaquith v. Ferris, 297 Or 783, 687 P2d 1083 (1984)

Statute of limitations in legal malpractice case does not begin to run until final disposition of case in which attorney allegedly gave bad advice; action commenced within two years of Supreme Court's decision but more than two years after any other significant action in case was not barred. Fliegel v. Davis, 73 Or App 546, 699 P2d 674 (1985), Sup Ct review denied

Statute of limitations for tort of intentional interference with contractual relationship does not depend on date of discovery of interference but rather when damages accrued. Cramer v. Stonebridge Inn, 77 Or App 407, 713 P2d 645 (1986)

Where plaintiff insureds sued their insurer, pleading that insurer's negligence in handling claim against them caused them loss by way of incurred attorney fees and excess liability, plaintiffs' cause of action accrued when they were harmed and suffered resulting damages through expenditure of legal fees to defend claim against them, not when they later paid claimant in settlement of the claim. Bollam v. Fireman's Fund Ins. Co., 302 Or 343, 730 P2d 542 (1986)

Where FDIC brought action against former officers and directors of three banks which merged into bank later declared insolvent, claim limitation period found to have expired under federal law not state law. FDIC v. Former Officers and Dir. of Metro. Bank, 705 F Supp 505 (D. Or. 1987)

In beneficiary's claim that trustee negligently administered trust's assets, statute of limitations does not begin to run until beneficiary knows, or reasonably should know, that he was damaged by trustee's alleged negligence. Condon v. Bank of California, 92 Or App 691, 759 P2d 1137 (1988)

In order to be misleading, for purpose of subsection (4) of this section, representation must have some relationship to plaintiff's knowledge or awareness of facts constituting claim. Jones v. Salem Hospital, 93 Or App 252, 762 P2d 303 (1988), Sup Ct review denied

Although innocent contemporaneous representations which relate in particular ways to gravamen of claim cannot be "misleading representations" under subsection (4) of this section, contemporaneousness ends when maker of representation knows or has reason to know information which he did not have at time of negligently performed procedure or its immediate aftermath and which reasonably indicates that something in performance of procedure, or related to it, went wrong. Jones v. Salem Hospital, 93 Or App 252, 762 P2d 303 (1988), Sup Ct review denied

Filing is complete when papers are received by clerk and complaint by mail was timely filed where last day for filing would have been Saturday and Monday was legal holiday. Cooper v. City of Ashland, 871 F2d 104 (9th Cir. 1989)

When claim characterized as false light alleges facts that also constitute claim for defamation, claim must be filed within period for bringing defamation claim under ORS 12.120, not this provision. Magenis v. Fisher Broadcasting, Inc., 103 Or App 555, 798 P2d 1106 (1990)

In action for professional negligence brought by former criminal defendant against lawyer, statute of limitations does not begin to run until criminal defendant has been exonerated. Stevens v. Bispham, 316 Or 221, 851 P2d 556 (1993)

Knowledge of violation of informed consent right did not mean patient knew, or with reasonable care should have known, of cause of action for negligence in performance of surgery. Gaston v. Parsons, 318 Or 247, 864 P2d 1319 (1994)

Whether plaintiff should have known of tortious conduct depends on what plaintiff would have actually discovered had inquiry been conducted. Doe v. American Red Cross, 322 Or 502, 910 P2d 364 (1996)

Plaintiff should, with reasonable care, discover injury at time information available to plaintiff discloses existence of actionable injury. Greene v. Legacy Emanuel Hospital, 335 Or 115, 60 P3d 535 (2002)

Where state did not appeal decision exonerating defendant, statute of limitations on legal malpractice claim began running upon date exoneration became certain due to expiration of time for state to appeal. Abbott v. DeKalb, 221 Or App 339, 190 P3d 413 (2008)

Pleading and Effect of Appeal

When the pleadings disclose that the action was not commenced within two years after the alleged fraud was consummated, it is necessary for plaintiff to negate lack of diligence in the discovery of the fraud and to set forth the reasons why there was not an earlier discovery of the fraud. Salem Sand & Gravel v. Salem, 260 Or 630, 492 P2d 271 (1971)

Motion to dismiss for reason that pleading shows action has not been commenced within time limited by statute is limited to what appears on face of pleading and, in considering motions to dismiss, court looks not to superseded original complaint but only facts alleged in amended complaint. O'Gara v. Kaufman, 81 Or App 499, 726 P2d 403 (1986)

Action Upon A Statute for Forfeiture or Penalty to the State or County

An action to recover public assistance unlawfully obtained brought pursuant to ORS 411.620 was not "an action upon a statute for forfeiture or penalty to the state or county" and limitation period of this section did not apply to bar it. Adult and Family Services Div. v. Scoggins, 49 Or App 769, 620 P2d 962 (1980)

Battery

For action for battery, statute begins to run when person discovers that touching occurred and recognizes that touching was offensive. Whalen v. American Medical Response Northwest, 256 Or App 278, 300 P3d 247 (2013)

Law Review Citations

52 OLR 91-104 (1972); 73 OLR 753 (1994); 50 WLR 195 (2014)

Chapter 12

Notes of Decisions

An action for personal injuries caused by breach of implied warranty is clearly one for which "different limitation is prescribed by statute" under ORS 12.010 and thus is not governed by provisions of this chapter. Redfield v. Mead, Johnson & Co., 266 Or 273, 512 P2d 776 (1973)


Source

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Jun. 26, 2021