§20.5 Defenses

LibraryTorts (OSBar) (2012 Ed.)
§20.5 DEFENSES

§20.5-1 To Claims Based on Strict Tort Liability

§20.5-1(a) Overview

Pleading rules in strict products liability actions are the same as in other cases. "A party shall state in short and plain terms the party's defenses to each claim asserted and shall admit or deny the allegations upon which the adverse party relies." ORCP 19 A. The answer must affirmatively set forth certain defenses. ORCP 19 B. Facts that tend to disprove any of the plaintiff's allegations need not be alleged. Although ORCP 19 B replaced former ORS 16.290, the comments by the Council on Court Procedures indicate that ORCP 19 "does not change the existing burden of pleading." ORCP 19, comment (available at < http://legacy.lclark.edu/~ccp/Content/Promulgations/1978_original_ORCP_promulgation.pdf >).

PRACTICE TIP: Before filing a responsive pleading, the lawyer should review the list of affirmative defenses in ORCP 19 B. The lawyer should also refer to ORCP 21 G regarding waiver or preservation of certain defenses.

"The purpose of pleadings is to apprise the opposing party of the pleader's theory and what is contended so no one will be taken by surprise at the time of trial." Wulff v. Sprouse-Reitz Co., 262 Or 293, 302, 498 P2d 766 (1972). This principle applies in products liability cases.

§20.5-1(b) Statutes of Limitation and Ultimate Repose

§20.5-1(b)(1) Introduction and Recent Statutory Revisions

Whether a claim is subject to the limitation periods of ORS 30.905 depends on whether the claim falls within the purview of a "product liability civil action" as defined in ORS 30.900. In Weston v. Camp's Lumber & Bldg. Supply, Inc., 205 Or App 347, 358, 135 P3d 331 (2006), the court developed two rules from prior cases to determine whether a claim is based on a product defect or warning failure within ORS 30.900 and 30.905: (1) the court will look to the predominant operative facts of the claim, and not be bound by the characterization by the plaintiff; and (2) if the predominant characteristic is based on product defect or failure to warn or instruct, then the limitation provisions of ORS 30.905 apply. See also Sealey By and Through Sealey v. Hicks, 309 Or 387, 394-395, 788 P2d 435 (1990) (statute of repose held constitutional); Marinelli v. Ford Motor Co., 72 Or App 268, 274, 696 P2d 1 (1985) (same). See §20.2-1 for discussion of the legislative underpinnings of the statute of repose.

The 2009 Legislature reorganized and revised the statutes of limitation and repose. Effective January 1, 2010, the amendments to ORS 30.905 apply to causes of action that arise after that date. The amended law retains the two-year discovery period for the statutes of limitation and increases the statute of repose for product liability civil actions from eight years to 10 years. ORS 30.905(1). However, the repose period can be longer if the statutory repose period of the state of manufacture or the state into which the product was imported from a foreign country is longer than Oregon's repose period of 10 years. ORS 30.905(2)(b). The amended statute eliminates the former distinction between the date of harm and the date of first purchase, and uses only the date of first purchase for use or consumption. ORS 30.905(2)(a)-(b). The 2009 amendments to ORS 30.905 retain different treatment for death actions (ORS 30.905(3)) and personal injury and property damages actions (ORS 30.905(2)).

Manufactured dwellings, as defined in ORS 446.003, and prefabricated structures, as defined in ORS 455.010, are not subject to the limitation periods in ORS 30.905, and instead are subject to the limitations set forth in ORS 12.135. ORS 30.905(5).

For discussion of the law related to causes of action that arose before January 1, 2010, and that may have been revived, see §20.5-1(b)(5). See also chapter 32 for discussion of statutes of limitations and statues of repose.

PRACTICE TIP: In some cases, if the plaintiff's lawyer dies before the statute of limitations has expired, the plaintiff has an additional 180 days in which to file the claim. ORS 12.195.

§20.5-1(b)(2) Limitation and Repose Periods for Personal Injury or Property Damage

Oregon law creates two periods of limitation to consider in cases of personal injury and property damage:

(1) General Limitation Rule: Suit must be brought within two years from discovery. A plaintiff must commence a products liability civil action for any personal injury or property damage "not later than two years after the plaintiff discovers, or reasonably should have discovered, the personal injury or property damage and the causal relationship between the injury or damage and the product, or the causal relationship between the injury or damage and the conduct of the defendant." ORS 30.905(1).

(2) Ultimate Repose Period. Notwithstanding the general limitation rule,

A product liability civil action for personal injury or property damage must be commenced before the later of:
(a) Ten years after the date on which the product was first purchased for use or consumption; or
(b) The expiration of any statute of repose for an equivalent civil action in the state in which the product was manufactured, or, if the product was manufactured in a foreign country, the expiration of any statute of repose for an equivalent civil action in the state into which the product was imported.

ORS 30.905(2).

QUERY: When does the 10-year limitation begin to run in a "product lease" case? The ultimate repose provisions run from "the date on which the product was first purchased for use or consumption." However, the liability provisions of ORS 30.920 apply to the sale or lease of a product.

§20.5-1(b)(3) Limitation and Repose Periods for Wrongful Death

Oregon law creates two periods of limitation to consider in cases of death:

(1) General Limitation Rule: Suit must be brought within three years from discovery. Subject to the repose limitation discussed below,

a product liability civil action for death must be commenced not later than three years after the decedent, the personal representative for the decedent or a person for whose benefit an action could be brought under ORS 30.020 discovers, or reasonably should have discovered, the causal relationship between the death and the product, or the causal relationship between the death and the conduct of the defendant.

ORS 30.905(3).

(2) Ultimate Repose Period. Notwithstanding this general limitation rule,

A product liability civil action for death must be commenced before the earlier of:

(a) Three years after the death of the decedent;
(b) Ten years after the date on which the product was first purchased for use or consumption; or
(c) The expiration of any statute of repose for an equivalent civil action in the state in which the product was manufactured, or, if the product was manufactured in a foreign country, the expiration of any statute of repose for an equivalent civil action in the state into which the product was imported.

ORS 30.905(4).

§20.5-1(b)(4) Special Ultimate Repose Statutes

The legislature has enacted a number of special statutes of limitation and ultimate repose related to specific types of products. These special statutes include the following:

(1) Products provided by physicians, ORS 30.902.

(2) Asbestos products, ORS 30.907.

(3) Breast implants containing silicone, silica, and silicon, ORS 30.908.

(4) Halide or mercury vapor light bulbs, ORS 30.928.

(5) Side-saddle gas tanks on pickup trucks, ORS 12.278.

(6) Extendable equipment in cases arising out of contact with power lines, ORS 12.282.

The General Aviation Revitalization Act of 1994, 49 USC §40101 note, sets an 18-year statute of ultimate repose for products liability actions against aircraft manufacturers and component-part manufacturers. The time period begins to run from the date that a manufacturer delivers an aircraft to its first purchaser or the date of delivery to a retailer or lessor of the aircraft. For replacement component parts, the time period runs from the date that the replacement is completed. The term general aviation aircraft means airplanes with a maximum seating capacity of fewer than 20 people at the time they were issued airworthiness certificates. 49 USC §40101.

§20.5-1(b)(5) 2003 Amendments—Revival of Certain Claims

Before 2003, Oregon's statute of repose for product liability actions did not include a discovery rule. In Gladheart v. Oregon Vineyard Supply Co., 332 Or 226, 234, 26 P3d 817 (2001), the court explained that "[t]he legislature knows how to express a discovery rule when it desires to do so. The legislature did not include the words 'discover,' 'discovery,' or any words that imply a similar meaning in [former] ORS 30.905(2)." And in Kambury v. DaimlerChrysler Corp., 334 Or 367, 374, 50 P3d 1163 (2002), in a wrongful death in the product liability context, the court held that the two-year statute of limitations applied, rather than the three-year period of the general wrongful-death provision set forth in ORS 30.020(1)(a).

The 2003 Legislature amended ORS 30.905 to include a discovery rule, which revived some products liability causes of action in which final judgments were entered based on the statutory provisions in effect before the 2003 amendments, if the claims would have been viable had the 2003 amendments applied. A claim based on a revived cause of action must have been entered on or after June 8, 2001, and before January 1, 2004. 2003 Or Laws ch 768, §2(2)-(3).

For revival to apply, the cause of action must meet three requirements:

(1) The claim based on the cause of action must have been filed before January 1, 2004;

(2) The claim must have been filed within the time allowed by the amended version of ORS 30.905;

(3) The claim must have been dismissed from court based on the old version of ORS 30.905 and judgment entered on or after June 8, 2001, and before January 1, 2004. 2003 Or Laws ch 768, §2(2).

The Oregon Supreme Court, in a certified-question case, held that this revival of claims by...

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