Cooksey v. Portland Public School District No. 1

923 P.2d 1328, 143 Or. App. 527, 1996 Ore. App. LEXIS 1402
CourtCourt of Appeals of Oregon
DecidedSeptember 18, 1996
Docket9501-00186; CA A91297
StatusPublished
Cited by14 cases

This text of 923 P.2d 1328 (Cooksey v. Portland Public School District No. 1) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cooksey v. Portland Public School District No. 1, 923 P.2d 1328, 143 Or. App. 527, 1996 Ore. App. LEXIS 1402 (Or. Ct. App. 1996).

Opinions

[529]*529LANDAU, J.

The principal issue in this case is whether the statute of limitations for actions against public officials or bodies for injuries to a minor child is tolled until the appointment of a guardian ad litem. The trial court held that the statute contains no tolling provision and, on that basis, entered summary judgment for defendant on plaintiffs claims for battery and negligence arising out of alleged inappropriate sexual contact that occurred more than two years before the filing of the complaint. Plaintiff contends that in prior decisions we have read such a tolling provision into the statute and that we should not now depart from that case law. In the alternative, plaintiff asserts that her claim did not accrue until less than two years before the filing of the complaint, when she first began exhibiting adverse symptoms resulting from the inappropriate contact. We conclude that the trial court correctly read the statute of limitations, that there is no tolling provision applicable to this case and that plaintiffs claims accrued at the time of the inappropriate sexual contact, more than two years before the complaint was filed. Accordingly, we affirm.

We review the trial court’s entry of summary judgment in favor of defendant to determine whether there is an absence of genuine issues of material fact and whether defendant is entitled to judgment as a matter of law. ORCP 47. The material facts are not disputed for the purposes of our review; the sole question before us is one of law.

In the school year beginning September 1992, plaintiff was an eighth grade student at a Portland middle school. In November and December 1992, plaintiffs homeroom teacher allegedly touched plaintiff inappropriately and made sexual advances toward her. Plaintiff did not tell her parents or any authorities at school about the incidents. Three months later, plaintiff began to experience severe depression and reported the incidents. She was hospitalized on March 15,1993.

On January 11, 1995, plaintiff filed a complaint by and through her father, who had been appointed guardian ad litem that same day. She alleged two claims, for battery and [530]*530for negligence, against defendant. Defendant answered, alleging as an affirmative defense that plaintiff failed to bring the action within the two-year period required by ORS 30.275(8), which provides:

“Except as provided in ORS 12.120[1] and 12.135,[2] but notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action, an action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of [the tort claims act] shall be commenced within two years after the alleged loss or injury.”

Defendant moved for summary judgment on its statute of limitations defense. The trial court granted the motion and entered judgment dismissing both of plaintiffs claims.

On appeal, plaintiff argues that the two-year limitation contained in ORS 30.275(8) is tolled in the case of claims brought by minors until the appointment of a guardian ad litem. Plaintiff points to no language in the statute itself in support of her argument. Her sole contention is that we once inferred such tolling in Banda v. Danner, 87 Or App 69, 741 P2d 514 (1987), affd by an equally divided court 307 Or 302, 766 P2d 385 (1988), and we should not abandon that decision now. Defendant asserts that the language of ORS 30.275(8) is clear and does not provide for the tolling of claims brought by minors. It further argues that plaintiff misreads our decision in Banda. According to defendant, in that case we did not even address the question of whether the statute is tolled for minor plaintiffs.

Resolution of the parties’ arguments requires us to determine the intended meaning of ORS 30.275(8), which we ascertain by examining the text in context and, if necessary, [531]*531the legislative history and maxims of statutory construction. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993). Also relevant are any prior judicial decisions construing the statutory language at issue. State v. Sullens, 314 Or 436, 443, 839 P2d 708 (1992). At all events, we are constrained by statute and constitutional principles to give meaning to the language as enacted, not to insert language that was omitted or to omit language that was included by the legislature. ORS 174.010; Fernandez v. Board of Parole, 137 Or App 247, 252, 904 P2d 1071 (1995).

In this case, examination of the text in context is dis-positive. ORS 30.275(8) provides that, subject to two enumerated exceptions, “notwithstanding any other provision of ORS chapter 12,” relating to limitations, an action arising out of the acts or omissions of public bodies or officers “shall be commenced within two years after the alleged loss or injury.” The two enumerated exceptions do not relate to actions brought by minors. Thus, the two-year limitation period controls.

That reading of the statute is borne out by its context. ORS 30.275(2) establishes a 180-day notice period for tort claims brought against a public body, subject to a limited exception — up to an additional 90 days — for “minority, incompetency or other incapacity.” Thus, it is clear that when the legislature wanted to include exceptions for minor plaintiffs it did so. It did not do so in ORS 30.275(8).

Plaintiff’s reliance on Banda for a contrary reading of the statute is misplaced. Although there is language in that case to support her proposed construction of the statute, both the Supreme Court and this court have rendered subsequent decisions that leave that language without further force and effect. At issue in Banda was when the 180-day notice period described in ORS 30.275(2) began to run. This court held that the 180-day period began to run when the underlying claim had “accrued” and that claims subject to the statute accrued when the plaintiff had “a reasonable opportunity to discover the fact of the injury and that the defendant was negligent in some respect which caused the plaintiff damage.” Banda, 87 Or App at 72 (emphasis in original). In that context, the question arose whether the knowledge of a [532]*532minor plaintiffs parent was attributable to the plaintiff for the purpose of determining when an action accrued.

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Cooksey v. Portland Public School District No. 1
923 P.2d 1328 (Court of Appeals of Oregon, 1996)

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Bluebook (online)
923 P.2d 1328, 143 Or. App. 527, 1996 Ore. App. LEXIS 1402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooksey-v-portland-public-school-district-no-1-orctapp-1996.