Summary
barring an FTCA claim by applying a statute of repose
Summary of this case from Bagley v. United StatesOpinion
No. CV-06-739-HU.
October 18, 2006
Carl R. Neil, Glen P. McClendon, Jenni E. Marsh, LINDSAY, HART, NEIL WEIGLER, LLP, Portland, Oregon, Attorneys for Plaintiff.
Karin J. Immergut, UNITED STATES ATTORNEY, James L. Sutherland, ASSISTANT UNITED STATES ATTORNEY, District of Oregon, Portland, Oregon, Attorneys for Defendant.
OPINION ORDER
Plaintiff Jillina Manion brings this Federal Tort Claims Act action against the United States for damage done to her property. Defendant moves to dismiss based on the statute of ultimate repose. Both parties have consented to entry of final judgment by a Magistrate Judge in accordance with Federal Rule of Civil Procedure 73 and 28 U.S.C. § 636(c). I grant the motion.
BACKGROUND
Plaintiff owns a residence and real property of 0.27 acres in Astoria. Am. Compl. at ¶ 1. The United States Coast Guard is an owner of 43 acres located next to the east line of plaintiff's property. Id. at ¶ 2.
Plaintiff's residence was built in 1969. Id. at ¶ 5. Plaintiff acquired it in 1990. Id. Plaintiff's property is adjoined on the east by the steep westerly slope of a ravine that runs generally parallel with the east line of plaintiff's property and a small stream running at the bottom of the ravine, approximately fifty feet below the level of plaintiff's adjacent property. Id.
Before 1993, the ravine and stream were in their natural state and the westerly slope of the ravine furnished lateral support to plaintiff's adjacent property. Id. at ¶ 6. Also, up to that time, Alameda Avenue, which runs on the north, front line of plaintiff's property, terminated at the northeasterly corner of plaintiff's property and near the top of the westerly slope of the ravine. Id.
In 1993-1994, the Coast Guard constructed a large housing development consisting of over one hundred residential units, on the property adjacent to plaintiff's property. Id. at ¶¶ 2, 7. In the course of that construction work, defendant caused Alameda Avenue to be extended from its former terminus at the northeastern corner of plaintiff's property to cross the ravine and continue into defendant's property by placing a culvert approximately forty-eight inches in diameter at the bottom of the ravine and filling the ravine to street level. Id. at ¶ 7.
The Coast Guard further caused excavation work to be done at the bottom of the ravine and in the slopes of the ravine adjacent to plaintiff's property in order to divert into the culvert and stream a large quantity of water draining downhill on defendant's property from the housing unit areas that had formerly not drained into the ravine. Id.
Plaintiff alleges that the construction removed the lateral support of her property furnished by the westerly slope of the ravine on defendant's property adjacent to the easterly line of plaintiff's property, causing plaintiff's residence to subside and its foundation, walls, and ceilings to crack and break up.Id. at ¶ 8. Plaintiff contends that the extent of the subsidence continues to increase as time passes, and will make plaintiff's residence uninhabitable in the near future until the subsidence is halted by reconstruction of plaintiff's residence or other means. Id.
Plaintiff contends that defendant's removal of the lateral support of plaintiff's property was negligent in that defendant was warned by its soils engineers that soils in the ravine and slopes were unstable, and that excavation and other work in the ravine would cause slippage and subsidence of those soils and of soils on nearby property, including plaintiff's property, unless certain measures were taken in excavating and altering the ravine and stream to avoid those results. Id. at ¶ 9. Plaintiff contends that defendant failed to cause those measures to be performed or to be performed properly, and failed to inspect the excavation and other alterations of the ravine and stream to see that the recommended measures were performed or were performed properly.Id. at ¶ 10.
Plaintiff further contends that since the alleged negligent conduct described above, defendant has continued to be negligent in failing to inspect and maintain the ravine area on its property adjacent to plaintiff's property in such a manner as to prevent its slippage and subsidence and reduction of lateral support to plaintiff's property. Id.
Plaintiff contends that she did not discover the subsidence damages to her property and that defendant's conduct caused it, until 2004, less than two years before filing the case. Id. at ¶ 12. Plaintiff alleges that she has been damaged in the amount of $240,400 for the alleged negligent conduct. Id. at ¶ 11.
STANDARDS
On a motion to dismiss, the court must review the sufficiency of the complaint. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The court should construe the complaint most favorably to the pleader:
In appraising the sufficiency of the complaint, we follow, of course, the accepted rule that the complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.Conley v. Gibson, 355 U.S. 41, 45-46 (1957); American Family Ass'n, Inc. v. City County of San Francisco, 277 F.3d 1114, 1120 (9th Cir. 2002). The allegations of material fact must be taken as true. Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994).
DISCUSSION
Under the Federal Tort Claims Act (FTCA), a claim may be asserted against the United States for money damages for injury to or loss of property caused by the negligent or wrongful act of any employee of the federal government while acting within the scope of his office or employment under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1); see also United States v. Orleans, 425 U.S. 807, 813 (1976) (the federal government is liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment); 28 U.S.C. § 2674 (the United States is liable "in the same manner and to the same extent as a private individual under like circumstances").As explained by the Supreme Court, "[a]s this provision [ 28 U.S.C. § 2674] makes clear, in conjunction with the jurisdictional grant over FTCA cases in 28 U.S.C. § 1346(b), the extent of the United States' liability is generally determined by reference to state law." Molzof v. United States, 502 U.S. 301, 305 (1992).
Under Oregon Revised Statute § (O.R.S.) 12.115,
(1) In no event shall any action for negligent injury to person or property of another be commenced more than 10 years from the date of the act or omission complained of.
(2) Nothing in this section shall be construed to extend any period of limitation otherwise established by law, including but not limited to the limitations established by ORS 12.110.
Additionally, O.R.S. 12.135 provides that
(1) An action against a person, whether in contract, tort or otherwise, arising from such person having performed the construction, alteration or repair of any improvement to real property or the supervision or inspection thereof, or from such person having furnished the design, planning, surveying, architectural or engineering services for such improvement, shall be commenced within the applicable period of limitation otherwise established by law; but in any event such action shall be commenced within 10 years from substantial completion or abandonment of such construction, alteration or repair of the improvement to real property.
* * *
(3) For purposes of this section, "substantial completion" means the date when the contractee accepts in writing the construction, alteration or repair of the improvement to real property or any designated portion thereof as having reached that state of completion when it may be used or occupied for its intended purpose or, if there is no such written acceptance, the date of acceptance of the completed construction, alteration or repair of such improvement by the contractee.
O.R.S. 12.135.
Defendant argues that plaintiff's claim is barred by O.R.S. 12.115 and/or 12.135. Defendant notes that the Amended Complaint alleges that construction was completed in 1994 and the administrative tort claim alleges that it was completed in 1993. The administrative tort claim was not filed until April 7, 2005, and the Complaint was not filed until May 22, 2006. Neither the administrative tort claim nor the Complaint were filed within 10 years of the alleged negligent act or the completion of the construction project.
In the motion to dismiss, defendant moves to dismiss based on these statutes, but alternatively moves to limit plaintiff's claim to the amount of damages specified in her administrative claim. After the motion was filed, plaintiff filed an amended complaint. In its reply brief, defendant states that it will not pursue the alternative motion at this time, but will wait, if the claim survives the motion to dismiss, for discovery before raising that argument.
Plaintiff contends that the statute of repose does not apply because she had an active, continuous relationship with defendant, and alternatively, that a continuing duty by defendant to inspect and maintain the ravine area on its property to ensure adequate lateral support is enough to sustain her claim. She also argues, based on a Kansas case, that her action did not accrue until her land subsided.
I reject plaintiff's active, continuous relationship argument. In Josephs v. Burns, 260 Or. 493, 491 P.2d 203 (1971),overruled in part on other grounds, Smothers v. Gresham Transfer, Inc., 332 Or. 83, 23 P.3d 333 (2001), the Oregon Supreme Court addressed the statute of ultimate repose in O.R.S. 12.115(1) in a construction case involving a collapsed roof. The court first rejected the plaintiffs' argument that the ten-year limitation did not begin to run until the roof collapsed. Id. at 496, 491 P.2d at 204. The court stated that the statute was intended "to provide an overall maximum upper limit on the time within which a tort action could be brought, regardless of the date of discovery or of any other circumstances." Id. at 498, 491 P.2d at 205. The court also noted that "the inability of the damaged party to bring an action was not intended to prevent the running of the statutory period." Id. at 496, 491 P.2d at 204.
Based on this holding from Josephs, it is clear that O.R.S. 12.115(1) bars plaintiff's allegations of negligent design and construction of the Coast Guard housing facility and the area adjacent to plaintiff's property. See Little v. Wimmer, 303 Or. 580, 583, 739 P.2d 564, 565-66 (1987) (holding that the trial court correctly held that O.R.S. 12.115(1) and 12.135 barred the plaintiffs' action for defects existing as a result of the design or at the time of the original construction, as the subject intersection was designed and constructed more than 10 years before plaintiffs' cause of action).
The Josephs court then addressed the plaintiffs' argument that the defendants had a continuing duty to warn them of the hazards of an improperly constructed roof. The court responded that
[i]f the statute was intended to be one of ultimate repose, regardless of circumstances, it would follow that the legislature did not intend the statute to be circumvented by allegations that subsequent to the fundamental wrong, a continuing duty existed to rectify the results of such wrong. By this statement we do not intend to prejudge a situation in which an active, continuous relationship between plaintiff and defendant exists from the time of the negligent acts to a time within the period during which an action is permitted.Id. at 501-02, 491 P.2d at 207.
A 1977 case further explained the "active, continuous relationship" exception noted in Josephs. In Cavan v. General Motors, 280 Or. 455, 571 P.2d 1249 (1977), the court rejected the argument that the provision by a manufacturer of a part, post-sale, was sufficient to show a continuing relationship as envisioned in Josephs. The court explained its earlier holding inJosephs:
In Josephs we withheld consideration of situations in which the plaintiff is in a relationship of trust and confidence with the defendant and in which continued treatment or other ongoing resort to the skills of the defendant is required. The classic example is the doctor-patient relationship. . . . . In cases such as this the potential plaintiff may be in no position of independence to recognize fairly the existence of a cause of action until the relationship is terminated. Such a situation may call for a different application of the policies behind a statute of limitations or statute of ultimate repose.Id., 280 Or. at 458, 571 P.2d at 1250 (citation omitted).
A more recent Oregon Court of Appeals case, Rutter v. Neuman, 188 Or. App. 128, 71 P.3d 76 (2003), one with facts more analogous to the instant matter, rejected an argument made by the plaintiffs based on the Josephs "active, continuous relationship" exception to the statute. There, the plaintiffs alleged negligence by the City of Ashland, arising out of a landslide that damaged their property. The City argued that the action was time barred under either O.R.S. 12.115(1) or 12.135(1). The plaintiffs argued that neither of those statutes applied because their action was not based on the failure of the city to abate the condition in 1984, but rather on the continuing failure to take action from 1984 through the filing of the complaint in 1997.
Relying on Josephs and other cases, the plaintiffs argued that they had an "active, continuous relationship" with the city by virtue of what the plaintiffs described as a continuing obligation to remedy public nuisances as provided in the municipal code. The court discussed earlier cases, includingCavan, in regard to the "active, continuous relationship" issue and rejected the plaintiffs' argument. Id. at 136-37, 71 P.3d at 80. The court noted that there was no evidence of any relationship between the plaintiffs and the city after 1984, when the plaintiffs moved out of the house and decided not to sue.Id. It explained that "[p]laintiffs have cited no evidence of any conversations, correspondence, or other communications between them and the city from 1984 to 1997. Certainly nothing in the record demonstrates the existence of the sort of `relationship of trust and confidence with the defendant' that the court said was necessary in Cavan." Id.
Here, defendant notes that plaintiff has not alleged an active, continuous relationship between the parties. Nothing in the Amended Complaint demonstrates the existence of a relationship of trust or confidence with the government that would constitute an active, continuous relationship between the parties. As in Rutter, there is no evidence of any "conversations, correspondence, or other communications" between the plaintiff and the Coast Guard. Moreover, the cases do not support finding the presence of an active, continuous relationship as articulated in Josephs based only on the status of adjoining landowners. Without any additional allegations, plaintiff cannot sustain a continuing negligence claim on the basis of an active, continuous relationship with defendant.
Plaintiff next relies on Little to argue that her allegations of post-construction negligence in paragraph 10 of the Amended Complaint are distinguishable and not subject to the limitations in the statutes of ultimate repose. In Little, the court, as noted above, affirmed the trial court's conclusion that any claims based on the original design and construction of an allegedly dangerous intersection, were barred by the statute of ultimate repose.
The court then distinguished the plaintiffs' "independent premise" that the defendants were negligent in failing to remedy a dangerous condition of the highway and in failing to warn motorists of the existing dangerous condition of the highway.Little, 303 Or. at 585, 739 P.2d at 567. Such allegations were not subject to the statute of ultimate repose when they were separate and apart from any alleged negligence at the time of design and construction or any failure to correct such original negligence. Id.
The court noted that there was no dispute that the state was responsible for maintaining the intersection. Id. The state was charged by statute with the continuous supervision and control of maintenance and improvement of the state's highways. Id. at 585, 739 P.2d at 567. The state conceded as much. Id. The court further noted that the evidence that a number of accidents had occurred at or near the intersection created factual questions about the foreseeability of risk and the appropriateness of the defendant's conduct in failing to remedy the situation or in failing to warn motorists of the potential danger of that part of the highway. Id. at 586, 739 P.2d at 567. These were issues appropriately reserved for the jury.
Relying on Little, plaintiff here argues that she has a viable allegation of continuing negligence by defendant, for failing to inspect and maintain the ravine area on the Coast Guard's property adjacent to her property in such a manner as to prevent its slippage and subsidence and reduction of lateral support to her property. She contends that this allegedly negligent conduct continues to the present day.
She argues that just as the Oregon Supreme Court ruled that the allegations of plaintiff in Little relating to an ongoing failure to remedy and a failure to warn prevented summary judgment to the defendant on a statute of ultimate repose theory, defendant's motion to dismiss in the instant case should be denied in light of defendant's continuing duty to provide lateral support.
Defendant responds that plaintiff's allegations of post-construction and design negligence do not identify a statute, rule, or duty that requires independent, contemporaneous maintenance or inspection. Without such a requirement, defendant argues, the continuing negligence allegations in paragraph 10 of the Amended Complaint should be barred.
I agree with defendant. The allegations in paragraph 10 expressly address defendant's alleged failure to inspect and maintain the ravine area. Am. Compl. at ¶ 10. Unlike in Little, defendant does not concede any duty to provide ongoing inspection and maintenance. Unlike in Little, there is no identified source of such a duty.
In her memorandum in opposition to the motion to dismiss, plaintiff refers to defendant's duty, as an adjoining landowner, to provide lateral support to plaintiff's property. Although plaintiff cites no Oregon cases discussing such a duty, I assume for the purposes of this Opinion, that Oregon recognizes one.See State ex rel. Dep't of Transp. v. Winters, 170 Or. App. 118, 128, 10 P.3d 961, 968 (2000) (right of lateral support is a right of property annexed to land). Nonetheless, this "duty" by defendant to provide lateral support in support of plaintiff's continuing negligence allegations does not bar the application of the statute of ultimate repose because any such duty by defendant was breached at the time of the construction of the Coast Guard housing units. That is, the lateral support was removed before the statute of repose time period and any claim based on the violation of such a duty is time barred.
Additionally, as conceded by plaintiff during oral argument, plaintiff has no evidence of any apparent post-construction problem or accident or event which would independently sustain a post-construction or design negligence claim, or at least create some duty by defendant to address the problem by acting or refraining from acting. As such, I find no basis for concluding that Little supports an exception to the application of the statute of ultimate repose.
Finally, plaintiff relies on a 1993 Kansas case which concerned a trespass claim following the collapse of a subsurface mine.Nida v. American Rock Crusher Co., 253 Kan. 230, 855 P.2d 81 (1993). The Nida plaintiffs brought a trespass action after a subsurface mine collapsed, damaging their property. The last quarrying activity occurred in 1960, but the collapse of the land did not occur until 1990. The issue before the Kansas Supreme Court was whether the statute of repose contained in Kansas statute 60-513(b) barred the plaintiffs' action.
Subsection (a) of the statute provided a two-year statute of limitations for trespass claims. Id. at 231, 855 P.2d at 82. Subsection (b) provided that
"[t]he causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action."Id. at 232, 855 P.2d 81 (quoting K.S.A. 1992 Supp. 60-513(b)) (emphasis added).
The defendant mining company argued that the "act giving rise to the cause of action" was the underground quarrying activity, which had occurred more than ten years prior to the plaintiffs filing suit. The plaintiffs contended that the "act giving rise to the cause of action" was the collapse of their surface land, which had occurred the same year they filed suit.
The Kansas Supreme Court distinguished negligence claims from intentional torts, focusing primarily upon trespass actions. It stated:
Although a negligence cause of action usually runs from an act of a defendant, a trespass action need not, and often would not, run from an act of defendant. There is no trespass until the entry is accomplished and the damage occurs (or has begun to occur, as in a case of continuing trespass). The trespass counterpart of the negligence "wrongful act" is the entry and the damage. In the present case, the entry was accomplished and the damage occurred when the surface fell. . . . Here, the "act giving rise to the cause of action" was the subsidence of the surface and not the mining operations. The mining of the coal was not wrongful and did not give rise to a cause of action during or upon completion of the mining of the coal.Id. at 238-39, 855 P.2d at 86-87.
Based on Nida, plaintiff argues that her claims against defendant did not accrue until her property and house began to move. She notes that the Amended Complaint does not state exactly when damage to her property began to occur, but it does allege that she did not discover the subsidence caused by defendant's conduct until 2004, less than two years before the filing of the case. She argues that because defendant fails, in this motion, to show that she filed her action more than ten years after the land subsided, the case should not be dismissed.
I agree with defendant that Nida is distinguishable. First, as a Kansas case, Nida is not binding on an Oregon claim. Second, Nida may be persuasive authority for a trespass claim, but not a negligence claim. Id. at 239, 855 P.2d at 87 (noting that negligence and product liability cases cited by the defendant were distinguishable because they involved the wrongful act of negligence or manufacturing and selling a defective or harmful product, but in the trespass claim at issue, the act giving rise to the cause of action was the subsidence of the surface and not the mining operations.). Because plaintiff in the instant case does not bring a trespass claim, Nida is inapplicable.
Third, even if plaintiff were to bring her claim as a trespass claim, Nida does not supply appropriate reasoning for an Oregon trespass claim. Under Oregon law, "negligence describes the defendant's conduct whereas trespass and nuisance describe the invasion of plaintiff's interest in land. Thus either a trespass or a nuisance may arise out of intentional, negligent, reckless, or ultrahazardous conduct." Furrer v. Talent Irrigation Dist., 258 Or. 494, 506 n. 5, 466 P.2d 605, 611 n. 5 (1970); see also Martin v. Union Pac. R.R. Co., 256 Or. 563, 565, 474 P.2d 739, 740 (1970) ("[a] trespass arises when there is an intrusion upon the land of another which invades the possessor's interest in the exclusive possession of his land. The intrusion may be caused by either intentional, negligent, reckless or ultrahazardous conduct."); Carvahlo v. Wolfe, 207 Or. App. 175, 181-82, 140 P.3d 1161, 1164 (2006) (damage from tree roots did not constitute trespass without an allegation of fault based on intentional, reckless, or negligent conduct, or in the absence of an allegation of engagement in ultrahazardous activity).
Kansas does not appear to require an allegation regarding the nature of the defendant's conduct to sustain a trespass claim. Here, to support a trespass claim, plaintiff must allege that defendant's acts of "intrusion" of land were a result of defendant's negligent conduct. As such, the statute of ultimate repose in O.R.S. 12.115 bars her claim.
While in theory a trespass claim can be supported by an allegation that the defendant acted intentionally or recklessly, or engaged in ultrahazardous activity, the Amended Complaint supports only an allegation of negligent conduct.
In Cereghino v. Boeing Co., 826 F. Supp. 1243 (D. Or. 1993), Judge Jelderks considered both intentional and negligent trespass claims brought by the plaintiffs against a neighboring landowner for contamination of the plaintiffs' groundwater by hazardous chemicals. After granting summary judgment to the defendant on the intentional trespass claim, Judge Jelderks considered the defendant's argument that the statute of ultimate repose in O.R.S. 12.115 barred the negligent trespass claim because it was undisputed that more than ten years elapsed between the use of the chemical on the defendant's property and the filing of the action.
Judge Jelderks first explained that he "initially questioned the proposition that the statute of ultimate repose could bar plaintiffs' negligent trespass and nuisance claims, because it appeared to be inconsistent with a neighboring landowner's ongoing responsibilities, such as that of providing lateral and subjacent support to contiguous property." Id. at 1247. However, despite "continu[ing] to find the application of the statute of ultimate repose to the facts of this action somewhat inconsistent with the general obligations of a neighboring landowner[,]" Judge Jelderks concluded, "after devoting considerable attention and research to this issue," that the statute barred the negligent trespass and nuisance claims. Id.
Judge Jelderks based his conclusion "primarily upon the Oregon Supreme Court's explication of the effect of the statute of ultimate repose in Josephs[.]" Id. He noted that theJosephs court explained that the words "`act or omission complained of' did not relate to the collapse of the roof" because "`it seems obvious . . . that such language refers to the acts of commission or to omissions which are the basis for plaintiffs' claims of defendant's negligence and that the language does not refer to the occurrence of the resulting damage.'" Id. at 1248 (quoting Josephs, 260 Or. at 496, 491 P.2d at 204) (ellipsis in Cereghino).
Judge Jelderks explained that
Under Josephs, it is clear that the "act or omission" referred to in the statute of ultimate repose is an act or omission of a person, not the act of objects such as hazardous substances. This case also clarifies that the statute begins to run at the time of an initial negligent act or omission, and does not refer to any ongoing duty to correct the initial wrong. In the present action, plaintiffs' contentions that the "acts" complained of are the invasion of contaminants, and the omission was the failure to prevent the migration after disposal, therefore fail. The Oregon Supreme Court left no doubt in Josephs that potential plaintiffs such as the Cereghinos can be barred from recovery even before they have been harmed.Id.
In the instant case, even if plaintiff were to further amend her Amended Complaint to bring a trespass claim instead of a negligence claim, the reasoning of Josephs and Cereghinos shows that the claim would still be barred by O.R.S. 12.115 and thus, any such amendment would be futile. Accordingly, defendant's motion is granted.
CONCLUSION
Defendant's motion to dismiss (#4) is granted.IT IS SO ORDERED.