Vaughn v. Langmack

¶1dissenting.

¶2In these cases involving the surgeon who conceals his negligence within a sutured surgical wound the courts have limited their consideration of the statute of limitations to a theory of discovery. Although I believe that lack of discovery provides an adequate reason to judicially withhold the start of the limitation period, it appears to me that in thus limiting the area of consideration the courts have overlooked long established fundamentals of liability for unintentional *565torts that are otherwise generally applied. The sole purpose of this opinion is to demonstrate that the question presented by this case should be decided as a question of fact—not of law. It should be granted that in this case the court may be justified in holding that the tort was complete and the cause of action accrued when the needle was left in plaintiff’s abdomen. But in the next case that issue may not be so readily apparent. We should not tie our hands with a doctrine that will be unworkable in many cases of the undisclosed tort. The majority, by concentration on the questionable rule of expressio unius est ex-clusio alterius and on a laudable reluctance to legislate, overlook the less obvious but more fundamental issue of the case. I urge that it is a mistake to decide this case on demurrer. And the solution I propose will eliminate the issue of judicial legislation.① And, more importantly, it will provide a less arbitrary basis for decision in cases of the unrevealed tort.

¶3It is necessary to begin with the hornbook rule that:

“… In a case of personal injury, caused by common law negligence, such as is alleged here, an actor is liable only if he invades an interest which the law protects against unintended invasion. 65 CJS 319, Negligence, § 1, c; Restatement, Torts, § 281; 38 Am Jur, Negligence, 672, § 27. Damage is the gravamen of such an action for negligence. Negligent contact with the person of another, causing no physical damage is not actionable. That is to say, no right of the plaintiff is invaded in such *566a case unless actual damage is done.” Hall v. Cornett et al, 1952, 193 Or 634, 643, 240 P2d 231, 235.

¶41 Harper & James, Torts, 1956, § 1.4, page 11; Prosser, Torts (2d ed 1955) page 165. Professor Prosser notes that the usually applied rule that the period of limitation does not begin to run in negligence action until damage has occurred has caused difficulty in the malpractice cases. He does no more than make the observation and cite cases.

¶5In the instant case the complaint alleged that defendant left a surgical needle in plaintiff’s abdomen. It then alleged: “Thereafter plaintiff experienced pain and bloating in the upper right quadrant of his abdomen … We are not informed as to when plaintiff actually suffered damage. It can be argued, of course, that the presence of a surgical needle in one’s anatomy would, ipso facto, cause harm. And, in the instant case, such well may be the fact. But common knowledge teaches that even metallic substance inserted into the anatomy in a given way or by a given means may never cause harm. Obviously, more pliable or dissolvable substances are less likely to inflict harm. Medical knowledge also discloses that certain materials, like needles that could be thought to be presumptively harmful, can remain in the anatomy for long periods without harm. And that other substances, like sutures, presumptively non-harmful, may ultimately cause harm. See for example, 2 Cyclopedia of Medicine & Surgery, 1962, page 249, et seq. Evidence, to this effect could be expanded. It is sufficient for present purposes to say that there is no justification to rule, as a matter of law, that harm is the inevitable result of every intrusion into any part of the anatomy of every kind of foreign sub*567stance. Yet this assumption has been the underlying unmentioned premise of all the cases like the instant one. If this premise is wrong, as I think it could be conclusively demonstrated, then a cause of action cannot be said to exist at all unless actual harm can be proven.

¶6It is important to look at some of the similar areas of tort liability to see how the courts have decided when a cause of action accrues. The cases involving the negligent removal of lateral support present a like problem. The similarity of principle in the support cases can be found in the leading, and generally followed, case of Bonomi v. Backhouse, 1859, 120 Eng Reprint 652, reported in Bigelow, Cases on Rights in Land, 1945, page 120. In Bonomi the defendant had mined for coal on his own land. In doing so he damaged the lateral support to plaintiff’s adjoining land. No damage occurred, and plaintiff did not know of the loss of lateral support until after the six year statute of limitations had expired. The entire reasoning of the court cannot be quoted. It can be summarized in this language:

“… We are not insensible to the consideration that the holding damage to be essential to the cause of action may extend the time during which persons working minerals and making excavations may be made responsible; but we think that the right which a man has is to enjoy his own land in the state and condition in which nature has placed it, and also to use it in such manner as he thinks fit, subject always to this: that, if his mode of using it does damage to his neighbour, he must make compensation. Applying these two principles to the present case, we think that no cause of action accrued for the mere excavation by the' defendant in his own land, so long as it *568caused no damage to the plaintiff; and that the cause of action did accrue when the actual damage first occurred.” Bigelow, Cases on Bights in Land, page 123.

¶7The language just quoted was followed by this paragraph :

“We should be unwilling to rest our judgment upon mere grounds of policy; but we cannot but observe that a rule of law, or rather the construction of a Statute of Limitation, which would deprive a man of redress after the expiration of six years, when the act causing the damage was unknown to him, and when in very many instances he would be in inevitable ignorance of it, would be harsh, and contrary to ordinary principles of law.” Bigelow, Cases on Bights in Land, page 123.

¶8The last paragraph is particularly interesting. The court recognized, as in the cases like we now consider, the policy problem of barring action on a negligent act before the act has been discovered, but did not rely thereon as a basis of decision. The English courts appear to have applied this rule to other negligent conduct: “… In other actions on the case, such as nuisance, negligence, etc., where the cause of action is not complete until damage has been suffered, the cause of action commences when the damage arises.” (Citing Backhouse v. Bonomi). Pollock, Torts (15th ed 1951) page 155.

¶9There are other cases in regard to the actual or probable invasion of land that are not inapt to the case at hand. These are the cases in which a landowner erects a structure upon his property, such as a dam, or otherwise alters his property by excavation or the like in such a way that later damage may be anticipated to the land of another. See McCormick, *569Damages for Anticipated Injury to Land, 1924, 37 Harv L Rev 574. Professor McCormick’s analysis of the cases reveals not only the wide diversity of the factual situations the courts have considered but also the conflicts in the courts’ rulings. There are cases in which the damage is immediate, or in which it may be delayed but is certain to occur and others in which damage may be forseen to be continuous or perhaps only on occasion and maybe never. A variety of result can be found but generally it has been said that in cases of trespass involving direct damage, the cause accrues when the act is performed; and, that in cases in the nature of nuisance that actual damage must be shown before a cause exists. McCormick, supra, page 580, et seq; Prosser, Torts, supra, page 57; Heckaman v. Northern Pac. Ry. Co., 1933, 93 Mont 363, 20 P2d 258. However, some of the cases hold that if damage is immediately forseeable the cause accrues when the condition has been created. The latter cases again divide on whether a plaintiff is limited to one action, within the limitations period, for all forseeable injury or may be entitled to a series of actions each time additional harm is caused. Most of the authorities cited recognize that either alternative is not satisfactory. Note, 1937, 21 Minn L Rev 334; Developments in the Law—Statutes of Limitations, 1950, 63 Harv L Rev 1177,1200 et seq.

¶10In Oregon we have adopted a rather anomalous rule in respect to the problem just mentioned. If an action for a nuisance may have accrued more than two years prior to the filing of the action we do not concern ourselves with the distinction between one action or several or as to the measure of damages, as found in many of the authorities cited. The plaintiff is allowed to recover for damages occurring within *570two years preceding the filing of his complaint. If the action is deemed to be a trespass damages are allowed for the six years preceding the filing of the complaint. When the canse has accrued appears to have been immaterial. This court has not said that the cause accrued more than two years ago and is, therefore, barred. Instead the limitations period has been applied to limit the time for which damages may be claimed. Norwood v. Eastern Oregon Land Co., 1932, 139 Or 25, 37, 5 P2d 1057, 7 P2d 996; Martin et ux v. Reynolds Metals Company, 1960, 221 Or 86, 342 P2d 790, cert den 362 US 918.

¶11Although the cited authority in respect to the nuisance and trespass cases cannot be said to be more than analogous it does establish two things beyond dispute:

1. The word “accrue” does not have a fixed, invariable legislative meaning beyond the power of a court to define.

2. In actions on the case it is held that the action does not accrue until actual damage has occurred and is ascertainable.

¶12Another group of analogous eases are those in the nature of products liability cases. In some of these it is held that the action does not accrue until damage occurs. White v. Schnoebelen, 1941, 91 NH 273, 18 A2d 185. In others, like Dincher v. Marlin Firearms Co., (2d Cir 1952) 198 F2d 821, it was held that the action accrued when the negligent act was performed. In the latter case it was held that the action accrued when a defective gun was sold not at a later time when its negligent construction caused it to backfire causing harm to the plaintiff. Most of the cases say *571the action accrues when the negligent conduct results in harm. See cases collated and discussed in 2 Frumer & Friedman, Products Liability, 1961, Chapter 12. In some of the products liability cases time has been treated as a causation question not as a matter of limitation. Strandholm v. Gen. Const. Co., 1963, 235 Or 145, 382 P2d 843.

¶13It is recognized that many of these cases are readily distinguishable from the case at hand. Others are not. The more decisive consideration is that the so-called theory of “discovery” of the cause of action has not been applied. Some of the cases attempt to distinguish between actions involving the matter of discovery. Foley v. Pittsburgh-Des Moines Co., 1949, 363 Pa 1, 68 A2d 517. The attempted distinctions are not always justified. But these cases have not compelled a plaintiff to inspect and to know of the negligent installation of water tanks, construction of buildings, gas lines and the like immediately upon the performance of the negligent act as has been the situation in the malpractice cases. The courts have correctly applied the doctrine that damage must first occur.

¶14In conclusion, our own cases of Hotelling v. Walther, 1942, 169 Or 559, 130 P2d 944, 144 ALR 205, and Shives v. Chamberlain, 1942, 168 Or 676, 126 P2d 28, establish that this court has not heretofore adhered to the rigid rule that a cause must and can only accrue when the negligent act has been done.

¶15This case should be reversed and remanded to enable the question here presented to be decided as a question of fact as to when plaintiff actually suffered damage.