- Court: Oregon Court of Appeals
- Area(s) of Law: Civil Procedure
- Date Filed: 09-26-2012
- Case #: A148740
- Judge(s)/Court Below: Hadlock, J. for the Court; Ortega, P.J.; and Sercombe, J.
- Full Text Opinion
Plaintiff (Zabriskie) appealed the trial court's grant of summary judgment to Lowengart, the defendant doctor. Lowengart alleged that Zabriskie filed his complaint outside of the two-year statute of limitations period set forth in ORS 12.110(4). An injury is a legally cognizable harm composed of three elements: (1) harm; (2) causation; and (3) tortious conduct. The statute of limitations begins to run when a plaintiff, exercising reasonable care, would be aware of a substantial possibility that those three elements exist. Unless the only conclusion a jury could reach is that a plaintiff knew of the facts, the application of the discovery rule is a question of fact to be determined by the jury. Because the evidence does not foreclose the possibility that Zabriskie should have known Lowengart caused a legally cognizable injury on the day of treatment, a jury could have found that Zabriskie only discovered that Lowengart acted negligently when a second doctor informed him of spinal instability. Thus, the trial court erred in finding that the statute of limitations began to run on the date Lowengart performed a chiropractic procedure on Zabriskie because there was a genuine issue of fact as to the date the statute of limitations began. Reversed and remanded.