Hoffman v. Rockey

18 Citing cases

  1. Gaston v. Parsons

    117 Or. App. 555 (Or. Ct. App. 1993)   Cited 5 times
    Discussing informed consent claims: claim accrues when plaintiff suffers harm about which he has not been warned.

    He knew at that time that he had not been warned of that risk. As we said in Hoffman v. Rockey, 55 Or. App. 658, 664, 639 P.2d 1284, rev den 292 Or. 722 (1982), "[P]laintiff's discovery was complete when he perceived his difficulties and knew that his doctor had failed to warn him of these particular problems — permanent or not." We agree with the trial court that, as a matter of law, the claim based on lack of informed consent is time-barred.

  2. Peterson v. Mult. Co. Sch. Dist. No. 1

    668 P.2d 385 (Or. Ct. App. 1983)   Cited 24 times
    Acknowledging defendant's argument that the discovery rule did not apply because the only thing plaintiff failed to discover within the limitations period was a legal theory but rejecting the argument because of court's conclusion that facts, not legal theories, were undiscoverable

    Here, there is no issue whether the discovery rule is applicable, see n 4, infra, or whether plaintiff did discover his cause of action against OSAA less than two years before bringing it. The only issue is whether he should have discovered the existence of his claim at an earlier time, or, more correctly, whether there was evidence to support the jury's finding that he should not. In Hoffman v. Rockey, 55 Or. App. 658, 639 P.2d 1284, rev den 292 Or. 722 (1982), we set out the following test: "A plaintiff should discover that he has a cause of action when he realizes (1) that he has been injured, (2) that the injury can be attributed to an act of the alleged tortfeasor, and (3) that the act of the alleged tortfeasor was somehow negligent.

  3. Duncan v. Augter

    62 Or. App. 250 (Or. Ct. App. 1983)   Cited 20 times

    245 Or at 315-16. In Hoffman v. Rockey, 55 Or. App. 658, 663, 639 P.2d 1284, rev den 292 Or. 722 (1982) (involving medical malpractice and applying ORS 12.110(4)), we explained: "A plaintiff should discover that he has a cause of action when he realizes (1) that he has been injured, (2) that the injury can be attributed to an act of the alleged tortfeasor, and (3) that the act of the alleged tortfeasor was somehow negligent. * * *"

  4. Bussineau v. President Dir. of Georgetown

    518 A.2d 423 (D.C. 1986)   Cited 108 times
    Equating accrual of a cause of action for statute of limitation purposes with occurrence of "injury" and requiring that the injury be discoverable with reasonable diligence

    In Oregon, the appellate court likewise concluded that a "plaintiff should discover that he has a cause of action when he realizes (1) that he has been injured; (2) that the injury can be attributed to an act of the alleged tortfeasor, and (3) that the act of the alleged tortfeasor was somehow negligent." Hoffman v. Rockey, 55 Or. App. 658, 663, 639 P.2d 1284, 1286 (1982). The Oregon court rationalized such a construction of the discovery rule by noting:

  5. Raethke v. Oregon Health Sciences Univ

    115 Or. App. 195 (Or. Ct. App. 1993)   Cited 21 times

    We held that the plaintiff's cause of action had accrued at the time of the accident, because he knew then that he had been injured and that the accident was attributable to the negligence of the defendant. The fact that he initially thought that his injury was only minor did not mean that a new cause of action accrued when he later learned that he had suffered an unanticipated kind of harm. So, too, in Hoffman v. Rockey, 55 Or. App. 658, 639 P.2d 1284 (1982), we held that the plaintiff knew that he was harmed when he had an infection in his leg shortly after surgery; he did not have a new cause of action when he learned that his leg would have to be amputated. "[P]laintiff's discovery was complete when he perceived his difficulties and knew that his doctor had failed to warn him of these particular problems — permanent or not." 55 Or App at 664.

  6. Eldridge v. Eastmoreland General Hospital

    88 Or. App. 547 (Or. Ct. App. 1987)   Cited 8 times
    In Eldridge, the majority also stated, "Because the demurrer was sustained, the complaint must be construed most strongly against the pleader."

    Until the tort is or should be discovered, i.e., until a plaintiff realizes that (1) she has been injured, (2) the injury can be attributed to an act of the alleged tortfeasor and (3) the act of the alleged tortfeasor was somehow negligent, the statute does not commence to run. Hoffman v. Rockey, 55 Or. App. 658, 663, 639 P.2d 1284 (1982). We also said in Hoffman, quoting with approval our earlier statement in Melgard v. Hanna, 45 Or. App. 133, 136, 607 P.2d 795 (1980):

  7. Fidler v. Eastman Kodak Co.

    714 F.2d 192 (1st Cir. 1983)   Cited 97 times
    Finding that knowledge of injury does not require knowledge that defendant's breached a duty to cause the injury

    A number of courts have, however, adopted discovery rules under which a cause of action does not accrue until the plaintiff discovers or in the exercise of due diligence should discover, in addition to his injury and its cause, that the injury has resulted from some negligence or wrongdoing on the part of the defendant, some actionable wrong. See Dawson v. Eli Lilly and Co., supra (applying D.C. Law); Goodman v. Mead Johnson Co., 534 F.2d 566, 575 (3d Cir. 1976) (applying New Jersey law); Anderson v. Shook, 333 N.W.2d 708 (N.D. 1983); Hoffman v. Rockey, 55 Or.App. 658, 639 P.2d 1284, 1286 (1982); Jacoby v. Kaiser Foundation Hospital, 1 Haw.App. 519, 622 P.2d 613 (1981); Foil v. Ballinger, 601 P.2d 144, 147 (Utah 1979); Brown v. Mary Hitchcock Memorial Hospital, 117 N.H. 739, 378 A.2d 1138 (1977); Owens v. Brochner, 172 Colo. 525, 474 P.2d 603 (Colo. 1970).

  8. Walton v. Arrendondo

    Case No. 2:14-cv-00626-KI (D. Or. Jan. 20, 2016)

    Further, under Oregon law, in the context of an alleged violation of informed consent, "plaintiff's discovery was complete when he perceived his difficulties and knew that his doctor had failed to warn him of these particular problems-permanent or not." Hoffman v. Rockey, 55 Or. App. 658, 664, 639 P.2d 1284, rev. denied, 292 Or. 722, 644 P.2d 1131 (1982) (emphasis added); see also Gaston v. Parsons, 117 Or. App. 555, 558, 844 P.2d 941 (1993) (doctor's assurances relevant to timeliness of medical malpractice claim, but court did not consider them in context of informed consent claim), aff'd on other grounds, 318 Or. 247, 864 P.2d 1319. Any assurances Dr. Arrendondo gave Walton after the surgery, and whether they constitute "fraud, deceit or [a] misleading representation," are irrelevant. Walton knew at least as of February 15, 2011 that he suffered from a condition Dr. Arrendondo had not warned him about. Consequently, Dr. Arrendondo's assurances do not toll the statute of limitations.

  9. Doe v. American Red Cross

    322 Or. 502 (Or. 1996)   Cited 29 times
    Holding that, without any evidence as to what Doe would have discovered if he had inquired, defendant was not entitled to summary judgment on its statute of limitations defense

    " (Citation omitted; emphasis in original.) In the trial court, plaintiff relied on the formulation of those elements found in Hoffman v. Rockey, 55 Or. App. 658, 639 P.2d 1284 (1982). The third prong of the test in that case was described as "the act of the alleged tortfeasor was negligent."

  10. Anthony v. Abbott Laboratories

    490 A.2d 43 (R.I. 1985)   Cited 66 times   1 Legal Analyses
    In Anthony, the court referred to its "conscious balancing of policies" to prevent "the unexpected enforcement of stale claims with the opportunity of a person to have her day in court to vindicate those rights that have been violated but have remained undiscovered or undiscoverable."

    " Id. at 1338. See, e.g., Brown v. Mary Hitchcock Memorial Hosp., 117 N.H. 739, 378 A.2d 1138 (1977); Lynch v. Rubacky, 85 N.J. 65, 424 A.2d 1169 (1981); Hoffman v. Rockey, 55 Or.App. 658, 639 P.2d 1284, reh'g. denied, 292 Or. 722, 644 P.2d 1131 (1982); Foil v. Ballinger, 601 P.2d 144 (Utah 1979); Ohler v. Tacoma General Hospital, 92 Wn.2d 507, 598 P.2d 1358 (1979). We are convinced, after reviewing the case law and weighing the equitable considerations, that the better view would be to adopt the following rule: in a drug product-liability action where the manifestation of an injury, the cause of that injury, and the person's knowledge of the wrongdoing by the manufacturer occur at different points in time, the running of the statute of limitations would begin when the person discovers, or with reasonable diligence should have discovered, the wrongful conduct of the manufacturer.