2015 ORS 12.110¹
Actions for certain injuries to person not arising on contract
  • action for overtime or premium pay
  • action for professional malpractice
  • effect of fraud or deceit
  • action for injuries to person arising from nuclear incident

(1) An action for assault, battery, false imprisonment, or for any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter, shall be commenced within two years; provided, that in an action at law based upon fraud or deceit, the limitation shall be deemed to commence only from the discovery of the fraud or deceit.

(2) An action upon a statute for a forfeiture or penalty to the state or county shall be commenced within two years.

(3) An action for overtime or premium pay or for penalties or liquidated damages for failure to pay overtime or premium pay shall be commenced within two years.

(4) An action to recover damages for injuries to the person arising from any medical, surgical or dental treatment, omission or operation shall be commenced within two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered. However, notwithstanding the provisions of ORS 12.160 (Suspension for minors and persons who have disabling mental condition), every such action shall be commenced within five years from the date of the treatment, omission or operation upon which the action is based or, if there has been no action commenced within five years because of fraud, deceit or misleading representation, then within two years from the date such fraud, deceit or misleading representation is discovered or in the exercise of reasonable care should have been discovered.

(5) An action, arising from a nuclear incident, as defined in 42 U.S.C. 2014(q), that involves the release of radioactive material, excluding releases from acts of war, that causes bodily injury, sickness or death, shall be commenced:

(a) Within two years from the time an injured person discovers or reasonably could have discovered the injury and the causal connection between the injury and the nuclear incident; or

(b) Within two years from any substantial change in the degree of injury to the person arising out of a nuclear incident. [Amended by 1957 c.374 §1; 1967 c.406 §1; 1969 c.642 §1; 1971 c.473 §1; 1975 c.796 §10a; 1981 c.149 §1; 1987 c.705 §4]

Notes of Decisions

In General

A defendant's misrepresenta­tions do not delay running of statute of limita­tions if, despite the representa­tions, plaintiff knew or should have known that she had a cause of ac­tion. Duncan v. Augter, 62 Or App 250, 661 P2d 83 (1983), Sup Ct review denied; see also 286 Or 723, 596 P2d 555 (1979)

Insurer's advance pay­ments and waiver of statute of limita­tions did not create duty to give notice of end of waiver period and was not enough to lull plaintiff into false sense of security so as to estop de­fense of statute of limita­tions. Johnson v. Kentner, 71 Or App 61, 691 P2d 499 (1984), Sup Ct review denied

Applica­tion of subsec­tion (4) of this sec­tion in mi­nor plaintiff's medical malpractice ac­tion did not violate Article I, sec­tions 10 and 20 of Oregon Constitu­tion, nor Equal Protec­tion Clause of federal Constitu­tion. Jones v. Salem Hospital, 93 Or App 252, 762 P2d 303 (1988), Sup Ct review denied

Limita­tion of ac­tions for professional malpractice under this sec­tion does not bar ac­tion under ORS 30.275 (Notice of claim). O'Brien v. State of Oregon, 104 Or App 1, 799 P2d 171 (1990)

Applicable statute of limita­tions for ac­tions under ORS 654.062 (Notice of violation to employer by worker) is one-year period for filing unlawful employ­ment practice claim. Raptopolous v. WS, Inc., 738 F. Supp. 394 (D. Or. 1990)

Existence of continuing course of treat­ment does not preserve cause of ac­tion for treat­ment events that are time-barred. Urbick v. Suburban Medical Clinic, Inc., 141 Or App 452, 918 P2d 453 (1996), Sup Ct review denied

Running of limita­tion period commences when plaintiff knows or has reason to know that some harm has been incurred and cause of ac­tion exists, even though extent and details of harm may not be known. Widing v. Schwabe, Williamson & Wyatt, 154 Or App 276, 961 P2d 889 (1998)

Injury to the Person

Two year statute of limita­tions was applicable to ac­tion seeking damages for emo­­tion­al stress and mental anguish allegedly inten­tionally inflicted. Davis v. Bostick, 282 Or 667, 580 P2d 544 (1978)

Where plaintiff failed to serve either defendant (whose whereabouts were unknown) or Administrator of Motor Vehicles Division within two years after automobile accident, plaintiff's ac­tion was barred by two-year limita­tion under this sec­tion, despite three-year limita­tion provided by [former] ORS 15.190. Peterson v. Day, 283 Or 353, 584 P2d 253 (1978)

Where meat wrapper brought ac­tion for permanent injuries caused by polyvinyl chloride fumes from meat wrapping machine, and there was no showing of prevalent knowledge concerning dangers of such fumes, statute did not begin to run until disease was diagnosed by physician. Schiele v. Hobart Corp., 284 Or 483, 587 P2d 1010 (1978)

In strict liability ac­tion for per­sonal injuries, limita­tion period of this sec­tion was not tolled by ORS 12.150 (Suspension of running of statute by absence or concealment) where defendant foreign corpora­tion could have been served under [former] ORS 57.700. Santos v. The Flxible Co. Inc., 41 Or App 89, 597 P2d 373 (1979)

In wrongful death ac­tion allegedly resulting from medical malpractice, three year wrongful death limita­tion under ORS 30.020 (Action for wrongful death) applied rather than two year medical malpractice limita­tion under this sec­tion. Baxter v. Zeller, 42 Or App 873, 601 P2d 902 (1979), Sup Ct review denied

In strict liability ac­tion for injury caused by insect­i­cide, where complaint alleged that plaintiff-food packing plant employe commenced ac­tion within two years of discovery of cause of physical problems and injuries, ac­tion was not barred by statute of limita­tions. Colvin v. FMC Corp., 43 Or App 709, 604 P2d 157 (1979)

Tolling pro­vi­sions of statute because of misleading representa­tion apply to careless or innocent misrepresenta­tion only if misrepresenta­tion concerns something other than proper performance of treat­ment forming basis of complaint. Duncan v. Augter, 286 Or 723, 596 P2d 555 (1979)

Ac­tion for depriva­tion of civil rights alleging harass­ment by local govern­ment entities was controlled by two-year statute of limita­tions of Tort Claims Act. Kosikowski v. Bourne, 659 F2d 105 (1981)

Where Issue In Medical Malpractice Ac­tion Was Running of Statute of Limita­tions, Plaintiff Should Have Discovered Existence of Cause of Ac­tion Upon Realizing

1) an injury; 2) that injury could be attributed to act of alleged tortfeasor; and 3) that act of alleged tortfeasor was somehow neg­li­gent and failure to instruct jury based on this standard was error. Hoffman v. Rockey, 55 Or App 658, 639 P2d 1284 (1982), Sup Ct review denied

This sec­tion was applicable to claim of union member against local for breach of its duty of fair representa­tion. McNaughton v. Dillingham Corp., 707 F2d 1042 (1983)

Ac­tion for professional malpractice was time-barred where plaintiff knew more than 2 years before commence­ment of ac­tion that he had been damaged and that defendants' negligence was cause of damage; knowledge by plaintiff of extent of damages was imma­te­ri­al in determining when statute commences running. Godfrey v. Bick & Monte, 77 Or App 429, 713 P2d 655 (1986), Sup Ct review denied

Claims for malpractice should not have been dismissed though plaintiff did not file ac­tion within 5-year limita­tion period of this sec­tion. Skuffeeda v. St. Vincent Hospital, 77 Or App 477, 714 P2d 235 (1986), Sup Ct review denied

Where plaintiffs were harmed by attorney's neg­li­gent drafting of contract and knew more than 2 years before commencing malpractice ac­tion that negligence was cause of their harm, ac­tion was barred. Magnuson v. Lake, 78 Or App 620, 717 P2d 1216 (1986)

Dismissal of civil rights ac­tion for wrongful arrest was proper where both general tort statute and Oregon Tort Claims Act statute provide for two-year limita­tions period, though limita­tion of general tort statute should have been applied. Davis v. Harvey, 789 F2d 1332 (1986)

Where plaintiff alleged injury from diagnosis of glaucoma and prescrip­tion of drug Timoptic in July, 1980, in ac­tion for medical malpractice against physician, claiming he discovered source of injury in November, 1984, malpractice ac­tion was time barred by this sec­tion because complaint did not allege diagnosis or prescrip­tion of Timoptic after July, 1980. Cornell v. Merck & Co., 87 Or App 373, 742 P2d 667 (1987)

Ac­tion by plaintiff-tenant against landlord for injuries suffered in fall from common stairway outside apart­ment building contained common law claim independent of rental agree­ment and was timely when filed under two-year limita­tion period of this sec­tion. Jones v. Bierek, 306 Or 42, 755 P2d 698 (1988)

Two-year statute of limita­tions began to run when plaintiff's attorney wrote letter to defendant that demonstrated plaintiff had knowledge or reason to know that plaintiff had claim against defendant. McNeely v. Weyerhaeuser Co., 115 Or App 184, 837 P2d 546 (1992), Sup Ct review denied

Where plaintiff noticed loss of feeling in left arm after pro­ce­dure performed in 1987 and was assured by defendant loss of feeling was transitory complica­tion that could last from six months to two years, trial court erred in concluding, as matter of law, malpractice ac­tion in 1990 was time barred. Gaston v. Parsons, 117 Or App 555, 844 P2d 941 (1993), aff'd 318 Or 247, 864 P2d 1319 (1994)

Provision of prepared medical product does not constitute medical treat­ment of recipient. Doe v. American Red Cross, 128 Or App 38, 874 P2d 828 (1994), aff'd 322 Or 502, 910 P2d 364 (1996)

"Injury" consists of harm, causa­tion and tortious con­duct. Gaston v. Parsons, 318 Or 247, 864 P2d 1319 (1994)

Five-year repose period for medical malpractice ac­tions does not violate sec­tion 10 or 20, Article I of Oregon Constitu­tion. Barke v. Maeyens, 176 Or App 471, 31 P3d 1133 (2001), Sup Ct review denied

Where per­son dies while having right to bring ac­tion for medical malpractice, time limit for per­sonal representative to bring per­sonal injury suit on behalf of estate is governed by ORS 30.075 (Procedure upon death of injured person) instead of ORS 12.190 (Effect of death on limitations). Giulietti v. Oncology Associates of Oregon, 178 Or App 260, 36 P3d 510 (2001)

Injury to the Person or Rights of Another, not On Contract and not Enumerated In This Chapter

An ac­tion against the insurer under an uninsured motorist clause in a policy is governed by the contract, not the tort, statute. Turlay v. Farmers Ins. Exch., 259 Or 612, 488 P2d 406 (1971)

This sec­tion does not apply to a suit for reforma­tion. Woodriff v. Ashcraft, 263 Or 547, 503 P2d 472 (1972)

Two-year limita­tions period is applicable to ac­tions for legal malpractice. U.S. Na­tional Bank v. Davies, 274 Or 663, 548 P2d 966 (1976)

The statute of limita­tions is a bar to a counterclaim in the nature of a setoff if the claim would be barred if asserted in an independent ac­tion. Jewell v. Compton, 277 Or 93, 559 P2d 874 (1977)

Ac­tions for federal civil rights viola­tions are subject to limita­tion applicable to liability created by statute, not to limita­tion applicable to tort ac­tions. Clark v. Musick, 623 F2d 89 (1981); Plummer v. Western Interna­tional Hotels, 656 F2d 502 (1981)

Product liability ac­tion brought pursuant to ORS 30.905 (Time limitation for commencement of action) is "an ac­tion men­tioned" in this sec­tion. Kearney v. Montgomery Ward & Co., 55 Or App 641, 639 P2d 682 (1982)

Where ac­tion for damages by purchaser against builder-seller of house was for amounts necessary to remedy defects in construc­tion of house, limita­tion period of this sec­tion was not applicable because either the ac­tion arose on contract or injuries were to interest of "an­oth­er" in real prop­erty which is an ac­tion enumerated in ORS 12.080 (Action on certain contracts or liabilities) (3). Beveridge v. King, 292 Or 771, 643 P2d 332 (1982)

Ac­tion by architectural firm for alleged copyright infringe­ment based on copying and use of plans and drawings for migrant labor housing was governed by this sec­tion, two-year tort statute of limita­tions. Men­tion v. Gessell, 714 F2d 87 (1983)

In ac­tion for employ­ment discrimina­tion under 42 U.S.C. 1981, controlling limita­tion period was that of ORS 12.080 (Action on certain contracts or liabilities), not that of this sec­tion. Wrighten v. Metropolitan Hospitals, Inc., 726 F2d 1346 (1984)

Where rela­tionship is between contracting parties and claim alleges neg­li­gent performance of contract, ac­tion must be brought as contract claim unless independent standard of care is es­tab­lished. Marinelli v. Ford Motor Co., 72 Or App 268, 696 P2d 1 (1985), Sup Ct review denied; Georgetown Realty v. The Home Insurance Company, 313 Or 97, 831 P2d 7 (1992)

Ac­tion At Law Based On Fraud or Deceit

In a federal court ac­tion for fraud or misrepresenta­tion under S.E.C. Rule 10b-5, the two-year statute of limita­tions set by this statute shall govern. Hoffert v. E.F. Hinkle & Co., Inc., 56 FRD 395 (1972); Winkelman v. Blyth and Co., 394 F Supp 994 (1973), aff'd 518 F2d 531; Williams v. Sinclair, 529 F2d 1383 (1975)

The pro­vi­sion as to "discovery" of the fraud means from the time the fraud was known or could have been discovered through the exercise of reasonable care. Winkelman v. Blyth and Co., 394 F Supp 994 (1973), aff'd 518 F2d 531

Ac­tion to recover damages for con­spir­a­cy and fraud in controlling of appraisal values of prop­erty was barred where plaintiffs had knowledge of alleged fraud nearly five years prior to bringing ac­tion. Compton v. Oregon State Hwy. Comm. et al, 31 Or App 919, 571 P2d 1271 (1977), Sup Ct review denied

A summary judg­ment is inappropriate where a disputed issue of fact exists as to diligence in the discovery of fraud so as to commence the limita­tions period. Forest Grove Brick Works v. Strickland, 277 Or 81, 559 P2d 502 (1977)

In fraud ac­tion arising out of remodeling of plaintiff's house by defendant contractor, evidence disclosed as matter of law that plaintiff, in exercise of reasonable care, should have discovered carpenters' and laborers' wages had not been paid as represented within time period relevant under this sec­tion. Mathies v. Hoeck, 284 Or 539, 588 P2d 1 (1978)

Where pleadings disclosed that ac­tion was commenced more than two years after alleged fraud was committed, plaintiff was re­quired to negate lack of diligence on his part in discovering fraud and to set forth reasons why it was not earlier discovered. Kinyon v. Cardon, 69 Or App 546, 686 P2d 1048 (1984), Sup Ct review denied

Where period of limita­tion for fraud begins to run when plaintiff knew or through reasonable care should have known of alleged fraud and plaintiff knew by early 1982 that defendant was not respecting alleged promise but did not file claim until 1985, statute of limita­tions had expired. Estey & Associates, Ins. v. McCullock Corp., 663 F Supp 167 (1986)

When Statute Commences to Run

Cause of ac­tion for legal malpractice accrues at time client becomes aware that harm incurred by adverse resolu­tion of legal matter was caused by attorney. U.S. Na­tional Bank v. Davies, 274 Or 663, 548 P2d 966 (1976); Niedermeyer v. Dusenbery, 275 Or 83, 549 P2d 1111 (1976); Barnard v. Lannan, 112 Or App 625, 829 P2d 723 (1992); Allen v. Lawrence, 137 Or App 181, 903 P2d 919 (1995), Sup Ct review denied

Statute of limita­tions on claim for negligence causing occupa­tional disease begins to run when reasonably prudent per­son should know that he has condi­tion for which ac­tion is brought and should be able to identify its cause. Schiele v. Hobart Corp., 284 Or 483, 587 P2d 1010 (1978)

Where three years prior to bringing malpractice ac­tion against attorney and real estate broker, plaintiff litigated worth of his assets during marriage dissolu­tion pro­ceed­ings and testified at that time that his invest­ment losses were attributable to "bad advice" from attorney and realtor, malpractice ac­tion was barred by two-year statute of limita­tions under this sec­tion. Melgard v. Hanna, 45 Or App 133, 607 P2d 795 (1980)

Statute commences running upon discovery that plaintiff has some cause of ac­tion, not upon discovery of true extent of damage. Hoffman v. Rockey, 55 Or App 658, 639 P2d 1284 (1982), Sup Ct review denied; Gannon v. Rogue Valley Medical Center, 92 Or App 314, 758 P2d 873 (1988), Sup Ct review denied

In ac­tion for alleged occupa­tional disease (asbestosis), it was error for trial court to conclude as matter of law that ac­tion accrued under this sec­tion and ORS 12.010 (Time of commencing actions) in December 1975 where medical report in October indicated plaintiff's condi­tion "should improve without medica­tion" and record amply reflected possibility plaintiff did not know what was causing his illness. Lundy v. Union Carbide Corp., 695 F2d 394 (1982)

Claim for occupa­tional disease accrues when reasonably prudent per­son associates his symptoms with a serious or permanent condi­tion and at the same time perceives the role which the defendant has played in inducing that condi­tion. Lundy v. Union Carbide Corp., 695 F2d 394 (1982), citing Schiele v. Hobart, 284 Or 483, 587 P2d 1010 (1979)

Cause of ac­tion against realtor for neg­li­gent valua­tion accrued when plaintiff discovered actual market value of land, not when she was forced to convey prop­erty at loss pursuant to Court of Appeals decision. Jaquith v. Ferris, 297 Or 783, 687 P2d 1083 (1984)

Statute of limita­tions in legal malpractice case does not begin to run until final disposi­tion of case in which attorney allegedly gave bad advice; ac­tion commenced within two years of Supreme Court's decision but more than two years after any other significant ac­tion in case was not barred. Fliegel v. Davis, 73 Or App 546, 699 P2d 674 (1985), Sup Ct review denied

Statute of limita­tions for tort of inten­tional in­ter­fer­ence with contractual rela­tionship does not depend on date of discovery of in­ter­fer­ence but rather when damages accrued. Cramer v. Stonebridge Inn, 77 Or App 407, 713 P2d 645 (1986)

Where plaintiff insureds sued their insurer, pleading that insurer's negligence in handling claim against them caused them loss by way of incurred attorney fees and excess liability, plaintiffs' cause of ac­tion accrued when they were harmed and suffered resulting damages through expenditure of legal fees to defend claim against them, not when they later paid claimant in settle­ment of the claim. Bollam v. Fireman's Fund Ins. Co., 302 Or 343, 730 P2d 542 (1986)

Where FDIC brought ac­tion against former of­fi­cers and directors of three banks which merged into bank later declared insolvent, claim limita­tion period found to have expired under federal law not state law. FDIC v. Former Officers and Dir. of Metro. Bank, 705 F Supp 505 (D. Or. 1987)

In beneficiary's claim that trustee neg­li­gently administered trust's assets, statute of limita­tions does not begin to run until beneficiary knows, or reasonably should know, that he was damaged by trustee's alleged negligence. Condon v. Bank of California, 92 Or App 691, 759 P2d 1137 (1988)

In order to be misleading, for purpose of subsec­tion (4) of this sec­tion, representa­tion must have some rela­tionship to plaintiff's knowledge or awareness of facts constituting claim. Jones v. Salem Hospital, 93 Or App 252, 762 P2d 303 (1988), Sup Ct review denied

Although innocent contemporaneous representa­tions which relate in particular ways to gravamen of claim cannot be "misleading representa­tions" under subsec­tion (4) of this sec­tion, contemporaneousness ends when maker of representa­tion knows or has reason to know in­for­ma­­tion which he did not have at time of neg­li­gently performed pro­ce­dure or its immediate aftermath and which reasonably indicates that something in performance of pro­ce­dure, or related to it, went wrong. Jones v. Salem Hospital, 93 Or App 252, 762 P2d 303 (1988), Sup Ct review denied

Filing is complete when papers are received by clerk and complaint by mail was timely filed where last day for filing would have been Saturday and Monday was legal holiday. Cooper v. City of Ashland, 871 F2d 104 (9th Cir. 1989)

When claim characterized as false light alleges facts that also constitute claim for defama­tion, claim must be filed within period for bringing defama­tion claim under ORS 12.120 (Action on escape), not this pro­vi­sion. Magenis v. Fisher Broadcasting, Inc., 103 Or App 555, 798 P2d 1106 (1990)

In ac­tion for professional negligence brought by former crim­i­nal defendant against lawyer, statute of limita­tions does not begin to run until crim­i­nal defendant has been exonerated. Stevens v. Bispham, 316 Or 221, 851 P2d 556 (1993)

Knowledge of viola­tion of informed con­sent right did not mean patient knew, or with reasonable care should have known, of cause of ac­tion for negligence in performance of surgery. Gaston v. Parsons, 318 Or 247, 864 P2d 1319 (1994)

Whether plaintiff should have known of tortious con­duct depends on what plaintiff would have actually discovered had inquiry been con­ducted. Doe v. American Red Cross, 322 Or 502, 910 P2d 364 (1996)

Plaintiff should, with reasonable care, discover injury at time in­for­ma­­tion available to plaintiff discloses existence of ac­tionable injury. Greene v. Legacy Emanuel Hospital, 335 Or 115, 60 P3d 535 (2002)

Where state did not ap­peal decision exonerating defendant, statute of limita­tions on legal malpractice claim began running upon date exonera­tion became certain due to expira­tion of time for state to ap­peal. Abbott v. DeKalb, 221 Or App 339, 190 P3d 413 (2008)

Pleading and Effect of Appeal

When the pleadings disclose that the ac­tion was not commenced within two years after the alleged fraud was consummated, it is necessary for plaintiff to negate lack of diligence in the discovery of the fraud and to set forth the reasons why there was not an earlier discovery of the fraud. Salem Sand & Gravel v. Salem, 260 Or 630, 492 P2d 271 (1971)

Mo­tion to dismiss for reason that pleading shows ac­tion has not been commenced within time limited by statute is limited to what appears on face of pleading and, in considering mo­tions to dismiss, court looks not to superseded original complaint but only facts alleged in amended complaint. O'Gara v. Kaufman, 81 Or App 499, 726 P2d 403 (1986)

Ac­tion Upon A Statute for Forfeiture or Penalty to the State or County

An ac­tion to recover public assistance unlawfully obtained brought pursuant to ORS 411.620 (Recovery of public assistance or medical assistance obtained or disposed of unlawfully) was not "an ac­tion upon a statute for forfeiture or penalty to the state or county" and limita­tion period of this sec­tion did not apply to bar it. Adult and Family Services Div. v. Scoggins, 49 Or App 769, 620 P2d 962 (1980)

Battery

For ac­tion for battery, statute begins to run when per­son discovers that touching occurred and recognizes that touching was offensive. Whalen v. American Medical Response Northwest, 256 Or App 278, 300 P3d 247 (2013)

Law Review Cita­tions

52 OLR 91-104 (1972); 73 OLR 753 (1994); 50 WLR 195 (2014)

Chapter 12

Notes of Decisions

An ac­tion for per­sonal injuries caused by breach of implied warranty is clearly one for which "different limita­tion is prescribed by statute" under ORS 12.010 (Time of commencing actions) and thus is not governed by pro­vi­sions of this chapter. Redfield v. Mead, Johnson & Co., 266 Or 273, 512 P2d 776 (1973)


1 Legislative Counsel Committee, CHAPTER 12—Limitations of Actions and Suits, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors012.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 12, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano012.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.