Doe v. Silverman
Doe v. Silverman
Opinion of the Court
Plaintiff appeals a limited judgment dismissing his claims for negligence, sexual battery, and intentional infliction of severe emotional distress that he brought against defendant Silverman.
While a minor, plaintiff was good friends with defendant’s son. In 1996, defendant sexually abused plaintiff on several occasions while plaintiff was a guest in defendant’s home and at least once in plaintiffs home. In 1997, defendant was convicted of committing first-degree sexual abuse against plaintiff. See State v. Silverman, 159 Or App 524, 977 P2d 1186, rev den, 329 Or 527 (1999), cert den, 531 US 876 (2000).
In 2014, when plaintiff was 30 years old, plaintiff brought this complaint against defendant and defendant’s wife, Dixon. Plaintiff alleged claims against defendant for negligence, sexual battery, and intentional infliction of severe emotional distress. Defendant moved for summary judgment on the ground that plaintiffs complaint was time barred under the 1993 version of ORS 12.117, which required
The trial court granted defendant’s motion. In its order, the court concluded that
“the appropriate statute of limitations to apply to plaintiffs claims [is] ORS 12.117 as amended in 1993. This was the version of the statute in effect in 1996. The court determines that as to the claim against defendant Silverman, plaintiff was aware of the abuse and the defendant’s identity as the culpable party no later than when he disclosed the same to his mother in 1996. Under the version of ORS 12.117 in effect in 1996, plaintiffs claim expired when he turned 24 in 2007 or 2008. Plaintiffs claim against defendant Silverman is barred by the statute of limitations, and defendant Silverman is entitled to summary judgment.”
The court then entered a limited judgment dismissing plaintiffs claims against defendant with prejudice.
Plaintiff appeals the limited judgment. He argues that the plain text and legislative history of the 2009 amendment to ORS 12.117—which expanded the time to file a claim—demonstrates that the current version of ORS 12.117 applies to his claims against defendant and, hence, that the trial court erred in dismissing his claims as time barred. We thus proceed to discern the legislature’s intention in enacting the 2009 amendment to ORS 12.117. See State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009) (in construing statutes, we seek to determine the legislature’s intentions by considering the text of the statute in context, along with any legislative history that is useful to our analysis).
Before the 2009 amendment, ORS 12.117(1) (1993) provided, in part:
“Notwithstanding ORS 12.110, 12.115 or 12.160, an action based on conduct that constitutes child abuse or conduct knowingly allowing, permitting or encouraging child abuse accruing while the person who is entitled to bring the action is under 18 years of age shall be commenced not*250 more than six years after that person attains 18 years of age ‡ ‡ * »
(Emphasis added.)
After the 2009 amendment, ORS 12.117(1) provides, in part:
“Notwithstanding ORS 12.110, 12.115 or 12.160, an action based on conduct that constitutes child abuse or conduct knowingly allowing, permitting or encouraging child abuse that occurs while the person is under 18 years of age must be commenced before the person attains 40 years of age
(Emphasis added.) The 2009 enacting legislation also provided:
“(1) Except as provided in subsection (2) of this section, the amendments to ORS 12.117 by section 1 of this 2009 Act apply to all causes of action, whether arising before, on or after the effective date of this 2009 Act.
“(2) The amendments to ORS 12.117 by section 1 of this 2009 Act do not apply to any cause of action for which judgment was entered before the effective date of this 2009 Act.”
Or Laws 2009, ch 879, § 2; see Weldon v. Bd. of Lic. Pro. Counselors and Therapists, 353 Or 85, 95, 293 P3d 1023 (2012) (“The context of a statute includes all provisions contained in the session law, including parts of the session law not codified as part of the statute being interpreted.”).
The plain text of the enacting legislation confirms that the legislature intended that the new statute of limitation for actions based on child abuse apply to all causes of action, no matter when the cause of action arose. The only exception that the legislature provided to that broad, retroactive application of the act was for causes of action “for which judgment was entered before the effective date of this 2009 Act.” Based on that plain text, the 2009 amendment to ORS 12.117 applied to plaintiffs claims because he had not previously litigated them to judgment. Nothing in the legislative history of the 2009 amendment suggests that that was not the legislature’s intention; to the contrary, the legislative history supports that understanding. See, e.g., Audio Recording, House Committee on Judiciary, HB 2827,
Despite that clear directive from the legislature, the trial court accepted defendant’s argument below, which defendant repeats on appeal, that plaintiff could not rely on the 2009 amendment to ORS 12.117 because his cause of action had expired in 2007 or 2008, when plaintiff turned 24 years old. Defendant asserts that the legislature cannot “revive” expired causes of action unless there is express “revival” language included in the statutory enactment, which is absent here. Defendant primarily relies on Owens v. Maass, 323 Or 430, 918 P2d 808 (1996), for his argument, as well as two cases dating from 1855 and 1908.
We reject defendant’s argument. At issue in Owens was whether a legislative amendment that expanded the time to bring a statutory petition for post-conviction relief applied to the petitioner’s petition, which was otherwise time barred. In discerning the legislature’s intention, the Supreme Court observed, as part of the context of the statute, that, “ [g] enerally, the ability to exercise a statutory right, such as the right to file for post-conviction relief, is extinguished if the statute creating the right also places a time limitation upon the ability to exercise that right and if the right was not exercised within that specified time frame.” Owens, 323 Or at 439 (emphases in original). Because the statute did not expressly provide for retroactive application of the amendment to extinguished rights, such
The reasoning in Owens does not apply here for at least two reasons. First, plaintiffs causes of action against defendant were not “extinguished,” as discussed in Owens, when he turned 24 years old. Rather, his causes of action became subject to the procedural time bar in ORS 12.117 (1993), which defendant could raise as an affirmative defense. A procedural time bar to a common-law claim does not “extinguish” the claim, such that it cannot be brought— which distinguishes common-law claims from the statutory claim in Owens—because the procedural time bar is waived if it is not affirmatively raised by the defendant in a motion to dismiss or a responsive pleading. See ORCP 21 G(2). Thus, the substantive rule of law identified in Owens that the court declared was part of the statute’s context does not apply in this case. See Owens, 323 Or at 440 n 7. Second, unlike in Owens, the 2009 amendment does contain an expression of the legislature’s intention to apply the expanded time frame to claims that would otherwise have been procedurally time barred—viz., it applies to all causes of action based on when the cause of action arose. That expressed intention is also supported by the legislative history, in contrast to the circumstances in Owens. Thus, Owens does not guide us in construing the statute at issue here.
Accordingly, we conclude that the current version of ORS 12.117(1) applies to any applicable cause of action for which judgment has not been entered before the effective date of the 2009 amendment, which includes plaintiffs claims against defendant.
Reversed and remanded.
Plaintiff also brought claims against defendant’s wife, Dixon. Plaintiff separately appealed the later dismissal of his claims against Dixon. See Doe v. Silverman, 286 Or App 813, 399 P3d 1069 (2017).
Plaintiff filed his lawsuit in 2014. The legislature subsequently amended ORS 12.117 in 2015. However, the amendment did not amend the subsection of the statute that is at issue in this case. Thus, unless otherwise indicated, references to ORS 12.117 in this opinion are to the current version of the statute.
The Supreme Court decided Owens under the interpretive methodology outlined in PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993). Under that scheme, the court could consult the legislative history—viz., a legislative history that demonstrated that the legislature did not intend the statutory amendment to apply to post-conviction claims like the petitioner’s—only if it first found an ambiguity in the text of the statute. See id. at 611-12. We are not so constrained in this case. See Gaines, 346 Or at 171-72 (at the first level of statutory interpretation, we consider the text in context, as well as any legislative history that is useful to our analysis).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.