discovery accrual rule in Oregon

2021R. v. Boy Scouts of America, 344 Or 282, 296 , 181 P3d 758 , cert den, 555 US 825 (2008).

2021R. v. Boy Scouts of America, 344 Or 282, 296 , 181 P3d 758 , cert den, 555 US 825 (2008).

2024Similarly, under federal law, a claim accrues when a plaintiff has “a complete and present cause of action,” meaning that “the plaintiff can file suit and obtain relief.” Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 US 192, 201 , 118 S Ct 542 , 139 L Ed 2d 553 (1997) (internal quotation marks omitted).10 As we will explain, under both the state and federal constitutions, a property owner may 10 In addition to the general rule, there is a discovery accrual rule, which applies to some claims.

2024Similarly, under federal law, a claim accrues when a plaintiff has “a complete and present cause of action,” meaning that “the plaintiff can file suit and obtain relief.” Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 US 192, 201 , 118 S Ct 542 , 139 L Ed 2d 553 (1997) (internal quotation marks omitted).10 As we will explain, under both the state and federal constitutions, a property owner may 10 In addition to the general rule, there is a discovery accrual rule, which applies to some claims.

2024That is, the post-conviction statute does not have an ordinary discovery accrual rule; instead, it has an escape clause, which is broad enough to cover both circumstances where a petitioner did not know or have reason to know of their ground for relief and cir- cumstances where a petitioner was incapable of taking the steps necessary to raise their ground for relief within the limitations period.” Id.

2023Cite as 371 Or 413 (2023) 443 that discovery rule operates independently of the particu- lar claimant’s mental condition.” According to the state, “[i]t follows that,” when the 1989 legislature enacted the statute of limitations for post- conviction claims, it intended the statute’s escape clause “to operate as an accrual rule,” more specifically, a “discovery accrual rule” under which a claim accrues “either when the plaintiff actually discovers their legal injury or when they reasonably should have discovered it, whichever occurs first.” (Emphasis in original.) The state further argues that

2021R. v. Boy Scouts of America, 344 Or 282, 296 , 181 P3d 758 , cert den, 555 US 825 (2008).

2021Cite as 313 Or App 74 (2021) 79 “Application of the discovery accrual rule is a factual issue for the jury unless the only conclusion a reasonable jury could reach is that plaintiff knew or should have known the critical facts at a specified time and did not file suit within the requisite time thereafter.” T.

2019Id. (citing Chappell v. Rich , 340 F.3d 1279 (11th Cir. 2003) ; Rozar v. Mullis , 85 F.3d 556 (11th Cir. 1996) ; and Mullinax v. McElhenney , 817 F.2d 711 (11th Cir. 1987) ).

2019The Court's acknowledgement that lower federal courts "generally apply a discovery accrual rule when a statute is silent on the issue," id. at 27 , 122 S.Ct. 441 (internal citations and quotation marks omitted), and its subsequent declination to reject that approach, may even suggest the Court's tacit sanction of a discovery accrual rule.

2019The Court's acknowledgement that lower federal courts "generally apply a discovery accrual rule when a statute is silent on the issue," id. at 27 , 122 S.Ct. 441 (internal citations and quotation marks omitted), and its subsequent declination to reject that approach, may even suggest the Court's tacit sanction of a discovery accrual rule.

2019Id. (citing Chappell v. Rich , 340 F.3d 1279 (11th Cir. 2003) ; Rozar v. Mullis , 85 F.3d 556 (11th Cir. 1996) ; and Mullinax v. McElhenney , 817 F.2d 711 (11th Cir. 1987) ).

2019Id. (citing Chappell v. Rich , 340 F.3d 1279 (11th Cir. 2003) ; Rozar v. Mullis , 85 F.3d 556 (11th Cir. 1996) ; and Mullinax v. McElhenney , 817 F.2d 711 (11th Cir. 1987) ).

2019In Cooey v. Strickland , 479 F.3d 412 , 416 (6th Cir. 2007), the court stated that "the statute of limitations begins to run when the plaintiff knows or has reason to know that the act providing the basis of his or her **250 injury has occurred[,]" that is, "in determining when the cause of action accrues in § 1983 cases, we look to the event that should have alerted the typical lay person to protect his or her rights." (Emphasis added; internal citations, quotations, and alterations omitted.) The remaining approaches used by three other federal appellate courts demonstrate the lack of any uni

2019Id. (citing Chappell v. Rich , 340 F.3d 1279 (11th Cir. 2003) ; Rozar v. Mullis , 85 F.3d 556 (11th Cir. 1996) ; and Mullinax v. McElhenney , 817 F.2d 711 (11th Cir. 1987) ).

2008We set forth the reason for recognizing a discovery accrual rule in Berry v. Branner, 245 Or 307, 312 , 421 P2d 996 (1966): “To say that a cause of action accrues to a person when she may maintain an action thereon and, at the same time, that it accrues before she has or can reasonably be expected to have knowledge of any wrong inflicted upon her is patently inconsistent and unrealistic.

2008We set forth the reason for recognizing a discovery accrual rule in Berry v. Branner, 245 Or 307, 312 , 421 P2d 996 (1966): “To say that a cause of action accrues to a person when she may maintain an action thereon and, at the same time, that it accrues before she has or can reasonably be expected to have knowledge of any wrong inflicted upon her is patently inconsistent and unrealistic.