Cecil Smith v. Evraz Inc. Na

FILED
NOT FOR PUBLICATION
JUN 04 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CECIL F. SMITH, No. 17-35485
Plaintiff-Appellant, D.C. No. 3:17-cv-00086-SI
v.
MEMORANDUM*
EVRAZ, INC., A Delaware Corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted May 11, 2018
Portland, Oregon
Before: RAWLINSON and CHRISTEN, Circuit Judges, and BLOCK,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
On January 7, 2013, Cecil F. Smith stepped in a deep pothole at Terminal 6
of the Port of Portland (the Port) and was seriously injured.1
Smith consulted an attorney who requested documents from the Port relating
to the lease and maintenance agreements of Terminal 6. In December, 2013, the
Port provided Smith a copy of the lease agreement between the Port and ICTSI
Oregon, Inc. (ICTSI). In January, 2015, Smith filed an action against ICTSI
(ICTSI suit), and ICTSI moved for summary judgment on the grounds that Smith’s
claim was barred by Oregon’s two-year statute of limitations. See Or. Rev. Stat. §
12.110(1). Smith maintains that he only discovered during oral arguments in the
ICTSI suit that EVRAZ INC., NA (EVRAZ) might be responsible for maintaining
the slab yard.2
On December 20, 2016, Smith commenced the present lawsuit against
EVRAZ in state court, alleging negligence. EVRAZ timely removed the action to
federal court under 28 U.S.C. § 1332 and sought summary judgment, claiming
Oregon’s two-year statute of limitations had run. See Or. Rev. Stat. § 12.110(1).
The district court granted the motion, and Smith filed a timely notice of appeal.
1
As the parties are familiar with the facts, we do not recount them in
detail here.
2
The district court granted ICTSI’s motion for summary judgment, and
Smith’s appeal of this ruling is pending. See Smith v. ICTSI Oregon, Inc., Ninth
Circuit Case No. 16-35242.
2
Federal courts in a diversity action must apply the substantive law of the
state where the federal court is located. See Kwan v. SanMedica Int’l, 854 F.3d
1088, 1093 (9th Cir. 2017). Oregon’s statute of limitations for a personal injury
action provides that “[a]n action for . . . any injury to the person . . . shall be
commenced within two years[.]” Or. Rev. Stat. § 12.110(1).
Smith fails to raise a material issue of fact regarding application of Oregon’s
discovery rule. Under the discovery rule, “the notice of claim period does not
commence to run . . . until a plaintiff knows or, in the exercise of reasonable care
should know, that he or she has been injured and that there is a substantial
possibility that the injury was caused by an identified person’s tortious conduct.”
Johnson v. Multnomah Cty. Dep’t of Cmty. Justice, 178 P.3d 210, 214 (Or. 2008)
(en banc). “An injury is ‘discovered’ when a plaintiff knows, or should have
known, of a substantial possibility that three elements exist: (1) harm; (2)
causation; and (3) tortious conduct.” Dickson v. TriMet, 412 P.3d 1188, 1191 (Or.
App. 2018).
It is undisputed that Smith immediately knew he was seriously injured when
he stepped into the slab yard pothole. Smith understood at the time of injury that
the Port owned Terminal 6 and that ICTSI leased Terminal 6 from the Port. Also,
notwithstanding Smith’s claim that he only discovered EVRAZ’s possible
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tortfeasor role during the ICTSI suit’s oral arguments, he believed at the time of
injury that EVRAZ had some form of sublease agreement with ICTSI which
allowed it to use the slab yard to move its steel slabs.
Smith “knew or should have known that [he] had been wronged by the
possessor of the [slab yard] at the time of the fall, even though [he] did not know
who[] the possessor was.” Gehrke v. Crafco, Inc., 923 P.2d 1333, 1336 (Or. App.
1996). Accordingly, Smith’s belief that EVRAZ had a sublease which allowed it
to use the yard to move its slabs should have given him awareness of a “substantial
possibility” that EVRAZ possessed the slab yard, and therefore that each of the
three elements (harm, causation, tortious conduct) existed as to EVRAZ. Dickson,
412 P.3d at 1191.
Furthermore, the “discovery rule does not protect those who sleep on their
rights.” Gaston v. Parsons, 864 P.2d 1319, 1324 (Or. 1994); see also Cole v.
Sunnyside Marketplace, LLC, 160 P.3d 1, 7 (Or. App. 2007) (“[W]hether facts are
‘inherently discoverable’ pertains to ‘whether the plaintiff in a negligence action
has exercised due diligence to discover the requisite facts.’”) (citing Gehrke, 923
P.2d at 1336). Because Smith’s complaint was not filed until almost four years
from the date of injury, this court is not persuaded that he “exercised due diligence
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to discover the requisite facts.”3 Cole, 160 P.3d at 7 (citing Gehrke, 923 P.2d at
1336).
Accordingly, the court concludes as a matter of law that any rational juror
would find that Smith knew or should have known of a substantial possibility that
EVRAZ was a responsible party more than two years before he filed suit. See
Johnson v. Multnomah Cty. Dep’t of Cmty. Justice, 152 P.3d 927, 931 (Or. App.
2007), aff’d 178 P.3d 210 (Or. 2008) (en banc).
AFFIRMED.
3
While not dispositive, the court notes that Smith waived initial
disclosures from EVRAZ, and, at the time of oral arguments, still did not possess a
copy of any sublease agreement between EVRAZ and ICTSI or the Port. See Oral
Argument at 3:12–4:23.
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