OTLA Trial Lawyer Fall 2021

50 Trial Lawyer • Fall 2021 with federal and industry standards. TÜV performed that work outside of Oregon. HP purchased a generator from the manufacturer for its Oregon campus. After the generator exploded, injuring a man, he and his wife sued HP. HP then brought a third-party claim against TÜV, alleging TÜV negligently certified the generator’s design. TÜV moved to dismiss HP’s claim for lack of personal jurisdiction. The trial court denied the motion, but TÜV obtained a writ of mandamus from the Oregon Supreme Court ordering the trial court to grant the motion. The court began by noting that gen- eral jurisdiction did not apply here. As to specific jurisdiction, the court noted TÜV had purposely availed itself of the Oregon market. But the court held HP’s claims did not “arise out of or relate to” TÜV’s Oregon activities, which defeated jurisdiction. As the court explained, al- though TÜV engaged in some Oregon activities, those activities were not suffi- ciently related to this litigation to satisfy the demands of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. That is, the relationship among Oregon, TÜV, and the present litigation was not close enough to permit the exercise of specific personal jurisdiction over TÜV. In reaching this conclusion, the court modified its most recent decision on the “relatedness” inquiry, Robinson v. Harley- Davidson Motor Co. , 354 Or 572 (2013), in light of subsequent United States Supreme Court decisions, including Ford Motor Co. v. Montana Eighth Judicial Dist. Court , 141 S Ct 1017 (2021). In light of Ford , the Oregon Supreme Court disavowed Robinson to the extent it required a but-for causal connection between a defendant’s Oregon activities and the litigation in every case. The court adhered, however, to its conclusions in Robinson that, to establish “relatedness,” at a minimum, the nature and quality of the defendant’s Oregon activities must permit a determination it was reasonably foreseeable the defendant would be sued in Oregon for the type of claim at issue. Moreover, the exercise of personal juris- diction must otherwise comport with fair play and substantial justice. The court identified TÜV’s Oregon activities, which consisted of limited ef- forts to reach Oregon manufacturers that might need testing and certification services for their products. The Court then concluded, after a fact-intensive inquiry, and although it was a close ques- tion, that those activities were not suffi- ciently related to this litigation, because the present litigation stems not from any services TÜV provided to an Oregon manufacturer but, instead, from services TÜV performed elsewhere for a product unlike any TÜV had previously certified in Oregon and for a manufacturer with no identified history of prior product sales in Oregon. The statute of limitations in ORS 12.117 applies to child abuse claims brought against public bodies, and ORS 30.265(6)(d) does not provide public bodies with immunity from such claims. Sherman v. State , 368 Or 403 (2021); Walters, C.J. The plaintiff was repre- sented by Carl Post. Kristian Roggendorf filed the amicus brief for OTLA. The plaintiff was in foster care until 2006 and experienced various forms of abuse while there. In 2016, she received a copy of her DHS file and discovered DHS had known about the abuse and negligently failed to protect her. Within two years after receiving her DHS file, but more than 10 years after the abuse occurred, the plaintiff sued DHS for negligence and violation of the Vulner- able Person Act, ORS 124.105. DHS moved to dismiss, arguing the plaintiff’s claims were untimely under the Oregon Tort Claims Act. They argued ORS 30.265(6)(d) makes public bodies immune from liability for claims barred by a statute of limitations or ultimate repose, such as the general 10-year statute of ultimate repose in ORS 12.115. The plaintiff argued ORS 12.117 exempted her claims fromORS 12.115 because her claims involved child abuse. DHS replied that ORS 30.275(9) — which imposes a two-year statute of limitations from the date of the alleged injury for all claims involving public bodies — superseded all other statutes that provide limitations on the commencement of actions, including ORS 12.117, so ORS 12.115 still barred the plaintiff’s claims. The court agreed with DHS and dismissed the plaintiff’s claims. The plaintiff appealed, and the Court of Appeals reversed. The Supreme Court affirmed the Court of Appeals in a divided opinion. As an initial matter, the majority recog- nized that ORS 30.275(9) establishes a uniform two-year statute of limitations that applies to all claims brought against public bodies. The majority then consid- ered whether ORS 30.275(9) serves an additional function and completely displaces other statutes that provide limitations to the commencements of actions. After examining the text, context and legislative history of ORS 30.275(9), the majority concluded the Legislature intended ORS 30.275(9) to give effect to other statutes, such as ORS 30.265(6) (d), so ORS 30.275(9) does not super- sede or render any other statute a nullity. Second, the majority examined whether ORS 30.265(6)(d) provides public bodies with immunity so that ORS 12.117 does not apply to claims of child abuse against public bodies. The majority noted the OTCA waives the state’s immunity for civil tort claims, so no additional express waiver of immu- nity is required when a plaintiff brings a claim under the OTCA against a public body. Further, the majority reasoned, given the text and context of ORS 12.117, the legislative history does not permit a reading of the statute that cre- ates an exception for public bodies when the text of the statute does not create such an exception. Thus, the majority con- Sheets Continued from p 49