Smith v. Evraz Inc. NA

Filing 17

Opinion and Order - Defendant EVRAZ Inc., NA's Motion for Summary Judgment (ECF 5 ) is GRANTED. Signed on 5/22/2017 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CECIL F. SMITH,
Plaintiff,

Case No. 3:17-cv-86-SI
OPINION AND ORDER

v.
EVRAZ INC., NA, a Delaware Corporation,
Defendant.
Matthew J. Kalmanson and Michael G. Jacobs, HART WAGNER LLP, 1000 SW Broadway,
Twentieth Floor, Portland, OR 97205. Of Attorneys for Plaintiff.
James P. McCurdy and Alice S. Newlin, LINDSAY HART, LLP, 1300 SW Fifth Avenue,
Suite 3400, Portland, OR 97201. Of Attorneys for Defendant.
Michael H. Simon, District Judge.
On December 20, 2016, Plaintiff Cecil F. Smith (“Smith”) brought this lawsuit alleging
negligence against Defendant EVRAZ Inc., NA (“EVRAZ”). Plaintiff originally filed his action
against Defendant in Multnomah County Circuit Court, and Defendant timely removed the
lawsuit to this Court. Plaintiff seeks damages for a personal injury that he sustained on January 7,
2013, when he stepped into a pothole five inches deep while working at a slab yard controlled
and subleased by Defendant at Terminal 6 at the Port of Portland. Defendant has moved for

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summary judgment, asserting that Plaintiff’s claim is barred by Oregon’s two-year statute of
limitations for negligence actions. For the reasons that follow, the Court GRANTS Defendant’s
motion.
STANDARDS
A party is entitled to summary judgment if the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine
dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view
the evidence in the light most favorable to the non-movant and draw all reasonable inferences in
the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th
Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling
on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of
the plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252,
255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for
the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).
The party moving for summary judgment bears the burden to show “beyond controversy”
all essential elements of the claim or defense asserted. S. Cal. Gas Co. v. City of Santa Ana, 336
F.3d 885, 888 (9th Cir. 2003). When a defendant asserts that a claim is barred by an applicable
statute of limitation, defendant bears the burden to show the statute applied and that plaintiff
failed to file suit within the allowed timeframe. See Keller v. Armstrong World Industries, Inc.,
342 Or. 23, 38 n.12 (2006) (finding that “[b]ecause the statute of limitations is an affirmative
defense” for which the asserting party “has the burden of persuasion at trial,” a party moving for
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summary judgment on such grounds bears the burden to produce evidence supporting the
motion).
“A federal court sitting in diversity applies the substantive law of the state, including the
state’s statute of limitations.” Albano v. Shea Homes Ltd. P’ship, 634 F.3d 524, 530 (9th Cir.
2011). A federal court must apply a state’s substantive law as it has been described by the state’s
highest court, including reasoned dicta. Tompkins v. 23andMe, Inc., 840 F.3d 1016, 1023 (9th
Cir. 2016) (quoting Muniz v. United Parcel Serv., Inc., 738 F.3d 214, 219 (9th Cir. 2013)). In the
absence of a state high court decision that squarely addresses an issue, this Court must follow the
state’s intermediate appeals court decisions unless there is “convincing evidence that the highest
court of the state would decide differently.” American Triticale, Inc. v. Nytco Servs., Inc., 664
F.2d 1136, 1143 (9th Cir. 1981) (quoting Stoner v. N.Y. Life Ins. Co., 311 U.S. 464, 467 (1940));
Tompkins, 840 F.3d at 1023 (“we generally will ‘follow a published intermediate state court
decision regarding [state] law unless we are convinced that the [state’s highest court] would
reject it.’” (quoting Muniz, 738 F.3d at 219)).
BACKGROUND
Since 1988, Smith has been a longshore worker and marine clerk. Since 2009, he has
been a member of the International Longshore and Warehouse Union, Local 40. On January 7,
2013, Smith was working for Jones Stevedoring as a marine clerk when he stepped into a pothole
five inches deep at the slab yard at Terminal 6 of the Port of Portland in Oregon. As a result,
Smith tore his left Achilles tendon. Smith knew immediately that he had injured his left leg.
Since 2010, ICTSI Oregon, Inc. (“ICTSI”) leases Terminal 6 from the Port of Portland
(the “Port”) and since 2012 operates Terminal 6. EVRAZ, formerly known as “Oregon Steel
Mills,” operates a steel milling facility and uses Terminal 6 to load and unload cargo to and from
merchant vessels. EVRAZ subleases the slab yard at Terminal 6 from ICTSI.
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On January 7, 2013, the day of his injury, Smith knew that the Port owned Terminal 6,
that ICTSI leased and operated Terminal 6, and that EVRAZ subleased from ICTSI the slab yard
where Smith was injured. At the time of his injury, however, Smith did not know how the Port,
ICTSI, and EVRAZ allocated among themselves contractual responsibilities for maintaining the
slab yard’s pavement.
At the time of his injury, Smith was working for Jones Stevedoring, counting steel slabs
for EVRAZ. According to Smith, potholes on the slab yard were a known problem, and both
ICTSI and EVRAZ previously had been informed of their existence.
On August 12, 2013, Smith’s attorney sent a letter to the Port, requesting all documents
regarding leases and maintenance agreements relevant to Terminal 6 as of the day of Smith’s
injury. The letter requested copies of these documents to assist Smith’s attorney in determining
who had contractual responsibility for filling the potholes at the slab yard. On November 25,
2013, after three months with no response from the Port, Smith’s attorney sent a second letter,
threatening to subpoena the Port’s records. On December 11, 2013, the Port provided Smith with
a copy of the lease between the Port and ICTSI, which indicated that ICTSI was responsible for
maintaining the pavement at the slab yard at the time Smith was injured.
On January 13, 2015, Smith filed a lawsuit against ICTSI in federal court, based on the
injury that Smith suffered at the slab yard at Terminal 6 on January 7, 2013. Smith v. ICTSI
Oregon, Inc., Case No. 3:15-cv-00035-BR (D. Or.) (the “ICTSI Lawsuit”). The lawsuit was
assigned to U.S. District Judge Anna Brown. Smith alleged in this lawsuit that ICTSI was
obligated under its lease of Terminal 6 with the Port to maintain the asphalt surface of the leased
premises, including an obligation to eliminate large potholes in the pavement. Smith did not
name either the Port or EVRAZ as additional defendants in the ICTSI Lawsuit.

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ICTSI moved for summary judgment, arguing that Smith’s claim was barred by Oregon’s
two-year statute of limitations for negligence actions. According to ICTSI, because the injury
occurred on January 7, 2013, and Smith’s lawsuit was not filed until January 13, 2015, two years
and six days later, the action was untimely. Smith’s attorney responded that he had attempted to
file Smith’s complaint against ICTSI on January 7, 2015, exactly two years after the date of
Smith’s injury, but Smith’s attorney was unable to upload the complaint into the district court’s
electronic filing and docketing system until January 13, 2015. On March 2, 2016, Judge Brown
granted ICTSI’s motion, after concluding that ICTSI’s role in causing Smith’s injury was
inherently discoverable on January 7, 2013, the day of the accident. Smith v. ICTSI Oregon, Inc.,
2016 WL 866313, at *4 (D. Or. March 2, 2016). Smith appealed the district court’s ruling, but a
decision has not yet been issued by the Ninth Circuit. See Smith v. ICTSI Oregon, Inc., Ninth
Circuit Case No. 16-35242.
According to Smith, he first learned from ICTSI that other parties may bear some
contractual responsibility for maintaining the pavement at the slab yard when he read ICTSI’s
answer to the complaint in the ICTSI Lawsuit. Smith adds that it was not until December 29,
2015, at oral argument on ICTSI’s motion for summary judgment, that Smith actually discovered
that EVRAZ was contractually responsible for filling potholes at the slab yard.
On December 20, 2016, Smith commenced the present lawsuit against EVRAZ in state
court, alleging negligence. EVRAZ timely removed the action to federal court. EVRAZ now
seeks summary judgment under Oregon’s two-year statute of limitations for negligence claims.
DISCUSSION
A. Oregon’s Statute of Limitations and the Discovery Rule
Under Oregon law, a personal injury claim not arising on contract “shall be commenced
within two years” of the claim’s accrual. Or. Rev. Stat. § 12.110(1). Oregon common law allows
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for potential tolling of this two-year window under what is known as the “Discovery Rule.”
Doughton v. Morrow, 255 Or. App. 422, 428 (2013) (citations omitted). Under the Discovery
Rule, “the statute of limitations begins to run when the plaintiff knows or in the exercise of
reasonable care should have known facts which would make a reasonable person aware of a
substantial possibility that each of the three elements (harm, causation, and tortious conduct)
exist.” Gaston v. Parsons, 318 Or. 247, 256 (1994); see T. R. v. Boy Scouts of Am., 344 Or. 282,
291-92 (2008) (noting that the Discovery Rule in Oregon mirrors the generally accepted
common law rule that “the statute of limitations does not begin to run until a reasonably prudent
plaintiff perceives both the injury and the role that the defendant has played in that injury”).
The Discovery Rule may toll the statute of limitations unless the elements of a claim
were “inherently discoverable at the time of the incident.” Gehrke v. Crafco, Inc., 143 Or.
App. 517, 524 (1996). “In some cases, the relevant facts are so obvious to a reasonable person
that they are said to be ‘inherently discoverable.’” Cole v. Sunnyside Marketplace, LLC, 212 Or.
App. 509, 519 (2007). Although Oregon law often reserves to a jury the question of when a
plaintiff should have become aware of a substantial possibility that a defendant was responsible
for an injury, a court may resolve the issue on summary judgment “if every rational juror, asked
whether plaintiff should reasonably have known [on the date of an injury] that defendant was
probably responsible, would answer in the affirmative.” Johnson v. Multnomah Cty. Dept. of
Cmty. Justice, 210 Or. App. 591, 597-98 (2007), aff’d 344 Or. 111 (2008).
B. Inherent Discoverability
The question before the Court is whether Smith’s negligence claim is barred by Oregon’s
applicable two-year statute of limitations as a matter of law. To answer that, the Court must
determine whether the Discovery Rule tolls the running of the two-year period in this case to
some date after January 7, 2013, the date of Smith’s injury, within two years of the date of filing.
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If EVRAZ’s role in causing Smith’s injury was “inherently discoverable” on the day of the
accident, the Discovery Rule does not toll the statute of limitations, and EVRAZ’s motion for
summary judgment must be granted. See Gehrke, 143 Or. App. at 523-24.
Smith filed his Complaint against EVRAZ on December 20, 2016, almost four years after
the day of his accident. Smith’s personal injury was immediately apparent to him on January 7,
2013. Smith argues that the Discovery Rule tolls the Oregon statute of limitations to a date
within two years of December 20, 2016, because Smith did not immediately know that EVRAZ
was contractually responsible for maintaining the pavement at the slab yard and Smith’s
investigation into which entity had the contractual duty to fix potholes at the slab yard was
delayed by the complexity of the lease agreement between the Port and ICTSI.
EVRAZ argues that Smith’s negligence claim accrued on the day of the injury, January 7,
2013, because EVRAZ’s probable negligence in causing Smith’s injury was “inherently
discoverable” based solely on facts that Smith admits he knew at the time of the injury. Smith
admits that, as of the day of the accident, he knew that EVRAZ subleased the slab yard where the
injury occurred, that Smith was working at the slab yard under the direction of EVRAZ when the
injury occurred, that the existence of potholes at the slab yard had been known by EVRAZ to be
a danger for some period of months before the injury occurred, and stepping into a pothole on the
slab yard was the immediate cause of Smith’s injury. Thus, according to EVRAZ, it does not
matter whether Smith also had knowledge of how the Port, ICTSI, and EVRAZ might have
contractually allocated among themselves maintenance responsibilities for the slab yard; EVRAZ
still had responsibility in tort for the injury that Smith suffered on January 7, 2013, due to
EVRAZ’s alleged negligence.

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Based on these undisputed facts, EVRAZ argues that its role in causing Smith’s injury
was “inherently discoverable” on January 7, 2013, and that as a result, Smith’s negligence claim
accrued on that day, as a matter of law. EVRAZ primarily relies upon two cases: (1) Cook v.
Sibjet, 2000 WL 33946062 (D. Or. Dec. 15, 2000); and (2) Gehrke v. Crafco, Inc., 143 Or.
App. 517 (1996). In Cook, the plaintiff was injured when her son’s cigarette lighter exploded.
2000 WL 33946062, at *1. The plaintiff initially alleged that the identity of the manufacturer
could not be discerned from the remnants of the exploded lighter. Id. at *2. During her
deposition, however, the plaintiff admitted that she had knowledge of facts indicating who
manufactured and distributed the malfunctioning lighter shortly after her injury. Id. at *2-3. She
acknowledged that shortly after the injury she was able to read “YOUR Basic LIGHTER,”
“Djeep,” and “Made in France” on shards of the exploded lighter. She also knew that her son
only smoked Basic brand cigarettes. Id. at *5. Based on these admissions, the court held that the
identity of the tortfeasor was inherently discoverable shortly after the injury because the facts
known to the plaintiff indicated “the distributor and manufacturer of the lighter that injured her.”
Id. at *6.
In Gehrke, the plaintiff tripped over part of a display shelf at a craft store and was
injured. 143 Or. App. at 519. The plaintiff originally sued an incorrect defendant due to
confusion over which entity legally possessed the store at the time of the injury. Id. at 519-20.
The court held that the Discovery Rule did not toll the statute of limitations because “plaintiff
knew or should have known that she had been wronged by the possessor of the store at the time
of the fall, even though she did not know whom the possessor was.” Id. at 523. The court
explained that the store’s causal role in the plaintiff’s injury was obvious at the time and that the
true possessor of the store is a fact that was inherently discoverable. Id. at 524.

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Smith responds by arguing that Gehrke is distinguishable from this case. In Gehrke, the
court found that the identity of the possessor of the store was inherently discoverable, and the
possessor unquestionably was the liable party. Smith argues that his admitted knowledge of
EVRAZ’s possession and control of the slab yard does not definitively answer the issue of
liability as it did in Gehrke. According to Smith, three parties were potentially liable to him, the
Port, ICTSI, and EVRAZ, and he did not know for some time how they had contracted allocated
among themselves the responsibility to maintain the slab yard.
Smith also argues that the Oregon Court of Appeals’ decision in Cole v. Sunnyside
Marketplace supports Smith’s argument that the doctrine of inherent discoverability does not
show that Smith’s claim against EVRAZ accrued on January 7, 2013. In Cole, the plaintiff was
abducted after leaving her job at a coffee shop in a mall. 212 Or. App. at 511. The plaintiff sued
both the mall owner and the property manager for negligently failing to provide security. Id.
During discovery, the plaintiff learned that a third party had been contracted to provide security
at the mall. Id. at 511-12. The court found that the third-party security provider’s role was not
inherently discoverable. Id. at 520 (“[A]t the time of her injury, the plaintiff did not know the
identity of the tortfeasor . . . at all. In fact, it is undisputed that she did not know that [the] mall
had contracted with anyone to provide security.” (emphasis in original)). From this, the court
concluded, the plaintiff’s claim against the security company was not time-barred.
Cole, however, is factually distinguishable because Smith did know about the existence
of EVRAZ as a possible tortfeasor on the day of his injury. It was not EVRAZ’s existence that
was unknown to Smith, as was the situation concerning the security company in Cole. Rather,
Smith simply was unaware of the contractual terms among the Port, ICTSA, and EVRAZ in
which they allocated among themselves maintenance responsibilities for the slab yard. This,

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however, did not affect their obligations to third parties, such as Smith. Thus, unlike the plaintiff
in Cole, who could not sue a defendant of whom she was completely unaware, Smith could have
named EVRAZ as a defendant, along with ICTSI if Smith so chose, in a timely lawsuit.
The Court agrees with EVRAZ regarding the application of Gehrke in this case. Smith
admits that on the day of the accident, he knew that he was working at the direction of EVRAZ
on a slab yard that EVRAZ subleased from ICTSI and that EVRAZ previously had been warned
about the dangerous condition of potholes present at the slab yard. As with the plaintiff in
Gehrke, Smith “knew or should have known that [he] had been wronged by the possessor of the
[slab yard].” 143 Or. App. at 523. Smith knew that he was seriously injured the moment he
stepped into the pothole and heard a snap in his lower leg, and he knew of the dangerous
condition of potholes at the slab yard.
These admitted and undisputed facts are sufficient to raise a “substantial possibility that
each of the three elements (harm, causation, and tortious conduct) exist[ed]” as to EVRAZ. See
Gaston, 318 Or. at 256 (holding that the statute of limitations begins to run when a plaintiff
knows, or in the exercise of reasonable care should know, that the three elements of a negligence
claim exist). The Court finds that every reasonable juror would agree that Smith either knew or
reasonably should have known of the substantial possibility that EVRAZ was the responsible
party on January 7, 2013.1 See Johnson, 210 Or. App. at 594.

1

The Court also notes that under general principles of premises liability the person in
possession and control of land is obligated to cause no unreasonable harm to others in the
vicinity. See W. Page Keeton, et al., PROSSER AND KEETON ON THE LAW OF TORTS § 57, at 386
(5th ed. 1984). Oregon law is similar. See Woolston v. Wells, 297 Or. 548, 557 (1984) (holding
that “[i]n general, it is the duty of the possessor of land to make the premises reasonably safe for
the invitee’s visit”). Thus, Smith’s knowledge of EVRAZ’s sublease and possession of the slab
yard by itself should have raised at least a substantial possibility that EVRAZ had a duty to
maintain the premises free of unreasonable risks, such as known potholes.
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CONCLUSION
Defendant EVRAZ Inc., NA’s Motion for Summary Judgment (ECF 5) is GRANTED.
IT IS SO ORDERED.
DATED this 22nd day of May, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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