i please the court counsel i'm back before you in the second case you understand my view of the law which again is that i won't go through it all again i promise but that i do believe that we're not giving enough weight to the organ supreme court cases that specifically talk about how the accrual works when you don't know identity that's the t r vs boy scouts of america case it's a specific standard that applies to applied that standard and that is is there enough of a chance there's no difference between this case in the of nowadays obviously you know i was curious to find out about this family situation which is unique to the case you don't have that in this particular case i had missed the first part i was concerned about the filing issue right we don't have that in this we don't have that in this case that's correct and i was concerned about that in respect to the other case which is unique that gays are right and counsel unless you have something to that that you didn't have in the last case perhaps we can hear from opposing counsel and in thirty seconds to add which is just the facts are a little bit different in the sense that we didn't we never knew whatever as a specific relationship is to this property we we thought that it was a sublease that's what the declaration says for my client so that would make it see a landlord and ever as a sublease but again we didn't know what their responsibilities were for the asphalt and we saw port requirement then we got to investigate it did we have all the facts we needed in order to state a claim i still believe the answer is no we didn't have all the facts even if we could you know allege on information and belief that somehow accrual works in oregon is the same issue disclosures but i will if i'm wrong about that far you mean is right they immediately move for summary judgment and it was scheduled and we argued it and it was basically look this is already this is the closest come before and they may have even been waived to i just don't i can't recall if we waive additional schools or not that's my answers i don't know but i will say that summary judgment happened right out of the box in this case and so we never exchanged documents or the like it was based mostly on the record that had been developed in the other all right we'll hear from opposing counsel and then you may reply that thank you plaintive knew or believed and the precise language and in the plaintiff's declaration as i was aware before my injury exceed lease terminal six from the port and i also understood that it ever has leased the slab yard so on summary judgment those are the facts in the that to diane really closely on on some of the issues in this case that i think are rising from terminology that's problematic so there's been a lot of discussion about who's responsible possibility of the three elements harm causation and tortious conduct harm and causation aren't at issue tortious conduct here this is a common law negligence case or tortious conduct is going to need a duty and it's going to need a breach and so the the in the store with the clock have started because of the case doesn't exactly say that and that's what i'm trying to and that's the nub of it for me so so i position is that yes it would have started running immediately and the language in is that pla peculiar because there isn't a universe where really where somebody knows that day the name of the corporate entity you go get a lawyer you do some good faith rule eleven requires you to do some research make sure you're just not just suing people you're supposed to have a good faith believe you've got the right one otherwise we we cause a lot of expense you know all of that so really organ requires that the clock starts running immediately so that's the conundrum of that inherently discoverable standard in oregon where even though something hasn't been tortfeasor the owner of the store the driver of the car the paver of the road there's also the existence of a particular party so we see that this is really about the role she knows that the party is the owner of the store she gets the legal name wrong but she knew about the existence of that party and find the category but she doesn't know the identity of that defendant right ok so we see those two elements come into play in co right where the plaintiff in cole was kidnapped from a mall and so she knows that the tortfeasor is responsible for her safety at the mall but it's different calls different because she had no idea that entire other entity had subcontracted to provide security for the mall precisely it's really different precisely right and that's why it is different from turkey because you know the role of the tart freezer but she doesn't know the existence of this particular defendant so in a case where you understand the role of the of the existence of the defendant then your clock starts running yes i think that's the part that's apparent the difficulty is trying to reconcile with coles statement and organ supreme court's more recent case law where it's really clear they say that's not a different just time to find the identity always yes i know it's only a week or something you're going to get less than two years is that right yes yes and and that is why our standard is that it starts to run when a appreciate that try met which is our transit authority could be liable for its employees conduct related to a third party to a person who stabbed the plaintiff and in that case what the court said was that an argument that the plane of doesn't know the full extent of the harm or that the facts that he appreciates at the time have a legal significance doesn't avail him at the time he knew there was a tri met employee who opened the door and allowed this person who was known to be dangerous to it conducted its operations there and it comes back to knew about a sub we don't really know that you might be the only one in the room who knows that but it in a way that was his belief that was his believe his understanding ok he also testified that he knew that because he'd been doing work forever as at that slab yard for years i had is saying that we don't have these these leases so we don't know contractually who was responsible for what and that's that word responsible but this is a common law negligent negligence claims what we care about is not who's contractually responsible but who under the common law has a duty or to warn of the dangerous condition so there are two possible paths here there's plain vanilla common law negligence in oregon where the duty rises from the forseeable ety of an unreasonable harm and there's also premises liability discussed below where the is and on this on these facts this plaintiff on the day that he's injured believes that ever as is the tenant of the property he also knows that ever his conducts its operations there and he went there because of paperwork he had from ever us so he also knows as was was told of the potholes and that they've been there for a long time so reza knows or has reason to know of the unreasonably dangerous condition and that people in plain his position will be going there so under either foreseeability standard or premises leadville it is standard plaintiff knows facts that give rise to this duty and as soon as he's heard he knows it's been breached so the contractual arrangements between the parties who is responsible contractually for filling in those policy is a different question from who has a duty under this point that i've been trying to make and perhaps in artfully which is you have to know the critical facts it's not the case and i think we maybe just disagree on this judge walker but it's not the case that you say i'm a suit those all three because it's possible that or one of them will be liable that's not how it works in oregon it's oregon has a more liberal accrual standard not shrift or the way we're applying girty a sort of overriding every other case makes it more strict the  have a chance that someone is liable you have the opportunity to look into it before the claim accrues that is what the organ supreme court has said the council was the language that you're relying upon in dixon because the it was the court found that facts that he knew at the time he knew every fact that he needed to know the only thing he didn't know was the legal significance of those facts and so and how could be thin about your mind that he had all of the critical the critical facts that he needed to know not the nuances of those facts it's not the nuances your honor it is the critical fact of control that is a critical fact and so when counsel just said there's two paths that is incorrect there is one path to suing someone in oregon it is not a general forseeable the standard it is premises liability and under premises liability law in oregon it the question the key fact is control who has control over the premises that is the fact that they didn't have and so if you look at legally they have to have facts from which it could be said as a legal matter that that person has control he doesn't have to go to a lawyer he doesn't have to have a legal education but he has to know the operative facts and he does not know how would he know if you  view there has to be a determination as to what the lease contains and what all of the provisions of the lease provide if it didn't why wouldn't you have to go to learn a common person wouldn't be able to  the legal result who has control is a legal question based on the leases so i guess from which one could draw a legal conclusion down the road that is what dixon says it said and i'll just read it you they say tom so i'm reading from page one one one two in the p three d site about halfway down they said thomson observed the critical facts as they occurred he did not discover any new facts about trying that or about james's conduct when he met with his attorney nor does thompson assert that his meeting with his attorney prompted an investigation into additional facts necessary to prove negligence came against china in order to prove a negligence claim against ever asked for you have to understand there were legal relationship it's not a function of knowing you know how the terms of the lease allocation doesn't say that dixon talks about operating facts it doesn't talk about the relationship of the bus operator to the city or any of that it just talks about the operating facts that occurred later that was the conduct of the bus driver that was all he needed you know here we need to know more it's a different legal environment we're not talking about promises liability know if there's a sub lease or not even though you know in light of that very peculiar fact and they have his declaration saying well he believed there was a some please so so why wasn't there an accrual there mediately given that he at least believe that it took him more than two years because it's what he knew at the time so even if we got initial disclosures or found out at the time there's at least a duty to inquire and and so but but they've no one's ever challenged the length of our inquiry period here what the only argument has been made here and again it's their burden is that on the moment that he falls into that pothole he knows based on his belief at the time so if we later get in discovery i don't lease document even though he believed there was  inquiry and if you were if we're going to quibble with the how the length or the type of inquiry that's not at issue in this appeal that has never been raised aren't thank you counsel you thank you to both counsel the case just argued is the minute for decision by the court will be in re