my name is matthew counts and i'm representing the plaintiff cecil smith mr smith stepped in a pothole in a small what we call a slab yard on a port terminal owned by the port of portland and so the question that's presented to this court is whether plaintiffs claim against it see that's the i t c s i accrued at the moment of his injury or whether playing it was entitled to some opportunity to investigate and discover it sees actual role in causing the harm and so before going into the facts i'd like to talk about oregon law and how it works because i think there's a dispute between the parties about that key fact and i'd like to start with with one thing that really wasn't perhaps allowed as much as it should have been in the briefs which is is an affirmative defense and what that means is the defendants burden to come forth with evidence to prove that the stats imitations applied as a matter of law and so you might see in the brief some statements about some confusion about people's roles or that plaintiff didn't come forth with evidence when we're talking about an affirmative defense like the statue of limitations it's defendants burden to come forth that evidence and if that evidence doesn't exist then the case has to be reversed now getting into how a cruel works under oregon law to paraphrase the task in which i think there is no dispute a claim accrues when the plaintiff knows or should know of a quote substantial possibility of the existence of all elements of the claim so we have three parties here in play i guess well anyway start with the portion of portland for some reason they were not sued and they own the whole place right correct i don't know why they w but be that is it may just curious about that but we know that every is was leasing the place when the accident happened i guess right this lead we don't know if they have some relationship and you knew that i c t as i leased the facilities the entire facility is right and edwards was leasing the place where the slant happened was subleasing or working in that area right all that was factory can i don't forgive me for interrupting but i don't that's not my understanding my understanding is that we know there is permission and we don't know about the lease is that fair that is or simply say yes right that's what the facts show your honor is and this is based on what my client my clients understanding of the facts were because we still don't know what the facts really are my clients understanding my client is a marine clerk working on this busy port terminal hundreds of acres is that the port of portland own the port  terminal number six that is factually known that is what they know terminal six right he believes that a company called it's easy defendant lease is terminal six from the port that's his belief i thought he understood  that's clearly established that they do lease it from the point well we have since rick we do have that leitz but at the moment of its injury and that's the factual that's the moment in which we look at the facts because they stated that at that moment in time he had all the facts that he needed to know for the claim to accrue immediately so we look at not what we've discovered because the attorney's got those what he knew that time is when i'm concerned yes he knew that how you can as an east see it sees it he knew that they leased the place from the point he believe accident i guess i'm quibbling with the word knew that he believed he believed that to be on his case right that he didn't do all those people at that time he knew that he was and he was working for a company called joan stevedoring not to add another entity into the mix  but again we have to sort of look at this in the context of oregon law so if he believes that was the case why didn't he just sent the ed them all to the lawsuit even though he had to find out later on specific lee possibly who was libel in the rules and principles of law but if you believe that they were involved lessee said lucy one in each isn't the name them or the lawsuit the reason is because he did not have sufficient information to know that it's either he had a claim against it's c and i can explain why or under the under oregon law a landlord and that's what is in this context they subleased to ever ask generally is not liable they generally are not liable unless they exercise sufficient control over the premises and there is no evidence in this record that if he exercised any control over this area what the record shows is that plaintiff had observed the port filling potholes so i think there's an argument to be made that they know that the port exercise some control he believed that there was a sub vs between it c and every us but there's but that's it that's all he knew so at that point he knew he knew that it was committee he knew about the tours his conduct he knew he was injured at that particular location he know that he knew that those three entities were involved in the tow ptolemy of the control of that facility and i guess if he sued that he would have been able to find out in discovery exactly which theory  pursue and who may have been responsible who lead jointly responsible that's the stuff that evolves from litigation but the question is i guess i'm thinking about the tourney cases colin googie it's a bit of a conundrum here because it seems to me that if you know that there is a tort committed and you have knowledge of the players who could be libel the nabi you have an obligation to bring litigation against all of them but that's not what i think a summer long august t r versus boy scouts in oregon supreme court case and that talks about when you do not know the identity of a tortfeasor there's a specific test that applies and a specific test is is there are enough of a chance to know that the fed had a role in causing the injury to require further investigation that's the first thing and if so when with the investigation have revealed the role so that incorporates your hypothetical which is if you know there's a chance that means you know that they're generally involved that gives rise to do you investigate that's oregon law and that's a little bit different than how it works under federal law they have a very broad view of a cruel there is a duty to investigate and there's no other way to interpret the turner case which is really a similar fact pattern which i reconcile it with your kids and your time is running out and you know that that's  problem so can you speak to that please i'm sorry i've missed you got to reconcile it with that's your problem that's your problem case and it's still on the books that what's your answer to that my answer is that i think turkey is being too broadly applied here is what we call a misnomer  case there was only one possible defendant and they just got it wrong and that's it and so the court said you knew at the time as a matter of law who did it but what it has in common with your case is the mechanism of injury was obvious immediately step in possible fell in the store right and and the entity the description of anti the defendant was going to be the entity that owned the store and as you said misnomer got the wrong name wrong in this case the entity that was going to be responsible is the entity  responsible for maintaining the surface area right of the slab yard right and i think that's my problem with applying kirky because it's essentially circular you could apply that in every case you could say it's the entity that caused the harm you know it has to be that entity now we just have litigation to figure out who it is the organ supreme court has said repeatedly that is not how it works if there is a chance that they are liable you have an obligation to investigate that it does not accruing to the investigation quote would have revealed their role so so it's your position that if the lease hit never been turned over that second limitations would never have begun to run even if the plaintive subjectively knew who lease who was the necessarily but if you subjectively knew then who the landlord was why is that a jury questioning because landlords generally under oregon law are not liable for posting these conditions so how can we say that he knew as a matter of law that there was that they had this claim against them when they're generally not liable so you think i'm a layperson would know that landlords are not generally liable we impute to the plaintiff the law the question is what facts do and there's the case that say you don't have to go to a lawyer write a lawyer doesn't have to tell you that you have a claim as long as you have the collection of facts that are necessary the fact that they were missing in this case the specific fact was did it see have control possessor and just got it just made a mistake as to the legal identity and that's the language they use in the you make a mistake as to who the legal to use that word identity right but here's the problem it takes it takes sometimes if i fall down in the supermarket i know it's the supermarket ready to take you don't go to the supermarket you have to figure out exactly what the corporate entity is right and that takes some time in every case to figure out exactly the name of the of the tortfeasor if it's a corporate entity yet you didn't give any time well it so the the quickest way to this analysis is to ask what what could plaintiff has stated against the port i c t s i or ever i was on the day of his injury the same knowing that if you get it wrong he's got a rule eleven problem he's got a twamley problem he's got you know he can't just a lawyer we don't there are plenty of cases where we say those allegations were not the broader unfounded we're not saying does he win we're saying does he have substantial possibility of a claim well it's got to he's got to survive it will be six can he survive a motion to dismiss right sure so look at the complaint  is there anything on the day of the accident that he doesn't know that he alleges in the complaint the answer is yes he alleges paragraph through the complaint that he doesn't know who has the responsibility for maintaining the  again his response is he thought he knew he believed as a lay person that he knew that you were out so what do we do with that that's enough he was aware that there was a substantial possibility that i c t s i was the lesser of the property  he's charged with knowledge that he has a claim against the loss of the property and plans councils argument that if there's a lease the landlord may have turned over  responsibility for the premises were talking about a substantial possibility and the blanket versus green case says we don't have to you don't have to allege that to survive a motion to dismiss or right you have in common with your key this immediately apparent mechanism of the injury and it's pretty clear that the category right the defendant if not necessarily the identity of the defendant that's going to be responsible if you have that in common with and it's striking i think our know that the line of sight was obstructed from the county road before the driver turned on the highway so the unfairness the plaintiff gets some time to investigate and find out oh in fact that the driver couldn't see but the other thing is is that the state is that the county aus each one has a interest in that property each one there's a substantial possibility of a claim against each one at the moment that i'm going to interrupt this you this question and turn to the court believe that there was insufficient knowledge of tortious cond up because quote the dangers that is the road condition was not obvious as a matter of law and then they for the hell quote nor was the parish which entity was responsible for those conditions it seems to me that here we have an obviously dangerous condition that was not involved in turner but not an obviously responsible party what result follows there is a substantial possibility that the owner the less or and the lessee of the property have responsibility to third parties to ensure that the premises are do not pose a not so easily risk because one of those three people have to be responsible is your present we're not going to know that until the end of the case and i don't know that  know that from the get go as long as they're all in the soup somehow potentially responsible that's sufficient to satisfy the statutory provision correct we're just asking there's a statue of limitations doctor about counsel it with my it's different and so we went to this in some detail with opposing counsel so it's important in response to draw into the question he's a lay person who says i knew i thought he thought that's what he thought right he didn't have the least in hand he c really consistent about this because i think you've been a little bit inconsistent we've come to the someplace he said the same thing in his in his initial declaration he said i will write i knew but he didn't know because today we don't know about the someplace right now no  which is to know whether there is a substantial possibility of whether a claim is that's defined by the legal environment the legal environment is oregon premises liability law oregon premises liability law states that landlords are not liable but they're not liable unless they're certain indeed they have certain retain control although those who do that that's sorted out during the course of litigation that that is not how oregon law works i just fundamentally disagree the fact that i'm looking at the general premise which i think we understand because you said this i think very clearly and the point is all of that can change pursuant to the contract between the parties right and i think your position he didn't we still don't know about a it's you have control over the area that is the key factor and if you look at t r versus the boy scouts of america it says if there is a chance if there is a chance then you have a duty to discuss to investigate there is a chance in this case and all we're asking for is the opportunity to investigate do you mean that you don't know whether it had exclusive control what do you mean when you say we know there's at least stipulated we've been over this because there's a someplace because there's a sublease so they are now acting like a landlord and so when you're acting like a landlord you are not liable unless you retain control over the possession of the premises and there's no evidence that none there may be assemblies he believes are suburbs that's the facts that he knows of the time so that's why it's does he have all the information why don't he just suit everyone in sorted it's applied and we don't work nor in the organ supreme court cases afterwards that talk about the duty to investigate grief doesn't talk about that and in fact there's a later court of appeals case that says that that says look he didn't even discuss the judge investigate all those cases happen later one sixty four p three p three d one two one two and you'll see they distinguished gherkin say they didn't even talk about i did investigate that case and then there's various cases that so in colo you have th security contracting and nobody had a clue that there was any security issue with their case at all so it seems to me that there was no knowledge at all in cole that the security contract could be in play in that litigation but it seems to me that here you know that one of these three people are going to be liable but you don't know at the beginning of the litigation which one of those three so i guess the focus question is that if you know all the three could be any number of questions i think a number of entities but if it's going to be i c t s i there has to be a fact that we don't know and if we are if there are facts that are necessary that it does not occur without time was asking a different question  didn't you just name one of those three if the universe was just three and might and you nodded your head which caused me to out because i don't know that you know that universe is three you know i was nodding to i thought was sort of his specific issue spot which is it comes down to when you know there's three a separate question return a case of opposing counsel is right the difference that you've got there's a little bit of a little bit of turner here but the problem your problem with turner is that you have a very clear mechanism of injury here that he knew right away undisputable he stepped in the bottom right away and intersection was wrong but the court gave two reasons they didn't just say one i said one you don't know in a second if you don't even know who was responsible for mitigating see if you hazards at all and that leads us to our case are you involved with the filing issue here also if you lose on the statue of limitations the you the involved with whether you fall month on the last day of do any of this that you that is part of the of the it's the appeal i'm curious about that because you have this curious procedural issue here that if we don't agree with you  say that the statue did commence and you had the two years you filed on the last day am i correct correct and we have this kind of curiosity where you got a receipt for the filing but you have no proof that the complaint was actually accepted through the electronic system so to speak that's correct we have a declaration from the paralegal from a for a lawyer saying i followed all the steps and i got a receipt and i received a phone call six days later you think you timely filed in any event because of that yes there's an issue of i'm not an electronic whiz i'm sort of the generation gap because of that but we have electronic folly now which tells you exactly where the complaint was filed to and not here you don't have any proof that the complaint was filed what do we do with that but our position is that there's an issue of fact on that based on the testimony of the paralegal who said i followed all the steps i did what i was supposed to do and so that it comes down to that she wasn't technically raised in this case the bri steps i did it and the question really is there's no case on the ninth circuit there some of the seventh circuit on this you know was it delivered on whose whose fault was it and we think there's a question that's it's it's a little bit more than that isn't it my understanding of the record my recollection correct me