S055351, Opinion — Waldner v. Stephens

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Argued and submitted May 14, decision of Court of Appeals reversed; judgment of
circuit court reversed, and case remanded to circuit court for further proceedings
December 31, 2008

Dave WALDNER,
Michelle Kasper, Jacob Lahmann
and Michelle Kasper, as Guardian Ad Litem for
Joshua Bush and Hanna Waldner,
Minors,
Petitioners on Review,
v.
Stephen STEPHENS,
Respondent on Review.

Stephen STEPHENS,
Third-Party Plaintiff,
v.
TRAN CO.,
an Oregon corporation,
Third-Party Defendant.

(CC 03C21165; CA A127595; SC S055351)
200 P3d 556

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En Banc

On review from the Court of Appeals .*

Robert K. Udziela, Beaverton, argued the cause and filed
the brief for petitioners on review.

Thomas W. Brown, of Cosgrave Vergeer Kester LLP,
Portland, argued the cause and filed the brief for respondent
on review. With him on the brief was Julie A. Smith.

Arthur C. Johnson, and Douglas G. Schaller, of Johnson,
Clifton, Larson and Schaller, P.C., Eugene, filed the brief for
amicus curiae Pamela J. Pearson.

GILLETTE, J.

The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

\* Appeal from Marion County Circuit Court, Thomas M. Hart, Judge. 213 Or
App 610, 162 P3d 342 (2007).

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GILLETTE, J.

In this action alleging negligence and other claims,
plaintiffs sought damages from their former landlord for var-
ious injuries that, they alleged, had resulted from unhealth-
ful conditions in a dwelling that they rented from that land-
lord. On defendant's ORCP 21 A(8) motion, the trial court
concluded that plaintiffs had failed to state a claim in
common-law negligence, that the only claims that plaintiffs
had pleaded were subject to the one-year statute of limita-
tions set out in ORS 12.125 for "action[s] arising under a
rental agreement or ORS Chapter 90 [(the Oregon Residential
Landlord Tenant Act (ORLTA))],"1 and that dismissal there-
fore was warranted because plaintiffs had not filed their
action within that one-year limitations period. Plaintiffs
appealed, arguing that they had pleaded a common-law neg-
ligence claim and that the relevant limitations period was the
two-year period set out at ORS 12.110(1) for "injury to the
person or rights of another, not arising on contract and not
especially enumerated in [ORS chapter 12]." The Court of
Appeals rejected that argument and affirmed. Waldner v.
Stephens, 213 Or App 610, 162 P3d 342 (2007). Plaintiffs
petitioned for review by this court, and we granted their peti-
tion to consider whether plaintiffs' complaint states a claim
in common-law negligence and, if so, whether the trial court
applied the wrong statute of limitations to that claim.

When we review a trial court's dismissal of a claim
under ORCP 21 A(8), as we do here, we accept as true all
well-pleaded allegations of fact and all reasonable inferences

! The ORLTA, originally enacted in 1973 and now codified at chapter 90 of the
Oregon Revised Statutes, regulates residential landlord-tenant relations in
Oregon. Of particular relevance here are: (1) ORS 90.320, which provides that
landlords shall at all times maintain a rented dwelling unit in a "habitable condi-
tion" and defines unhabitability in fairly detailed terms; (2) ORS 90.360(2), which
provides that, except in certain specified circumstances, tenants "may recover
damages and obtain injunctive relief for any noncompliance by the landlord with
the rental agreement or [the habitability requirements of] ORS 90.320"; and
(3) ORS 90.125, which provides that "the remedies provided by this chapter shall be
so administered that an aggrieved party may recover appropriate damages." In
Brewer v. Erwin, 287 Or 435, 453, 600 P2d 398 (1979), this court held that "appro-
priate damages" under ORS 90.125 (designated at that time as ORS 91.725) would
include "compensation for the loss of life or health and the accompanying costs, and
not only for the economic value of any goods that may have been damaged or for the
reduced rental value."

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that may be drawn from them. Scovill v. City of Astoria, 324
Or 159, 164, 921 P2d 1312 (1996). The relevant allegations
are contained in plaintiffs' third amended complaint,2 which
purports to assert a claim for common-law negligence based
on certain conditions in plaintiffs' home.3 The negligence
claim alleged, among other things, that, in 1997, plaintiffs
entered into a written agreement with defendant to rent a
residential unit in a duplex that defendant owned; that,
under the written agreement, defendant retained sole and
exclusive control over the roof and exterior spaces of the
building as well as sole and exclusive responsibility to repair
those areas;4 that, while plaintiffs occupied the unit, water
and moisture intruded through the roof and exterior walls of
the building and, ultimately, into the residence; that plain-
tiffs notified defendant of the water intrusions and of defects
relating to that problem; that defendant inspected plaintiffs'
residence and orally promised to make repairs; that, based on
defendant's promise, plaintiffs continued to occupy and make
rental payments for the unit; and that, as a result of the
intrusion of water and moisture into the building, mold
spores, fungi, bacteria, and related toxins invaded plaintiffs'
unit, contaminating plaintiffs' personal property and causing
them to develop serious medical problems.

2 That is, the case as it comes to us concerns the trial court's dismissal of plain-
tiffs' third amended complaint. Plaintiffs' first amended complaint alleged negli-
gence-defendant's "failure to exercise reasonable care of the rental property occu-
pied by plaintiffs"-in very general terms. The trial court dismissed that first
complaint on the ground that it failed to allege specific facts that established that
defendant had "violated a duty owed to [plaintiffs] under Oregon common law."
With the trial court's leave, plaintiffs filed a second amended complaint that added
more detailed specifications of negligence. The trial court rejected the second
amended complaint, stating that plaintiffs' new specifications of negligence
expressly referred to duties imposed by the ORLTA, rather than the common law.
Plaintiffs then filed the complaint that is at issue here, which includes even more
specifications of negligence.

3 The complaint also contained a claim for "Breach of an Agreement to Repair/
Make Habitable." It alleged that, in the course of their tenancy, plaintiffs had com-
plained to defendant about the invasion of water and moisture; that defendant had
observed the problem and had promised to make repairs; that, in reliance upon
that representation, plaintiffs remained in, and continued to pay rent for, the res-
idential unit; that defendant did not effectuate the promised repairs; and that, in
consequence, plaintiffs were injured, as described in the text. Plaintiffs make no
argument with respect to that claim to this court, and we do not discuss it further
in this opinion.

4 As we discuss later, plaintiffs also alleged that defendant had a duty to rem-
edy a problem that was independent of the rental agreement.

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The pleadings also contained other, more specific
allegations of negligence, some of which used terminology
drawn directly from the ORLTA:

"At said times and places, [defendant] was negligent
and failed to exercise reasonable care in one or more of the
following particulars:

"a. In failing to inspect, install, maintain or keep in
good repair the roof, walls, flooring and other structural
areas of the residence over which defendant maintained
exclusive control, did not convey to plaintiffs as part of the
leasehold, and prohibited plaintiffs from repairing;

"b. In failing to provide and maintain habitable prem-
ises by not keeping the premises safe for normal and
reasonably foreseeable uses;

"c. In failing to prevent the invasion of water, moisture
and * * * fungi, mildew, bacteria and other toxins;

"d. In neglecting or ignoring after notice from plain-
tiffs the intrusion of toxins, water, moisture, mold, and
other harmful substances that invaded the premises;

"e. In failing to eliminate the toxic conditions of the
property that defendant (1) caused, (2) allowed intention-
ally, or (3) allowed to exist in reckless disregard of the
safety of others;

"f. In failing to provide adequate ventilation for the
house;

"g. In failing to warn plaintiffs of the dangers associ-
ated with roof leaks, wet rot, and mold in houses;

"h. In failing to immediately take prompt or effective
measures to protect plaintiffs from harm.

"At said times and places, [defendant] was the owner
and landlord of the premises leased to plaintiffs. In his
status as a landlord, defendant retains the duty to maintain
the leased premises in habitable condition. The duty con-
tinues through the course of the tenancy. Defendant was
negligent and failed to exercise reasonable care in one or
more of the following particulars:

"a. In failing to provide and maintain a dwelling in a
habitable condition in that the waterproofing and weather

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protection of the roof and exterior walls, including windows
and doors, was [sic] inadequate (ORS 90.320(a));

"b. In failing to provide and maintain habitable prem-
ises by not keeping the building safe for normal and reason-
ably foreseeable uses (ORS 90.320(f));

"c. In failing to provide and maintain habitable prem-
ises by not maintaining the walls and ceilings in good repair
(ORS 90.320(h)); and

"d. In failing to provide and maintain habitable prem-
ises by not providing or maintaining appropriate ventila-
tion in the dwelling (ORS 90.320(i))."

Defendant moved to dismiss plaintiffs' action in its
entirety, arguing that all of the claims alleged were time
barred under ORS 12.125, the one-year statute of limitations
that applies to "action[s] arising under a rental agreement or
[the ORLTA]." Defendant reasoned that, because plaintiffs'
claims relied on defendant's status as plaintiffs' landlord and
on the landlord/tenant relationship that existed between
defendant and plaintiffs, they necessarily arose "under [the]
rental agreement" that memorialized that landlord/tenant
relationship. Defendant also argued that, because plaintiffs'
negligence claim referred to various duties that are imposed
on landlords by the ORLTA,5 that claim "ar[ose] under

5 Defendant pointed primarily to ORS 90.320, which provides, among other
things:

"(1) A landlord shall at all times during the tenancy maintain the dwelling
unit in a habitable condition. For purposes of this section, a dwelling unit shall
be consider unhabitable if it substantially lacks:

"(a) Effective waterproofing and weather protection of roof and exterior
walls, including windows and doors;

***** *

"(f) Buildings, grounds and appurtenances at the time of the commence-
ment of the rental agreement in every part safe for normal and reasonably
foreseeable uses, clean, sanitary and free from all accumulations of debris,
filth, rubbish, garbage, rodents and vermin, and all areas under control of the
landlord kept in every part safe for normal and reasonably foreseeable uses,
clean, sanitary and free from all accumulations of debris, filth, rubbish, gar-
bage, rodents and vermin;

***** *

"(h) Floors, walls, ceilings, stairways and railings maintained in good
repair;

"(i) Ventilating, air condition and other facilities and appliances * * *
maintained in good repair if supplied or required to be supplied by the land-
lord."

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[the ORLTA]" within the meaning of ORS 12.125. The trial
court ultimately granted defendant's motion, holding that
plaintiffs had failed to state a claim in common-law negli-
gence but that, instead, their claims "arose under" provisions
of the ORLTA and were time barred under ORS 12.125.

On plaintiffs' appeal, the Court of Appeals affirmed.
Waldner, 213 Or App at 612. The court noted that the com-
plaint alleged that the parties had entered into a rental
agreement under which defendant retained sole and exclu-
sive control of the roof, walls, and other structural areas of
the duplex and had further alleged that defendant had a duty
to plaintiffs, which arose out of plaintiffs' status as tenants,
to "be certain that the portions over which defendant
retained control were kept in a reasonably safe condition of
repair, and to maintain the premises in a habitable condi-
tion." Id. at 617. The court then concluded that,

"when read together, the above allegations make it clear
that plaintiffs' claims are based on the relationship that
'arises' or originates from their rental agreement. In that
light, we readily conclude that the legislature intended
ORS 12.125 to apply to claims like those made by
plaintiffs."

Id. The court also decided that, when the complaint alleged
that defendant had promised to repair the premises and
plaintiffs had stayed on in reliance on that promise, they once
again were alleging a "rental agreement," albeit a new, oral
one. Consequently, the court concluded, plaintiffs' alterna-
tive negligence theory-that defendant had assumed a duty
to repair independent of any rental agreement-also
"ar[o]se[ ] under a rental agreement" and was time barred
under ORS 12.125. Id. at 618.6

Before this court, plaintiffs argue that, contrary to
the views expressed by the trial court and the Court of
Appeals, they have alleged a common-law negligence claim in
their third amended complaint that does not "aris[e] under a

6 Using the same reasoning, the Court of Appeals concluded that plaintiffs' sec-
ond claim-for breach of a promise to repair/make habitable-also was time barred
under ORS 12.125. Waldner, 213 Or App at 618-19. As noted above, plaintiffs do
not challenge the Court of Appeals decision concerning the second claim, and we do
not address that claim.

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rental agreement or [the ORLTA]," and, thus, is not time
barred under ORS 12.125. Plaintiffs contend, instead, that
that claim is subject to the two-year statute of limitations set
out at ORS 12.110(1), which applies to actions "for any injury
to the person or rights of another, not arising in contract and
not especially enumerated in [ORS chapter 12]."

Plaintiffs do not deny that their negligence claim in
some broad sense relies on a rental agreement, in that their
status as tenants and their tenant/landlord relationship with
defendant would not exist without some form of rental agree-
ment. But, they contend, the mere fact that a plaintiff and
defendant are in a landlord/tenant relationship is not suffi-
cient in itself to bring ORS 12.125 into play. They argue, and
we agree, that Vollertsen v. Lamb, 302 Or 489, 732 P2d 486
(1987), and Jones v. Bierek, 306 Or 42, 755 P2d 698 (1988),
disposed of that notion.7

The Court of Appeals' contrary view in this case was
based-understandably, we think-on plaintiffs' allegation
that, under the written rental agreement, defendant "retained
sole and exclusive control and sole and exclusive responsibil-
ity to repair" the exterior spaces of the dwelling.8 The court
appeared to conclude that, because plaintiffs' negligence
claim identified the written rental agreement as a source of
defendant's duty to repair the exterior spaces of the dwelling

7 In Vollertsen, a landlord brought an action against his former tenants for
"waste" more than one year after the alleged waste occurred. This court considered,
but rejected the tenants' contention that the action was time barred under ORS
12.125, because that statute applies to all residential landlord and tenant disputes.
The court noted that the landlord's claim relied on ORS 105.805 and not the
ORLTA, and that he had not pleaded his claim "as an attempt to enforce the rental
agreement."

In Jones, the plaintiff sued her landlord in negligence when she fell on an inad-
equately lighted stairway and was injured. Confronted with the defendant's con-
tention that the plaintiff's claim was time barred under ORS 12.125, this court
listed and considered four different possible meanings of that statute, including the
possibility that "the legislature intended to impose a one-year limitation on all dis-
putes between a landlord and a tenant, regardless of the nature of the dispute."
Jones, 306 Or at 44. The court rejected that interpretation out of hand, as failing to
capture the concept of a claim "arising under" a rental agreement or the ORLTA.
Id.

8 The rental agreement provided that "[m]anagement will make necessary
repairs to the exterior, with reasonable promptness, after receipt of written notice
from resident." (Emphasis omitted.)

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and thereby rectify the water invasion problem, their negli-
gence claim necessarily "arose" under that agreement.

A brief summary of the present state of the common
law of landlord-tenant liability is appropriate to assist our
explanation of why, in our view, the Court of Appeals' conclu-
sion was not correct. First, we must acknowledge that this
court's view of the common law in this area has changed over
time and that, even taking that evolution into account, our
cases may not have been entirely consistent. Still, we can
identify at least one common-law principle that is relevant to
the case at hand. Specifically, we can say that the common
law of Oregon recognizes that a landlord has a duty to main-
tain areas of the rented premises over which he or she retains
control in a reasonably safe condition, and may be found lia-
ble both to tenants and to invitees for physical injury caused
by an unsafe condition arising in such areas of the premises,
if the landlord knew or should have known about the unsafe
condition and could have made the condition safe.9 See gen-
erally Woolston v. Wells, 297 Or 548, 687 P2d 144 (1984) (dis-
cussing instructions in action by visitor to apartment build-
ing against landlord for injuries sustained when visitor fell
on stairway that was under control of landlord); Pritchard v.
Terrill, 189 Or 662, 222 P2d 652 (1950) (action by tenant
against landlord for injuries sustained when he fell on stair-
way that was under control of the landlord); Lyons v. Lich,
145 Or 606, 610, 28 P2d 872 (1934) (owner of apartment
house had duty toward occupants and guests to see that por-
tion of the premises over which the owner retained control
was in reasonably safe condition); Massor v. Yates, 137 Or

9 In Fazzolari v. Portland School District No. 1J, 303 Or 1, 734 P2d 1326
(1987), this court introduced a general "foreseeability" formula to replace tradi-
tional concepts of duty, breach, and causation, as those concepts were used in neg-
ligence cases, when determining whether a case required resolution of facts by a
jury. Fazzolari stated, however, that that general foreseeability formula applied
unless the parties "invoke a status, a relationship, or a particular standard of con-
duct that creates, defines or limits the defendant's duty." Id. at 17. This court since
has indicated that there are distinct standards of conduct-generally set out in the
Restatement (Second) of Torts-that are relevant to the question of a landlord's
legal duty to a tenant. See, e.g., Coulter Property Management, Inc. v. James,
328 Or 164, 170-75, 970 P2d 209 (1998) (discussing Restatement (Second) of Torts
§ 358); Park v. Hoffard, 315 Or 624, 329-32, 847 P2d 852 (1993) (discussing
Restatement (Second) of Torts § 379A); Bellikka v. Green, 306 Or 630, 643-47, 762
P2d 997 (1988) (discussing Restatement (Second) of Torts § 356).

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569, 3 P2d 784 (1931) (where landlord retained control over
portion of leased premises for use in common by different ten-
ants, landlord had duty to keep that area in reasonably safe
condition and was liable for personal injury resulting from
his failure in that respect). See also Restatement (Second) of
Torts § 360.10

Plaintiffs' negligence claim asserts a violation of
common-law duties. For example, in paragraph 19 of the
third amended complaint, plaintiffs allege that

"defendant had a duty to plaintiffs arising out of plaintiffs'
status as tenants which duty included but was not limited to
defendant exercising ordinary care for plaintiffs' protection;
to be certain that the portions of the premises over which
defendant retained control were kept in a reasonably safe
condition of repair; and to maintain the premises in a hab-
itable condition."

(Emphasis added.)

Similarly, in paragraph 13, the third amended com-
plaint alleges that defendant had a duty to repair that was
independent of the rental agreement:

"Defendant had a duty to repair and maintain those por-
tions of the premises over which he exercised sole and exclu-
sive control, and to take steps necessary to protect plaintiffs
from harm arising in or from those areas. Defendant
inspected the water intrusion and thereafter assumed the
duty to remediate the water and moisture problem inde-
pendent of any obligation defendant retained pursuant to
the rental agreement. Defendant failed to do so and further
failed to effectuate repairs after notice of the entry of water,

10 Restatement (Second) of Torts § 360 (1974) provides:

"A possessor of land who leases a part thereof and retains in his own con-
trol any other part which the lessee is entitled to use as appurtenant to the part
leased to him, is subject to liability to his lessee * * * for physical harm caused
by a dangerous condition upon that part of the land retained in the lessor's con-
trol, if the lessor by the exercise of reasonable care could have discovered the
condition and the unreasonable risk involved therein and could have made the
condition safe."

Although this court never has explicitly adopted or rejected section 360 as a state-
ment of common-law landlord-tenant liability in Oregon, the court's common-law
landlord-tenant cases appear to be consistent with that statement of the law.

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and the effects of moisture entering the residential portion
of the dwelling."

# (Emphasis added.)

As noted, the Court of Appeals suggested that any
claims arising out of those allegations "arose under a rental
agreement" because the rental agreement provided that the
landlord maintained control of the exterior of the premises.
But a plaintiff in a common-law action must identify, allege,
and prove that the pertinent events occurred on the portion of
the premises over which the landlord maintains control. It fol-
lows, we think, that the mere fact that a plaintiff proves that
essential fact by pointing to a term in a lease agreement does
not mean that the common-law action "arises under" that
agreement.

The Court of Appeals further suggested that the
allegations of plaintiffs' complaint "arose under a rental
agreement" because plaintiffs alleged that a new, oral agree-
ment was formed when defendant inspected the premises
and orally promised to make repairs, and when, based on
that promise, plaintiffs stayed on and continued to make
rental payments.11 However, it is clear to this court that,
although plaintiffs elsewhere pleaded facts that would estab-
lish the existence of an oral agreement of that sort, and that
they attempted to use the alleged oral agreement to establish
a basis for certain of their other theories of recovery, plain-
tiffs intended to (and did) plead, in paragraphs 13 and 19,
that defendant had a duty to repair that existed wholly apart
from any written or oral agreement. According to plaintiffs'
pleadings, that duty arose out of defendant's landlord/tenant
relationship with plaintiffs and upon his acquisition of infor-
mation showing that a dangerous condition had arisen on a
portion of the property over which he (defendant) exercised
exclusive control.

Although we have rejected the Court of Appeals'
reading of the complaint, the possibility remains that, under

11 The Court of Appeals pointed to paragraph 8 of the third amended com-
plaint, where plaintiffs alleged that, after inspecting water damage in plaintiffs'
residence, defendants "promised to effectuate repairs" and that, "based upon
defendant's representations that repairs would be forthcoming, plaintiffs
remained on the premises and continued to make rental payments."

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some other theory, the negligence claim that plaintiffs
pleaded in paragraphs 13 and 19 (and, perhaps, elsewhere in
the complaint) "ar[o]se[ ] under a rental agreement or [the
ORLTA]." Defendant's theory in that regard is that, because
all of plaintiffs' allegations of negligence rely in some sense
on duties that were imposed on defendant by his rental
agreement with plaintiffs or on landlords in general by the
ORLTA, plaintiffs' negligence claim "arises under" either the
ORLTA or the rental agreement within the meaning of ORS
12.125.

This court has stated on more than one occasion that
the ORLTA does not supersede the common law of personal
injury liability between a landlord and a tenant, and that a
tenant may bring both common-law negligence claims and
claims under the ORLTA against his or her landlord in the
same action. See, e.g., Davis v. Campbell, 327 Or 584, 592,
965 P2d 1017 (1998) (stating proposition); Bellika v. Green,
306 Or 630, 638, 762 P2d 997 (1988) (same). We have
explained that conclusion in terms of a "general rule," recog-
nized in Brown v. Transcon Lines, 284 Or 597, 610, 588 P2d
1087 (1978), and other cases that,

"if a statute which provides for a new remedy shows no
intention to negate, either expressly or by necessary impli-
cation, a pre-existing common law remedy, the new remedy
will be regarded as merely cumulative rather than exclu-
sive, with the result that a plaintiff may resort to either the
pre-existing remedy or the new remedy."

See also Holien v. Sears, Roebuck and Co., 298 Or 76, 91-97,
689 P2d 1292 (1984) (applying general rule and holding that,
even when employment discrimination statute and common
law of wrongful discharge provide different procedures and
remedies, statutory remedy and wrongful discharge claim
may coexist in same complaint).

We return, then, to defendant's present theory-
that, regardless of plaintiffs' intent to plead a claim in
common-law negligence, the one-year statute of limitations
at ORS 12.125 applies to that claim because the claim is
based on the alleged breach of a duty that is addressed by the
rental agreement or the ORLTA. Defendant purports to base
that theory on the "plain meaning" of ORS 12.125. He argues:

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"Under its plain terms, ORS 12.125 applies to all claims
'arising under' a rental agreement or the RLTA, regardless
of the label the plaintiff chooses to give to his or her claim.
Put differently, properly construed, a claim 'arises under' a
rental agreement or the RLTA, and is therefore subject to
the one-year limitation in ORS 12.125, so long as it is based
on a breach of a duty that is specifically addressed in one of
those two sources, even if the complaint does not expressly
rely on either as the source of that duty."

## (Emphasis added.)

Defendant arrives at that "plain meaning" of ORS
12.125 by subjecting the statute to the analytical process
described in PGE v. Bureau of Labor and Industries, 317 Or
606, 859 P2d 1143 (1993). He contends that the legislature's
intention is clear from text and context alone. In that regard,
defendant notes, first, that the provision is "broadly written"
in that it refers to both the ORLTA and rental agreements
and does not limit its scope to actions "for" breach of the
rental agreement or provisions of the statute. Defendant
then examines the ordinary dictionary meanings of the terms
"arise" and "under," and purports to find in those words
meanings that, when the words are used together, "support
the conclusion that a claim is subject to ORS 12.125 if the
claim is connected in some way to a specific term of the rental
agreement or a specific provision of the [O]RLTA." Defendant
then "restates" that conclusion in the following terms: "For
purposes of ORS 12.125, plaintiffs' action 'arises under' the
rental agreement or the [O]RLTA if there is some nexus, (i.e.,
relationship) between the alleged 'duty' on which the action is
based and a particular term or provision of one or both of
those two sources."

There is an obvious problem with defendant's tex-
tual analysis: By the clear terms of ORS 12.125, it is the
action that must arise under the statute or rental agreement:
it is not enough that the ORLTA sections or the rental agree-
ment terms on which a plaintiff relies parrot a "duty" that the
common law already recognizes. Furthermore, there is no
textual basis for saying that the action must be connected to
"a particular term or provision" of the ORLTA or the rental
agreement. The provision refers to both sources as undivided
wholes.

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In fact, we think that the text of ORS 12.125 sug-
gests a different interpretation than the one that defendant
offers. Combining the ordinary meaning of "arise" ("to origi-
nate from a specified source," "to come into being"12) and
"under" ("in accordance with"13), we think that the phrase
"action arising under a rental agreement or [the ORLTA]" is
most naturally read as applying when the action itself is
authorized by, or brought in accordance with, one of those
two sources.14 At least on its face, the provision does not sup-
port defendant's sweeping interpretation, which would have
all landlord/tenant disputes subsumed under ORS 12.125.

Of course, PGE instructs us to consider context as
well as text at this stage of our analysis. PGE, 317 Or at 611.
Plaintiffs point to Jones as relevant context that confirms
their view of the scope of ORS 12.125-i.e., that it applies
only to landlord-tenant claims brought directly under the
ORLTA. In that case, a woman was injured when she fell on
a poorly lighted common stairway in her apartment building.
She filed an action against her landlord, alleging common-
law negligence and violation of a city ordinance pertaining to
lighting. The landlord moved to dismiss, arguing that the
complaint "arose under" the ORLTA and was untimely
because it had not been filed within the one-year period pro-
vided in ORS 12.125. The trial court granted the landlord's
motion, but the Court of Appeals reversed, holding that the
plaintiff had a common-law claim that was independent of
the rental agreement and the ORLTA. Jones v. Bierek, 88 Or
App 11, 743 P2d 1153 (1987).

On review, this court affirmed the Court of Appeals
decision. Jones, 306 Or at 44. The court acknowledged that
the ORLTA imposed a duty on landlords to keep electrical
lighting in "good working order," that a landlord's noncompli-
ance with that duty may give rise to tenant's claim for dam-
ages under that statute, and that such statutory claims must

12 Webster's Third New Int'l Dictionary 117 (unabridged ed 2002).

13 Id. at 2487.

14 In other words, when ORS 12.125 refers to actions that arise under the
ORLTA, it speaks not just to the landlord's duties, listed at ORS 90.320, but to the
provisions in that statute that imply a right of action by, for example, describing a
landlord's and tenant's "remedies" for various violations, in terms of "damages,"
"injunctive relief," and the like.

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be filed within a shorter (one-year) period. But the court
noted that the plaintiff had alleged violation of a city ordi-
nance and common-law negligence, the latter claim being
based on the theory that the landlord had provided inade-
quate lighting in an area "where the landlord would be liable
for unsafe conditions to other persons who lawfully used the
stairway besides tenants." Id. at 45. The court rejected the
defendant's suggestion that the ORLTA's shorter limitations
period applied to the plaintiff's claims. The court was not per-
suaded that the legislature intended the ORLTA to be the
exclusive source of a tenant's remedies against a landlord, or
that it intended to allow landlords "to use [their] own non-
compliance defensively so as to bar actions that anyone other
than a tenant could continue to commence after one year,
merely because the defendant happens to be the injured
party's landlord." Id. at 45-46.

Jones appears to reject defendant's view that the leg-
islature intended the one-year limitations period set out at
ORS 12.125 to apply to any claim by a tenant against a land-
lord that alleges a breach of a duty that the ORLTA also
addresses. It suggests, instead, that ORS 12.125 applies only
to landlord-tenant claims brought directly under the ORLTA.

A final piece of contextual evidence, drawn from a
discussion of the history of ORS 12.125 in Vollertsen, helps
make our point. In Vollertsen, this court observed that ORS
12.125 originally was enacted as part of the 1973 statute now
known as the Oregon Residential Landlord and Tenant Act,
and that it then provided that "[a]n action arising under a
rental agreement or sections 1 to 33 of this Act shall be com-
menced within one year." 302 Or at 495 (quoting and describ-
ing Or Laws 1973, ch 559, § 39). The court further observed
that Legislative Counsel moved the provision to chapter 12
during the process of compiling the 1973 statutes for inclu-
sion in the Oregon Revised Statutes. Id. at 496. The court
noted that, in light of that history, there was no basis for sug-
gesting that the terms used in ORS 12.125 (and particularly
the term "rental agreement") meant anything other than
what they meant in the specific context of the ORLTA. Id.

By the same logic, we think that all of ORS 12.125
must be read in the context of-and, indeed, as if it still were

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part of-the statute that now is codified at ORS chapter 90.
Given that that statute explicitly provides for damages and
other remedies when a tenant or landlord fails to comply with
either the rental agreement or requirements imposed on
them elsewhere in the statute,15 we think that it is likely
that, when the 1973 Legislative Assembly provided a one-
year limitations period for "actions arising under a rental
agreement or sections 1 to 33 of this Act," it was referring to
the set of claims that the ORLTA explicitly authorizes.

In the end, we hold that it is clear from the text and
context of ORS 12.125 that, when the legislature chose to
apply a one-year statute of limitations to "actions arising
under the rental agreement or [the ORLTA]," it did not
intend to sweep into that category all actions, including
common-law actions, that merely bear some nexus to the
relationship between landlords and tenants under a rental
agreement or the ORLTA. We read the one-year limitations
period at ORS 12.125 as applying only to claims that are
directly authorized by the ORLTA, i.e., claims that seek dam-
ages or injunctive relief as provided in the ORLTA for a vio-
lation of either the rental agreement or some requirement

15 For example, ORS 90.360 sets out various tenant remedies, providing, in
part:

"(1)(a) Except as provided in this chapter, if there is a material noncom-
pliance by the landlord with the rental agreement or a noncompliance with
ORS 90.320 or 90.730, the tenant may [terminate the rental agreement with 30
days' notice].

"(2) Except as provided in this chapter, the tenant may recover damages
and obtain injunctive relief for any noncompliance by the landlord with the
rental agreement or ORS 90.320 or 90.730."

Similarly, ORS 90.401 provides:

"Except as provided in this chapter:

"(1) A landlord may pursue any one or more of the remedies set forth in
ORS 90.342, 90.394, 90.396 and 90.398 [all providing for termination of rental
agreement as provided in eviction statutes for various acts or omissions by ten-
ant], 90.403 [taking possession from unauthorized sublettor as provided in
eviction statutes] and 90.405 [termination of rental agreement as provided in
eviction statutes], simultaneously or sequentially.

"(2) In addition to the remedies provided in ORS 90.342, 90,394, 90.396
and 90.398, a landlord may recover damages and obtain injunctive relief for
any noncompliance by the tenant with the rental agreement or ORS 90.325 or
90.740."

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imposed on landlords or tenants only by a provision of the
ORLTA.

The common-law negligence claim that we already
have identified in plaintiffs' complaint does not rely on the
ORLTA as direct authority in the sense we have described. It
is not subject to the statute of limitations set out at ORS
12.125 but, instead, is limited by the statute of limitations for
actions for "an injury to the person or rights of another, not
arising on contract and not especially enumerated in [ORS
chapter 12]." ORS 12.110(1). Although it is true that the com-
plaint is laced with references to the ORLTA and the rental
agreement that are not relevant to that common-law claim,
and which may have been susceptible to a timely motion to
strike, ORCP 21 E, or a motion to make more definite and
certain, ORCP 21 D, the inclusion of those allegations was
not a permissible ground for dismissal of plaintiffs' negli-
gence claim under ORCP 21 A. The trial court erred in con-
cluding otherwise.

The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.