Barrington v. Sandberg

• Decision Date: 08 December 1999
• Citation: 991 P.2d 1071,164 Or. App. 292
• Parties: Ron BARRINGTON, as Guardian ad litem for Teresa BARRINGTON, Respondent, v. Kent SANDBERG, Defendant, and The City of North Bend, Appellant.
• Court: Oregon Court of Appeals

991 P.2d 1071

164 Or. App. 292

Ron BARRINGTON, as Guardian ad litem for Teresa BARRINGTON, Respondent, v. Kent SANDBERG, Defendant, and The City of North Bend, Appellant.

(; CA A98635)

Court of Appeals of Oregon.

Argued and Submitted September 28, 1998.

Decided December 8, 1999.

Jens Schmidt, Eugene, argued the cause for appellant. With him on the brief was Harrang Long Gary Rudnick.

Steven Plinski, Coos Bay, argued the cause and filed the brief for respondent.

Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER,¹ Judges.

ARMSTRONG, J.

Defendant City of North Bend appeals from a judgment in favor of plaintiff in this action for intentional infliction of emotional distress arising from a city police officer's treatment of a female Explorer Scout police cadet. Plaintiff is the father and guardian ad litem of the cadet. We modify the judgment to eliminate one item of damages and otherwise affirm.

Because the jury found in favor of plaintiff, we state the necessary facts most favorably to his position. In 1988, defendant established an Explorer cadet program in its police department. From the beginning, Sergeant Kent Sandberg was the supervisor of the program. The cadet joined it in September 1994, soon after turning 15, the minimum age for the program, because she wanted to learn more about a possible career as a police officer. She left the program in September 1995 as the result of Sandberg's conduct. Between September 1994 and June 1995, Sandberg engaged in five separate acts that the jury could conclude had inappropriate sexual characteristics. The details are not necessary to our decision. Defendant does not assert that the evidence is insufficient to support a verdict against Sandberg for intentional infliction of emotional distress. Rather, it argues that the evidence is insufficient to support a verdict based on respondeat superior against defendant.

In its first assignment of error, defendant asserts that the trial court erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict on the ground that it could not be liable for Sandberg's acts. It argues that, as a matter of law, Sandberg was not acting within the scope of his employment when he committed the acts that are the basis for plaintiff's claim. In support, defendant relies on our decisions in Fearing v. Bucher, 147 Or.App. 446, 936 P.2d 1023 (1997), rev'd 328 Or. 367, 977 P.2d 1163 (1999), and Lourim v. Swensen, 147 Or.App. 425, 936 P.2d 1011 (1997), rev'd 328 Or. 380, 977 P.2d 1157 (1999). In those cases, we interpreted the Supreme Court's decisions in Chesterman v. Barmon, 305 Or. 439, 753 P.2d 404 (1988), and G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or. 54, 757 P.2d 1347 (1988), as holding that an employer was not liable for an employee's sexual misconduct when it was not the kind of conduct that the employer had hired the employee to perform. We concluded that a Boy Scout leader² and a priest who sexually abused adolescents were acting outside the scope of their employments as a matter of law. We therefore affirmed trial court decisions dismissing the complaints against the employers.

Since the argument in this case, the Supreme Court has reversed our decisions in Fearing and Lourim, concluding that we had not correctly understood the meaning of, and relationship between, Chesterman and Fearing v. Bucher, 328 Or. 367, 977 P.2d 1163 (1999); Lourim v. Swensen, 328 Or. 380, 977 P.2d 1157 (1999). Under those recent decisions, it is clear that there was sufficient evidence in this case to submit the issue of respondeat superior to the jury. In Fearing and Lourim, the court emphasized that the issue is not whether the employee acted in the employer's interests when the employee committed the offensive acts themselves or whether those were the kind of acts that the employer hired the employee to perform.

"Such circumstances rarely will occur and are not, in any event, necessary to vicarious liability. Rather, the focus properly is directed at whether the complaint contains sufficient allegations of [the employee's] conduct that was within the scope of [the employee's] employment that arguably resulted in the acts that caused plaintiff's injury."

Fearing, 328 Or. at 376, 977 P.2d 1163; see also Lourim, 328 Or. at 386-87, 977 P.2d 1157.

The essential point is that the performance of the employee's duties must be a necessary precursor to the misconduct and that the misconduct must be a direct outgrowth of, and have been engendered by, conduct that was within the scope of the employee's employment. It is not necessary that the misconduct itself be of a kind that the employer hired the employee to perform. See Fearing, 328 Or. at 377, 977 P.2d 1163.³ The evidence in this case is sufficient to permit the jury to find that Sandberg's work as supervisor of the police cadets was a necessary precursor to the misconduct and that the misconduct was a direct outgrowth of that work. All but one of the incidents occurred while Sandberg was performing his official duties of supervising the police cadets; the other incident occurred during a skiing trip that Sandberg planned for the cadets. The trial court did not err in submitting the case to the jury.

In its second assignment of error, defendant asserts that the trial court erred in denying its motion for directed verdict as to all claims based on events that occurred before January 27, 1995, which was 270 days before plaintiff mailed his tort claim notice.⁴ Plaintiff responds that he alleged a continuing tort, not a series of discrete harms, and that the notice was timely because some of the events that together constituted the tort occurred fewer than 270 days before the notice. We generally agree with plaintiff's argument.

A continuing tort is based on "the concept that recovery is for the cumulative effect of wrongful behavior, not for discrete elements of that conduct." Davis v. Bostick, 282 Or. 667, 671, 580 P.2d 544 (1978). In Davis, the plaintiff sought damages for the intentional infliction of emotional distress based on a number of incidents that occurred both before and after the period of the statute of limitations. The incidents before the limitations period included threatening and abusive telephone calls, breaking the plaintiff's nose, choking her, accusing her of having had an abortion, and threatening to kill her and her male friends. The trial court treated all of the incidents as parts of a continuing tort and instructed the jury that it could award damages for any emotional distress and anxiety that the plaintiff had suffered, without regard to the statute of limitations defense. 282 Or. at 669, 671, 580 P.2d 544.

On appeal, the Supreme Court held that, although there was no doubt that the defendant's abusive behavior was all of a piece in intent and content, there could also be no doubt that the acts of assault and battery and the death threats were separately actionable because they individually caused harm. Id. at 672, 580 P.2d 544. It noted that the statute of limitations might well not begin to run until the defendant's conduct had culminated in the plaintiff's severe emotional distress. The trouble with that argument, however, was that "a broken nose, believable death threats, and a false accusation and rumormongering about an abortion not only ought to have produced some severe contemporaneous distress, but plaintiff proved that they did." Although the defendant's acts were continuous in that they made up a course of conduct that was capable of producing cumulative compensable harm, they were also discontinuous in that each had a beginning and an end, each was separated from the others by a period of relative quiescence, and each was capable of producing compensable harm. Id. at 673, 580 P.2d 544.

The court stated that it could "well imagine a case where the conduct has an identifiable total effect which is a product of the course of conduct," but on the evidence Davis was not such a case. "Plaintiff's theory is that she ought to recover now for a series of wrongs, but her evidence is that she was harmed by each act in the series. We do not think that she was entitled to ride out the storm and lump sum her grievances." The court reversed the verdict for the plaintiff because the trial court erred in striking the defendant's statute of imitations defense. Id. at 674-75, 580 P.2d 544 (emphasis in original).

The differences between Davis and this case are apparent from the record. An essential element of the tort of intentional infliction of emotional distress is that the injured person in fact suffer such distress. Until the cadet suffered that distress, she did not have a claim for that tort. See Patton v. J.C. Penney Co., 301 Or. 117, 719 P.2d 854 (1986). The physical contact between Sandberg and the cadet was different in quality from that in Davis and did not itself cause the damage. Defendant emphasized in its cross-examination of the cadet that several of the incidents did not cause her emotional distress at the time that they occurred. Although, according to the cadet's testimony, she felt some stress from the incidents, it was not until she first talked about them to a friend in July 1995 that their full effect came out. In the process of describing what Sandberg had done, the cadet became increasingly upset, started crying, and eventually vomited all over her own clothes and her friend's sheets. She thereafter told her parents and began counseling. Her parents consulted an attorney, who soon afterwards gave defendant a tort claims notice and eventually filed this lawsuit. The jury could have found that Sandberg's actions constituted a continuing tort and that the cadet did not suffer severe emotional distress from any of them until July 1995. In that case, under Davis the individual incidents were not separately actionable and the trial court correctly denied defendant's motion for a directed verdict as to...