Buchwalter-Drumm v. State

Decision Date27 September 2017
Docket NumberA158270.
Parties Pamela BUCHWALTER-DRUMM, as guardian ad litem for D. B., a Minor Child, Plaintiff-Appellant, v. STATE of Oregon, BY AND THROUGH its DEPARTMENT OF HUMAN SERVICES, Defendant-Respondent.
CourtOregon Court of Appeals

Kristian Roggendorf, Portland, argued the cause for appellant. With her on the briefs were Roggendorf Law LLC and David Paul and David Paul PC.

Cecil A. Reniche-Smith, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before DeVore, Presiding Judge, and Powers, Judge, and Flynn, Judge pro tempore.*

FLYNN, J. pro tempore.

Plaintiff, a minor acting through his stepmother as guardian ad litem , brought this negligence action against the state Department of Human Services (DHS), for harm that he suffered due to sexual abuse by his mother's boy-friend, Price.1 After being taken into DHS custody, plaintiff disclosed the abuse to his stepmother, who hired a lawyer a year later, and the lawyer sent a notice of tort claim and filed this action. The state successfully moved for summary judgment, contending that plaintiff failed to file a timely notice of tort claim and that the state cannot be held liable for harm that plaintiff suffered before coming into DHS custody.

The trial court granted the motion without specifying the bases for its ruling, and plaintiff has appealed. We conclude that the time for filing a minor's tort claim notice commences when the minor discovers the cause of action and that genuine issues of material fact preclude a determination on summary judgment that plaintiff discovered the cause of action outside of the 270-day filing period applicable to claims by a minor. We also conclude that genuine issues of material fact preclude summary judgment on the issue of the state's liability, because the evidence would permit a reasonable trier of fact to find that the state failed to reasonably address a foreseeable risk that plaintiff would suffer the type of harm that he allegedly suffered. Accordingly, we reverse.

We review an order granting summary judgment for errors of law and will affirm if we determine that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. See Doe v. Silverman , 286 Or.App. 813, 814-15, 399 P.3d 1069 (2017) ( Silverman ) (citing ORCP 47 C). The standard "no genuine issue as to any material fact" means that "no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." ORCP 47 C. In determining whether summary judgment is appropriate, "we view the facts and all reasonable inferences that may be drawn from them in favor of the nonmoving party who, in this case, is plaintiff." Silverman , 286 Or.App. at 815, 399 P.3d 1069 (citing Jones v. General Motors Corp. , 325 Or. 404, 408, 939 P.2d 608 (1997) ). We describe the facts in accordance with that standard.


Price's long history as a person of concern to DHS is documented in a 2006 report and recommendation by DHS to the Lane County Juvenile Court. Price first came to DHS's attention as early as December 2002, when the teenage daughter of a different girlfriend reported that Price had grabbed her breasts and made a lewd comment about them. The document indicates that DHS coded the girl's report "founded," that law enforcement became involved, and that Price was "charged with sexual harassment and put on probation."2 In 2005, DHS learned that the younger sister of the 16-year-old was reporting that Price touched her on her breasts and legs and watched her in the shower. DHS determined that the new report "was founded for sexual abuse, sexual exploitation and threat of harm." DHS obtained jurisdiction over the younger sister and over Price's own 5-year-old daughter, who also lived in the home, based in part on the determination that Price "presents a risk of harm to the child" based on his past "inappropriate sexual contact."

Near the end of 2006, DHS received a report that Price was living with plaintiff's mother. DHS authored an assessment summary regarding children living in the home, including plaintiff, who was then three years old. That summary documented DHS's concern that "mother's live-in companion," Price, "has sexually abused children, is not safe to be around children unsupervised, and the mother of these children does not believe her companion is a danger to the children." In a summary of safety concerns, DHS recited that Price "failed a polygraph denying sexually abusing his own children," and that a doctor who performed a psycho-sexual evaluation "recommended that Price not have any unsupervised contact with minors."

Under the heading "safety threat identification," the 2006 report on plaintiff's home indicates that "Price is a possible sex abuse perpetrator," but also that "[h]e has never been convicted of a sex crime and Juvenile Court does not have jurisdiction in regards to sexual abuse." DHS coded the referral "unfounded" but obtained agreement from plaintiff's mother that Price would have no unsupervised contact with her children, would only come to the home at prescheduled times, and would only spend the night if all of the children were away with a safe care provider. At the same time, in the case involving the earlier children, DHS reported to the juvenile court that "Price needs to be monitored in completing sex abuse treatment and not being unsupervised around children under age 18."

Three years later, in July 2009, DHS prepared another assessment summary of plaintiff's family. The summary indicated that Price was continuing his relationship with plaintiff's mother, and that he was the father of plaintiff's younger half-sibling, as well as of another child with whom plaintiff's mother was pregnant. In that assessment, the DHS caseworker identified as a safety threat that Price "has an open case with the agency due to founded sex abuse, and has been advised not to have unsupervised contact with children under 18."

Shortly after preparing that summary, DHS filed a petition for jurisdiction over plaintiff and the other children. As to plaintiff, the petition alleged that his mother had failed to protect him "from Threat of Harm of Sexual Abuse in that; the mother has continued an ongoing relationship with" Price and had allowed Price "to have ongoing unsupervised contact" with plaintiff, despite being aware that Price had been advised to have no contact with minor children. As a "placement" for plaintiff, DHS continued to let him live with his mother. The court's order of jurisdiction specified that "mother shall have no contact with Price without the prior approval of DHS."

Two months later, however, DHS informed the juvenile court that plaintiff's mother had "allowed Mr. Price to have ongoing, unsupervised contact with the child." DHS eventually removed plaintiff from his mother's care in January 2010, and placed him in foster care.

On May 27, 2011, plaintiff disclosed to his stepmother that he had been sexually abused by Price, describing an incident in which Price took plaintiff to a school conference and then abused him in a bathroom stall. Stepmother consulted with a lawyer on May 21, 2012, approximately one year after plaintiff's disclosure. The lawyer sent a tort claim notice to DHS on June 15, 2012, and stepmother was appointed guardian ad litem to pursue this action.

As indicated above, the state filed a motion for summary judgment asserting both that plaintiff failed to give timely notice of the action as required under the Oregon Tort Claims Act (OTCA) and that DHS could not be held liable for harm from Price's actions before the time that plaintiff came into the state's jurisdiction because there existed no "special relationship" between the state and plaintiff prior to that time. The trial court granted the motion for summary judgment without specifying the basis or bases for its ruling.

A. Timeliness of the Tort Claims Notice

Under the OTCA, "every public body is subject to civil action for its torts." ORS 30.265(1) ; Jensen v. Whitlow , 334 Or. 412, 416, 51 P.3d 599 (2002) (explaining that the OTCA "abrogated, in part, the state's sovereign immunity"). However, no action may be maintained against the public body unless timely notice of claim is given to the public body. ORS 30.275(1). As pertinent to this case, "a plaintiff who is a minor at the time of an alleged loss or injury must give notice of claim within 270 days [.]" Doe v. Lake Oswego School District , 353 Or. 321, 327, 297 P.3d 1287 (2013) (citing ORS 30.275 ). The term "injury" as used in ORS 30.275 means "what formed the basis for an action, i.e. , legally cognizable harm," and "harm is legally cognizable if it is the result of tortious conduct." See id. at 327-28, 297 P.3d 1287 (internal quotation marks and citations omitted). Thus, the limitations period "does not begin to run until a plaintiff has a reasonable opportunity to discover his [or her] injury and the identity of the party responsible for that injury.’ " Id. (quoting Adams v. Oregon State Police , 289 Or. 233, 239, 611 P.2d 1153 (1980) (emphasis in Doe )). We will refer to this concept as discovery of a "cognizable injury."

The parties agree regarding those preliminary principles of tort claim notice, but their arguments on appeal part ways over the question of who must discover the "injury." According to the state, because a minor must appear through a guardian ad litem or conservator, the relevant discovery occurred when stepmother, who would later become the guardian ad litem , discovered the injury. According to plaintiff, it is the person who has suffered harm who must discover the cognizable injury to trigger the obligation to provide notice of a claim for that harm. Although plaintiff...

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