Doe v. Lake Oswego Sch. Dist.

• Decision Date: 07 March 2013
• Docket Number: CA A140979,SC S059589).,(CC CV–0802–0740
• Citation: 297 P.3d 1287,353 Or. 321
• Parties: Jack DOE 1, an individual proceeding under a fictitious name; Jack Doe 2, an individual proceeding under a fictitious name; Jack Doe 3, an individual proceeding under a fictitious name; Jack Doe 4, an individual proceeding under a fictitious name; Jack Doe 5, an individual proceeding under a fictitious name; Jack Doe 6, an individual proceeding under a fictitious name; and Jack Doe 7, an individual proceeding under a fictitious name, Plaintiffs–Appellants, Petitioners on Review, v. LAKE OSWEGO SCHOOL DISTRICT, an Oregon public school district, authorized and chartered by the laws of the State of Oregon, Defendant–Respondent, Respondent on Review, and Judd Johnson, an individual, Defendant–Respondent.
• Court: Oregon Supreme Court

353 Or. 321

297 P.3d 1287

Jack DOE 1, an individual proceeding under a fictitious name; Jack Doe 2, an individual proceeding under a fictitious name; Jack Doe 3, an individual proceeding under a fictitious name; Jack Doe 4, an individual proceeding under a fictitious name; Jack Doe 5, an individual proceeding under a fictitious name; Jack Doe 6, an individual proceeding under a fictitious name; and Jack Doe 7, an individual proceeding under a fictitious name, Plaintiffs–Appellants, Petitioners on Review,

v.LAKE OSWEGO SCHOOL DISTRICT, an Oregon public school district, authorized and chartered by the laws of the State of Oregon, Defendant–Respondent, Respondent on Review,andJudd Johnson, an individual, Defendant–Respondent.

(CC CV–0802–0740; CA A140979; SC S059589).

Supreme Court of Oregon.

Argued and Submitted Sept. 20, 2012.

Resubmitted Jan. 7, 2013.

Decided March 7, 2013.

On review from the Court of Appeals.^*

Kelly Clark, O'Donnell Clark & Crew LLP, Portland, argued the cause for petitioners on review. Kathryn H. Clarke, Portland, filed the brief for petitioners on review. With her on the brief were Kelly Clark and Kristian Roggendorf.

Timothy R. Volpert, Davis Wright Tremaine LLP, Portland, argued the cause and filed the brief for respondent on review. With him on the brief was David A. Ernst.

Erin K. Olson, Portland, filed the brief for amici curiae Survivor's Network of those Abused by Priests, National Center for Victims of Crime, Cardozo Advocates for Kids, Oregon Abuse Advocates and Survivors in Service, Crime Victims United, KidSafe Foundation, Survivors for Justice, Coalition of Jewish Advocates for Children, Jewish Parents for Safe Yeshivas, National Black Church Initiative, Child Victims Voice, Stop the Silence: Stop Child Sexual Abuse, Inc., Jewish Board of Advocates for Children, and National Child Protection Training Center.

Lisa T. Hunt, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

Before BALMER, Chief Justice, and KISTLER, WALTERS, LINDER, BREWER, and BALDWIN, Justices.^**

WALTERS, J.

At issue in this civil action is a trial court's order dismissing as untimely plaintiffs' claims against a public school district. Plaintiffs alleged that when they were in the fifth grade, a teacher who worked for the district sexually abused them, but that they did not know that their teacher's touching was abusive when it occurred. For the reasons that follow, we conclude that the trial court erred in granting the school district's ORCP 21 motion to dismiss plaintiffs' claims. We reverse the contrary decision of the Court of Appeals and the limited judgment of the trial court, and we remand for further proceedings.

The facts relevant to our decision are those set forth in plaintiffs' Third Amended Complaint.¹ Plaintiffs have not proved those facts to be true but, for purposes of deciding whether the trial court erred in granting defendant's ORCP 21 motion to dismiss, we assume their veracity. See Juarez v. Windsor Rock Products, Inc., 341 Or. 160, 163, 144 P.3d 211 (2006) (on review of motion to dismiss, court assumes the truth of well-pleaded facts).

Plaintiffs are seven adult men who were born between 1957 and 1970. Between 1968 and 1984, each plaintiff was a fifth-grade student in a class taught by Johnson. During that time period, Johnson was employed by the Lake Oswego School District (defendant), a governmental entity.² While serving as plaintiffs' teacher, Johnson engaged in a “grooming process” that involved befriending plaintiffs, gaining their trust, admiration and obedience, and conditioning them to respect Johnson as a person of authority. As part of that “grooming process,” Johnson also befriended plaintiffs' families and gained their trust, their permission to spend substantial periods of time with plaintiffs, and the benefit of their instruction to their sons to respect and comply with Johnson's authority and requests. Through use of the grooming process, Johnson intentionally engaged in the following conduct:

“fondling [Jack Doe 1's] genitals inside his clothing while in the classroom in front of other students”; “fondling [Jack Doe 2 and 3's] genitals and buttock[s] [while they] stood in the classroom in front of other students”; “fondling [Jack Doe 4's] genitals outside of his clothing while in the classroom in front of other students”; “fondling [Jack Doe 5's] genitals inside his clothing and ‘assisting’ [Jack Doe 5] in urinating on several occasions”; and “fondling [Jack Doe 6 and 7's] genitals[.]” ³

Plaintiffs alleged that those acts constituted harmful or offensive touching that caused them to suffer debilitating physical, mental, and emotional injury. However, plaintiffs alleged, they did not discover their injuries at the time of Johnson's touching. At that time, plaintiffs alleged, they did not

“comprehend the abusive nature—and therefore could not perceive the harm—of Johnson's touching due to the obedience, admiration, respect, and esteem which [plaintiffs] had for Johnson * * *. [Plaintiffs were] unable to recognize that [they] had been harmed at the time of the abuse, because the touching * * * was similar enough to the non-tortious touching by Johnson that occurred during and was part of the grooming process that, as * * * young boy [s, they were] confused by it and unable to discern at the time that the touching was inappropriate or harmful.”

Plaintiffs alleged that the earliest date that any one of them discovered his injuries was in November 2006; the latest was in March 2008.

Plaintiffs commenced this action in February 2008. Plaintiffs labeled some of their claims as claims for “Sexual Abuse of a Child” and others as claims for “Intentional Infliction of Emotional Distress.” ⁴ Plaintiffs brought those claims under the Oregon Tort Claims Act (OTCA) and sought to hold defendant vicariously liable for Johnson's acts. One plaintiff, Jack Doe 6, also sought to hold defendant liable for its own allegedly negligent acts. Plaintiff Jack Doe 6 alleged that, in 1982 or 1983, defendant became aware that Johnson had molested a boy away from school grounds and thereafter was negligent in failing to terminate or supervise Johnson. Plaintiff Jack Doe 6 alleged that he reasonably did not discover defendant's alleged negligence until March 2008.

Defendant filed a motion under ORCP 21⁵ to dismiss plaintiffs' claims, asserting that plaintiffs had failed provide notice of claim or to commence their action within the time provided by ORS 30.275.⁶ Defendant argued that it appeared from the face of plaintiffs' complaint that the latest that Johnson's touching had occurred was in 1984, and that plaintiffs' claims necessarily accrued at that time. Therefore, defendant contended, because plaintiffs concededly had not given notice of claim or filed their action within the requisite period thereafter, their claims were untimely and should be dismissed. Plaintiffs countered that they had pleaded facts from which a jury could find that they reasonably had not discovered the abusive or harmful nature of Johnson's conduct at the time it occurred. Therefore, plaintiffs argued, they had alleged facts from which a jury could find that their claims accrued on the dates that they alleged they had discovered their injuries, not on the date of Johnson's alleged touching. Plaintiffs also argued that the OTCA was unconstitutional if it precluded their claims.⁷

The trial court ultimately agreed with defendant that plaintiffs must be deemed to have discovered the facts necessary to their claims at the time of the touching. The court concluded, “I am completely ruling, as a matter of law * * * that there is no 10–to 13–year–old child, other than one, perhaps, that's mentally retarded * * * who would not understand that this kind of touching is wrong.” The trial court also rejected plaintiffs' argument that the OTCA was unconstitutional as applied to them. The trial court granted defendant's ORCP 21 motion to dismiss and entered a limited judgment in its favor.⁸

Plaintiffs appealed, and the Court of Appeals affirmed. Doe v. Lake Oswego School District, 242 Or.App. 605, 259 P.3d 27 (2011). The court held:

“Where, as here, a plaintiff seeking damages for sexual abuse under the OTCA knew that the sexual touching occurred as well as who did the touching, there is no basis to say that the plaintiff did not know of or could not reasonably have discovered the injury—that is, the legally cognizable harm. Accordingly, we conclude that the trial court correctly determined that the allegations in plaintiffs' complaint are insufficient to prevent the application of the OTCA's time limitations with respect to the sexual battery and IIED claims and those claims were properly dismissed.”

Id. at 616, 259 P.3d 27 (footnote omitted). As to Jack Doe 6's negligence claim, the court held that plaintiff had failed to raise a distinct argument regarding the timeliness of that claim, and the court therefore declined to address it on appeal. Id. at 616–18, 259 P.3d 27. The court also rejected without discussion plaintiffs' challenge to the constitutionality of the OTCA as applied.⁹ Plaintiffs sought, and we allowed, review.

To meet the requirements of the OTCA, a plaintiff who is a minor at the time of an alleged loss or injury must give notice of claim within 270 days and must commence the action within two years following the “alleged loss or injury.” ¹⁰ORS 30.275. In Adams v. Oregon State Police, 289 Or. 233, 239, 611 P.2d 1153 (1980), this court construed those terms and held that the limitations period for an OTCA claim for “alleged loss or injury” does not begin to run until a “plaintiff has a reasonable opportunity to discover his injury and the identity of the party responsible for that injury.” (Emphasis added.) That rule, the court explained, avoids the mockery that would follow if the law were to say to one who had been wronged, “[y]ou had a remedy, but before the wrong was ascertainable...