Fearing v. Bucher

• Decision Date: 08 April 1999
• Citation: 328 Or. 367,977 P.2d 1163
• Parties: Steven FEARING, Petitioner on Review, v. Melvin BUCHER and Archdiocese of Portland in Oregon, Respondents on Review, and Province of St. Barbara, Order of Friars Minor, a California corporation, and Franciscan Friars of California, Defendants. (CC9412-08665; CA A89144; SC S44382)
• Court: Oregon Supreme Court

Page 1163

977 P.2d 1163

328 Or. 367

Steven FEARING, Petitioner on Review, v. Melvin BUCHER and Archdiocese of Portland in Oregon Respondents on Review and Province of St. Barbara, Order of Friars Minor, a California corporation, and Franciscan Friars of California Defendants.

(CC9412-08665; CA A89144; SC S44382)

Supreme Court of Oregon.

Argued and Submitted Sept. 10, 1998.

Decided April 8, 1999.

Kelly Clark, Lake Oswego, argued the cause and filed the briefs for petitioner on review.

Arden E. Shenker, Portland, argued the cause for respondent on review Melvin Bucher.

Karen O'Kasey, Portland, argued the cause and filed the brief for respondent on review Archdiocese of Portland in Oregon.

David Slader, Portland, argued the cause for amici curiae Oregon Trial Lawyers Association, Oregon Coalition Against Domestic and Sexual Violence, National Alliance of Sexual Assault Coalitions, and National Association of Counsel for Children. With him on the brief was Michael S. Morey.

Before CARSON, Chief Justice, and GILLETTE, VAN HOOMISSEN, DURHAM, and KULONGOSKI, Justices. ^**

GILLETTE, J.

This case arises out of allegations by plaintiff that, as a minor, he was sexually abused by his priest in the early 1970s. The case presents two issues. The first concerns whether the doctrine of respondeat superior, pursuant to which an employer can be held vicariously liable for the acts of its employee, can be applied to a case involving an employee's sexual abuse of a child. The second concerns the applicability of an extended statute of limitations for actions "based on conduct that constitutes child abuse" to an employer, where liability is based on respondeat superior.

Defendant Archdiocese of Portland in Oregon (the Archdiocese) was the supervising archdiocese of the priest, Bucher, during the period in which the child abuse allegedly occurred. Plaintiff's amended complaint asserts liability in the Archdiocese on theories of vicarious liability through application of the doctrine of respondeat superior and of negligent retention, supervision, and training of Bucher. ¹ The case comes before us for review of the trial court's grant of motions by the Archdiocese under ORCP 21 to dismiss both claims for relief as time-barred and for failure to state ultimate facts sufficient to constitute a claim. ² The Court of Appeals affirmed the dismissal for failure to state a claim, based on that court's conclusions that: (1) the complaint did not allege facts from which it reasonably could be concluded that Bucher's sexual assaults on plaintiff were within the scope of Bucher's employment; and (2) the complaint failed adequately to allege that the Archdiocese "knowingly allow[ed], permit[ted] or encourag[ed] child abuse" as required by ORS 12.117, the extended statute of limitations for child abuse actions, thus rendering that statute inapplicable to plaintiff's negligent retention claim. ³ Fearing v. Bucher, 147 Or.App. 446, 936 P.2d 1023 (1997). In light of those holdings, the court did not reach the issue whether the claim of vicarious liability based on application of the doctrine of respondeat superior is barred by the applicable statute of limitations. Id.

Plaintiff seeks review of the Court of Appeals' decision only insofar as it affirmed the trial court's order with respect to the dismissal for failure to state a claim for vicarious liability based on application of the doctrine of respondeat superior. We limit our review accordingly. In reviewing the Court of Appeals' decision in that regard, our task is not to decide whether the sexual abuse occurred or, if so, whether the Archdiocese ultimately is liable for it. Rather, our only task is to determine whether, in light of the allegations of the complaint, the trial court could decide as a matter law that the Archdiocese could not be held vicariously liable for Bucher's actions. We conclude that the allegations of the amended complaint are sufficient to state a claim of vicarious liability against the Archdiocese based on application of the doctrine of respondeat superior. Therefore, we reverse in part the decision of the Court of Appeals. We also hold that that claim is not, on the record before us, time-barred as a matter of law.

ORCP 18 A requires a complaint to contain "[a] plain and concise statement of the ultimate facts constituting a claim for relief without unnecessary repetition." In determining the sufficiency of plaintiff's complaint, we accept all well-pleaded allegations of the complaint as true and give plaintiff the benefit of all favorable inferences that may be drawn from the facts alleged. Boise Cascade Corp. v. Board of Forestry, 325 Or. 185, 196-97, 935 P.2d 411 (1997). Conclusions of law alone, however, are insufficient. See Zehr v. Haugen, 318 Or. 647, 655-56, 871 P.2d 1006 (1994) (allegations in complaint do not state ultimate facts sufficient to state a claim for breach of warranty despite inclusion of such conclusory terms as "warranty agreement").

The following facts are alleged in the complaint. From 1970 through 1972, Bucher, a priest operating out of a local parish, and an employee of the Franciscan Friars of California, Inc., and the Archdiocese, acted as youth pastor, friend, confessor, and priest to plaintiff and his family. Plaintiff and his family became close to Bucher, and Bucher was a frequent guest in their home. Bucher gained the trust and confidence of plaintiff's family as a spiritual guide and priest and as a youth pastor and mentor to plaintiff, then an adolescent. By virtue of that relationship, Bucher gained the support, acquiescence, and permission of plaintiff's family to spend substantial periods of time alone with plaintiff.

Bucher also won the friendship and admiration of plaintiff himself. He was his spiritual advisor, mentor, and confessor. Bucher began to socialize with plaintiff and to spend time alone with him. He used his position of trust to touch plaintiff physically. Eventually, Bucher committed a series of sexual assaults on plaintiff. At the time of those assaults, plaintiff was a minor.

Plaintiff further alleges in the complaint that, at all times relevant to the complaint, Bucher was an employee of the Archdiocese and the abuse was committed in connection with Bucher's employment as youth pastor and priest. The complaint describes Bucher's performance of his priestly and pastoral duties in developing a trust relationship with plaintiff and his family, together with the eventual sexual assaults, as "[m]anipulations." Plaintiff then alleges:

"The [m]anipulations * * * were committed within the time and space limits of [Bucher's] employment as youth pastor and priest, were committed out of a desire, at least initially and partially, to fulfill his employment duties as youth pastor and priest, and the [m]anipulations were generally actions of a kind and nature which Bucher was required to perform as youth pastor and priest."

Under the doctrine of respondeat superior, an employer is liable for an employee's torts, including intentional torts, if the employee was acting within the scope of employment. See, e.g., Stroud v. Denny's Restaurant, 271 Or. 430, 532 P.2d 790 (1975) (employer liable for employee's malicious prosecution of customer because employee's action was within the scope of employment); cf. G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or. 54, 757 P.2d 1347 (1988) (dismissal of action for vicarious liability based on application of doctrine of respondeat superior proper because plaintiff failed to allege that employee's conduct was within the scope of employment). Thus, a complaint generally is sufficient to state a claim for vicarious liability based on application of the doctrine of respondeat superior if it states ultimate facts that, if true, would establish that an employee was acting within the scope of employment when the employee allegedly committed the acts that led to plaintiff's injury.

In Chesterman v. Barmon, 305 Or. 439, 442, 753 P.2d 404 (1988), this court outlined three requirements that must be met to establish that the employee's conduct was within the scope of employment: (1) the conduct must have occurred substantially within the time and space limits authorized by the employment; (2) the employee must have been motivated, at least partially, by a purpose to serve the employer; and (3) the act must have been of a kind that the employee was hired to perform. The decision then explored the proper applicability of those requirements in the context of vicarious liability premised on an employee's intentional tort.

In Chesterman, the trial court had granted summary judgment in favor of a defendant corporation whose employee allegedly ingested a hallucinatory drug to enable him better to focus his attention on work. While under the influence of that drug, the employee broke into the plaintiff's house and sexually assaulted her. On review, this court held that the intentional tort itself, the sexual assault, unquestionably was outside the scope of employment, but that did not conclude the inquiry. Id. at 443, 753 P.2d 404. The court stated that, in cases where there is a "time-lag" between the act allegedly producing the harm and the resulting harm, it is inappropriate to determine whether respondeat superior applied as of the time when the injury occurred. Id. at 444, 753 P.2d 404. Rather, "[t]he focus should be on the act on which vicarious liability is based and not on when the act results in injury." ⁴ Id. (emphasis in original).

As in Chesterman, Bucher's alleged sexual assaults on plaintiff clearly were outside the scope of his employment, but our inquiry does not end there. The Archdiocese still could be found vicariously liable, if acts that were within Bucher's scope of employment "resulted in the acts which led to injury to plaintiff." Id. at 443, 753 P.2d 404.

Whether an employee has acted within the scope of employment at any given time generally is a...