Finney v. Bransom, L-2

• Decision Date: 14 January 1997
• Docket Number: L-2
• Citation: 924 P.2d 319,143 Or.App. 154
• Parties: , 113 Ed. Law Rep. 486 Richard FINNEY and Kathleen Finney, individually and as guardians of Christy Finney, a Minor Child, Appellants, v. Doyle H. BRANSOM and Eagle Point School District 9, a Public School District, Respondents. 93-3808-; CA A84924.
• Court: Oregon Court of Appeals

Page 319

924 P.2d 319

143 Or.App. 154, 113 Ed. Law Rep. 486

Richard FINNEY and Kathleen Finney, individually and as guardians of Christy Finney, a Minor Child, Appellants, v. Doyle H. BRANSOM and Eagle Point School District 9, a Public School District, Respondents.

93-3808-L-2; CA A84924.

Court of Appeals of Oregon,

In Banc.

Argued and Submitted July 6, 1995.

Resubmitted In Banc June 12, 1996.

Decided Aug. 28, 1996.

Review Allowed Jan. 14, 1997.

William S. Dames, Medford, argued the cause for appellants. With him on the briefs was Dames and Dames.

Darleen Darnall, Portland, argued the cause for respondent Eagle Point School District 9. With her on the brief were Lisa E. Lear and Bullivant, Houser, Bailey, Pendergrass & Hoffman.

Thomas W. McPherson, Portland, argued the cause for respondent Doyle H. Bransom. With him on the brief was Mersereau & Shannon.

EDMONDS, Judge.

Plaintiffs assert several claims against defendants Eagle Point School District 9 (District) and Doyle H. Bransom (Bransom) arising from Bransom's alleged sexual abuse of plaintiffs' daughter during a period when District employed him as a teacher and plaintiffs' daughter was his student. Plaintiffs appeal from the trial court's granting of summary judgment to both defendants on the ground that plaintiffs did not provide the statutory tort claims notice within the required time. ORS 30.275; ¹ ORCP 47. They also assign error to the trial court's denial ² of their motion to amend their complaint. ORCP 23. We reverse in part.

In April 1992, plaintiffs submitted a "Complaint by District Patron" form (patron's complaint) to District claiming that Bransom had had sexual contact with their daughter. In July 1993, the Teacher Standards and Practices Commission (Commission) revoked Bransom's teaching license after it found that Bransom had "solicited two students to lie on his behalf to school administrators" and had engaged in offensive verbal and physical conduct "of a sexual nature" toward certain female students, including plaintiffs' daughter, as well as certain female district employees and one parent.

Plaintiffs, as guardians for their daughter, filed this action for damages against District and Bransom on October 29, 1993. The first three claims are against Bransom solely and allege torts of battery, intentional infliction of emotional distress and negligence. The fourth claim is against District for negligence. In their claims, plaintiffs allege that Bransom had sexual intercourse with their daughter between November 1991 and April 1992. They also allege that District was aware before 1993 of incidents in which Bransom had inappropriate physical contact with their daughter and other students and that District had reprimanded Bransom but failed to notify plaintiffs about the contact.

Defendants moved for summary judgment on all claims on the ground that plaintiffs had not complied with the 180-day notice requirement of ORS 30.275. They specifically argued that plaintiffs had been aware of the alleged torts since April 1992, but had not given District notice of their tort claims until they filed the complaint in this case in October 1993. Plaintiffs did not respond to defendants' motions until May 23, 1994, the day of the summary judgment motion hearing. On that date, they filed a memorandum in opposition to the motions, supporting evidentiary materials and a motion to amend their complaint. Among other modifications, the proffered amended complaint included a new claim under 42 U.S.C. section 1983 against District. It also added an allegation to the negligence claim that plaintiffs had learned for the first time, on or about July 24, 1993, that District had been aware of "inappropriate physical contact between Bransom and female students from 1980 to 1993 but had failed to do anything about it." The amended complaint also distinguished between claims against Bransom in his capacity as a teacher and those in his capacity as an individual. The evidentiary material that plaintiffs submitted in opposition to summary judgment included the proposed and final orders of revocation by the Commission.

On appeal, plaintiffs make the following assignments of error: (1) "The trial court erred in not allowing the amended complaint or in not considering the facts as they would be presented in an amended complaint." (2) "The court erred in ruling that the tort notice to defendants was required." Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. ORCP 47 C. Jones v. General Motors Corp., 139 Or.App. 244, 911 P.2d 1243 1996). Moreover, we will not consider any issue raised on appeal unless plaintiffs preserved that issue in the trial court. ORAP 5.45(2).

We consider plaintiffs' second assignment of error first because it has bearing on our analysis in regard to the first assignment of error. Plaintiffs argue that notice was not required as to its claims against Bransom. They concede that District cannot be liable for Bransom's actions beyond the scope of his employment. As to conduct that did not fall within the scope of Bransom's duties as a teacher, there was no tort notice required under ORS 30.275. Bransom argues that summary judgment was properly granted as to him because plaintiffs' initial complaint alleged claims against him in his capacity only as a teacher-employee of District and because plaintiffs did not give notice to District within 180 days of their April 1992 writing. In other words, Bransom argues that because the complaint alleges claims against him as a teacher, the claims fail as a matter of law, because plaintiffs did not provide the required tort claims notice. We disagree with Bransom's supposition regarding the nature of plaintiffs' claims against him. Plaintiffs alleged that Bransom engaged in sexual conduct with their daughter. Sexual conduct between a minor student and a teacher is not within the parameters of the responsibilities of a teacher as a matter of law. Thus, based on the allegations that plaintiffs rely on for their claims against Bransom, they were not required to provide tort claims notice. Consequently, the claims do not fail for lack of notice. ³

Nevertheless, to preclude summary judgment, plaintiffs must offer evidence that raises a genuine issue of material fact in support of their allegations. There is a dispute about whether Bransom had sexual intercourse with plaintiffs' daughter between 1991 and 1992 according to the information contained in the proposed Order of Revocation. ⁴ Consequently, the trial court erred in granting summary judgment in favor of Bransom.

As to plaintiffs' claim against District, the initial complaint alleges:

"Defendant, School District 9, was negligent in one or more of the following particulars:

"1) In failing to immediately tell the parents of [plaintiffs' daughter] of suspected excessive physical interaction between Bransom and [plaintiffs' daughter] and other students;

"2) In failing to immediately tell Bransom to stop having excessive physical interaction with [plaintiffs' daughter] and with other students;

"3) In failing to warn [plaintiffs' daughter] of Bransom's behavior, after it was known to Eagle Point School District 9;

"4) In failing to provide counseling for [plaintiffs' daughter], to help her deal with Bransom's behavior."

Plaintiffs concede that they did not plead compliance with ORS 30.275. However, they first argue that they satisfied the notice requirement for their negligence claim against District by the patron's complaint that they submitted to District in April 1992. Alternatively, they maintain that the 180-day tort notice requirement did not begin to run until July 1993, when they became aware of the Commission's report and that, because their action was filed within 180 days of that date, they complied with the requirements of the statute. As we have indicated, we will not review an issue on appeal unless it was raised to the trial court below. Because there is no transcript of the argument on the motion for summary judgment, our review to determine what was argued below is limited to the parties' written memorandums submitted to the trial court.

The substantive portions of plaintiffs' memorandum in their entirety read:

"NOTICE TO BRANSOM

"Defendant Bransom is only entitled to notice for acts committed within the course and scope of his employment. Sexual relations with a student, including sexual relations in her own home, hardly qualify as such acts.

"NOTICE TO SCHOOL DISTRICT

"If the District makes payment on the claim, there is no notice requirement. We have alleged that counseling services offered by the District constitute such a payment. Furthermore, counseling services offered by Dr. Ed Pearson were possibly paid by the District. This has not yet been verified through discovery.

"Under the Civil Rights claim (Sec.1983) defendants are not entitled to Oregon Tort Claims Act notice. Sanok v. Grimes, 306 Or. 259, 760 P.2d 228 (1988).

"AMENDED PLEADINGS

"It is appropriate for the court to deal with issues beyond the pleadings, if an amendment to a pleading would raise those issues. U.S. National Bank of Oregon v. Miller, 74 Or.App. 405, 703 P.2d 246 (1985).

"Under ORCP 23C the proposed amendments to the pleadings relate back to the time the complaint was filed, since the claim arises out of the same conduct as previously pleaded.

"CIVIL RIGHTS (1983) CLAIM

"It is clear that this is an appropriate statute to utilize in filing this claim.

"This claim may be filed in State Court."

(Some citations omitted.)

As is evident from the contents of plaintiffs' trial memorandum, there is no suggestion that plaintiffs argued to the trial court that they satisfied the notice requirements for their negligence claim against District in their original complaint with the patron's complaint that they submitted to District in April...