Franson v. Radich

• Decision Date: 15 April 1987
• Citation: 735 P.2d 632,84 Or.App. 715
• Parties: Linda FRANSON and Michael Franson, Appellants, v. Rita RADICH, Right to Life Oregon, a nonprofit Oregon corporation, Respondents, Steven Plinski, Association for Retarded Citizens of Coos County, a nonprofit Oregon corporation, and Pat Perry, Defendants. A8410-06199; CA A38485.
• Court: Oregon Court of Appeals

Page 632

735 P.2d 632

84 Or.App. 715

Linda FRANSON and Michael Franson, Appellants, v. Rita RADICH, Right to Life Oregon, a nonprofit Oregon

corporation, Respondents,

Steven Plinski, Association for Retarded Citizens of Coos

County, a nonprofit Oregon corporation, and Pat

Perry, Defendants.

A8410-06199; CA A38485.

Court of Appeals of Oregon.

Argued and Submitted Oct. 6, 1986.

Decided April 15, 1987.

W. Eugene Hallman, Pendleton, argued the cause for appellants. With him on the brief were Mautz & Hallman, Pendleton, and James M. Pippin and Pippin & Bocci, Portland.

David J. Sweeney, Portland, argued the cause for respondents. With him on the brief were Miles Sweeney and Gilbertson, Brownstein, Rask, Sweeney, Kerr & Grim, Portland.

Before BUTTLER, P.J., JOSEPH, C.J., and ROSSMAN, J.

ROSSMAN, Judge.

This is an action for intentional infliction of emotional distress and interference with custody. Plaintiffs appeal from the judgment entered after the trial court granted defendants' motion to dismiss both claims for failure to state ultimate facts sufficient to constitute a claim. We affirm in part and reverse in part.

On appeal, we accept the facts pleaded in the complaint as true, Sommerfeldt v. Trammell, 74 Or.App. 183, 187, 702 P.2d 430 (1985), and read the complaint liberally to uphold it if possible. Isler v. Shuck, 38 Or.App. 233, 589 P.2d 1180 (1979). It alleges that, on April 11, 1983, plaintiff Linda Franson gave birth to a baby with a severe birth defect, which doctors diagnosed as not being compatible with continuing life. On the advice of the attending physicians and their pastor, plaintiffs determined that extraordinary measures should not be taken to preserve the child's life.

On April 13, 1983, defendants Radich and Right to Life Oregon ¹ notified Children's Services Division (CSD) that the child was in the hospital and suffering neglect. In an action which they initiated in circuit court they moved for a mandatory injunction to require the hospital to provide life support for the child. The court granted a temporary injunction on the same day and directed that a hearing be held on April 15 to determine whether the injunction should be made permanent. On April 14, CSD, prompted by defendants' actions, filed a petition in juvenile court charging plaintiffs with failure to provide medical treatment for their child. As a consequence, the child was removed from the physical custody of plaintiffs and taken to the University of Oregon Health Sciences Center against their wishes.

At the hearing on the injunction, defendant Radich, appearing as an attorney, a representative of defendant Right to Life Oregon and as a self-styled "friend of the court," accused plaintiffs of

"killing their infant baby; starving it to death; withholding sustenance on purpose; caring for their infant with less than human treatment than is normally rendered dogs and cats; condemning their baby to death by starvation; and, starving their baby into a long, slow, agonizing death."

At the conclusion of the hearing, the court dissolved the temporary injunction and dismissed the action. On April 20, defendants filed a notice of appeal, a motion for a stay and a temporary restraining order and a request to continue the injunction, along with an affidavit signed by Radich, which stated:

"Without intravenous or other similar methods of intraducing [sic ] liquids and nutrition, [the baby] will die of starvation and dehydration long before any appeal on this matter can be heard and derived."

The child died while that case was pending in the Court of Appeals, and the appeal was dismissed.

In 1984, plaintiffs brought this action to recover for damages resulting from defendants' conduct. Their first claim is for intentional infliction of emotional distress. Defendants argue that the trial court's dismissal of that claim was correct, because (1) the facts as pled do not constitute either outrageous conduct or intentional actions, (2) the bringing of a legal action cannot constitute outrageous conduct, (3) they enjoy statutory immunity for their actions and (4) the statements on which the claim is based are absolutely privileged, because they were made in connection with a judicial proceeding. Because we conclude that the last argument prevails, we need not address the first three. ²

Although, ordinarily, absolute privilege ³ is an affirmative defense that must be raised by answer, it may be raised by motion to dismiss if the amended complaint alleges facts which, if true, establish the privilege. See Dell v. K.E. McKay's Market, 273 Or. 752, 759, 543 P.2d 678 (1975); Lee v. Nash, 65 Or.App. 538, 671 P.2d 703 (1983), rev. den., 296 Or. 253, 675 P.2d 491 (1984). If the absolute privilege applies in an intentional infliction of emotional distress action to attorneys and parties involved in litigation which gave rise to the action, the complaint here alleges facts which would establish the privilege, and the issue was properly raised.

The complaint alleges that defendants filed the action for a mandatory injunction and made various statements in connection with the action. In Troutman v. Erlandson, 286 Or. 3, 6, 593 P.2d 793 (1979), the Supreme Court stated that it had "recognized the absolute privilege accorded communications made by attorneys in judicial proceedings." The privilege applies to anything that may be pertinent. McKinney v. Cooper, 163 Or. 512, 519, 98 P.2d 711 (1940). Although the absolute attorney privilege question most frequently arises in defamation actions, this court has held that it applies to the "publication of any matter that is an invasion of privacy." Lee v. Nash, supra, 65 Or.App. at 542, 671 P.2d 703. Because the privilege "is based upon a public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients," Restatement (Second) Torts, § 586, comment a (1977) (cited with approval in Troutman v. Erlandson, supra, 286 Or. at 7, 593 P.2d 793), we see no reason why it should not also apply in claims for intentional infliction of emotional distress based on actions taken and statements made in connection with a judicial proceeding.

The privilege that applies to defendant Radich as an attorney does not by its terms immunize her or Right to Life Oregon as parties to the action. However, Oregon law recognizes the absolute privilege accorded a party in a judicial proceeding when the communications are " 'in the institution of or during the course and as a part of a judicial proceeding in which he participates, if the matter has some relation thereto.' " Strycker v. Levell and Peterson, 183 Or. 59, 67, 190 P.2d 922 (1948) (quoting Restatement Torts, § 587 (1938)). We conclude that absolute privilege is applicable to the intentional infliction of emotional distress claim. Because the allegations remaining after disregarding those protected by the privilege do not allege conduct sufficient to make out the claim, the trial court did not err in dismissing it.

Plaintiffs also challenge the dismissal of their custodial interference claim. In McBride v. Magnuson, 282 Or. 433, 578 P.2d 1259 (1978), the Supreme Court recognized that a parent's right to custody of a child is protected from unjustified interference. As part of the second cause of action, plaintiffs allege:

"Defendants knew, or should have known, of the diagnosis and prognosis of the attending physicians. They also knew, or should have known, that plaintiffs sought the advice of their doctors and other qualified professionals and that plaintiffs acted in reliance thereon as to what was the appropriate care for their infant. As a result of this knowledge, defendants knew, or should have known, that Baby Franson was not suffering from neglect and was not a fit subject for the defendants' petition filed in the Coos County Circuit Court."

They also allege that, as a result of defendants' wilful conduct, plaintiffs' right to maintain the integrity of their family has been unreasonably interfered with and that they effectively lost their parental rights to physical custody of their child and to make decisions for her well-being.

The complaint adequately alleges custodial interference. Defendants' sole contention in response to this assignment is that their actions in reporting neglect are authorized by the child abuse and neglect reporting statutes (see ORS 418.750 to ORS 418.762) and were therefore justified as a matter of law. ⁴ We do not agree.

Defendants argue that they are immune from liability under ORS 418.762, which provides, in part:

"Anyone participating in good faith in the making of a report pursuant to ORS 418.750 to 418.760 and who has reasonable grounds for the making thereof, shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed with respect to the making or content of such report."

It is not clear whether the language "[a]nyone participating * * * in the making of a report pursuant to ORS 418.750" was intended to encompass anyone who gets involved in the official handling of a purported child abuse matter, or only those persons who do so pursuant to ORS 418.750, which sets out the duty of officials to report child abuse to CSD or a law enforcement agency. It provides, in part:

"Any public or private official having reasonable cause to believe that any child with whom the official comes in contact in an official capacity has suffered abuse, or that any person with whom the official comes in contact in an official capacity has abused a child shall report or cause a report to be made in the manner required in ORS 418.755."

"Public or private official" includes attorneys, ORS 418.740(3)(m); it does not include private organizations such as Right to Life Oregon.

ORS 418.762 was enacted to ensure that Oregon would meet the qualifications for federal funding of state child abuse and neglect programs. Minutes, Senate...