E. J. T. v. Jefferson Cnty., SC S068846

• Docket Number: SC S068846
• Decision Date: 22 September 2022
• Citation: 370 Or. 215,518 P.3d 568
• Parties: E. J. T., a minor, BY AND THROUGH his Conservator, INTRUSTMENT, NORTHWEST, INC., Plaintiff, v. JEFFERSON COUNTY, a public body; Tyler W. Anderson, in his individual capacity; and Arjang Aryanfard, in his individual capacity, Defendants.
• Court: Oregon Supreme Court

370 Or. 215

518 P.3d 568

E. J. T., a minor, BY AND THROUGH his Conservator, INTRUSTMENT, NORTHWEST, INC., Plaintiff,

v.JEFFERSON COUNTY, a public body; Tyler W. Anderson, in his individual capacity; and Arjang Aryanfard, in his individual capacity, Defendants.

SC S068846

Supreme Court of Oregon, En Banc.

Argued and submitted March 7, 2022.

September 22, 2022

Erin K. Olson, Law Office of Erin Olson, PC, Portland, argued the cause and filed the briefs for plaintiff.

Robert E. Franz, Jr., Law Office of Robert Franz, Jr., Springfield, argued the cause and filed the brief for defendants Jefferson County and Tyler W. Anderson.

Jonathan Henderson, Davis Rothwell Earle & Xóchihua, P.C., Portland, argued the cause and filed the brief for defendant Arjang Aryanfard. Also on the brief were Daniel Hasson and William G. Earle.

Ashley L. Vaughn, Dumas & Vaughn, LLC, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

Jane Paulson, Paulson Coletti Trial Attorneys, Portland, filed the brief for amicus curiae National Center for Victims of Crime. Also on the brief was Laura E. Laughlin, Freiwald Law, PC, Philadelphia, Pennsylvania.

FLYNN, J.

This case reaches us on two certified questions from the United States District Court for the District of Oregon. Plaintiff, through a conservator, brought this action in the district court after he suffered catastrophic brain damage at the hands of his mother's boyfriend. Plaintiff alleged that those injuries were caused by the failure of defendants—Jefferson County, Jefferson County Deputy Sheriff Anderson, and Warm Springs Police Department Officer Aryanfard—to respond to an earlier report of child abuse in the manner that Oregon law requires. Specifically, plaintiff alleged that he had suffered abuse from the boyfriend a month earlier, that medical personnel had reported those injuries to defendants, and that defendants had negligently failed to take certain actions required by Oregon statutes that govern the reporting of child abuse, ORS 419B.005 - 419B.055. Plaintiff also alleged a claim under Oregon's Vulnerable Person Act, ORS 124.100 - 124.140, which creates a statutory private right of action for enhanced damages against a person who has caused, or "permitt[ed] another person to engage in," financial or physical abuse of a vulnerable person.¹ Before any litigation of plaintiff's factual allegations, the parties identified two unresolved questions about the meaning of the Oregon statutes on which plaintiff had based his claims, and the district court certified two questions to this court: "Is a claim for Abuse of a Vulnerable Person under ORS § 124.100 et seq. , available against public bodies?"; and "Can a violation of Oregon's mandatory child abuse reporting law serve as a basis for statutory liability?"

We accepted the questions under ORS 28.200, and we now answer those questions in part. With respect to Oregon's Vulnerable Person Act, we conclude that a claim under that act is available against a public body, through the Oregon Tort Claims Act (OTCA), when the claim is based on the acts or omissions of officers, employees, or agents of the public body acting within the scope of their employment or duties. With respect to "statutory liability," we slightly reframe the question that the district court has certified to reflect the nature of "statutory liability" in Oregon: We ask whether the legislature intended to create statutory liability, i.e. , a statutory private right of action, to address violations of a duty that the child-abuse-reporting statutes imposed on defendants. See Deckard v. Bunch , 358 Or. 754, 759-60, 370 P.3d 478 (2016) (describing the threshold requirements of a claim for statutory liability). And we conclude that the legislature did not intend to create a statutory private right of action to address violations of the duties that the child-abuse-reporting statutes plausibly may have imposed on defendants in this case: duties that apply to law enforcement agencies that have received, and personnel who are investigating, an existing report of child abuse.

I. FACTS

Plaintiff was two years old when he suffered permanent catastrophic brain damage after an assault by his mother's live-in boyfriend, Mendoza.² Plaintiff lived with his mother and Mendoza in the town of Madras, in Jefferson County, Oregon, and his mother occasionally left plaintiff in Mendoza's care. Plaintiff also spent time with his father, who was a member of the Confederated Tribes of Warm Springs. A month and a half before the assault that caused plaintiff's catastrophic brain damage, plaintiff's mother had taken him to the hospital in Madras with bruising around his genitals. The attending nurse had reported the injury as suspected child abuse to local Jefferson County law enforcement and, later, to the Warm Springs Police Department.

Anderson responded to that report of abuse on behalf of the Jefferson County Sheriff. Before arriving at the hospital, Anderson notified dispatch that he had spoken by phone to the nurse and had been told that plaintiff had been abused two days earlier while staying at his father's home. At the hospital, Anderson asked plaintiff's mother where plaintiff's father lived, and, upon learning that he lived on the Warm Springs reservation, Anderson told plaintiff's mother that he had no jurisdiction and left the hospital without taking any other investigatory steps and without notifying the Department of Human Services (DHS) that the sheriff's office had received a report of child abuse. Anderson reported to dispatch that the abuse had occurred in Warm Springs and that "[d]ispatch is giving the call to them."

Aryanfard responded to the nurse's report on behalf of the Warm Springs Police Department. He interviewed plaintiff's mother briefly over the phone and advised her that he had spoken with plaintiff's father. At the Warm Springs Police Department, Aryanfard took photographs of plaintiff and spoke again with plaintiff's mother. He promised plaintiff's mother that he would figure out what had happened, but Aryanfard did nothing more to investigate the abuse. He did not continue the investigation or write any report, and he did not notify DHS that his police department had received a report of child abuse.

Over the next month and a half, plaintiff's mother continued to leave plaintiff in Mendoza's care. Ultimately, Mendoza assaulted plaintiff, causing the serious physical injuries that are at issue in this case, including a traumatic brain injury

resulting in permanent catastrophic brain damage.³

After plaintiff filed his complaint in federal district court, Jefferson County and Anderson (the Jefferson County defendants) moved to dismiss under FRCP 12(b)(6) for failure to state a claim. With respect to the claim alleging violations of Oregon's Vulnerable Person Act, ORS 124.105, the Jefferson County defendants recognized that the legislature had created a civil cause of action to enforce those laws, but they contended that the OTCA precludes such a claim against a public body or its employees. With respect to the claim alleging violations of the child-abuse-reporting statutes, the Jefferson County defendants argued in part that the legislature had not created a civil cause of action for violation of those statutory duties. In opposing the motion, plaintiff confirmed defendant's understanding that the complaint was alleging a claim for statutory liability based on violations of the child-abuse-reporting statutes. Plaintiff argued that the Jefferson County defendants’ motion had identified two unsettled questions of Oregon law and that the district court should consider certifying those questions to this court. The district court granted the request for certification, and it denied the motion to dismiss without prejudice, pending this court's response to the certified questions. This court accepted certification.

II. DISCUSSION

A. Claim for Abuse of a Vulnerable Person Against a Public Body

The second certified question—which we answer first—asks whether a claim for abuse of a vulnerable person under ORS 124.100 to 124.140 is available against public bodies. We conclude that the claim is available under the circumstances that plaintiff has alleged: A claim that officers, employees, or agents of a public body violated Oregon's Vulnerable Person Act while "acting within the scope of their employment or duties" is a tort claim, for which the OTCA authorizes an action against the public body.

In this case, plaintiff alleges that defendants are liable under Oregon's Vulnerable Person Act because they permitted another person—Mendoza—to engage in physical abuse of plaintiff.⁴ There is no dispute that the legislature has created a statutory private right of action for a vulnerable person injured under those circumstances. See ORS 124.100(2) (specifying that "[a] vulnerable person who suffers injury, damage or death by reason of physical abuse or financial abuse may bring an action against any person who has caused the physical or financial abuse or who has permitted another person to engage in physical or financial abuse").

The Jefferson County defendants argue, however, that the OTCA—specifically the "exclusive remedy" provision of the OTCA—precludes plaintiff from pursuing his Oregon's Vulnerable Person Act claim against a public body or its employees.⁵ They rely on ORS 30.265(2), which specifies that an action under the OTCA is "[t]he sole cause of action for a tort committed by officers, employees or agents of a public body acting within the scope of their employment or duties" and that the remedy of an action under the OTCA "is exclusive of any other action against any such officer, employee or agent." And they insist that "on four separate occasions, the federal court in the District of Oregon has held that an action based upon ORS 124.100 cannot be brought against an Oregon public body and its employees."

Plaintiff responds that a claim for abuse of a...