Jack Doe 1 v. Lake Oswego Sch. Dist.

Decision Date18 May 2011
Docket NumberCV08020740; A140979.
PartiesJACK 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,v.LAKE OSWEGO SCHOOL DISTRICT, an Oregon public school district, authorized and chartered by the laws of the State of Oregon; and Judd Johnson, an individual, Defendants–Respondents.
CourtOregon Court of Appeals

OPINION TEXT STARTS HERE

Kristian Roggendorf, Portland, argued the cause for appellants. With him on the briefs were Kelly Clark and O'Donnell Clark & Crew LLP.David A. Ernst, Portland, argued the cause for respondent Lake Oswego School District. With him on the brief were Lisa E. Lear and Bullivant Houser Bailey PC.No appearance for respondent Judd Johnson.Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and LANDAU, Judge Pro Tempore.ORTEGA, P. J.

Plaintiffs brought this action based on incidents of sexual abuse by a teacher (Johnson) that they allege occurred between 1968 and 1984, while they were each students in Johnson's fifth-grade class. They sought damages from the Lake Oswego School District 1 pursuant to the Oregon Tort Claims Act (OTCA) on a theory of respondeat superior liability for sexual battery and intentional infliction of emotional distress (IIED). In addition, plaintiffs brought a federal civil rights claim against defendant for violating their right to be free from sexual abuse by a governmental actor; they also sought declaratory relief in the form of a “declaration [that] the OTCA statute of limitations, as applied to them, is unconstitutional.” Finally, one plaintiff sought damages for negligence. Defendant filed ORCP 21 motions to dismiss all claims, contending that the claims for sexual abuse, IIED, and negligence were time barred pursuant to the “Notice and Statute of Limitation requirements of the [OTCA].” As to the civil rights claim, defendant contended that dismissal was required because the claim was time barred and plaintiffs failed “to state ultimate facts that support the proposition that [defendant] acted with ‘deliberate indifference’ to their constitutional rights. Further, defendant asserted that the claim for declaratory relief should be dismissed as the courts had already rejected constitutional challenges to the notice and statute of limitations provisions of the OTCA. The trial court ultimately agreed with defendant's contentions and entered a limited judgment dismissing plaintiffs' claims against defendant. We vacate the judgment, in part, and remand with instructions but otherwise affirm.

In reviewing the trial court's disposition of the motions to dismiss under ORCP 21, we assume the truth of the facts alleged in the complaint, drawing all inferences in plaintiffs' favor.” American Fed. Teachers v. Oregon Taxpayers United, 208 Or.App. 350, 366, 145 P.3d 1111, adh'd to on recons., 209 Or.App. 518, 149 P.3d 159 (2006), rev. den., 345 Or. 95, 189 P.3d 750 (2008). Plaintiffs are all adult males born between 1957 and 1970. Between 1968 and 1984, each plaintiff was a fifth-grade student in Johnson's class at one of defendant's elementary schools. While a student in Johnson's class, and while on school grounds, each plaintiff was sexually abused by Johnson. Among plaintiffs, Jack Doe 6 was the last to be a student in Johnson's class. Over the course of the years, Johnson was transferred among and worked in three of defendant's elementary schools.

The summer before the school year in which Jack Doe 6 was abused, defendant learned that Johnson had been accused of molesting a young boy off school grounds. Although the police investigated the accusation, the boy refused to testify and, accordingly, Johnson was not prosecuted. Defendant took no action upon learning of the accusation.

After Jack Doe 6 was abused, he disclosed the abuse to his mother, who “contacted an administrator in the [school district] about the abuse.” The administrator offered to have Johnson transferred if Jack Doe 6's mother would keep quiet about the abuse. She refused, reported the abuse to law enforcement, and Johnson was prosecuted and eventually convicted for the abuse of Jack Doe 6.

In 2008, plaintiffs brought this action. The first amended complaint included respondeat superior claims under the OTCA for sexual battery and IIED, a claim for violation of plaintiffs' federal civil rights, and an alternative claim seeking a declaration that, in the event that plaintiffs' claims under the OTCA were time barred, the OTCA was unconstitutional. Defendant moved to dismiss all of plaintiffs' claims, arguing that the OTCA claims were barred by “applicable notice and statute of limitations requirements,” the civil rights claim failed to state a claim or was precluded by the applicable statute of limitations, and the claim for declaratory relief was meritless. After a hearing, the trial court entered an order dismissing the declaratory relief claim with prejudice and dismissing plaintiffs' remaining claims with leave to replead.

In their amended pleading, plaintiffs reasserted their claims. In addition, Jack Doe 6 added a separate negligence claim against defendant. The new pleading clarified that each plaintiff had only recently discovered the harm that arose from the sexual abuse. Plaintiffs stated that, at the time of the abuse, they were unable to recognize that they had been harmed “due to the obedience, admiration, respect, and esteem” they had for their teacher, because they were confused by the touching and were “unable to discern at the time that the touching was inappropriate or harmful[,] and because “the operation of the child abuse” on their “psyche[s] prevented [them] from recognizing that [they] had been injured.”

With respect to the civil rights claim, plaintiffs alleged that defendant had “a custom or practice of ignoring signs and reports of misconduct of a sexual nature toward boys by * * * Johnson.” In addition, they specifically alleged that defendant had received reports that Johnson “touched various boys in a sexual manner” but that the school district had either failed to act “or merely transferred [Johnson] from one of [defendant's] elementary schools to another,” and that plaintiffs had discovered defendant's “custom or practice of transferring pedophiles among its schools” in March 2008. As for the separate negligence claim, Jack Doe 6's allegations centered around defendant's knowledge, before Jack Doe 6 was abused, of the investigation into Johnson's sexual abuse of another child off of school grounds. Further, Jack Doe 6 alleged that he had only discovered defendant's negligent conduct in March 2008.

Defendant again moved, pursuant to ORCP 21, for dismissal of all the claims against it. At the hearing, with respect to the OTCA claims for sexual battery and IIED, the court ultimately agreed with defendant's contention that the claims were barred by the statute of limitations. According to the court,

“the last time this case was here on this issue, my concern was that plaintiff wanted an opportunity to allege facts that—as strongly as they could—to attempt to avoid this significant statute of limitations issue. I do not believe they have done so at this time, and let me just tell you why.

“First, what we know is that these children range in age from 10 to 13 years of age. We know from the pleading that the conduct that the plaintiffs complained of are physical injury, mental injury, rape, sexual abuse, sexual exploitation. They include allegations of engaging in fondling of Plaintiff, Jack Doe No. 1's, genitals inside his clothing while in the classroom in front of other students. And there are similar allegations, I believe, against—relating to the conduct of this—excuse me—this employee, of all the children.

“ * * * * *

[W]hat we're here for today is to determine whether or not the school district ought to be liable for this kind of conduct. And I find it cannot be under the allegations of this complaint. I have very carefully looked at the—the reasons used, to attempt to get around the discovery rule. And the—the words: Plaintiff did not comprehend the abusive nature, and therefore could not perceive the harm,’ in my view, that's a conclusion, which, if justified by the factual allegations, would be sufficient to allow this case to go forward.

“However, the factual allegations are: Due to the obedience, admiration, respect and esteem which Jack Doe had for Johnson as his teacher. And it also, because the touching that forms the basis of the damages was similar enough to nontortious touching by Johnson, that occurred during and part of the grooming process. As a young boy, he was confused by it and unable to discern at the time that the touching was inappropriate or harmful.

“Now, assuming that conduct to be true and the state of mind of that young man to be true, it * * * simply does not support a claim that he did not comprehend the abusive nature and therefore could not perceive the harm. * * *

“ * * * So I am allowing the motion to dismiss with prejudice and without leave to replead the first 14 claims for relief.”

After being informed by counsel for plaintiffs that the analysis for the negligence claim was the same as that for the “vicarious liability tort claims,” the court also dismissed the negligence claim with prejudice. Finally, as to the federal civil rights claim, the court stated that, in reaching its decision, it “disregarded what I saw as conclusions rather than statements of ultimate fact.” In the trial court's view, the facts alleged did not state a federal civil...

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    ...as to the matter in dispute." Advance Resorts, 141 Or App at 180. See also Jack Doe 1 v. Lake Oswego Sch. Dist., 242 Or App 605, 618 n 4, 259 P3d 27 (2011), rev'd, 353 Or 321, 297 P3d 1287 (2013) (applying principle). CAVEAT: A declaratory judgment action is not the proper basis for litigat......
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