John Doe v. Silverman

• Citation: 399 P.3d 1069,286 Or.App. 813
• Decision Date: 19 July 2017
• Docket Number: A159481
• Parties: John DOE, Plaintiff-Appellant, v. Samuel Arthur SILVERMAN, Defendant, and Sandra Dixon, Defendant-Respondent.
• Court: Court of Appeals of Oregon

286 Or.App. 813

399 P.3d 1069

John DOE, Plaintiff-Appellant,

v. Samuel Arthur SILVERMAN, Defendant,andSandra Dixon, Defendant-Respondent.

A159481

Court of Appeals of Oregon.

Argued and submitted June 14, 2016.

July 19, 2017

Kristian Roggendorf, Portland, argued the cause for appellant. With him on the briefs were Roggendorf Law LLC, Thomas N. Petersen, and Black, Chapman, Webber & Stevens.

Tracy M. McGovern, Medford, argued the cause for respondent. With her on the brief were Alicia M. Wilson and Frohnmayer, Deatherage, Jamieson, Moore, Armosino & McGovern, P.C.

Before Tookey, Presiding Judge, and DeHoog, Judge, and Sercombe, Senior Judge.

DEHOOG, J.

Plaintiff appeals a judgment dismissing his claims for negligence and intentional infliction of emotional distress (IIED) arising out of sexual abuse that plaintiff suffered at the hands of defendant's husband, Silverman. The trial court granted defendant's motion for summary judgment on those claims after concluding that there were no triable issues of fact as to whether defendant had "knowingly allow[ed], permit[ted] or encourage[ed] child abuse," ORS 12.117(1), and that, without the extended limitations period provided by that statute, plaintiff's action was time barred. Plaintiff raises two assignments of error on appeal. We write only to address plaintiff's first assignment of error, in which he argues that the trial court erred in concluding that he had not raised a fact issue as to whether defendant had acted knowingly within the meaning of ORS 12.117.¹ We conclude that, because the summary judgment record discloses factual disputes regarding that issue, the trial court erred in dismissing plaintiff's claims. Accordingly, we reverse and remand for further proceedings.

Under ORCP 47 C, summary judgment is appropriate when

"the pleadings, depositions, affidavits, declarations and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to prevail as a matter of law. * * * The adverse party has the burden of producing evidence on any issue raised in the motion as to which the adverse party would have the burden of persuasion at trial."

See Jones v. General Motors Corp. , 325 Or. 404, 420, 939 P.2d 608 (1997). That standard is met when "no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." ORCP 47 C.We review an order granting summary judgment for errors of law. Ellis v. Ferrellgas, L.P. , 211 Or.App. 648, 652, 156 P.3d 136 (2007). In conducting our review, we view the facts and all reasonable inferences that may be drawn from them in favor of the nonmoving party who, in this case, is plaintiff. Jones , 325 Or. at 408, 939 P.2d 608. We state the facts in accordance with that standard.

In 1996, when plaintiff was a minor, defendant's husband, Silverman, sexually abused him while he was a guest of defendant and Silverman's son in their home. That criminal conduct led to Silverman's conviction and subsequent imprisonment. See State v. Silverman , 159 Or.App. 524, 977 P.2d 1186, rev. den. , 329 Or. 527, 994 P.2d 129 (1999), cert. den. , 531 U.S. 876, 121 S.Ct. 183, 148 L.Ed.2d 126 (2000).

In 2014, when he was 30 years old, plaintiff sued Silverman and defendant.² Plaintiff's claims against defendant alleged negligence and IIED for her role in Silverman's abuse of plaintiff. Specifically, the complaint alleged the following:

"PLAINTIFF and other boys * * * were invited to the property by [defendant and Silverman] and their son for social occasions and sleep overs. * * *

" * * * * *

" * * * DEFENDANT * * * was a practicing child psychiatrist. * * * [Defendant and Silverman] had knowledge about how pedophiles commit child sexual abuse by grooming, molesting, and otherwise manipulating youngsters such as PLAINTIFF to comply with pedophiles' demands for sexual favors, how children are harmed by pedophilia, and how pedophiles coerce and/or convince victims not to tell anyone about the abuse.

" * * * * *" * * * [Defendant ] was aware that SILVERMAN was a predatory pedophile who had molested minor children in the past and who was doing so at the property and also during his working hours. One of those child victims was PLAINTIFF who was repeatedly molested by SILVERMAN at the property. PLAINTIFF alleges that [defendant] and SILVERMAN each played an active role in convincing boys like PLAINTIFF that the property was a safe place to play free from the dangers of pedophilia that [Silverman and defendant] posed to PLAINTIFF and others. * * *

" * * * * *

" * * * [Defendant and Silverman] invited PLAINTIFF to come to the property to play or sleep over. During these visits by PLAINTIFF [defendant and Silverman], and each of them, were aware that SILVERMAN posed an unreasonable danger and foreseeable risk of harm to plaintiff. [Defendant and Silverman], and each of them, manipulated PLAINTIFF's visits to the property so that SILVERMAN had one-on-one time with PLAINTIFF. * * * [Defendant ] assisted SILVERMAN in his abuse of PLAINTIFF by helping SILVERMAN arrange for boys such as PLAINTIFF to come play and stay over night at the property knowing that SILVERMAN would have alone time [and] would probably molest boys, including PLAINTIFF . Further, [defendant] aided and abetted SILVERMAN's molestation of boys by not reporting his child abuse of said boys she was aware of or had reasonable suspicious to be aware of by reason of her education and training [as a child psychiatrist] and her knowledge of SILVERMAN's sexual predilections for minor children."

(Capitalization in original; emphases added.)

Defendant and Silverman each moved separately for summary judgment and asserted that plaintiff's action was time barred. In her motion, defendant contended that the applicable statute of limitations was ORS 12.110(1), which typically applies to negligence and IIED claims, and that, under that statute, plaintiff's claims against her were untimely.³ Defendant further argued that, for two reasons, ORS 12.117, which extends the statute of limitations in cases involving "knowingly allowing, permitting, or encouraging child abuse," could not save plaintiff's claims. First, according to defendant, under ORS 12.117 (1995), amended by Or. Laws 2009, ch. 879, § 1; Or. Laws 2011, ch. 151, § 4; Or. Laws 2015, ch. 98, § 2,⁴ the version of the statute in effect when plaintiff's claims arose, plaintiff was required to file his claims before reaching the age of 24 years; thus, his claims were time barred even if ORS 12.117 applied to his case. See ORS 12.117 (1995) (extending the time to bring suit for certain actions to "six years after [the] person attains 18 years of age"). Second, defendant argued, ORS 12.117 did not apply. That, defendant contended, was because, under our decision in Lourim v. Swensen , 147 Or.App. 425, 444, 936 P.2d 1011 (1997) ( Lourim I ), aff'd in part and rev'd in part , 328 Or. 380, 977 P.2d 1157 (1999) ( Lourim II ), the extended statute of limitations in ORS 12.117 could not apply unless plaintiff alleged that defendant had actual, and not merely constructive, knowledge of child abuse. According to defendant, the complaint only alleged that she had knowledge of a risk of harm; it did not allege that she had actual knowledge that Silverman was abusing plaintiff. Because, in defendant's view, that showed that plaintiff had failed to raise a triable issue of fact as to whether she had acted knowingly with regard to actual abuse, she was entitled to summary judgment.

In response to defendant's motion, plaintiff first asserted that he had alleged sufficient knowledge by defendant to raise an issue of fact as to whether her conduct fell under ORS 12.117. Plaintiff further argued that the version of ORS 12.117 in effect when plaintiff filed his suit in 2014⁵ applied to his action and that, under that version of the statute, his claims were timely, because it allowed him to bring his claims anytime before reaching 40 years of age. Plaintiff alternatively contended that, because he had only recently discovered defendant's role in his abuse and the earlier version of ORS 12.117 provided for a three-year discovery period, his claims remained timely even if that version of the statute applied. See ORS 12.117 (1995) (providing that, "if the injured person has not discovered the injury or the causal connection between the injury and the child abuse, nor in the exercise of reasonable care should have discovered the injury or the causal connection between the injury and the child abuse," that person may bring suit "not more than three years from the date the injured person discovers or in the exercise of reasonable care should have discovered the injury or the causal connection between the child abuse and the injury, whichever period is longer").

Plaintiff also submitted two declarations in response to defendant's summary judgment motion. In the first declaration, plaintiff's mother described a conversation that had occurred after she learned of her son's abuse, in which she had

"asked [defendant] about why Mr. Silverman had molested my son. [Defendant] told me that it was because Mr. Silverman suffered long standing mental illness regarding molesting children because he had been molested as a child. [Defendant] also told me that her husband could not help himself and promised me that he would never do this again. * * * I asked [defendant] why she stayed married to Mr. Silverman given his crimes against children, and she told me that she had stayed with him over the years because he had stood by her during a difficult time * * *."

The second declaration was from plaintiff himself. In it, plaintiff asserted:

"I * * * remember being abused by Mr. Silverman in his bedroom, sleeping in his bed, and Defendant * * * watching me come out of Mr. Silverman's bedroom in the morning. I remember that as her husband continued to abuse me, [defendant] began to treat me

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