Kraemer v. Harding

• Jurisdiction: Oregon
• Parties: , 134 Ed. Law Rep. 619 James M. KRAEMER, Respondent, v. Jeffrey M. HARDING, Patricia A. Harding, John Lundberg and Janet Lundberg, Appellants. (941891; CA A97884)
• Citation: 976 P.2d 1160,159 Or.App. 90
• Court: Oregon Court of Appeals
• Decision Date: 17 March 1999

Page 1160

976 P.2d 1160

159 Or.App. 90, 134 Ed. Law Rep. 619

James M. KRAEMER, Respondent, v. Jeffrey M. HARDING, Patricia A. Harding, John Lundberg and Janet Lundberg, Appellants.

(941891; CA A97884)

Court of Appeals of Oregon.

Argued and Submitted Oct. 22, 1998.

Decided March 17, 1999.

Kim E. Hoyt, Salem, argued the cause for appellants. With her on the briefs were Ferder, Brandt, Casebeer, Cooper, Hoyt & French, LLP.

Edward J. Harri, Salem, argued the cause for respondent. With him on the brief was James C. Egan, and Emmons, Kropp, Kryger, Alexander, Egan & Elmer, P.C., Albany.

Before EDMONDS, Presiding Judge, and ARMSTRONG, Judge, and WARREN, Senior Judge.

EDMONDS, P.J.

Defendants appeal from a judgment in favor of plaintiff on his claims for defamation, intentional interference with economic relations and intentional infliction of emotional distress. They assign error to the trial court's denial of their motion for a directed verdict on each claim, its submission of the punitive damages issue to the jury, its instructions to the jury on that issue and its failure to reduce the punitive damage award. We affirm.

We state the evidence introduced at trial in the light most favorable to plaintiff. See Brown v. J.C. Penney Co., 297 Or. 695, 705, 688 P.2d 811 (1984). During the 1992-93 school year, plaintiff was employed by the Lebanon school district as a bus driver on the route that served defendants' children. Defendants Janet Lundberg (Mrs. Lundberg), Jonathan Lundberg (Mr. Lundberg), and Patricia Harding (Dr. Harding) testified that their children complained about plaintiff almost every day. Mrs. Lundberg spoke with other mothers who had children on plaintiff's route and learned that their children had similar complaints. According to Mrs. Lundberg, she learned that plaintiff had kept another mother's fifth-grade daughter on the bus after it had arrived at the grade school "to say hi" or "to get to know her better." Plaintiff testified that, between November 1992 and February 1993, a disagreement arose between him and Mr. and Mrs. Lundberg regarding where one of the Lundberg children could be picked up if he missed the bus at his designated stop. Dr. Harding testified that her "oldest son * * * had trouble [with plaintiff] about every two weeks." At some point, Mrs. Lundberg also shared with Dr. Harding the information about the fifth-grade girl. Dr. Harding testified that she believed that it was "our civic duty to go down and tell the school the things we had heard." Mr. and Mrs. Lundberg testified that they knew that plaintiff had an economic relationship with the school district but that it did not matter to them whether he was terminated from his job if that was what was required to remove him from the bus route. Jeffrey Harding (Mr. Harding) also testified that he knew that plaintiff was an employee of the district and that "[i]t was not [his] concern how [plaintiff] was taken off the route."

Initially, defendants shared their concerns about plaintiff at a meeting on February 8, 1993, with plaintiff, Gerald McVein, the district's Director of Transportation at that time, and Stephen Williams, the district's Director of Personnel and Curriculum at that time. Retha Larson, plaintiff's union representative, also attended. Dr. Harding testified that, at the meeting, she disclosed the "report that [Mrs. Lundberg] had told [her] of a little girl that [plaintiff] had kept * * * after the bus had stopped at Green Acres and he made her stay on the bus[;] it was the report that he wanted to get to know her." McVein testified that he took that statement seriously. On redirect examination, he indicated "that [Dr. Harding's statement] implied that [plaintiff] was having inappropriate contact with young girls" and that "it could be sexual." Williams also inferred that Dr. Harding had alleged "that perhaps [plaintiff] was doing this for reasons that would not be appropriate, for reasons perhaps to get to know this child, so [as] maybe to perpetrate something later" such as "something sexual, violence." Larson testified that, at the end of that meeting, defendants appeared frustrated and indicated "that they had hearsay [regarding the report], but didn't really have any warrant * * * for knowing whether [it was] fact or not." After the meeting, Williams undertook to investigate the information that he had been given at the meeting. He contacted the mother of the fifth-grade girl, but he did not remove plaintiff from the route as a result of his investigation.

On June 3, 1993, Mr. Harding filed a written complaint about plaintiff with the district. The complaint stated:

"The bus driver serving the route that includes Griggs Drive, taking children to Green Acres and LMS shows very poor judgment. His petty tyranny makes it very difficult for my son * * * to ride the bus. He threatens to 'write up' children for the least of infractions, and seems unable to maintain disciplin [e] on the bus without such measures as requiring siblings to sit together, particular rules about foot placement and posture, and many others I am not familiar with.

"His job is to drive the children to and from school. Other drivers seem to be able to do it without such intense involvement with particulars of the children's behavior, yet this driver does not seem to be able to. Our route is a particularly long one, requiring more than an hour. Surely a driver could be found who would not make the trip such an ordeal."

Mr. Harding requested that plaintiff not "drive the bus serving [Mr. Harding's] children." Approximately a week later, a letter was filed regarding an incident where one of Dr. and Mr. Harding's sons had left the bus in frustration far from his home. McVein investigated and concluded, in part, that plaintiff had "not violated State or District policies regarding his actions with students." Subsequently, Dr. Harding responded to McVein's conclusion in a letter to McVein:

"I want it made clear that if [plaintiff] drives my children[']s bus in the fall I will not wait 6 months to 'see what happens.' I will actively get parental complaints, hold group meetings, etc, until the situation is remedied, [i.e., plaintiff] is off our route. I will not subject my children to this belittling subjugation [and] threats for another year."

On September 13, 1993, Mr. Harding resubmitted the written complaint to the district superintendent, Ivan Launstein. Apparently on the same day, Dr. Harding wrote a note to district officials. ¹ The note stated, in its entirety: "Please have [our daughter] get off with the Lundberg children on the days that one of her brothers cannot accompany her home." Launstein investigated and prepared a written report of his findings. The report names Mr. Harding as the complainant and includes allegations that plaintiff had "held a female student on the bus at Green Acres School after the other students had exited, to get to know her," that "the mother of [that] student * * * is reported to be concerned each morning that [plaintiff] will just drive off with her children" and that plaintiff had "pushed a female student up against the wall." Launstein concluded after investigating the complaint that there was "no proof or indication that [plaintiff had] done anything inappropriate with any students (boys or girls)." Plaintiff remained on the route. Mr. Harding then requested a meeting with the school board about the matter.

In October 1993, the school board considered Mr. Harding's written complaint during an executive session. Dr. and Mr. Harding, plaintiff, Larson, Williams, Launstein and the school board members attended. Williams testified at trial that Dr. Harding "indicated [at the meeting] that there were two girls that, little girls that she said [plaintiff] accosted last year and that he had sat with one, must have talked with her I assume, but she did indicate that he didn't touch her." ²

Launstein initially testified that he could not recall that Dr. Harding said anything at the meeting from which he inferred that her complaint against plaintiff was one involving sexual abuse. However, on recross-examination, the following exchange took place regarding Launstein's investigation:

"Q. Nevertheless, you completed an investigation to ensure [plaintiff] was not a predator, correct?

"A. Correct.

"Q. That was based on the allegations made by Dr. and Mr. Harding?

"A. By the question raised by Dr. and Mr. Harding.

"Q. And if somebody told you that a bus driver was accosting little girls on the school bus, what conclusion would you draw from that accusation?

"A. Well first I would conclude that I had better immediately check into it and find out what in fact is happening.

"Q. And in fact if there was any substantial evidence * * * to indicate that that was taking place, you'd turn it into [Children's Services Division] in a heartbeat wouldn't you?

"A. Yes, I would."

Dr. Harding's testimony on direct examination regarding the October school board meeting was as follows:

"Q. And at the October 11th board meeting, what did you say to the school board?

"A. * * * And at the very end of it, the very end I also said, 'And then there are these two girls incidents,' and I told them exactly what I knew, nothing more.

"Q. Did you use the word 'accosted?'

"A. I might have, but I explained the whole situation afterwards so I didn't stand up and say, 'He accosted them,' and sat down and quit talking, I explained what I meant by 'accosted.' I would have said there was one little girl who when the bus stopped at Green Acres that the rest of the kids got off and she was made to stay with the idea that he wanted to get to know her and there was another little girl that he sat down with and made her feel uncomfortable * * * to the point where she felt like she was wedged up against the window, and that's what I said. If I said 'accosted,' I explained what I meant.

"Q. And did you explain how that...