Lourim v. Swensen

• Decision Date: 08 April 1999
• Citation: 328 Or. 380,977 P.2d 1157
• Parties: Daniel LOURIM, Petitioner on Review, v. John SWENSEN, Defendant, and Cascade Pacific Council, Boy Scouts of America, an Oregon non-profit corporation; and the Boy Scouts of America, a congressionally chartered corporation, authorized to do business in Oregon, Respondents on Review. (CC C95-1000CV; CA A92903; SC S44383)
• Court: Oregon Supreme Court

Page 1157

977 P.2d 1157

328 Or. 380

Daniel LOURIM, Petitioner on Review, v. John SWENSEN, Defendant and Cascade Pacific Council, Boy Scouts of America, an Oregon non-profit corporation; and the Boy Scouts of America, a congressionally chartered corporation, authorized to do business in Oregon, Respondents on Review.

(CC C95-1000CV; CA A92903; SC S44383)

Supreme Court of Oregon.

Argued and Submitted Sept. 10, 1998.

Decided April 8, 1999.

Kelly Clark, Lake Oswego, argued the cause and filed the brief for petitioner on review.

Thomas Christ of Mitchell Lange & Smith, Portland, argued the cause and filed the brief for respondents on review.

David Slader, Portland, argued the cause for amici curiae Oregon Trial Lawyers Association, Oregon Coalition Against Domestic and Sexual Violence, National Alliance of Sexual Assault Coalitions, and National Association of Counsel For Children. With him on the brief was Michael S. Morey.

Before CARSON, Chief Justice, and GILLETTE, VAN HOOMISSEN, DURHAM, and KULONGOSKI, Justices. ^**

GILLETTE, J.

This case arises out of allegations by plaintiff that he was sexually abused by his Boy Scout leader, Swensen, approximately 30 years earlier, when plaintiff was a minor. In 1995, plaintiff brought the present action against Swensen as well as the Cascade Pacific Council and Boy Scouts of America (collectively, the Boy Scouts), claiming that Swensen had sexually abused him from 1965 until 1967. As against the Boy Scouts, the complaint alleges that the Boy Scout organizations are vicariously liable for Swensen's tortious conduct under the doctrine of respondeat superior and that the Boy Scouts are directly liable to plaintiff for negligently failing to have implemented a screening program to prevent child abusers from becoming Boy Scout leaders.

The Boy Scouts moved, under ORCP 21, to dismiss the action on the grounds that both claims are time-barred and that the complaint fails to state ultimate facts sufficient to constitute a tort claim for vicarious liability based on the doctrine of respondeat superior. ¹ The trial court granted the motion as to both claims. Plaintiff appealed.

On appeal, the Court of Appeals affirmed the decision of the trial court. Lourim v. Swensen, 147 Or.App. 425, 936 P.2d 1011 (1997). That court concluded that plaintiff's direct liability negligence claim is time-barred, because the complaint fails to allege conduct "knowingly allowing, permitting or encouraging child abuse" by the Boy Scouts as required by ORS 12.117(1). Id. at 444, 936 P.2d 1011. The court further held that the complaint contains no facts from which it reasonably could be concluded that Lourim's sexual assaults on plaintiff were within the scope of his employment. Id. at 438, 936 P.2d 1011. In light of those holdings, the court did not consider whether the respondeat superior claim also is barred by the applicable statute of limitations. Id.

Plaintiff seeks review of the Court of Appeals' decision only insofar as it affirmed the trial court's order with respect to the dismissal for failure to state a claim based on respondeat superior. For the reasons that follow, we conclude that the allegations contained in the amended complaint pertaining to the claim for vicarious liability against the Boy Scouts based on respondeat superior are sufficient to withstand an ORCP 21 motion to dismiss. We therefore reverse the decision of the Court of Appeals to that extent. We also hold that plaintiff's claim is not, on the record before us, time-barred as a matter of law.

ORCP 18 A requires that a complaint contain "[a] plain and concise statement of the ultimate facts constituting a claim for relief without unnecessary repetition." In determining the sufficiency of plaintiff's complaint, we accept all well-pleaded allegations of the complaint as true and give plaintiff the benefit of all favorable inferences that may be drawn from the facts alleged. Boise Cascade Corp. v. Board of Forestry, 325 Or. 185, 196-97, 935 P.2d 411 (1997). Conclusions of law alone, however, are insufficient. See Zehr v. Haugen, 318 Or. 647, 655-56, 871 P.2d 1006 (1994) (allegations in complaint do not state ultimate facts sufficient to state a claim for breach of warranty despite inclusion of such conclusory terms as "warranty agreement").

The following facts are alleged in the complaint. From 1965 to 1967, Swensen was a volunteer Boy Scout leader, duly authorized by the Boy Scouts to act as such. As part of his volunteer duties with the Boy Scouts, he was directed to fulfill the role of troop leader or assistant troop leader to plaintiff's troop. Plaintiff and his family became close to Swensen, and Swensen was a frequent guest in their home. Swensen gained the trust and confidence of plaintiff's family as a suitable friend, guide, mentor, and role model to plaintiff, then an adolescent. By virtue of that relationship, Swensen gained the support, acquiescence, and permission of plaintiff's family to spend substantial periods of time alone with plaintiff.

Swensen also won the friendship and admiration of plaintiff himself. He was his mentor and role model. Swensen gained the opportunity to socialize with plaintiff and to spend time alone with him and together with other boys in remote places. Swensen also used his position of trust to gain the opportunity to touch plaintiff physically. Eventually, Swensen committed a series of sexual assaults on plaintiff. At the time of those assaults, plaintiff was a minor.

The complaint describes Swensen's performance of his duties as troop leader in developing a trust relationship with plaintiff and his family, together with the eventual sexual assaults, as "[m]anipulations." Plaintiff alleges in the complaint that the manipulations were committed in connection with Swensen's performance of his duties as troop leader:

"The [m]anipulations * * * were committed within the time and space limits of his responsibilities as troop leader, were committed out of a desire, at least initially and partially, to fulfill his duties as troop leader, and were generally actions of a kind and nature which Swensen was required to perform as troop leader."

A complaint is sufficient to state a claim for vicarious liability based on the doctrine of respondeat superior if the allegations that it contains, if true, would establish that the employee's acts were committed within the scope of his or her employment. Stanfield v. Laccoarce, 284 Or. 651, 588 P.2d 1271 (1978). In Chesterman v. Barmon, 305 Or. 439, 442, 753 P.2d 404 (1988), this court set out three requirements that must be met to establish that an employee's conduct was within the scope of employment: (1) the conduct must have occurred substantially within the time and space limits authorized by the employment; (2) the employee must have been motivated, at least partially, by a purpose to serve the employer; and (3) the act must have been of a kind that the employee was hired to perform. Applying that framework in this case, the Court of Appeals held that the complaint failed to state a claim, because

"[t]here simply are no allegations of fact that satisfy all three of the elements of vicarious liability. In particular, there are no facts from which it reasonably could be concluded that Swensen's sexual assaults were acts 'of a kind [an] employee was hired to perform.' "

Lourim, 147 Or.App. at 438, 936 P.2d 1011 (quoting Stanfield, 284 Or. at 655, 588 P.2d 1271).

In Fearing v. Bucher, 328 Or. 367, 977 P.2d 1163 (1999), we addressed whether a complaint against the Archdiocese of Portland in Oregon (Archdiocese) for vicarious liability for a priest's acts of child abuse was sufficient to state a claim. The allegations contained in that complaint were not materially different from those in plaintiff's complaint here. The Court of Appeals in Fearing relied on the same reasoning that it employed in the present case to affirm the trial court's order dismissing the claim. In that case, we held that, in the intentional tort context, it usually is inappropriate for the court to base its decision regarding the adequacy of allegations supporting a claim for vicarious liability based on the doctrine of respondeat superior on whether the intentional tort itself was committed in furtherance of any interest of the employer or involved the kind of activity that the employee was hired to perform. We held that the proper focus rather was whether the complaint contained sufficient allegations of employee conduct that arguably resulted in the acts that led to plaintiff's injury. We concluded that a jury reasonably could infer that the priest's conduct in cultivating a trust relationship with the plaintiff was motivated, at least in part, by a desire to further the interests of the Archdiocese, that that conduct was of a kind that the priest was hired to perform, and that that conduct led to the sexual assaults. Accordingly, we held that the complaint was sufficient to state a claim for vicarious tort liability based on the doctrine of respondeat superior, and we reversed the decision of the Court of Appeals. 328 Or. at 388, 977 P.2d at 1161.

The same is true in the present case. Accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's favor, a jury reasonably could infer that the sexual assaults were merely the culmination of a progressive series of actions that involved the ordinary and authorized duties of a Boy Scout leader. Additionally, a jury could infer that, in cultivating a relationship with plaintiff and his family, Swensen, at least initially, was motivated by a desire to fulfill his duties as troop leader and that, over time, his motives became mixed. A jury also reasonably could infer that Swensen's performance of his duties as troop leader with respect to plaintiff and his family was a necessary precursor to the sexual abuse and that the assaults were a direct outgrowth of and...