Lourim v. Swensen

• Decision Date: 16 April 1997
• Citation: 936 P.2d 1011,147 Or.App. 425
• Parties: Daniel LOURIM, Appellant, 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. C95-1000CV; CA A92903.
• Court: Oregon Court of Appeals

Page 1011

936 P.2d 1011

147 Or.App. 425

Daniel LOURIM, Appellant, 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.

C95-1000CV; CA A92903.

Court of Appeals of Oregon.

Argued and Submitted March 10, 1997.

Decided April 16, 1997.

Kelly Clark argued the cause and filed the briefs, Wilsonville, for appellant.

Thomas Christ argued the cause, Portland, for respondents. With him on the brief were Charles T. Smith, Candace H. Weatherby and Mitchell, Lang & Smith.

Before RIGGS, P.J., and LANDAU and LEESON, JJ.

LANDAU, Judge.

This is an action for damages arising out of allegations that plaintiff's former Boy Scout leader sexually assaulted him when plaintiff was a child, approximately 30 years ago. In 1995, plaintiff sued the Scout leader, John Swensen, as well as the Cascade Pacific Council and the Boy Scouts of America, collectively referred to as the "Boy Scouts." Against Swensen, plaintiff alleged claims of sexual assault and battery. Against the Boy Scouts, he asserted liability on the basis of respondeat superior and negligent retention, training and supervision of Swensen. The Boy Scouts moved for dismissal of both the respondeat superior and negligence claims, arguing that plaintiff's claims were untimely filed and that, in any event, he failed to state a claim. Plaintiff argued that the claims were timely under ORS 12.117, which provides an extended limitation period for "actions based on conduct that constitutes child abuse" and actions for "knowingly allowing, permitting or encouraging child abuse." The trial court held that the extended limitation period described in ORS 12.117 applies only to claims of intentional child abuse, and, because there is no allegation that the Boy Scouts intentionally abused plaintiff, entered judgment under ORCP 67 B dismissing his claims as untimely. Plaintiff appeals, arguing that the trial court erred in concluding that the claims are not subject to ORS 12.117. The Boy Scouts contend that the trial court correctly concluded that the statute does not apply. In the alternative, they contend that dismissal of the respondeat superior claim is warranted, because plaintiff failed to state a claim.

As to the respondeat superior claim, we do not address whether the claim was timely filed, because the Boy Scouts are correct in asserting that plaintiff failed to state a claim because, as a matter of law, the alleged sexual assault did not occur within the scope of Swensen's employment with the Boy Scouts. As to the negligence claim, we conclude that ORS 12.117 is not limited to claims for intentional misconduct but applies more broadly to claims of negligence for "knowingly allowing, permitting or encouraging child abuse"; nevertheless, because plaintiff's complaint lacks allegations that the Boy Scouts knew of Swensen's abuse of plaintiff and allowed, permitted or encouraged the abuse to occur, the trial court did not err in dismissing the negligence claim.

In reviewing the dismissal of a complaint, we look only to the pleadings, assume that all alleged facts are true and draw all necessary inferences in favor of the plaintiff. Allen v. Lawrence, 137 Or.App. 181, 186, 903 P.2d 919 (1995), rev. den 322 Or. 644, 912 P.2d 375 (1996); Dauven v. St. Vincent Hospital, 130 Or.App. 584, 586, 883 P.2d 241 (1994). On September 7, 1995, plaintiff filed his complaint. It was amended subsequently and, as relevant, contains the following allegations:

"4.

"At all relevant times, Swensen was a volunteer Boy Scout leader, duly authorized by the Boy Scouts and the Cascade Pacific Council to act in that capacity, and at all times was acting in the course and scope of his duties.

" * * * * *

"5.

"From 1965 through 1967, while Lourim was a minor, on at least thirty occasions Swensen sexually assaulted Lourim by exposing himself to Lourim, fondling Lourim, having Lourim fondle him, and exposing Lourim to pornography and displays of live sexual activity by Lourim and other boys (hereinafter the 'Assaults').

"6.

"On or about April, 1994, Lourim discovered the causal connection between the Assaults and the damages he suffered as a result of the Assaults * * *.

" * * * * *

"10.

"As part of his volunteer duties with the Boy Scouts and the Cascade Pacific Council, Swensen was directed to fulfill the role of troop leader or assistant troop leader to Lourim's troop.

"11.

"Swensen improperly performed his duties as troop leader for the Boy Scouts and the Cascade Pacific Council, by using and manipulating his fiduciary position, respect and authority as troop leader, in order to:

"A.) Befriend Lourim;

"B.) Befriend Lourim's family;

"C.) Gain the trust and confidence of Lourim's family as a suitable friend, guide, mentor, and role model to Lourim;

"D.) Become a frequent social guest in the Lourim family home;

"E.) Gain the support, acquiescence and permission of Lourim's family for Lourim to spend substantial periods of time alone with Swensen and with Swensen and other boys;

"F.) Become Lourim's friend, guide[,] mentor and role model;

"G.) Gain opportunity to socialize with Lourim and to spend time alone with Lourim in remote places, and to spend time alone [with] Lourim and other boys in remote places;

"H.) Gain opportunity to physically touch Lourim;

"I.) Gain opportunity to commit the Assaults. (The above performance of duties as troop leader, including the Assaults, are hereinafter collectively referred to as the 'Manipulations').

"12.

"The Manipulations were committed in connection with Swensen's duties as troop leader, 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.

" * * * * *

"14.

"The Boy Scouts and the Cascade Pacific Council carried a duty to Lourim, as a minor boy being served by the mission of the Boy Scouts and the Cascade Pacific Council, to exercise reasonable care in the selection, training, assignment, supervision and retention of its volunteer troop leaders, including Swensen, lest minor boys such as Lourim, be sexually molested, abused, and assaulted by troop leaders, including Swensen.

"15.

"The Boy Scouts and the Cascade Pacific Council breached their duty to Lourim, creating an unreasonable risk of foreseeable harm to Lourim, and were negligent in one or more of the following particulars:

"A. In failing to devise, implement and execute an effective process for screening of potential Boy Scout leaders, including Swensen, before selection in order to reject individuals who were not good candidates and might accordingly be an unreasonable risk to engage in inappropriate sexual conduct, including pedophilia.

"B. In failing[ ] to devise, implement and execute an effective process of periodic or random screening of existing Boy Scout leaders, including Swensen, and removal of individuals, including Swensen, who were unfit or who were violating their duties as volunteer troop leaders.

"16.

"As a result of the negligence of the Boy Scouts and the Cascade Pacific Council, Lourim was the victim of the Manipulations and Assaults and suffered the injuries set out in paragraph 6 above.

" * * * * *

"18.

"The negligence of the Boy Scouts and the Cascade Pacific Council as set out in paragraph 14 above constitutes 'conduct knowingly allowing or permitting child abuse' within the meaning of ORS 12.117, and this action is therefore timely under the allegations in paragraph 5 above."

We first examine plaintiff's contention that the trial court erred in dismissing his claim that the Boy Scouts are liable on a theory of respondeat superior. According to plaintiff, ORS 12.117 affords an extended period of limitation for "actions based on conduct that constitutes child abuse," and that this is such an action, for vicarious liability based on Swensen's acts of abuse. The Boy Scouts respond that "actions based on conduct that constitutes child abuse" refers only to claims against the individual who intentionally committed the abuse. Alternatively, the Boy Scouts argue that the trial court appropriately dismissed the claim, because the allegations are inadequate to state a claim for vicarious liability. According to the Boy Scouts, vicarious liability is predicated on the tortious conduct of an employee committed in the scope of employment, and sexual assault is not within a troop leader's employment, as a matter of law. ¹ Plaintiff responds that the question whether an employee's tortious conduct occurred in the scope of employment is a jury question and therefore his complaint cannot be dismissed on the ground that he failed to state a claim. Because we conclude that the Boy Scouts' alternative argument is dispositive, we do not determine whether, in these or other circumstances, ORS 12.117 may apply to a respondeat superior claim.

Respondeat superior--literally, "let the superior reply"--is a legal theory by which an employer is held liable for the tortious conduct of an employee committed in the scope of employment. ² The employer's liability turns on the ascertainment of whether the employee's act was committed "in the scope of employment." That term, however, varies in meaning according to the underlying policies that the courts conclude provide the foundation for the rule. ³ Historically, the rule has roots in the law of agency and implied authority, but its more recent applications extend beyond such considerations to a more explicitly policy-oriented matter of fairness and risk allocation. Prosser and Keeton explain it in the following terms:

"It refers to those acts which are so closely connected with what the servant...