Shin v. Sunriver Preparatory School, Inc.

• Decision Date: 27 April 2005
• Citation: 199 Or. App. 352,111 P.3d 762
• Parties: Ah Young SHIN, Respondent, v. SUNRIVER PREPARATORY SCHOOL, INC., a non-profit corporation, Appellant. Sunriver Preparatory School, Inc., a non-profit corporation, Third-Party Plaintiff, v. Dong Eun Shin, Third-Party Defendant.
• Court: Oregon Court of Appeals

111 P.3d 762

199 Or. App. 352

Ah Young SHIN, Respondent, v.SUNRIVER PREPARATORY SCHOOL, INC., a non-profit corporation, Appellant.

Sunriver Preparatory School, Inc., a non-profit corporation, Third-Party Plaintiff, v.Dong Eun Shin, Third-Party Defendant.

99CV0417MA; A114805.

Court of Appeals of Oregon.

Argued and Submitted December 15, 2003.

Decided April 27, 2005.

R. Daniel Lindahl, Portland, argued the cause for appellant.With him on the briefs was Bullivant Houser Bailey PC.

Jeffrey M. Batchelor, Portland, argued the cause for respondent.With him on the brief were Jennifer H. Holcomb and Markowitz, Herbold, Glade & Mehlhaf, PC, and William A. Barton, Kevin K. Strever and Barton & Strever, P.C., Newport.

Before HASELTON, Presiding Judge, and LINDER and ORTEGA, Judges.

ORTEGA, J.

This case arises out of plaintiff's attendance at and eventual expulsion from defendant Sunriver Preparatory School (Sunriver Prep) when she was 17 years old.Plaintiff sued the school on various tort theories and prevailed after a jury trial.Sunriver Prep now appeals, asserting that the trial court erred (1) in denying the school a directed verdict on plaintiff's claim for negligent infliction of emotional distress; (2) in refusing to instruct the jury to compare the school's negligence with the fault of a third-party defendant intentional tortfeasor (plaintiff's father, Dong Eun Shin(Shin), who raped her while she was in the school's care); and (3) in concluding that plaintiff had a private right of action for the school's failure to report sex abuse under ORS 419B.010(1).We affirm as to the first two assignments of error; the parties agree that this disposition eliminates the need to address Sunriver Prep's third assignment.

Because this case involves review of the denial of directed verdict motions, we consider the facts in the light most favorable to plaintiff, who prevailed before the jury.SeeSeidel v. Time Ins. Co.,157 Or.App. 556, 561, 970 P.2d 255(1998).

Plaintiff was born and raised in Korea.In 1996, as a high school sophomore, plaintiff enrolled at Sunriver Prep, a private boarding school that enrolls about 140 students.A small number of those, including plaintiff, came from abroad as part of the school's international program.Most of the international students stayed at the school's International House, described in the parent-student handbook as a "dormitory-style home supervised by [the school's] faculty/parents."Other housing options, such as homestays, were "available at the school's discretion."

On her enrollment, plaintiff moved into the International House, where she and other resident students lived under a contract that provided that they were subject to their hosts' supervision "24 hours a day, 7 days a week."She was also subject to an enrollment contract that provided:

"The undersigned, on behalf of themselves and the above student, agree to accept the rules and regulations adopted by [Sunriver Prep].[Sunriver Prep] reserves the right to discipline, suspend or dismiss any student whose behavior, performance, or progress, in the judgment of [Sunriver Prep], is deemed unsatisfactory or whose influence does not serve the best interests of [Sunriver Prep].[Sunriver Prep] also reserves the right to dismiss any student whose parents' influence does not serve the best interests of [Sunriver Prep]."

In the middle of her junior year, with the approval of Patricia King, the head of the school, plaintiff and a German student moved into the home of Kim Wheeler, a part-time physics teacher at the school.Wheeler was given a copy of a "Homestay Agreement and Policy"(the homestay agreement), which purported to outline the "fundamental expectations and obligations" of the arrangement "in accordance with school policy and philosophy."After plaintiff moved in with the Wheelers, King gave the Wheelers a homestay orientation to explain what the school expected of homestay parents, including the areas covered by the agreement.King noted that plaintiff, who owned her own car, had been excepted from one rule against homestay students driving, but otherwise Wheeler understood that these were guidelines that the school expected would be followed.Wheeler, plaintiff, and her father later signed the homestay agreement.

The agreement covered virtually every aspect of plaintiff's life.For example, it provided that she could not leave campus during school hours without permission from her homestay parent and could attend only social activities that were supervised by an adult approved by the homestay parent.Plaintiff's homestay parent was required to know her whereabouts "at all times."Other details of plaintiff's day-to-day life were covered as well, including the hours in which homework was to be completed, strict curfew hours, restrictions against dating, and strict limits on when she could talk on the telephone and for how long.The homestay agreement also provided rules for resolving conflicts, calling for the parents' involvement only as a last resort, and required plaintiff's host family and her parents to agree to "work with school personnel to solve any issues having to do with the student's happiness and performance in the host family's home or at school."Likewise, if plaintiff required medical care, her homestay parents were authorized to secure it and to inform her parents later.Not surprisingly, Wheeler described herself as plaintiff's "mom."

Shortly after plaintiff moved into her home, Wheeler noticed that plaintiff seemed depressed and took her to visit a family practitioner, Dr. Mary Meador.Plaintiff said nothing to indicate that she had suffered physical or sexual abuse but, according to Meador, was tearful and anxious, was having trouble sleeping, and was suffering from panic attacks.Meador prescribed a tranquilizer and an antidepressant to address those symptoms of acute depression.

Over the next two months, Wheeler noticed that plaintiff's depression seemed to deepen.Her parents were divorced, and plaintiff talked on the phone with her mother in Korea almost nightly.Afterward, she was often tearful and would comment on how much she missed her mother.After plaintiff talked to her father, Shin, however, she became upset, told Wheeler that she hated him, and withdrew.Wheeler sought insight from plaintiff's best friend, Jessica, about the behavior, and Jessica reported that there was "something going on" but would not be more specific.

Concerned, Wheeler engaged plaintiff in an evening of conversation, and plaintiff eventually disclosed that Shin had repeatedly beaten her, her brother, and her mother and had sexually abused plaintiff continually, beginning when she was four years old.Plaintiff feared that if any of this came out her mother's life would be in danger and conveyed to Wheeler that things were "very different" in Korea.Shin had legal custody of plaintiff at the time.

Wheeler knew that she must report to the authorities what she had learned—and she also knew that Shin shortly planned to visit Bend to take plaintiff on a 10-day business trip.Because King, the head of the school, was out of town, Wheeler called Dr. Carol Frost Lee(Lee), a physician who taught part time at the school and shared an interest in plaintiff.Lee counseled Wheeler to calm down and wait until morning before doing anything.

The next day, March 16, Wheeler again took plaintiff to see Meador, whom plaintiff had seen previously for depression.Meador observed that plaintiff had suicidal thoughts, but "no plan or intent * * * to carry that out."Plaintiff disclosed the long history of sexual abuse by her father, and Meador felt that Shin's upcoming business trip to the United States had exacerbated plaintiff's depression.At Wheeler's request, Meador agreed to prepare a letter to Shin, hoping to dissuade him from visiting plaintiff by informing him that she was too ill to travel.

That same day, Wheeler reported the abuse to the State Office for Services to Children and Families (SOSCF).Personnel there referred her to the KIDS Center, a division of the Deschutes County Mental Health Department that provides counseling and treatment in cases of child abuse and neglect.KIDS personnel told Wheeler to make an appointment for plaintiff to be evaluated and to call State Police Detective Lynn Fredrickson.

Plaintiff did not want to be counseled at KIDS.She was so frightened of the consequences of exposing her father that she told Wheeler she would just go on the trip with him so that she could stay in the United States.Wheeler managed to convince plaintiff to meet with KIDS therapist C.J. Anderson privately on March 18.Anderson later reported that plaintiff was having suicidal thoughts and felt that when Shin came, she would be "absolutely at his mercy."Still, according to Anderson, plaintiff was conflicted about her disclosure of sexual abuse and, when Anderson mentioned that the police would be notified, plaintiff refused to continue with the interview, though plaintiff later resumed contact with Anderson.

When King returned from her trip on March 18, Wheeler told her about plaintiff's situation and reported that she had called SOSCF.Wheeler felt that King showed no concern for plaintiff at all; she told Wheeler that she should not have gone to the authorities because plaintiff might have been lying.Worried that Shin would sue the school, King instructed Wheeler not to speak with anyone else, inside or outside the school, and was "irate" when Wheeler told her that she already had an appointment to meet with Detective Fredrickson.

Wheeler met with Fredrickson the following day, March 19.However, Fredrickson could not act without a statement from plaintiff, who was too frightened to talk.Fredrickson told Wheeler that if Meador's letter did not deter Shin from visiting, Wheeler should call Fredrickson, and he would find "some way" to intercede, even if it meant putting plaintiff into...