Skille v. Martinez

• Decision Date: 11 October 2017
• Docket Number: A159729
• Citation: 288 Or.App. 207,406 P.3d 126
• Parties: Kia SKILLE, Plaintiff-Appellant, v. Tony Rey MARTINEZ, in his individual capacity, Defendant, and Oregon State Hospital, a State agency; and Department of Human Services, a State agency, Defendants-Respondents.
• Court: Oregon Court of Appeals

288 Or.App. 207

406 P.3d 126

Kia SKILLE, Plaintiff-Appellant,

v. Tony Rey MARTINEZ, in his individual capacity, Defendant,andOregon State Hospital, a State agency; and Department of Human Services, a State agency, Defendants-Respondents.

A159729

Court of Appeals of Oregon.

Argued and submitted May 17, 2016.

October 11, 2017

Kevin T. Lafky, Salem, argued the cause for appellant. With him on the briefs were Daemie M. Kim and Lafky & Lafky.

Peenesh Shah, Assistant Attorney General, argued the cause for respondents. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

Before DeVore, Presiding Judge, and Garrett, Judge, and Wollheim, Senior Judge.^*

GARRETT, J.

Plaintiff brought this action against the Department of Human Services (DHS), the Oregon State Hospital (OSH), and Martinez, an OSH employee, alleging that Martinez sexually assaulted her by means of using his custodial position to "groom" her and exploit her mental illness and vulnerability to obtain sexual favors while she was under the jurisdiction of the Psychiatric Security Review Board (PSRB) and a resident at OSH. Plaintiff asserted tort claims for assault and battery against DHS and OSH, along with substantive due process and cruel and unusual punishment claims, under 42 USC § 1983, against Martinez. The alleged tortious conduct occurred during a three-year period, which ended in 2013. Plaintiff, however, did not bring her action against defendants until July 2014, shortly after she learned that Martinez had been accused of abusing other patients in the course of his custodial duties.

The state defendants moved to dismiss under ORCP 21 A(8) (providing for dismissal for "failure to state ultimate facts sufficient to constitute a claim") on the basis that plaintiff failed to allege facts sufficient to toll the statute of limitations provided by the Oregon Tort Claims Act (OTCA), ORS 30.275. The trial court agreed with the state and, by limited judgment, dismissed the tort claims against DHS and OSH with prejudice, concluding that plaintiff's notice was untimely because it was given more than 180 days after plaintiff knew or should have known of the alleged tortious conduct. For the reasons explained below, we conclude that the trial court erred in concluding that a reasonable trier of fact could not find that the sexual contact between plaintiff, a resident of OSH, and Martinez, an OSH employee in a position of authority over plaintiff, was offensive for purposes of assault and battery, and could not further find that plaintiff was unaware of the offensive nature of that contact until she learned other facts related to Martinez's conduct toward other patients. Accordingly, we reverse and remand the trial court's judgment of dismissal.

Because this appeal arises from the trial court's grant of the state defendants' motion to dismiss under ORCP 21 A(8), "we assume that all well-pleaded facts" in plaintiff's second amended complaint "are true and give plaintiff the benefit of all favorable inferences that reasonably may be drawn from those factual allegations." Piazza v. Kellim , 360 Or. 58, 61, 377 P.3d 492 (2016). Further, to state a claim under ORCP 21 A(8), "a complaint must contain factual allegations that, if proved, establish the right to the relief sought." Moser v. Mark , 223 Or. App. 52, 57, 195 P.3d 424 (2008). We review the trial court's grant of the motion to dismiss for failure to state a claim for legal error. Bundy v. NuStar GP, LLC , 277 Or. App. 785, 792-93, 373 P.3d 1141 (2016).

Plaintiff brought this action in July 2014. Alleging that Martinez was acting within the course and scope of his employment, plaintiff asserted claims against DHS and OSH for assault and battery based on Martinez's "harmful and offensive contact." In her second amended complaint, plaintiff alleged that, in 2004, plaintiff was found guilty except for insanity of felony assault with a firearm based on mental disease or defect. In the criminal trial court, it was determined that plaintiff had experienced a psychotic break, and the court placed her under the jurisdiction of the PSRB for a period of 20 years. While under the jurisdiction of the PSRB and during the time of defendants' alleged tortious conduct, plaintiff was "medicated with a high dose of a selective serotonin and norepinephrine reuptake inhibitor and an antipsychotic medication," and she received Social Security disability benefits in part because her mental impairment prevented her from working. During the time plaintiff had contact with Martinez, plaintiff was "mentally ill, vulnerable, [and] confused."

Over the course of several months in 2010, plaintiff, who was residing at OSH, had several encounters with Martinez, who was a "Security Transport" employee at the hospital. The first encounter, which plaintiff characterized as "professional," involved Martinez transporting plaintiff to and from an interview at Cascadia Behavioral Health in Portland. In the next encounter, which involved another transport to and from Cascadia, Martinez took plaintiff to a restaurant, told her that he wanted her to "trust" him, and left his "keys, wallet and cell phone with her at the table" while he used the restroom. After the visit to Cascadia, Martinez asked plaintiff for her cell phone number, kissed her in the car, and told plaintiff that she "seemed normal and did not seem to be a mental patient. Plaintiff was confused by Martinez'[s] interaction with her."

Plaintiff and Martinez exchanged phone calls and text messages while she resided at OSH. There were also additional physical encounters, with escalating sexual contact. On one occasion, Martinez visited plaintiff's cottage at OSH; when she agreed to his request to see her room, he partially closed the door and kissed her. In the course of another transport to Cascadia, Martinez "kissed Plaintiff in the car, touched her breasts, [and] touched between her legs and over her pants." While plaintiff was at Cascadia, Martinez went to a store and purchased gifts for plaintiff and her son. After plaintiff's appointment, Martinez gave her the gifts, and, on the way back to OSH, he asked plaintiff to perform oral sex on him, which she did.

During this time, Martinez repeatedly told plaintiff that he wanted her to "trust" him, and he led her to believe that the two were in a romantic relationship, and that plaintiff was "desirable and normal." In November 2010, plaintiff moved to Cascadia on a conditional release. Martinez transported her there; on the way, they stopped at a park, walked around, held hands, and kissed. Martinez said that he wanted the "relationship to continue." He later sent text messages to plaintiff saying that he loved her and intended to leave his wife.

Plaintiff ceased contact with Martinez shortly after she arrived at Cascadia. She saw him at one point when he transported another patient there. Martinez said that he missed her and asked why she had stopped contacting him.

Plaintiff returned to OSH from June 2012 through November 2013. During that period, plaintiff and Martinez had additional contacts, some of them sexual in nature. Martinez told plaintiff that he manipulated the OSH transportation schedule to ensure that he would be able to transport her on trips alone.

The last contact occurred in May 2013. During a transport to an interview, Martinez kissed plaintiff and asked for oral sex. Plaintiff expressed reluctance and a feeling of pressure, but said she would perform oral sex on the way back to OSH after the interview, which she did. Although that was the last contact between the two, plaintiff continued to believe that Martinez "cared for her and that she was ‘special’ as he had repeatedly told her that since 2010."

Additionally, plaintiff alleged that, since 2010, Martinez had engaged in a "grooming process" that involved

"befriending Plaintiff and then gaining her trust, admiration, love, and respect by taking her on outings, calling her, texting her, giving her money, buying presents for her and her children, telling her she was special, and that she was normal. Martinez used his grooming process, the ability to manipulate his schedule to have alone time with Plaintiff, and his position of power as her driver to engage in a sexually intimate relationship and to lead Plaintiff to believe they were involved in a romantic relationship so that Plaintiff would not realize that the sexual touching was offensive."

Although the contact between plaintiff and Martinez ceased in May 2013, plaintiff alleged that she did not learn about its offensive nature until approximately one year later, in May 2014:

"Plaintiff discovered that the sexual and intimate contact she had with Martinez was inappropriate and harmful to her in May 2014, when she learned that Martinez was going to be prosecuted for his crimes and that there were other women he had been involved with. Plaintiff realized that they were never in a relationship, Martinez lied to her, and that he had harmed her through their sexual and intimate acts. Plaintiff realized that Martinez had abused his custodial position to sexually abuse her and to lead her to believe his conduct was acceptable. As a result of Martinez's actions * * *, combined with Plaintiff's mental health, she did not comprehend the abusive nature of Martinez's touching at the time the touching occurred."

The state defendants moved to dismiss on the ground that the last alleged tortious conduct occurred in May 2013, and plaintiff's OTCA notice was given more than 180 days later. In response, plaintiff argued that the OTCA notice period was tolled until the date that she discovered her injury, which was May 2014. The trial court dismissed the original complaint and the first amended complaint without prejudice and, by limited judgment, dismissed plaintiff's second amended complaint with prejudice.

The trial court agreed with the state that plaintiff knew or should have known of the...