T.R. v. Boy Scouts of America

• Decision Date: 19 April 2006
• Docket Number: 0206-05750; A125742.
• Citation: 133 P.3d 353,205 Or. App. 135
• Parties: T.R., Respondent-Cross-Appellant, v. The BOY SCOUTS OF AMERICA, a congressionally chartered corporation, authorized to do business in Oregon; Cascade Pacific Council, Boy Scouts of America, an Oregon non-profit corporation; and James Donald Tannehill, Defendants, and City of the Dalles, a political subdivision of the State of Oregon, Appellant-Cross-Respondent.
• Court: Oregon Court of Appeals

133 P.3d 353

205 Or. App. 135

T.R., Respondent-Cross-Appellant, v. The BOY SCOUTS OF AMERICA, a congressionally chartered corporation, authorized to do business in Oregon; Cascade Pacific Council, Boy Scouts of America, an Oregon non-profit corporation; and James Donald Tannehill, Defendants, and City of the Dalles, a political subdivision of the State of Oregon, Appellant-Cross-Respondent.

0206-05750; A125742.

Court of Appeals of Oregon.

Argued and Submitted November 22, 2005.

Decided April 19, 2006.

Robert E. Franz, Jr., Springfield, argued the cause for appellant-cross-respondent. On the briefs were Jason M. Montgomery, Springfield, and Law Office of Robert E. Franz, Jr.

Jonathan A. Clark argued the cause for respondent-cross-appellant. With him on the briefs were Kelly Clark, Portland, and O'Donnell & Clark LLP.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and DEITS, Judge pro tempore.

SCHUMAN, J.

The City of The Dalles appeals from a judgment awarding plaintiff $81,260.00 in damages on a claim under the federal civil rights law, 42 USC section 1983, and from a supplemental judgment awarding plaintiff $261,701.92 in costs and attorney fees. The claim was based on allegations that the city was responsible for an employee's sexual abuse of plaintiff. The city assigns error to, among other things, the trial court's denial of its motion for a directed verdict, contending that, as a matter of law, plaintiff did not file his claim within two years of its accrual and therefore did not meet the applicable statute of limitations. Because we agree with that threshold argument, we reverse the judgment against the city and vacate the supplemental judgment, without reaching the city's other arguments or plaintiff's cross-appeal.¹

In reviewing the denial of a motion for a directed verdict, we view the facts and all reasonable inferences drawn from them in the light most favorable to the nonmoving party—here, plaintiff. Rathgeber v. James Hemenway, Inc., 335 Or. 404, 411, 69 P.3d 710 (2003). Under that standard, the relevant facts are as follows.

The city, in cooperation with the Boy Scouts of America, operated an Explorer program designed to introduce young adults to police work. Plaintiff joined the program in 1995, when he was 16, at the urging of the program's advisor, Officer Tannehill of The Dalles Police Department. In the ensuing months, plaintiff and Tannehill began spending time together. They saw each other while Tannehill was both on and off duty, including on occasions that were not part of the Explorer program. Plaintiff began to visit Tannehill at his home, and Tannehill began regularly providing plaintiff with alcohol. He also began to make inappropriate comments about plaintiff's physical qualities. Ultimately, between January and March 1996, Tannehill and plaintiff engaged in sexual activity on numerous occasions, usually without plaintiff's consent and sometimes under compulsion by Tannehill. Plaintiff inquired of two other officers employed by the city, officers Kirk and Nelson, regarding Tannehill's sexual orientation, but, beyond those limited inquiries, plaintiff did not report Tannehill's abuse because, in plaintiff's words, he was "scared more than anything."

Five years later, in October 2001, plaintiff became aware that Kirk was under investigation for serving alcohol to a minor. Plaintiff contacted the state police to provide information regarding Kirk, and, during his interviews, he also provided information about Tannehill, apparently including information about being sexually abused himself. Shortly thereafter, in October or November 2001, plaintiff was called to testify at a grand jury proceeding regarding the allegations against Tannehill. Plaintiff was not permitted to listen to the testimony of other witnesses, nor was he able to talk about the substance of the proceeding with other people there. However, his observation of the other officers who were called to testify suggested to him that "[e]verybody knew" that "Jim [Tannehill] likes boys, Jim's a queer * * *."

Plaintiff filed his initial complaint in June 2002. It included a common-law negligence claim against the city and a section 1983 claim against Tannehill.² The section 1983 claim against the city first appeared in plaintiff's first amended complaint, filed in July 2003; that claim was later amended in April 2004, alleging that, by ignoring reports of Tannehill's abusive tendencies and by failing properly to train its officers, the city deprived plaintiff of his civil rights. The city moved for summary judgment, arguing that the section 1983 claim against it was barred by the statute of limitations. The court denied the motion. Subsequently, at the close of the evidence, the city moved for a directed verdict, renewing its statute of limitations defense. The court again denied the motion on the ground that a fact question existed as to whether plaintiff timely filed his claim. Ultimately, the jury returned a verdict in favor of plaintiff.

On appeal, the city assigns error to the court's denial of its motion for a directed verdict on the issue of the statute of limitations and to its rulings on a number of substantive issues; plaintiff, in turn, cross-appeals from an evidentiary ruling and a ruling that limited the measure of damages. See 205 Or.App. at 137 n. 1, 133 P.3d at 354. As noted, we conclude that plaintiff's action was barred by the statute of limitations, and we therefore do not reach the city's other assignments of error or plaintiff's cross-appeal.

Because section 1983 does not contain a statute of limitations, we apply the state's statute of limitations for personal injury claims. 42 USC § 1988(a) (gaps in federal civil rights acts should be filled by state law); Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (specifying that federal courts borrow state personal injury statutes of limitations); Plumeau v. School District # 40 County of Yamhill, 130 F.3d 432, 438 (9th Cir.1997) (same). Oregon's statute of limitations for torts is two years.³ ORS 12.110(1). In order to determine the date upon which the statute of limitations begins to run, that is, the date that a plaintiff's claim accrues, federal interpretations of accrual are controlling. Johnson v. State of California, 207 F.3d 650, 653 (9th Cir.2000). Under federal law, a claim accrues, not when the injury actually occurs, but "when the plaintiff knows, or should know, of the injury which is the basis of the cause of action." Id.

According to the city, plaintiff's claim accrued (and the statute of limitations therefore began to run) in March 1996, when plaintiff knew that he was injured and he knew the injury resulted from being sexually abused by Tannehill while Tannehill was on duty as a city employee. Plaintiff contends that his claim did not accrue until he also knew that the city, at least potentially, caused his injury, and that he did not acquire that knowledge until the grand jury proceeding in October or November 2001. Because plaintiff began his action against the city in June 2002, his claim was timely under his theory and barred under the city's.

Although the United States Supreme Court has not addressed the issue of accrual dates in the specific context of section 1983 claims, it has addressed the general issues of tort claim accrual and discovery on at least two occasions. In United States v. Kubrick, 444 U.S. 111, 113-14, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the plaintiff was treated at a hospital with an antibiotic and later experienced a hearing loss which he attributed to that treatment. To avoid a statute of limitations defense, the plaintiff argued that his claim against the hospital did not accrue until he learned of "the existence and the cause of his injury" and also "that the acts inflicting the injury may constitute medical malpractice." Id. at 113, 100 S.Ct. 352. The district court and court of appeals agreed with the plaintiff, but the Supreme Court reversed, describing the negative policy implications inherent in the plaintiff's position: "[T]he plaintiff in such cases [would not need to] initiate a prompt inquiry and would be free to sue at any time within two years from the time he receives or perhaps forms for himself a reasonable opinion that he has been wronged." Id. at 118, 100 S.Ct. 352. The Court adopted a rule under which the limitations period begins when a plaintiff knows that he or she has been injured and knows or should know the cause of the injury; at that point, a plaintiff

"can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government."

Id. at 123, 100 S.Ct. 352. Commenting on Kubrick in a later case, Rotella v. Wood, 528 U.S. 549, 555, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000), the Court held that the "traditional federal accrual rule" is the "injury discovery" rule, under which "discovery of the injury, not discovery of the other elements of a claim, is what starts the clock." (Emphasis added.)

What the Court in Kubrick and Rotella did not clearly state is whether a plaintiff who knows the fact of the injury and its physical cause, but does not know who is actually responsible for its infliction, has sufficient knowledge to trigger the obligation of further inquiry so as to begin the limitations period. However, the identity of the tortfeasor is obviously an element of the claim, and it is clear that Kubrick and Rotella hold that the period begins when a plaintiff has information that would cause a reasonable person to seek the medical or legal advice that would inform him or her that he or she has a potential claim. The implication of the Supreme Court cases, then, is that the claim can accrue before the plaintiff actually...