T.R. v. Boy Scouts of America

• Decision Date: 13 March 2008
• Docket Number: CA A125742.,SC S054071.,CC 0206-05750.
• Citation: 344 Or. 282,181 P.3d 758
• Parties: T.R., Petitioner on Review, 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, Respondent on Review.
• Court: Oregon Supreme Court

181 P.3d 758

344 Or. 282

T.R., Petitioner on Review, 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, Respondent on Review.

CC 0206-05750.

CA A125742.

SC S054071.

Supreme Court of Oregon, En Banc.

Argued and Submitted June 19, 2007.

Decided March 13, 2008.

On review from the Court of Appeals.^*

Kelly Clark, O'Donnell & Clark, LLP, Portland, argued the cause for petitioner on review. With him on the briefs were Kristian Roggendorf and Jonathan Clark.

Robert E. Franz, Jr., Law Offices of Robert E. Franz, Jr., Springfield, argued the case for respondent on review. With him on the briefs was Jason M. Montgomery.

Christina M. Hutchins, Assistant Attorney General, Salem, submitted a brief on behalf of amicus curiae State of Oregon.

WALTERS, J.

Under 42 U.S.C. section 1983, plaintiff brought a claim against defendant City of The Dalles¹ (city). Plaintiff asserted that the city's deliberate indifference to his right under the Fourteenth Amendment to the United States Constitution to be free from sexual abuse by a governmental actor constituted a city policy that caused him to be subjected to sexual abuse by a city police officer. The question before us is whether there was evidence from which a reasonable jury could have found, as the jury in this case did, that plaintiff timely filed his Section 1983 claim. The city contends that plaintiff's Section 1983 claim against the city necessarily accrued in 1996, when the officer, Sergeant James Tannehill, committed the acts of sexual abuse, and that plaintiff did not file his claim within the requisite time thereafter. Plaintiff contends that his Section 1983 claim against the city did not accrue until he discovered or should have discovered that the city had a role in causing his injury, that that date was a question of fact for the jury, and that a reasonable jury could have found that plaintiff reasonably did not discover the city's role in 1996.

The trial court agreed with plaintiff that the city's statute of limitations defense required resolution of a question of fact and denied the city's motion for a directed verdict. The Court of Appeals agreed with the city that plaintiff's claim necessarily accrued when Tannehill committed the acts of abuse, concluded that the trial court erred in denying the city's motion, and reversed the judgment against the city. T.R. v. Boy Scouts of America, 205 Or.App. 135, 133 P.3d 353 (2006). We allowed plaintiff's petition for review and now reverse the decision of the Court of Appeals and remand the case to that court for further proceedings.

To analyze the opposing contentions, we begin with the facts established at trial, viewing them in the light most favorable to plaintiff. Boothby v. D.R. Johnson Lumber Co., 341 Or. 35, 38, 137 P.3d 699 (2006). We set forth in some detail the facts upon which plaintiff relied to establish the city's role in causing the harm he suffered, because it is that role that plaintiff asserts he reasonably did not discover until after 1996.

The city police department created and operated an Explorer Scout program. That program was a unit or post of the Cascade Pacific Council, which is a chartered organization of the Boy Scouts of America. The purpose of the city's Explorer Scout program was to introduce teens to law enforcement by educating them about and involving them in police operations. The Boy Scouts of America and the Cascade Pacific Council (together referred to as the Boy Scouts) devised and disseminated policies and procedures to protect participants in their programs from exploitation and sexual abuse. Components of those policies and procedures included the training and education of adults and youth in recognizing, resisting, and reporting sexual abuse. One of the primary Boy Scout mandates is that its programs set up oversight committees to ensure their proper management and supervision.

The Boy Scouts advised the city of its policies and procedures and their importance in preventing child sexual abuse, but the city did not implement or follow them. For instance, the Boy Scouts required that any Explorer program that sent participants to a regional or national conference conduct extensive youth protection training. The city sent participants to such a conference, but did not conduct youth protection training. The city did not caution its officers or Explorers against the dangers of sexual abuse or teach them how to recognize or report sexual abuse. Without training him for the position, the city delegated authority to run the Explorer program to Tannehill, the officer who sexually abused plaintiff. Although the city created an oversight committee "on paper," in reality, as a city officer admitted, it did not exist. The city included a prohibition on fraternization between officers and Explorers in its Explorer Manual, but did not otherwise instruct Tannehill or other officers that they were not to socialize with Explorers outside of authorized program activities. Moreover, when city officials learned that its officers were engaging in misconduct, such as regularly spending time alone with Explorers and serving them alcohol, the city tolerated and did not discourage the officers' violations. In one instance, when the city learned that an officer was "having an affair" with an Explorer, the department delayed and created impediments to a fair and full investigation and, thereafter, continued to operate the program, unchanged, without protection or oversight.

Plaintiff was 16 years old and living in foster care when Tannehill approached him at a gym, commented on his physique, and suggested that he enroll in the Explorer program. Plaintiff was flattered by the attention. The program offered him a chance to pursue his dream of becoming a police officer and, as plaintiff testified, "It was the most [he'd] ever been needed in [his] life." Shortly after joining the program, Tannehill began spending time alone with plaintiff, on and off duty, during and outside of regular Explorer activities, at Tannehill's home, at the gym, and in Tannehill's car. Tannehill regularly served plaintiff alcohol and made sexual comments to him. After a period of time, Tannehill began touching plaintiff inappropriately and, ultimately, sexually molested him. Plaintiff was confused about whether what was happening to him was normal. He asked two other city police officers about Tannehill's serving him alcohol and whether Tannehill had an interest in boys. One just laughed, the other told him he didn't want to talk about it. When plaintiff tried to distance himself from Tannehill, Tannehill became angry and used threats and intimidation to coerce continued contact. As soon as he could, plaintiff took an early high school graduation and joined the army.

Plaintiff was 22 years old and working in Washington state when, in October 2001, his grandmother read him a newspaper article that reported that the Oregon State Police had arrested an officer from The Dalles (not Tannehill) on charges of serving alcohol to a minor. The newspaper article included a number to call to provide information. Plaintiff responded, and in answers he gave during in-person and phone interviews by the state police over the next few weeks, disclosed Tannehill's actions. Within the month, plaintiff attended grand jury proceedings concerning Tannehill and found that many city officers were also present to testify. Based on statements those officers made and questions the grand jury asked, plaintiff suspected for the first time that department members, and perhaps even command staff, may have permitted the sexual abuse that Tannehill had committed and failed to protect Explorers, including himself, against such abuse. Plaintiff filed his Section 1983 claim against the city on July 7, 2003, within two years of those October 2001 events.

At trial, the city moved for a directed verdict, asserting, as one basis for its motion, that the uncontroverted evidence established that plaintiff's Section 1983 claim was barred by the statute of limitations. The city argued that the two-year general personal injury limitations period found in ORS 12.110(1)² applied to plaintiff's Section 1983 claim, and that because plaintiff had not commenced his action against the city within the requisite time after Tannehill's acts,³ his claim was barred. Plaintiff agreed that ORS 12.110(1) stated the applicable limitations period, but contended that he reasonably had not discovered the facts that gave rise to his Section 1983 claim against the city at the time that Tannehill committed the acts of abuse, and that the date on which his claim against the city accrued was a question of fact for the jury. The trial court agreed, denied the city's motion, and instructed the jury that, for the city to prevail on its statute of limitations affirmative defense, it was required to prove that, before July 7, 2001, "plaintiff either knew or, in the exercise of reasonable care, should have known facts which would make a reasonable person aware of the substantial possibility that the City of the Dalles caused the plaintiff some harm." The jury returned a verdict against the city and made a special finding that "plaintiff discover[ed] that he had a claim against the City of the Dalles" in October of 2001.

In the Court of Appeals, the city assigned error to the trial court's denial of its motion for a directed verdict on statute of limitations grounds. The Court of Appeals agreed with the city as to that assignment of error and reversed the judgment against the city. Applying a "discovery" accrual rule, the Court of Appeals held that plaintiff's Section 1983 claim against the city accrued, as a matter of law, in 1996, when plai...