PATRICIA PIAZZA of Farley, Piazza and Associates, guardian ad litem for K. C. S., a minor, Plaintiff-Appellant,
STATE OF OREGON, by and through its Department of Human Services and Oregon Youth Authority; KRISTA PRATT, in her individual capacity; MARCIE CRAWFORD, in her individual capacity; ANGELA DIBRITO, in her individual capacity; TERRA SCROGGIN, in her individual capacity; EVELYN HENDRICK, in her individual capacity; KENNETH HENDRICK, in his individual capacity, Defendants-Respondents
Argued and Submitted March 15, 2013.
Marion County Circuit Court. 09C17311. Pamela L. Abernethy, Judge.
Richard Vangelisti argued the cause for appellant. With him on the briefs were Scott Kocher and Vangelisti Kocher LLP, and Lisa T. Hunt and Law Office of Lisa T. Hunt, LLC.
Rolf C. Moan, Senior Assistant Attorney General, argued the cause for respondents. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[261 Or.App. 427] NAKAMOTO, J.
A five-year-old boy, K, was sexually abused by a seven-year-old boy when they were left alone for a short time while in foster care together. Plaintiff, guardian ad litem for K, brought this action against the Department of Human Services (DHS), the foster parents, and several DHS employees, asserting negligence, strict liability (ORS 30.297), abuse of a vulnerable person (ORS 124.100), and federal section 1983 claims (42 USC § 1983). The trial court granted defendants' motion for directed verdict on the abuse of a vulnerable person claim, and the jury returned a verdict for defendants on the remaining claims. Plaintiff appeals and asserts that the trial court committed reversible error when it refused to read to the jury certain written admissions made by defendants, excluded as hearsay certain statements made by K to his parents, and granted a directed verdict on the vulnerable person claim. We affirm.
The background facts are undisputed. Plaintiff is the court-appointed guardian ad litem of K, a minor child. When K was five years old, DHS placed him in the foster home of Evelyn and Kenneth Hendrick. At the time of the placement, the Hendricks had another foster child in the home, an older boy of seven years old, who had a known history of sexually acting out with other children and required " eyes-on supervision with younger children." DHS communicated the older boy's history to the Hendricks and required the Hendricks to have a safety plan in place, which included not allowing the older boy to be alone with any children. Within three days of K's placement in the Hendricks' home, the older boy was left unsupervised with K for four to five minutes and, during that time, took off his pants and had K perform oral sex on him. Approximately three days after the incident, K was released to the custody of his father, who lives out-of-state.
Plaintiff brought this action against DHS, the Hendricks, the DHS foster home certifier who placed K in the Hendricks' home and her supervisor, and the two DHS case workers for K and the older boy. Specifically, plaintiff asserted negligence against all defendants, strict liability (ORS 30.297) against DHS, abuse of a vulnerable person [261 Or.App. 428] (ORS 124.100) against all defendants, and federal section 1983 claims (42 USC § 1983) against all the individual defendants. Defendants admitted that the Hendricks were negligent in their supervision of K and the older boy. Defendants denied any other liability, denied that defendants' actions caused K any damages, and denied that K suffered damages. Defendants also made several other written admissions in the case, including that all the individual defendants were agents or employees of DHS and were acting within the scope of that agency or employment, that DHS believed the home certifier had made an improper placement decision and falsely documented her decision, and that the abuse suffered by K " has the potential to increase the likelihood that [K] will suffer depression, anxiety, or relationship difficulties in the future."
Before trial, defendants brought a motion for partial summary judgment on plaintiff's claim for abuse of a vulnerable person. The trial court granted that motion in part and denied it in part. The court concluded that, based on the applicable statutory definitions, K was not " disabled" as a matter of law, but there existed a question of fact whether or not K was " incapacitated." At the close of plaintiff's case at trial, the court granted defendants' motion for directed verdict, concluding that plaintiff failed to adduce evidence
that K was incapacitated as defined by statute.
The jury returned a special verdict for defendants on plaintiff's remaining claims. In the jury instructions and the verdict form, the jury was informed that defendants admitted to the Hendricks' negligent supervision of the children. As relevant to plaintiff's appeal, the jury then found that (1) the other defendants were not negligent, (2) the negligence of any defendant was not the cause of damage to K, and (3) the older boy's actions were not the cause of K's damages, as alleged by plaintiff.
Plaintiff asserts four assignments of error on appeal: (1) the trial court erred in refusing to give a jury instruction of written admissions made by defendants; (2) the trial court's standard instructions about admissions and argument of counsel confused and misled the jury about the effect of defendants' admissions; (3) the trial court erred in [261 Or.App. 429] excluding statements K made to his parents about the abuse; and (4) the trial court erred in granting a directed verdict to defendants on plaintiff's abuse of a vulnerable person claim. We first address plaintiff's first two assignments of error regarding the jury instructions.
During trial, plaintiff requested that, as part of the jury instructions, the court read to the jury written admissions made by defendants as conclusively established facts. Initially, plaintiff requested that the trial court read 44 separate admissions to the jury, many of which were repetitive of each other or redundant of uncontested evidence plaintiff elicited during trial. The trial court denied that request, but it informed plaintiff that it would consider reading to the jury a summary of admissions, if the fact admitted was not already proved by plaintiff at trial, but that summary would not be included as part of the instructions:
" To the extent that you have not brought out that fact through a witness and wish to do it through the admission, then you may summarize that or ask me to summarize it, but I don't want to put them in the instructions because the written instructions go to the jury and I think it gives undue weight ...