Argued and Submitted April 12, 2013.
Multnomah County Circuit Court. 100303770. Peter R. Chamberlain, Judge pro tempore.
Corey B. Toliver argued the cause for appellant. With him on the opening brief was Powers, McCulloch & Bennett, LLP. With him on the reply brief was Folawn Alterman & Richardson LLP.
Michael J. Fearl, Lee Aronson, and Schulte, Anderson, Downes, Aronson & Bittner P.C. filed the brief for respondent.
Before Ortega, Presiding Judge, and Wollheim, Judge, and Sercombe, Judge.
[263 Or.App. 198] ORTEGA, P. J.
In this legal malpractice case, plaintiff challenges the trial court's grant of summary judgment in favor of defendant, David Slader, the attorney who represented plaintiff in his child sex abuse case against the Archdiocese of Portland and Mt. Angel Abbey. In that case, defendant alleged that the Archdiocese was vicariously liable for acts of abuse by a priest. The Archdiocese filed a summary judgment motion that the trial court granted, and we affirmed on appeal. In his malpractice claim against defendant, plaintiff alleged that, but for defendant's negligence in failing to properly investigate and discover additional evidence, the Archdiocese would not have prevailed on summary judgment. Defendant moved for summary judgment, arguing that plaintiff could not prove the " causation" element of his malpractice claim because the trial court in the underlying case would have granted summary judgment in favor of the Archdiocese even if defendant had presented the evidence that plaintiff now proffers. The trial court agreed and granted defendant's motion. On appeal, we conclude that the court erred in granting summary judgment, and therefore reverse and remand for further proceedings.
On review of a grant of summary judgment, this court views the record and all reasonable inferences in the light most favorable to the nonmoving party--here, plaintiff--to determine if a genuine issue of material fact exists and if the moving party is entitled to judgment, as a matter of law. ORCP 47 C; Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997).
The relevant facts, stated consistently with that standard, are as follows. In 2002, plaintiff hired defendant [263 Or.App. 199] to represent him in a suit against the Archdiocese, based on plaintiff's allegations that, in the early 1950s, a priest, Father Frank, had sexually assaulted him when he was seven or eight years old. Defendant filed suit against the Archdiocese, alleging that it was vicariously liable for that assault because Frank had been employed by the Archdiocese to provide " pastoral and religious services, education, training, spiritual, moral and ethical guidance" to plaintiff; Frank had used his position as a pastor to " gain the trust and confidence of the plaintiff and [his] parents" ; and those " 'grooming' activities were within the course and scope of [Frank's] employment" and " eventually led to a series of sexual assaults."
The Archdiocese moved for summary judgment, claiming that Frank's conduct was not within the scope of his employment for purposes of vicarious liability because the sexual abuse occurred within minutes of plaintiff's first-ever encounter with Frank. The Archdiocese argued that, unlike in Fearing v. Bucher, 328 Or. 367, 977 P.2d 1163 (1999), where there was evidence of " grooming" behavior, this case lacked evidence that Frank seduced, or even knew plaintiff or his family before the assault.
In response, plaintiff, represented by defendant, argued that the test is " whether there is a causal link between the employee's authorized duties and his * * * tortious injury of the plaintiff[ ]," not whether the tortfeasor " seduced" the victim. Defendant contended that Frank had been acting within his
scope of employment because " Catholic priests are expected and required to secure the obedience of the children of their parish or school" and, in leading plaintiff to the basement, Frank was " fulfilling the role of a caring pastor" and plaintiff was at his mercy because Frank " had [263 Or.App. 200] the absolute authority of a priest." In sum, defendant argued that a jury could find, " in the words of the court in Fearing, that the sexual assaults were a direct outgrowth of ...