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Wyers v. American Medical Response Northwest, Inc.

Court of Appeals of Oregon

December 31, 2014

JAN WYERS, as Personal Representative of the Estate of Dianne Terpening, Deceased, Plaintiff-Appellant,
v.
AMERICAN MEDICAL RESPONSE NORTHWEST, INC., an Oregon corporation, Defendant-Respondent. Hazel CORNING, Plaintiff-Appellant,
v.
AMERICAN MEDICAL RESPONSE NORTHWEST, INC., an Oregon corporation, Defendant-Respondent. Violet ASBURY, Plaintiff-Appellant,
v.
AMERICAN MEDICAL RESPONSE NORTHWEST, INC., an Oregon corporation, Defendant-Respondent. Stacey WEBB, Plaintiff-Appellant,
v.
AMERICAN MEDICAL RESPONSE NORTHWEST, INC., an Oregon corporation, Defendant-Respondent. Michele SHAFTEL, Plaintiff-Appellant,
v.
AMERICAN MEDICAL RESPONSE NORTHWEST, INC., an Oregon corporation, Defendant-Respondent. Natsue AKRE, Plaintiff-Appellant,
v.
AMERICAN MEDICAL RESPONSE NORTHWEST, INC., an Oregon corporation, Defendant-Respondent

Argued and Submitted November 6, 2013

Multnomah County Circuit Court. 091014750. Multnomah County Circuit Court. 091116570. Multnomah County Circuit Court. 091116571. Multnomah County Circuit Court. 091116572. Multnomah County Circuit Court. 091216650. Multnomah County Circuit Court. 100202934. Kathleen M. Dailey, Judge.

Mark McDougal argued the cause for appellants. With him on the brief were Gregory Kafoury and Kafoury & McDougal.

Michael Estok argued the cause for respondent. With him on the brief was James K. Dumas, and Lindsay, Hart, Neil & Weigler, LLP.

Erin K. Olson and Law Office of Erin Olson, P.C., filed the brief amicus curiae for Oregon Trial Lawyers Association.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

OPINION

Page 130

[268 Or.App. 235] NAKAMOTO, J.

At various points in 2009 and 2010, six women[1] filed actions for damages against defendant American Medical Response Northwest, Inc. Each woman alleged that defendant had permitted Lannie Haszard, a paramedic in its employ, to sexually abuse her while she was vulnerable. At issue in this consolidated appeal is the trial court's dismissal of each plaintiff's claim under the statute governing civil actions for abuse of a vulnerable person, ORS 124.100,[2] after the court granted defendant's summary judgment motion.[3] Plaintiffs argue that the trial

Page 131

court erroneously concluded that there were no genuine issues of material fact for trial based on an incorrect understanding of ORS 124.100(2) and (5). For the reasons that follow, we conclude that the trial court applied an erroneous interpretation of ORS 124.100(2) and (5). We also conclude that all plaintiffs adduced sufficient evidence for a trial on their claims. We thus reverse and remand.

We state the facts in the summary judgment record in the light most favorable to plaintiffs, the nonmoving parties. ORCP 47 C; Miller v. Tabor W. Inv. Co., LLC, 223 Or.App. 700, 702, 196 P.3d 1049 (2008), rev den, 346 Or. 184, 206 P.3d 1058 (2009). [268 Or.App. 236] Haszard was a certified emergency medical technician and paramedic. Defendant, which provides ambulance services, employed Haszard to attend to persons being transported by ambulance. Haszard was authorized and required to touch ambulance patients to monitor and care for them as they were being transported. However, Haszard used his position to engage in acts of sexual abuse of various female patients, including plaintiffs, while they were being transported to the hospital. Haszard engaged in inappropriate touching of each plaintiff during her ambulance transport, when plaintiffs were either (1) ill or injured, with an impaired ability to evaluate information, communicate decisions, and protect their physical safety (Shaftel, Terpening, and Webb), or (2) elderly (Akre, Asbury, and Corning).

No plaintiff contemporaneously reported to defendant the sexual abuse she had experienced. Defendant did not learn of plaintiffs' allegations concerning their sexual abuse by Haszard until each plaintiff filed her action against defendant. However, before the abusive conduct in this case occurred, defendant had received reports of sexual misconduct by Haszard from two women--Spain and Whalen. In February 2006, Spain regained consciousness in the back of defendant's ambulance to find Haszard rubbing her hand against his crotch. She screamed, the driver asked Haszard what was happening, and Haszard replied that Spain was just delirious. Spain reported the incident to defendant, although she did not know Haszard's name at the time. Her sister witnessed Spain make the report by phone. According to deposition testimony from Newton, defendant's head of quality assurance, any and all complaints of sexual misconduct are entered into a database, and forwarded to defendant's regional operations manager and general manager. Lauer, the general manager for defendant in Oregon, testified that, generally, all efforts are made to identify complainants and contact them for more information.

A month after Spain's report to defendant, Haszard transported Whalen by ambulance to a hospital. At the hospital, Haszard was leering at Whalen, panting, while she was disrobing to change into a hospital gown. Whalen stated that Haszard was obviously sexually aroused. On a written form, Whalen described the experience with Haszard [268 Or.App. 237] as " highly degrading and uncomfortable" and stated that she had felt unsafe. Whalen subsequently reported the incident to Priest, a manager for defendant. Priest told Whalen that she must have been imagining things, and he filed an incident report stating that Whalen indicated that her care was " excellent" but that " she felt that there was not enough consideration for her privacy." Priest also stated that he had " had a good talk with [Haszard] and the message was well received." [4]

Around the time of the incidents of abuse involved in this case, another pair of women--Rotting and Pries--also told defendant that Haszard had molested them during ambulance transports in December 2006 and March 2007, respectively.[5] Rotting reported

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to Priest that during an ambulance ride on December 9, 2006, Haszard raised her gown above her waist and inappropriately touched her. Priest told Rotting that there would be an investigation. No such investigation occurred.

On December 18, 2006, a human resources manager for defendant, Fowler, sent out an email stating that Rotting's son had called on Rotting's behalf, that he said that " we should get the police involved," and that he " seems more insistent." Fowler wondered in her e-mail whether someone should call back. No one ever did. Neither did defendant notify the police that Rotting, who was 73 years old when the incident occurred, had complained that Haszard had abused her.

In March 2007, Haszard transported Pries, a knife-wound victim. Pries told the police officer who interviewed her regarding her injuries that Haszard had sexually abused her by taking her hand, placing it inside her pants, and manipulating it. That officer spoke with defendant's [268 Or.App. 238] supervisor, Verkest. Verkest did not tell the officer that other women had previously reported that Haszard had sexually abused them. After the police relayed Pries's complaint to defendant, a meeting was convened that was attended by, among others, Verkest and one of defendant's risk management employees. Defendant informed Haszard in writing that the Rotting and Pries " complaints [were] closed because you have told us that these events did not happen and we have no further evidence or witness statements that they did." Defendant never contacted Pries regarding her report.

Subsequently, another woman, Herring, reported to defendant on December 8, 2007, that Haszard had molested her while transporting her to a hospital. At the hospital, Herring, began screaming for someone to help her and to remove Haszard from her room. A nurse called defendant, who sent Verkest to speak with Herring at the hospital. Herring reported that Haszard had taken her hand and shoved it down the front of her pants. Verkest told Herring that he was not going to call the police, but that she could. Verkest later called the police nonemergency number and reported that Herring wanted to make a complaint about one of defendant's paramedics regarding an alleged assault. Verkest did not provide Haszard's name to the police during that call or notify them about the other, similar allegations against Haszard. The police then independently discovered Pries's complaint against Haszard and arrested Haszard on December 10, 2007. In 2008, Haszard pleaded guilty to multiple counts of attempted sexual abuse in the first degree for abusing Herring, Rotting, as well as two other women, Robbins and Hines, who came forward to the district attorney following Haszard's arrest.

Plaintiffs who are all represented by the same attorneys, filed their actions in 2009, except for Akre, who filed in 2010. The presiding judge of the circuit court consolidated the 2009 actions and, designating the consolidated cases as complex, assigned the matter to a judge for all proceedings. Akre's action was then assigned to the same judge.

By the time of the summary judgment motion at issue on appeal, the only claim that each plaintiff was asserting in her amended complaint was a claim of physical [268 Or.App. 239] abuse of a vulnerable person, as provided under ORS 124.100. A " [v]ulnerable person" includes " elderly person[s]," ORS 124.100(1)(e)(A), and " incapacitated person[s]," ORS 124.100(1)(e)(C). An " '[e]lderly person' means a person 65 years of age or older." ORS 124.100(1)(a). Under ORS 124.100(1)(c), an " [i]ncapacitated" person is defined by reference to ORS 125.005(5), which provides:

" 'Incapacitated' means a condition in which a person's ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirements for the person's physical health or safety. 'Meeting the essential requirements for physical health and safety' means those actions necessary to provide the health care, food, shelter, clothing, personal hygiene and other care without

Page 133

which serious physical injury or illness is likely to occur."

" A vulnerable person who suffers injury * * * by reason of physical abuse * * * may bring an action against any person who has caused the * * * abuse or who has permitted another person to engage in * * * abuse." ORS 124.100(2). When a plaintiff prevails in the action, ORS 124.100(2)(b) requires the court to award the plaintiff " [a]n amount equal to three times all noneconomic damages, as defined by ORS 31.710, resulting from the physical * * * abuse."

The parties disputed whether defendant had " permitted" Haszard to engage in the abuse of plaintiffs. Under ORS 124.100(5), " [a]n action may be brought under this section against a person for permitting another person to engage in physical * * * abuse if the person knowingly acts or fails to act under circumstances in which a reasonable person should have known of the * * * abuse."

In a consolidated motion for summary judgment on each plaintiff's statutory claim of " vulnerable person" abuse, defendant argued that there was no genuine issue of material fact that it " permitted" physical abuse of plaintiffs and that it was entitled to judgment as a matter of law. Defendant's factual argument was premised primarily upon its legal argument regarding the proper ...


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