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Prasnikar v. Our Savior's Lutheran Church of Lake Oswego

United States District Court, D. Oregon, Portland Division

January 7, 2015

CRISTIE MARIE PRASNIKAR, Plaintiff,
v.
OUR SAVIOR'S LUTHERAN CHURCH OF LAKE OSWEGO, OREGON; OREGON SYNOD OF THE EVANGELICAL LUTHERAN CHURCH IN AMERICA; EVANGELICAL LUTHERAN CHURCH IN AMERICA; and RALPH W. (" WOODY" ) VEERKAMP, Defendants

For Cristie Marie Prasnikar, Plaintiff: Jennifer J. Middleton, LEAD ATTORNEY, Johnson, Johnson & Schaller, Eugene, OR; Tara Lawrence, LEAD ATTORNEY, Lawrence Law Office, Portland, OR; Arthur C. Johnson, Johnson Johnson Larson & Schaller, PC, Eugene, OR.

For Our Savior's Lutheran Church of Lake Oswego, Oregon, Defendants: Jay Richard Chock, LEAD ATTORNEY, Chock Barhoum LLP, Portland, OR; John R. Barhoum, LEAD ATTORNEY, Chock Barhoum LLP, Portland, OR.

For Evangelical Lutheran Church of America, Defendants: Blake H. Fry, LEAD ATTORNEY, Mersereau Shannon LLP, Portland, OR; Karen M. Vickers, LEAD ATTORNEY, Mersereau & Shannon, LLP, Portland, OR.

For Ralph W. Veerkamp, also known as (" Woody" ), Defendants, Pro se, San Jose, CA.

For Oregon Synod of the Evangelical Lutheran Church in America, Defendants: Karen M. Vickers, Mersereau & Shannon, LLP, Portland, OR.

Page 1185

OPINION AND ORDER

MICHAEL W. MOSMAN, United States District Judge.

On October 24, 2014, Magistrate Judge Papak issued his Findings and Recommendation (" F& R" ) [82] in the above-captioned case recommending that a judgment be entered granting Defendant Evangelical Lutheran Church in America's (" ECLA" ) and Defendant Oregon Synod of the Evangelical Lutheran Church in America's (" Synod" ) Motion for Summary Judgment [45] in its entirety, and granting Defendant Our Savior's Lutheran Church of Lake Oswego, Oregon's (" Congregation" ) Motion for Summary Judgment [49] with respect to Ms. Prasnikar's negligence claim and prayer for punitive damages, and denying it in all other respects. Judge Papak also recommended that the ECLA's and the Synod's oral motion to stay expert discovery be denied as moot.

On November 11, 2014, the Congregation filed objections to Judge Papak's F& R [89]. The Congregation argued that Judge Papak erred in denying its summary judgment motion with respect to capping Ms. Prasnikar's prayer for noneconomic damages at $500,000.

On November 12, 2014, Ms. Prasnikar filed objections to Judge Papak's F& R [90]. Ms. Prasnikar argued that Judge Papak erred in granting the ECLA's and the Synod's summary judgment motion with respect to those entities' vicarious liability for Mr. Veerkamp's actions.

LEGAL STANDARD

The magistrate judge makes only recommendations to the court, to which any party may file written objections. The court is not bound by the recommendations

Page 1186

of the magistrate judge, but retains responsibility for making the final determination. The court is generally required to make a de novo determination regarding those portions of the report or specified findings or recommendation as to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the court is not required to review, de novo or under any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the F& R to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). While the level of scrutiny under which I am required to review the F& R depends on whether or not objections have been filed, in either case, I am free to accept, reject, or modify any part of the F& R. 28 U.S.C. § 636(b)(1)(C).

DISCUSSION

I. Negligence Claim, Prayer for Punitive Damages and Expert Discovery Stay Recommendations

Neither party filed any objections to Judge Papak's recommendation that: (1) Ms. Prasnikar's negligence claim be dismissed as time barred; (2) Ms. Prasnikar's prayer for vicarious punitive damages against the ECLA, the Synod, and the Congregation fails as a matter of law; and (3) the ECLA's and the Synod's motion to stay expert discovery should be denied as moot. I therefore adopt these portions of the F& R as my own. Ms. Prasnikar's negligence claim and prayer for vicarious punitive damages are dismissed, and the ECLA's and the Synod's motion to stay expert discovery is denied as moot.

II. The ECLA's and The Synod's Vicarious Liability

In his F& R, Judge Papak analyzed two possible theories for holding the ECLA and the Synod vicariously liable for Mr. Veerkamp's actions: (1) respondeat superior, and (2) general agency theory. (F& R [82] at 9.) Judge Papak concluded that both theories failed as a matter of law. ( Id. at 13, 18.) Ms. Prasnikar argues that Judge Papak erred in his treatment of either the facts or law with respect to both theories. I find that Ms. Prasnikar's objections lack merit, and therefore affirm the reasoning and conclusions of the F& R and adopt them as my own.

A. Respondeat Superior Theory of Vicarious Liability

Ms. Prasnikar's main contention appears to be that Judge Papak failed to account for several pieces of evidence that suggest that the ECLA and the Synod did in fact directly control Mr. Veerkamp's actions. (Pl.'s Objections [90] at 6.) The ECLA's and the Synod's ability to directly control Mr. Veerkamp's actions is critical to the respondeat superior analysis. In order for respondeat superior to provide an avenue for vicarious liability, Mr. Veerkamp must have been an employee of the ECLA or the Synod. See Chesterman v. Barmon, 305 Or. 439, 442, 753 P.2d 404 (1988) (citations omitted). In order to be considered an employee of either the ECLA or the Synod, the " employer" entity has to have had the right to control Mr. Veerkamp's actions. See Lourim v. Swensen, 328 Or. 380, 387, 977 P.2d 1157 (1999) (footnote omitted).

Ms. Prasnikar first argues that the Congregation's admission that it was at all material times subject to the oversight, direction, control and discipline of the ECLA and the Synod created a genuine dispute of a material fact regarding who was Mr. ...


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