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Achcar-Winkels v. Lake Oswego School District

United States District Court, D. Oregon, Portland Division

May 25, 2017

TAISSA and RAY ACHCAR-WINKELS, individually and as Parents and Next Friends of S.A., a minor, Plaintiffs,
v.
LAKE OSWEGO SCHOOL DISTRICT, Defendants.

          OPINION AND ORDER

          MICHAEL W. MOSMAN, CHIEF UNITED STATES DISTRICT JUDGE

         On February 21, 2017, Magistrate Judge Youlee Yim You issued her Findings and Recommendation (“F&R”) [142], recommending that Defendants' Motions for Summary Judgment [82, 83, and 85] should be GRANTED in part and DENIED in part. Judge You also recommends that: (1) Defendants' request to substitute the District in place of individual defendants should be DENIED; (2) Defendants' request to strike Plaintiffs' prayer for punitive damages should be DENIED; and (3) Defendant Lake Oswego School District's (“the District”) request to strike reference to any unknown defendant should be GRANTED. All parties objected to portions of the F&R [148, 149, 150, and 152]. For the reasons listed below, I ADOPT in part and REJECT in part Judge You's F&R.

         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 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 recommendations 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 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). While the level of scrutiny with 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

         There are several portions of Judge You's F&R to which no party objects. In regard to these portions, I ADOPT Judge You's F&R as my own opinion. There are other portions, however, that drew several objections from one or more of the parties. These objections include: (1) Plaintiffs' objection to the recommendation to dismiss the Intentional Infliction of Emotional Distress (“IIED”) claim; (2) the Nordlums' objection to the finding on the False Imprisonment claim; (3) all Defendants' objection to the finding on Plaintiffs' ability to pursue a purely emotional distress claim arising under negligence; and (4) Defendant Young's objection to the finding on foreseeability. In regard to these objected-to portions of the F&R, I provide the following supplemental analysis.[1]

         I. Intentional Infliction of Emotional Distress (Sixth Claim)

         In her F&R, Judge You recommends that I GRANT summary judgment in favor of Defendants Schiele, Kayla Nordlum (“Kayla”), and Young on Plaintiffs' IIED claim. Plaintiffs object to Judge You's recommendation, but only as it pertains to Schiele and Kayla. Accordingly, I GRANT summary judgment in Young's favor on the IIED claim. As against Schiele, I agree with Judge You that her conduct does not rise to the level of extreme or outrageous, and I GRANT summary judgment in her favor as well. As against Kayla, however, I find that her actions, if true, are sufficiently extreme or outrageous to support a claim of IIED. Thus, I DENY summary judgment in Kayla's favor on S.A.'s IIED claim.

         To succeed on an intentional infliction of emotional distress claim, a plaintiff must prove that (1) the defendant intended to cause the plaintiff severe emotional distress, (2) the defendant's conduct was outrageous, i.e., extraordinarily beyond the bounds of socially tolerable conduct, and (3) the defendant's conduct actually caused the plaintiff's severe emotional distress. T.L. ex rel. Lowry v. Sherwood Charter Sch., No. 03:13-cv-015620HZ, 2014 WL 897123, at *10 (D. Or. May 6, 2014) (“Lowry I”) (citing McGanty v. Staudenraus, 901 P.2d 841, 849 (Or. 1995)); McManus v. Auchincloss, 353 P.3d 17, 26 (Or. App. 2015), review denied, 363 P.3d 1287 (Or. 2015). Whether the conduct qualifies as outrageous is a case-specific inquiry but ultimately a question of law for the court. See Lowry I, 2014 WL 897123, at 10; House v. Hicks, 179 P.3d 730, 736 (Or. App. 2008). There are several contextual factors that help the court make this determination, the most important of which being the existence of a special relationship between the plaintiff and defendant. House, 179 P.3d at 737. If the behavior was directed toward “the more vulnerable partner in a ‘special relationship, '” a court is “more likely to consider behavior outrageous.” McManus, 353 P.3d at 26.

         A. Special Relationship

         Plaintiffs assert that Judge You did not explicitly consider the existence of a special relationship when determining that Schiele or Kayla's actions were not outside the bounds of socially tolerable conduct.[2] When considering this factor, Plaintiffs argue, both Schiele and Kayla's behavior rises to the level of extreme and outrageous. District Defendants (the District, Schiele, Beck, and Lamont) and the Nordlums respond that even though the existence of a special relationship is relevant in determining whether conduct was extreme or outrageous, there is no special relationship between a public school and a public school student. As such, Defendants argue Judge You's determination that the conduct was insufficient to support an IIED claim should stand.

         In the context of a claim for emotional distress, the existence of a special relationship is “driven by the facts” of the particular case. Shin v. Sunriver Preparatory Sch., Inc., 111 P.3d 762, 770 (Or. App. 2005). In Shin, for example, a foreign student sued her private boarding school for failing to adequately supervise her during a visit from her father, which resulted in the student being raped and sexually abused. Id. at 769-70. The boarding school was “not at all like a typical high school, ” but rather acted ‘“in the parental role' for plaintiff and others who lived . . . with homestay parents, whom the school specially approved.” Id. at 771. Based on these facts, the Oregon court held that the school had a “heightened duty . . . to protect the student from emotional harm” and that “the student's legally protected interest is sufficiently important to support the imposition of liability for negligently causing emotional harm.” Id. at 770.

         This Court has found on at least two prior occasions that no special relationship exists between the typical public school and public school student. Lowry I, 2014 WL 897123, at *11; Doe ex rel. Farley, Piazza & Assocs. v. Gladstone Sch. Dist., No. 3:10-cv-01172-JE, 2012 WL 2049173, at *13 (D. Or. June 6, 2012). In Gladstone, the earlier of these cases, Judge Jelderks found that a situation involving a public school and public school student did “not begin to approach the circumstances presented in Shin and [did] not support a conclusion that a special relationship existed between the parties.” 2012 WL 2049173, at *13. In reaching this conclusion, he relied, in part, on the absence of an Oregon case “that has held that such a relationship exists between a public school student and his or her school.” Id.; see also Lowry I, 2014 WL 897123, at *11 (“[N]o Oregon case has held that a special relationship exists between a public school and a public school student him- or herself, much less between the parent of the student and the school.”). He recognized that schools in Oregon have a “duty of supervision” but found this duty was “based on the ‘foreseeable risk of harm' and not a separate legally protected interest.” Id. (citing Fazzolari By & Through Fazzolari v. Portland Sch. Dist. No. 1J, 734 P.2d 1326, 1337 (Or. 1987)).

         But finding that no Oregon case has ever found a special relationship between a public school and public school student does not mean that one does not exist. Moreover, the fact that Shin found a special relationship in a situation where the school had significant custodial control of the student does not automatically mean that an Oregon court would not find a special relationship where the school's control is less significant. Because no Oregon court has directly addressed this issue, my task is to “predict how the highest state court would decide the issue using intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance.” Lewis v. Telephone Employees Credit Union, 87 F.3d 1537, 1545 (9th Cir. 1996).

         Under the Second Restatement of Torts, there was “no provision that specifically identified the school-student relationship as special.” Restatement (Third) of Torts: Phys. & Emot. Harm § 40 cmt. l (2012). In the Third Restatement, however, the list of recognized special relationships lengthened to include, among others, the school-student relationship. Id. at § 40(b) (“Special relationships giving rise to the duty provided in Subsection (a) include: . . . (5) a schools with its students . . . .); Dan B. Dobbs, The Law of Torts § 408 (2d ed. 2016 update). As with other special relationships, the school's duty toward the student is limited to “risks that occur while the student is at school or otherwise engaged in school activities.” Restatement (Third) of Torts: Phys. & Emot. Harm § 40 cmt. l. Importantly, this shift from the Restatement (Second) to the Restatement (Third) postdates Judge Jelderks's opinion in Gladstone.

         Other state courts have explicitly recognized a special relationship between schools and their students. In C.A. v. William S. Hart Union High School District, for example, the California Supreme Court stated that “a school district and its employees have a special relationship with the district's pupils.” 270 P.3d 699, 704 (Cal. 2012). This relationship stems “from the mandatory character of school attendance and the comprehensive control over students exercised by school personnel, ‘analogous in many ways to the relationship between parents and their children.'” Id. Additionally, in Washington, it is “well-established” that there is a “special relationship between school districts and their pupils.” Quynn v. Bellevue School District, 383 P.3d 1053, 1057 (Wash. App. 2016). Both of these cases dealt with public schools, as opposed to the type of private institution at issue in Shin.

         More fundamentally, the Oregon Supreme Court recognized a special “duty of supervision” imposed upon schools as far back as 1987. See Fazzolari By & Through Fazzolari v. Portland Sch. Dist. No. 1J, 734 P.2d 1326, 1337 (Or. 1987). Specifically, the court stated that schools have “a special duty arising from the relationship between educators and children entrusted to their care apart from any general responsibility not unreasonably to expose people to a foreseeable risk of harm.” Id. The court also noted that the “vast majority of students are minors, and school personnel assume a great deal of authority over their conduct during the school day.” Id. This degree of control is a touchstone of special relationships in Oregon. See Conway v. Pac. Univ., 924 P.2d 818, 824 (Or. 1996) (“[T]he party who is owed the duty is placed in a position of reliance upon the party who owes the duty; that is, because the former has given responsibility and control over the situation at issue to the latter, the former has a right to rely upon the latter to achieve a desired outcome or resolution.”).

         In Gladstone, Judge Jelderks recognized this “special duty” imposed upon schools but distinguished the existence of a special duty from the existence of a special relationship. See Gladstone, 2012 WL 2049173, at *13 (“While schools have a ‘duty of supervision' towards their students . . . the determination of a school's negligence is still one based on the ‘foreseeable risk of harm' and not on a separate legally protected interest.” (emphasis in original)). Although I agree that the questions are theoretically distinct, finding a special duty goes a long way in finding the existence of a special relationship. This is especially true, given the fact that Fazzalori's reasoning for finding a special duty is similar to the rationale for finding a special relationship. Thus, because of a shift in the law since Gladstone was decided, I do not feel compelled to reach the same conclusion this Court has made twice previously in regard to the relationship between public schools and public school students. See T.L. ex rel. Lowry v. Sherwood Charter Sch., 68 F.Supp.3d 1295, 1322 (D. Or. 2014) (“Lowry II”) (relying on Gladstone to conclude there was no special relationship between a public school and a student).

         Based on the special duty recognized in Fazzolari and the treatment of special relationships in the Third Restatement and other jurisdictions, I find that the Oregon Supreme Court would likely recognize a special relationship between a public school and a public school student. The reasoning for finding a special relationship in this context, however, does not extend to a school and a student's parent. Thus, as this Court has found before, I find there is no special relationship between a public school and a student's parent.

         B. Extreme or Outrageous

         In light of this finding, I must determine whether Judge You's conclusion regarding the nature of Schiele and Kayla's conduct is correct. First, because there is no special relationship between S.A.'s parents and either Schiele or Kayla, I agree with Judge You that their behavior toward the parents is not sufficient to support a claim for IIED. Thus, I GRANT summary judgment in favor of Schiele and Kayla on the parents' IIED claim.

         In regard to S.A., I must view Schiele and Kayla's conduct within the context of their special relationship with S.A. Even when viewed in this context, however, there is no conduct on the part of Schiele toward S.A. that rises to the level of extreme or outrageous. Her behavior might have been “rude, boorish, tyrannical, churlish, and mean, ” Patton v. J.C. Penney Co., Inc., 719 P.2d 854, 858 (Or. 1986), abrogated on other grounds by McGanty, 901 P.2d 841, but it is not sufficient to support an IIED claim. Furthermore, even if Schiele's conduct was extreme or outrageous, it is unreasonable to conclude that she was acting intentionally rather than negligently or recklessly. See Lowry II, 68 F.Supp.3d at 1320. As such, I GRANT summary judgment in Schiele's favor on S.A.'s IIED claim.

         As to Kayla, however, the outcome is different. In the light most favorable to Plaintiffs, the evidence shows Kayla retaliated against S.A., a 14-year-old high school student, for reporting behavior that the student subjectively believed was hazing. This alleged retaliation included threatening suspension of S.A., placing S.A. as an alternate on the Pacer Dance Team's (“PDT”) jazz group, criticizing S.A. at practice, and excluding S.A. from the PDT cheer squad. Such behavior by a coach toward a student would likely have a chilling effect on other students reporting hazing or other harmful interactions to trusted adults in the future. Thus, when viewed in the context of a special relationship, Kayla's retaliatory actions against S.A. were extraordinarily beyond the bounds of socially tolerable conduct. I reject Judge You's recommendation on this issue and DENY summary judgment in Kayla's favor on S.A.'s IIED claim.

         II. False Imprisonment (Seventh Claim)

         To succeed on a claim of false imprisonment, a plaintiff must prove that: (1) the defendant confined the plaintiff, (2) the defendant intended the act that caused the confinement, (3) the plaintiff was aware of the confinement, and (4) the confinement was unlawful. Fossen v. Clackamas Cty., 352 P.3d 1288, 1291 (Or. App. 2015). Judge You found that there was a factual dispute over nearly ...


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