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Doe v. Silverman

Court of Appeals of Oregon

July 19, 2017

John DOE, Plaintiff-Appellant,
v.
Samuel Arthur SILVERMAN, Defendant, and Sandra DIXON, Defendant-Respondent.

          Argued and Submitted June 14, 2016

         Jackson County Circuit Court No.14CV10566 Benjamin M. Bloom, Judge.

          Kristian Roggendorf argued the cause for appellant. With him on the briefs were Roggendorf Law LLC, Thomas N. Petersen, and Black, Chapman, Webber & Stevens.

          Tracy M. McGovern argued the cause for respondent. With her on the brief were Alicia M. Wilson and Frohnmayer, Deatherage, Jamieson, Moore, Armosino & McGovern, P.C.

          Before Tookey, Presiding Judge, and DeHoog, Judge, and Sercombe, Senior Judge.

         Case Summary:

         Plaintiff appeals a judgment dismissing his claims for negligence and intentional infiction of emotional distress arising out of sexual abuse that plaintiff suffered at the hands of defendant's husband. The trial court granted defendant's motion for summary judgment on those claims after concluding that there were no triable issues of fact as to whether defendant had "knowingly allow[ed], permit[ted] or encourage[ed] child abuse, " ORS 12.117(1), and that, without the extended statute of limitations period provided by ORS 12.117(1), plaintiff's action was time barred.

         Held:

         The trial court erred in dismissing plaintiff's claims because the summary judgment record discloses genuine issues of material fact regarding defendant's actual knowledge.

          DEHOOG, J.

         [286 Or. 814] Plaintiff appeals a judgment dismissing his claims for negligence and intentional infliction of emotional distress (IIED) arising out of sexual abuse that plaintiff suffered at the hands of defendant's husband, Silverman. The trial court granted defendant's motion for summary judgment on those claims after concluding that there were no triable issues of fact as to whether defendant had "knowingly allow[ed], permit[ted] or encourage[ed] child abuse, " ORS 12.117(1), and that, without the extended limitations period provided by that statute, plaintiffs action was time barred. Plaintiff raises two assignments of error on appeal. We write only to address plaintiff's first assignment of error, in which he argues that the trial court erred in concluding that he had not raised a fact issue as to whether defendant had acted knowingly within the meaning of ORS 12.117.[1]We conclude that, because the summary judgment record discloses factual disputes regarding that issue, the trial court erred in dismissing plaintiffs claims. Accordingly, we reverse and remand for further proceedings.

         Under ORCP 47 C, summary judgment is appropriate when

"the pleadings, depositions, affidavits, declarations and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to prevail as a matter of law. * * * The adverse party has the burden of producing evidence on any issue raised in the motion as to which the adverse party would have the burden of persuasion at trial."

See Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997). That standard is met when "no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." ORCP 47 C.

         [286 Or. 815] We review an order granting summary judgment for errors of law. Ellis v. Ferrellgas. L. P., 211 Or.App. 648, 652, 156 P.3d 136 (2007). In conducting our review, we view the facts and all reasonable inferences that may be drawn from them in favor of the nonmoving party who, in this case, is plaintiff. Jones, 325 Or at 408. We state the facts in accordance with that standard.

         In 1996, when plaintiff was a minor, defendant's husband, Silverman, sexually abused him while he was a guest of defendant and Silverman's son in their home. That criminal conduct led to Silverman's conviction and subsequent imprisonment. See State v. Silverman. 159 Or.App. 524, 977 P.2d 1186, rev den, 329 Or. 527 (1999), cert den, 531 U.S. 876 (2000).

         In 2014, when he was 30 years old, plaintiff sued Silverman and defendant.[2] Plaintiff's claims against defendant alleged negligence and IIED for her role in Silverman's abuse of plaintiff. Specifically, the complaint alleged the following:

"PLAINTIFF and other boys *** were invited to the property by [defendant and Silverman] and their son for social ...

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