and Submitted June 14, 2016
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.
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.
Tookey, Presiding Judge, and DeHoog, Judge, and Sercombe,
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.
trial court erred in dismissing plaintiff's claims
because the summary judgment record discloses genuine issues
of material fact regarding defendant's actual knowledge.
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.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.
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.
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.
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).
2014, when he was 30 years old, plaintiff sued Silverman and
defendant. Plaintiff's claims against defendant
alleged negligence and IIED for her role in Silverman's
abuse of plaintiff. Specifically, the complaint alleged the
"PLAINTIFF and other boys *** were invited to the
property by [defendant and Silverman] and their son for