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Doe v. Silverman

Court of Appeals of Oregon

August 16, 2017

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

          Argued and submitted March 8, 2016

         Jackson County Circuit Court 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, Attorneys at Law.

          Jesse Wm. Barton argued the cause and fled the brief for respondent.

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

         Case Summary:

         When plaintiff was 30 years old, he fled claims for negligence, sexual battery, and intentional infliction of severe emotional distress against defendant based on defendant's sexual abuse of plaintiff when plaintiff was a minor. The trial court dismissed plaintiff's claims as untimely based on the 1993 version of ORS 12.117, which required plaintiff to file his claims before he turned 24 years old. On appeal, plaintiff argues that the trial court should have applied the current version of ORS 12.117, which would allow plaintiff to file his claims anytime before he turns 40 years old.

         Held:

         The current version of ORS 12.117 applies to any applicable cause of action for which judgment had not been entered before the effective date of the 2009 amendment to that statute, which includes plaintiff's claims against defendant. Accordingly, the trial court erred in dismissing as untimely plaintiff's claims against defendant because plaintiff had not yet turned 40 years old when he fled his claims.

         Reversed and remanded.

         [287 Or. 248] ARMSTRONG, P. J.

         Plaintiff appeals a limited judgment dismissing his claims for negligence, sexual battery, and intentional infliction of severe emotional distress that he brought against defendant Silverman.[1] Plaintiff brought those claims when he was 30 years old based on Silverman's sexual abuse of plaintiff when plaintiff was a minor. The trial court granted defendant summary judgment based on its conclusion that it should apply the 1993 version of ORS 12.117-the version in effect when Silverman abused plaintiff-which provided that claims based on child abuse "shall be commenced not more than six years after that person attains 18 years of age." On appeal, plaintiff contends that the trial court erred in dismissing his complaint because the court should have applied the current version of ORS 12.117-the version in effect when plaintiff filed his lawsuit-which provides that such an action "must be commenced before the person attains 40 years of age."[2] We conclude that the trial court did so err and, accordingly, reverse and remand.

         While a minor, plaintiff was good friends with defendant's son. In 1996, defendant sexually abused plaintiff on several occasions while plaintiff was a guest in defendant's home and at least once in plaintiff's home. In 1997, defendant was convicted of committing first-degree sexual abuse against plaintiff. 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 plaintiff was 30 years old, plaintiff brought this complaint against defendant and defendant's wife, Dixon. Plaintiff alleged claims against defendant for negligence, sexual battery, and intentional infliction of severe emotional distress. Defendant moved for summary judgment on the ground that plaintiffs complaint was time barred under the 1993 version of ORS 12.117, which required [287 Or. 249] plaintiff to commence his action no later than when he became 24 years old. ...


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