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Buchwalter-Drumm v. State

Court of Appeals of Oregon

September 27, 2017

Pamela BUCHWALTER-DRUMM, as guardian ad litem for D. B., a Minor Child, Plaintiff-Appellant,
v.
STATE OF OREGON, by and through its Department of Human Services, Defendant-Respondent.

          Argued and submitted November 6, 2015.

         Lane County Circuit Court 161320441; R. Curtis Conover, Judge.

          Kristian Roggendorf argued the cause for appellant. With her on the briefs were Roggendorf Law LLC and David Paul and David Paul PC.

          Cecil A. Reniche-Smith, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before DeVore, Presiding Judge, and Powers, Judge, and Flynn, Judge pro tempore. [*]

         [288 Or. 65] Case Summary: Plaintiff, a minor acting through his stepmother as guardian ad litem, fled a negligence action against the state Department of Human Services (DHS). The state successfully moved for summary judgment asserting that: (1) plaintiff failed to file a timely tort claim notice under the Oregon Tort Claims Act (OTCA); and (2) the state could not be held liable for harm that plaintiff suffered before coming DHS's custody because no special relationship existed. On appeal, plaintiff argues that there was a genuine issue of material fact as to the timeliness of his notice because, contrary to the state's position, in a case involving an injury to a minor, it is the minor who must discover his or her cognizable injury before the time to provide notice of tort claim begins to run. Second, plaintiff argues that the state's liability in the case was not based on a special relationship, but rather on a determination of whether the state negligently failed to respond to a foreseeable risk of harm to plaintiff-a standard under which the evidence presented a genuine issue of material fact. Held: The trial court erred in granting the state's motion for summary judgment. First, genuine issues of material fact preclude a determination on summary judgment that plaintiff's tort claim notice was untimely. The time for fling a minor's tort claim commences when the minor discovers the cognizable injury. Although stepmother's knowledge could be imputed to plaintiff once she became his guardian ad litem, there was no legal basis for imputing to plaintiff the knowledge that stepmother acquired prior to that appointment. A reasonable trier of fact could find that plaintiff did not discover the cognizable injury at any point prior to stepmother becoming his guardian ad litem, which occurred within the 270-day period applicable to providing notice of claims by a minor. Second, the state was not entitled to summary judgment on the issue of negligence. The intervening criminal acts of a third party do not necessarily preclude liability in the absence of a special relationship and the record contains genuine issues of material fact regarding whether the state failed to reasonably address a foreseeable risk of harm.

         [288 Or. 66]

          FLYNN, J. PRO TEMPORE

         Plaintiff, a minor acting through his stepmother as guardian ad litem, brought this negligence action against the state Department of Human Services (DHS), for harm that he suffered due to sexual abuse by his mother's boyfriend, Price.[1] After being taken into DHS custody, plaintiff disclosed the abuse to his stepmother, who hired a lawyer a year later, and the lawyer sent a notice of tort claim and filed this action. The state successfully moved for summary judgment, contending that plaintiff failed to file a timely notice of tort claim and that the state cannot be held liable for harm that plaintiff suffered before coming into DHS custody.

         The trial court granted the motion without specifying the bases for its ruling, and plaintiff has appealed. We conclude that the time for filing a minor's tort claim notice commences when the minor discovers the cause of action and that genuine issues of material fact preclude a determination on summary judgment that plaintiff discovered the cause of action outside of the 270-day filing period applicable to claims by a minor. We also conclude that genuine issues of material fact preclude summary judgment on the issue of the state's liability, because the evidence would permit a reasonable trier of fact to find that the state failed to reasonably address a foreseeable risk that plaintiff would suffer the type of harm that he allegedly suffered. Accordingly, we reverse.

         We review an order granting summary judgment for errors of law and will affirm if we determine that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. See Doe v. Silverman. 286 Or.App. 813, 814-15, 399 P.3d 1069 (2017) (Silverman) (citing ORCP 47 C). The standard "no genuine issue as to any material fact" means that "no objectively reasonable juror could return a verdict for the adverse party [288 Or. 67] on the matter that is the subject of the motion for summary judgment." ORCP 47 C. In determining whether summary judgment is appropriate, "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." Silverman, 286 Or.App. at 815 (citing Jones v. General Motors Corp., 325 Or. 404, 408, 939 P.2d 608 (1997)). We describe the facts in accordance with that standard.

         I. BACKGROUND

         Price's long history as a person of concern to DHS is documented in a 2006 report and recommendation by DHS to the Lane County Juvenile Court. Price first came to DHS's attention as early as December 2002, when the teenage daughter of a different girlfriend reported that Price had grabbed her breasts and made a lewd comment about them. The document indicates that DHS coded the girl's report "founded, " that law enforcement became involved, and that Price was "charged with sexual harassment and put on probation."[2] In 2005, DHS learned that the younger sister of the 16-year-old was reporting that Price touched her on her breasts and legs and watched her in the shower. DHS determined that the new report "was founded for sexual abuse, sexual exploitation and threat of harm." DHS obtained jurisdiction over the younger sister and over Price's own 5-year-old daughter, who also lived in the home, based in part on the determination that Price "presents a risk of harm to the child" based on his past "inappropriate sexual contact."

         Near the end of 2006, DHS received a report that Price was living with plaintiff's mother. DHS authored an assessment summary regarding children living in the home, including plaintiff, who was then three years old. That summary documented DHS's concern that "mother's live-in companion, " Price, "has sexually abused children, is not safe to be around children unsupervised, and the mother of these children does not believe her companion is a danger to the children." In a summary of safety concerns, DHS recited that [288 Or. 68] Price "failed a polygraph denying sexually abusing his own children, " and that a doctor who performed a psycho-sexual evaluation "recommended that Price not have any unsupervised contact with minors."

         Under the heading "safety threat identification, " the 2006 report on plaintiff's home indicates that "Price is a possible sex abuse perpetrator, " but also that "[h] e has never been convicted of a sex crime and Juvenile Court does not have jurisdiction in regards to sexual abuse." DHS coded the referral "unfounded" but obtained agreement from plaintiff's mother that Price would have no unsupervised contact with her children, would only come to the home at prescheduled times, and would only spend the night if all of the children were away with a safe care provider. At the same time, in the case involving the earlier children, DHS reported to the juvenile court that "Price needs to be monitored in completing sex abuse treatment and not being unsupervised around children under age 18."

         Three years later, in July 2009, DHS prepared another assessment summary of plaintiffs family. The summary indicated that Price was continuing his relationship with plaintiff's mother, and that he was the father of plaintiff's younger half-sibling, as well as of another child with whom plaintiffs mother was pregnant. In that assessment, the DHS caseworker identified as a safety threat that Price "has an open case with the agency due to founded sex abuse, and has been advised not to have unsupervised contact with children under 18."

         Shortly after preparing that summary, DHS filed a petition for jurisdiction over plaintiff and the other children. As to plaintiff, the petition alleged that his mother had failed to protect him "from Threat of Harm of Sexual Abuse in that; the mother has continued an ongoing relationship with" Price and had allowed Price "to have ongoing unsupervised contact" with plaintiff, despite being aware that Price had been advised to have no contact with minor children. As a "placement" for plaintiff, DHS continued to let him live with his mother. The court's order of jurisdiction specified that "mother shall have no contact with Price without the prior approval of DHS."

         [288 Or. 69] Two months later, however, DHS informed the juvenile court that plaintiff's mother had "allowed Mr. Price to have ongoing, unsupervised contact with the child." DHS eventually removed plaintiff from his mother's care in January 2010, and placed him in foster care.

         On May 27, 2011, plaintiff disclosed to his stepmother that he had been sexually abused by Price, describing an incident in which Price took plaintiff to a school conference and then abused him in a bathroom stall. Stepmother consulted with a lawyer on May 21, 2012, approximately one year after plaintiff's disclosure. The lawyer sent a tort claim notice to DHS on June 15, 2012, and stepmother was appointed guardian ad litem to pursue this action.

         As indicated above, the state filed a motion for summary judgment asserting both that plaintiff failed to give timely notice of the action as required under the Oregon Tort Claims Act (OTCA) and that DHS could not be held liable for harm from Price's actions before the time that plaintiff came into the state's jurisdiction because there existed no "special relationship" between the state and plaintiff prior to that time. The trial court granted the motion for summary judgment without specifying the basis or bases for its ruling.

         II. ANALYSIS

         A. Timeliness of the ...


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