Pamela BUCHWALTER-DRUMM, as guardian ad litem for D. B., a Minor Child, Plaintiff-Appellant,
STATE OF OREGON, by and through its Department of Human Services, Defendant-Respondent.
and submitted November 6, 2015.
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.
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
DeVore, Presiding Judge, and Powers, Judge, and Flynn, Judge
pro tempore. [*]
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.
J. PRO TEMPORE
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. 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
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.
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.
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." 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."
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."
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."
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."
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
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.
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.
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.
Timeliness of the ...