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Skille v. Martinez

Court of Appeals of Oregon

October 11, 2017

Kia SKILLE, Plaintiff-Appellant,
v.
Tony Rey MARTINEZ, in his individual capacity, Defendant, and OREGON STATE HOSPITAL, a State agency; and Department of Human Services, a State agency, Defendants-Respondents.

          Argued and submitted May 17, 2016.

         Marion County Circuit Court 14C18124; Dale Penn, Judge.

          Kevin T. Lafky argued the cause for appellant. With him on the briefs were Daemie M. Kim and Lafky & Lafky.

          Peenesh Shah, Assistant Attorney General, argued the cause for respondents. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before DeVore, Presiding Judge, and Garrett, Judge, and Wollheim, Senior Judge. [*]

         [288 Or.App. 208] Case Summary:

         Plaintiff asserted tort claims against the Department of Human Services (DHS) and the Oregon State Hospital (OSH), alleging that Martinez, an OSH employee, had sexually assaulted plaintiff by using his custodial position to "groom" her and obtain sexual favors from her while she was a resident of OSH. The alleged tortious conduct occurred during a three-year period ending in 2013, and plaintiff did not file her action until July 2014, shortly after she learned that Martinez had been accused of abusing other patients in the course of his custodial duties and that he faced criminal charges for that conduct. Upon defendants' motion, the trial court entered a limited judgment dismissing plaintiff's claims against DHS and OHS with prejudice, ruling that plaintiff's notice under the Oregon Tort Claims Act, ORS 30.275, was untimely. On appeal, plaintiff assigns error to the trial court's conclusion that a reasonable trier of fact could not find that plaintiff was not reasonably aware of the tortious nature of Martinez's conduct until she learned of his conduct involving other patients.

         Held:

         The trial court erred in its conclusion that plaintiff's notice was untimely. Based on the facts alleged by plaintiff, a reasonable trier could find that, due to circumstances that distinguish plaintiff from other adults, plaintiff was susceptible to exploitation by Martinez, and, accordingly, did not know of the offensive nature of his conduct until she learned that he had engaged in similar conduct with other women.

         Reversed and remanded.

         [288 Or.App. 209] GARRETT, J.

         Plaintiff brought this action against the Department of Human Services (DHS), the Oregon State Hospital (OSH), and Martinez, an OSH employee, alleging that Martinez sexually assaulted her by means of using his custodial position to "groom" her and exploit her mental illness and vulnerability to obtain sexual favors while she was under the jurisdiction of the Psychiatric Security Review Board (PSRB) and a resident at OSH. Plaintiff asserted tort claims for assault and battery against DHS and OSH, along with substantive due process and cruel and unusual punishment claims, under 42 USC § 1983, against Martinez. The alleged tortious conduct occurred during a three-year period, which ended in 2013. Plaintiff, however, did not bring her action against defendants until July 2014, shortly after she learned that Martinez had been accused of abusing other patients in the course of his custodial duties.

         The state defendants moved to dismiss under ORCP 21 A(8) (providing for dismissal for "failure to state ultimate facts sufficient to constitute a claim") on the basis that plaintiff failed to allege facts sufficient to toll the statute of limitations provided by the Oregon Tort Claims Act (OTCA), ORS 30.275. The trial court agreed with the state and, by limited judgment, dismissed the tort claims against DHS and OSH with prejudice, concluding that plaintiffs notice was untimely because it was given more than 180 days after plaintiff knew or should have known of the alleged tortious conduct. For the reasons explained below, we conclude that the trial court erred in concluding that a reasonable trier of fact could not find that the sexual contact between plaintiff, a resident of OSH, and Martinez, an OSH employee in a position of authority over plaintiff, was offensive for purposes of assault and battery, and could not further find that plaintiff was unaware of the offensive nature of that contact until she learned other facts related to Martinez's conduct toward other patients. Accordingly, we reverse and remand the trial court's judgment of dismissal.

         Because this appeal arises from the trial court's grant of the state defendants' motion to dismiss under ORCP 21 A(8), "we assume that all well-pleaded facts" in [288 Or.App. 210] plaintiffs second amended complaint "are true and give plaintiff the benefit of all favorable inferences that reasonably may be drawn from those factual allegations." Piazza v. Kellim. 360 Or. 58, 61, 377 P.3d 492 (2016). Further, to state a claim under ORCP 21 A(8), "a complaint must contain factual allegations that, if proved, establish the right to the relief sought." Moser v. Mark. 223 Or.App. 52, 57, 195 P.3d 424 (2008). We review the trial court's grant of the motion to dismiss for failure to state a claim for legal error. Bundy v. NuStar GP. LLC. 277 Or.App. 785, 792-93, 373 P.3d 1141 (2016).

         Plaintiff brought this action in July 2014. Alleging that Martinez was acting within the course and scope of his employment, plaintiff asserted claims against DHS and OSH for assault and battery based on Martinez's "harmful and offensive contact." In her second amended complaint, plaintiff alleged that, in 2004, plaintiff was found guilty except for insanity of felony assault with a firearm based on mental disease or defect. In the criminal trial court, it was determined that plaintiff had experienced a psychotic break, and the court placed her under the jurisdiction of the PSRB for a period of 20 years. While under the jurisdiction of the PSRB and during the time of defendants' alleged tortious conduct, plaintiff was "medicated with a high dose of a selective serotonin and norepinephrine reuptake inhibitor and an antipsychotic medication, " and she received Social ...


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