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L. L. v. State

Court of Appeals of Oregon

December 11, 2019

L. L., a Minor Child, by and through Tim Nay, guardian ad litem of L. L., Plaintiff-Appellant,
v.
STATE OF OREGON, by and through its Department of Human Services, Defendant-Respondent, and FIRST STUDENT INC., a foreign business corporation, and Gresham Barlow School District, Defendants.

          Argued and submitted November 19, 2019.

          Multnomah County Circuit Court 16CV30046 Eric L. Dahlin, Judge.

          Erin K. Olson argued the cause for appellant. Also on the briefs was Law Offce of Erin Olson, P.C.

          Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and Powers, Judge, and Sercombe, Senior Judge.

         Case Summary:

         Plaintiff is the guardian ad litem of a minor who was sexually abused by another minor in foster care. Plaintiff sued the state by and through the Department of Human Services (DHS), bringing claims for strict liability under ORS 30.297 and abuse of a vulnerable person under ORS 124.100. [301 Or.App. 223] The trial court granted summary judgment to the state on both of those claims. It concluded that ORS 30.297 only allowed for claims brought by foster parents, and that plaintiff did not offer evidence showing that DHS "permitted" the abuse, as required by ORS 124.100. On plaintiff's appeal, DHS concedes that the grant of summary judgment on the strict liability claim should be reversed but contends that the trial court properly granted summary judgment on the abuse of a vulnerable person claim based on plaintiff's failure to produce evidence showing that DHS "permitted" the abuse. Held: As DHS concedes, ORS 30.297 does not apply only to claims brought by foster parents and, for that reason, the grant of summary judgment on the strict liability claim was erroneous. As for plaintiff's abuse of a vulnerable person claim, DHS did not adequately raise in its motion for summary judgment the issue of whether plaintiff could produce sufficient evidence to show that DHS "permitted" the abuse. Accordingly, the trial court erred in granting summary judgment on that claim.

         [301 Or.App. 224] LAGESEN, P.J.

         While on a school bus, T, a minor child in foster care, exposed himself to L, another minor child in foster care. According to L, T also subjected her to other sexual contact. Plaintiff-L's guardian ad litem-sued the state by and through the Department of Human Services (DHS) (among others), alleging claims for strict liability under ORS 30.297, negligence, and abuse of a vulnerable person under ORS 124.100. The trial court granted summary judgment to the state on the claims under ORS 30.297 and ORS 124.100 and, after plaintiff voluntarily dismissed the negligence claim under ORCP 54 (A)(2), entered a limited judgment dismissing all claims against the state. We reverse and remand, in large part because DHS has, for the most part, withdrawn the arguments in support of summary judgment that it presented to the trial court.

         We review the trial court's grant of summary judgment for legal error "to determine whether there is no genuine issue of material fact and [whether] the moving party is entitled to judgment as a matter of law." Evans v. City of Warrenton, 283 Or.App. 256, 258, 388 P.3d 1167 (2016); ORCP 47 C. In so doing, we view the facts in the light most favorable to the nonmoving party, in this case, plaintiff. Woodroffe v. State of Oregon, 292 Or.App. 21, 24, 422 P.3d 381 (2018).

         Although DHS disputes some of the substantive facts, in accordance with our standard of review, we state them in the light most favorable to plaintiff. Viewed in that light, T, a foster child, exposed his penis to L, touched her vagina, and coerced her into touching his penis. L is also a foster child and is developmentally disabled. The contact with T caused L to suffer a range of noneconomic damages.

         The procedural facts are not disputed and are the facts most pertinent to the issues on appeal. Plaintiff sued DHS, among others, for T's conduct. Plaintiff alleged three claims against DHS. In the first, plaintiff alleged that T's conduct constituted an intentional tort of a foster child, for which DHS was liable under ORS 30.297. In the second, plaintiff alleged that the abuse of L was the product of DHS's negligence. In the third, plaintiff alleged that the abuse of [301 Or.App. 225] L was the abuse of a vulnerable person for which DHS was liable under ORS 124.100 because it had "permitted" that abuse.

         DHS moved for summary judgment on all three claims, although it later withdrew is motion on the negligence claim. DHS's asserted ground for summary judgment on the first claim was that ORS 30.297 only provided for claims by foster parents and did not authorize claims against DHS for the intentional torts of foster children by persons other than foster parents. DHS's asserted ground for summary judgment on the ORS 124.100 claim was as follows:

"DHS is entitled to summary judgment on Plaintiffs Third Claim for Relief ('Abuse of a Vulnerable Person-ORS 124.100') because such claims can only be brought against the person actually committing or allowing the physical or financial abuse (no general vicarious liability), and because punitive damages ...

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