L. L., a Minor Child, by and through Tim Nay, guardian ad litem of L. L., Plaintiff-Appellant,
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.
and submitted November 19, 2019.
Multnomah County Circuit Court 16CV30046 Eric L. Dahlin,
K. Olson argued the cause for appellant. Also on the briefs
was Law Offce of Erin Olson, P.C.
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.
Lagesen, Presiding Judge, and Powers, Judge, and Sercombe,
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.
Or.App. 224] LAGESEN, P.J.
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.
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).
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.
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.
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 ...