§4.3 Claims and Theories

• Library: Torts (OSBar) (2012 Ed.)

§4.3 CLAIMS AND THEORIES

In the context of institutional child abuse, a great number of claims—both common law and statutory—may present themselves based on the facts of the case. Each of these specific torts are discussed in greater detail in their respective chapters of this book. Sections 4.3-1(a) to 4.3-1(b)(6) focus on how these tort claims fit into a childhood sexual abuse action.

§4.3-1 Common Law

§4.3-1(a) Basic Theories

§4.3-1(a)(1) Assault and Battery

The nature and details related to the torts of assault and battery are found in chapter 1.

The most basic claim in the childhood sexual abuse case is a battery or an assault, or both.

At common law, the torts of assault and battery consisted of the following elements: (1) an actor acts intending to cause a harmful or offensive touching with the person of another or a third person, or an imminent apprehension of such contact; and (2) a harmful or offensive contact with the person of the other directly or indirectly results (battery) or the other person is thereby put in such imminent apprehension (assault). Restatement (Second) of Torts, §§13, 18, 21 (1974).

Foster v. Miramontes, 236 Or App 381, 388, 236 P3d 782 (2010), rev. allowed, 350 Or 230 (2011).

With respect to a child, sexual touching is inherently a battery. By law, a minor cannot consent to any sexual activity. ORS 163.315(1)(a). If the perpetrator is another child, consent can be a defense if the perpetrator is within three years of age of the victim, but only in criminal prosecutions. ORS 163.345(1). Therefore, there are no substantive defenses to a tort claim of sexual touching of a child, only denials and the statute of limitations.

NOTE: Assault may not be present when the abuse was limited in occurrences, and the survivor felt confusion as opposed to apprehension or fear at the touching, and the damages from the apprehension would normally be less than the damages from the actual sexual touching.

Assault and battery give rise to claims for punitive damages, as well. Roshak v. Leathers, 277 Or 207, 213, 560 P2d 275 (1977) (punitive damages may be awarded for assault and battery). Actions for assault and battery, existing at common law in 1857, are therefore not subject to the cap on noneconomic damages. See the discussion in §4.4-6.

Early cases that applied the doctrine of respondeat superior held that only batteries that were specifically ordered or authorized by the principal would subject the principal to liability. Walthers v. Gossett, 148 Or App 548, 558, 941 P2d 575 (1997) (employee's "sexual abuse could not have been motivated by an intent to serve the corporation, nor was fondling a patient the type of act he was hired to perform"). As noted in §4.2-3(c), however, the former rule that sexual torts are inherently outside the scope of agency or employment has been abrogated in favor of liability for a principal when actions in the course and scope of agency or employment "resulted in" such intentional torts. Fearing v. Bucher, 328 Or 367, 373-374 n 4, 977 P2d 1163 (1999) ("[A]n employee's intentional tort rarely, if ever, will have been authorized expressly by the employer. In that context, then, it virtually always will be necessary to look to the acts that led to the injury to determine if those acts were within the scope of employment.").

§4.3-1(a)(2) Intentional Infliction of Emotional Distress

The nature and details related to the tort of intentional infliction of emotional distress (IIED) are found in chapter 3.

Not all sexual abuse involves touching. See Schmidt v. Archdiocese of Portland in Oregon, 235 Or App 516, 522-523, 234 P3d 990 (2010) (seminarian required to watch priest's sexual act). For such conduct, a claim for IIED may be brought. "To prevail on an IIED claim, a plaintiff must prove that (1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant's actions caused the plaintiff severe emotional distress, and (3) the defendant's actions transgressed the bounds of socially tolerable conduct." Schiele v. Montes, 231 Or App 43, 48, 218 P3d 141 (2009).

The doctrine of vicarious liability (see §4.3-1(b)) applies to claims for IIED. In Schmidt, 235 Or App at 522-523, the court held that a jury question existed regarding whether the defendant priest, who was the minor plaintiff's faculty advisor and dormitory proctor, was acting in the course and scope of employment when he obviously masturbated underneath his cassock during a private meeting with the plaintiff.

COMMENT: In an earlier opinion in the Schmidt case, the Oregon Supreme Court held that the priest's conduct "demonstrates a wanton disregard for plaintiff's welfare and a willingness to have plaintiff suffer psychological harm as a result of [the priest's] acts." Schmidt v. Mt. Angel Abbey, 347 Or 389, 400, 223 P3d 399 (2009)). Although the Oregon Supreme Court's discussion referred to the definition in ORS 12.117 of cruelty to a child (see §4.4-1(c)), this description would satisfy both the first and third elements of an IIED claim.

In Foster v. Miramontes, 236 Or App 381, 388 n 4, 236 P3d 782 (2010), rev. allowed, 350 Or 230 (2011), the court raises the question of whether the cap on noneconomic damages (ORS 31.710) might apply to IIED claims. See §4.4-6 for further discussion of this statutory cap on damages.

§4.3-1(a)(3) Negligence

The nature and details related to the tort of negligence are found in chapter 8.

To state a claim for negligence, a plaintiff must show:

(1) that defendant's conduct caused a foreseeable risk of harm, (2) that the risk is to an interest of a kind that the law protects against negligent invasion, (3) that defendant's conduct was unreasonable in light of the risk, (4) that the conduct was a cause of plaintiff's harm, and (5) that plaintiff was within the class of persons and plaintiff's injury was within the general type of potential incidents and injuries that made defendant's conduct negligent.

Solberg v. Johnson, 306 Or 484, 490-491, 760 P2d 867 (1988). Generally, liability attaches in three situations:

(1) When the defendant creates the danger. Fazzolari By and Through Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 12, 734 P2d 1326 (1987) ("[l]egal fault is predicated on blameworthiness in the sense that a defendant's conduct is, according to community standards, generally considered as creating a danger to persons in the situation in which the plaintiff finds himself") (citation and internal quotation marks omitted);

(2) When the defendant owes a duty to the plaintiff to protect him or her from the type of danger posed because of a special relationship. Fazzolari, 303 Or at 19 ("a school's 'duty of supervision' . . . is a special duty arising from the relationship between educators and children entrusted to their care apart from any general responsibility not unreasonably to expose people to a foreseeable risk of harm"); or

(3) When there has been a failure to warn of a known danger, and a four-part test is satisfied related to the burden on the defendant of warning the plaintiff. Fuhrer v. Gearhart-By-The-Sea, Inc., 306 Or 434, 439, 760 P2d 874 (1988) ("[e]ven if there is no relationship between the parties, if the risk is great, either in likelihood or magnitude, and the cost is minimal, the reasonableness of the action should be determined by the factfinder").

These are not exclusive categories of liability, but rather inform one another in the court's and jury's evaluation of a negligence claim. Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or 329, 341, 83 P3d 322 (2004) (although special relationship between defendant and plaintiff may establish duty of care on defendant's part, "the scope of that particular duty in that particular relationship turns out to be limited to harms to plaintiff that were reasonably foreseeable") (emphasis in original).

In the context of childhood sexual abuse claims, the law of negligence presents some peculiarities. First, the question of foreseeability is often litigated because what a person or institution knew about the risk of child abuse, and when they knew it, is usually hotly contested. Further complicating the analysis is the fact that childhood sexual abuse almost always occurs in secret—skillful pedophiles usually groom and abuse children out of view of any potential witnesses.

NOTE: For discussion of the practice of "grooming," see < http://en.wikipedia.org/wiki/Child_grooming >.

Moreover, much of what pedophiles do in grooming children can appear to be similar to what a trusted adult acting in good faith would do: spending time with a child, winning that child's admiration and trust, acting as a mentor to the child, and similar functions. Defendants are often troubled by the suggestion that they should have been more suspicious of such grooming activity, arguing that to forbid any such interaction between an adult and a child would forfeit much of the value of youth programs, given that the sponsoring role model is one of the main goals of youth service organizations.

Also contested are questions of the standard of care. Defendants may argue that the societal understanding and awareness of the risks of childhood sexual abuse, and the way in which predators operate, has only developed in the last decade or so, and that they should not be judged by contemporary standards of care when the abuse at issue may have occurred decades ago.

In the child abuse context, direct negligence of an individual often exists when that person knows or should know of a perpetrator's danger—for example, the spouse of a perpetrator, a supervisor or other superior who had received prior complaints about the perpetrator's behavior, or a co-perpetrator. Thus, foreseeability and failure-to-warn almost always play a decisive role in the analysis of a claim's viability. Foreseeability in childhood sexual abuse cases can turn on whether the perpetrator has any history of known or discoverable sexually...