259 P.3d 27
Or. Ct. App.2011Background
- Plaintiffs, adult males molested by a fifth-grade teacher (Johnson) between 1968 and 1984, sue Lake Oswego School District under OTCA for sexual battery and IIED, plus a federal §1983 claim and declaratory relief.
- OTCA claims are subject to notice and a two-year limitations, with a 270-day notice window for minors; OTCA also provides a discovery rule delaying accrual.
- Plaintiffs allege district knew of prior abuse by Johnson and failed to act, instead transferring him; alleged a pattern or practice relevant to §1983.
- Trial court dismissed OTCA claims as untimely, dismissed the §1983 claim for failure to plead deliberate indifference, and dismissed declaratory relief as meritless; negligence claim dismissed with prejudice.
- On appeal, court vacates in part, remands to enter declaration about OTCA limitations, otherwise affirms dismissal of most OTCA and §1983 claims, and rejects constitutional challenges to OTCA notice rules.
- Court rejects claims that discovery rule saves timely filing for sexual battery/IIED; injury is the legally cognizable harm of the touching itself.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| OTCA timing and discovery rule apply? | Discovery rule delays accrual, saving time-barred claims. | OTCA limits begin at injury and discovery cannot save sexual battery/IIED claims. | Discovery rule does not save those OTCA claims. |
| Whether injury under OTCA for sexual abuse is recognized only at the time of touching? | Plaintiffs did not recognize harm earlier due to psychology; injury occurred later. | Injury for OTCA sexual battery is the touching itself, not later harm. | Injury is the touching itself; discovery cannot toll accrual. |
| §1983 claim viability against the school district for deliberate indifference? | District policy/custom caused constitutional violations via deliberate indifference. | Complaint lacks policy-maker action and causal link; no deliberate indifference. | Court did not reach statute issue; §1983 claim dismissed for failing to plead policy and deliberate indifference. |
| Preservation of negligence claim timeliness? | Negligence timely despite discovery issues; mother’s knowledge imparts knowledge to child? | Negligence treated the same as other OTCA claims; not separately argued. | Issue preserved unclear; court does not address distinct timing of negligence claim. |
| Declaratory relief regarding OTCA constitutionality? | OTCA notice/limitations unconstitutional under state and federal due process. | Constitutional challenges to OTCA notice have been rejected previously. | Declaratory judgment reversed; case remanded to declare OTCA limitations constitutional. |
Key Cases Cited
- Cooksey v. Portland Public School Dist. No. 1, 143 Or.App. 527, 923 P.2d 1328 (1996) (OTCA injury tied to sexual touching; discovery rule applies to accrual)
- Gaston v. Parsons, 318 Or. 247, 864 P.2d 1319 (1994) (OTCA discovery rule applicability)
- Edwards v. State of Oregon, 217 Or.App. 188, 175 P.3d 490 (2007) (OTCA notice accrual: injury, tortfeasor identity, cause explained)
- Dowers Farms v. Lake County, 288 Or. 669, 607 P.2d 1361 (1980) (state sovereign immunity context and OTCA coverage)
- Brown v. Portland School Dist. # 1, 48 Or.App. 571, 617 P.2d 665 (1980) (OTCA notice requirement; equal/due process challenges rejected)