358 P.3d 307
Or. Ct. App.2015Background
- Davis appeals after the trial court granted summary judgment for the state and denied his partial summary judgment, concerning whether the state must defend him under OTCA (ORS 30.260–30.300) for defense costs.
- The principal plaintiff (another EOU employee) alleged rape at an Atlanta conference; Davis admitted a sexual encounter occurred but claimed it was consensual.
- The complaints include claims of sex discrimination, battery, and intentional infliction of emotional distress arising from the Atlanta incident and its aftermath.
- Davis sought a defense under ORS 30.285; the Attorney General denied defense after finding the claims did not arise out of acts in the performance of duty.
- Both sides moved for summary judgment; the trial court held the sex act was not within the performance of Davis’s duties, and the state’s cross-motion was granted.
- The appellate court affirmed, holding that the claims did not arise out of an act or omission occurring in the performance of duty and that the three Chesterman factors do not support as a matter of law a defense entitlement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 30.285 requires a defense based on alleged acts, regardless of factual causation. | Davis argues allegations show acts within performance of employment. | State contends allegations alone do not establish an acts-in-duty relation; AG determines based on fact. | No; allegations alone insufficient; must show in fact arising from performance. |
| Whether the alleged sexual encounter occurred within the performance of Davis’s employment per Chesterman factors. | Davis was performing conference duties and had access/authority over plaintiff. | No evidence links the act to employment duties; not within scope. | Not within the scope of employment as a matter of law. |
| Whether public policy underlying OTCA supports indemnity for this private misconduct. | Defense obligation should be construed to cover acts arising from employment. | Policy favors defense only for acts within scope of employment; private acts excluded. | Policy supports denial of defense where act is private and not within employment duties. |
Key Cases Cited
- Chesterman v. Barmon, 305 Or 439 (Or. 1988) (three-factor test for scope of employment; summary judgment appropriate when only one conclusion)
- City of Tualatin v. City-County Ins. Services Trust, 129 Or App 198 (Or. App. 1994) (scope of employment framework under ORS 30.265/30.285)
- Howell v. Boyle, 353 Or 359 (Or. 2013) (scope of employment tied to public body liability)
- Durham v. City of Portland, 181 Or App 409 (Or. App. 2002) (OTCA acts within scope of employment must be brought against public body)
- Fearing v. Bucher, 328 Or 367 (Or. 1999) (employment relationship not sufficient; need connection to duties)
- Stevenson v. State of Oregon, 290 Or 3 (Or. 1980) (policy justifications for OTCA defenses and public employment incentives)
- Welker v. TSPC, 152 Or App 190 (Or. App. 1998) (policy rationale for OTCA defense limits)
- Smith v. Pernoll, 291 Or 67 (Or. 1981) (historical immunity context and OTCA purpose)