492 P.3d 31
Or.2021Background
- Plaintiff (Sherman) alleged physical, emotional, verbal, and sexual abuse while in DHS foster care; she left foster care in 2006.
- Plaintiff requested her DHS file in 2015, received it in Sept. 2016, and sued within two years of receipt but more than 10 years after the alleged abuse.
- Claims: negligence and violation of the Vulnerable Person Act (ORS 124.105) alleging DHS knew of abuse but failed to protect her.
- Defendant (DHS) moved to dismiss under OTCA immunity, relying on ORS 30.265(6)(d) and arguing plaintiff’s claims were barred by ORS 12.115 (10‑year statute of ultimate repose) and that ORS 30.275(9)’s two‑year rule supersedes ORS 12.117.
- Plaintiff invoked ORS 12.117 (extended limitations for child abuse claims). The trial court dismissed; the Court of Appeals reversed; the Oregon Supreme Court affirmed the Court of Appeals, reversed the circuit court, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 30.275(9) (OTCA two‑year rule) supersedes and nullifies ORS 12.117 (child‑abuse limitations) | ORS 30.275(9) establishes a two‑year limitation but does not render ORS 12.117 ineffective | ORS 30.275(9) displaces any chapter 12 statute that "provides a limitation on the commencement of an action," so ORS 12.117 is superseded for OTCA claims | Court: ORS 30.275(9) imposes a two‑year limitation for OTCA suits but does not make other statutes (like ORS 12.117) a nullity; it works in tandem with ORS 30.265(6)(d) to give effect to other statutes |
| Whether ORS 12.117 applies to child‑abuse claims against public bodies (i.e., whether DHS is immune under ORS 30.265(6)(d)) | ORS 12.117 applies generally to actions based on child abuse and, when read with the OTCA, may be given effect for timing questions; plaintiffs alleging child abuse are not deprived of ORS 12.117 protections simply because defendant is a public body | Legislature did not intend ORS 12.117 to apply to public bodies; public bodies get different treatment under OTCA and are entitled to immunity if claims are barred by other statutes | Court: ORS 12.117 applies to all child‑abuse claims by its plain text; ORS 30.265(6)(d) gives public bodies the benefit of statutes that bar claims but does not expand immunity beyond the OTCA’s terms; the trial court erred in dismissing |
Key Cases Cited
- Doe v. Lake Oswego School Dist., 353 Or. 321 (standard for reviewing OTCA dismissal; assume truth of well‑pleaded facts)
- Josephs v. Burns & Bear, 260 Or. 493 (describing purpose of ORS 12.115 as an ultimate repose statute)
- Baker v. City of Lakeside, 343 Or. 70 (analyzing scope of ORS 30.275(9) and interaction with other commencement rules)
- Bell v. Tri‑Met, 353 Or. 535 (held ORS 30.275(9) supplies the operative limitation for OTCA suits over conflicting chapter 12 limitations)
- Dowers Farms v. Lake County, 288 Or. 669 (two‑year OTCA limitation runs from discovery/when plaintiff should have discovered injury)
- O’Brien v. State of Oregon, 104 Or. App. 1 (Court of Appeals decision that prompted legislative amendment to preserve statutes of repose for public bodies)
- Young v. State of Oregon, 346 Or. 507 (discussing when statutes that do not expressly mention the state nonetheless apply after OTCA waiver)
- Griffin v. Tri‑Met, 318 Or. 500 (assumed OTCA waiver encompassed consequential awards in the absence of explicit statutory exclusion)
- Newport Church of the Nazarene v. Hensley, 335 Or. 1 (explaining reluctance to imply waiver of sovereign immunity absent clear legislative expression)