Doe v. Lake Oswego School District

No. 12 March 7, 2013 321

IN THE SUPREME COURT OF THE

STATE OF OREGON

Jack DOE 1,

an individual proceeding under a fictitious name;

Jack Doe 2,

an individual proceeding under a fictitious name;

Jack Doe 3,

an individual proceeding under a fictitious name;

Jack Doe 4,

an individual proceeding under a fictitious name;

Jack Doe 5,

an individual proceeding under a fictitious name;

Jack Doe 6,

an individual proceeding under a fictitious name;

and Jack Doe 7,

an individual proceeding under a fictitious name,

Plaintiffs-Appellants,

Petitioners on Review,

v.

LAKE OSWEGO SCHOOL DISTRICT,

an Oregon public school district, authorized

and chartered by the laws of the State of Oregon,

Defendant-Respondent,

Respondent on Review,

and

Judd JOHNSON,

an individual,

Defendant-Respondent.

(CC CV-0802-0740; CA A140979; SC S059589)

On review from the Court of Appeals.*

Argued and submitted September 20, 2012; resubmitted

January 7, 2013.

Kelly Clark, O’Donnell Clark & Crew LLP, Portland,

argued the cause for petitioners on review. Kathryn H.

______________

*  Appeal from Clackamas County Circuit Court, James C. Tait, Judge. 242 Or

App 605, 259 P3d 27 (2011).

322 Doe v. Lake Oswego School District

Clarke, Portland, filed the brief for petitioners on review.

With her on the brief were Kelly Clark and Kristian

Roggendorf.

Timothy R. Volpert, Davis Wright Tremaine LLP,

Portland, argued the cause and filed the brief for respondent

on review. With him on the brief was David A. Ernst.

Erin K. Olson, Portland, filed the brief for amici curiae

Survivor’s Network of those Abused by Priests, National

Center for Victims of Crime, Cardozo Advocates for Kids,

Oregon Abuse Advocates and Survivors in Service, Crime

Victims United, KidSafe Foundation, Survivors for Justice,

Coalition of Jewish Advocates for Children, Jewish Parents

for Safe Yeshivas, National Black Church Initiative, Child

Victims Voice, Stop the Silence: Stop Child Sexual Abuse,

Inc., Jewish Board of Advocates for Children, and National

Child Protection Training Center.

Lisa T. Hunt, Portland, filed the brief for amicus curiae

Oregon Trial Lawyers Association.

Before Balmer, Chief Justice, and Kistler, Walters,

Linder, Brewer, and Baldwin, Justices.**

WALTERS, J.

The decision of the Court of Appeals is reversed. The

limited judgment of the circuit court is reversed, and the

case is remanded to the circuit court for further proceedings.

Plaintiffs brought a claim for battery under the Oregon Tort Claims Act based

on allegations that they had been sexually molested by their fifth-grade teacher

(Johnson), an employee of defendant Lake Oswego School District. The trial court

granted defendant’s motion to dismiss, concluding that the OTCA’s 2-year statute

of limitations necessarily began to run at the time that Johnson’s conduct occurred

and thus barred plaintiffs’ claims. The Court of Appeals affirmed. Held: Where

plaintiffs alleged that they were sexually molested by a trusted teacher but did

not comprehend the offensive nature of that conduct at the time, the trial court

was not required to conclude that plaintiffs’ claim for battery accrued on the date

that the touching occurred. The limitations period does not begin to run in a claim

under the OTCA until a plaintiff knows or should have known the tortious nature

of the conduct.

The decision of the Court of Appeals and the order and limited judgment of the

trial court are reversed, and the case is remanded for further proceedings.

______________

**  Landau, J., did not participate in the consideration or decision of this case.

Cite as 353 Or 321 (2013) 323

WALTERS, J.

At issue in this civil action is a trial court’s order

dismissing as untimely plaintiffs’ claims against a public

school district. Plaintiffs alleged that when they were in the

fifth grade, a teacher who worked for the district sexually

abused them, but that they did not know that their teacher’s

touching was abusive when it occurred. For the reasons that

follow, we conclude that the trial court erred in granting

the school district’s ORCP 21 motion to dismiss plaintiffs’

claims. We reverse the contrary decision of the Court of

Appeals and the limited judgment of the trial court, and we

remand for further proceedings.

The facts relevant to our decision are those set forth

in plaintiffs’ Third Amended Complaint.1 Plaintiffs have not

proved those facts to be true but, for purposes of deciding

whether the trial court erred in granting defendant’s ORCP

21 motion to dismiss, we assume their veracity. See Juarez

v. Windsor Rock Products, Inc., 341 Or 160, 163, 144 P3d 211

(2006) (on review of motion to dismiss, court assumes the

truth of well-pleaded facts).

Plaintiffs are seven adult men who were born

between 1957 and 1970. Between 1968 and 1984, each

plaintiff was a fifth-grade student in a class taught by

Johnson. During that time period, Johnson was employed

by the Lake Oswego School District (defendant), a

governmental entity.2 While serving as plaintiffs’ teacher,

Johnson engaged in a “grooming process” that involved

befriending plaintiffs, gaining their trust, admiration and

obedience, and conditioning them to respect Johnson as

a person of authority. As part of that “grooming process,”

Johnson also befriended plaintiffs’ families and gained their

trust, their permission to spend substantial periods of time

with plaintiffs, and the benefit of their instruction to their

1

The trial court dismissed the claims that plaintiffs asserted against the

school district in their Third Amended Complaint. We take the facts relevant to

our decision from the claims that plaintiffs labeled as claims for “Sexual Abuse of

a Child.”

2

Plaintiffs brought their action against both Johnson and the Lake Oswego

School District and both are defendants in this case. However, because it is the

trial court’s order dismissing plaintiffs’ claims against the district that is at issue

on review, we refer to the school district as “defendant” and to Johnson by name.

324 Doe v. Lake Oswego School District

sons to respect and comply with Johnson’s authority and

requests. Through use of the grooming process, Johnson

intentionally engaged in the following conduct:

“fondling [Jack Doe 1’s] genitals inside his clothing while

in the classroom in front of other students”; “fondling

[Jack Doe 2 and 3’s] genitals and buttock[s] [while they]

stood in the classroom in front of other students”; “fondling

[Jack Doe 4’s] genitals outside of his clothing while in the

classroom in front of other students”; “fondling [Jack Doe

5’s] genitals inside his clothing and ‘assisting’ [Jack Doe 5]

in urinating on several occasions”; and “fondling [Jack Doe

6 and 7’s] genitals[.]”3

Plaintiffs alleged that those acts constituted harmful

or offensive touching that caused them to suffer debilitating

physical, mental, and emotional injury. However, plaintiffs

alleged, they did not discover their injuries at the time of

Johnson’s touching. At that time, plaintiffs alleged, they did

not

“comprehend the abusive nature—and therefore could

not perceive the harm—of Johnson’s touching due to

the obedience, admiration, respect, and esteem which

[plaintiffs] had for Johnson * * *. [Plaintiffs were] unable

to recognize that [they] had been harmed at the time of the

abuse, because the touching * * * was similar enough to the

non-tortious touching by Johnson that occurred during and

was part of the grooming process that, as * * * young boy[s,

they were] confused by it and unable to discern at the time

that the touching was inappropriate or harmful.”

Plaintiffs alleged that the earliest date that any one of them

discovered his injuries was in November 2006; the latest

was in March 2008.

Plaintiffs commenced this action in February 2008.

Plaintiffs labeled some of their claims as claims for “Sexual

Abuse of a Child” and others as claims for “Intentional

3

Plaintiffs also alleged that Johnson engaged in intentional conduct “resulting

in some or all of the following: physical injury, mental injury, rape, sexual abuse,

and sexual exploitation[.]” (Emphasis added.) Plaintiffs immediately followed

those allegations with the specific allegations set out in the text above. Because the

parties base their arguments on the specific allegations set out in the text above,

and because plaintiffs alleged that Johnson engaged in some but not necessarily

all of the conduct set forth in their general allegations, we do not consider those

general allegations in our analysis.

Cite as 353 Or 321 (2013) 325

Infliction of Emotional Distress.”4 Plaintiffs brought those

claims under the Oregon Tort Claims Act (OTCA) and sought

to hold defendant vicariously liable for Johnson’s acts. One

plaintiff, Jack Doe 6, also sought to hold defendant liable

for its own allegedly negligent acts. Plaintiff Jack Doe 6

alleged that, in 1982 or 1983, defendant became aware that

Johnson had molested a boy away from school grounds and

thereafter was negligent in failing to terminate or supervise

Johnson. Plaintiff Jack Doe 6 alleged that he reasonably

did not discover defendant’s alleged negligence until March

2008.

Defendant filed a motion under ORCP 215 to

dismiss plaintiffs’ claims, asserting that plaintiffs had

failed provide notice of claim or to commence their action

within the time provided by ORS 30.275.6 Defendant argued

4

Plaintiffs also alleged claims for violation of their civil rights under 42 USC

section 1983. The trial court granted defendant’s motion to dismiss those claims

and the Court of Appeals affirmed. Doe v. Lake Oswego School District, 242 Or App

605, 621-23, 259 P3d 27 (2011). The Court of Appeals concluded that plaintiffs

had failed to plead facts necessary to constitute those claims—in particular, facts

alleging that defendant had acted pursuant to a policy or custom of “deliberate

indifference.” Plaintiffs do not challenge that conclusion in this court.

5

ORCP 21 A provides, in part:

“Every defense, in law or fact, to a claim for relief in any pleading, whether

a complaint, counterclaim, cross-claim or third party claim, shall be asserted

in the responsive pleading thereto, except that the following defenses may

at the option of the pleader be made by motion to dismiss: * * * (9) that the

pleading shows that the action has not been commenced within the time

limited by statute.”

6

ORS 30.275 provides, in part:

“(1)  No action arising from any act or omission of a public body or an officer,

employee or agent of a public body within the scope of ORS 30.260 to 30.300

shall be maintained unless notice of claim is given as required by this section.

“(2)  Notice of claim shall be given within the following applicable period of

time, not including the period, not exceeding 90 days, during which the person

injured is unable to give the notice because of the injury or because of minority,

incompetency or other incapacity:

“(a)  For wrongful death, within one year after the alleged loss or injury.

“(b)  For all other claims, within 180 days after the alleged loss or injury.

“* * * * *

“(9)  Except as provided in ORS 12.120, 12.135 and 659A.875, but

notwithstanding any other provision of ORS chapter 12 or other statute

providing a limitation on the commencement of an action, an action arising

from any act or omission of a public body or an officer, employee or agent of

a public body within the scope of [the OTCA] shall be commenced within two

years after the alleged loss or injury.”

326 Doe v. Lake Oswego School District

that it appeared from the face of plaintiffs’ complaint that

the latest that Johnson’s touching had occurred was in

1984, and that plaintiffs’ claims necessarily accrued at that

time. Therefore, defendant contended, because plaintiffs

concededly had not given notice of claim or filed their action

within the requisite period thereafter, their claims were

untimely and should be dismissed. Plaintiffs countered

that they had pleaded facts from which a jury could find

that they reasonably had not discovered the abusive or

harmful nature of Johnson’s conduct at the time it occurred.

Therefore, plaintiffs argued, they had alleged facts from

which a jury could find that their claims accrued on the

dates that they alleged they had discovered their injuries,

not on the date of Johnson’s alleged touching. Plaintiffs also

argued that the OTCA was unconstitutional if it precluded

their claims.7

The trial court ultimately agreed with defendant

that plaintiffs must be deemed to have discovered the facts

necessary to their claims at the time of the touching. The

court concluded, “I am completely ruling, as a matter of

law * * * that there is no 10- to 13-year-old child, other than

one, perhaps, that’s mentally retarded * * * who would not

understand that this kind of touching is wrong.” The trial

court also rejected plaintiffs’ argument that the OTCA was

unconstitutional as applied to them. The trial court granted

defendant’s ORCP 21 motion to dismiss and entered a

limited judgment in its favor.8

Plaintiffs appealed, and the Court of Appeals

affirmed. Doe v. Lake Oswego School District, 242 Or App

605, 259 P3d 27 (2011). The court held:

“Where, as here, a plaintiff seeking damages for sexual

abuse under the OTCA knew that the sexual touching

occurred as well as who did the touching, there is no

basis to say that the plaintiff did not know of or could not

7

In their Third Amended Complaint, plaintiffs included a claim for declaratory

judgment and alleged that, if the court accepted defendant’s argument that their

claims were time-barred under the OTCA, the OTCA was unconstitutional as

applied to them.

8

The limited judgment resolved all of plaintiffs’ claims against defendant

district. The limited judgment did not resolve plaintiffs’ claims against Johnson.

The trial court entered an order staying those claims.

Cite as 353 Or 321 (2013) 327

reasonably have discovered the injury—that is, the legally

cognizable harm. Accordingly, we conclude that the trial

court correctly determined that the allegations in plaintiffs’

complaint are insufficient to prevent the application of the

OTCA’s time limitations with respect to the sexual battery

and IIED claims and those claims were properly dismissed.”

Id. at 616 (footnote omitted). As to Jack Doe 6’s negligence

claim, the court held that plaintiff had failed to raise a

distinct argument regarding the timeliness of that claim,

and the court therefore declined to address it on appeal.

Id. at 616-18. The court also rejected without discussion

plaintiffs’ challenge to the constitutionality of the OTCA as

applied.9 Plaintiffs sought, and we allowed, review.

To meet the requirements of the OTCA, a plaintiff

who is a minor at the time of an alleged loss or injury must

give notice of claim within 270 days and must commence

the action within two years following the “alleged loss or

injury.”10 ORS 30.275. In Adams v. Oregon State Police, 289

Or 233, 239, 611 P2d 1153 (1980), this court construed those

terms and held that the limitations period for an OTCA

claim for “alleged loss or injury” does not begin to run until a

“plaintiff has a reasonable opportunity to discover his injury

and the identity of the party responsible for that injury.”

(Emphasis added.) That rule, the court explained, avoids

the mockery that would follow if the law were to say to one

who had been wronged, “[y]ou had a remedy, but before the

wrong was ascertainable to you, the law stripped you of

your remedy.” Id. at 238 (quoting Berry v. Branner, 245 Or

307, 312, 421 P2d 996 (1966)).

In Gaston v. Parsons, 318 Or 247, 252-56, 864

P2d 1319 (1994), this court considered the meaning of the

9

However, the Court of Appeals required a different form of limited judgment

than had been entered by the trial court. The Court of Appeals vacated the trial

court’s limited judgment dismissing plaintiffs’ claim for declaratory relief and

required that the trial court instead enter a limited judgment for defendant

declaring that “the OTCA’s statute of limitations provisions do not violate the state

or federal constitution.” Doe, 242 Or App at 618 n 4.

10

Plaintiffs do not argue that their claims were tolled pursuant to ORS 12.160

and we do not consider or decide whether the minority tolling provisions in that

statute apply to a claim under the OTCA. See Baker v. City of Lakeside, 343 Or 70,

77, 164 P3d 259 (2007) (discussing applicability of ORS 12.160 to claims brought

under the OTCA as context for interpretation of ORS 12.020).

328 Doe v. Lake Oswego School District

word “injury” in the context of a different statute—ORS

12.110(4)—which provides that a medical malpractice action

must be commenced within two years from the date that

an “injury” is or should have been discovered.11 The court

concluded that the legislature had used the word “injury”

to mean “what formed the basis for an action, i.e., legally

cognizable harm,” and that “harm is legally cognizable if it

is the result of tortious conduct.” 318 Or at 254-55. Thus,

the court explained, as used in ORS 12.110(4), an “injury”

is discovered when a plaintiff knows or should have known

of the existence of three elements: (1) harm; (2) causation;

and (3) tortious conduct. 318 Or at 255. The word “injury”

has the same meaning in claims brought under the OTCA.

Johnson v. Mult. Co. Dept. of Community Justice, 344 Or

111, 118, 178 P3d 210 (2008) (so stating).12

In this case, defendant acknowledges the applica-

bility of the discovery rule and contends that the trial court

correctly followed that rule in dismissing plaintiffs’ claims.

According to defendant, plaintiffs necessarily discovered

the facts that gave rise to legally cognizable claims for the

intentional tort of battery no later than 1984, the last date

on which Johnson touched any one of them.

Although plaintiffs did not expressly label any of

their claims as claims for battery, they agree that the facts

that they alleged in the claims that they labeled as claims

for “Sexual Abuse of a Child” may properly be considered as

stating claims for that intentional tort.13 Plaintiffs argue,

however, that they did not necessarily discover the facts

11

ORS 12.110(4) provides, in relevant part:

“An action to recover damages for injuries to the person arising from

any medical, surgical or dental treatment, omission or operation shall be

commenced within two years from the date when the injury is first discovered

or in the exercise of reasonable care should have been discovered.”

(Emphasis added.)

12

In Johnson, the court explained that those three elements of the discovery

rule—harm, causation, and tortious conduct—also incorporate a fourth element:

the probable identity of the tortfeasor. 344 Or at 118 n 2. Accord T. R. v. Boy Scouts

of America, 344 Or 282, 292, 181 P3d 758 (2008).

13

Plaintiffs also argue that the claims that they labeled as claims for “Sexual

Abuse of a Child” may be viewed as negligence claims alleging a breach of

fiduciary duty. For reasons that we explain later in this opinion, we do not reach

that argument.

Cite as 353 Or 321 (2013) 329

necessary to that tort by 1984. At the time that Johnson

touched them, plaintiffs assert, they reasonably did not

recognize that his touching was abusive. In Gaston terms,

plaintiffs argue that, by 1984, they reasonably had not

discovered the tortious nature of Johnson’s conduct.

The parties’ arguments confine the scope of our

analysis; the legal question for our consideration on review

is whether plaintiffs’ allegations that Johnson fondled their

genitals in and before 1984 require the conclusion that their

battery claims accrued by that date. Defendant does not

contend that plaintiffs’ battery claims necessarily accrued

at some date after 1984 or challenge plaintiffs’ allegations

that they did not discover their injuries until 2006 at the

earliest. Rather, defendant argues that, because plaintiffs

alleged that Johnson’s touching occurred in or before 1984,

plaintiffs also knew or should have known the facts that

give rise to a battery claim by that date. We therefore begin

our analysis by considering the elements of such a claim.

In Bakker v. Baza’r, Inc., 275 Or 245, 249, 551 P2d

1269 (1976), this court set out the elements of a battery

claim:

“To constitute liability for a battery, the conduct which

brings about the harm must be an act of volition on the

actor’s part, and the actor must have intended to bring

about a harmful or offensive contact or put the other

party in apprehension thereof. 1 Harper & James, The

Law of Torts 215-17, § 3.3 (1956). It is not necessary that

the contact do actual physical harm—it is sufficient if the

contact is offensive or insulting. Prosser, Law of Torts 36, §

9 (4th ed 1971).”

As discussed in Harper, James and Gray on Torts, battery

redresses injury both to an individual’s physical integrity

and to an individual’s dignitary interests:

“Involved in the tort of battery are two interests of

personality: first, the interest in the physical integrity of

the body, that it be free from harmful contacts; second, the

purely dignitary interest in the body that it be free from

offensive contact.”

330 Doe v. Lake Oswego School District

Fowler V. Harper, Fleming James, Jr., and Oscar S. Gray,

1 Harper, James and Gray on Torts § 3.2, 307 (3d ed 2006).

Prosser explains the reason:

“The original purpose of the courts in providing the

action for battery undoubtedly was to keep the peace by

affording a substitute for private retribution. The element

of personal indignity involved always has been given

considerable weight. Consequently, the defendant is liable

not only for contacts which do actual physical harm, but

also for those relatively trivial ones which are merely

offensive and insulting.”

W. Page Keeton et al., Prosser and Keeton on the Law of

Torts § 9, 41 (5th ed 1984) (footnotes omitted).

The Restatement (Second) of Torts § 18(1) (1965)

also recognizes that battery may be either (or both) of two

types—battery that causes “harmful contact” or battery

that causes “offensive contact.” As used in the Restatement,

“harmful contact” includes physical impairment, physical

pain, or illness. Restatement § 15. “Offensive contact” is

defined as contact that offends a reasonable sense of personal

dignity. Restatement § 19. Thus, to be tortious, a defendant’s

physical contact must be harmful or offensive in nature. In

this case, defendant does not argue that plaintiff necessarily

suffered physical impairment, physical pain, or illness by

1984; defendant argues that plaintiff necessarily suffered

offensive contact by that date. Therefore, we address the

“offensive contact” element of a claim for battery.

Defendant argues that plaintiffs had to have

known that Johnson’s touching was offensive at the time

that it occurred: “Reaching under a fifth grader’s clothing

and fondling his genitals in front of a class of students is

offensive to a reasonable sense of personal dignity as a

matter of law.” Further, defendant argues, the “[f]ailure

of a child to apprehend the offensive nature of the contact

does not change the fact that society, and therefore the law,

considers the contact inherently harmful. What plaintiffs’

teacher allegedly did was offensive and immediately caused

cognizable harm.” Therefore, in defendant’s view, plaintiffs’

battery claims were legally cognizable, and the OTCA

limitations periods began to run, when Johnson’s touching

occurred—by 1984 at the latest.

Cite as 353 Or 321 (2013) 331

Plaintiffs accept that intentional action that results

in offensive contact gives rise to a battery claim, but respond

that they reasonably did not recognize Johnson’s conduct

as offensive when they were fifth-graders in his classroom.

Plaintiffs argue that defendant fails to separately analyze

the facts that give rise to a battery claim and the different

question of when plaintiffs knew or should have known

those facts. According to plaintiffs, the question here is not

whether plaintiffs pleaded facts sufficient to state a claim for

relief, but whether plaintiffs discovered or must be deemed

to have discovered those facts when Johnson’s conduct

occurred. Plaintiffs contend that, although Johnson’s

conduct was indeed offensive, they did not recognize it as

such by 1984. They contend that they did not comprehend

“the abusive nature” of Johnson’s touching due to the

“obedience, admiration, respect, and esteem” that they

had for Johnson. In addition, they contend that, because

the touching was “similar enough to the non-tortious

touching by Johnson that occurred during and as part of the

grooming process,” they, as young boys, were confused by

it and were unable to discern at the time that the touching

was “inappropriate or harmful.” Plaintiffs argue that, under

those alleged circumstances, it was error for the trial court

to dismiss their claims as untimely.

We agree with plaintiffs that defendant mistakenly

conflates the question of whether Johnson’s alleged conduct

was in fact offensive with the question whether plaintiffs,

as fifth-graders subjected to Johnson’s grooming tactics,

recognized or must be deemed to have recognized that fact

when the touching occurred. Even though the facts that

give rise to a claim have occurred, the applicable limitations

period does not begin to run until the plaintiff discovers

or should have discovered those facts. And the facts that

a plaintiff must have discovered or be deemed to have

discovered include not only the conduct of the defendant,

but also, under Gaston, the tortious nature of that conduct.

In Gaston, the facts that gave rise to the plaintiff ’s

negligence claim had occurred when the defendant

completed the plaintiff ’s surgery. The defendant had

operated, committed alleged negligence, and caused the

plaintiff harm. However, the limitations period did not begin

332 Doe v. Lake Oswego School District

to run until the plaintiff knew or should have known those

facts. The plaintiff contended that, even though his left arm

was numb and did not function after surgery, he reasonably

did not know that there was a substantial possibility that

the defendant had acted tortiously. The court held that

whether the plaintiff ’s failure to comprehend the nature of

the defendant’s conduct was reasonable was a question of

fact that must be determined by the trier of fact. 318 Or at

257. The court explained:

“Whether a reasonable person of ordinary prudence would

be aware of a substantial possibility of tortious conduct is a

question of fact that depends upon the nature of the harm

suffered, the nature of the medical procedure, and other

relevant circumstances. The nature of the harm suffered

is important in determining whether a reasonable person

would have been aware of a substantial possibility of

tortious conduct. * * * A reasonable person that experiences

symptoms that are incidental to a particular medical

procedure may not be aware that he or she has been a

victim of tortious conduct * * *.”

Id. at 256-57. Similarly, in Doe v. American Red Cross, 322

Or 502, 513, 910 P2d 364 (1996), the court held that the

limitations period did not begin to run when the facts giving

rise to a claim for negligence occurred: when the defendant

provided the plaintiff ’s husband with blood for a transfusion,

allegedly negligently, and the husband contracted a serious

disease as a result. The limitations period did not begin

to run until the plaintiff knew or should have known that

defendant may have acted tortiously—a question of fact that

precluded summary judgment for the defendant. Id. at 515.

As those cases demonstrate, knowledge that an

actor committed an act that resulted in harm is not always

sufficient to establish that a plaintiff also knew that the act

was tortious. And, as those cases also demonstrate, whether

a plaintiff knew or should have known the elements of a

legally cognizable claim, including the tortious nature of a

defendant’s act, is generally a question of fact determined

by an objective standard:

“The discovery rule applies an objective standard—how

a reasonable person of ordinary prudence would have acted

in the same or a similar situation. The discovery rule does

Cite as 353 Or 321 (2013) 333

not require actual knowledge; however, mere suspicion also

is insufficient. The statute of limitations begins to run when

the plaintiff knows or, in the exercise of reasonable care,

should have known facts that would make a reasonable

person aware of a substantial possibility that each of the

elements of a claim exists.”

Kaseberg v. Davis Wright Tremaine, LLP, 351 Or 270, 278,

265 P3d 777 (2011) (internal citations omitted). In applying

that standard, a court must consider the facts from the

perspective of a reasonable person in the circumstances of

the plaintiff. T. R. v. Boy Scouts of America, 344 Or 282, 297-

98, 181 P3d 758 (2008). Those circumstances include, but

are not limited to, plaintiff ’s status as a minor , id. at 297,

the relationship between the parties, Kaseberg, 351 Or at

279, and the nature of the harm suffered. Gaston, 318 Or

at 256. A court cannot decide that question as a matter of

law unless the only conclusion that a reasonable trier of fact

could reach is that the plaintiff knew or should have known

the critical facts at a specified time. Kaseberg, 351 Or at 278

(so stating); T. R., 344 Or at 296 (same).

The same principles are applicable here. Just

as the negligent character of a defendant’s conduct is not

always immediately apparent, the line between offensive

and socially acceptable touching also may be difficult to

ascertain:

“The relationship of the parties, the customs prevailing

in the particular community, and the attitude of the actor

in the circumstances are important in determining whether

a particular contact is a battery. Thus, persons on close and

intimate terms will engage in conduct toward one another

that would be intolerable between strangers. Frequently

the question of battery or no battery will turn on the

issue of implied consent. Familiarities not justified by the

peculiar association of the parties must conform to the

usages of the community and contacts not thus sanctioned

may be actionable batteries. Although the state of mind

of the actor may make offensive contact not otherwise

so and, conversely, make inoffensive acts that, if done in

anger, would be highly objectionable, nevertheless even

well-intentioned acts, such as practical jokes or horseplay,

may be actionable if they exceed the bounds of tolerable

taste. Thus, a pat or similar display of affection by a sincere

334 Doe v. Lake Oswego School District

and even passionate lover may be highly offensive to an

unresponsive woman who has not consented thereto, and an

elephantine sense of humor may be responsible for contacts

that are offensive to one with a more delicate sensitivity.”

Harper, 1 Harper, James and Gray on Torts § 3.2 at 310-11

(footnotes omitted). Just as a plaintiff ’s discovery of the

negligent character of a defendant’s conduct is a question of

fact requiring consideration of the relationship between the

parties and the nature of the harm, so too are those factors

relevant to a discovery of whether a defendant has engaged

in offensive contact.

In this case, defendant argues that the trial court

was correct that the only conclusion that a reasonable trier

of fact could reach was that, in 1984, plaintiffs knew or

should have known that Johnson’s touching was offensive.

Plaintiffs respond that, given their status as minors, their

relationship with Johnson, and the nature of the harm that

his acts inflicted, a jury could find from the facts that they

alleged that they reasonably did not know that Johnson’s

acts were offensive when they occurred. We agree with

plaintiffs. Although it is true, as defendant argues, that in

the 1970s and 1980s many fifth-graders would have known

that Johnson’s touching was offensive, plaintiffs alleged

facts from which a jury could find that these plaintiffs

reasonably did not reach that conclusion at the time of

Johnson’s actions. Plaintiffs alleged that Johnson engaged

in a “grooming process” that included gaining the support

of plaintiffs’ families so that they would counsel their sons

to respect his authority and comply with his instructions

and requests. Plaintiffs alleged that, as a result, they had

such admiration and respect for Johnson, and the wrongful

touching in which Johnson engaged was so similar to the

non-tortious touching that they had experienced during

the grooming process that, as young boys, plaintiffs were

confused by Johnson’s conduct and unable to discern that

the touching was inappropriate.

In Johnson v. Mult. Co., Dept. Community Justice,

this court addressed whether a plaintiff who had been

sexually assaulted should have learned from newspaper

articles that the defendant’s negligent supervision of a sex

offender—her assailant—had contributed to her injury. 344

Cite as 353 Or 321 (2013) 335

Or at 113. The court considered the plaintiff ’s particular

circumstances in concluding that, even though published

media reports indicated that the defendant may have been

negligent, the plaintiff had raised a question of fact about

whether she knew or should have known of the defendant’s

potentially tortious conduct. Id. at 122-23. The court

reasoned:

“In the end, defendant’s proposal—that all plaintiffs

should be deemed to know all information relating to their

claim that has been published in the local media—involves

a leap of faith that we are not prepared to make.”

Id. at 122.

In this case, we are similarly unprepared to make

the leap of faith for which defendant contends—that in

1984, all fifth-graders must be deemed to have known that a

trusted teacher who had touched them in socially acceptable

ways and whom they had been conditioned to respect and

obey had crossed a line and touched them in a new way that

society abhorred.

In stating that conclusion, we emphasize that

plaintiffs’ complaint does no more than allege facts that they

must prove. Defendant may challenge the truth of plaintiffs’

allegations at many remaining junctures, and our decision

does not foreclose it from doing so. We also do not mean to

imply that a limitations period does not begin to run until

a plaintiff knows the full extent of the harm that has been

inflicted or becomes aware of the legal implication of facts

rather than of the facts themselves. Defendant is correct

that, if a plaintiff knows that he or she has suffered some

harm and knows that it is the result of tortious conduct, an

argument that the plaintiff did not know the full extent of

the harm or that those facts had legal significance will be of

no avail. That is not the case here, however. Here, plaintiffs

contend that they did not know a fact necessary to their

battery claims—that, at the time that it occurred, Johnson’s

conduct was offensive.

We also reject defendant’s final, statutory argument.

Defendant asserts that ORS 12.117, which provides a statute

of limitations for child abuse claims brought against private

336 Doe v. Lake Oswego School District

actors, is indicative of a legislative policy that should govern

our decision in this case.14 ORS 12.117 provides that an

individual who was a minor when he or she was subjected

to “child abuse” by a private actor may bring an action for

damages until he or she reaches age 40 or within five years

from the date that the individual discovered or should have

discovered the causal connection between the injury and

the child abuse, whichever is longer. That statute does not

explicitly address “child abuse” committed by public actors,

deprive individuals abused by public actors of existing

remedies, or preclude the application of the discovery rule

in battery claims against public actors. That the legislature

saw fit to grant individuals subjected to “child abuse” by

private actors at least five years from the date of discovery

of the causal connection between the injury and the abuse

to bring their claims does not indicate a legislative intent

to deprive others subjected to battery by public actors of a

two-year period from the date they discover their injuries

to commence their actions. ORS 12.117 does not render the

discovery rule inapplicable to plaintiffs’ claims.

For the reasons stated, we conclude that the trial

court erred in granting defendant’s ORCP 21 motion to

dismiss plaintiffs’ claims for “Sexual Abuse of a Child”—

claims that we have analyzed as claims for battery—on

timeliness grounds.15 The trial court and the Court of

Appeals did not draw a distinction between plaintiffs’

battery claims and their claims for intentional infliction of

emotional distress and negligence. We also will follow that

approach at this stage of the proceedings and, therefore,

14

ORS 12.117(1) provides:

“Notwithstanding ORS 12.110, 12.115 or 12.160, an action based on conduct

that constitutes child abuse or conduct knowingly allowing, permitting or

encouraging child abuse that occurs while the person is under 18 years of age

must be commenced before the person attains 40 years of age, or if the person

has not discovered the causal connection between the injury and the child

abuse, nor in the exercise of reasonable care should have discovered the causal

connection between the injury and the child abuse, not more than five years

from the date the person discovers or in the exercise of reasonable care should

have discovered the causal connection between the child abuse and the injury,

whichever period is longer.”

15

In this court, plaintiffs argue that their claims for “Sexual Abuse of a Child”

also may be viewed as negligence claims alleging a breach of fiduciary duty.

Because we reach the conclusion that the trial court erred in dismissing those

claims, we need not address that argument.

Cite as 353 Or 321 (2013) 337

conclude that the trial court erred in dismissing plaintiffs’

claims for intentional infliction of emotional distress and

plaintiff Jack Doe 6’s claim that defendant was negligent in

failing to supervise or terminate Johnson, and in entering a

limited judgment for defendant.16

The decision of the Court of Appeals is reversed. The

limited judgment of the circuit court is reversed, and the

case is remanded to the circuit court for further proceedings.

16

Because our holding may or may not affect the trial court’s ruling as to the

merits of plaintiffs’ claim for declaratory judgment, we concluded that that is a

matter that the trial court should consider on remand.