Wyers v. American Medical Response Northwest, Inc.

No. 55 August 11, 2016 211

IN THE SUPREME COURT OF THE

STATE OF OREGON

Jan WYERS,

as Personal Representative of the Estate of

Dianne Terpening, Deceased,

Respondent on Review,

v.

AMERICAN MEDICAL RESPONSE NORTHWEST, INC.,

an Oregon corporation,

Petitioner on Review.

091014750; CA A149258 (Control)

Hazel CORNING,

Respondent on Review,

v.

AMERICAN MEDICAL RESPONSE NORTHWEST, INC.,

an Oregon corporation,

Petitioner on Review.

091116570; A149259

Violet ASBURY,

Respondent on Review,

v.

AMERICAN MEDICAL RESPONSE NORTHWEST, INC.,

an Oregon corporation,

Petitioner on Review.

091116571; CA A149260

Stacey WEBB,

Respondent on Review,

v.

AMERICAN MEDICAL RESPONSE NORTHWEST, INC.,

an Oregon corporation,

Petitioner on Review.

091116572; CA A149261

212 Wyers v. American Medical Response Northwest, Inc.

Michele SHAFTEL,

Respondent on Review,

v.

AMERICAN MEDICAL RESPONSE NORTHWEST, INC.,

an Oregon corporation,

Petitioner on Review.

091216650; CA A149262

Natsue AKRE,

Respondent on Review,

v.

AMERICAN MEDICAL RESPONSE NORTHWEST, INC.,

an Oregon corporation,

Petitioner on Review.

100202934; CA A149263

(SC S063000)

On review from the Court of Appeals.*

Argued and submitted November 9, 2015.

Michael J. Estok, Lindsay Hart, LLP, Portland, argued

the cause and filed the briefs for petitioner on review. With

him on the briefs was James L. Dumas, Lindsay Hart, LLP,

Portland.

Mark McDougal and Gregory Kafoury, Kafoury &

McDougal, Portland, argued the cause and filed the briefs

for respondents on review.

Lindsey H. Hughes, Keating Jones Hughes, P.C.,

Portland, filed the brief for amicus curiae Oregon Association

of Defense Counsel.

Erin K. Olson, Law Office of Erin Olson, P.C., Portland,

filed the brief for amicus curiae Oregon Trial Lawyers

Association.

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, Baldwin, and Brewer, Justices.**

______________

** Appeal from Multnomah County Circuit Court, Kathleen M. Dailey,

Judge. 268 Or App 232, 342 P3d 129 (2014).

**  Linder, J., retired December 31, 2015, and did not participate in the deci-

sion of this case. Nakamoto, J., did not participate in the consideration or decision

of this case.

Cite as 360 Or 211 (2016) 213

LANDAU, J.

The decision of the Court of Appeals is affirmed. The

judgment of the circuit court is reversed, and the case is

remanded to the circuit court for further proceedings.

Case Summary: Plaintiffs each filed a civil action under the vulnerable per-

son statute, ORS 124.100(5), against an ambulance company, American Medical

Response Northwest, Inc. (AMR), alleging that AMR had permitted a paramedic

in its employ to sexually abuse the plaintiffs while they were patients. The trial

court granted AMR’s motion for summary judgment, plaintiffs appealed, and the

Court of Appeals reversed. AMR petitioned for review, and the Supreme Court

allowed review and consolidated the appeals. Held: (1) ORS 124.100(5) requires

that a defendant knowingly act or fail to act under circumstances in which a

reasonable person should have known that the same sort of abuse of a vulnerable

person that occurred would, in fact, occur; and (2) on summary judgment, the

evidence was sufficient to establish a general issue of material fact about whether

a reasonable person in AMR’s position should have known that the sort of abuse

that plaintiffs suffered would occur. The decision of the Court of Appeals is

affirmed. The judgment of the circuit court is reversed, and the case is remanded

to the circuit court for further proceedings.

214 Wyers v. American Medical Response Northwest, Inc.

LANDAU, J.

This consolidated appeal concerns six civil actions

against an ambulance company for permitting a paramedic

in its employ to sexually abuse women while they were

patients. The claims are alleged under ORS 124.100(5),

which authorizes a vulnerable person to bring an action

against a person who “permit[s]” another person to engage

in physical or financial abuse “if the person knowingly acts

or fails to act under circumstances in which a reasonable

person should have known” of the abuse. The ambulance

company moved for summary judgment on the ground that

there was no evidence that it actually knew of its para-

medic’s abuse against plaintiffs and then acted in a way

that permitted that abuse to occur. The trial court agreed

and granted the motion. The Court of Appeals reversed, con-

cluding that the statute does not require actual knowledge

of a plaintiff’s abuse. Wyers v. American Medical Response

Northwest, Inc., 268 Or App 232, 342 P3d 129 (2014). For

the reasons that follow, we affirm the decision of the Court

of Appeals and reverse the judgment of the trial court.

I. BACKGROUND

Because the trial court granted a defense motion for

summary judgment, we state the facts in the light most favor-

able to plaintiffs. Shell v. Schollander Companies, Inc., 358

Or 552, 554 n 1, 369 P3d 1101 (2016). Defendant American

Medical Response Northwest, Inc., (AMR) provides ambu-

lance and other medical transportation services. AMR

employed Haszard as a paramedic. This case arises out of

multiple allegations of sexual abuse by Haszard of patients

while they were being transported in AMR ambulances.

A.  The Herring Litigation

In late 2007, AMR transported a female patient,

Herring, to a hospital. During Herring’s transport, Haszard

placed his hand on Herring’s hand and shoved their hands

down inside the front of her pants. Later at the hospi-

tal, Herring screamed to staff about the incident, which

prompted a call to AMR. An employee of AMR’s spoke with

Herring at the hospital and later called police to report that

Herring wanted to make a complaint about ambulance staff.

Cite as 360 Or 211 (2016) 215

Police responded and, as part of their investigation, discov-

ered in their database a prior complaint about Haszard.

Three days later, police arrested Haszard. The

arrest resulted in publicity, which prompted other women to

come forward and report similar incidents to the authorities.

Haszard was eventually charged with various crimes and

pled guilty to attempted first-degree sexual abuse as to four

women. Not long after the Herring incident, Herring and a

number of other former patients filed individual common-

law battery and negligence actions against both Haszard

and AMR. Herring eventually obtained a jury verdict in her

favor. See Herring v. American Medical Response Northwest,

255 Or App 315, 327, 297 P3d 9 (2013) (affirming judgment),

and the other former patients settled.

B.  Discovery of Earlier Incidents of Abuse

As part of pretrial discovery in the Herring litiga-

tion, other former patients were contacted and interviewed

about their ambulance transport experiences with AMR

in general and with Haszard in particular. That process

revealed that additional women—including the six plaintiffs

in this case—had been inappropriately touched by Haszard

during ambulance transport.

1. Spain

The first incident occurred in February 2006 and

involved Spain, who awoke from unconsciousness in the back

of an AMR ambulance to find Haszard pressing her hand on

his crotch and rocking back and forth. She later called a

business number for AMR and told the receptionist that the

paramedic was a “freak” who had inappropriately touched

her, that it was unsafe for that paramedic to transport little

girls, and that he should be taken off ambulance duty. When

asked, the receptionist declined to provide Spain with the

paramedic’s name. Spain’s sister witnessed the phone call

and later recalled that Spain had told her that the recep-

tionist had hung up on Spain.

AMR, which had in place a regular process for han-

dling ambulance staff complaints, had no record of the tele-

phone call from Spain.

216 Wyers v. American Medical Response Northwest, Inc.

2. Whalen

A month later, in March 2006, AMR sent custom-

ers a survey. One of those customers, Whalen, reported in

her survey that Haszard had failed to respect her privacy at

the hospital by not looking away while a nursing assistant

helped her into a gown, despite her obvious discomfort. One

of AMR’s supervisors investigated the complaint by inter-

viewing both Whalen and Haszard. During that interview,

Whalen told the supervisor that Haszard had stared at her

and acted sexually aroused, but she made no complaint

about any unwanted touching. She later recalled that the

supervisor had “dismissed everything that [she had] said,”

telling her that she “must have been imagining things.” The

supervisor, however, did write an internal report recounting

Whalen’s complaint that Haszard had not shown sufficient

consideration for her privacy and concluding that Whalen’s

complaint had been “substantiated.”

3. Plaintiff Akre

In April 2006, Akre was transported by an AMR

ambulance attended by Haszard. She had trouble breath-

ing, was choking, and feared for her life. During her trans-

port, Haszard repeatedly brushed her bare chest while

placing leads on her. She was afraid to tell Haszard to stop,

because she thought that Haszard would harm her. She did

not report the incident to AMR or to anyone else.

4. Rotting

In December 2006, Rotting was transported by

AMR ambulance with Haszard attending. During the trans-

port, Haszard touched Rotting in a manner similar to the

sexual touching that plaintiff Akre had described. He also

slowly stroked Rotting’s thigh. Rotting reported the incident

to a nurse and to family members. Her son called AMR and

spoke with the same supervisor who had investigated the

Whalen complaint. The supervisor then called Rotting and

told her that there would be an investigation. The inves-

tigation, however, was limited to interviewing Haszard,

who denied having engaged in any inappropriate conduct.

Rotting’s son later called AMR again, this time stating that

the police should be involved. AMR took no further action,

Cite as 360 Or 211 (2016) 217

although its risk management department was internally

notified that Rotting might file a complaint.

5.  Plaintiffs Shaftel, Asbury, and Terpening

In January 2007, plaintiff Shaftel was transported

by AMR ambulance, attended by Haszard. While Shaftel

went in and out of consciousness in the ambulance, Haszard

repeatedly touched her bare chest. About three weeks

later, plaintiff Asbury, age 73, also was sexually touched by

Haszard during an ambulance transport. And three weeks

after that, plaintiff Terpening, who was hearing impaired,

was also.1 None of those three women reported Haszard’s

conduct to AMR, the police, or hospital staff.

6.  Pries

In March 2007, Pries reported to police that Haszard

had sexually abused her during an ambulance transport by

taking her hand, placing it inside her pants, and manipulat-

ing it. Police spoke with an AMR supervisor about the inci-

dent. Several AMR employees, including Haszard, then met

with a company risk-management official. AMR ultimately

determined that it could not substantiate Pries’s allegations,

but it warned Haszard in writing that either that incident or

the earlier Rotting incident would be reopened if more infor-

mation came to light. AMR did not make any effort to con-

tact Pries, did not request any further information from the

police, and did not tell police about the Rotting complaint

from the previous year.

7.  Plaintiffs Webb and Corning

In April 2007, Haszard sexually touched plaintiff

Webb during an ambulance transport, while she went in and

out of consciousness. Four months after that, Haszard also

sexually touched plaintiff Corning, then 86, during a trans-

port. Neither plaintiff Webb nor plaintiff Corning reported

the incidents to AMR, and the company did not learn about

them until discovery in the Herring litigation.

C.  Initiation and Disposition Below of Plaintiffs’ Claims

Plaintiffs Akre, Shaftel, Asbury, Terpening, Webb,

and Corning individually brought civil actions against AMR

1

Terpening is now deceased. Plaintiff Wyers serves as the personal repre-

sentative of her estate.

218 Wyers v. American Medical Response Northwest, Inc.

for permitting another person—Haszard—to sexually abuse

them, in violation of ORS 124.100. Each of their complaints

alleged that AMR knew or had reason to know that Haszard

had physically abused ill or injured female patients in the

past and that he was likely to do so in the future if allowed

to be alone with them in the back of an ambulance. Their

complaints further alleged that AMR nonetheless directed

Haszard to continue to work in those circumstances, result-

ing in their abuse. The six cases were consolidated for trial.

AMR moved for summary judgment, arguing that,

to establish liability under ORS 124.100(5), plaintiffs must

produce evidence that it either participated in or knowingly

permitted Haszard to commit the specific acts of abuse

that were the bases for plaintiffs’ claims. In this case, AMR

argued, it is undisputed that it had no knowledge of any of

those acts of abuse before they occurred. Plaintiffs responded

that ORS 124.100(5) does not require proof of actual knowl-

edge of their abuse. They argued that, instead, the statute

requires only that AMR acted or failed to act when it should

have known that such abuse was likely to occur and that, in

light of earlier complaints about Haszard, AMR should have

known that he was likely to abuse them.

The trial court agreed with AMR, concluding that

the statute requires proof that AMR “had knowledge of the

specific abuse that * * * Haszard allegedly committed on each

[p]laintiff.” Finding an absence of evidence that AMR had

been aware of Haszard’s abuse of plaintiffs until long after

that abuse had occurred, the court granted AMR’s motion

for summary judgment and dismissed plaintiffs’ claims.

Plaintiffs appealed, and the Court of Appeals

reversed. Wyers, 268 Or App at 255. That court reasoned

that ORS 124.100(5) did not require plaintiffs to establish

that AMR subjectively knew that Haszard was engaging in

misconduct with plaintiffs at the time that that misconduct

was occurring. Id. at 246-47. Rather, that statute required

only that AMR “have knowledge of facts establishing that it

knew of the substantial risk of the abuse actually suffered.”

Id. at 247. The court ultimately concluded that a defendant

“permit[s]” the abuse at issue if the defendant either “acted

or failed to act with knowledge that would lead a reasonable

Cite as 360 Or 211 (2016) 219

person to conclude that the plaintiff was being abused or

would likely be abused in the manner alleged by the plain-

tiff.” Id. Applying that standard to this case, the court deter-

mined that plaintiffs had presented “sufficient evidence

from which a reasonable juror could find that [AMR had]

‘permitted’ Haszard to sexually abuse plaintiffs.” Id. at 255.

We allowed review to address the parties’ arguments about

the meaning of the requirements set out in ORS 124.100(5).

II. ANALYSIS

A.  Interpretation of ORS 124.100(5)

ORS 124.100 through ORS 124.140 set out a frame-

work that creates a civil action for abuse of a vulnerable

person. ORS 124.100(2) provides:

“A vulnerable person who suffers injury, damage or

death by reason of physical abuse or financial abuse may

bring an action against any person who has caused the

physical or financial abuse or who has permitted another

person to engage in physical or financial abuse.”

A “vulnerable person” is a person who is elderly, financially

incapable, or incapacitated, or, in certain circumstances,

has a disability.2 ORS 124.100(1)(e). “Physical abuse,” for

the purpose of the statute, includes sexual abuse. ORS

124.105(1)(e)-(h).

ORS 124.100(5) identifies the particular require-

ments for bringing an action for permitting another to

engage in physical or financial abuse:

“An action may be brought under this section against

a person for permitting another person to engage in phys-

ical or financial abuse if the person knowingly acts or fails

to act under circumstances in which a reasonable person

should have known of the physical or financial abuse.”

By its terms, that statute refers both to a requirement that

the defendant “knowingly” act and that the defendant do so

under circumstances in which a reasonable person “should

have known” of the abuse. Not surprisingly, the parties seize

2

AMR does not dispute that plaintiffs were “vulnerable persons” within the

meaning of the statute.

220 Wyers v. American Medical Response Northwest, Inc.

on one of those two references to the virtual exclusion of the

other.

AMR highlights the reference to “knowing[ ]” action

or inaction, and argues that “ORS 124.100(5) requires proof

that the defendant engaged in ‘knowing’ and ‘intentional’

misconduct.” AMR briefly acknowledges the subsequent

statutory reference to what a reasonable defendant “should

have known,” but asserts that it “cannot undo the actual

knowledge requirement stated earlier.” (Emphasis in orig-

inal.) AMR attempts to reconcile the apparent conflict by

reading the statute to require actual knowledge of the con-

duct that constitutes the abuse while perhaps not actually

knowing—but in circumstances in which it should have

known—that the conduct constituted a crime qualifying as

abuse within the meaning of the statute.

Plaintiffs highlight the reference to what a defen-

dant “should have known” in ORS 124.100(5), arguing that

liability depends on proof that a reasonable person merely

“should have known” of the abuse. In plaintiffs’ view, AMR’s

reading of that phrase is nonsensical—citing by way of exam-

ple evidence that a defendant permitted another to commit

such abusive acts as rape and sodomy under circumstances

in which the defendant, while perhaps not actually knowing

that those acts are prohibited forms of abuse, nevertheless

should have known that fact. At the same time, plaintiffs

not once in their brief explain the significance of the stat-

ute’s reference to “knowingly act[ ] or fail[ ] to act.”

We are thus confronted with an issue of statutory

construction, requiring us to determine the meaning of the

statute that the legislature most likely intended, based on

an examination of its text in context, legislative history, and

pertinent rules of construction. State v. Gaines, 346 Or 160,

171-72, 206 P3d 1042 (2009). We begin with the text of the

statute, which as we have noted authorizes an action against

a defendant who has permitted abuse of a vulnerable per-

son if the defendant “knowingly acts or fails to act under

circumstances in which a reasonable person should have

known of the * * * abuse.” ORS 124.100(5). The statute sets

out two different mental states—one that appears to refer to

actual knowledge and the other that refers to constructive

Cite as 360 Or 211 (2016) 221

knowledge. It is an awkwardly phrased bit of drafting, to

say the least. And the parties’ difficulty in reconciling the

two is understandable. We cannot, however, pick one mental

state and ignore the other, as the parties effectively propose.

We are obligated to take a statute as we find it and give

effect to all of it, if possible. See, e.g., Force v. Dept. of Rev.,

350 Or 179, 190, 350 P3d 139 (2011) (“Statutory provisions,

however, must be construed, if possible, in a manner that

will give effect to all of them.” (Internal quotation marks

omitted.)); see also ORS 174.010 (“[W]here there are several

provisions or particulars such construction is, if possible, to

be adopted as will give effect to all.”).

In this case, the key to complying with that obli-

gation lies in recognizing that statutory references to cul-

pable mental states always refer to an object; said another

way, a mental state is always “directed toward something.”

State v. Crosby, 342 Or 419, 428, 154 P3d 97 (2007). That

“something” to which a mental state is directed may be

particular conduct, or it may be the circumstances in which

conduct occurs, or it may be a particular result. Id. at 428-

29. Knowledge as to conduct, for example, can refer to an

awareness of a bodily movement or knowledge of the essen-

tial character of an act, as when a criminal statute requires

proof of knowledge of the “assaultive nature” of a defendant’s

conduct. State v. Barnes, 329 Or 327, 337-38, 986 P2d 1160

(1999). In contrast, knowledge as to circumstances can refer

to awareness of particular facts while prohibited conduct is

being committed, as, for example, a criminal statute requir-

ing proof of knowledge of the age of the person to whom a

defendant has sold drugs. State v. Blanton, 284 Or 591, 593,

588 P2d 28 (1978).

ORS 124.100(5) does refer to two different mental

states. But the object of each of those references to a men-

tal state is significantly different. First, the statute requires

proof that a defendant “knowingly act[ed] or fail[ed] to act.”

In that phrase, the adverb “knowingly” modifies conduct,

namely, acting or failing to act. It does not refer to knowl-

edge of particular circumstances. Nor does it refer to knowl-

edge of any particular result. It refers to the quality of the

defendant’s conduct—“knowing[ ],” as opposed to accidental,

reckless, or something else.

222 Wyers v. American Medical Response Northwest, Inc.

To be sure, the particular “act[ ]” or “fail[ure] to act”

that the defendant must “knowingly” commit is conduct that

“permit[s]” another person to engage in prohibited abuse.

ORS 124.100(5). AMR argues that the use of the term “per-

mit” necessarily implies that the one doing the permitting

must have actual knowledge of the conduct that has been

permitted. It is not an unreasonable argument. In ordi-

nary usage, the word “permit” can be used to connote active

authorization. Webster’s, for example, lists among its defini-

tions of the verb “to consent to expressly or formally * * * to

give (a person) leave,” Webster’s Third New Int’l Dictionary

1683 (unabridged ed 2002), suggesting that the actor has

full knowledge of what is being permitted.

But AMR’s reliance on that definition of the word

“permit” is unavailing for several reasons. First, ORS

124.100(5) itself does not say that a defendant must “know-

ingly permit” abuse to occur. Rather, the word “knowingly”

modifies “acts or fails to act.” Second, the ordinary meaning

of the word “permit” is not necessarily as narrow as AMR

suggests. In common usage, the word “permit” is also used

to refer to an act or failure to act that has the effect of mak-

ing something possible, without mention of intention as to

the result. Webster’s, for example, also provides that “permit”

can mean “to make possible[;] * * * to give an opportunity.”

Id.; see also American Heritage Dictionary of the English

Language 1315 (5th ed 2011) (“[t]o afford opportunity or

possibility”). Third, the effect of AMR’s reading is to create

the sort of conflict between mental state requirements that

we have just noted that we are obligated to avoid, if possible.

If the statute requires a defendant to have knowledge of the

facts or circumstances of the abuse, then the later reference

to a requirement that a reasonable defendant “should have

known” of those very facts or circumstances makes no sense.

See also generally Moore v. Willis, 307 Or 254, 259, 767 P2d

62 (1988) (allegation that person knew something is differ-

ent from allegation that person “should have known” some-

thing; former amounts to ultimate fact, but latter requires

judgment about particular set of circumstances from which

conclusions must be drawn).

Taking ORS 124.100(5) as it is written, it states

that what a defendant must know is the character or nature

Cite as 360 Or 211 (2016) 223

of the defendant’s act or failure to act. That act or failure to

act must have the effect of permitting abuse to occur. But

the effect of that act or failure to act of permitting abuse

is a result, actual knowledge of which the statute does not

require.

We turn, then, to the requirement that the defen-

dant have acted or failed to act “under circumstances in

which a reasonable person should have known of the phys-

ical or financial abuse.” ORS 124.100(5). The wording of

that requirement leads to several observations. First, the

reference to circumstances in which “a reasonable person

should have known” unambiguously sets out a constructive

knowledge requirement. That is, ORS 124.100(5) applies

under circumstances in which a reasonable person should

have known of another’s abuse, regardless of whether the

defendant actually knew of the abuse. Cf., Gaston v. Parsons,

318 Or 247, 266, 864 P2d 1319 (1994) (Peterson, J., dissent-

ing) (“constructive knowledge” of harm refers to when, “in

the exercise of reasonable care,” it should have been discov-

ered even if not actually discovered); Forest Grove Brick v.

Strickland, 277 Or 81, 86, 559 P2d 502 (1977) (“construc-

tive knowledge” refers to a person “charged with knowledge

that a reasonably diligent inquiry would disclose” (internal

quotation marks omitted)). Second, the statute appears to

assume that the “circumstances” themselves are known or

available to the reasonable person. Thus, ORS 124.100(5)

provides that, based on circumstances that are known to a

reasonable person, certain other facts perhaps not actually

known will nevertheless be imputed, because a reasonable

person aware of those circumstances should have known

of the abuse. Third, what a reasonable person should have

known is “the physical or financial abuse.” In contrast to the

first mental state requirement, then, the second one clearly

refers to constructive awareness of a particular fact—

another person’s physical or financial abuse—not awareness

of the defendant’s own conduct.

There remains an issue concerning what ORS

124.100(5) means when it refers to “the physical or financial

abuse” that a reasonable person should have known. On the

one hand, the use of the definite article “the” in reference

to “physical or financial abuse” could refer to the specific

224 Wyers v. American Medical Response Northwest, Inc.

incident or incidents of abuse that the defendant allegedly

has permitted another to commit against the plaintiff or

plaintiffs. On the other hand, it could refer more generally to

the type of abuse that the defendant has permitted another

to commit, whether against the plaintiff or against another

vulnerable person.

AMR argues for the former interpretation. In its

view, ORS 124.100(5) applies only under circumstances in

which it can be demonstrated that it should have known of

“the very same incident of abuse that injured the plaintiff.”

In fact, AMR goes even further and contends that the ref-

erence to “the” abuse in ORS 124.100(5) has the effect of

transforming a statute requiring constructive knowledge of

abuse to one requiring actual knowledge of that abuse. In

AMR’s view,

“the constructive knowledge requirement in ORS

124.100(5) is necessarily limited to knowledge of the abuse

that occurred on the particular plaintiff. In other words, the

defendant must have some degree of actual knowledge of

the abuse on the plaintiff.”

(Emphasis in original.)

AMR’s contention that the requirement that a defen-

dant reasonably should have known of “the” abuse amounts

to a requirement that the defendant have actually known of

that abuse is squarely contradicted by the statute’s explicit

reference to constructive—not actual—knowledge. But that

does not completely resolve the matter. ORS 124.100(5) does

refer to constructive knowledge of “the” abuse, and AMR’s

broader suggestion that the phrasing could be taken to refer

to constructive knowledge of a specific instance or instances

of abuse against the plaintiff or plaintiffs is not unreason-

able. This court, after all, has not infrequently declared that

the use of the definite article can signify a narrowing intent.

See, e.g., State v. Lykins, 357 Or 145, 159, 348 P3d 231 (2015)

(“As a grammatical matter, the definite article, ‘the,’ indi-

cates something specific, either known to the reader or lis-

tener or uniquely specified.”).

The court, however, has also cautioned that the use

of the definite article is not always, so to speak, definitive.

See, e.g., SAIF v. DeLeon, 352 Or 130, 138, 282 P3d 800 (2012)

Cite as 360 Or 211 (2016) 225

(“[T]he definite article ‘the’ is not dispositive.”). Its use in

context may reveal an intention to encompass less categor-

ically specific referents. See, e.g., State v. Stark, 354 Or 1,

7-8, 307 P3d 418 (2013) (statutory reference to “the judg-

ment” applies not only to original judgment but also to sub-

sequently entered judgments). This is such a case for several

reasons.

To begin with, the statutory context suggests that

it is not likely that the legislature intended its use of the

definite article in ORS 124.100(5) to be dispositive. In fact,

ORS 124.100 refers to “physical or financial abuse” a num-

ber of times, only sometimes using the definite article. ORS

124.100(2), for example, provides that a vulnerable person

who has been abused may bring an action against a person

“who has permitted another person to engage in physical

or financial abuse”—without specifying “the” abuse against

that particular vulnerable person. Presumably, the abuse

mentioned in subsection (2) is the same as the abuse men-

tioned in subsection (5) of the same statute. Subsection (5)

in fact specifically states that it refers to an action “brought

under this section,” namely, ORS 124.100(2). Yet subsection

(2) is phrased more generally, not referring solely to the

particular abuse that another person may commit against

a particular vulnerable person.3 At the very least, the incon-

sistency in phrasing between subsections (2) and (5) in this

regard cautions against placing too much emphasis on the

use of the definite article in the latter subsection.

Aside from that, the consequences of adopting

AMR’s proposed reading of the statute give us pause. If

AMR is correct that ORS 124.100(5) applies only under

circumstances in which a reasonable person should have

known of the very abuse that its actions permitted, then,

logically, the statute would practically never apply. It would

come into play only when a defendant participated in or was

present during an instance of abuse, or when the defendant

3

The wording of ORS 124.100(2) itself appears internally inconsistent on

this very point. It states that a vulnerable person who was the victim of physical

or financial abuse may bring an action against “any person who has caused the

physical or financial abuse” (using the definite article) and any person “who has

permitted another person to engage in physical or financial abuse” (omitting any

article).

226 Wyers v. American Medical Response Northwest, Inc.

had reason to know in advance of a perpetrator’s plan to

abuse a particular vulnerable person. Under AMR’s reading

of ORS 124.100(5), then, an employer that has received con-

firmed reports of an employee’s repeated abuse of multiple

vulnerable patients would face no liability under that stat-

ute for allowing that employee to abuse a vulnerable patient,

so long as the employer had no reason to know of the employ-

ee’s abuse of that specific patient.

AMR insists that the legislative history demon-

strates that ORS 124.100(5) was intended to have precisely

that limited effect. According to AMR, that history shows

that the statute was “directed toward ‘abusers’ and toward

no one else. Individuals who ‘permitted’ abuse by third par-

ties were just a sub-category of ‘abusers.’ ” AMR argues that

the legislative history demonstrates that to be the case in

two ways. First, AMR relies on the absence of legislative his-

tory suggesting a broader intended meaning of the statute.

It reasons that

“there was no discussion about standards of negligence or

recklessness fitting into this statute, or about potentially

applying this statute against negligent employers with

wayward employees. Had such standards been intended,

one might expect some discussion[,] given that such a law

would have far-reaching implications * * *.”

Second, AMR argues that the focus of the legislature in

passing what eventually became ORS 124.100 was on abus-

ers and that the law was not intended to target “institu-

tional providers of care or services.” For the reasons that

follow, AMR’s reliance on that “history” is unavailing.

We begin with AMR’s reliance on an absence of

any comment on the constructive knowledge requirement

during the legislature’s deliberations on what became ORS

124.100(5). As this court has stated on a number of occa-

sions, silence in the legislative history of a statute, by itself,

is not often reliable evidence that the legislature intended

anything. Lake Oswego Preservation Society v. City of Lake

Oswego, 360 Or 115, 129, ___ P3d ___ (2016) (“[N]egative

inferences based on legislative silence are often unhelpful

in statutory interpretation.”); Weldon v. Bd. of Lic. Pro.

Counselors and Therapists, 353 Or 85, 100, 293 P3d 1023

Cite as 360 Or 211 (2016) 227

(2012) (stating reluctance to infer legislative intent from

silence); State v. Rutley, 343 Or 368, 375, 171 P3d 361 (2007)

(“statutory silence alone is not a sufficiently clear indica-

tion of legislative intent to dispense with a culpable mental

state”). Inferring legislative intent on the basis of a lack of

comment in the legislative history is problematic for several

reasons.

At the outset, it relies on unrealistic assumptions

about the legislative process and the omniscience of legis-

lators. That is, it assumes that legislators are in a position

to predict all the potential consequences of legislation and

that they will always address them. Such an assumption

ignores the fact that legislators often cannot be aware of

every potential consequence of enacting the bills before

them, as well as the fact that the press of time in legislative

sessions of limited duration often does not provide legisla-

tors the opportunity to comment on all of a bill’s potential

consequences. Moreover, drawing conclusions from silence

in legislative history misapprehends the nature of legisla-

tive history itself, which often is designed not to explain

to future courts the intended meaning of a statute, but

rather to persuade legislative colleagues to vote in a partic-

ular way. Thus, for example, a proposed legislative change

to the status quo might not prompt comment precisely

because everyone understands that the law will have that

effect or because supporters do not wish to draw attention

to it. See generally Anita S. Krishnakumar, The Sherlock

Holmes Canon, 84 Geo Wash L Rev 1, 21-35 (2016) (detail-

ing problems with drawing inference from silence in legis-

lative history);4 John C. Grabow, Congressional Silence and

the Search for Legislative Intent: A Venture Into “Speculative

Unrealities,” 64 BUL Rev 737, 765 (1984) (“necessarily fre-

quent silences of Congress provide a wholly unreliable and

unprincipled basis for inferring legislative intent”).

As for the legislative history that does exist, we

find little support for the conclusions that AMR draws from

it. What is now ORS 124.100 was introduced in 1995 as

4

The name of the article is taken from the Sherlock Holmes story Silver

Blaze, in which a watchdog failed to bark while a racehorse was stolen, leading

Holmes to infer that the dog knew the thief, its trainer. Sir Arthur Conan Doyle,

Silver Blaze, in The Complete Sherlock Holmes 349 (1930).

228 Wyers v. American Medical Response Northwest, Inc.

Senate Bill (SB) 943. It was drafted by an elder-law practi-

tioner, Bertalan, with input from an elder-abuse task force.

Bertalan testified before the Senate Judiciary Committee

following the introduction of the bill and its referral to that

committee. Tape Recording, Senate Committee on Judiciary,

SB 943, Mar 23, 1995, Tape 69, Side A (statement of Lisa

Bertalan). She explained that the focus of the bill was not

the nursing home industry because that industry already is

heavily regulated; rather, her focus in drafting the bill was

less-regulated entities and individual abusers of the elderly

and the vulnerable. Tape Recording, Senate Committee on

Judiciary, SB 943, Apr 12, 1995, Tape 102, Side B (state-

ment of Bertalan). Her written testimony explained:

“The purpose of [the bill] is to protect elders and incapac-

itated adults from physical and financial abuse * * *. The

aim of Senate Bill 943 is to prevent and provide a specific

remedy for physical abuse and financial exploitation from

relatives, the new ‘friend’ who suddenly cuts the elderly

person off from family and the rest of the world, phony con-

tractors who sell the elderly person substandard services

or unnecessary goods, and the acquaintance who suddenly

becomes the elderly person’s live-in caregiver in exchange

for the deed to the family home or other property.”

Testimony, Senate Committee on Judiciary, SB 943, Mar 23,

1995, Ex R (statement of Bertalan); see also Testimony,

House Committee on Judiciary, SB 943, May 12, 1995 Ex D

(statement of Bertalan) (to similar effect; purpose of bill is

to provide specific remedy for “physical abuse and financial

exploitation” of elderly and incapacitated persons, against

relatives, acquaintances, businesspeople, and live-in-care-

givers who perpetrate abuses).

Following introduction of the bill, representatives

of the Oregon Health Care Association proposed exclusions

for nursing facilities, residential care facilities, and assisted

living facilities. In response, an amendment was introduced

to do just that. The committee approved the bill with that

amendment. The Senate then passed the bill unanimously,

as did the House of Representatives.

Nothing in the foregoing history suggests that the

part of SB 943 that became ORS 124.100(5) was intended

Cite as 360 Or 211 (2016) 229

to apply only to individual abusers and not to employers

or other institutions. To be sure, it does reflect a concern

that the provisions of the bill not apply to particular insti-

tutions, namely, nursing facilities, residential care facilities,

and assisted living facilities. And, consistently with that

concern, the final version of the legislation contained an

exemption for those institutions. See ORS 124.115 (setting

out persons not subject to action under ORS 124.100). But

no other institutions or entities—businesses such as AMR,

for example—were included in that limited list. The express

exclusion of such a list of certain entities strongly suggests

that the legislature intended not to exclude any others not

listed. See Crimson Trace Corp. v. Davis Wright Tremaine

LLP, 355 Or 476, 497, 232 P3d 980 (2014) (when a stat-

ute lists specific exemptions, “the legislature fairly may be

understood to have intended to imply that no others are to

be recognized”).

If the reference to “circumstances in which a reason-

able person should have known of the physical or financial

abuse” in ORS 124.100(5) does not bear the narrow inter-

pretation for which AMR contends, there remains the ques-

tion of what it does mean. As we noted earlier, that wording

is reasonably capable of referring not just to circumstances

in which a reasonable person should have known of a partic-

ular instance of abuse against a particular plaintiff; rather,

it could also refer to circumstances in which a reasonable

person should have known of the same or similar abuse of

a vulnerable person. Said another way, the statute could be

read to apply when, in light of information known or avail-

able to a reasonable person, that person should have known

of the kind of abuse that in fact occurred. That interpre-

tation is the better of the reasonable possibilities. It gives

effect to all the statute’s terms, in particular, to both of its

different mental state requirements. It results in no redun-

dancy or conflict between statutory terms. It inserts noth-

ing into the statute that the legislature did not include. At

the same time, it omits nothing from the statute that the

legislature enacted. And it ensures that the statute applies

beyond the very narrow circumstances in which a defendant

either participated in or was present during abuse, or had

reason to know in advance of a plan to abuse a particular

230 Wyers v. American Medical Response Northwest, Inc.

vulnerable person, consistently with the apparent purpose

of the statute as reflected in its wording and its enactment

history.

To summarize: ORS 124.100(5) refers to two dif-

ferent mental states, one referring to actual knowledge and

the other to constructive knowledge. The former refers to

a defendant’s act or failure to act. The latter refers to the

circumstances in which that act or failure to act occurs.

The statute thus provides that there must be evidence

that a defendant knowingly acted or failed to act under

circumstances in which a reasonable person should have

known that the same sort of abuse of a vulnerable person

that occurred would, in fact, occur.5 So, for example, ORS

124.100(5) applies if an employer such as AMR knowingly

(as opposed to, say, inadvertently) schedules an employee to

work on an ambulance run under circumstances in which a

reasonable person should have known that the sort of abuse

inflicted on the plaintiff would occur.

B.  Application

With the foregoing interpretation in mind, we turn

to the question whether the trial court erred in granting

AMR’s summary judgment motion as to all six plaintiffs.

Summary judgment is appropriate if, viewing the evidence

in the light most favorable to the nonmoving party, no gen-

uine issue of material fact exists “and the moving party is

entitled to judgment as a matter of law.” See Chapman v.

Mayfield, 358 Or 196, 204, 361 P3d 566 (2015) (so stating

and citing ORCP 47 C).

As explained in our earlier factual summary, the

incidents at issue in this case involved instances of abuse

inflicted on six different vulnerable persons—plaintiffs—by

AMR’s employee, Haszard. AMR does not dispute that each

of the six plaintiffs qualified as a “vulnerable person” within

the meaning of ORS 124.100(1)(e).

5

As we note later in this opinion, the evidence in the record is sufficient

to permit a reasonable juror to find that a reasonable person in AMR’s position

should have known that the sort of abuse that did occur would, in fact, occur. We

need not address whether the statute also contemplates liability under circum-

stances in which a reasonable person should have known that such abuse as did

occur was merely foreseeable.

Cite as 360 Or 211 (2016) 231

None of the six plaintiffs reported her interaction

with Haszard to AMR, to other medical staff, or to the

police. It thus is undisputed that, until discovery during the

Herring litigation several years later, AMR had no actual

knowledge of Haszard’s physical abuse of any of the six

plaintiffs in this case. The question, however, is not whether

AMR actually knew about that abuse. Instead, the question

is whether plaintiffs established genuine issues of material

fact as to whether AMR knowingly scheduled Haszard to

work as a paramedic under circumstances in which a rea-

sonable person should have known that the sort of abuse

that the plaintiffs suffered would occur. AMR does not sug-

gest that it had not knowingly assigned Haszard to work

as a paramedic during each of the six alleged incidents of

abuse. That leaves, then, the question whether a genuine

issue of material fact exists about whether AMR did so under

circumstances in which a reasonable person should have

known that the same type of abuse that occurred would in

fact occur.

1. Plaintiff Akre

The earliest incident involving a plaintiff in this case

concerned plaintiff Akre. Viewed in the light most favorable

to plaintiffs, evidence in the record shows that, by the time

of plaintiff Akre’s abuse, AMR knew that other similarly sit-

uated vulnerable persons had reported that Haszard had

abused them. Specifically, in February 2006, Spain had

called AMR and reported to its receptionist that one of the

company’s paramedics was a “freak” who had inappropri-

ately touched her, that it was unsafe for that paramedic to

transport little girls, and that he should be taken off ambu-

lance duty. Additionally, there is evidence that complaints,

such as those alleging sexual misconduct, were entered

into a database and forwarded to AMR’s county operations

manager.

There is also evidence that, one month after the

Spain incident, Whalen reported in an AMR customer sur-

vey that Haszard had failed to respect her privacy at the hos-

pital by not looking away while a nursing assistant helped

Whalen into a gown, despite her obvious discomfort. AMR

followed up with an interview of Whalen, during which she

232 Wyers v. American Medical Response Northwest, Inc.

complained that Haszard had stared at her and acted sexu-

ally aroused. Whalen later recounted that the AMR inves-

tigator had “dismissed everything that [she had] said,” tell-

ing her that she “must have been imagining things.” The

investigator, however, did write an internal report describ-

ing Whalen’s complaint and concluding that it had been

“substantiated.” Plaintiff Akre’s abuse occurred about three

weeks after that.

There is thus evidence that, at the time of plaintiff

Akre’s abuse, AMR had already received at least two com-

plaints of sexually inappropriate conduct on the part of its

paramedic, Haszard. Indeed, one of those reports had been

investigated and confirmed as having been “substantiated.”

Under those circumstances, there is at least a genuine issue

of fact about whether AMR should have known of the sort

of abuse that plaintiff Akre suffered. To be sure, AMR dis-

putes the Spain report, noting that it has no record of such

a complaint call having been placed or, if it had been placed,

that the receptionist ever reported the call to anyone else.

But AMR’s dispute establishes no more than that there is

a genuine issue of material fact about what transpired. At

this stage, we are constrained to view the evidence in the

light most favorable to plaintiff. In that light, there is at

least a genuine issue of material fact about whether AMR

should have known when it assigned Haszard to ambulance

duty that the same sort of abuse inflicted on plaintiff Akre

would occur. See Towe v. Sacagawea, Inc., 357 Or 74, 109-

10, 346 P3d 1207 (2015) (evidence mixed as to factual issue

in dispute, reasonable juror could find facts either way, and

so case presented factual issues for jury to resolve; trial

court therefore erred in granting summary judgment). The

trial court therefore erred in granting summary judgment

against plaintiff Akre.

2. Plaintiffs Shaftel, Asbury, and Terpening

By the time of the alleged abuse against plain-

tiffs Shaftel, Asbury, and Terpening, there is evidence

that AMR had received even further reports of Haszard’s

abusive conduct toward vulnerable persons. In December

2006, Rotting was transported by ambulance with Haszard

attending. During that transport, Haszard touched Rotting

Cite as 360 Or 211 (2016) 233

in a manner similar to the sexual touching that plaintiff

Akre had alleged; he also slowly stroked Rotting’s thigh.

Rotting reported the incident to a nurse and to family mem-

bers, and her son called AMR. Her son spoke with the same

supervisor who had investigated the Whalen complaint, and

the supervisor stated that there would be an investigation.

The investigation, however, was limited to interviewing

Haszard, who denied having engaged in any inappropriate

conduct. Rotting’s son called AMR again and stated that

the police should be involved. AMR took no further action,

although its risk management department was notified that

Rotting might file a complaint.

A month later, Haszard sexually abused plaintiff

Shaftel. And three weeks after that, he sexually abused

plaintiff Asbury. Three weeks later, he also sexually abused

plaintiff Terpening. Thus, by the time of Haszard’s abuse

of those three plaintiffs, there is evidence that AMR had

received three reports of its employee’s abuse of vulnerable

persons under circumstances similar to those later incidents

of abuse that actually occurred. Again, AMR disputes some

of the foregoing evidence, but that is not the point at this

stage in the proceedings. On the record before us, viewed in

the light most favorable to plaintiffs Shaftel, Asbury, and

Terpening, there is at least a genuine issue of material fact

about whether AMR should have known that the sort of

abuse that plaintiffs Shaftel, Asbury, and Terpening suf-

fered would occur. The trial court therefore erred in grant-

ing summary judgment against those three plaintiffs.

3. Plaintiffs Webb and Corning

Haszard’s abuse of plaintiffs Webb and Corning

occurred not long after the abuse of plaintiffs Shaftel,

Asbury, and Terpening. By that time, AMR had received

yet another report of abuse. In March 2007, Pries reported

to police that Haszard had sexually abused her during an

AMR ambulance transport by taking her hand, placing it

inside her pants, and manipulating it. Police spoke with an

AMR supervisor, and several AMR employees, including

Haszard, then met with a company risk-management offi-

cial. AMR ultimately determined that it could not substan-

tiate Pries’s allegations, but it warned Haszard in writing

234 Wyers v. American Medical Response Northwest, Inc.

that either that incident or Rotting’s would be reopened if

more information came to light. AMR did not make any

effort to contact Pries, did not request further information

from police, and did not tell police about the Rotting com-

plaint. A month later, Haszard abused plaintiff Webb during

an ambulance transport. Four months after that, he abused

plaintiff Corning.

Thus, by the time of Haszard’s abuse of plaintiffs

Webb and Corning, AMR had received four reports of abuse

of vulnerable persons by its employee Haszard, including

one report involving the police. Indeed, there is evidence

that AMR warned Haszard not to engage in such conduct in

the future. That evidence is sufficient to establish a genuine

issue of material fact about whether a reasonable person in

AMR’s position should have known that the sort of abuse

that plaintiffs Webb and Corning suffered would occur. As a

result, the trial court erred in granting summary judgment

for AMR against plaintiffs Webb and Corning.

The decision of the Court of Appeals is affirmed.

The judgment of the circuit court is reversed, and the case

is remanded to the circuit court for further proceedings.