SKILLE v. Oregon State Hospital, a State agency; and Department of Human Services, a State agency, Defendants-Respondents.

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Court of Appeals of Oregon.

Kia SKILLE, Plaintiff-Appellant, v. Tony Rey MARTINEZ, in his individual capacity, Defendant, Oregon State Hospital, a State agency; and Department of Human Services, a State agency, Defendants-Respondents.

A159729

    Decided: October 11, 2017

Before DeVore, Presiding Judge, and Garrett, Judge, and Wollheim, Senior Judge.* Kevin T. Lafky, Salem, argued the cause for appellant. With him on the briefs were Daemie M. Kim and Lafky & Lafky. Peenesh Shah, Assistant Attorney General, argued the cause for respondents. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

 Plaintiff brought this action against the Department of Human Services (DHS), the Oregon State Hospital (OSH), and Martinez, an OSH employee, alleging that Martinez sexually assaulted her by means of using his custodial position to “groom” her and exploit her mental illness and vulnerability to obtain sexual favors while she was under the jurisdiction of the Psychiatric Security Review Board (PSRB) and a resident at OSH. Plaintiff asserted tort claims for assault and battery against DHS and OSH, along with substantive due process and cruel and unusual punishment claims, under 42 USC § 1983, against Martinez. The alleged tortious conduct occurred during a three-year period, which ended in 2013. Plaintiff, however, did not bring her action against defendants until July 2014, shortly after she learned that Martinez had been accused of abusing other patients in the course of his custodial duties.

The state defendants moved to dismiss under ORCP 21 A(8) (providing for dismissal for “failure to state ultimate facts sufficient to constitute a claim”) on the basis that plaintiff failed to allege facts sufficient to toll the statute of limitations provided by the Oregon Tort Claims Act (OTCA), ORS 30.275. The trial court agreed with the state and, by limited judgment, dismissed the tort claims against DHS and OSH with prejudice, concluding that plaintiff's notice was untimely because it was given more than 180 days after plaintiff knew or should have known of the alleged tortious conduct. For the reasons explained below, we conclude that the trial court erred in concluding that a reasonable trier of fact could not find that the sexual contact between plaintiff, a resident of OSH, and Martinez, an OSH employee in a position of authority over plaintiff, was offensive for purposes of assault and battery, and could not further find that plaintiff was unaware of the offensive nature of that contact until she learned other facts related to Martinez's conduct toward other patients. Accordingly, we reverse and remand the trial court's judgment of dismissal.

Because this appeal arises from the trial court's grant of the state defendants' motion to dismiss under ORCP 21 A(8), “we assume that all well-pleaded facts” in  plaintiff's second amended complaint “are true and give plaintiff the benefit of all favorable inferences that reasonably may be drawn from those factual allegations.” Piazza v. Kellim, 360 Or. 58, 61, 377 P.3d 492 (2016). Further, to state a claim under ORCP 21 A(8), “a complaint must contain factual allegations that, if proved, establish the right to the relief sought.” Moser v. Mark, 223 Or. App. 52, 57, 195 P.3d 424 (2008). We review the trial court's grant of the motion to dismiss for failure to state a claim for legal error. Bundy v. NuStar GP, LLC, 277 Or. App. 785, 792-93, 373 P.3d 1141 (2016).

Plaintiff brought this action in July 2014. Alleging that Martinez was acting within the course and scope of his employment, plaintiff asserted claims against DHS and OSH for assault and battery based on Martinez's “harmful and offensive contact.” In her second amended complaint, plaintiff alleged that, in 2004, plaintiff was found guilty except for insanity of felony assault with a firearm based on mental disease or defect. In the criminal trial court, it was determined that plaintiff had experienced a psychotic break, and the court placed her under the jurisdiction of the PSRB for a period of 20 years. While under the jurisdiction of the PSRB and during the time of defendants' alleged tortious conduct, plaintiff was “medicated with a high dose of a selective serotonin and norepinephrine reuptake inhibitor and an antipsychotic medication,” and she received Social Security disability benefits in part because her mental impairment prevented her from working. During the time plaintiff had contact with Martinez, plaintiff was “mentally ill, vulnerable, [and] confused.”

Over the course of several months in 2010, plaintiff, who was residing at OSH, had several encounters with Martinez, who was a “Security Transport” employee at the hospital. The first encounter, which plaintiff characterized as “professional,” involved Martinez transporting plaintiff to and from an interview at Cascadia Behavioral Health in Portland. In the next encounter, which involved another transport to and from Cascadia, Martinez took plaintiff to a restaurant, told her that he wanted her to “trust” him, and left his “keys, wallet and cell phone with her at the table” while he used the restroom. After the visit to Cascadia,  Martinez asked plaintiff for her cell phone number, kissed her in the car, and told plaintiff that she “seemed normal and did not seem to be a mental patient. Plaintiff was confused by Martinez'[s] interaction with her.”

Plaintiff and Martinez exchanged phone calls and text messages while she resided at OSH. There were also additional physical encounters, with escalating sexual contact. On one occasion, Martinez visited plaintiff's cottage at OSH; when she agreed to his request to see her room, he partially closed the door and kissed her. In the course of another transport to Cascadia, Martinez “kissed Plaintiff in the car, touched her breasts, [and] touched between her legs and over her pants.” While plaintiff was at Cascadia, Martinez went to a store and purchased gifts for plaintiff and her son. After plaintiff's appointment, Martinez gave her the gifts, and, on the way back to OSH, he asked plaintiff to perform oral sex on him, which she did.

During this time, Martinez repeatedly told plaintiff that he wanted her to “trust” him, and he led her to believe that the two were in a romantic relationship, and that plaintiff was “desirable and normal.” In November 2010, plaintiff moved to Cascadia on a conditional release. Martinez transported her there; on the way, they stopped at a park, walked around, held hands, and kissed. Martinez said that he wanted the “relationship to continue.” He later sent text messages to plaintiff saying that he loved her and intended to leave his wife.

Plaintiff ceased contact with Martinez shortly after she arrived at Cascadia. She saw him at one point when he transported another patient there. Martinez said that he missed her and asked why she had stopped contacting him.

Plaintiff returned to OSH from June 2012 through November 2013. During that period, plaintiff and Martinez had additional contacts, some of them sexual in nature. Martinez told plaintiff that he manipulated the OSH transportation schedule to ensure that he would be able to transport her on trips alone.

The last contact occurred in May 2013. During a transport to an interview, Martinez kissed plaintiff and  asked for oral sex. Plaintiff expressed reluctance and a feeling of pressure, but said she would perform oral sex on the way back to OSH after the interview, which she did. Although that was the last contact between the two, plaintiff continued to believe that Martinez “cared for her and that she was ‘special’ as he had repeatedly told her that since 2010.”

Additionally, plaintiff alleged that, since 2010, Martinez had engaged in a “grooming process” that involved

“befriending Plaintiff and then gaining her trust, admiration, love, and respect by taking her on outings, calling her, texting her, giving her money, buying presents for her and her children, telling her she was special, and that she was normal. Martinez used his grooming process, the ability to manipulate his schedule to have alone time with Plaintiff, and his position of power as her driver to engage in a sexually intimate relationship and to lead Plaintiff to believe they were involved in a romantic relationship so that Plaintiff would not realize that the sexual touching was offensive.”

Although the contact between plaintiff and Martinez ceased in May 2013, plaintiff alleged that she did not learn about its offensive nature until approximately one year later, in May 2014:

“Plaintiff discovered that the sexual and intimate contact she had with Martinez was inappropriate and harmful to her in May 2014, when she learned that Martinez was going to be prosecuted for his crimes and that there were other women he had been involved with. Plaintiff realized that they were never in a relationship, Martinez lied to her, and that he had harmed her through their sexual and intimate acts. Plaintiff realized that Martinez had abused his custodial position to sexually abuse her and to lead her to believe his conduct was acceptable. As a result of Martinez's actions * * *, combined with Plaintiff's mental health, she did not comprehend the abusive nature of Martinez's touching at the time the touching occurred.”

The state defendants moved to dismiss on the ground that the last alleged tortious conduct occurred in May 2013, and plaintiff's OTCA notice was given more than 180 days later. In response, plaintiff argued that the OTCA  notice period was tolled until the date that she discovered her injury, which was May 2014. The trial court dismissed the original complaint and the first amended complaint without prejudice and, by limited judgment, dismissed plaintiff's second amended complaint with prejudice.

The trial court agreed with the state that plaintiff knew or should have known of the tortious nature of the conduct when it occurred—i.e., by May 2013 at the latest—and dismissed the tort claims. In doing so, the trial court rejected plaintiff's argument that it was for a jury to decide whether she reasonably was not aware of the tortious nature of Martinez's actions until she learned that he was going to be prosecuted for similar behavior toward other patients—in other words, whether plaintiff could reasonably have understood only at that point that Martinez had exploited her vulnerability due to her mental fragility and sexually assaulted her. In the court's view, the gravamen of the alleged wrong was “not having a relationship with other people at the same time you're having a relationship with [plaintiff]” and plaintiff “knew” that the contact between her and Martinez was “inappropriate,” and she “concealed it.” Moreover, the court agreed with the state's argument that plaintiff failed to allege a specific mental condition that would render her unable to perceive the alleged harm.

Plaintiff appeals the limited judgment and reprises her argument that the question of when she reasonably knew or should have known of the tortious nature of Martinez's conduct is a question of fact that the trial court should have left for the jury. Plaintiff relies on the Supreme Court's decision in Doe v. Lake Oswego School District, 353 Or. 321, 334-35, 297 P.3d 1287 (2013), in which the court held that a reasonable trier of fact could have determined, in part based on a history of “grooming” behavior, that fifth-grade children who were victims of sexual touching by a teacher did not know that the touching was offensive until years after it occurred.

The state seeks to distinguish Doe, arguing that plaintiff knew about the nature of the sexual contact and that plaintiff's later discovery that Martinez was being prosecuted for custodial sexual misconduct does not bear on the offensiveness of the contact itself, for purposes of the  torts of assault and battery. In the state's view, plaintiff is an adult, not a child, and thus should have known that the contact was offensive at the time it occurred because “a reasonable adult is not vulnerable to grooming in the way that a reasonable fifth-grader might be.” The state also argues, as it did below, that plaintiff's allegations of a mental disorder lacked sufficient specificity to show that she would have understood the nature of Martinez's conduct differently from any other adult. The state analogizes this case to a situation where one adult “simply lied” to another to convince her to participate in sex.

We begin our analysis by laying out several applicable legal principles. First, the claims at issue are plaintiff's common law claims for assault and battery. Those torts consist of the following elements: “(1) an actor acts intending to cause a harmful or offensive touching with the person of another or a third person, or an imminent apprehension of such contact; and (2) a harmful or offensive contact with the person of the other directly or indirectly results (battery) or the other person is thereby put in imminent apprehension (assault).” Foster v. Miramontes, 236 Or. App. 381, 388, 236 P.3d 782 (2010), rev'd in part on other grounds, 352 Or. 401, 287 P.3d 1045 (2012). The allegations in plaintiff's second amended complaint are that Martinez's physical contact with her was “offensive” because he abused a position of authority to deceive plaintiff—who was in a vulnerable position as a result of her mental state and her residence at OSH—into believing that their sexual relationship was normal and appropriate.

Second, plaintiff's tort claims against OSH and DHS are subject to the OTCA, which, as relevant here, requires plaintiff to have provided notice of her claim “within 180 days after the alleged loss or injury.” ORS 30.275(2)(b).

Third, the 180-day notice period under the OTCA does not begin to run until a “plaintiff has [had] a reasonable opportunity to discover his injury and the identity of the party responsible for the injury.” Doe, 353 Or. at 327 (emphasis and internal quotation marks omitted). An injury is “discovered” when a plaintiff knows, or should have known, of a substantial possibility that three elements exist: (1) harm;  2) causation; and (3) tortious conduct. Gaston v. Parsons, 318 Or. 247, 255-56, 864 P.2d 1319 (1994).

The sole matter in dispute on appeal is whether the trial court correctly ruled that plaintiff, as a matter of law, knew or should have known of the tortious nature of Martinez's alleged conduct by May 2013 (the date of their last sexual contact) at the latest, more than 180 days before she provided OTCA notice.

Plaintiff argues that the trial court erred because the 180-day period began to run not from the date of the last sexual contact, but, rather, from the time of her discovery in May 2014 that Martinez was being prosecuted for similar conduct toward other victims. That is so, reasons plaintiff, because until that point, plaintiff was operating under Martinez's deception that the two had a “normal” romantic relationship, and it was only in May 2014 that she learned that “Martinez had subjected her to harmful and offensive tortious contact (i.e., that he had taken advantage of her circumstances and vulnerability to groom her and use her for his sexual gratification).” As noted, plaintiff relies on Doe for the principle that “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,” Doe, 353 Or. at 332, contending that the trial court erred in removing from the jury the question of when plaintiff should reasonably have known that Martinez acted tortiously.

In Doe, the plaintiffs were adults who brought claims for battery against the defendant school district, alleging that, when they were in the fifth grade, a teacher sexually abused them. Id. at 323-24. The plaintiffs alleged that they had been victims of the teacher's “ ‘grooming process,’ ” which included “ ‘non-tortious touching.’ ” Id. As a result of that grooming, the plaintiffs alleged, they were “confused by [the abuse] and unable to discern at the time that the touching was inappropriate or harmful.” Id. at 324. They alleged that they did not discover their injuries until many years later. Id.

The trial court dismissed the claims as untimely, reasoning that they accrued when the abuse occurred  because fifth-graders of ordinary mental ability would have understood that “ ‘this kind of touching is wrong.’ ” Id. at 326. Before the Supreme Court, the school district argued that 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.’ ” Id. at 330 (brackets in original).

The Supreme Court concluded that the district's argument

“mistakenly conflates the question of whether [the teacher's] alleged conduct was in fact offensive with the question whether plaintiffs, as fifth-graders subjected to [his] 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 * * * the tortious nature of that conduct.”

Id. at 331. The court went on to explain that whether a plaintiff knew or should have known that an act was tortious is generally a question of fact determined by an “objective standard—how a reasonable person of ordinary prudence would have acted in the same or a similar situation.” Id. at 332 (internal quotation marks omitted). However, in applying that standard, “a court must consider the facts from the perspective of a reasonable person in the circumstances of the plaintiff. Those circumstances include, but are not limited to, plaintiff's status as a minor, the relationship between the parties, and the nature of the harm suffered.” Id. at 333 (citations omitted; emphasis added).

In Doe, the court concluded that, although “many fifth-graders would have known that [the teacher's] touching was offensive, plaintiffs alleged facts from which a jury could find that these plaintiffs did not reach that conclusion at the time of [the teacher's] actions.” Id. at 334 (emphasis added).

 According to the state, this case is different from Doe, principally because, where Doe involved child victims, plaintiff was an adult at all relevant times, and the second amended complaint contains no allegations supporting an inference that plaintiff did not understand the “offensive nature of [the] sexual and intimate contact.” The state further argues that a reasonable adult is not vulnerable to “grooming” in the same way that a child may be, and that plaintiff's conclusory allegations that she was “suffering from a mental disease or defect” and “was incapable of consenting to a sexual relationship,” without more, are insufficient to establish that she was “vulnerable to grooming or that she reasonably could not discern the nature of Martinez's contact.”

In addition, the state argues that plaintiff's allegations show that she did understand the nature of the contact, pointing out that plaintiff associated the sexual contact with being in a “romantic relationship” and expressed reluctance or resistance to Martinez's sexual advances on more than one occasion. The state contends that plaintiff's claim, at bottom, is that the conduct was offensive because “she was mistaken about the nature of their relationship,” which is distinct from an “inability to understand the nature of the alleged contact.”

We disagree with the state's characterization of plaintiff's allegations and her claimed injury. Plaintiff's claim is not that the alleged conduct was offensive because she was mistaken about the nature of the relationship between her and Martinez. Rather, plaintiff essentially contends that Martinez exploited her mental vulnerability, which existed because of her mental state and circumstances, by means of his custodial position and “grooming” behavior to procure sexual favors from her. That is, plaintiff alleges that she was in a state of mental fragility and was vulnerable to Martinez, who occupied a position of authority over her by virtue of his status as an OSH employee. The alleged grooming by Martinez includes manipulating his schedule so that he could be alone with plaintiff; telling plaintiff—who was being treated for mental illness, under the jurisdiction of the PSRB, and a resident at OSH—that she “seemed normal and did not seem to be a mental  patient”; and bringing plaintiff to a restaurant in the course of his security transportation duties and attempting to gain her trust by leaving her alone with his keys, wallet, and cell phone.

A trier of fact could determine that the sexual contact between plaintiff and Martinez, which would otherwise not be offensive if it occurred between consenting adults—was, in fact, offensive under the circumstances alleged by plaintiff because of her vulnerability and Martinez's custodial position. See Doe, 353 Or. at 333-34 (explaining that physical contact that might be acceptable as between some people might be “intolerable” as between others). Support for that conclusion is found in, among other sources, Oregon's statutes criminalizing sexual contact between persons in correctional facilities and employees of those facilities. See ORS 163.452; ORS 163.454. Plaintiff's allegations are more than an assertion that Martinez lied to her or that she merely misperceived the nature of their “relationship.”

We also disagree with the state's argument that, because plaintiff merely alleged that she “was suffering from a mental disease or defect” and failed to allege a particular mental disorder that rendered her unable to discern the offensive nature of Martinez's conduct, plaintiff's ability to understand the nature of the contact between her and Martinez should be viewed from the perspective of a reasonable adult without regard to her particular circumstances. Plaintiff alleges several circumstances and facts that position her differently from the ordinary reasonable adult. That is, plaintiff suffered a psychotic break that led to her being found guilty except for insanity of felony assault and being placed in the jurisdiction of the PSRB for 20 years; she resided at OSH, a secure facility for treating persons with mental disorders, or, at other times, at a less restrictive mental-health-treatment facility; during the alleged conduct, she was medicated with a “high dose of a selective serotonin and norepinephrine reuptake inhibitor and an antipsychotic medication”; and her mental impairment has been deemed, in part, to prevent her from engaging in ordinary work, entitling her to disability benefits. Those circumstances are sufficient for a jury to draw the inference that plaintiff was “mentally ill, vulnerable, [and] confused” to  the extent that she was susceptible to the alleged exploitation by Martinez.

With that in mind, given plaintiff's alleged injury, for purposes of deciding whether plaintiff has alleged facts to show that she reasonably did not understand the offensive nature of the contact while it occurred, it is a reasonable inference that, because of Martinez's custodial position and plaintiff's personal circumstances, Martinez's conduct could result in plaintiff failing to perceive the offensive nature of the contact. That is, assuming the truth of plaintiff's allegations, a reasonable trier of fact could conclude that the reason that the contact was tortious—i.e., Martinez's abuse of his custodial position to groom a vulnerable resident of a secure mental-health facility under his supervision—was unknown to plaintiff at the time precisely because Martinez exploited her vulnerability to prevent her from discerning the wrongful quality of his conduct.

Accordingly, a jury could find that plaintiff did not know that Martinez's conduct was exploitative, and, therefore, “did not comprehend the abusive nature of Martinez's touching at the time the touching occurred” until plaintiff found out, in May 2014, that “Martinez was going to be prosecuted for his crimes and that there were other women he had been involved with.” In short, a reasonable trier of fact could determine that plaintiff first reasonably became aware of the tortious quality of Martinez's actions in May 2014, less than 180 days before she provided her OTCA notice to the state defendants.

Here we observe, as did the Supreme Court in Doe, that plaintiff's complaint “does no more than allege facts that [she] must prove. Defendant[s] may challenge the truth of plaintiff['s] allegations at many remaining junctures, and our decision does not foreclose [them] from doing so.” 353 Or. at 335. The narrow question in this appeal is whether plaintiff has alleged facts that, if proven true, would permit a reasonable conclusion that she was unaware of the tortious nature of Martinez's conduct at the time that it occurred. We conclude that she has. Accordingly, the trial court erred in granting defendants' motion to dismiss.

Reversed and remanded.

GARRETT, J.

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