Barrington v. Sandberg , 1999 Ore. App. LEXIS 2042 ( 1999 )

ARMSTRONG, J.

Defendant City of North Bend appeals from a judgment in favor of plaintiff in this action for intentional infliction of emotional distress arising from a city police officer’s treatment of a female Explorer Scout police cadet. Plaintiff is the father and guardian ad litem of the cadet. We modify the judgment to eliminate one item of damages and otherwise affirm.

Because the jury found in favor of plaintiff, we state the necessary facts most favorably to his position. In 1988, defendant established an Explorer cadet program in its police department. From the beginning, Sergeant Kent Sandberg was the supervisor of the program. The cadet joined it in September 1994, soon after turning 15, the minimum age for the program, because she wanted to learn more about a possible career as a police officer. She left the program in September 1995 as the result of Sandberg’s conduct. Between September 1994 and June 1995, Sandberg engaged in five separate acts that the jury could conclude had inappropriate sexual characteristics. The details are not necessary to our decision. Defendant does not assert that the evidence is insufficient to support a verdict against Sandberg for intentional infliction of emotional distress. Rather, it argues that the evidence is insufficient to support a verdict based on respondeat superior against defendant.

In its first assignment of error, defendant asserts that the trial court erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict on the ground that it could not be liable for Sandberg’s acts. It argues that, as a matter of law, Sandberg was not acting within the scope of his employment when he committed the acts that are the basis for plaintiffs claim. In support, defendant relies on our decisions in Fearing v. Bucher, 147 Or App 446, 936 P2d 1023 (1997), rev’d 328 Or 367, 977 P2d 1163 (1999), and Lourim v. Swensen, 147 Or App 425, 936 P2d 1011 (1997), rev’d 328 Or 380, 977 P2d 1157 (1999). In those cases, we interpreted the Supreme Court’s decisions in Chesterman v. Barmon, 305 Or 439, 753 P2d 404 (1988), and G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or 54, 757 P2d 1347 (1988), as holding that an employer was not liable for an employee’s sexual misconduct when it was not the kind of conduct that the employer had hired the employee to perform. We concluded that a Boy Scout leader¹ and a priest who sexually abused adolescents were acting outside the scope of their employments as a matter of law. We therefore affirmed trial court decisions dismissing the complaints against the employers.

Since the argument in this case, the Supreme Court has reversed our decisions in Fearing and Lourim, concluding that we had not correctly understood the meaning of, and relationship between, Chesterman and G.L. Fearing v. Bucher, 328 Or 367, 977 P2d 1163 (1999); Lourim v. Swensen, 328 Or 380, 977 P2d 1157 (1999). Under those recent decisions, it is clear that there was sufficient evidence in this case to submit the issue of respondeat superior to the jury. In Fearing and Lourim, the court emphasized that the issue is not whether the employee acted in the employer’s interests when the employee committed the offensive acts themselves or whether those were the kind of acts that the employer hired the employee to perform.

“Such circumstances rarely will occur and are not, in any event, necessary to vicarious liability. Rather, the focus properly is directed at whether the complaint contains sufficient allegations of [the employee’s] conduct that was within the scope of [the employee’s] employment that arguably resulted in the acts that caused plaintiffs injury.”

Fearing, 328 Or at 376; see also Lourim, 328 Or at 386-87.

The essential point is that the performance of the employee’s duties must be a necessary precursor to the misconduct and that the misconduct must be a direct outgrowth of, and have been engendered by, conduct that was within the scope of the employee’s employment. It is not necessary that the misconduct itself be of a kind that the employer hired the employee to perform. See Fearing, 328 Or at 377.² The evidence in this case is sufficient to permit the jury to find that Sandberg’s work as supervisor of the police cadets was a necessary precursor to the misconduct and that the misconduct was a direct outgrowth of that work. All but one of the incidents occurred while Sandberg was performing his official duties of supervising the police cadets; the other incident occurred during a skiing trip that Sandberg planned for the cadets. The trial court did not err in submitting the case to the jury.

In its second assignment of error, defendant asserts that the trial court erred in denying its motion for directed verdict as to all claims based on events that occurred before January 27,1995, which was 270 days before plaintiff mailed his tort claim notice.³ Plaintiff responds that he alleged a continuing tort, not a series of discrete harms, and that the notice was timely because some of the events that together constituted the tort occurred fewer than 270 days before the notice. We generally agree with plaintiffs argument.

A continuing tort is based on “the concept that recovery is for the cumulative effect of wrongful behavior, not for discrete elements of that conduct.” Davis v. Bostick, 282 Or 667, 671, 580 P2d 544 (1978). In Davis, the plaintiff sought damages for the intentional infliction of emotional distress based on a number of incidents that occurred both before and after the period of the statute of limitations. The incidents before the limitations period included threatening and abusive telephone calls, breaking the plaintiffs nose, choking her, accusing her of having had an abortion, and threatening to kill her and her male friends. The trial court treated all of the incidents as parts of a continuing tort and instructed the jury that it could award damages for any emotional distress and anxiety that the plaintiff had suffered, without regard to the statute of limitations defense. 282 Or at 669, 671.

On appeal, the Supreme Court held that, although there was no doubt that the defendant’s abusive behavior was all of a piece in intent and content, there could also be no doubt that the acts of assault and battery and the death threats were separately actionable because they individually caused harm. Id. at 672. It noted that the statute of limitations might well not begin to run until the defendant’s conduct had culminated in the plaintiffs severe emotional distress. The trouble with that argument, however, was that “a broken nose, believable death threats, and a false accusation and rumormongering about an abortion not only ought to have produced some severe contemporaneous distress, but plaintiff proved that they did.” Although the defendant’s acts were continuous in that they made up a course of conduct that was capable of producing cumulative compensable harm, they were also discontinuous in that each had a beginning and an end, each was separated from the others by a period of relative quiescence, and each was capable of producing compensable harm. Id. at 673.

The court stated that it could “well imagine a case where the conduct has an identifiable total effect which is a product of the course of conduct,” but on the evidence Davis was not such a case. “Plaintiff’s theory is that she ought to recover now for a series of wrongs, but her evidence is that she was harmed by each act in the series. We do not think that she was entitled to ride out the storm and lump sum her grievances.” The court reversed the verdict for the plaintiff because the trial court erred in striking the defendant’s statute of imitations defense. Id. at 674-75 (emphasis in original).

The differences between Davis and this case are apparent from the record. An essential element of the tort of intentional infliction of emotional distress is that the injured person in fact suffer such distress. Until the cadet suffered that distress, she did not have a claim for that tort. See Patton v. J. C. Penney Co., 301 Or 117, 719 P2d 854 (1986). The physical contact between Sandberg and the cadet was different in quality from that in Davis and did not itself cause the damage. Defendant emphasized in its cross-examination of the cadet that several of the incidents did not cause her emotional distress at the time that they occurred. Although, according to the cadet’s testimony, she felt some stress from the incidents, it was not until she first talked about them to a friend in July 1995 that their full effect came out. In the process of describing what Sandberg had done, the cadet became increasingly upset, started crying, and eventually vomited all over her own clothes and her friend’s sheets. She thereafter told her parents and began counseling. Her parents consulted an attorney, who soon afterwards gave defendant a tort claims notice and eventually filed this lawsuit. The jury could have found that Sandberg’s actions constituted a continuing tort and that the cadet did not suffer severe emotional distress from any of them until July 1995. In that case, under Davis the individual incidents were not separately actionable and the trial court correctly denied defendant’s motion for a directed verdict as to the incidents that occurred more than 270 days before the tort claims notice.

This case is similar to Griffin v. Tri-Met, 112 Or App 575, 581-82, 831 P2d 42 (1992), rev’d in part on other grounds 318 Or 500, 870 P2d 808 (1994), in which each incident of a series did not by itself support a claim but the incidents as a whole were a systematic pattern of conduct that led to a specific injury. Because the incidents constituted a course of conduct, all of them were part of the basis of the claim even though some occurred before the tort claims notice period.

Defendant’s third and fourth assignments of error involve the court’s action in submitting specific categories of damages to the jury. In the third assignment, defendant attacks the court’s denial of its motion to strike the claim for past medical expenses. It points out that plaintiff, the cadet’s father, failed to file the statement that ORS 30.810 requires. That statute provides:

“(1) When the guardian ad litem of a child maintains a cause of action for recovery of damages to the child caused by a wrongful act, the parent, parents, or conservator of the estate of the child may .file a consent accompanying the complaint of the guardian ad litem to include in the cause of action the damages as, in all the circumstances of the case, may be just, and will reasonably and fairly compensate for the doctor, hospital and medical expenses caused by the injury.

“(2) If the consent is filed as provided in subsection (1) of this section and the court allows the filing, no court shall entertain a cause of action by the parent, parents or conservator for doctor, hospital or medical expenses caused by the injury.”

Defendant argues that it is implicit in the statute that a failure to file the required statement means that there is no basis for the guardian ad litem to recover the parent’s medical expenses in an action brought on behalf of the child. It points out that a claim for those expenses normally belongs to the parent, not to the child. See Palmore v. Kirkman Laboratories, 270 Or 294, 305-06, 527 P2d 391 (1974). Plaintiff responds that in this case the parent and the guardian are the same person and that, therefore, the court should imply that the parent consented to include those damages in this case.

We agree with defendant. The statute provides an express way to include the parent’s damages in the child’s case; it does not provide an implicit way to do that. Whether or not plaintiff would be embarrassed, as he suggests, to argue that the judgment in this case is not a bar to a subsequent attempt by him to recover those damages, such an argument would not be patently wrong. In this case, plaintiff is acting as the cadet’s guardian; he could bring a subsequent case in his own right. He could well argue that, in the absence of the written consent, the only issues decided in this case are those that belong to the cadet personally. The legislature did not intend for defendant to rely solely on plaintiffs sense of embarrassment to protect against a possible double recovery. The trial court erred in entering judgment for the cadet’s past medical expenses.

Finally, defendant assigns error to the trial court’s denial of its motion for a directed verdict on the claim for future medical expenses. Those expenses involved the cadet’s need for counseling over the remainder of her life. Defendant argues that there is no evidence that would allow the jury to reduce the total cost of therapy over many years to its present value. Plaintiffs only response is that the court did not rule on defendant’s motion, so there is nothing for us to review on appeal.

When the court stated that it would let the jury decide the issue, it effectively denied defendant’s motion. The court also concluded that the amount that plaintiff sought in his complaint was an adequate approximation of the present value of the future counseling that the cadet would need and denied plaintiffs motion to amend the complaint to seek the total cost of the counseling without a reduction to its present value.⁴ We conclude that the court did not err. In Brokenshire v. Rivas and Rivas, Ltd., 142 Or App 555, 563-64, 922 P2d 696 (1996), rev dismissed 327 Or 119, 957 P2d 157 (1998), the plaintiff presented evidence about her life expectancy, work years until retirement, and projected lifetime earnings both before and after her injury; all of that evidence was relevant to the amount of her lost earning capacity. She did not present evidence concerning the proper interest rate or how to use it to reduce her damages to their present value. We held that the evidence was sufficient to submit the issue of lost earning capacity to the jury. Expert testimony on how to compute present value, and on the various assumptions involved in the computation, would have been admissible, but it was not necessary.

In this case, the trial court instructed the jury on the cadet’s life expectancy, and there was evidence of her total future medical expenses. Under Brokenshire, it was not necessary that there be evidence on methods of computing present value or on the appropriate interest rate to apply in doing so. Defendant’s other arguments on this point are directed to the trial court’s failure to instruct the jury adequately on the subject, but it does not assign error to any instruction that the court gave or failed to give. The trial court did not err in denying the motion for directed verdict on these damages.

Judgment modified to delete damages for past medical expenses; otherwise affirmed.

1 The Boy Scout leader was a volunteer and, therefore, not technically an employee. However, we treated the analysis in his case as being the same as that for a true employee. See Lourim, 147 Or App at 431 n 1.

2 As in Fearing, the distinction between this case and G.L. is that in G.L. the sole connection between the employment and the misconduct was that the employment brought the tortfeasor and the victim together and gave the tortfeasor the opportunity to engage in the tortious activity. See Fearing, 328 Or at 376-77. In contrast, the jury could find that Sundberg used his role as the supervisor of the Explorer program to make the misconduct possible and that the abuse continued as long as it did because of Sundberg’s role as the cadet’s superior. That puts this case clearly within the Fearing/Lourim rule and distinguishes it from G.L.

3 Although a plaintiff must normally submit a tort claim notice to a public body no later than 180 days after the injury, the statute provides an additional 90 days when the injured person is a minor. ORS 30.275(2).

4 The court did not, as defendant suggests, hold that that amount was the present value of plaintiffs claim; rather, it held that that amount was the maximum that the jury could award.