R. S. R. v. Dept. of Human Services ( 2022 )

149
Argued and submitted July 2, 2020, affirmed April 20, 2022
R. S. R.,
a Minor Child, by and through
Livia Goetz, guardian ad litem of R. S. R.,
Plaintiff,
and
Brian RANDALL,
Plaintiff-Appellant,
v.
STATE OF OREGON,
by and through its
Department of Human Services,
Defendant-Respondent,
and
KAISER FOUNDATION HEALTH PLAN
OF THE NORTHWEST,
dba Kaiser Permanente; et al.,
Defendants.
Multnomah County Circuit Court
17CV55079; A170268
510 P3d 209
Plaintiff filed suit alleging, among other things, that defendant Department
of Human Services (DHS), had subjected him to negligent infliction of emotional
distress (NIED) through DHS’s handling of juvenile dependency proceedings
involving plaintiff’s son. The trial court dismissed that claim, concluding that
the complaint failed to state a claim for NIED, because it did not sufficiently
allege a special relationship between plaintiff and DHS or another legally pro-
tected interest sufficient to allow recovery for plaintiff’s purely psychic injuries.
Plaintiff appeals. In its response, DHS argues that the trial court did not err and
that, in any event, the Court of Appeals lacks jurisdiction to hear the appeal,
because plaintiff’s notice of appeal failed to designate the judgment being chal-
lenged, as required by ORS 19.270. Held: Because plaintiff’s notice of appeal gave
DHS reasonable notice that its interest in the challenged judgment was at issue
on appeal, the defect was not jurisdictionally fatal. As to the merits, however,
plaintiff failed to establish that the trial court had erred in dismissing his claim.
Affirmed.
Stephen K. Bushong, Judge.
Richard D. Cohen argued the cause and filed the brief for
appellant.
150 R. S. R. v. Dept. of Human Services
Inge D. Wells, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Mooney, Presiding Judge, and Shorr, Judge, and
DeHoog, Judge pro tempore.*
MOONEY, P. J.
Affirmed.
______________
* Shorr, J., vice DeVore, S. J.
Cite as 319 Or App 149 (2022) 151
MOONEY, P. J.
Following the dismissal of juvenile dependency
proceedings involving his son, R, plaintiff and R (through
a guardian ad litem) filed suit against the Department of
Human Services (DHS), Kaiser Permanente, and Skiver, a
therapist and social worker who had diagnosed R as the vic-
tim of sexual abuse. As relevant on appeal, the third claim
of the amended complaint alleged that DHS had subjected
plaintiff to negligent infliction of emotional distress and
sought recovery of counseling-related expenses and non-
economic damages related to plaintiff’s alleged emotional
or psychological harms. On appeal, plaintiff challenges the
trial court’s dismissal of that claim pursuant to defendant’s
ORCP 21 A(8)1 motion to dismiss, which the court granted
based on its conclusion that plaintiff had not alleged a spe-
cial relationship with DHS or another legally protected
interest sufficient to render plaintiff’s purely psychological
injuries recoverable in negligence.2
As a preliminary matter, DHS argues that we lack
jurisdiction to hear plaintiff’s appeal. According to DHS,
plaintiff’s notice of appeal was fatally defective because it
failed to designate the proper judgment as required by ORS
19.270 (providing for appellate jurisdiction “when the notice
of appeal has been served and filed as provided in,” among
other provisions, ORS 19.250 (setting out required contents
of the notice of appeal)). In DHS’s view, because the notice of
appeal expressly designated and attached a March 4, 2019,
supplemental judgment awarding DHS its costs—not the
limited judgment entered on February 19 that disposed of
plaintiff’s negligent infliction of emotional distress claim
against DHS—our jurisdiction is limited to the specific
issues addressed in the supplemental judgment. See ORS
19.270(7).3 Although we recognize that plaintiff’s notice of
appeal failed to expressly designate the proper judgment,
1
ORCP 21 A(8) was renumbered as ORCP 21 A(1)(h), effective January 1,
2022. We cite the former version in this opinion. It allows motions to dismiss to
be brought for “failure to state ultimate facts sufficient to constitute a claim.”
2
Only plaintiff and DHS are parties to this appeal.
3
ORS 19.270(7) states that, “[i]f a limited or supplemental judgment is
appealed, the jurisdiction of the appellate court is limited to the matters decided
by the limited or supplemental judgment.”
152 R. S. R. v. Dept. of Human Services
we disagree, for the reasons that follow, that plaintiff’s error
deprives us of jurisdiction to consider the merits of plain-
tiff’s appeal. As to those merits, however, we conclude that
plaintiff did not sufficiently develop the issue whether, as
the parent of a child subject to the dependency jurisdiction
of the juvenile court and placed in the legal custody of DHS,
his relationship with DHS is sufficiently special or he has
some other legally protected interest sufficient to permit
him to seek damages from DHS for “psychic injuries” alone.
Accordingly, we affirm.
JURISDICTIONAL FACTS
The facts relevant to DHS’s jurisdictional argu-
ment are procedural and undisputed. As noted, plaintiff
and his son, R, filed an action asserting various claims
of relief against DHS, Kaiser Permanente, and Kaiser’s
employee, Skiver. On August 17, 2018, following a hearing
on DHS’s motion to dismiss under former ORCP 21 A(8) the
third claim of the amended complaint—plaintiff’s allegation
of negligent infliction of emotional distress against DHS—
the trial court entered an order dismissing that claim with
prejudice.4 The court subsequently entered a limited judg-
ment on February 19, 2019, that, among other things, dis-
posed of plaintiff’s claim against DHS and awarded costs to
Skiver and Kaiser Permanente. On March 4, 2019, the court
entered a supplemental limited judgment awarding DHS its
costs. Plaintiff served and filed a notice of appeal on March 5,
2019, that designated only the supplemental limited judg-
ment awarding costs as the judgment on appeal; plaintiff
attached a copy of the supplemental limited judgment to his
notice of appeal.
As permitted by ORS 19.250(1)(f)—though not
required where, as here, an appellant designates the trial
court record in its entirety as the record on appeal—plain-
tiff’s notice of appeal included the following statement of
points on which he intended to rely:
4
The amended complaint was the operative complaint at the time of the rul-
ing at issue on appeal, and only the third claim of that complaint was on plain-
tiff’s behalf. For ease of reference, we hereafter refer to the amended complaint
simply as “the complaint,” and the third claim of the complaint, alleging negli-
gent infliction of emotional distress by DHS, as “plaintiff’s claim.”
Cite as 319 Or App 149 (2022) 153
“The court ruled that DHS did not owe a special duty or fidu-
ciary obligation to the Appellant, and therefore there could
be no recovery by Appellant. Appellant is the father of the
child improperly taken into care and improperly harmed
by DHS and Appellant seeks damages for psychological
or emotional damage done to Appellant-Father. Appellant
believes there was a fiduciary relationship owed by DHS
to him per Oregon Administrative rule 413-010-0000 (14)
which provides in a situation in which DHS takes custody
of the child that a parent is a client of the Department of
Human Services - Child Welfare Services.”
The notice of appeal also included the following statement:
“This Appeal challenges the summary dismissal of Appel-
lant’s action against Respondent. Appellant designates the
record in its entirety up to and including all documents
and pleadings submitted in the matter and the arguments
presented to the court on July 18, 2018[,] as well as the
Supplemental Limited Judgment and Money Award signed
by the court on March 1, 2019.”
Plaintiff’s notice identified only DHS as the respondent on
appeal.
APPELLATE COURT JURISDICTION
Before turning to DHS’s jurisdictional argument,
we briefly discuss the provisions governing our jurisdiction.
First, ORS 19.270(1) provides, in part, that “[t]he Supreme
Court or the Court of Appeals has jurisdiction of the cause
when the notice of appeal has been served and filed as pro-
vided in ORS 19.240, 19.250 and 19.255.” In turn, ORS
19.270(2) states that certain “requirements of ORS 19.240,
19.250 and 19.255 are jurisdictional and may not be waived
or extended,” and specifically identifies timely filing with
the Court of Appeals and service on all adverse parties as
essential to our jurisdiction. See ORS 19.270(2)(a) (requiring
service “as provided in ORS 19.240 (2)(a), within the time
limits prescribed by ORS 19.255”); ORS 19.270(2)(b) (same
as to filing notice with Court of Appeals).
Although ORS 19.270(2) specifically identifies only
timely service and filing of the notice of appeal as jurisdic-
tional requirements, we have explained that other require-
ments are jurisdictional as well; that is, ORS 19.270(2) “is
154 R. S. R. v. Dept. of Human Services
not an all-inclusive list of appellate court jurisdictional
requirements.” Jeffries v. Mills, 165 Or App 103, 111, 995
P2d 1180 (2000). Another requirement recognized under
our case law is “a description of the trial court action being
appealed * * * because of its importance in providing essen-
tial notice of the appeal.” Id. at 112. Relatedly, although
“there is no jurisdictional requirement that a notice of appeal
attach the judgment” or include the correct date of entry of
the judgment, “there must be some intelligible reference in
the notice of appeal to the judgment being appealed.” Grant
County Federal Credit Union v. Hatch, 98 Or App 1, 6 n 4,
777 P2d 1388, rev den, 308 Or 592 (1989). Finally, returning
to the statute, ORS 19.270(7) provides that, “[i]f a limited or
supplemental judgment is appealed, the jurisdiction of the
appellate court is limited to the matters decided by the lim-
ited or supplemental judgment.”
SUFFICIENCY OF PLAINTIFF’S
NOTICE OF APPEAL
As noted, DHS contends that we lack jurisdiction to
consider plaintiff’s assignment of error because his notice of
appeal failed to designate the judgment being challenged,
namely, the February 19, 2019, limited judgment dispos-
ing of his negligent infliction of emotional distress claim.
Citing ORS 19.270(7) and cases construing it, DHS argues
that our jurisdiction is limited to matters decided by the
March 4, 2019, supplemental limited judgment awarding
DHS its costs, the only judgment plaintiff attached to his
notice of appeal. Plaintiff has offered no reply to DHS’s
jurisdictional argument. Nonetheless, we conclude that
plaintiff’s inartful designation of the matter on appeal is
not jurisdictionally fatal.
In reaching that conclusion, we recognize that we
and the Supreme Court have, at times, applied the statu-
tory requirements for appellate jurisdiction rather strictly.
For example, in Stahl v. Krasowski, 281 Or 33, 35, 573 P2d
309 (1978), the Supreme Court construed former ORS 19.033
(1977), renumbered as ORS 19.270 (1997), and held that
the appellant’s notice of appeal was jurisdictionally defec-
tive when it stated that the appeal was being taken from
an order denying a certain motion rather than the “actual
Cite as 319 Or App 149 (2022) 155
judgment order from which the appeal should have been
taken[.]” Reasoning that an order of the sort being chal-
lenged on appeal was not an appealable order, and recogniz-
ing that former ORS 19.033(2) (1977), renumbered as ORS
19.270 (1997), stated that “[t]he serving and filing of the
notice of appeal as provided in ORS 19.023 to 19.029 is juris-
dictional,” the court held that the appellant’s failure to sat-
isfy the requirements of former ORS 19.029 (1977), renum-
bered as ORS 19.250 (1997) (stating what notice of appeal
must contain), deprived the appellate courts of jurisdiction.
Id. at 38 (internal quotation marks omitted). Even though
the court acknowledged that not all of the content require-
ments of former ORS 19.029 (1977) were jurisdictional, “a
description of what action of the trial court is appealed from”
was jurisdictionally required.5 Id. at 39.
Similarly, in Zacker v. North Tillamook County
Hospital Dist., 312 Or 330, 332, 822 P2d 1143 (1991), the
Supreme Court held that the Court of Appeals did not have
jurisdiction to hear an appeal when the plaintiff’s notice
of appeal identified only an order granting the defendant’s
motion to dismiss, not the judgment of dismissal that the
trial court had entered the same day. In reaching that con-
clusion, the Supreme Court rejected the argument that, in
making certain changes to former ORS 19.033(2) (1997) in
the intervening years, the state legislature had implicitly
overruled the court’s holding in Stahl that certain of the
content requirements found in former ORS 19.029 (1977)
were jurisdictional. Zacker, 312 Or at 334.
Finally, in State v. Fowler, 350 Or 133, 137, 252
P3d 302 (2011), under circumstances superficially simi-
lar to those present in this case, the Supreme Court held
that we had erred in deciding the merits of the defendant’s
challenge to the imposition of witness-transportation costs
because the original notice of appeal had identified the gen-
eral judgment as the judgment on appeal rather than the
5
At the time of the court’s decision in Stahl, former ORS 19.029(1)(d)
(1977) required, among other things, that the notice of appeal contain a notice
“that an appeal is taken from the judgment or some specified part thereof[.]”
The corresponding text now found in ORS 19.250(1)(d) similarly requires
notice “that an appeal is taken from the judgment or some specified part of the
judgment.”
156 R. S. R. v. Dept. of Human Services
supplemental judgment that actually imposed the chal-
lenged costs. In so doing, the court specifically stated that,
as a jurisdictional requirement,
“the notice of appeal must specify the judgment from which
the appeal is taken. See Zacker v. North Tillamook County
Hospital Dist., 312 Or 330, 333, 822 P2d 1143 (1991), (‘ “If
anything within the notice of appeal is jurisdictional, * * *
it must be a description of what action of the trial court is
appealed from,” ’ quoting Stahl v. Krasowski, 281 Or 33, 35,
573 P2d 309 (1978)).”
350 Or at 137 (footnote omitted).
Our own case law has at times been equally strin-
gent in applying ORS 19.270. For example, in White v. Vogt,
258 Or App 130, 308 P3d 356 (2013), a case that DHS relies
on in this appeal, we held that we lacked jurisdiction to
review the denial of the plaintiffs’ motion for summary judg-
ment, which the plaintiffs sought to challenge on appeal.
We held that, because the plaintiffs’ notice of appeal had
been from a limited judgment granting the defendants’
dispositive motions and a supplemental judgment award-
ing fees and costs, our jurisdiction on appeal was “limited
to those matters[.]” Id. at 139-40; see also ORS 19.270(7)
(when limited or supplemental judgment is appealed, appel-
late court’s jurisdiction is limited to issues decided by that
judgment).
Notwithstanding those seemingly rigid applications
of ORS 19.270 and its statutory predecessors, we conclude
that plaintiff’s notice of appeal in this case was sufficient to
invoke our jurisdiction to hear his appeal. Unlike the appel-
lants in Stahl and Zacker, plaintiff did not designate an
order as the trial court action that he sought to appeal. And
although, as in Fowler, plaintiff here expressly identified a
judgment that was not the judgment that he sought to chal-
lenge, we nonetheless conclude that Fowler is distinguish-
able. In that case, the trial court sentenced the defendant on
October 8, 2008, and entered a general judgment the same
day. Fowler, 350 Or at 135. The trial court awarded the state
its witness-transportation costs at a later hearing held on
October 22 and entered a supplemental judgment reflect-
ing that ruling two days later, on October 24. Id. at 135-36.
Cite as 319 Or App 149 (2022) 157
When the defendant filed a notice of appeal on November 4,
he identified the October 8 judgment but not the October 24
judgment. Id. at 136.
In holding that the defendant’s notice had not
invoked our jurisdiction to address the trial court’s award
of costs in the supplemental judgment, the Supreme Court
reasoned that “[n]othing in defendant’s November 4, 2008,
notice of appeal indicated that defendant intended to appeal”
the October 24 judgment. Id. at 138. “Instead, defendant
waited until December 16, 2008, to express that intention.”6
Id. Here, in contrast, plaintiff’s notice of appeal stated in
some detail that the trial court ruling that he intended to
challenge on appeal was its “rul[ing] that DHS did not owe
a special duty or fiduciary obligation to the Appellant, and
therefore there could be no recovery by Appellant.” The notice
further clarified the objective of plaintiff’s appeal, expressly
stating, “[t]his Appeal challenges the summary judgment
dismissal of Appellant’s action against Respondent.” That is,
unlike the notice of appeal at issue in Fowler, here we can-
not say that “nothing * * * indicated that [plaintiff] intended
to appeal” the limited judgment that disposed of the com-
plaint’s third claim for relief. See id. The only “action of the
trial court” explicitly identified in plaintiff’s notice of appeal
was the court’s “summary judgment dismissal” of that
claim—“Appellant’s action against Respondent [DHS]”—
which the limited judgment entered on February 19, 2019,
encompassed.7
Given those circumstances, plaintiff’s notice of
appeal did not suffer any infirmity that, under any of the
foregoing cases, would render it jurisdictionally defective.
6
The defendant in Fowler filed an amended notice of appeal on December 16,
2008, specifying that she sought to appeal the October 24, 2008, judgment.
However, by then, the defendant’s notice of appeal was nearly a month past the
filing deadline and, the court concluded, not separately effective to confer juris-
diction. 350 Or at 138.
7
Notably, in Fowler, one of the issues that the defendant intended to raise
on appeal was the trial court’s acceptance of two nonunanimous jury verdicts, a
ruling that was encompassed within the general judgment that, unlike the sup-
plemental judgment awarding costs, the defendant had expressly designated in
her notice of appeal. 350 Or at 136. As a result, that notice would have given the
state no indication that defendant also intended to challenge a different ruling
encompassed in a different judgment.
158 R. S. R. v. Dept. of Human Services
In discussing the requirements of ORS 19.270 (appellate
court jurisdiction) and ORS 19.250 (what notice of appeal
must contain), we have explained:
“The touchstones of appellate jurisdiction are mini-
mally adequate notice and timeliness in the filing of the
notice of appeal. Consequently, we have declined to hold
that content defects in a notice of appeal are jurisdictional
when the nature of the defect is such that the party received
adequate notice. For the notice to be ‘minimally adequate’
it must contain enough information reasonably to apprise
the adverse parties that an appeal is being taken from an
appealable judg[ ]ment. In other words, if the parties with
an interest in the judgment receive reasonable notice that
their rights in a particular judgment might be affected, a
content defect will not be jurisdictionally fatal.”
Jeffries, 165 Or App at 112. Because, as we have noted, there
is no jurisdictional requirement that an appellant attach a
copy of the challenged judgment or identify that judgment
by the correct date, Grant County Federal Credit Union,
98 Or App at 6 n 4, we look to whether plaintiff’s notice of
appeal provided DHS “reasonable notice that their rights
in a particular judgment might be affected,” Jeffries, 165
Or App at 112, namely, the judgment disposing of plaintiff’s
negligent infliction of emotional distress claim.
Our decision in Grant County Federal Credit Union
informs us as to what notice is reasonable under these cir-
cumstances. There we said that, “when * * * there are multi-
ple judgments, there must be some intelligible reference in
the notice of appeal to the judgment being appealed.” 98 Or
App at 6 n 4. In that case, the only reference to the proper
judgment in the notice of appeal was its identification of the
adverse party. Id. Because the named adverse party had
been party to only one judgment issued by the trial court,
it was reasonably possible to determine that the appeal
was taken from that judgment; accordingly, the notice was
“jurisdictionally adequate.” Id.Here, the notice of appeal’s statement of points,
together with its reference to “the summary judgment dis-
missal of Appellant’s action against Respondent,” gave DHS
“jurisdictionally adequate” notice that plaintiff sought to
Cite as 319 Or App 149 (2022) 159
appeal the limited judgment entered on February 19, 2019,
as only that judgment dismissed his claim against DHS. In
other words, the notice of appeal readily satisfied the “intel-
ligible reference” standard that we previously have articu-
lated, because, by referring to (1) DHS, (2) the dismissal of
plaintiff’s claim against DHS, and (3) plaintiff’s intent to
challenge that ruling, the notice necessarily gave DHS “rea-
sonable notice that [its] rights in [that] judgment might be
affected,” Jeffries, 165 Or App at 112; see also Smith v. Koors,
149 Or App 198, 203, 942 P2d 807 (1997) (concluding that we
had appellate jurisdiction even though notice of appeal des-
ignated incorrect judgment, stated wrong judgment date,
and attached a nonfinal judgment, because notice named
the proper adverse party and otherwise indicated that the
appellant sought to appeal the final judgment). Accordingly,
we conclude that we have jurisdiction to consider the merits
of plaintiff’s claim on appeal.
SUFFICIENCY OF PLAINTIFF’S CLAIM
Turning to the merits, plaintiff contends that the
trial court erred in dismissing, under former ORCP 21 A(8),
his claim against DHS for negligent infliction of emotional
distress. The court concluded that the complaint failed to
state such a claim because plaintiff did not allege a special
relationship with DHS or that DHS had infringed upon a
legally protected interest of plaintiff’s sufficient to render
his purely emotional or psychological injuries recoverable in
negligence. As we explain below, we conclude that plaintiff
has not established that the trial court erred in dismissing
his claim. We therefore affirm.
We review the dismissal of a claim under for-
mer ORCP 21 A(8) for legal error, “taking as true all well-
pleaded factual allegations, and giving plaintiff the benefit
of all reasonable inferences that can be drawn from those
facts.” Nationwide Ins. Co. of America v. TriMet, 264 Or App
714, 715, 333 P3d 1174 (2014) (internal quotation marks
omitted). Here, however, because we ultimately find it
unnecessary to test the factual allegations of the complaint
against the applicable legal standards, it is likewise unnec-
essary to set out those allegations in any detail. It suffices
to summarize the complaint as alleging that, in removing
160 R. S. R. v. Dept. of Human Services
plaintiff’s son, R, from his care and throughout the ensu-
ing juvenile court proceedings, DHS’s purported acts and
omissions negligently caused plaintiff severe emotional dis-
tress. Plaintiff further alleged damages in the estimated
amount of $20,000 for the cost of “mental health services
and related counseling,” as well as noneconomic damages in
the amount of $750,000 for, among other things, “emotional
injury, mental anguish, trauma, interference with his abil-
ity to form close relationships, anxiety and sleep deprivation,
mistrust in the attentions and intentions of others[,] and
depression.”
Under Oregon negligence law, one typically may
recover damages for injuries that are the foreseeable result
of unreasonable conduct by another. Fazzolari v. Portland
School Dist. No. 1J, 303 Or 1, 734 P2d 1326 (1987) (“[T]he
issue of liability for harm actually resulting from [a] defen-
dant’s conduct [typically] depends on whether that conduct
unreasonably created a foreseeable risk to a protected
interest of the kind of harm that befell the plaintiff.”).
Where, however, a plaintiff sues based solely on negligently
caused emotional or psychological harms—often referred
to as “purely psychic” injuries—the mere foreseeability of
the plaintiff’s injuries is insufficient to establish liability;
rather, “there must also be another ‘legal source’ of liabil-
ity for the plaintiff to recover emotional distress damages.”
Philibert v. Kluser, 360 Or 698, 703, 385 P3d 1038 (2016)
(quoting Norwest v. Presbyterian Intercommunity Hosp., 293
Or 543, 569, 652 P2d 318 (1982)).
Here, plaintiff does not dispute that the damages
he seeks in his negligence claim against DHS are for purely
psychic injuries. Nor does he challenge the trial court’s rul-
ing that, to recover those damages, he was required to estab-
lish, as a legal source of liability, that he and DHS were in
a “special relationship” to each other. See id.; see also Lowe
v. Philip Morris USA, Inc., 207 Or App 532, 551, 142 P3d
1079 (2006) (noting, as one exception to general rule prohib-
iting recovery for negligently inflicted emotional injuries in
absence of physical injury, cases in which the plaintiff estab-
lishes “some duty over and above the duty to avoid foresee-
able risk of harm, for example, a duty arising from a special
Cite as 319 Or App 149 (2022) 161
relationship”). He contends, however, that the allegations of
the complaint satisfy that requirement.
In arguing that his relationship with DHS was
sufficient to merit protection against negligently inflicted
emotional harm, plaintiff points to various child-protection
statutes and related administrative rules that, in his view,
demonstrate (1) that parents are clients of DHS, see OAR
413-010-0000(14) (defining, for purposes of OAR chapter
413, division 10, “client” as “any individual receiving ser-
vices from [DHS], including [a] parent”); (2) that DHS must
work towards reestablishment of the parent-child relation-
ship, see OAR 413-010-0180(g) (stating right to reunification
services for those in legal custody of DHS); and (3) that he
holds a liberty interest in his relationship with his child,
see ORS 419B.090(4) (“It is the policy of the State of Oregon
to guard the liberty interest of parents protected by the
Fourteenth Amendment to the United States Constitution
* * * established by the United States Supreme Court[.]”);
see also Troxel v. Granville, 530 US 57, 120 S Ct 2054, 147
L Ed 2d 49 (2000) (plurality opinion) (recognizing that par-
ents have a due-process right to makes decisions regarding
the care and upbringing of their children).
Beyond citing those provisions, however, plaintiff
does little to demonstrate that he established the sort of
special relationship between DHS and parents involved
in dependency proceedings that plaintiff acknowledges he
must show to prevail on appeal. Other than citing Nearing
v. Weaver, 295 Or 702, 670 P2d 137 (1983), a case that plain-
tiff simply describes as “somewhat analogous to [this] case,”
plaintiff neither engages the extensive case law addressing
the issue central to his appeal, nor explains how the various
statutes and administrative rules set out above are the sorts
of laws that the case law has recognized as giving rise to
liability for negligently caused emotional distress.
It is insufficient for plaintiff to merely identify
those authorities and task us with determining how, under
controlling case law, they apply to his case. See Sternberg
v. Lechman-Su, 299 Or App 450, 457, 450 P3d 37 (2019)
(where plaintiff’s constitutional argument likely implicated
complex issues of state and federal constitutional law, her
162 R. S. R. v. Dept. of Human Services
“undeveloped argument” on that point did “not present a
basis for reversal”). And whatever further argument plain-
tiff may have in support of imposing liability here, we will
not make it for him. See Beall Transport Equipment Co. v.
Southern Pacific Trans., 186 Or App 696, 700 n 2, 64 P3d
1193, adh’d to as clarified on recons, 187 Or App 472, 68 P3d
259 (2003) (“[I]t is not this court’s function to speculate as to
what a party’s argument might be” or “to make or develop a
party’s argument when that party has not endeavored to do
so itself.”); see also Smith v. Dep’t of Corrections, 314 Or App 1,
3-4, 496 P3d 1073 (2021) (citing Beall Transport Equipment
Co. and stating, “[i]n sum, because plaintiff’s arguments fail
to grapple with the statutory provisions governing waiver
of fees for adults in custody who bring civil actions against
public bodies, his arguments are insufficiently developed for
us to address them”). Accordingly, we affirm the trial court’s
dismissal of plaintiff’s claim under former ORCP 21 A(8).
Affirmed.