SALEM, Ore. (Legal Newsline) - A victim of child abuse can sue the police for failing to protect him from his stepfather but not for violating specific duties under Oregon law, the state’s highest court ruled in an advisory opinion for a federal judge.
The child identified only as E.J.T., sued the Jefferson County police department and two municipal officials after suffering permanent brain damage at the age of two from a beating by his mother’s live-in boyfriend. The plaintiff accused police of failing to properly investigate a prior suspicious episode or notify the Oregon Department of Human Services, in part because of confusion over whether Jefferson County or police at an Indian reservation where the boy’s father lived had jurisdiction.
The federal judge hearing the case sought the opinion of the Oregon Supreme Court on two questions of state law: Whether plaintiffs can sue a public body under Oregon’s Abuse of a Vulnerable Person law, and whether there is a private right of action over official violations of state abuse-reporting laws. The case also drew the attention of the Trial Lawyers Assoc.
The Oregon Supreme Court, in a Sept. 22 decision, answered yes to the first and no to the second. Since E.J.T. sued under the second theory, his lawyers may have to retool their complaint to survive in federal court.
Oregon’s Vulnerable Person Act allows a “vulnerable person” who suffers “injury, damage or death by reason of physical abuse or financial abuse” to sue the abuser as well as anyone “who has permitted another person to engage in physical or financial abuse.” Jefferson County argued the law wasn’t applicable in this case because the Oregon Tort Claims Act (OTCA) says it is the sole vehicle for suing public employees for acting within the scope of their official duties.
The Supreme Court rejected that analysis, saying a violation of the VPA is itself a “tort” that plaintiffs can sue over under OCTA. On the second question, however, the high court said there was no evidence Oregon legislators had intended to create a private right of action when they passed a law detailing how public authorities must report and investigate child abuse.
In 1999, the legislature passed a bill that would have amended the law to state it doesn’t create a private right of action, but then-Gov. John Kitzhaber vetoed it. The fact the legislature didn’t attempt to revise the law again doesn’t mean it intended the opposite, however, the Supreme Court said.
“We cannot assume that the failure of subsequent legislatures to pass a new version of the vetoed bill indicates an endorsement of the position expressed by the governor’s veto, or of the trial court decisions that prompted the 1999 Legislative Assembly to act,” the court said.
The court said the plaintiff is free to try and plead a common-law claim instead. But it declined his lawyers’ invitation to create a judge-made private right of action, saying “what plaintiff now requests goes significantly beyond the scope of the certified question, and we decline to answer more than the question that the district court has certified to us.”