OTLA Trial Lawyer Spring 2021

16 Trial Lawyer • Spring 2021 invitees (compulsory by law via ORS 339.010 and 339.020), which requires a school to make its premises safe and ex- ercise reasonable care to eliminate the danger or warn the students/parents of the danger. In student-on-student assault cases, the premises liability claim often sup- ports the negligence claim. It has the added benefit of shifting the burden of notice from the plaintiff back to the school. See, Ragnone v. Portland School Dist. No. 1J , 291 Or 617, 621 n 3, (1981) [business operator’s obligation to make its premises reasonably safe for its invitees includes taking into account the use to which the premises are put]. Schools are very aware of the danger some of its students pose. From my experience in representing children in special educa- tion and children hurt by others at school, it is rare an assailant does not have antecedent behaviors. A school will often defend a case against it on the premise it did not have notice that any particular child at any particular moment would engage in any particular behavior. This argument could be rebutted through a public records request to the local police or sheriff ’s office for the number of calls, citations and arrests at your client’s school. These records will often show that throughout the school year similar types of bad be- havior were addressed at school. This evidence does not require a release or motion to obtain an exception or relief from the privacy laws protecting student records. This also helps provide evidence the school might not have exercised reasonable care to eliminate the danger or warn your client of the danger. I have yet to find evidence of a school sending out a notice to its families warning them there were instances of sexual harass- ment/assault on campus this year or any number of physical assaults. Admittedly, these may not be the strongest of argu- ments, but this evidence may be the turning point in mediation, or the evi- dence that tips the judge or jury in your client’s favor. Supervise and protect A special relationship exists between a parent and a school based on a school’s undertaking of a duty to supervise and protect. Historically, common law recognizes a parent’s entitlement to maintain an action for injury to the child. This right is not based on familial relations, but on the technical relation of master and ser- vant. Schleiger v. Northern Terminal Co. , 43 Or 4, 10 (1903). Common law held the damages recoverable were measured by the pecuniary loss suffered by the parent (master) resulting from the injury to the child (servant). In common law, it was incompatible with the minor’s condition that his earnings should inure to his personal benefit while he is in the service of his parent — the minor’s earn- ings belong to the parent. Id. at 11. There may be a special relationship between a parent and school because the education of a child inures to the economic benefit of the parents. See e.g. ORS 109.010 “Parents are bound to maintain their children who are poor and unable to work to maintain themselves; and chil- dren are bound to maintain their parents in like circumstances.” Nevertheless, the recovery of damages may be limited to economic damages. See ORS 30.010 and Beerbower v. State , 85 Or App 330, (1987). Tomlinson v. Metro. Pediatrics, LLC , 362 Or 431 (2018) may be the start to opening the door for a parent’s recov- ery for non-economic damages. To get to damages, a special relationship be- tween the school and the parent must be found. The analysis for finding special rela- tionships in Oregon is established in Conway v. Pac. Univ. , 324 Or 231, 240- 41, (1996). It is the degree of control over the subject matter of the relationship. The “party who is owed the duty is placed in a position of reliance upon the party who owes the duty; that is, because the former has given responsibility and con- trol over the situation at issue to the latter, the former has a right to rely upon the latter to achieve a desired outcome or resolution.” Conway at 240. A parent of a student is required to send their child to school. ORS 339.010 and 339.020. A public school district shall admit free of charge all persons between the ages of 5 and 19 who reside within the school district boundaries. ORS 339.115. Public school districts are bodies corporate and have control of the district schools and are responsible for educating children residing in the dis- trict. ORS 332.072. A school exercises complete indepen- dent judgment over a child during the school day. A school district dictates when school begins and ends, what in- structional material is taught, when it is taught, how it is taught, when breaks are taken, when children can leave, when they can talk, when they are to be silent, when they may be active, when they must sit still, when they must continue work at home, when they are disciplined, how they are disciplined, when a child can eat and when a child can use the bathroom. The defendant exercises complete and total control over the children in its custody and no individual parent can dictate change to a school’s decisions and processes. A parent of a public school child/ student is placed in a position of wholly relying upon the school for the control, care, wellbeing and education of the child. Parents are legally mandated to send their child to school. Parents enjoy the correlating right to rely upon the school for their child’s education and safety through supervision of all school activities. Ragnone , supra . Parents of Student X complained about the choking incidents and sought assistance from school personnel to keep further choking incidents from occur- ring. The school failed to reasonably act, which allowed the choking behavior by Education Continued from p 15