OTLA Trial Lawyer Spring 2021

17 Trial Lawyer • Spring 2021 Student A to continue to the point of damaging Student X’s implanted medical device. Conway and the statutory obligation to surrender one’s child to a school creates a special relationship between the parent and school. Arguably, parents may seek noneconomic damages without any physical injury based on their special relationship with the school. The Oregon Supreme Court recog- nizes a person may recover purely emotional distress damages without physical injury. Curtis v. MRI Imaging Servs. II , 148 Or App 607 (1997) aff ’d Curtis v. MRI Imaging Servs. II , 327 Or 9, 16, (1998). Specifically, “where the defendant’s conduct infringed on some legally protected interest apart from caus- ing the claimed distress, even when that conduct was only negligent.” Id. at 614. The Oregon Supreme Court affirmed this principal in Tomlinson v. Metro. Pe- diatrics, LLC , 362 Or 431, 452-454 (2018) [if the plaintiff establishes a neg- ligence claim based on physical injury or the invasion of some other legally pro- tected interest, then the pain for which recovery is allowed includes both emo- tional and physical]. Recovery for emotional distress damages is allowed when the plaintiff establishes a negligence claim based on physical injury or invasion of some other legally protected interest. Curtis , supra . The legally protected interest “re- fers to a sort of ‘duty’ that is distinct from Fazzolari -like foreseeability. The identi- fication of such a distinct source of duty is the sine qua non of liability for emo- tional distress damages unaccompanied by physical injury.” Curtis at 618. This “legally protected interest” may be found when a party has a legal duty designed to protect the plaintiff, which may be found in the law or in the common law. Philibert v. Kluser , 360 Or 698, 705, (2016). Purely emotional distress dam- ages may be recovered when the plaintiff can point to “statutes, constitutional provisions, regulations, local ordinances, and the historical and evolving common law.” Id. at 706. Safety to learn In the context of schools, such sources of law include statutes, local or- dinances ( i.e. , board policies) and the common law. Many school districts have adopted these policies. One such board policy reads (in part), “The plan is de- signed to assure every student a safe, healthy environment in which to learn.” Another board policy reads (in part), “All students shall be under assigned adult supervision at all times when they are in school, on school grounds, traveling under school auspices or engaging in school-sponsored activities.”These board policies should create legally protected interests. ORS 332.107. In the case of Student X and parents of Student X, the trial court agreed with much of the above analysis and denied the school district’s motion to dismiss their claims. The trial court recognized the special relationships of Student X and parents of Student X with the school district, however, it denied the parents’ non-economic damages claim. Another trial court rejected all my arguments in a case involving an injured kindergarten student and his mother. These cases are active and continue toward trial. The good news is the special relation- ship doctrine appears to be expanding. It allows us to hold school districts/ government accountable and improve the safety and overall school environment for Oregon’s students. Kevin Brague’s practice includes personal injury and specifically students injured at or by educational institutions including civil rights from kindergarten through graduate school. Brague contributes to OTLA Guardians at the Sustaining Mem- ber level. The Brague Law Firm is located at 4504 S. Corbett Ave., Ste. 200, Portland, OR 97239. He can be reached at kevin@ braguelawfirm.com or 503-922-2243.