OTLA Trial Lawyer Winter 2022

14 Trial Lawyer • Winter 2022 By Ashley Vaughn OTLA Guardian With all of the high-profile sex abuse scandals in the news, such as against the Catholic Church or Boy Scouts, a person could get the impression every sex abuse lawsuit involves widespread institutional failures at the highest level. Or at least some sort of negligence that resulted in the abuse. Those of us who practice in this area know this is not always the case and rely on a powerful tool to assist our clients when negligence isn’t provable: vicarious liability claims. Vicarious liability, also known as respondeat superior, is a form of strict liability against an employer — an individual or a corporation — for an employee’s tortious conduct.1 With a vicarious liability claim, a victim of sexual assault can sue the assailant’s employer, instead of or in addition to the assailant, potentially reaching deeper pockets or insurance coverage. Oregon is one of a handful of states that allows a plaintiff to hold an employer liable for the sexual assault by its employee, but doing so is not automatic. Each case requires a fact-specific inquiry to determine whether vicarious liability is appropriate. Vicarious liability v. direct liability An employer can be vicariously liable even if the employer had no prior knowledge that the employee was dangerous. “A corporation . . . ‘can only act through its officers, agents or employees.’” Doe v. Or. Conference of Seventh-Day Adventists, 199 Or App 319, 328 (2005). Vicarious liability can be assessed against an employer for an employee’s torts with no fault on the part of the employer, whereas direct liability against an employer results from the employer’s own wrongdoing, such as negligent hiring or failure to supervise. Why a vicarious liability claim? Many times, there won’t be any evidence an employer knew the employee was a risk — that’s why vicarious liability claims can be a powerful tool, even with limited or nonexistent “notice” evidence. Asserting a vicarious liability claim does not preclude the plaintiff from asserting direct liability claims, if you have evidence of employer misconduct. Also, the reality is that many perpetrators of sexual assault — or individual tortfeasors in general — do not have sufficient assets to compensate a victim for the significant damages that can result from such an assault. And most of the time the perpetrator’s insurance, if existent, won’t cover the assault. A vicarious liability claim against the employer potentially makes more assets and insurance available to cover a judgment. Also, while perhaps not as compelling as with a negligence claim, vicarious liability claims against employers can promote important policy changes. See, e.g., G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or 54, 57 (1988) (“[A]n employer who receives the social and economic benefit of employing others must also be responsible for the fact of employees who are only acting in this fashion because of their employment.”). Even if an employer insists it “did nothing wrong,” a lawsuit can still spur it to reduce risks. Basic framework The basic framework for determining whether vicarious liability for sexual assault exists consists of two parts: (1) Was the assailant an agent of the principal Ashley Vaughn Alleging and Proving Vicarious Liability Claims in Sexual Assault Cases