OTLA Trial Lawyer Winter 2022

15 Trial Lawyer • Winter 2022 and, if so, what kind of agent? (2) If yes, did the agent commit the tortious actions within the course and scope of the agency relationship? An agent of the principal Many practitioners skip this crucial step, but it is often the biggest fight we have in our cases. Don’t assume that if the assailant was a paid employee, liability against the employer will stick. Complexity arises if the assailant is really an independent contractor, “nonemployee” agent or apparent agent. The label an employer assigns, be it “contractor,” “employee,” or other, is given little weight. The same is true of compensation — liability can attach for the torts of volunteers as well as paid employees. The crucial inquiry is: did the principal have the right to control the day-to-day employment conduct of the agent? This is a fact-intensive inquiry. See Kowaleski v. Kowaleski, 235 Or 454, 458 (1963) (articulating a multi-factor test). Defense counsel likes to focus on whether the employer actually exercised control to divert from the real issue — the employer’s right to control the agent’s conduct. In a case I litigated against the Assemblies of God Church for sexual abuse in its “Royal Rangers” program (think Boy Scouts in church), counsel for the national defendant repeatedly argued the national level did not control the conduct of the local-level volunteers. However, multiple judges found there were sufficient facts of the national defendant’s right to control the volunteers’ conduct — as seen in part in the volunteer manuals the national defendant published and required volunteers to use. They contained instructions on how to form relationships with boys, hold meetings and use camping trips to “win the souls” of boys — to defeat summary judgment. If you’re unsure what type of agent the assailant was, it is best to allege classifications in the alternative, then use discovery to sort it out. Also, an agent can be a dual agent for multiple defendants. If you are alleging multiple agency relationships, you need to prove agency for each defendant. We frequently litigate child sexual abuse cases against churches and sue the local church, the regional entity that oversees the local branches and the national entity that oversees all of the churches within that denomination. We then have to prove that each level had the right to control the day-to-day employment conduct of the assailant. Often, you can weaponize these multiple defendants against each other because they’ll want to have it both ways — the lower levels will want the protection (and insurance coverage) of the higher levels as their “agents,” but the higher levels will want to disclaim any responsibility for the lower levels. Tortious act within agency relationship The second step entails alleging and proving the sexual assault was within the empl oyee’s cour s e and s cope of employment. Oregon’s vicarious liability case law for sexual assault claims is some of the most robust and liberal in the country. Most states do not allow plaintiffs to claim vicarious liability for sexual assault. For many years, this was the case in Oregon, too. That changed in 1988 with the Oregon Supreme Court’s holding in Chesterman v. Barmon, et al., 305 Or 439. In Chesterman, an employee ingested a hallucinogenic to help him focus at work, which led to him sexually assaulting a woman on his way home fromwork. The court held it is “inappropriate to determine whether respondeat superior applied as of the time when the injury occurred.” Fearing v. Bucher, et al., 328 Or 326, 373 (1999) (citing Chesterman, 305 Or at 444). The court articulated a three-part test for these “time-lag” cases: 1. Whether the act leading to the assault occurred substantially within the time and space limits authorized by the See Vicarious Liability 16