OTLA Trial Lawyer Winter 2022

40 Trial Lawyer • Winter 2022 By Peter Janci OTLA Guardian Sadly, child sexual abuse in schools is a common occurrence. An estimated one in ten students will experience school employee sexual abuse or misconduct by the time they graduate from high school. Sexual abuse of students by school staff is not limited by geographic distinctions — I have handled cases involving urban, suburban and rural school districts in Oregon. Sexual abuse by staff is also not limited to underfunded and overcrowded public schools. I am handling cases for victims with claims against Portland’s prestigious Catlin Gabel School. The one unifying truth across these cases is they are challenging cases on behalf of a vulnerable population that is far too often declined by lawyers. Although most OTLA members may never represent a victim in pursuing claims for child sexual abuse, it is likely you will be approached for advice by a trusted family member, friend or neighbor who is a victim. All plaintiff attorneys can assist victims through general support, early advice or effective referrals. In anticipation of those conversations, it is critical to understand a few key aspects about these cases, including: (1) important differences between claims against public and private schools, (2) the scope of schools’ liability for abuse and (3) unique evidence issues that arise in school cases. Public vs. private In Oregon, the first question in analyzing a claim for sexual abuse against a school is whether the school is public or private. Unfortunately, Oregon law still provides opportunities for defense attorneys to attempt to leverage this distinction to insulate public schools from bearing full responsibility for the abuse of students. The two most significant potential implications of the publicprivate distinction are time limitations and damages caps. Limitations. Time limitations are a key consideration in all child sexual abuse cases. The insidious nature of the trauma of child sexual abuse — and resulting subconscious defense mechanisms — prevent victims from realizing their injuries for many years, often decades, after the sexual contact has ceased. The average age of disclosure of abuse is 52 years old. For these reasons, the national trend is toward liberalizing and eliminating statutes of limitation on child sexual abuse claims. Starting in 1989, Oregon was an early leader in this trend. Today, Oregon’s special statute of limitations for child abuse, ORS 12.117, allows victims to bring civil claims until the later of: (1) the victim’s 40th birthday, or (2) within five years of discovering the causal connection between the abuse and the victim’s injuries. This special statute of limitations applies to qualifying claims against private schools. However, application of the statute to claims against public entities (like public school districts) is more complicated. The Oregon Supreme Court held ORS 12.117 is effective to exempt child abuse claims against public entities from the statute of ultimate repose that applies to all claims for negligent injury to person or property. Yet, the battle over the application of ORS 12.117’s statute of limitations to public entities continues and victims’ claims against public entities may still be viewed as subject to the more draconian statute of limitations and notice provisions set forth under the Oregon Tort Claims Act (OTCA). Even so, there are important exceptions to the OTCA. Peter Janci Crash Course in School Sexual Abuse Claims