OTLA Trial Lawyer Winter 2022

41 Trial Lawyer • Winter 2022 First, the statute of limitations and notice provisions of the OTCA are subject to the common law discovery rule. A claim against a defendant school district may not accrue until the victim learns of the culpable conduct of that particular defendant (i.e. negligence by the district). Second, some claims available to victims are not subject to the OTCA’s requirements (including civil rights claims under 42 U.S.C. § 1983 and claims under Title IX). Damages. Civil cases seeking justice for child sexual abuse typically focus on noneconomic damages for the invisible but profound (and often permanent) psychological injury that victims suffer. In private school cases, compensatory damages are not capped and are limited only by the evidence. However, in common law claims cases against public schools, damages are capped under the OTCA. Despite the OTCA’s damages cap, there are opportunities to increase recoveries for public school abuse victims. First, a victim of repeated abuse should be entitled to multiples of the OTCA damages limit, with each incident of abuse qualifying as a separate “occurrence.” Second, constitutional and federal statutory claims are not subject to the limitations or damages cap of the OTCA. For example, sexual touching by school staff qualifies as a deprivation of a victim’s substantive due process rights under the 14th Amendment of the U.S. Constitution. In cases where a school has acted with “deliberate indifference,” victims can bring civil claims for these violations under 42 U.S.C. § 1983. A student may bring federal statutory claims for sexual harassment and sexual abuse, which can qualify as discrimination “on the basis of sex” under Title IX. (Title IX claims may also apply to private institutions if they receive federal funding.) In some instances, these claims also offer availability for punitive damages. Punitive damages are a powerful reform tool for entities engaged in long patterns of allowing child sexual abuse and are an important remedy to deter schools from future misconduct. They can create systemic change to better protect students from sexual abuse. Scope of liability In child sexual abuse cases, the most common causes of action against schools in Oregon are: (1) strict (vicarious) liability, and (2) common law negligence. Vicarious liability is discussed in another article in this edition (see “Alleging and Proving Vicarious Liability Claims” p. 18). Regarding negligence, there are a few unique issues in school abuse cases worth noting, including: the basis for schools’ obligations to protect students from abuse (special relationship and foreseeability) and the scope of that obligation (which can extend beyond a school’s campus and classroom hours). Anticipate and protect Schools act in loco parentis toward minor students in their care. Many jurisdictions, including Oregon, recognize this relationship as a “special relationship,” requiring a heightened duty of care from schools to safeguard students from abuse. In Fazzolari v. Portland School District, the court describes the duty owed by a district to its students as “a special duty arising from the relationship between educators and children entrusted to their care apart from any general responsibility not unreasonably to expose people to a foreseeable risk of harm” and the “scope of th[at] obligation does not exclude precautions against risks of crime or torts merely because a third person inflicts the injury.” It is also generally foreseeable to schools that adult staff pose a danger of grooming and sexually abusing students. Such foreseeable harms must be protected against. “[Schools] must take A dramatic graphic from Child USA demonstrates the insidious nature of the trauma of child sexual abuse prevent victims from realizing their injuries for many years, often decades, after the sexual contact has ceased. See School Abuse Claims 42