WALTERS, J.
At issue in this civil action is a trial court's order dismissing as untimely plaintiffs' claims against a public school district. Plaintiffs alleged that when they were in the fifth grade, a teacher who worked for the district sexually abused them, but that they did not know that their teacher's touching was abusive when it occurred. For the reasons that follow, we conclude that the trial court erred in granting the school district's ORCP 21 motion to dismiss plaintiffs' claims. We reverse the contrary decision of the Court of Appeals and the limited judgment of the trial court, and we remand for further proceedings.
The facts relevant to our decision are those set forth in plaintiffs' Third Amended Complaint.
Plaintiffs are seven adult men who were born between 1957 and 1970. Between 1968 and 1984, each plaintiff was a fifth-grade student in a class taught by Johnson. During that time period, Johnson was employed by the Lake Oswego School District (defendant), a governmental entity.
Plaintiffs alleged that the earliest date that any one of them discovered his injuries was in November 2006; the latest was in March 2008.
Plaintiffs commenced this action in February 2008. Plaintiffs labeled some of their claims as claims for "Sexual Abuse of a Child" and others as claims for "Intentional Infliction of Emotional Distress."
Defendant filed a motion under ORCP 21
The trial court ultimately agreed with defendant that plaintiffs must be deemed to have discovered the facts necessary to their claims at the time of the touching. The court concluded, "I am completely ruling, as a matter of law * * * that there is no 10- to 13-year-old child, other than one, perhaps, that's mentally retarded * * * who would not understand that this kind of touching is wrong." The trial court also rejected plaintiffs' argument that the OTCA was unconstitutional as applied to them. The trial court granted defendant's ORCP 21 motion to dismiss and entered a limited judgment in its favor.
Plaintiffs appealed, and the Court of Appeals affirmed. Doe v. Lake Oswego School District, 242 Or.App. 605, 259 P.3d 27 (2011). The court held:
Id. at 616, 259 P.3d 27 (footnote omitted). As to Jack Doe 6's negligence claim, the court held that plaintiff had failed to raise a distinct argument regarding the timeliness of that claim, and the court therefore declined to address it on appeal. Id. at 616-18, 259 P.3d 27. The court also rejected without discussion plaintiffs' challenge to the constitutionality of the OTCA as applied.
To meet the requirements of the OTCA, a plaintiff who is a minor at the time of an alleged loss or injury must give notice of claim within 270 days and must commence the action within two years following the "alleged loss or injury."
In Gaston v. Parsons, 318 Or. 247, 252-56, 864 P.2d 1319 (1994), this court considered the meaning of the word "injury" in the context of a different statute — ORS 12.110(4) — which provides that a medical malpractice action must be commenced within two years from the date that an "injury" is or should have been discovered.
In this case, defendant acknowledges the applicability of the discovery rule and contends that the trial court correctly followed that rule in dismissing plaintiffs' claims. According to defendant, plaintiffs necessarily discovered the facts that gave rise to legally cognizable claims for the intentional tort of battery no later than 1984, the last date on which Johnson touched any one of them.
Although plaintiffs did not expressly label any of their claims as claims for battery, they agree that the facts that they alleged in the claims that they labeled as claims for "Sexual Abuse of a Child" may properly be considered as stating claims for that intentional tort.
The parties' arguments confine the scope of our analysis; the legal question for our consideration on review is whether plaintiffs' allegations that Johnson fondled their genitals in and before 1984 require the conclusion that their battery claims accrued by that date. Defendant does not contend that plaintiffs' battery claims necessarily accrued at some date after 1984 or challenge plaintiffs' allegations that they did not discover their injuries until 2006 at the earliest. Rather, defendant argues that, because plaintiffs alleged that Johnson's touching occurred in or before 1984, plaintiffs also knew or should have known the facts that give rise to a battery claim by that date. We therefore begin our analysis by considering the elements of such a claim.
In Bakker v. Baza'r, Inc., 275 Or. 245, 249, 551 P.2d 1269 (1976), this court set out the elements of a battery claim:
As discussed in Harper, James and Gray on Torts, battery redresses injury both to an
Fowler V. Harper, Fleming James, Jr., and Oscar S. Gray, 1 Harper, James and Gray on Torts § 3.2, 307 (3d ed 2006). Prosser explains the reason:
W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 9, 41 (5th ed 1984) (footnotes omitted).
The Restatement (Second) of Torts § 18(1) (1965) also recognizes that battery may be either (or both) of two types — battery that causes "harmful contact" or battery that causes "offensive contact." As used in the Restatement, "harmful contact" includes physical impairment, physical pain, or illness. Restatement § 15. "Offensive contact" is defined as contact that offends a reasonable sense of personal dignity. Restatement § 19. Thus, to be tortious, a defendant's physical contact must be harmful or offensive in nature. In this case, defendant does not argue that plaintiff necessarily suffered physical impairment, physical pain, or illness by 1984; defendant argues that plaintiff necessarily suffered offensive contact by that date. Therefore, we address the "offensive contact" element of a claim for battery.
Defendant argues that plaintiffs had to have known that Johnson's touching was offensive at the time that it occurred: "Reaching under a fifth grader's clothing and fondling his genitals in front of a class of students is offensive to a reasonable sense of personal dignity as a matter of law." Further, defendant argues, the "[f]ailure of a child to apprehend the offensive nature of the contact does not change the fact that society, and therefore the law, considers the contact inherently harmful. What plaintiffs' teacher allegedly did was offensive and immediately caused cognizable harm." Therefore, in defendant's view, plaintiffs' battery claims were legally cognizable, and the OTCA limitations periods began to run, when Johnson's touching occurred — by 1984 at the latest.
Plaintiffs accept that intentional action that results in offensive contact gives rise to a battery claim, but respond that they reasonably did not recognize Johnson's conduct as offensive when they were fifth-graders in his classroom. Plaintiffs argue that defendant fails to separately analyze the facts that give rise to a battery claim and the different question of when plaintiffs knew or should have known those facts. According to plaintiffs, the question here is not whether plaintiffs pleaded facts sufficient to state a claim for relief, but whether plaintiffs discovered or must be deemed to have discovered those facts when Johnson's conduct occurred. Plaintiffs contend that, although Johnson's conduct was indeed offensive, they did not recognize it as such by 1984. They contend that they did not comprehend "the abusive nature" of Johnson's touching due to the "obedience, admiration, respect, and esteem" that they had for Johnson. In addition, they contend that, because the touching was "similar enough to the non-tortious touching by Johnson that occurred during and as part of the grooming process," they, as young boys, were confused by it and were unable to discern at the time that the touching was "inappropriate or harmful." Plaintiffs argue that, under those alleged circumstances, it was error for the trial court to dismiss their claims as untimely.
We agree with plaintiffs that defendant mistakenly conflates the question of whether Johnson's alleged conduct was in fact offensive with the question whether plaintiffs, as fifth-graders subjected to Johnson's grooming tactics, recognized or must be deemed to have recognized that fact when the touching occurred. Even though the facts that give rise to a claim have occurred, the applicable limitations period does not begin
In Gaston, the facts that gave rise to the plaintiff's negligence claim had occurred when the defendant completed the plaintiff's surgery. The defendant had operated, committed alleged negligence, and caused the plaintiff harm. However, the limitations period did not begin to run until the plaintiff knew or should have known those facts. The plaintiff contended that, even though his left arm was numb and did not function after surgery, he reasonably did not know that there was a substantial possibility that the defendant had acted tortiously. The court held that whether the plaintiff's failure to comprehend the nature of the defendant's conduct was reasonable was a question of fact that must be determined by the trier of fact. 318 Or. at 257, 864 P.2d 1319. The court explained:
Id. at 256-57, 864 P.2d 1319. Similarly, in Doe v. American Red Cross, 322 Or. 502, 513, 910 P.2d 364 (1996), the court held that the limitations period did not begin to run when the facts giving rise to a claim for negligence occurred: when the defendant provided the plaintiff's husband with blood for a transfusion, allegedly negligently, and the husband contracted a serious disease as a result. The limitations period did not begin to run until the plaintiff knew or should have known that defendant may have acted tortiously — a question of fact that precluded summary judgment for the defendant. Id. at 515, 910 P.2d 364.
As those cases demonstrate, knowledge that an actor committed an act that resulted in harm is not always sufficient to establish that a plaintiff also knew that the act was tortious. And, as those cases also demonstrate, whether a plaintiff knew or should have known the elements of a legally cognizable claim, including the tortious nature of a defendant's act, is generally a question of fact determined by an objective standard:
Kaseberg v. Davis Wright Tremaine, LLP, 351 Or. 270, 278, 265 P.3d 777 (2011) (internal citations omitted). In applying that standard, a court must consider the facts from the perspective of a reasonable person in the circumstances of the plaintiff. T.R. v. Boy Scouts of America, 344 Or. 282, 297-98, 181 P.3d 758 (2008). Those circumstances include, but are not limited to, plaintiff's status as a minor, id. at 297, 181 P.3d 758, the relationship between the parties, Kaseberg, 351 Or. at 279, 265 P.3d 777, and the nature of the harm suffered. Gaston, 318 Or. at 256, 864 P.2d 1319. A court cannot decide that question as a matter of law unless the only conclusion that a reasonable trier of fact could reach is that the plaintiff knew or should have known the critical facts at a specified time. Kaseberg, 351 Or. at 278, 265 P.3d 777 (so stating); T.R., 344 Or. at 296, 181 P.3d 758 (same).
The same principles are applicable here. Just as the negligent character of a defendant's conduct is not always immediately apparent, the line between offensive
Harper, 1 Harper, James and Gray on Torts § 3.2 at 310-11 (footnotes omitted). Just as a plaintiff's discovery of the negligent character of a defendant's conduct is a question of fact requiring consideration of the relationship between the parties and the nature of the harm, so too are those factors relevant to a discovery of whether a defendant has engaged in offensive contact.
In this case, defendant argues that the trial court was correct that the only conclusion that a reasonable trier of fact could reach was that, in 1984, plaintiffs knew or should have known that Johnson's touching was offensive. Plaintiffs respond that, given their status as minors, their relationship with Johnson, and the nature of the harm that his acts inflicted, a jury could find from the facts that they alleged that they reasonably did not know that Johnson's acts were offensive when they occurred. We agree with plaintiffs. Although it is true, as defendant argues, that in the 1970s and 1980s many fifth-graders would have known that Johnson's touching was offensive, plaintiffs alleged facts from which a jury could find that these plaintiffs reasonably did not reach that conclusion at the time of Johnson's actions. Plaintiffs alleged that Johnson engaged in a "grooming process" that included gaining the support of plaintiffs' families so that they would counsel their sons to respect his authority and comply with his instructions and requests. Plaintiffs alleged that, as a result, they had such admiration and respect for Johnson, and the wrongful touching in which Johnson engaged was so similar to the non-tortious touching that they had experienced during the grooming process that, as young boys, plaintiffs were confused by Johnson's conduct and unable to discern that the touching was inappropriate.
In Johnson v. Mult. Co. Dept. Community Justice, this court addressed whether a plaintiff who had been sexually assaulted should have learned from newspaper articles that the defendant's negligent supervision of a sex offender — her assailant — had contributed to her injury. 344 Or. at 113, 178 P.3d 210. The court considered the plaintiff's particular circumstances in concluding that, even though published media reports indicated that the defendant may have been negligent, the plaintiff had raised a question of fact about whether she knew or should have known of the defendant's potentially tortious conduct. Id. at 122-23, 178 P.3d 210. The court reasoned:
Id. at 122, 178 P.3d 210.
In this case, we are similarly unprepared to make the leap of faith for which defendant contends — that in 1984, all fifth-graders must be deemed to have known that a trusted teacher who had touched them in socially acceptable ways and whom they had been conditioned to respect and obey had crossed a line and touched them in a new way that society abhorred.
In stating that conclusion, we emphasize that plaintiffs' complaint does no more than
We also reject defendant's final, statutory argument. Defendant asserts that ORS 12.117, which provides a statute of limitations for child abuse claims brought against private actors, is indicative of a legislative policy that should govern our decision in this case.
For the reasons stated, we conclude that the trial court erred in granting defendant's ORCP 21 motion to dismiss plaintiffs' claims for "Sexual Abuse of a Child" — claims that we have analyzed as claims for battery — on timeliness grounds.
The decision of the Court of Appeals is reversed. The limited judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
(Emphasis added.)