Opinion
A158270.
09-27-2017
Pamela BUCHWALTER-DRUMM, as guardian ad litem for D. B., a Minor Child, Plaintiff-Appellant, v. STATE of Oregon, BY AND THROUGH its DEPARTMENT OF HUMAN SERVICES, Defendant-Respondent.
Kristian Roggendorf, Portland, argued the cause for appellant. With her on the briefs were Roggendorf Law LLC and David Paul and David Paul PC. Cecil A. Reniche-Smith, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Kristian Roggendorf, Portland, argued the cause for appellant. With her on the briefs were Roggendorf Law LLC and David Paul and David Paul PC.
Cecil A. Reniche-Smith, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before DeVore, Presiding Judge, and Powers, Judge, and Flynn, Judge pro tempore.
Powers, J., vice Duncan, J. pro tempore.
FLYNN, J. pro tempore.Plaintiff, a minor acting through his stepmother as guardian ad litem , brought this negligence action against the state Department of Human Services (DHS), for harm that he suffered due to sexual abuse by his mother's boy-friend, Price. After being taken into DHS custody, plaintiff disclosed the abuse to his stepmother, who hired a lawyer a year later, and the lawyer sent a notice of tort claim and filed this action. The state successfully moved for summary judgment, contending that plaintiff failed to file a timely notice of tort claim and that the state cannot be held liable for harm that plaintiff suffered before coming into DHS custody.
When a minor is a party to an action, the minor "shall appear by a guardian ad litem appointed by the court in which the action is brought [.]" ORCP 27 B. For purposes of clarity, we will refer to the minor as "plaintiff" and to his guardian ad litem as "step-mother." We will also refer to the named defendant as "the state."
The trial court granted the motion without specifying the bases for its ruling, and plaintiff has appealed. We conclude that the time for filing a minor's tort claim notice commences when the minor discovers the cause of action and that genuine issues of material fact preclude a determination on summary judgment that plaintiff discovered the cause of action outside of the 270-day filing period applicable to claims by a minor. We also conclude that genuine issues of material fact preclude summary judgment on the issue of the state's liability, because the evidence would permit a reasonable trier of fact to find that the state failed to reasonably address a foreseeable risk that plaintiff would suffer the type of harm that he allegedly suffered. Accordingly, we reverse.
We review an order granting summary judgment for errors of law and will affirm if we determine that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. See Doe v. Silverman , 286 Or.App. 813, 814-15, 399 P.3d 1069 (2017) ( Silverman ) (citing ORCP 47 C). The standard "no genuine issue as to any material fact" means that "no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." ORCP 47 C. In determining whether summary judgment is appropriate, "we view the facts and all reasonable inferences that may be drawn from them in favor of the nonmoving party who, in this case, is plaintiff." Silverman , 286 Or.App. at 815, 399 P.3d 1069 (citing Jones v. General Motors Corp. , 325 Or. 404, 408, 939 P.2d 608 (1997) ). We describe the facts in accordance with that standard.
I. BACKGROUND
Price's long history as a person of concern to DHS is documented in a 2006 report and recommendation by DHS to the Lane County Juvenile Court. Price first came to DHS's attention as early as December 2002, when the teenage daughter of a different girlfriend reported that Price had grabbed her breasts and made a lewd comment about them. The document indicates that DHS coded the girl's report "founded," that law enforcement became involved, and that Price was "charged with sexual harassment and put on probation." In 2005, DHS learned that the younger sister of the 16-year-old was reporting that Price touched her on her breasts and legs and watched her in the shower. DHS determined that the new report "was founded for sexual abuse, sexual exploitation and threat of harm." DHS obtained jurisdiction over the younger sister and over Price's own 5-year-old daughter, who also lived in the home, based in part on the determination that Price "presents a risk of harm to the child" based on his past "inappropriate sexual contact."
There is no crime of "sexual harassment" in the Oregon Criminal Code. A later report refers to Price's criminal record as including "Harassment Physical" from 2002. The record contains no direct evidence of Price's criminal convictions.
Near the end of 2006, DHS received a report that Price was living with plaintiff's mother. DHS authored an assessment summary regarding children living in the home, including plaintiff, who was then three years old. That summary documented DHS's concern that "mother's live-in companion," Price, "has sexually abused children, is not safe to be around children unsupervised, and the mother of these children does not believe her companion is a danger to the children." In a summary of safety concerns, DHS recited that Price "failed a polygraph denying sexually abusing his own children," and that a doctor who performed a psycho-sexual evaluation "recommended that Price not have any unsupervised contact with minors."
Under the heading "safety threat identification," the 2006 report on plaintiff's home indicates that "Price is a possible sex abuse perpetrator," but also that "[h]e has never been convicted of a sex crime and Juvenile Court does not have jurisdiction in regards to sexual abuse." DHS coded the referral "unfounded" but obtained agreement from plaintiff's mother that Price would have no unsupervised contact with her children, would only come to the home at prescheduled times, and would only spend the night if all of the children were away with a safe care provider. At the same time, in the case involving the earlier children, DHS reported to the juvenile court that "Price needs to be monitored in completing sex abuse treatment and not being unsupervised around children under age 18."
Three years later, in July 2009, DHS prepared another assessment summary of plaintiff's family. The summary indicated that Price was continuing his relationship with plaintiff's mother, and that he was the father of plaintiff's younger half-sibling, as well as of another child with whom plaintiff's mother was pregnant. In that assessment, the DHS caseworker identified as a safety threat that Price "has an open case with the agency due to founded sex abuse, and has been advised not to have unsupervised contact with children under 18."
Shortly after preparing that summary, DHS filed a petition for jurisdiction over plaintiff and the other children. As to plaintiff, the petition alleged that his mother had failed to protect him "from Threat of Harm of Sexual Abuse in that; the mother has continued an ongoing relationship with" Price and had allowed Price "to have ongoing unsupervised contact" with plaintiff, despite being aware that Price had been advised to have no contact with minor children. As a "placement" for plaintiff, DHS continued to let him live with his mother. The court's order of jurisdiction specified that "mother shall have no contact with Price without the prior approval of DHS."Two months later, however, DHS informed the juvenile court that plaintiff's mother had "allowed Mr. Price to have ongoing, unsupervised contact with the child." DHS eventually removed plaintiff from his mother's care in January 2010, and placed him in foster care.
On May 27, 2011, plaintiff disclosed to his stepmother that he had been sexually abused by Price, describing an incident in which Price took plaintiff to a school conference and then abused him in a bathroom stall. Stepmother consulted with a lawyer on May 21, 2012, approximately one year after plaintiff's disclosure. The lawyer sent a tort claim notice to DHS on June 15, 2012, and stepmother was appointed guardian ad litem to pursue this action.
As indicated above, the state filed a motion for summary judgment asserting both that plaintiff failed to give timely notice of the action as required under the Oregon Tort Claims Act (OTCA) and that DHS could not be held liable for harm from Price's actions before the time that plaintiff came into the state's jurisdiction because there existed no "special relationship" between the state and plaintiff prior to that time. The trial court granted the motion for summary judgment without specifying the basis or bases for its ruling.
II. ANALYSIS
A. Timeliness of the Tort Claims Notice
Under the OTCA, "every public body is subject to civil action for its torts." ORS 30.265(1) ; Jensen v. Whitlow , 334 Or. 412, 416, 51 P.3d 599 (2002) (explaining that the OTCA "abrogated, in part, the state's sovereign immunity"). However, no action may be maintained against the public body unless timely notice of claim is given to the public body. ORS 30.275(1). As pertinent to this case, "a plaintiff who is a minor at the time of an alleged loss or injury must give notice of claim within 270 days [.]" Doe v. Lake Oswego School District , 353 Or. 321, 327, 297 P.3d 1287 (2013) (citing ORS 30.275 ). The term "injury" as used in ORS 30.275 means "what formed the basis for an action, i.e. , legally cognizable harm," and "harm is legally cognizable if it is the result of tortious conduct." See id. at 327-28, 297 P.3d 1287 (internal quotation marks and citations omitted). Thus, the limitations period "does not begin to run until a ‘plaintiff has a reasonable opportunity to discover his [or her] injury and the identity of the party responsible for that injury.’ " Id. (quoting Adams v. Oregon State Police , 289 Or. 233, 239, 611 P.2d 1153 (1980) (emphasis in Doe )). We will refer to this concept as discovery of a "cognizable injury."
The parties agree regarding those preliminary principles of tort claim notice, but their arguments on appeal part ways over the question of who must discover the "injury." According to the state, because a minor must appear through a guardian ad litem or conservator, the relevant discovery occurred when stepmother, who would later become the guardian ad litem , discovered the injury. According to plaintiff, it is the person who has suffered harm who must discover the cognizable injury to trigger the obligation to provide notice of a claim for that harm. Although plaintiff acknowledges that, once stepmother obtained legal authority to act on plaintiff's behalf, her knowledge can be considered plaintiff's knowledge, plaintiff argues that there is no basis for imputing stepmother's knowledge to plaintiff prior to her appointment as guardian ad litem . Because plaintiff does not dispute on appeal that stepmother discovered plaintiff's cognizable injury more than 270 days before plaintiff provided notice of his tort claim, the state's challenge to the notice as untimely ultimately turns on the legal question of who must discover a minor's cognizable injury to trigger the notice period. Before addressing that ultimate question, we take an analytical detour to address two preliminary issues raised by the parties—whether a subsequent statutory change regarding tolling of a minor's claims against a public body resolves the dispute and, if not, whether plaintiff preserved the discovery-rule argument that he raises on appeal.
1. Minority tolling
After oral argument, plaintiff submitted a memorandum of additional authorities suggesting that the dispute is fully resolved by a statutory change that retroactively provides for tolling of the time limit for a minor to commence a cause of action under the OTCA, citing our decision in Robbins v. Dept. of Human Services , 276 Or.App. 17, 18, 366 P.3d 752 (2016). In Robbins , we explained that the 2015 legislature amended ORS 12.160(1), the statute that provides for tolling of the statute of limitations for claims by a minor to cover a minor's claim under the OTCA, including in existing cases. 276 Or.App. at 19, 366 P.3d 752. The amendment, however, does not make minority tolling applicable to the period for giving notice of a minor's claim under the OTCA.
ORS 12.160(1) now provides:
"(1) Subject to subsection (2) of this section, if a person is entitled to bring an action mentioned in ORS 12.010 to 12.050, 12.070 to 12.250 or 12.276, and at the time the cause of action accrues the person is a child who is younger than 18 years of age, the statute of limitation for commencing the action is tolled for so long as the person is younger than 18 years of age."
As we explained in Robbins , the 2015 legislature amended ORS 12.160(1) to change language that was added in 2007, which had "resulted in the unintended consequence of eliminating application of the minority tolling provision in OTCA claims." Id. The 2015 amendment restores language that, this court has held, made minority tolling applicable to the statute of limitations that applies to actions under the OTCA. Id. at 20, 366 P.3d 752 (citing Smith v. OHSU Hospital and Clinic , 272 Or.App. 473, 356 P.3d 142 (2015) ). We have also held, however, that the minority tolling provided in ORS 12.160 does not alter the 270-day period in which minors must provide notice to a public body of a tort claim, because "the legislature expressly specified in the OTCA [ ORS 30.275(2) ] that the notice period is tolled for a period ‘not exceeding’ 90 days due to minority." Catt v. Dept. of Human Services , 251 Or.App. 488, 499-500, 284 P.3d 532 (2012). The legislature has not changed the pertinent language of ORS 30.275(2), and nothing in the amendment that we discussed in Robbins suggests that ORS 12.160 now tolls the time to provide notice of a minor's claim under the OTCA.
2. Preservation
Next, we consider the state's contention that we should not reach plaintiff's challenge to the summary judgment ruling because plaintiff failed to preserve his argument that the discovery rule focuses on the knowledge of the injured person, even when that person is a minor. See ORAP 5.45(1) ("No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court[.]"). We conclude that plaintiff's arguments below were adequate to preserve the issue that plaintiff presents on appeal.
As the Supreme Court has explained, the primary purposes that the preservation requirement serves "are to allow the trial court to consider a contention and correct any error, to allow the opposing party an opportunity to respond to a contention, and to foster a full development of the record." State v. Clemente-Perez , 357 Or. 745, 752, 359 P.3d 232 (2015) (citing Peeples v. Lampert , 345 Or. 209, 219-20, 191 P.3d 637 (2008) ). Thus, the court has repeatedly emphasized that "the question whether an argument has been preserved ‘inevitably will turn on whether, given the particular record of a case, the court concludes that the policies underlying the [preservation] rule have been sufficiently served.’ " Clemente-Perez , 357 Or. at 752, 359 P.3d 232 (quoting State v. Parkins , 346 Or. 333, 341, 211 P.3d 262 (2009) ). In Clemente-Perez , a defendant moving for a judgment of acquittal mentioned a statutory construction argument that he later developed more fully on appeal, but he "spent the bulk of his time addressing" a different aspect of the statute and "did not elaborate on" the argument that he pursued on appeal. The court held that the "preservation policies have been served," because although he "may not have presented his argument with perfect clarity, * * * he provided sufficient information to enable the prosecutor to respond and for the trial court to consider the argument and correct any error." Id. at 753, 359 P.3d 232.
Likewise, we conclude that our preservation polices have been served by plaintiff's arguments in the trial court. In its motion for summary judgment, the state contended that plaintiff's tort claim notice was due, at the earliest, 270 days after plaintiff first disclosed the abuse. The state may have chosen this date because it understood stepmother's knowledge to be dispositive, but the motion does not articulate that rationale. Indeed, a plausible interpretation of the motion is that the state chose the disclosure date because it understood plaintiff's discovery of the harm—a fact demonstrated by his report—to be sufficient to trigger the notice period.Plaintiff's response recited that "[a]ccrual of a personal injury claim requires that the injured party know the identity of the tortfeasor," (emphasis omitted), but did not specifically argue that the discovery inquiry in a claim for a minor focuses on facts known to the injured minor. Similarly, at the summary judgment hearing, plaintiff commented that there is "really a lot of ambiguity in the law" regarding whose knowledge triggers the notice period and that the statute, "literally, would mean that the child is the person who is charged with knowledge." However, he added that "taking a charitable position for the state," stepmother did not discover an actionable injury any earlier than her meeting with a lawyer on plaintiff's behalf. We understand plaintiff to have raised the argument that he makes on appeal as an alternative approach to evaluating the discovery question but to have "spent the bulk of his time addressing" whether stepmother discovered the injury before meeting with the lawyer. Clemente-Perez , 357 Or. at 752, 359 P.3d 232. Given the lack of explanation for the trial court's ruling, there is no basis to conclude that the trial court had a different understanding of plaintiff's timely notice argument, or even that the court rejected that argument. See Clemente-Perez , 357 Or. at 753 n. 3, 359 P.3d 232 (observing that the trial court "at least arguably considered" the defense argument that the state challenged as unpreserved). Plaintiff's position on appeal—that the notice period was triggered no earlier than stepmother's meeting with the lawyer on plaintiff's behalf—is the same position that plaintiff asserted in the trial court, and, under the circumstances, we conclude that plaintiff raised his specific argument in support of that position sufficiently to permit the state to respond and for the trial court to consider it. See id. at 753, 359 P.3d 232.
3. Who must discover a minor's cognizable injury
Thus, we return to the crux of the parties' dispute on appeal: When the injured party is a minor, who must discover the facts that trigger the 270 days for providing notice of the claim. As set out above, plaintiff argues that the trial court erred in granting summary judgment because the relevant inquiry is when plaintiff—the injured person—discovered the cognizable injury. Plaintiff argues that we have already held as much in Banda v. Danner , 87 Or.App. 69, 73, 741 P.2d 514 (1987), aff'd by an equally divided court 307 Or. 302, 766 P.2d 385 (1988). We agree.
We note that when the Supreme Court affirms by an equally divided court, the affirmance "is not entitled to precedential weight." See Perez v. Bay Area Hospital, 315 Or. 474, 478 n. 5, 846 P.2d 405 (1993).
Banda arose out of an action for harm to a child born with brain damage that was allegedly caused by the negligence of Umatilla Hospital, a public body under the OTCA. Id. at 71, 741 P.2d 514. The child's mother first consulted an attorney about her suspicion that the hospital had been negligent more than two years before a tort claim notice was provided or the action against the hospital commenced. Id. at 71-72, 741 P.2d 514. After the hospital successfully moved for summary judgment on the grounds that both the tort claim notice and the action were untimely, the plaintiff appealed. Id. at 72, 741 P.2d 514. We began by explaining that timeliness of both a tort claim notice and an action against the public body depends upon the date of discovery—when a plaintiff has "knowledge, actual or implied, of facts that, if proved, will at least raise an issue of fact on each element of the claim"—and that the parties disputed the significance of the mother's knowledge to the date of discovery. Id. at 73, 741 P.2d 514 (internal quotation marks omitted). Thus, we emphasized, "[t]he first question in this case is who is the ‘plaintiff’ whose knowledge begins the running of the statutory period." Id . The question was critical to the outcome on appeal, because the child "clearly did not know the source of his injury or that defendant's negligence might be its cause at any time relevant to the motion for summary judgment." Id.
Our answer to the question "whose knowledge begins the running of the statutory period" is apparent from the analysis that followed. As we emphasized, "[t]his is a claim to recover for alleged negligence which damaged [the child]; any recovery will be solely for his benefit." Id. at 74, 741 P.2d 514. Although we concluded that the mother's knowledge could be attributed to the child once she became his guardian ad litem —a person with "the legal ability to act in court" on the child's behalf—we concluded that her knowledge prior to that time was irrelevant. Id.
We first concluded that the mother's knowledge at the point she initially consulted an attorney could not be imputed to the child for purposes of discovery, because at that point she was only "a concerned parent." Id . Next, we rejected the possibility that the mother's later appointment to act as guardian should retroactively make her earlier knowledge relevant to the date of discovery. Id. at 73-74, 741 P.2d 514. As we emphasized, that approach would "make the child's rights depend on the fortuity of who was willing and able to act as guardian ad litem , with a premium placed on the potential guardian's previous ignorance of the facts," and we saw "no reason to open the door to such possibilities for manipulation." Id. at 74, 741 P.2d 514. Because the tort claim notice and complaint were timely if based on a discovery date triggered by the mother being appointed guardian ad litem —the earliest date at which her knowledge could be imputed to the child—we reversed the grant of summary judgment. Id. Thus, plaintiff is correct that Banda resolved the issue that is at the heart of the parties' dispute in this case.
Our conclusion that the mother's knowledge when she became guardian ad litem could be imputed to the child appears to presume that, as guardian ad litem, the mother became the child's agent. It is an established principle of agency that " ‘[a]n agent's knowledge acquired within the scope of the agency is imputed to the principal, regardless of whether the agent actually communicates that knowledge to the principal.’ " Atkeson v. T & K Lands, LLC, 258 Or.App. 373, 382, 309 P.3d 188 (2013) (quoting Benson v. State of Oregon, 196 Or.App. 211, 217, 100 P.3d 1097 (2004) (emphasis added)). The role of guardian ad litem is not necessarily the only role that will give rise to an agency relationship on behalf of a minor, but it is the only role that the state identifies as a possible basis for imputing knowledge to plaintiff.
The state contends, however, that our holding in Banda , that the minors knowledge begins the running of the statutory period, was abrogated by later decisions. We disagree. The state's challenge to Banda focuses on the Supreme Court's decision in Perez v. Bay Area Hospital , 315 Or. 474, 482-83, 846 P.2d 405 (1993) —a case that this court has described as holding, "in effect, that Banda had been incorrectly decided." Cooksey v. Portland Public School Dist. No. 1 , 143 Or.App. 527, 532, 923 P.2d 1328 (1996). But the reference is not to the holding of Banda on which plaintiff relies.
Neither Perez nor Cooksey addresses Banda 's holding that it is the child whose knowledge—actual or imputed—"begins the running of the statutory period." Rather, the "sole question" that the court considered in Perez was "whether the 270-day notice period prescribed by ORS 30.275(2) in regard to a claim by a minor against a public body is tolled until the appointment of a guardian ad litem of the minor." 315 Or. at 479, 846 P.2d 405 (emphasis added). In Perez , the minor's notice of tort claim was provided more than a year after the alleged injury, despite the fact that—as the court emphasized—"the alleged loss or injury, its alleged cause, and the identity of the alleged tortfeasor were known within a matter of days." Id . The court specifically noted "at the outset that this case does not involve an application of the ‘discovery rule.’ " Id. The plaintiff's only argument for why the tort claim notice should be considered timely was the proposition that the time to provide notice of a minor's tort claim should be tolled—regardless of knowledge—until the appointment of a guardian ad litem. The court rejected that proposition. Id. at 477, 846 P.2d 405.
The court held that the time for providing notice of a claim by a minor is not tolled "indefinitely until the appointment of a guardian ad litem ," emphasizing in part that such a construction "would render meaningless the express 90-day extension of time for minority" that ORS 30.275 adds for the "apparent purpose" of permitting time to appoint a guardian ad litem . Id. at 483, 846 P.2d 405. The state does not explain how the holding of Perez —that the notice period for a minor's tort claim runs regardless of whether a guardian ad litem has been appointed—is inconsistent with Banda 's holding that the notice period begins to run when the minor discovers the cognizable injury. On the contrary, if the time for a minor to provide notice can begin to run without the appointment of a guardian ad litem , then—as Banda concludes—it must be the minor "whose knowledge begins the running of the statutory period." 87 Or.App. at 73, 741 P.2d 514.
Nevertheless, Cooksey describes the holding of Perez as contrary to some aspect of Banda 's reasoning. As we will explain, however, Cooksey does not stand for the proposition that Banda' s discovery-rule holding is incorrect. The link between Perez and our statement in Cooksey is somewhat convoluted but important to understanding why Banda 's discovery-rule holding remains good law. In Banda , after emphasizing at the outset that the child "clearly did not know the source of his injury" and holding that the mother's knowledge could not be imputed to the child prior to her appointment as guardian ad litem , the opinion concludes with the statement: "The time for notice under ORS 30.275 did not begin running until," at the earliest, the mother's appointment as guardian ad litem . 87 Or.App. at 74, 741 P.2d 514. In this court's decision in Perez , we quoted the above statement from Banda to support the holding that the notice period for the minor's tort claim did not begin to run until the minor had a guardian ad litem —despite the fact, as later emphasized by the Supreme Court, that, in Perez , the injury had been discovered "within a matter of days." See Perez v. Bay Area Hospital , 112 Or.App. 288, 294, 829 P.2d 700 (1992), aff'd in part, rev'd in part , Perez v. Bay Area Hospital , 315 Or. 474, 846 P.2d 405 (1993).
We explained more explicitly in another opinion that this court understood Banda to mean that a minor's claim is always tolled until appointment of a guardian ad litem , regardless of whether the minor discovers the claim before that time. Mann v. Dept. of Transportation , 114 Or.App. 562, 566, 836 P.2d 1353 (1992), rev'd , 315 Or. 642, 847 P.2d 856 (1993). That is a questionable reading of Banda , as Judge Buttler emphasized in a separate opinion in Mann , and as the above discussion of Banda should suggest. See Mann , 114 Or.App. at 569, 836 P.2d 1353 (Buttler, P. J., concurring in part and dissenting in part) (explaining that, although "[a] superficial reading of Banda v. Danner , supra , might lead one to believe, as does the majority, that we held that the time under ORS 30.275 does not begin to run until a guardian ad litem has been appointed for the minor and the guardian has knowledge of sufficient facts to assert a claim," that was not a holding of Banda ).
Nevertheless in Mann , the majority of this court understood Banda to hold not just that it is the minor who must discover the cognizable injury but also that the minor's notice period is tolled—regardless of discovery—until a guardian ad litem is appointed. It is only that latter "holding" of Banda to which Cooksey referred when it described the holding of Banda as "incorrect" in light of Perez . See Cooksey , 143 Or.App. at 532, 923 P.2d 1328. Cooksey , in fact, fully supports the holding of Banda that the discovery rule focuses on the minor's knowledge. In Cooksey , after observing that, given Perez , the time for the minor to provide a tort claim notice was not tolled pending appointment of a guardian ad litem , we proceeded to analyze the plaintiff's alternative argument—that the minor's notice was timely under the discovery rule. 143 Or.App. at 533, 923 P.2d 1328. In doing so, we identified the pertinent date of discovery as the date that the minor knew that she had been touched inappropriately, even though she "did not tell her parents or any authorities at school about the incidents" until months later. Id. at 529, 534, 923 P.2d 1328.
Thus, we agree with plaintiff that Banda resolves the parties' dispute about who must discover a minor's cognizable injury before the time to provide a notice of tort claim begins to run, and we agree that Banda 's resolution of that question remains a correct statement of the law. A claim for injury to a child is "the child's claim." Christiansen v. Providence Health System , 344 Or. 445, 451, 184 P.3d 1121 (2008). It is, thus, the child who must discover the cognizable injury, either directly or through knowledge imputed to the child.
4. Factual questions regarding discovery
Having concluded that the proper focus is on facts known to the injured child whose claim for damages is at issue, we readily conclude that genuine issues of material fact preclude summary judgment for the state on the ground of timely notice. Under the discovery rule, the time for filing a notice of tort claim does not commence "until a plaintiff knows or, in the exercise of reasonable care should know, that he or she has been injured and that there is a substantial possibility that the injury was caused by an identified person's tortious conduct." Johnson v. Mult. Co. Dept. of Community Justice , 344 Or. 111, 118, 178 P.3d 210 (2008). When that discovery occurs "ordinarily is a question of fact for the jury; it may be decided on summary judgment as a matter of law only if the record on summary judgment presents no triable issue of fact." Id.
We agree with plaintiff that a reasonable trier of fact could find that a seven-year-old sexual abuse victim did not discover the cognizable injury—particularly the substantial possibility that the state tortiously contributed to the harm—more than 270 days before the date of plaintiff's tort claim notice. See Doe , 353 Or. at 333, 297 P.3d 1287 (in applying the objective standard of the discovery rule, the court must "consider the facts from the perspective of a reasonable person in the circumstances of the plaintiff," which includes the circumstance of plaintiff's status as a minor). Nor does the state identify a reason that stepmother's relationship to plaintiff prior to her appointment as guardian ad litem was such that her knowledge necessarily would be imputed to plaintiff before she acquired the legal capacity to act on his behalf. Thus, the state is not entitled to summary judgment on the basis of the tort claim notice.
We note that the Supreme Court has not yet decided whether the knowledge of a parent can be imputed to a child apart from becoming guardian ad litem. See Christiansen, 344 Or. at 451, 184 P.3d 1121 (explaining that the court would "assume" that the knowledge of the mother of a child who suffered brain damage at birth could be imputed to the child because that "was the legal construct under which the parties have argued this case," and that the "parties do not make any distinction between information that mother may have learned in her capacity as conservator and information she may have learned before her legal designation as conservator").
B. Negligence
We also conclude that genuine issues of material fact preclude summary judgment on the issue of negligence. In its motion for summary judgment, the state asserted only that it "is not and cannot be held liable" for the actions of a third party—Price—in the absence of a special relationship with plaintiff or evidence that Price was an agent of the state. The state recognized that a special relationship arose when it took plaintiff into protective custody, but argued that it was entitled to summary judgment because there is no evidence that abuse occurred after that relationship began and no allegation that Price was an agent of the state.
Plaintiff responded to the summary judgment motion by arguing—as he argues on appeal as well—that this "is not a special relationship case." Rather, liability is determined by whether the state negligently failed to respond to a foreseeable risk of harm to plaintiff. Plaintiff argued that genuine issues of material fact preclude summary judgment under that standard, adding that the state's own regulations regarding identified safety threats to children set a standard of care that the state failed to meet, see OAR 413-015-0432.
On appeal, the state argues that plaintiff failed to present evidence from which a "reasonable finder of fact could conclude that the state had failed to exercise reasonable care to protect child from foreseeable injury" or from which a reasonable finder of fact could conclude that plaintiff's injuries were caused by any omission on the state's part. Typically, we would consider only proof-challenges raised in the motion for summary judgment, because "the party opposing summary judgment has the burden of producing evidence on any issue ‘raised in the motion’ as to which the adverse party would have the burden of persuasion at trial." Two Two v. Fujitec America, Inc. , 355 Or. 319, 324, 325 P.3d 707 (2014) (quoting ORCP 47 C). We, thus, begin by considering the argument that the state raised in the motion for summary judgment.
1. Liability for harm from criminal conduct in the absence of a special relationship
Contrary to DHS's argument below, the "intervening criminal acts of a third person do not necessarily" preclude liability in the absence of a special relationship. Fraker v. Benton County Sheriff's Office , 214 Or.App. 473, 490, 166 P.3d 1137, adh'd to on recons , 217 Or.App. 159, 174 P.3d 1111 (2007). Although "the nature and scope of the duty owed by the defendant to the plaintiff can be created, defined, or limited based on, among other things, the relationship between or status of the parties," the liability analysis for a common-law negligence claim is otherwise governed by general foreseeability principles—"whether the defendant's conduct resulted in a reasonably foreseeable and unreasonable risk of harm to a protected interest of the kind that the plaintiff suffered." Piazza v. Kellim , 360 Or. 58, 71, 377 P.3d 492 (2016). Under general foreseeability principles, the defendant "may be found liable if it was reasonably foreseeable to defendant that plaintiffs would suffer harm as a result of [intervening] criminal acts and if defendant unreasonably created the risk of the harm that befell plaintiffs or, stated differently, provided more than ‘mere facilitation’ of the third party's criminal acts." Fraker , 214 Or.App. at 490, 166 P.3d 1137 (quoting Buchler v. Oregon Corrections Div. , 316 Or. 499, 511-12, 853 P.2d 798 (1993) ).
In Fraker , we expressly relied on and readopted reasoning that we had previously expressed in an opinion that the Supreme Court vacated on procedural grounds— Bertram v. Malheur County , 204 Or.App. 129, 136, 129 P.3d 222, appeal dismissed , 341 Or. 392, 143 P.3d 544 (2006). Fraker , 214 Or.App. at 490 n. 5, 166 P.3d 1137. That reasoning in Bertram led us to reject a proposition that bears similarity to the proposition that the state asserted in its motion for summary judgment.
In Bertram , two minor victims of sexual abuse brought a negligence action against Malheur County. The complaint alleged that the county juvenile department was negligent in its handling of allegations that the abuser, a youth who lived near the victims, and who eventually came under supervision of the county juvenile department, had sexually abused a five-year-old before moving to Malheur County. Id. at 131-32, 129 P.3d 222. The trial court granted partial summary judgment in favor of the county, concluding that the county could not be liable "under general foreseeability principles for abuse that occurred before the juvenile court assumed jurisdiction over," and began supervising, the offending youth. Id. at 136, 129 P.3d 222.
We reversed. Applying general foreseeability principles, we concluded "that a trier of fact could find that the county's conduct was unreasonable in light of the reasonably foreseeable risk that, if unrestrained, [the youth] would sexually abuse children in the locale of his new residence." Id. at 145, 129 P.3d 222. We also emphasized that the county's alleged failure to adequately respond to the previous abuse allegations—if proven—"created a risk that precisely the same type of injury would occur to other young children in the locale where [the youth] resided," which made the county more than "a mere unwitting facilitator." Id. 144-45, 129 P.3d 222.
In Fraker , applying the same general foreseeability reasoning as Bertram , we reversed a grant of summary judgment to the defendant, who was the roommate of a man who held the plaintiffs, his wife and step-daughters, hostage for several hours before killing himself. 214 Or.App. at 475, 166 P.3d 1137. The defendant had allowed the man to use her car to drive to a meeting with his attorney, and, on the way home from that meeting, the man detoured to the plaintiffs' home where he took the plaintiffs hostage and terrorized them for many hours. The plaintiffs alleged that the defendant knew that the man had threatened to harm the plaintiffs, knew that he had a gun, which the defendant had placed in the trunk of her car, and knew that the man would have access to that gun when she loaned him the car. We concluded that the plaintiffs' allegations, if proven, would permit a trier of fact to find that the defendant reasonably should have foreseen that the man would go to the plaintiffs' home and threaten or harm them and that the defendant's conduct—failing to report the man's threats and making a car with a gun in the trunk available to the man—"was unreasonable in light of the reasonably foreseeable risk." Id. at 491, 493, 166 P.3d 1137. We also emphasized that, under the circumstances alleged, the defendant "was more than a mere ‘unwitting’ facilitator" of the man's criminal conduct. Id. at 491, 166 P.3d 1137 (quoting Bertram , 204 Or.App. at 140, 129 P.3d 222 ).
As our analysis in Fraker and Bertram illustrates, the lack of a special relationship between the state and plaintiff at the time of the abuse does not preclude a determination that the state is liable for the harm that Price's criminal conduct caused to plaintiff. Rather, DHS is liable in negligence if harm of the kind that plaintiff suffered was reasonably foreseeable to the state and if the state's conduct "was unreasonable in light of the reasonably foreseeable risk," as long as the state "was more than a mere ‘unwitting’ facilitator" of the harm. Fraker , 214 Or.App. at 491, 493, 166 P.3d 1137. The state was not entitled to summary judgment on the grounds asserted in the motion for summary judgment.
2. Evidence of failure to exercise reasonable care to protect child from foreseeable injury
Nevertheless, the state argues that we should affirm the grant of summary judgment on the alternative basis that plaintiff's evidence does not permit a reasonable trier of fact to find that the state failed to exercise reasonable care to protect plaintiff or that the state's acts or omissions were a cause of the harm that plaintiff suffered. Several considerations constrain our ability to affirm a trial court's ruling on a basis other than those on which the court relied, including that "the record [must] materially be the same one that would have been developed had the prevailing party raised the alternative basis for affirmance below." ( Outdoor Media Dimensions Inc. v. State of Oregon , 331 Or. 634, 659-60, 20 P.3d 180 (2001) ). That "criterion is of particular importance" when we are asked to affirm a grant of summary judgment on an alternative issue that was not raised in the summary judgment motion, because the party opposing a motion for summary judgment has the burden to produce evidence to create a material issue of fact only as to issues raised in the motion. Eklof v. Steward , 360 Or. 717, 736, 385 P.3d 1074 (2016) (citing Two Two , 355 Or. at 326, 325 P.3d 707 ). Thus, because the state's motion for summary judgment raised a purely legal challenge to the merits of plaintiffs' negligence claim, plaintiff had no burden to produce the kind of evidence that the state now contends plaintiff failed to produce.
Plaintiff, nevertheless, responded to the summary judgment motion with evidence to support the negligence allegations and, on appeal, urges us to conclude that the evidence would permit a trier of fact to find that the state's conduct was unreasonable in light of a reasonably foreseeable risk that Price would sexually abuse one of the children in plaintiff's home. We agree that the evidence permits those findings and, thus, that the argument that DHS raises on appeal is not a basis for affirming the summary judgment.
As the Supreme Court has emphasized, because the "concept of foreseeability embodies a prospective judgment about a course of events; it ‘therefore ordinarily depends on the facts of a concrete situation’ and, if disputed, is a jury question." Piazza , 360 Or. at 70, 377 P.3d 492 (quoting Fazzolari v. Portland School Dist. No. 1J , 303 Or. 1, 4, 734 P.2d 1326 (1987) ). Here, the state's own reports document repeated determinations that Price presented a risk of harm to children in the home if left unsupervised, given the past allegations of sexual abuse. They also document that, as early as 2006, the state knew that plaintiff was one of the children to whom Price presented a risk of abuse. The evidence would also permit a reasonable trier of fact to find that the state's conduct—including settling for a "voluntary" agreement that Price would not be left unsupervised with the children and failing to act when it knew that the agreement was not being followed—was unreasonable. Thus, the evidence would permit a trier of fact to find that the state's conduct was unreasonable in light of the reasonably foreseeable risk of harm to plaintiff from unsupervised contact with Price, that plaintiff did suffer that foreseeable harm, and that the state "was more than a mere ‘unwitting’ facilitator" of the harm. See Fraker , 214 Or.App. at 491, 166 P.3d 1137. Accordingly, we reverse the grant of summary judgment to the state.
At oral argument on appeal, DHS suggested that it was legally precluded from taking any additional steps to address the foreseeable risk to plaintiff. DHS did not raise that argument below, and the record and briefing have not been developed in a way that would permit us to consider the argument on appeal. See Outdoor Media, 331 Or. at 660, 20 P.3d 180.
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Reversed and remanded.