Opinion
No. CV-00-349-HU
December 20, 2000
Dennis Steinman, Portland, Oregon, Attorney for Plaintiffs.
Steven A. Kraemer, Portland, Oregon, Attorney for Defendant.
OPINION ORDER
Plaintiff Sidney Sherwood and her two minor children, Sarah Johnson and Lars Johnson, bring this action against defendant Nadine Finch, alleging that defendant discriminated against them by refusing to rent them an apartment because of their familial status. The Fair Housing Council of Oregon (FHCO) is also a plaintiff.
Defendant moves for partial summary judgment. I grant the motion in part and deny it in part.
BACKGROUND
Defendant Nadine Finch owns and manages an apartment complex in the Dunthorpe area of Portland. Plaintiff Sidney Sherwood is the single parent of the two minor children. In April 1995, Sherwood moved from Sunriver, Oregon, to Portland. Because she "wanted to maintain the same learning environment that my children had experienced in Sunriver, [she] conducted extensive research on the schools in the Portland area, and decided that the Riverdale School District would best meet the needs of my children because of its size and academic reputation." Sherwood Affid. at ¶ 4. Upon arriving in Portland, she enrolled her children in the Riverdale schools, paying $10,000 in tuition because they did not live within the boundaries of the school district. Id. at ¶ 5.
To keep her children in Riverdale schools without having to pay the tuition, Sherwood looked for housing within the district boundaries. Id. at ¶ 6. Between the winter of 1995 and the spring of 1999, Sherwood contends that she attempted no fewer than eight times to view apartments owned by defendant and which defendant had advertised as available. Id. at ¶ 10. Sherwood further states that each time she responded to defendant's vacancy advertisements and attempted to rent an apartment, defendant never offered her an application and never told her about rental requirements or deposits. Id. at ¶ 11. Sherwood states that when she and her children visited one of the apartments in the spring of 1996, defendant stated that she did not want noisy children living at the property. Id. at ¶ 12. Sherwood alleges that the day after viewing an apartment in the spring of 1996, she called defendant to rent the apartment and was told there were no apartments available. Id. at ¶ 13. Sherwood states that when she and her son attempted to rent an apartment from defendant in the winter of 1996-97, defendant told plaintiff she would not rent to the family because of the "activeness of a child." Id. at ¶ 14.
On or about April 15, 1999, Sherwood asked a friend to help her rent an apartment from defendant. Id. at ¶ 15. The friend, Charles Hall, called defendant on that date and asked about availability of apartments. Id. at ¶ 15, 16. Defendant told Hall that a one-bedroom apartment with a den was available for rent. Id. at ¶ 16. Within one hour of hearing that information from defendant, Hall and Sherwood went to defendant's apartment complex so that Sherwood could rent the apartment. Id. Defendant told Sherwood the apartment had been rented to someone else. Id at ¶ 17.
Plaintiff first complained to the FHCO on October 21, 1996, regarding her repeated attempts to rent from defendant. Id. at ¶ 18. She wanted confirmation of her suspicion that she was being discriminated against because she had children. Id. FHCO was unable to test for discrimination because there were no apartment vacancies at the time.Id. at ¶ 19. Sherwood was told to contact FECO when she next learned of an apartment vacancy. Id.
On April 16, 1999, Sherwood again contacted FUCO regarding defendant's refusal to allow her to rent an apartment. Id. at ¶ 20. Between April 16, 1999, and July 1, 1999, FUCO conducted a telephone discrimination test in which FHCO had protected class testers and non-protected class testers inquire about defendant's apartments. Based on these tests, FHCO filed a fair housing complaint with the United States Department of Housing and Urban Development regarding defendant's rental policies and procedures.
STANDARDS
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)).
"If the moving party meets its initial burden of showing 'the absence of a material and triable issue of fact,' 'the burden then moves to the opposing party, who must present significant probative evidence tending to support its claim or defense.'" Intel Corp. v. Hartford Accident Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987)). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex, 477 U.S. at 322-23.
The substantive law governing a claim determines whether a fact is material. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). All reasonable doubts as to the existence of a genuine issue of fact must be resolved against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). The court should view inferences drawn from the facts in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 630-31.
If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Id.; In re Agricultural Research and Tech. Group, 916 F.2d 528, 534 (9th Cir. 1990); California Architectural Bldg. Prod. Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987).
DISCUSSION
Plaintiffs bring four claims for relief: (1) a claim under the federal Fair Housing Act, 42 U.S.C. § 3604 (a), for familial status discrimination; (2) a claim under Oregon's Fair Housing Act, Oregon Revised Statute (O.R.S.) § 659.033, for familial status discrimination; (3) a claim under Oregon's Unlawful Trade Practices Act, O.R.S. 646.608; and (4) a negligence claim.
Defendant argues that the statute of limitations has expired on parts of plaintiffs' claims, that plaintiffs cannot maintain a negligence claim, and that plaintiffs' damages are not all proximately caused by defendant.
I. Statutes of Limitations
A. Federal Fair Housing Act Claim
Generally, a complaint alleging violations of the federal Fair Housing Act (FHA), must be commenced not later than two years after the occurrence or termination of an alleged discriminatory housing practice. 42 U.S.C. § 3613 (a)(1)(A). The computation of the two-year period does not include any time during which an administrative proceeding was pending with respect to a complaint or charge based upon such discriminatory housing practice. 42 U.S.C. § 3613 (a)(1)(B)
As indicated above, Sherwood contends that from "the winter of 1995 through the spring of 1999, [she] attempted no fewer than eight times to view and rent apartments from [defendant] that [defendant] advertised as available." Sherwood Affid. at ¶ 10; see also Compl. at ¶¶ 19-21, 31, 37 (alleging initial discrimination in spring 1996, another episode in winter 1996-1997, and again in April 1999).
The Complaint in this case was filed on March 10, 2000. Sherwood filed an administrative complaint on or about August 4, 1999. Thus, under 42 U.S.C. § 3613 (a)(1)(A) and (B), the two-year time limit reaches back to bar occurrences of discrimination against Sherwood under the FHA, occurring on or after August 4, 1997.
In support of this date, defendant attaches copies of the administrative complaint to the affidavit of defendant's former counsel. There appear to be two first pages, one dated August 19, 1999, (Exh. A at p. 3) and one dated August 4, 1999 (Exh. A at p. 4). Since defendant relies on the August 4, 1999 date, the Court will as well, even though the official Housing and Urban Development Complaint states that Sherwood's administrative complaint was filed August 19, 1999. Pltfs' Exh. E at p. 1.
FHCO appears to base its claims only on conduct occurring after October 9, 1997 (two years before its administrative complaint was filed), see Compl. at ¶¶ 50, 51, 52 (alleging injuries related to utilization of staff resources and investigative and litigation expenses). Thus, there is no issue as to the timeliness of FHCO's claims.
Plaintiffs rely on a continuing violation theory to challenge all of the discriminatory occurrences, even those occurring before August 4, 1997. The Supreme Court applied the continuing violation theory to a housing discrimination claim in Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81 (1982). There, the alleged acts of discrimination occurred between March and July 1978, but only the last act, occurring on July 13, 1978, was within the statutory limitations period. The Court held that a "'continuing violation' of the Fair Housing Act should be treated differently from one discrete act of discrimination." Id. at 380. The Court noted that statutes of limitations such as those contained in the FHA are "intended to keep stale claims out of the courts." Id. But, the Court continued, "[w]here the challenged violation is a continuing one, the staleness concern disappears." Id. Thus, the Court held that "where a plaintiff, pursuant to the [FHA], challenges not just one incident of conduct violative of the [FHA], but an unlawful practice that continues into the limitations period, the complaint is timely[.]"Id. at 380-81.
Ninth Circuit and other cases have made clear, however, that the assertion of one timely act does not automatically result in all earlier acts becoming actionable under a continuing violation theory. To successfully assert a continuing violation, a plaintiff must demonstrate that the untimely incidents are part of a pattern of discrimination and that the defendant continued the pattern into the relevant limitations period. Anderson v. Reno, 190 F.3d 930, 936 (9th Cir. 1999) To do this, a plaintiff may present evidence of a series of related discriminatory acts directed at the plaintiff by the defendant or its personnel. Id. The plaintiff must show that the "discriminatory acts are related closely enough to constitute a continuing violation." Green v. Los Angeles County Superintendent of Schs., 883 F.2d 1472, 1480-81 (9th Cir. 1989) (internal quotation omitted)
Here, it is undisputed that at least one of the acts occurred within the limitations period. Furthermore, accepting Sherwood's allegations as true for the purposes of this motion, the alleged acts are similar — each one is an alleged refusal to rent to Sherwood and her children because of their familial status. Additionally, I also assume, without deciding, that the acts directed at Sherwood are closely enough related in time to demonstrate a continuing violation. Nonetheless, as explained below, it is inappropriate to apply the continuing violation theory under the facts of this case.
At least three judges in this district, and at least two circuit courts, recognize that a plaintiff may not base a suit
"on conduct that occurred outside the statute of limitations unless it would be unreasonable to expect the plaintiff to sue before the statute ran on that conduct, as in a case in which the conduct could constitute, or be recognized, as actionable harassment only in light of events that occurred later within the period of the statute of limitations."Ryan v. Patterson Dental Supply, Inc., No. CV-98-1177-ST, 2000 WL 640859, at *12, Findings and Recommendation (D. Or. Feb. 28, 2000) (quoting Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 482 (3rd Cir. 1997)), adopted in relevant part by Judge Haggerty (D. Or. May 12, 2000); see also Berry v. Board of Supervisors of La. State Univ., 715 F.2d 971, 981 (5th Cir. 1983) (proper question in continuing violation analysis is "degree of permanence" which asks if "the act [has] the degree of permanence which should trigger [the plaintiff's] awareness of and duty to assert his or her rights, or which should indicate to the [plaintiff] that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?"); Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1166 (7th Cir. 1996) (continuing violation theory not appropriately applied even when a "long-continued series of harassing acts definitely are a series, a pattern, and not merely a set of discrete events," but when "it was evident long before the plaintiff finally sued that she was the victim of actionable harassment."); King v. Slater, Nos. CV-98-639-KI, CV-98-1292-KI, 1999 WL 978020, at *3 (D. Or. Oct. 26, 1999) (inappropriate to apply continuing violation theory where deposition testimony indicated that plaintiff was aware, before tenth rejection, that he was being discriminated against).
In Ryan the plaintiff brought a hostile environment sexual harassment claim. Judge Stewart concluded that the series of acts attributable to the individually named defendant clearly comprised a continuing violation claim. Ryan, 2000 WL 640859, at *12. But, she nonetheless refused to apply the continuing violation theory because the plaintiff was aware, before the commencement of the applicable limitations period, that she was a victim of sex discrimination. Id. at *14.
Judge Stewart carefully analyzed whether the Ninth Circuit would adopt the "Berry analysis." Id. at *12-14. The only published case she cited supports adoption of the analysis. Id. The unpublished cases are unclear. Id. Nonetheless, she applied the "permanence factor" in Ryan.Id. I agree with her reasoning and conclude that its application is appropriate here.
In the instant case, Sherwood concedes that she first contacted FHCO on October 21, 1996. to complain about defendant's alleged discriminatory practices. Defendant argues that this evidence shows that plaintiff did in fact recognize her potential claim at that time. Thus, defendant contends, because Sherwood was aware of the alleged discriminatory practices well before the limitations period began, she should not be able to rely on the continuing violation doctrine.
In response, plaintiffs argue that Sherwood did not pursue filing an action against defendant earlier because it would have had a deleterious effect on obtaining the needed housing. She chose to pursue housing options rather than file a complaint.
I reject this argument. The statute of limitations and the application of the continuing violation theory is not predicated on the exhaustion of other options or the deleterious effects of filing a complaint. Sherwood was fully aware that defendant's acts, assuming the truth of Sherwood's allegations, comprised discrimination as early as October 1996. Thus, I agree with defendant that under the careful analysis explained by Judge Stewart in Ryan, and following Judge King in King, the continuing violation theory does not apply here. See also Landis v. Multnomah County, No. CV-99-634-HA, 2000 WL 1132107, at *5.7 (D. Or. Jan. 19, 2000) Ccontinuing violation theory did not apply because plaintiff knew about the allegedly discriminatory conduct before the limitations period) Sherwood's claims for any allegedly discriminatory acts occurring before August 4, 1997, are untimely.
It is clear, however, that even if acts outside the limitations period are time barred and not actionable in and of themselves, "untimely claims serve as relevant background evidence to put the timely claims in context." Anderson, 190 F.3d at 936.
B. Oregon Fair Housing Act Claim
The Oregon Fair Housing Act (OFHA) carries a two-year statute of limitations. O.R.S. 659.033, 659.121(6). The limitations provision is almost identical to the FHA in that a complaint alleging violations of O.R.S. 659.033 may be filed not later than two years after the occurrence or the termination of an alleged discriminatory housing practice. O.R.S. 659.121(6) Additionally, any time during which an administrative proceeding regarding the alleged discriminatory housing practice was pending, is excluded. Id. As with the FHA claim, this limitations period excludes all acts alleged by Sherwood before August 4, 1997.
The parties debate whether the continuing violation theory is recognized by Oregon courts. Plaintiffs cite no Oregon cases in support of their argument, but contend that because the Oregon and federal housing discrimination acts are similar in that they have the same two-year statute of limitations, prohibit the same discriminatory conduct based on familial status, and provide the same remedial schemes, the continuing violation doctrine that is applicable to federal claims should also apply to state fair housing law.
I need not determine whether Oregon courts would adopt the continuing violation theory because even accepting the validity of plaintiffs' argument, for the reasons stated above, the continuing violation theory is not properly applied to Sherwood's claims when she recognized, before the limitations period, that defendant's acts were allegedly discriminatory.
C. Unfair Trade Practices Act Claim
Oregon's Unfair Trade Practices Act (UTPA), carries a one-year statute of limitations. O.R.S. 646.638(6). The time period begins with the "discovery of the unlawful method, act or practice." Id.
Plaintiffs make the same continuing violation argument here as in regard to the OFHA claim. Again, I reject the argument. Even if the continuing violation theory were adopted for UTPA claims, it would not apply here because plaintiff knew of the discrimination before the limitations period.
Unlike the other statutes of limitation, however, the UTPA contains no exclusion of any time during which an administrative complaint was pending. Thus, the limitations period for the UTPA claim is one year before the Complaint was filed on March 10, 2000. Any acts allegedly committed against Sherwood before March 10, 1999, are not actionable in a UTPA claim in this case.
D. Negligence Claim
Negligence claims in Oregon carry a two-year statute of limitations. O.R.S. 12.110(1). And, as with the UTPA claim, there is no exclusion for time when an administrative complaint is pending. Thus, the limitations period begins two years before the March 10, 2000 Complaint was filed, or March 10, 1998.
Plaintiffs argue that the negligence claim is based on defendant's intentional deceit as to the availability of housing and defendant's deceit as to her willingness to rent to families. Thus, plaintiffs contend, the limitations period does not begin until the discovery of the deceit under O.R.S. 12.110(1), which provides that in actions for fraud and deceit, the two-year limitations period begins with the discovery of the fraud and deceit. Based on this, plaintiffs argue, the statute of limitations did not begin to run until July 1999, when the FHCO testers confirmed plaintiff's suspicion of discrimination.
I reject this argument. Although the FHCO testers performed their tests in April-July 1999, plaintiff's complaint to the FHCO in October 1996 shows that she believed discrimination was occurring then. Any application of the discovery rule would result in her discovering the deceit at that time, not in July 1999. Thus, any allegedly discriminatory acts committed against Sherwood before March 10, 1998 are time barred.
E. Claims by Minor Children
While Sherwood's October 1996 knowledge of the alleged discriminatory acts preclude her from relying on the continuing violation theory, whether her knowledge also precludes the application of the continuing violation doctrine to the claims of her minor children is another question. Neither the parties nor the Court have found any cases examining this issue in the context of an FHA claim. Cases in other contexts, however, provide some guidance.
In Landreth v. United States, 850 F.2d 532 (9th Cir. 1988), a Federal Tort Claims Act case, the question presented was whether the two-year applicable statute of limitations should be tolled for a minor plaintiff, even though her parents possessed knowledge of her injuries and their cause, during the time before a guardian without a conflict of interest was appointed. Because the plaintiff's mother could have been contributorily negligent, the plaintiff argued that her parents had a conflict of interest and the time should be tolled until the appointment of a different guardian. Id. at 534.
The court rejected the argument. Relying on earlier cases, the court first held that "any knowledge [the plaintiff's] parents had of [the plaintiff's] injuries and the cause of her injuries is imputed to her.Id. The court continued: '[t]he fact of minority does not toll the statute. . . . Rather, the minor's parents have a legal duty to take action on the child's behalf.'" Id. Additionally, the court indicated that both parents had a duty to preserve the child's claim. Id.
In a case the next year, the Ninth Circuit adhered to its holding inLandreth. In Zavala v. United States, 876 F.2d 780 (9th Cir. 1998), the plaintiff brought a claim under the Federal Tort Claims Act for brain damage suffered at birth. The administrative tort claim was not filed until the plaintiff was four and one-half years old. Id. at 782. Because the plaintiff's mother died at birth and his father did not care for him, the plaintiff argued that the two-year statute of limitations should be tolled for the period before the plaintiff's grandmother was appointed his guardian ad litem. Again, the Ninth Circuit rejected the argument.
The court noted that "[w]hen the plaintiff is a minor, his parents' knowledge of the injuries is imputed to him." Id. The minor plaintiff, or his parents, must present their claim within two-years. Id. CitingLandreth, the court stated that "[p]arents must file a claim on behalf of an injured minor child, and this court will not second guess their decision not to do so." Id. The court concluded that the plaintiff had, "from the moment his cause of action accrued, a parent who had both the duty to bring a claim and the knowledge necessary to pursue it." Id. at 784.
Two other courts have reached similar holdings under a different federal statute. In Vogel v. Linde, 23 F.3d 78 (4th Cir. 1994), the minor plaintiff brought an action against a hospital and physician under the federal Emergency Medical Treatment and Active Labor Act (EMTALA). The statute carries a two-year limitations period. Id. at 80. The complaint was filed more than two-years after the date of the alleged violation. The plaintiff argued that the period should be tolled from the date of the alleged violation until her legal representative was appointed. The court rejected the argument. Id.
The court explained:
Exceptions to the running of a limitations period because of the would-be plaintiff's disability, though common, are nonetheless exceptions. The blackletter rule, recognized by the Supreme Court since at least 1993, is that a statute of limitations runs against all persons, even those under a disability, unless the statute expressly provides otherwise. . . . This rule is regularly applied to federal statutes that contain a limitations period but no exception for disability.Id. (citing Vance v. Vance, 108 U.S. 514, 521 (1883)) (footnote and other citation omitted).
In another EMTALA case, the District of Kansas rejected the minor plaintiff's tolling argument because a "statute of limitations runs against minors in the absence of an express statutory provision tolling the limitations period." Brewer v. Miami County Hosp., 862 F. Supp. 305, 308 (D. Kan. 1994). The court noted that equitable tolling is "not . . . used to toll a limitations period because of infancy or disability." Id.
Based on these cases, I conclude that because there is no express tolling provision in the FHA, the FHA's statute of limitations is not tolled by the fact of infancy. Additionally, based on the Ninth Circuit cases under the Federal Tort Claims Act, I conclude that it is proper to impute Sherwood's knowledge of the alleged discriminatory acts in October 1996, to her two minor children. Thus, any allegedly discriminatory acts directed at Sarah Johnson and Lars Johnson before August 9, 1999, may not form part of their FRA claim.
Any tolling or related questions regarding the statute of limitations applicable to the Oregon claims are governed by Oregon law. See Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) (federal court sitting in diversity must apply state law to the substantive issues before it);Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99 (1945) (statute of limitations is substantive; therefore, a federal court sitting in diversity looks to state law to determine whether a cause of action based upon state law has expired); Mangold v. California Public Utilities Comm'n, 67 F.3d 1470, 1478 (9th Cir. 1995) (Erie principles apply equally in the context of supplemental jurisdiction).
Plaintiffs argue that under O.R.S. 12.160, all state claims by both minor children are tolled for five years. The statute provides that
[i]f, at the time the cause of action accrues, any person entitled to bring an action mentioned in ORS 12.010 to 12.050, 12.070 to 12.250 and 12.276 is within the age of 18 years or insane, the time of such disability shall not be a part of the time limited for the commencement of the action; but the period within which the action shall be brought shall not be extended more than five years by any such disability nor shall it be extended in any case longer than one year after such disability ceases.
O.R.S. 12.160. By its terms, this tolling provision is limited in its application to those causes of action specifically delineated. Thus, if a plaintiff's cause of action is governed elsewhere, the tolling provision is inapplicable. See O.R.S. 12.010 ("Actions shall only be commenced within the periods prescribed in this chapter, after the cause of action shall have accrued, except where a different limitation is prescribed by statute.").
Only one of plaintiffs' claims is governed by one of the causes of action specified in O.R.S. 12.160. Because the two-year statute of limitations in O.R.S. 12.110 applies to plaintiffs' negligence claim, the tolling provision in O.R.S. 12.160 applies to this claim. Under the provision, assuming arguendo that Sherwood's October 1996 knowledge of the alleged discrimination is imputed to her minor children as of that time, and assuming that this constitutes the accrual of their cause of action, Sarah Johnson and Lars Johnson have five years from that October 1996 date to bring a negligence claim against defendant. Because the minor children were approximately nine and twelve years old in October 1996, the five-year provision applies to them. Thus, because of the tolling provision, it would be inappropriate, even imputing Sherwood's knowledge to her minor children, to bar them from basing their negligence claim on actions occurring before March 10, 1998.
I recognize that the precise issue here concerns whether Sherwood's knowledge in October 1996 prevents the application of the continuing violation theory and is not, strictly speaking, when the cause of action accrued. The issues are related, however, in that knowledge of the facts constituting the injury and the cause thereof constitutes accrual of the cause of action and the same knowledge of injury and its cause prevents application of the continuing violation theory. Thus, it is not inappropriate to discuss the issue, as to the application of the tolling provision to the claims by the minor children, as one of accrual of the cause of action.
Plaintiffs argue that all of the minor children's state claims, including their OFHA claims and their UTPA claims, are tolled under O.R.S. 12.160. I disagree.
Plaintiffs contend that the statute of limitations for the OFHA claim is determined by O.R.S. 12.010 and O.R.S. 659.121(6) and that the statute of limitations for the UTPA claim is determined by O.R.S. 12.010 and O.R.S. 646.638(6). As noted above, the tolling provision of O.R.S. 12.160 applies only to those causes of action governed by various statutes expressly listed in O.R.S. 12.160. One of the expressly listed statutes is O.R.S. 12.010. Thus, if plaintiffs' OFHA and UTPA claims are governed by O.R.S. 12.010, then O.R.S. 12.160 could apply to them.
Plaintiffs cite to O.R.S. 659.121(3) in their brief which appears to be in error. The correct provision is found at O.R.S. 659.121 (6).
No statutory provision in O.R.S. Chapter 12 specifically governs claims for housing discrimination or unfair trade practices. While it could be argued that other provisions in O.R.S. Chapter 12 might apply, see O.R.S. 12.080(2) (an action upon a liability created by statute); O.R.S. 12.110 ("any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter") O.R.S. 12.140 (actions for any cause not otherwise provided for), O.R.S. 12.010 trumps that argument with its express indication that O.R.S. Chapter 12 governs the commencement of a cause of action, "except where a different limitation is prescribed by statute." O.R.S. 12.010.
Here, both the OFHA and the UTPA carry their own "different" and express limitations periods. See O.R.S. 659.121(6) (OFHA), 646.638(6) (UTPA). Thus, under O.R.S. 12.010, these claims do not come within the provisions of O.R.S. Chapter 12 and the tolling provisions of O.R.S. 12.160 do not apply to them. See Wimber v. Timpe, 109 Or. App. 139, 144, 818 P.2d 954, 957 (1991) ("By its express terms, ORS 12.160 applies only to actions mentioned in ORS 12.010 to ORS 12.050 and ORS 12.070 to ORS 12.250. An action to set aside a decree of adoption under ORS 109.381 is not mentioned in those statutes. ORS 12.010 provides that, when a different limitation is prescribed by statute, ORS chapter 12 is inapplicable.") (footnote omitted). Accordingly, if Sherwood's knowledge of the alleged discriminatory acts as of October 1996 can be imputed to her minor children, the continuing violation theory may not be applied to allow the minor children to recover for acts occurring before March 10, 1999, on the UTPA claim, and August 4, 1997, on the OFHA claim.
While the law in Oregon is not completely settled, it appears that Oregon courts would conclude that knowledge by a parent is properly imputed to a minor child, but only after the appointment of a guardian ad litem. In Banda v. Danner, 87 Or. App. 69, 741 P.2d 514 (1987), aff'd by an equally divided court, 307 Or. 302, 766 P.2d 385 (1988), the Oregon Court of Appeals considered an argument regarding the accrual of a cause of action subject to the Oregon Tort Claims Act (OTCA). There, the plaintiff had been born with brain damage and, while his mother likely knew of both the injury and the cause soon after the plaintiff's birth, the tort claim notice was not timely sent and the civil action was not timely commenced. The court considered whether the mother's knowledge could be ascribed to the plaintiff. In discussing the issue, the court noted that it had "assumed in previous cases that a parent's knowledge is also the child's, but we have never so held[.]" Id. at 71, 741 P.2d at 516.
The court went on to hold that although a parent's knowledge could properly be imputed to a child, it could not be so imputed until the parent had been appointed as guardian ad litem. Id. at 74, 741 P.2d at 516. At the time of the appointment, the parent guardian gains legal ability to act in court on the child's behalf and the parent's knowledge is properly considered as the child's. Id. Therefore, the court held, the time for notice under O.R.S. 30.275 of the OTCA, did not begin running until then, assuming that the plaintiff guardian "at that time knew sufficient facts to initiate its running." Id.
Under Banda, Sherwood's knowledge should not be imputed to her minor children until and unless she is appointed their guardian ad litem. The record reveals no such appointment as yet in this case and therefore her knowledge cannot yet be imputed to her children. Banda, has been criticized by subsequent courts and in 1996, the Oregon Court of Appeals noted that "both the Supreme Court and this court have rendered subsequent decisions that leave that language [in Banda, holding that the two-year limitation in the Oregon Tort Claims Act is tolled in the case of claims brought by minors until the appointment of a guardian ad litem], without further force and effect." Cooksey v. Portland Public Sch. Dist. No. 1, 143 Or. App. 527, 531, 923 P.2d 1328, 1330 (1996).
Had Sherwood followed proper procedure and been appointed guardian ad litem for her children at the commencement of this action, or soon before, her knowledge would have been imputed to the minor children as of March 10, 2000, the date the case was filed, or just before that date. The children's claims would be timely under that scenario.
In Cooksey, the court rejected the plaintiff's reliance on Banda and concluded that her tort claim was untimely under O.R.S. 30.275(8) because it was filed more than two years after the events forming the basis of her tort claim regardless of the fact that a guardian ad litem was not appointed until well within the two-year statute of limitations.Id. at 534, 923 P.2d at 1332; see also Perez v. Bay Area Hosp., 315 Or. 474, 483, 846 P.2d 405, 409 (1993) (holding that the notice period under O.R.S. 30.275(2) is not tolled pending the appointment of a guardian ad litem); Mann v. Department of Transp., 122 Or. App. 628, 629, 856 P.2d 1055 (1993) (limitations period in O.R.S. 30.275(8) not tolled pending the appointment of a guardian ad litem).
Following these authorities, that portion of Banda addressing the tolling of OTCA time limits in O.R.S. 30.275, is no longer Oregon law. These subsequent cases repudiating that specific holding in Banda are limited, however, to the tolling issues arising under the OTCA. OTCA claims, which depend on waiver of sovereign immunity by statute, are often treated differently than other claims by Oregon courts.
Because the instant case does not involve a claim under the OTCA, the holding in Banda not related to the OTCA is the best indication of where Oregon courts stand regarding imputing a parent's knowledge to a child. Therefore, based on the Banda court's unrepudiated holding that a parent's knowledge is not imputed to a child until the parent's appointment as guardian ad litem, Sherwood's knowledge does not bar the minor children from relying on a continuing violation theory. The minor children may challenge all allegedly discriminatory acts against them under their OFHA and UTPA claims.
II. Negligence Claim
In addition to raising the statute of limitations argument against plaintiffs' negligence claim, defendant raises an additional argument against that claim. Defendant contends that plaintiffs cannot sustain the claim because they have failed to allege physical injury or demonstrate that the facts of this case fit into an exception allowing emotional distress damages without physical injury.
Oregon law generally prohibits an award of emotional distress damages in a negligence claim when there is no physical injury. See, e.g., Curtis v. MRI Imaging Servs. II, 148 Or. App. 607, 612, 941 P.2d 602, 605 (1997) (psychic distress not compensable unless accompanied by physical injury),aff'd, 327 Or. 9, 956 P.2d 960 (1998). Oregon courts have recognized, however, three exceptions to that rule:
First, where the defendant intended to inflict severe emotional distress. Second, where the defendant intended to do the painful act with knowledge that it will cause grave distress, when the defendant's position in relation to the plaintiff involves some responsibility aside from the tort itself. Third, where the defendant's conduct infringed on some legally protected interest apart from causing the claimed distress, even when that conduct was only negligent.Hammond v. Central Lane Communications Center, 312 Or. 17, 22-19 23, 816 P.2d 593, 596 (1991).
Here, only plaintiff Sarah Johnson asserts any type of physical injury. She seeks damages for a "decrease in her physical health because of substandard living conditions[.]" Compl. at ¶ 54; see also Compl. at ¶ 33 (alleging that Sarah Johnson, an asthmatic, suffered health problems caused by having to live in a moldy environment). Sherwood's damages are limited to those caused by emotional distress-type injuries and financial expenses related to moving and alleged increased medical expenses incurred as a result of the aggravation of Sarah Johnson's asthma. Id. at ¶ 53; Sherwood Affid. at ¶¶ 22-29. Lars Johnson's damages are limited to those caused by emotional distress-type injuries. Compl. at ¶ 55; Sherwood Affid. at ¶¶ 25-28. Thus, to sustain a negligence claim, Sherwood and Lars Johnson need to demonstrate an exception to the general rule prohibiting recovery for psychic injury absent physical harm.
At oral argument, plaintiffs argued that the law recognizes recovery for the physical manifestations of emotional distress and that there is evidence of such manifestations in this case. Although I invited plaintiffs to submit supplemental authority on this issue, none of the cases they provided support their legal theory. Rather, plaintiffs cited cases suggesting that the third Hammond exception applies here and thus, all of plaintiffs' emotional distress claims are viable.
Even assuming that Oregon law recognizes a claim for the physical manifestation of psychic injury, I see no evidence of such manifestation in the record. For example, there are no allegations by Sherwood or Lars Johnson of loss of sleep, weight loss, weight gain, headaches, or other common physical symptoms of stress. See Compl. at ¶ 53, 55; Sherwood Affid. at ¶¶ 22-29. Thus, Sherwood and Lars Johnson cannot sustain their negligence claim on a theory that they have shown physical manifestations of emotional distress.
As noted above, the third Hammond exception allows emotional distress damages where the defendant's conduct infringed on some legally protected interest apart from causing the claimed distress, even when that conduct was only negligent. In Curtis, the Oregon Court of Appeals explained that the term "legally protected interest," refers
to a sort of "duty" that is distinct from Fazzolari — like foreseeability. . . . The identification of such a distinct source of duty is the sine qua non of liability for emotional distress damages unaccompanied by physical injury. See Hammond, 312 Or. at 25, 816 P.2d 593 (rejecting liability for emotional distress damages where the plaintiff identified "no legal source of liability for her emotional injury other than its foreseeability").Curtis, 148 Or. App. at 617, 941 P.2d at 608; see also Stevens v. Fist Interstate Bank of Or., 167 Or. App. 280, 292, 999 P.2d 551, 557 (2000) (Wollheim, J. dissenting) (a "legally protected interest must arise 'independently of the ordinary tort elements of a negligence claim.'") (quoting Nearing v. Weaver, 295 Or. 702, 707, 670 P.2d 137 (1983)).
Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 734 P.2d 1326 (1987).
In a 1994 case, the Oregon Court of Appeals held that the landlord-tenant relationship is a "special relationship" such that the "foreseeability analysis articulated in Fazzolari" did not apply. Dikeman v. Carla Properties, Ltd., 127 Or. App. 53, 59, 871 P.2d 474, 479 (1994). Plaintiffs argue that given this special relationship, an independent legally protected interest arises and they may recover for psychic injuries without suffering physical harm. I disagree.
First, there is no logical extension of the landlord-tenant relationship recognized in Dikeman to the relationship between a landlord and a prospective tenant as is presented here. Second, while Dikeman recognized the special landlord-tenant relationship, it did not hold that such a relationship was sufficient to fall within the third Hammond exception. Dikeman is distinguishable because there, the plaintiff suffered physical injuries in a fall.
As explained recently in Stevens, in addition to finding a "legally protected interest," the interest must be "of sufficient importance as a matter of policy to merit protection from emotional impact." Stevens, 167 Or. App. at 292, 999 P.2d at 557 (Wollheim, J., dissenting) (internal quotation omitted). Even if a landlord-prospective tenant relationship were considered "special," invoking an independent legally protected interest, I conclude that it does not rise to the requisite level of sufficient importance to warrant, as a matter of policy, protection from emotional impact. Therefore, I grant summary judgment to defendant on Sherwood's and Lars Johnson's negligence claims. Because, as explained above, Sarah Johnson alleges physical injury, defendant's motion as to her claim is denied.
III. Damages — Causation
Finally, defendant argues that, as a matter of law, the damages claimed by Sherwood, Sarah Johnson, and Lars Johnson, were not caused by defendant's actions and defendant is entitled to summary judgment on most of damages claims.
Plaintiffs allege that because Sherwood "wanted her children's friendships and education to be stable," and because she believed housing within the district was possible, she "took desperate measures to keep her children enrolled in Riverdale schools." Compl. at ¶ 23. The measures are detailed in the Complaint but may be summarized here by noting that Sherwood frequently moved, stayed with friends, house-sat at various locations, and at one time, placed Sarah Johnson with a friend while she and Lars Johnson stayed elsewhere. She also contends that some of the housing was substandard. Plaintiffs allege that these "measures" caused substantial emotional distress.
Based on these allegations, defendant argues that whether framed in "proximate cause" or "foreseeability" language, the damages associated with Sherwood's, Sarah Johnson's, and Lars Johnson's nomadic lifestyle, choice of housing, decision to send Sarah Johnson to live with others, or the decision to live in substandard housing, are not recoverable because defendant did not proximately cause those damages or because defendant could not have foreseen such damages. Rather, defendant suggests, the asserted damages were incurred as a result of Sherwood's peculiar mission to have her children attend Riverdale schools and to keep them there at all costs.
It appears that the concept of proximate cause is applied in the three statutory claims (FHA, OFHA, UTPA) and that foreseeability is the appropriate question in the negligence claim. See Fazzolari, 303 Or. at 17, 734 P.2d at 1335-36 (liability for harm resulting from negligent conduct depends on whether the generalized type of harm was a reasonably foreseeable result of that conduct).
Generally, "[q]uestions of proximate causation are issues of fact which are properly left to the jury if reasonable persons could reach different conclusions." White v. Roger, 901 F.2d 1501, 1506 (9th Cir. 1990). In FHA cases, there must be a causal connection between the requested emotional distress damages and the defendant's conduct. See, e.g., Morgan v. Secretary of Housing and Urban Dev., 985 F.2d 1451, 1459-60 (10th Cir. 1993) (although emotional distress damages are available in FHA case for distress which exceeds the normal transient and trivial aggravation attendant to securing suitable housing, a causal connection must exist between the illegal action and the complainant's injuries); Gore v. Turner, 563 F.2d 159, 164 (5th Cir. 1977) (in FHA case, an award for emotional distress must be preceded by a finding of a sufficient causal connection between the defendant's illegal actions and the plaintiff's injury).
Although I found no cases on the counterpart damages provision in the OFHA, there is no reason to conclude that the issue of causation would be different from the causation standards applied in FHA cases. As to the UTPA claim, the statute requires that plaintiffs prove that the "ascertainable loss" was a result of defendant's violation of the UTPA. O.R.S. 646.638(1). This is akin to a traditional proximate cause analysis. In the negligence claim, the question is one of foreseeability rather than one of proximate cause, but the pertinent question is similar: could reasonable minds differ as the foreseeability of the alleged damages?
Based on the record before me at this time, I conclude that reasonable minds could differ on the foreseeability or the proximate cause of the alleged damages. As a result, summary judgment is not warranted on these damages claims, and is denied.
CONCLUSION
Defendant's motion for summary judgment (#10) is granted in part and denied in part.
IT IS SO ORDERED.