The boss man is under attack in Salem again. But this
time it's not those pro-labor Democrats in the Capitol
causing employers grief; it's the guys (and gal) in the
long robes.
Last month the Oregon Supreme Court handed down two
opinions that could make it easier for people to sue
employers for their workers' bad acts--even when the
employers didn't do anything wrong. The decisions put
Oregon bosses on the hook more than employers anywhere
else in the country. The rulings also prompted a quick
response in the state Legislature that could undo the
decisions.
The legal battle began several years ago, when Portland
lawyer Kelly Clark was hired, in separate cases, by
two men who claimed that they had been victims of childhood
sexual abuse. One man claimed he was abused by Melvin
Bucher, a former Tigard priest. The other said he was
abused by John Swensen, a volunteer Boy Scout leader
from Portland. For Clark, filing civil suits against
alleged abusers was a fairly routine matter. It's well
established that child molesters can be held financially
responsible for their conduct.
But Clark, a former Republican state representative,
wanted to broaden his cases--and his chances of winning
bigger judgments for his clients. He added the Archdiocese
of Portland and the Cascade Pacific Council of the Boy
Scouts as defendants in the two lawsuits, arguing that
they should also be held responsible for the men's conduct.
Clark's forays into the land of deep pockets initially
seemed a lost cause. The cases against the Scouts and
the archdiocese were thrown out at the trial-court level.
Clark's problem? Traditionally, employers have been
held liable for the conduct of workers only when the
employer has been negligent in hiring or retaining them
or when the wrongdoing occurred within the "course and
scope" of the employees' job duties. Clark had no proof
of the former and faced an uphill battle in trying to
prove that Swensen's and Bucher's job requirements somehow
facilitated the alleged abuse.
Clark took the cases to the state Court of Appeals,
where he was shut out again. Finally, he appealed the
decisions to the state Supreme Court. "What we argued
was the abuse didn't happen between strangers," he said.
"It wouldn't have happened between strangers. It happened
because these guys had spent two years cultivating relationships
with these kids." In other words, the priest and the
Scout leader allegedly used their positions of trust--which
they gained through their jobs--to "groom" the boys
for abuse.
The Supreme Court bought it. On April 8, the justices
reversed the lower courts' decisions and sent the cases
back to Circuit Court for trial. (The high court did
not rule on the strength of the plaintiffs' claims,
only on whether they had a legitimate issue for a jury
to decide.) The decision pushes the law further than
it's been pushed anywhere else in the country, says
David Slader, a local lawyer who specializes in sex-abuse
cases and who filed a "friend of the court" brief bolstering
Clark's argument.
Local employers now worry that the decision will bring
additional lawsuits and raise insurance costs. "The
general principle will have application outside the
sexual-abuse situation," argues employment lawyer Paula
Barran.
Lawyer Mary Mertens James, who represents employers,
thinks the decision tipped the scales too far against
employers. "That's not to say it's never the employer's
fault," she says, but employers shouldn't be held financially
liable simply because they have deeper pockets than
their employees.
Tom Christ, the Scouts' lawyer, can't see why his client
is liable. "They're not contending the Boy Scouts did
anything wrong in hiring Mr. Swensen or monitoring his
behavior," Christ says. "They're simply saying Swensen
did it [an allegation the Scouts dispute]; you have
to pay for it. I think that is an unprecedented expansion
of liability for employers."
State Rep. Max Williams tends to agree: "The two cases
are very tragic. But they created a situation whereby,
regardless of how much training and procedures and all
these things that these organizations put in place,
they're going to be liable." Last week, the Tigard Republican
quickly put together House Bill 2985, which he says
would essentially undo the high court's rulings in regard
to future cases.
Clark says the bill goes too far and eliminates too
much of an employer's liability. He cites a classic
example, that of a bouncer who loses his temper and
roughs up a rowdy patron he is trying to remove from
a bar. For years, the law in Oregon and other states
held an employer liable for the patron's injuries, because
the bouncer was essentially doing the boss's bidding
in removing the patron. Clark believes HB 2985 would
eliminate that liability.
The bill was discussed at a committee hearing last
week, but no action was taken. "I'm unresolved as to
how it should work out," Williams says, "but I thought
it was a significant enough development in the law that
it was important we have a conversation about it."
Clark agrees that the rulings were a significant development,
and he thinks they should stand. "In the past, too often
the institutions of trust were able to shield themselves
by claiming that they did not know the abuse occurred,"
he says. "This decision means it is now their business
to know."
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Willamette Week | originally
published May 5, 1999
