Johnson v. State Board of Higher Education

Under the Oregon Tort Claims Act (OTCA), the state is not obligated to defend a public employee against tort claims if, after investigation, the state determines that alleged tort arises from an incident outside of the course and scope of employment and the employee does not raise a question of fact challenging the state's determination.

This appeal arises out of tort litigation between Plaintiff Johnson and Defendants Davis, the State Board of Higher Education ("the Board"), and Eastern Oregon University ("EOU"). In the underlying case, Johnson brought claims against all three Defendants, alleging that Davis had raped her at a conference in Atlanta, Georgia, and EOU and the Board had failed to instigate disciplinary action until a month after notice of the rape, and during the pendency Johnson and Davis had been required to attend meetings in the same room. Both Johnson and Davis attended the conference as employees of EOU, and, after a night of heavy drinking, Davis had sex with Johnson while she was fully inebriated. Johnson brought claims alleging that Davis had raped her, and Davis responded that the intercourse had been consensual. Davis sought assistance in his defense, asserting that, as a public employee acting within the scope of employment while at the conference, the attorney general's office was obligated to defend him pursuant to the Oregon Tort Claims Act (OTCA). After investigation, the attorney general's office determined that, pursuant to ORS 30.285(3), it was not obligated to defend Davis, because Davis was not acting within the course and scope of employment when having sex with Johnson, and no duty of employment with EOU required Davis to have sex with Johnson. Davis cross-appealed this finding, arguing that under ORS 30.285(1), any facts supporting a finding that Davis was acting within his employment at the time of the rape triggered the State's obligation to defend him. Echoing similar reasoning as the attorney general's office, the Court held that the State had no duty to defend Davis because all of the tort claims arose out of the single incident of rape, and: (1) Davis did not offer any material facts disputing the attorney general's finding; (2) simply because both Davis and Johnson attended the conference does not necessarily mean that all actions at the conference occurred within the course and scope of employment; (3) no official duty existed requiring Davis to have sex with Johnson; and (4) public policy would not be served by obligating the State to defend a public employee against rape allegations by another public employee. Affirmed.