Skille v. Martinez

Under ORS 30.275(2)(b), the 180-day notice requirement begins to run when a plaintiff knew or should have known of the tortious nature of the conduct. Whether a plaintiff knew or should have known is a question of fact for the jury to determine how a reasonable person in the circumstances of the plaintiff would have acted in the same or similar situation. Doe v. Lake Oswego School District, 353 Or 321, 334-35 (2013).

Skille appealed the trial court’s grant of the State’s motion to dismiss under ORCP 21 A(8). Skille assigned error to the trial court’s dismissal on the grounds that she knew or should have known of the tortious nature of Martinez’s conduct when it was happening. On appeal, Skille argued the notice requirement (ORS 30.275(2)(b)) began to run in May 2014 when she learned of of Martinez’s pending prosecution for sexually abusing other patients, and then realized that Martinez used his custodial position to exploit her mental vulnerability to develop a sexual relationship. Skille further argued that when she “knew or should have known” of the tortious conduct was a question for the jury. In response, the State argued that the notice requirement began to run in May 2013, after the last sexual contact, because Skille failed to allege a sufficient mental defect made her vulnerable to “grooming” and incapable of understanding the “offensive nature of the sexual contact” at the time it occurred. A plaintiff “discovers” an injury when she knew or should have known of harm, causation, and tortious conduct. Gaston v. Parsons, 318 Or 247, 255-56 (1994). Whether a plaintiff knew or should have known is a question of fact for the jury to determine how a reasonable person in the circumstances of the plaintiff would have acted in the same or similar situation. Doe v. Lake Oswego School District, 353 Or 321, 334-35 (2013). The Court of Appeals held that the trial court erred in granting State’s motion to dismiss because Skille alleged facts sufficient to permit a reasonable jury to conclude that she first knew of the tortious nature of the conduct in May 2014. Reversed and remanded.