23 Trial Lawyer • Summer 2022 See Classroom Violence p 24 and sexual violence in the workplace. At the end of the day, I found myself representing 12 individuals against various school districts. The legal conundrum Before we filed the original Moore complaint, I sat down with a brain trust of employment and workers’ compensation attorneys to figure out the potential claims we could assert. Say what you want about the workers’ compensation system, but it’s a reality we had to face where the physical injuries were intertwined with our damages. I wanted to track down not only the case law (of which there is very little across the country), but also anyone who had practical experience in this area. I went down the rabbit hole and found myself part of a small group of four attorneys in the northwest handling these types of cases, including an attorney out of Vancouver, Washington. I reviewed their complaints, although they were using federal and Washington state laws. I was using Oregon law, and in turn, sent them my idea under common law battery. The concept of in loco parentis was one I hadn’t thought about in over 15 years — not since it was the answer to a multiple-choice question on the bar exam in New York. But it struck me that if the school could be held liable for things like broken windshields from a ball hit by a student during recess, then why would they not also be responsible for the repeated physical violence by a student? Violence they repeatedly failed to address? I also found a similar case where the Oregon Court of Appeals held that by placing a known violent person under the care of the plaintiffs in a mental hospital, where the supervisor was warned that violence could and would occur, the mental hospital had sufficient control over the violent person to be liable for the violent person’s intentional acts against the plaintiffs. Olsen v. Deschutes Cty., 204 Or App 7, 24, 127 P3d 655, 665 (2006). (Spoiler alert. This case is currently at the Court of Appeals, and we are awaiting a ruling on this and four other causes of action that were dismissed in the lower court.) We also included a claim for hostile work environment. Based on the sexualized nature of some of the behavior, I argued the discrimination was based on sex, as some of the violent acts involved intimate body parts. As a side note, it’s amazing to me how many defense lawyers conflate a hostile work environment based on sex with sexual harassment. Many times, in many types of cases, the defendants argue it can’t be a hostile work environment based on sex because there were no overtly sexual acts or no quid pro quo. In my case, the defendants argued the children weren’t motivated by sexual desire so it couldn’t be a hostile work environment based on sex. I pointed out that sexual desire is not a requirement in a hostile work environment case — it’s not even an element in a standard sexual harassment case. Finally, each of these educators was also repeatedly blowing the whistle on unmet and falsified Individualized Education Plans (IEPs). Through my review of emails, reports and witness interviews, it seemed that as soon as the educator mentioned IEPs were not being met due to lack of staffing or funding, any support they had been receiving from the districts stopped. Either that, or where support was promised, it never materialized. Full court press After my tort claim notices went unanswered by PPS, I filed the first suit. This was eventually amended to include a total of seven plaintiffs, with Demma having a separate suit as a teacher. Defendants immediately moved to dismiss almost every count. Lengthy briefing and
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