52 Trial Lawyer • Summer 2022 sented by Travis Eiva, Peter Janci, Stephen Crew and William Stewart. The plaintiff brought a negligence action as guardian ad litem for her minor son F, seeking damages from the defendant, West Linn School District (the district), for harm caused by a district teacher who sexually assaulted F in F’s home. The trial court granted summary judgment in favor of the district. On appeal, the plaintiff argued that the district owed a heightened duty of care to its students, including F, because of the educator/student relationship and that there was sufficient evidence from which a jury could find the sexual assault of F was foreseeable to the district. The Court of Appeals affirmed, concluding liability could not be based on the educator/student relationship because the teacher’s conduct in this case did not occur during school hours, on school grounds or during any schoolsponsored activity or other time in which F was within the district’s custodial control. The court also concluded the summary judgment record did not contain sufficient evidence that the risk that F would be sexually assaulted was reasonably foreseeable to the district. Although the summary judgment record established the district was aware the teacher had substance abuse issues; developed inappropriate relationships with students, including F, outside of school; and was physically affectionate with students in certain respects, the court held there was no evidence from which the district could have been aware the teacher posed a risk of sexual assault to district students. Chief Judge Lagesen concurred in part and dissented in part. Judge Lagesen would have held, with respect to certain specifications of negligence, the district’s motion for summary judgment did not put at issue the question of foreseeability; thus, the issue was not properly before the trial court or the Court of Appeals. But even if the issue had properly been raised, Judge Lagesen would have held that the record contained sufficient evidence from which a reasonable inference could be drawn that the district was aware the teacher was engaging in inappropriate conduct with students, including conduct characterized by the district’s own policies as grooming activities. Thus, according to Judge Lagesen, the teacher’s conduct in sexually assaulting F was reasonably foreseeable, and summary judgment was improper. Comparative fault under ORS 31.600 does not apply to uninhabitability claims brought under the Oregon Residential Landlord and Tenant Act. Thomas v. Dillon Family L.P. II, 319 Or App 430 (2022); Shorr, J. The plaintiff was represented by Wil Merkel. Cody Hoesly specializes in appeals, financial fraud and commercial cases. He contributes to OTLA Guardians at the Sustaining Member level. Hoesly is a partner with Larkins Vacura Kayser LLP, 121 SWMorrison St., Ste. 700, Portland, OR 97204. He can be reached at 503-2224424 or choesly@lvklaw.com. Lisa T. Hunt specializes in appeals and full-scale trial and motions support for plaintiff attorneys. Recent practice areas include class actions, Oregon’s wage and hour law, product and premises liability, personal and business injury, and UIM. She can be reached at the Law Office of Lisa T. Hunt, LLC, 503-515-8501 or lthunt@lthuntlaw.com. Nadia Dahab specializes in appeals, civil rights, and general civil and class action litigation. She contributes to OTLA Guardians at the Guardians Club level. Dahab is a shareholder at Sugerman Dahab, 707 SWWashington St., Ste. 600, Portland, OR 97205. She can be reached at nadia@sugermandahab.com or 503228-6474. Sheets Continued from p 51
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