7 Trial Lawyer • Winter 2023 See Accountability p 8 term care facilities from the statute were proposed and considered by the Legislature. Those exclusions were rejected, and the version of SB 943 passed unanimously by both legislative branches did not exempt the “owners, employees, and agents” of long-term care facilities, but only the facilities themselves. This becomes very important in how to use this statute to hold abusers and their enablers accountable. Since its 1995 enactment, the Legislature has not limited or narrowed the scope of ORS 124.100 et seq. in any way. Rather, in the ensuing regular sessions, it has been continuously expanded — from categories of persons protected by the law, persons with standing to bring statutory claims, to the available remedies. By the amendments it has passed, the Legislature has left no doubt that ORS 124.100 et seq. is intended to cast a wide net of protection to elderly and vulnerable Oregonians. How do we use it? The statute itself is quite flexible. ORS 124.100(2) provides: “A vulnerable person who suffers injury, damage or death by reason of physical abuse or financial abuse may bring an action against any person who has caused the physical or financial abuse or who has permitted another person to engage in physical or financial abuse.” Who are the possible parties? The category of potential plaintiffs is quite large. It includes everyone 65 years of age or older; anyone unable to manage their financial resources effectively; anyone whose “ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirements for the person’s physical health or safety;” and anyone “with a disability who is susceptible to force, threat, duress, coercion, persuasion or physical or emotional injury because of the pe r son’s phys i ca l or ment a l impairment.” While I am hopeful this statute will someday also encompass all minors, this is a very good start. Plaintiffs can be helped to bring their claims by a wide variety of people: themselves, a guardian, conservator or attorney-in-fact, the personal representative for the estate, even a trustee for a trust on behalf of the trustor or the spouse of the trustor. There are two categories of potential defendants here: those who “caused” the abuse or those who “permitted the abuse.” In my experience, claims against a person who permitted abuse are far more likely simply because those who physically abuse people rarely have sufficient assets to cover the damages caused, and getting insurance coverage (if a policy even exists) in the face of a criminal conviction over the acts or claims that the acts qualify under the criminal statute is a high-wire act. The Oregon Supreme Court just addressed the question of defendants who permitted abuse of a vulnerable person: “In this case, plaintiff alleges that defendants are liable under Oregon’s Vulnerable Person Act because they permitted another person — Mendoza — to engage in physical abuse of plaintiff. There is no dispute that the legislature has created a statutory private right of action for a vulnerable person injured under those circumstances.” EJT v. Jefferson County, 370 Or 215, 220 (2022). Importantly, that case held that claims under the Elder Abuse Statute can be brought against a public body when an officer, employee or agent of the public body committed the tort while acting within the scope of the person’s employment or duties. Id. at 224. To make a claim for permitting the abuse, the plaintiff must not only prove the abuse, but must also prove the permitting defendant knowingly acted or failed to act under circumstances in
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