Gregg Martin Jensen, a teacher at Liberty High School in Hillsboro, Oregon, was charged on May 5, 2014, with using a child in display of sexually explicit conduct, and second degree sex abuse. Jensen was already facing charges of sexual abuse and encouraging child sex abuse.
The question of civil liability arises whenever a predator emerges from an institution which has been entrusted with the welfare and responsibility of others. Here, the responsibility of the school district and school officials will depend upon the specific circumstances.
We have seen horrific sex abuse scandals involving such trusted institutions as the Boy Scouts of America, the Catholic Church, and Penn State University. In all these cases, high officials were shown to have concealed evidence of the sexual abuse of children. In such cases, the liability of the institutions is clear.
In Oregon, the appeals courts have created a second source of potential liability for victims. If the criminal conduct of the predator arises out of acts which are within the scope of the predator’s employment, or if acts within the scope of employment result in the sexual abuse, then the institution may be found liable even in the absence of institutional negligence. So, for instance, in Royshekka Herring v. AMR, a case that our firm, Kafoury & McDougal, of Portland, Oregon, handled, two judges ruled that liability could be based on the fact that an ambulance attendant, Lannie Haszard, relied upon trust that those suffering from accident or injury extended to him because of his status, and that his role also allowed him the opportunity to place his hands on female patients in a manner that would not be extended to a stranger. Because of the position of trust that he held and the intimacy of the contact he was expected to have with female patients, the judges ruled that a jury could properly find that his conduct was within the scope of his employment, so as to subject AMR to liability for his actions.
In Ms. Herring’s case, the evidence of negligence against AMR was so strong that our firm chose not to submit the scope of employment issue to the jury, and the jury found negligence, resulting in an award of $3.25 million.
In Gmeinder and Vance v. MCMC, jurors found liability against the hospital for the conduct of an anesthesiologist, Dr. Frederick Field, who sexually abused women during surgery. Again, the court ruled that the access to the women allowed by the anesthesiologist’s role supported submitting the case to the jury, which found the hospital liable not only for negligence, but also found the doctor’s conduct to be sufficiently linked to his status that liability of the hospital was supported independent of the negligence claim.
Our firm presently represents six women who claim they were sexually abused at Emanuel Hospital by nurse Jeffrey McAllister. As in earlier cases, there is considerable evidence of negligence on the part of hospital officials, and we have claimed an additional basis of liability, arguing that the nurse’s sexually abusive conduct arose out of acts that were within the scope of his employment.