S054071, Opinion — T. R. v. Boy Scouts of America

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Argued and submitted June 19, 2007, decision of Court of Appeals reversed, and
case remanded to Court of Appeals for further proceedings March 13, 2008

T. R.,
Petitioner on Review,
v.

THE BOY SCOUTS OF AMERICA,
a congressionally chartered corporation,
authorized to do business in Oregon;
Cascade Pacific Council,
Boy Scouts of America,
an Oregon non-profit corporation;
and James Donald Tannehill,
Defendants,
and
CITY OF THE DALLES,
a political subdivision of the State of Oregon,
Respondent on Review.
(CC 0206-05750; CA A125742; SC S054071)
181 P3d 758

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CJS, Limitations of Actions § 301.

# En Banc

On review from the Court of Appeals .*

Kelly Clark, O'Donnell & Clark, LLP, Portland, argued
the cause for petitioner on review. With him on the briefs
were Kristian Roggendorf and Jonathan Clark.

Robert E. Franz, Jr., Law Offices of Robert E. Franz, Jr.,
Springfield, argued the case for respondent on review. With
him on the briefs was Jason M. Montgomery.

\* Appeal from Multnomah County Circuit Court, Alicia Fuchs, Judge. 205 Or
App 135, 133 P3d 353 (2006).

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Christina M. Hutchins, Assistant Attorney General,
Salem, submitted a brief on behalf of amicus curiae State of
Oregon.

WALTERS, J.

The decision of the Court of Appeals is reversed, and the
case is remanded to the Court of Appeals for further
proceedings.

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## WALTERS, J.

Under 42 USC section 1983, plaintiff brought a
claim against defendant City of The Dalles1 (city). Plaintiff
asserted that the city's deliberate indifference to his right
under the Fourteenth Amendment to the United States
Constitution to be free from sexual abuse by a governmental
actor constituted a city policy that caused him to be subjected
to sexual abuse by a city police officer. The question before us
is whether there was evidence from which a reasonable jury
could have found, as the jury in this case did, that plaintiff
timely filed his section 1983 claim. The city contends that
plaintiff's section 1983 claim against the city necessarily
accrued in 1996, when the officer, Sergeant James Tannehill,
committed the acts of sexual abuse, and that plaintiff did not
file his claim within the requisite time thereafter. Plaintiff
contends that his section 1983 claim against the city did not
accrue until he discovered or should have discovered that the
city had a role in causing his injury, that that date was a
question of fact for the jury, and that a reasonable jury could
have found that plaintiff reasonably did not discover the
city's role in 1996.

The trial court agreed with plaintiff that the city's
statute of limitations defense required resolution of a ques-
tion of fact and denied the city's motion for a directed verdict.
The Court of Appeals agreed with the city that plaintiff's
claim necessarily accrued when Tannehill committed the
acts of abuse, concluded that the trial court erred in denying
the city's motion, and reversed the judgment against the city.
T. R. v. Boy Scouts of America, 205 Or App 135, 133 P3d 353
(2006). We allowed plaintiff's petition for review and now
reverse the decision of the Court of Appeals and remand the
case to that court for further proceedings.

To analyze the opposing contentions, we begin with
the facts established at trial, viewing them in the light most
favorable to plaintiff. Boothby v. D.R. Johnson Lumber Co.,

1 Plaintiff also brought claims against the Boy Scouts of America, Cascade
Pacific Council, and James Donald Tannehill. Before trial, the court dismissed
plaintiff's claims against the Boy Scouts and Cascade Pacific Council. At trial,
plaintiff obtained a verdict against Tannehill. The court entered judgment against
Tannehill and he did not appeal from the judgment entered against him.

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341 Or 35, 38, 137 P3d 699 (2006). We set forth in some detail
the facts upon which plaintiff relied to establish the city's role
in causing the harm he suffered, because it is that role that
plaintiff asserts he reasonably did not discover until after
1996.

The city police department created and operated an
Explorer Scout program. That program was a unit or post of
the Cascade Pacific Council, which is a chartered organiza-
tion of the Boy Scouts of America. The purpose of the city's
Explorer Scout program was to introduce teens to law
enforcement by educating them about and involving them in
police operations. The Boy Scouts of America and the
Cascade Pacific Council (together referred to as the Boy
Scouts) devised and disseminated policies and procedures to
protect participants in their programs from exploitation and
sexual abuse. Components of those policies and procedures
included the training and education of adults and youth in
recognizing, resisting, and reporting sexual abuse. One of the
primary Boy Scout mandates is that its programs set up over-
sight committees to ensure their proper management and
supervision.

The Boy Scouts advised the city of its policies and
procedures and their importance in preventing child sexual
abuse, but the city did not implement or follow them. For
instance, the Boy Scouts required that any Explorer program
that sent participants to a regional or national conference
conduct extensive youth protection training. The city sent
participants to such a conference, but did not conduct youth
protection training. The city did not caution its officers or
Explorers against the dangers of sexual abuse or teach them
how to recognize or report sexual abuse. Without training
him for the position, the city delegated authority to run the
Explorer program to Tannehill, the officer who sexually
abused plaintiff. Although the city created an oversight com-
mittee "on paper," in reality, as a city officer admitted, it did
not exist. The city included a prohibition on fraternization
between officers and Explorers in its Explorer Manual, but
did not otherwise instruct Tannehill or other officers that
they were not to socialize with Explorers outside of author-
ized program activities. Moreover, when city officials learned

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that its officers were engaging in misconduct, such as regu-
larly spending time alone with Explorers and serving them
alcohol, the city tolerated and did not discourage the officers'
violations. In one instance, when the city learned that an offi-
cer was "having an affair" with an Explorer, the department
delayed and created impediments to a fair and full investi-
gation and, thereafter, continued to operate the program,
unchanged, without protection or oversight.

Plaintiff was 16 years old and living in foster care
when Tannehill approached him at a gym, commented on his
physique, and suggested that he enroll in the Explorer pro-
gram. Plaintiff was flattered by the attention. The program
offered him a chance to pursue his dream of becoming a police
officer and, as plaintiff testified, "It was the most [he'd] ever
been needed in [his] life." Shortly after joining the program,
Tannehill began spending time alone with plaintiff, on and
off duty, during and outside of regular Explorer activities, at
Tannehill's home, at the gym, and in Tannehill's car.
Tannehill regularly served plaintiff alcohol and made sexual
comments to him. After a period of time, Tannehill began
touching plaintiff inappropriately, and, ultimately, sexually
molested him. Plaintiff was confused about whether what
was happening to him was normal. He asked two other city
police officers about Tannehill's serving him alcohol and
whether Tannehill had an interest in boys. One just laughed,
the other told him he didn't want to talk about it. When plain-
tiff tried to distance himself from Tannehill, Tannehill
became angry and used threats and intimidation to coerce
continued contact. As soon as he could, plaintiff took an early
high school graduation and joined the army.

Plaintiff was 22 years old and working in Washington
state when, in October 2001, his grandmother read him a
newspaper article that reported that the Oregon State Police
had arrested an officer from The Dalles (not Tannehill) on
charges of serving alcohol to a minor. The newspaper article
included a number to call to provide information. Plaintiff
responded, and in answers he gave during in-person and
phone interviews by the state police over the next few weeks,
disclosed Tannehill's actions. Within the month, plaintiff
attended grand jury proceedings concerning Tannehill and

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found that many city officers were also present to testify.
Based on statements those officers made and questions the
grand jury asked, plaintiff suspected for the first time that
department members, and perhaps even command staff, may
have permitted the sexual abuse that Tannehill had commit-
ted and failed to protect Explorers, including himself, against
such abuse. Plaintiff filed his section 1983 claim against the
city on July 7, 2003, within two years of those October 2001
events.

At trial, the city moved for a directed verdict, assert-
ing, as one basis for its motion, that the uncontroverted evi-
dence established that plaintiff's section 1983 claim was
barred by the statute of limitations. The city argued that the
two-year general personal injury limitations period found in
ORS 12.110(1)2 applied to plaintiff's section 1983 claim, and
that because plaintiff had not commenced his action against
the city within the requisite time after Tannehill's acts,3 his
claim was barred. Plaintiff agreed that ORS 12.110(1) stated
the applicable limitations period, but contended that he
reasonably had not discovered the facts that gave rise to his
section 1983 claim against the city at the time that Tannehill
committed the acts of abuse, and that the date on which his
claim against the city accrued was a question of fact for the

2 ORS 12.110(1) provides:

"An action for assault, battery, false imprisonment, or for any injury to the
person or rights of another, not arising on contract, and not especially enumer-
ated in this chapter, shall be commenced within two years; provided, that in an
action at law based upon fraud or deceit, the limitation shall be deemed to com-
mence only from the discovery of the fraud or deceit."

3 Because plaintiff was a minor, his minority was not counted in computing the
two-year limitations period set forth in ORS 12.110(1). During the relevant time
period, ORS 12.160 (1995) provided:

"If, at the time the cause of action accrues, any person entitled to bring an
action mentioned in ORS 12.010 to 12.050, 12.070 to 12.250 and 12.276 is:

"(1) Within the age of 18 years,

"(2) Insane, or

"(3) Imprisoned on a criminal charge, or in execution under the sentence
of a court for a term less than the person's natural life, the time of such dis-
ability shall not be a part of the time limited for the commencement of the
action; but the period within which the action shall be brought shall not be
extended more than five years by any such disability, nor shall it be extended
in any case longer than one year after such disability ceases."

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jury. The trial court agreed, denied the city's motion, and
instructed the jury that, for the city to prevail on its statute of
limitations affirmative defense, it was required to prove that,
before July 7, 2001, "plaintiff either knew or, in the exercise
of reasonable care, should have known facts which would
make a reasonable person aware of the substantial possibil-
ity that the City of the Dalles caused the plaintiff some
harm." The jury returned a verdict against the city and made
a special finding that "plaintiff discover[ed] that he had a
claim against the City of the Dalles" in October 2001.

In the Court of Appeals, the city assigned error to the
trial court's denial of its motion for a directed verdict on stat-
ute of limitations grounds. The Court of Appeals agreed with
the city as to that assignment of error and reversed the judg-
ment against the city. Applying a "discovery" accrual rule,
the Court of Appeals held that plaintiff's section 1983 claim
against the city accrued, as a matter of law, in 1996, when
plaintiff knew that he was injured and that Tannehill was
the physical cause of his injury. The Court of Appeals rea-
soned that plaintiff's knowledge of his injury and its physical
cause triggered a duty to inquire further into the city's role in
causing that injury "by 'seeking advice in the medical and
legal community[,]'" and therefore commenced the running
of the statute oflimitations. T. R., 205 Or App at 143 (quoting
United States v. Kubrick, 444 US 111, 123, 100 S Ct 352, 62
L Ed 2d 259 (1979)). Because plaintiff concededly did not
bring his action within the required time after Tannehill's
1996 actions, the Court of Appeals ruled that the trial court
erred in denying the city's motion for a directed verdict on
statute of limitations grounds. The Court of Appeals did not
reach the city's other assignments of error. We allowed plain-
tiff's petition for review.

The Court of Appeals assumed, and the city agrees,
that the appropriate accrual rule is a discovery rule. The
issue that this case presents is whether the trial court prop-
erly applied that rule. If the only conclusion a reasonable jury
could have reached was that plaintiff should have discovered
that he had a potential section 1983 claim against the city in
1996, when Tannehill committed the acts of abuse, the trial

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court erred in denying the city's motion for a directed ver-
dict.4 If, however, a reasonable jury could also have reached
the conclusion that plaintiff reasonably did not discover the
city's role in 1996, the trial court correctly denied the city's
motion.

We begin our analysis with an explanation of the
facts that give rise, generally, to a section 1983 claim against
a municipality. A municipality can be held responsible for a
violation of a citizen's constitutional rights under section
1983 when, and only when, it has a policy, custom, or usage
that violates those rights. Monell v. New York City Dept. of
Social Services, 436 US 658, 690-91, 694, 98 S Ct 2018, 56
L Ed 2d 611 (1978). A city is not liable under section 1983
merely because it "employs a tortfeasor." Id. at 691. In other
words, respondeat superior liability does not apply in section
1983 actions. Rather, the municipality itself must be the
actor, and its own actions must violate the citizen's constitu-
tional rights. A plaintiff must prove that the municipality has
adopted a policy or custom, and that the "execution of a gov-
ernment's policy or custom, whether made by its lawmakers
or by those whose edicts or acts may fairly be said to repre-
sent official policy," caused the constitutional violation. Id. at
694.

That policy need not be written in order to be
"official":

"[A]lthough the touchstone of the § 1983 action against a
government body is an allegation that official policy is
responsible for a deprivation of rights protected by the
Constitution, local governments * * * may be sued for
constitutional deprivations visited pursuant to govern-
mental 'custom' even though such a custom has not received
formal approval through the body's official decisionmaking
channels. As Mr. Justice Harlan, writing for the Court, said
in Adickes v. S.H. Kress & Co., [398 US 144, 167-68, 90 S Ct
1598, 26 L Ed 2d 142 (1970)]: 'Congress included customs
and usages [in § 1983] because of the persistent and wide-
spread discriminatory practices of state officials
Although not authorized by written law, such practices of

4 It is important to note that the city does not argue here, and did not argue
below, that there was some date between 1996 and 2001 when the statute of limi-
tations began to run.

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state officials could well be so permanent and well settled
as to constitute a "custom or usage" with the force of law.'"

Id. at 690-91. Furthermore, a municipality's failure to act can
constitute an official policy that gives rise to liability if that
failure evidences a " 'deliberate indifference' to the rights of
its inhabitants." Canton v. Harris, 489 US 378, 388-89, 109
S Ct 1197, 103 L Ed 2d 412 (1989); see also Board of Comm'rs
of Bryan Cty. v. Brown, 520 US 397, 407, 117 S Ct 1382, 137
L Ed 2d 626 (1997) (citing Canton).

In this case, plaintiff alleged, and was required to
prove, that he had a constitutional right under the Four-
teenth Amendment to the United States Constitution to be
free from sexual abuse by a governmental actor, and that the
city's deliberate or conscious disregard for that right consti-
tuted a city policy that caused him to be subjected to such
abuse. See Monell, 436 US at 691-92 (municipality's official
policy or custom must cause constitutional violation to render
it liable under section 1983); Canton, 489 US at 388-89 (delib-
erate indifference to rights of inhabitants may constitute offi-
cial city policy); Ingraham v. Wright, 430 US 651, 673-74, 97
S Ct 1401, 51 L Ed 2d 711 (1977) (liberty interest of Four-
teenth Amendment implicated where school officials inflicted
appreciable pain on a child).

As we have noted, the accrual rule that applies to
determine when plaintiff's section 1983 claim accrued is a
"discovery" accrual rule. We set forth the reason for recogniz-
ing a discovery accrual rule in Berry v. Branner, 245 Or 307,
312, 421 P2d 996 (1966):

"To say that a cause of action accrues to a person when she
may maintain an action thereon and, at the same time, that
it accrues before she has or can reasonably be expected to
have knowledge of any wrong inflicted upon her is patently
inconsistent and unrealistic. She cannot maintain an action
before she knows she has one. To say to one who has been
wronged, [y]ou had a remedy, but before the wrong was
ascertainable to you, the law stripped you of your remedy,
makes a mockery of the law."

(Internal quotation marks omitted.) Following that rationale,
we have held that the statute of limitations does not begin to
run until a reasonably prudent plaintiff perceives both the

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injury and the role that the defendant has played in that
injury. Shiele v. Hobart Corporation, 284 Or 483, 490, 587
P2d 1010 (1978). In both respects Oregon law mirrors the
generally applicable common-law discovery rule. Dobbs
frames that rule as follows:

"[T]he usual idea seems to be that the statute will not begin
to run until

"(a) all of the elements of the tort are present and

"(b) the plaintiff discovers, or as a reasonable person
should have discovered,

"(i) that she is injured and

"(ii) that the defendant, or the defendant's product or
instrumentality, had a causal role in the injury, or that
there was enough chance that defendant was connected
with the injury to require further investigation that in turn
would have revealed the defendant's connection."

Dan Dobbs, 1 The Law of Torts, Practitioner Treatise Series
§ 218, 554 (2001) (emphasis in original).

There are two aspects of the discovery accrual rule
that warrant further attention. First, the limitations period
begins to run as to each defendant when the plaintiff dis-
covers, or a reasonable person should have discovered, that
defendant's causal role. See Adams v. Oregon State Police,
289 Or 233, 237-39, 611 P2d 1153 (1980) (plaintiffknew tow-
ing company had found his car but claim against state did not
accrue until later when plaintiff learned of state's causal role
in the towing). When the facts that should alert a plaintiff to
a defendant's role are different for different defendants, the
date of accrual may also be different as to each. As one court
put it, "[C]laims based on two independent legal theories
against two separate defendants can accrue at different
times." E-Fab, Inc. v. Accountants, Inc. Services, 153 Cal App
4th 1308, 1323 (2007) (citing Fox v. Ethicon Endo-Surgery,
Inc., 35 Cal 4th 797, 802-03, 110 P3d 914 (2005)).

Second, when a duty to investigate exists, the statute
of limitations only begins to run if the investigation would
have disclosed the necessary facts. Greene v. Legacy Emanuel
Hospital, 335 Or 115, 123, 60 P3d 535 (2002) ("The period of

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limitations * * * commences from the earlier of two possible
events: (1) the date of the plaintiff's actual discovery of injury;
or (2) the date when a person exercising reasonable care
should have discovered the injury, including learning facts
that an inquiry would have disclosed.") (original emphases
omitted; emphasis added). See also Dobbs, 1 The Law of Torts
§ 218 (statute will not begin to run until there is "enough
chance that defendant was connected with the injury to
require further investigation that in turn would have
revealed the defendant's connection") (emphasis added).

In this case, the Court of Appeals put its own gloss
on the discovery rule and concluded that, as a matter of law,
(1) a reasonable plaintiff who knows that he or she has been
injured and knows the physical cause of the injury would
investigate the possible existence of an additional defendant
that may have caused the injury "by seeking advice in the
medical and legal community"; and (2) the limitations period
commences when that duty to investigate arises. T. R., 205
Or App at 142-43.

There are three problems with that reasoning. First,
as we have explained, the discovery rule recognizes that the
existence of one type of wrongdoing does not necessarily dis-
close tortious conduct of a different sort, by a different tort-
feasor. A plaintiff who knows that one defendant has caused
him or her harm does not necessarily know that another
defendant has done so in a different way. Depending on the
facts of the particular case, a reasonable person who knows
the identity of the tortfeasor who was the immediate physical
cause of his or her injury may or may not be alerted to the
possible existence of other tortfeasors.

Second, a plaintiff who is alerted to the need for fur-
ther investigation only is required to conduct an investiga-
tion that a reasonable person in his or her circumstances
would conduct. See Doe v. American Red Cross, 322 Or 502,
511-13, 910 P2d 364 (1996) (discovery is determined by objec-
tive, reasonable person standard). A plaintiff is not necessar-
ily charged with employing experts to uncover facts that a
reasonable person in plaintiff's circumstances could not
uncover.

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Third, the Court of Appeals decided that the statute
of limitations began to run because plaintiff had a duty to
investigate. T. R., 205 Or App at 142-43. That is not so, how-
ever, unless an investigation would have disclosed the nec-
essary facts. The party who asserts the statute of limitations
defense must prove that an investigation would have dis-
closed those facts. See Doe, 322 Or at 514-15 (party who
asserts limitations defense must prove the facts investigation
would disclose). The Court of Appeals failed to consider that
aspect of the discovery rule, and erroneously concluded that
the duty to investigate alone was sufficient to commence the
running of the statute of limitations.

The Court of Appeals based its decision on two
United States Supreme Court cases, United States v.
Kubrick, 444 US 111, 100 S Ct 352, 62 L Ed 2d 259 (1979),
and Rotella v. Wood, 528 US 549, 120 S Ct 1075, 145 L Ed 2d
1047 (2000). But neither Kubrick nor Rotella is a section 1983
case, and neither bears on whether a plaintiff's knowledge of
the existence of one tortfeasor charges the plaintiff with
knowledge of the existence of other defendants or whether a
plaintiff should be expected to hire experts to investigate the
possibility that other defendants exist. In Kubrick, the Court
described both the fact "that [the plaintiff] has been hurt"
and "who has inflicted the injury" as "critical facts" that a
plaintiff must know to start the statute of limitations run-
ning. 444 US at 122. In Kubrick, the plaintiff knew both crit-
ical facts. He knew that he had been harmed and that his
physician had harmed him. Plaintiff argued, however, that
his claim did not accrue until he also realized the legal con-
sequences of those facts: that "the acts inflicting the injury
may [have] constitute[d] medical malpractice." Id. at 113. In
rejecting plaintiff's argument, the Supreme Court explained
that a plaintiff cannot be expected to know facts that only an
expert could obtain, but a plaintiff can be expected to seek out
an expert in order to learn the legal ramifications of known
facts. The Court stated:

"We are unconvinced that for statute of limitations pur-
poses a plaintiff's ignorance of his legal rights and his
ignorance of the fact of his injury and its cause
should receive identical treatment. That he has been

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injured in fact may be unknown or unknowable until the
injury manifests itself; and the facts about causation may
be in control of the putative defendant, unavailable to the
plaintiff or at least very difficult to obtain. The prospect is
not so bleak for a plaintiff in possession of the critical facts
that he has been hurt and who has inflicted the injury. He
is no longer at the mercy of the latter. There are others who
can tell him if he has been wronged, and he need only ask."

Id. at 122. Kubrick stands for the proposition that a plaintiff
who knows the facts establishing that a particular defendant
played a causal role in his or her injury must seek medical
and legal advice about whether those facts justify legal
action-advice within the expertise of those consultants.
Kubrick does not stand for the proposition that a plaintiff
who does not know the facts indicating that a particular
defendant played a causal role in his or her injury must
employ the assistance of doctors or lawyers to uncover such
facts.

Rotella also does not convince us that we should
reach a different conclusion. As in Kubrick, the plaintiff in
Rotella both knew that he had been injured and that the
named defendant had injured him by engaging in illegal
action. Plaintiff argued, however, that his Racketeer Influ-
ence and Corrupt Organization (RICO) claim did not accrue
until he discovered, in addition to those critical facts, that the
named defendant had engaged in a pattern and practice of
illegal acts. 528 US at 552-53. The Court rejected the plain-
tiff's argument, reasoning that Congress had modeled RICO
on the Clayton Act, and that adopting an accrual rule that
required discovery of a defendant's pattern and practice in
addition to that defendant's discrete illegal act would not
comport with Clayton Act limitations or the purposes of the
RICO statute. Id. at 557-58. Kubrick and Rotella are consis-
tent with the discovery accrual rule as we have stated it.5

" The city also urgesthat we consider, and the Court of Appeals cited and relied
on, a Ninth Circuit decision, Plumeau v. School Dist. #40 County of Yamhill, 130
F3d 432 (9th Cir 1997). In thatcase, a school janitor sexually abused a young girl,
who, five years later, attempted suicide. Shortly thereafter, the girl told her mother
about the abuse and she and her mother brought an action against the school dis-
trict. The court affirmed summary judgment for the district. As to the plaintiffs'
state law claims, the court rested its ruling on the fact that the plaintiffs did not
give the requisite tortclaim notice within the time required after the girl informed
her mother of the abuse. Id. at 440. As to the plaintiffs' section 1983 claim, the court

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To restate, then, the discovery accrual rule provides
that a plaintiff's claim against a particular defendant accrues
when (1) the plaintiff knows, or a reasonable person should
know, that there is enough chance that the defendant had a
role in causing the plaintiff's injury to require further inves-
tigation; and (2) an investigation would have revealed the
defendant's role. Application of the discovery accrual rule is a
factual issue for the jury unless the only conclusion a reason-
able jury could reach is that the plaintiff knew or should have
known the critical facts at a specified time and did not file
suit within the requisite time thereafter. See Brown v. J. C.
Penney Co., 297 Or 695, 705-06, 688 P2d 811 (1984) (appel-
late court cannot set aside trial court's denial of motion for
directed verdict unless there is no evidence from which the
jury could have found the necessary facts). In this case, the
specific question presented is whether the only conclusion
that a reasonable jury could have reached was that plaintiff's
knowledge in 1996 should have alerted him to the possibility
that the city played a causal role in his abuse, that a reason-
able person in plaintiff's circumstances would have investi-
gated that possible role, and that such an investigation would
have disclosed facts indicating the city's role.6

The city argues that, in 1996, plaintiff knew that he
had been injured, that Tannehill was the immediate cause of
his injury, and that Tannehill was employed by the city. The
city argues that a reasonable jury would necessarily have
concluded from those facts that plaintiff should have known

rested its ruling on the plaintiffs' failure to adduce sufficient facts to establish dis-
trict liability. Id. at 438-39. Plumeau did not decide that the plaintiffs' section 1983
action against the district was untimely. To the contrary, in dicta, the court stated
that the opposite assumption was appropriate because the plaintiffs filed their sec-
tion 1983 claim within two years from the "date of discovery." The court considered
the "date of discovery" to be the date the girl manifested injury from the abuse,
attempted suicide, and reported the abuse to a trusted adult, not the date the girl
was subjected to the acts of abuse. Id. at 438. We do not find Plumeau to be incon-
sistent with the discovery accrual rule as we have articulated it.

6 In addition to arguing that the trial court correctly denied the city's motion
for a directed verdict because there was a question of fact as to when plaintiff
reasonably should have discovered the city's role, plaintiff also argues that the trial
court ruled correctly because a question of fact existed as to when he reasonably
should have discovered that the acts of abuse caused him harm. Because we decide
that there was a question of fact as to when plaintiff reasonably should have dis-
covered the city's role, we do not address plaintiff's additional argument or whether
plaintiff properly preserved that argument.

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that the city was responsible for Tannehill's acts, or at least
investigated its potential liability. Although we agree that a
reasonable jury could have reached that conclusion, we do
not agree that that was the only conclusion a reasonable jury
could have reached. Tannehill's wrongful acts were very per-
sonal and private. Although some of those acts were commit-
ted while Tannehill was on duty, others were not, and the
nature of the acts did not necessarily indicate that Tannehill
committed them within the scope of his employment. More
importantly, under section 1983, the city could not be
held liable for Tannehill's acts solely because it employed
him. The city's liability necessarily required proof of munici-
pal wrongdoing- wrongdoing of a different kind than
Tannehill's. A reasonable jury could have found that, at the
time of the abuse, plaintiff did not suspect the city itself of
causing him harm, and that plaintiff's state of mind at that
time was a reasonable one.

Two particular aspects of this case support our con-
clusion. First, plaintiff was a minor when Tannehill commit-
ted the acts of abuse. In reviewing the facts presented to the
jury, we look at them, as the jury was required to do, from the
perspective of a reasonable person under the relevant cir-
cumstances, which include plaintiff's minority.7 See W. Page
Keeton, Prosser and Keeton on Torts § 32, 179-80 (5th ed
1984) (in determining whether actions of child tortfeasor are
reasonable, view actions from the perspective of a reasonable
child).8 As this court explained in Doe:

"The test involved in such circumstances is an objective
one: 'In most cases, the inquiry will concern what a plaintiff

7 The Court of Appeals noted that although plaintiff was a minor when
Tannehill committed the acts of abuse, he was no longer a minor when he turned 18
and was permitted time to bring his claim thereafter. See ORS 12.160 (1995) (toll-
ing statute during minority, but for no more than five years total or one year after
the plaintiff reaches the age of majority, whichever first occurs). The Court of
Appeals therefore granted no significance to the fact that plaintiff was a minor
when he was subjected to the abuse. T. R., 205 Or App at 143 n 4. In our view,
because the city argues that plaintiff's claim accrued when Tannehill committed
the abuse and plaintiff was a minor at that time, we cannot disregard the fact of
plaintiff's minority. The discovery rule requires a determination of what a reason-
able person would have known at the time of asserted accrual.

8 The "reasonable person" standard is generally discussed in terms of the
actions a reasonable defendant would have taken, but it is equally applicable
where there is a contention that a plaintiff did not act reasonably.

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should have known in the exercise of reasonable care. In
such cases, the relevant inquiry is how a reasonable person
of ordinary prudence would have acted in the same or sim-
ilar situation.'"

322 Or at 512 (quoting Gaston v. Parsons, 318 Or 247, 256,
864 P2d 1319 (1994)). A reasonable jury could have found
that a teenager subjected to sexual abuse by a police officer
reasonably may have believed that that officer's acts were the
acts of a man who was acting on his own, based upon his own
sexual proclivities, and reasonably may not have suspected
that higher city officials could have been to blame for his
predicament.

Second, when plaintiff ventured to question two city
officers about Tannehill's drinking with him and whether
Tannehill had an interest in boys, one exhibited acceptance
of the misconduct and the other discouraged any further
inquiry. The reactions of those adults did not put plaintiff on
notice that what Tannehill or the city was doing, or failing to
do, might merit investigation. See Gaston, 318 Or at 257
(assurances by persons in positions of trust and confidence
that action is not tortious may be considered in determining
whether reasonable person would have engaged in further
investigation). Tannehill coerced and intimidated plaintiff
and was in a position of authority in the department. A
reasonable jury could have found that the responses that
plaintiff received when he attempted to question other offi-
cers about Tannehill's behavior served to reinforce plaintiff's
reasonable belief that further inquiry would not be pro-
ductive.

In summary, we hold that, based on the evidence in
this record, a reasonable jury could have found that, under
the circumstances existing in 1996, plaintiff acted reasonably
in not undertaking an investigation of whether the city itself
had caused him harm.

Alternatively, and even if a reasonable person would
have made inquiry as to the city's role in 1996, we cannot con-
clude, as a matter of law, that an inquiry would have
revealed facts indicating that a city policy may have caused
plaintiff harm. See Doe, 322 Or at 514 (accrual depends on

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what facts party with duty to investigate would have been
able to learn); see also Kubrick, 444 US at 122 (acknowledg-
ing that a plaintiff may not be able to sue when the facts are
"in control of the putative defendant"). The statute of limita-
tions is an affirmative defense, and the city had the burden of
persuasion on that issue. ORCP 21 G(2) (statute of limita-
tions is affirmative defense); Keller v. Armstrong World
Industries, Inc., 342 Or 23, 38 n 12, 147 P3d 1154 (2006) (cit-
ing Nelson v. Hughes, 290 Or 653, 664-65, 625 P2d 643
(1981)). The city has not argued and has not pointed to evi-
dence that, had plaintiff inquired, its officials would have dis-
closed that they knew that they should have had policies and
procedures in place to protect plaintiff but did not, or that,
although they knew that their officers were engaging in mis-
conduct that could lead to sexual abuse, they permitted the
misconduct to continue. To the contrary, the record discloses
evidence that when plaintiff did make a limited inquiry into
Tannehill's behavior, his inquiries were rebuffed. As one wit-
ness put it, the city styled its management after an ostrich
with its head in the sand, not wanting to know about, admit,
or correct any wrongdoing. A former sheriff's deputy testified,
for instance, that, in approximately 1992, he reported con-
cerns about a party where city officers furnished alcohol to
minors and about one officer in particular who was rumored
to be having what was referred to as "an affair" with a teen-
age Explorer. That officer said he was "just having fun" with
the teenager, and the city did nothing in response to that
report other than warn the officer that he should be very
careful with the relationship. The fraternization and the
"affair" continued, and there was evidence that when that
"affair" was revealed, the police department actively hin-
dered its investigation and prosecution. In addition, a former
Explorer testified that, in approximately 1998, when he told
the city manager about finding several of his friends "falling
down drunk" at the home and in the presence of the officer
who was arrested in 2001 for serving alcohol to minors, the
city manager replied that he "did not want to hear that," and,
to the knowledge of that witness, failed to follow up with any
investigation. Whether the city would have divulged facts
indicating its responsibility for plaintiff's injuries if he had
inquired was certainly a jury question.

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The city's final argument is that plaintiff did not
learn facts in October 2001 that he did not know at the time
of Tannehill's abuse and, therefore, plaintiff must have
known all the facts necessary for his claim to accrue at the
time of the abuse. As the city portrays it, the only fact plain-
tiff learned in 2001 was that others knew that Tannehill was
gay, a fact plaintiff had known all along. But that portrayal
does not accurately capture the facts presented to the jury.
The jury heard evidence that it was in October 2001 that
plaintiff learned that an officer other than Tannehill had
engaged in similar misconduct, i.e., that Tannehill's miscon-
duct might not be that of a lone officer, but could be more
widespread. It was then that plaintiff was questioned by
state police officers who demonstrated that Tannehill's
behavior was cause for governmental concern, and it was
during the grand jury proceedings that followed that plaintiff
learned that the city may have known about widespread mis-
conduct in the Explorer program and failed to protect him
from being abused. Perhaps the jury could have drawn the
inference from the evidence that the city urges, but we cannot
say that it was required to do so.

Because there were facts from which a reasonable
jury could have found, as the jury did in this case, that plain-
tiff's section 1983 claim against the city did not accrue at the
time Tannehill committed the acts of sexual abuse, the trial
court did not err in denying defendant's motion for a directed
verdict on statute of limitations grounds.

The decision of the Court of Appeals is reversed, and
the case is remanded to the Court of Appeals for further
proceedings.