S054697, Opinion — Johnson v. Mult. Co. Dept. Community Justice

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Argued and submitted November 5, 2007, decision of Court of Appeals affirmed;
judgment of circuit court reversed and case remanded to circuit court for further
proceedings February 14, 2008
Akilah JOHNSON,
Respondent on Review,
v.

MULTNOMAH COUNTY DEPARTMENT
OF COMMUNITY JUSTICE,
Petitioner on Review,
and
DEPARTMENT OF CORRECTIONS,
Defendant.

(CC 0406-06577; CA A128667; SC S054697)
178 P3d 2 10

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CJS, Counties § 239.

# En Banc

On review from the Court of Appeals .*

Jacqueline A. Weber, Assistant County Attorney,
Portland, argued the cause and filed the brief for petitioner
on review. With her on the brief was Agnes Sowle, Attorney
for Multnomah County.

\* Appeal from Multnomah County Circuit Court, Michael C. Zusman, Judge
pro tempore. 210 Or App 591, 152 P3d 927 (2007).

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Kevin J. Tillson, of Hunt & Associates, PC, Portland,
argued the cause and filed the brief for respondent on review.
With him on the brief was Lawrence B. Hunt.

Douglas G. Schaller, of Johnson, Clifton, Larson &
Schaller, P.C., Eugene, filed a brief for amicus curiae Oregon
Trial Lawyers Association.

GILLETTE, J.

The decision of the Court of Appeals is affirmed. The judg-
ment of the circuit court is reversed and the case is remanded
to the circuit court for further proceedings.

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# GILLETTE, J.

This case is concerned with the so-called "discovery
rule," as it applies to ORS 30.275(2)(b), a provision of the
Oregon Tort Claim Act that requires any person bringing a
tort claim against a public agency to give notice to the agency
of the claim within 180 days of the alleged loss or injury.1
Specifically, it asks whether, and to what extent, the appear-
ance of newspaper articles in local papers suggesting that a
public agency may have had a role in a plaintiff's injury
should be deemed to put that plaintiff on notice of his or her
claim against the public agency, and thus trigger the 180-day
notice period. We do not reject the possibility that, in some
circumstances, information appearing in such media reports
may be imputed to a plaintiff as a matter of law. However, we
conclude that, in the present case, reasonable jurors could
disagree whether plaintiff should have learned about defen-
dant's involvement in her injury from the stories that
appeared in the local newspapers at the time that they
appeared. The Court of Appeals reached the same conclusion,
Johnson v. Mult. Co. Dept. Community Justice, 210 Or App
591, 152 P3d 927 (2007), and we affirm its decision.

On November 5, 1997, when plaintiff was 14 years
old, she was raped by an unknown assailant, who was iden-
tified, years later, as Ladon Stephens. Stephens had been
released from prison about ten months before the rape, after
serving six years for three separate attempts to kidnap young
girls. At the time that Stephens raped plaintiff, he was being
supervised as a high risk sex offender by the Multnomah
County Department of Community Justice (defendant).

1 ORS 30.275 provides, in part:

"(1) No action arising from any act or omission of a public body or an offi-
cer, employee or agent of a public body * * * shall be maintained unless notice
of claim is given as required by this section.

"(2) Notice of claim shall be given within the following applicable period of
time, not including the period, not exceeding 90 days, during which the person
injured is unable to give the notice because of the injury or because ofminority,
incompetency or other incapacity:

***** *

"(b) For all other claims, within 180 days after the alleged loss or injury."

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In April 2002, Stephens was arrested for the rape of
another young woman. Shortly thereafter, the authorities
connected Stephens to the November 5, 1997, rape of plaintiff
by means of DNA evidence. Authorities also connected
Stephens to two other rapes that occurred earlier in 1997
and, most notoriously, to the 2001 rape and murder of yet
another young girl, Melissa Bittler. At some point thereafter,
and at least by July 2003, plaintiff became aware that
Stephens very likely had been her assailant.

In December 2003, plaintiff's parents told her that
Stephens was being supervised by defendant when he raped
her and that defendant's supervision of Stephens may have
been inadequate. Well within 180 days of that conversation-
on April 28, 2004-plaintiff gave notice to defendant that she
had been injured as a result of its negligent supervision of
Stephens and that she intended to file a civil action seeking
damages. A few months later, plaintiff filed the action at
issue here, alleging that defendant was negligent in using
parole officers who were not trained in sex offender manage-
ment to supervise defendant; in failing to carry out all
required home visits; in failing to act when polygraph tests
and other evidence suggested that Stephens was being
untruthful about his activities; in failing to act when
Stephens missed scheduled appointments and examinations;
and in sending Stephens for sex offender treatment to a psy-
chologist who was not qualified to provide such treatment.

Defendant filed an answer, and then moved for sum-
mary judgment on the ground that plaintiff had failed to give
notice of her claim within 180 days of her injury, as ORS
30.275(2)(b) requires. In its motion, defendant acknowledged
that, under this court's cases, the notice period set out at ORS
30.275(2)(b) does not commence to run until the plaintiff has
had a reasonable opportunity to discover his or her injury
and the identity of the party responsible for that injury. See
Adams v. Oregon State Police, 289 Or 233, 239, 611 P2d 1153
(1980) (so holding). Defendant noted, however, that that
standard does not allow plaintiffs to ignore pertinent infor-
mation but, instead, imputes to them the level of knowledge
that a reasonable person would have had under the circum-
stances. Applying that standard to these circumstances,
defendant argued, led inexorably to the conclusion that

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plaintiff's April 28, 2004, notice of claim was untimely: as a
matter of law, defendant argued, a reasonable person in
plaintiff's shoes would have learned about defendant's alleg-
edly inadequate supervision of Stephens long before October
28, 2003 (180 days before April 28, 2004, when plaintiff gave
notice of her claim to defendant).

In so arguing, defendant relied primarily on the fact
that numerous articles about Stephens, his crimes, and his
history with the county justice system had appeared in The
Oregonian in 2002 and 2003. Defendant submitted eight of
those articles with its summary judgment motion. The first
article appeared on the front page of the Oregonian's May 30,
2002, edition-shortly after Stephens was arrested in April
2002-and stated that Stephens had been linked through
DNA evidence to the 2001 rape and murder of Melissa Bittler
and to three other rapes in 1997. The article described the
date, location, and circumstances of each crime, but did not
disclose the names of victims other than Bittler. The article
noted that Stephens had been released from prison in 1996,
but did not mention his parole status. Another similar article
that appeared in the local section the next day (May 31, 2002)
did mention that Stephens had been on high level supervi-
sion "until his April arrest."

The next article, which appeared in the local section
of the paper on June 1, 2002, focused on attempts by Portland
police to process a backlog of evidence collected in other rape
cases. The article described how police had linked Stephens
to earlier crimes, including a rape on November 5, 1997-the
date on which plaintiff had been raped. The article noted that
Stephens had been on supervision since his December 1996
release and described some of the terms of his supervision.

A third article, an editorial, appeared in the Sunday
Oregonian on June 2, 2002. It argued for expanded DNA test-
ing of convicted felons and described how DNA evidence had
been used to link the Bittler murder to a rape that had
occurred on November 5, 1997-again, a clear reference to
the day on which plaintiff had been raped.

Thus far, however, no newspaper article had inti-
mated that Stephens's freedom during the time period in
question was attributable to any lack of care on defendant's

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part. An article that appeared in the local section on July 28,
2002, was the first to describe defendant's supervision of
Stephens with any degree of detail. Toward the end of that
article (which was devoted primarily to the inadequate inves-
tigation of Stephens's 1997 crimes by Multnomah County
police), the author noted that Stephens committed his crimes
while he was being supervised as a high risk sex offender by
defendant. The article noted that Stephens had failed some
polygraph tests, but then reported that defendant had
"reviewed Stephens'[s] parole supervision and concluded that
'procedures were followed.'"

Only three Oregonian articles that defendant sub-
mitted with its motion were directly critical of defendant's
supervision of Stephens. A December 7, 2002, article, entitled
"Report Rips Parole Oversight of Suspect," reported the
results of a Multnomah County internal review: Stephens's
case had been passed among at least six different parole offi-
cers; not all of Stephens's parole officers had been trained in
sex offender management; parole officers had failed to follow
up when Stephens failed polygraph tests; and parole officers
had not raised alarms when they could not contact Stephens
at home. A December 26, 2002, editorial repeated much of the
information contained in the December 7 article and then
went on to call for "thorough soul-searching by the parole and
probation department and a full public accounting early next
year of everything that has changed, or is going to change as
a result of this case." Finally, an October 3, 2003, article
described changes that defendant had made in its procedures
for supervising sex offenders in the wake of the Stephens
case and, in the process, described various errors that (in the
opinion of the authors of the article) defendant had made in
supervising Stephens.

Defendant submitted other material with its sum-
mary judgment motion, including: (1) transcripts of news sto-
ries about Stephens that aired on Portland television sta-
tions, two of which reported (in October and December 2003)
concerns about defendant's supervision of Stephens; (2) an
affidavit by the Multnomah County Chief Deputy of Correc-
tions, stating that plaintiff had been incarcerated in various
Multnomah County jail facilities between December 30, 2002
and July 18, 2003, and that she had had reasonable access to

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local newspapers and television news programs during that
time; (3) a partial transcript of plaintiff's testimony at
Stephens's trial, in which plaintiff stated that she had con-
cluded that Stephens was her attacker when "he got arrested
and it was in all the newspapers and stuff"; and (4) plaintiff's
deposition testimony acknowledging that police had talked to
her about a possible connection between her case and Melissa
Bittler's murder before Stephens was arrested and that she
had heard about Stephens's arrest from "other people" at the
time that it was reported in the news.

Plaintiff responded to defendant's motion by arguing
that the dispositive issue was not when plaintiff did or should
have known that Stephens was her attacker, but when she
should have known about defendant's role in her injury.
Plaintiff then argued that that issue could not be decided on
summary judgment, because a rational trier of fact could find
that plaintiff reasonably did not discover defendant's involve-
ment in her injury until her parents told her about defen-
dant's negligent supervision of Stephens in December 2003.
In an affidavit submitted with her response, plaintiff
acknowledged that, "on or around July of 2003," she knew
that Stephens could have been her assailant. She also
averred that she had been incarcerated from December 31,
2002 until October 20, 2003; that she did not watch television
or read the newspaper during her incarceration; and that her
parents had informed her, in December 2003, that defendant
had committed errors in its supervision of Stephens.

The trial court rejected plaintiff's arguments and
granted defendant's motion. On plaintiff's appeal, the Court
of Appeals reversed, holding that defendant was not entitled
to summary judgment because (1) a rational juror could con-
clude that a reasonable person in plaintiff's circumstances
would not necessarily have been aware of media reports
questioning defendant's supervision of Stephens before
October 28, 2003; and (2) any duty to inquire into defendant's
role in the rape did not arise until plaintiff knew that
Stephens was under defendant's supervision at the time of
the rape, and a triable issue remained as to when plaintiff
acquired that knowledge. Johnson, 210 Or App at 597-600.
We allowed defendant's petition for review.

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There is no dispute that the "discovery rule" that this
court has applied to many statutory limitations periods since
Berry v. Branner, 245 Or 307, 421 P2d 996 (1966), also
applies to the 180-day notice of claim requirement at ORS
30.275(2)(b). See Adams, 289 Or at 237-39 (so stating). Nei-
ther is there any dispute about the parameters of the discov-
ery rule. At least in theory, the parties agree that the discov-
ery rule does not require actual discovery or knowledge of the
claim but, instead, imputes to the plaintiff the level of knowl-
edge that an exercise of reasonable care would have dis-
closed. See, e.g., Forest Grove Brick v. Strickland, 277 Or 81,
86, 559 P2d 502 (1977) (stating that rule). Finally, the parties
agree that "discovery" of an injury involves actual or imputed
knowledge of three separate elements: harm, tortious con-
duct,2 and causation. Gaston v. Parsons, 318 Or 247, 255, 864
P2d 1319 (1994). In other words, the notice of claim period
does not commence to run, under the discovery rule, until a
plaintiff knows or, in the exercise of reasonable care should
know, that he or she has been injured and that there is a sub-
stantial possibility that the injury was caused by an identi-
fied person's tortious conduct. Adams, 289 Or at 239 (so
stating).

In the present case, plaintiff's knowledge of her
injury is not an issue. The controversy pertains, instead, to
when plaintiff "discovered," or reasonably should have dis-
covered, defendant's involvement in her injury-that is,
when she knew or should have known that defendant had
acted tortiously (by failing to supervise Stephens adequately)
and that that tortious conduct had "caused" her injury (by
allowing Stephens to remain on the streets, free to commit
crimes against plaintiff and other young women).

The question whether and when a plaintiff knew or
should have known that his or her injury was caused by a
particular defendant's tortious conduct ordinarily is a ques-
tion of fact for the jury; it may be decided on summary judg-
ment as a matter of law only if the record on summary judg-
ment presents no triable issue of fact. See generally Gaston,

2 It may be argued that there is a fourth element, viz., the probable identity of
the tortfeasor. We think that that element inheres in the concept of "tortious con-
duct" -- someone, after all, must have carried out the "conduct."

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318 Or at 256-62 (discussing when genuine issue of fact exists
as to when plaintiff discovered defendant's tortious conduct
in medical malpractice case). Defendant contends that, in
light of the uncontroverted evidence in the record of media
coverage of Stephens's crimes and, later, of defendant's
supervision of Stephens, plaintiff has no room to argue that
she reasonably did not discover defendant's role in her injury
until October 28, 2003, or later.

In that regard, defendant's arguments follow two
separate lines. First, defendant focuses on the idea that
plaintiff failed to make a reasonable inquiry into the causes
of her injury at the appropriate time. It argues that plaintiff
was on "inquiry notice"3 by July 2003, at the very latest, and
that a reasonable inquiry at that time would have led to
media reports about defendant's negligent supervision of
Stephens:

"Plaintiff admits in her affidavit that she was aware '[o]n or
around July of 2003 that Ladon Stephens could have been
the man that raped me.' ** * Beginning in May 2002,
numerous news articles appeared in the local media dis-
cussing the [defendant's] supervision of Stephens. Plaintiff
testified that, although she did not read any news articles
herself, or see [the reports] on the [television] news, she was
aware of the media attention to the case, because other peo-
ple told her about it. Therefore, as of July 2003, plaintiff
had full access to sufficient information to trigger reason-
able inquiry that would have led to the discovery that
[defendant's] supervision of Stephens was in question."

Defendant is correct insofar as it suggests that the
discovery rule does not protect plaintiffs who fail to make a
further inquiry when a reasonable person would do so.
Gaston, 318 Or at 256. But when, in these circumstances, can
we say that a reasonable person would have made a further
inquiry?4 Defendant suggests, in the material quoted above,

3 "Inquiry notice" is a confusing and imprecise label. "Notice" may cause an
"inquiry" based on it, but the inquiry is not one made on "inquiry notice." We spe-
cifically disapprove of the use of that term. See Greene v. Legacy Emanuel Hospital,
335 Or 115, 123, 60 P3d 535 (2002) (to the same effect).

4 And-perhaps even more importantly-when can we say that a reasonable
further inquiry would have led to the discovery of further evidence that would give
plaintiff knowledge of her claim?

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that that moment arrived when plaintiff learned that
Stephens may have been her attacker and that the local
media had been covering Stephens's crimes.

We do not agree. The victim of an intentional crime
perpetrated by an unknown assailant would have no reason
even to speculate that his or her injury might have been
caused in part by the tortious conduct of a parole agency or
any other third party. Learning the identity of the perpetra-
tor of the crime and that the perpetrator is the subject of local
news reports would not necessarily change anything in that
regard. The crime victim still would have no reason to sup-
pose that the actions of a third party might be involved. Cer-
tainly, a rape victim who learns that her attacker is in the
news might be motivated by general curiosity to inquire into
that news coverage and, in the process, might acquire infor-
mation suggesting that the person was negligently super-
vised by a parole agency. But that is a far cry from saying
that, as a matter of law, a reasonable rape victim with that
information would inquire into the possibility that tortious
conduct by a third party somehow had caused her injury.

Put differently: A duty to inquire must arise from cir-
cumstances stronger than the mere drifting possibility that
something of interest might come to light. The facts that
defendant relies on-plaintiff's knowledge of Stephens's
identity and her knowledge that Stephens was being dis-
cussed in the media-might raise a question in the mind of a
reasonable person about the involvement of a parole agency
in plaintiff's injuries, but would not necessarily do so. We
reject defendant's theory that, as a matter of law, the record
on summary judgment establishes that, by July 2003 at the
latest, a reasonable person in plaintiff's circumstances would
have made inquiries that would have led to the knowledge
that defendant's supervision of Stephens in 1997 might have
been deficient.5

Defendant argues, in the alternative, that the fact of
extensive news coverage relevant to plaintiff's claim between

5 Of course, before the plaintiff may be charged with responsibility for the pas-
sage of time, it also must be true that the inquiry that plaintiff would have con-
ducted would have brought the pertinent facts to light. See Doe v. American Red
Cross, 322 Or 502, 910 P2d 364 (1996) (illustrating proposition).

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May 2002 and October 3, 2003, is sufficient by itself to estab-
lish, as a matter of law, that plaintiff should have known of
her claim before October 28, 2003. In that regard, defendant
proposes that, for purposes of the discovery rule, an objec-
tively reasonable person should be assumed to be aware of
readily available media publications relevant to his or her
tort claim. Defendant contends that that proposal is consis-
tent with the idea that, to take advantage of the discovery
rule, plaintiffs must "exercis[e] the diligence expected of a
reasonable person." Gaston, 318 Or at 256.6 Defendant notes,
moreover, that some federal courts have applied that rule,
concluding that defendants were entitled to summary judg-
ment on statute of limitations grounds when defendants
had submitted evidence of widespread publicity about
events underlying the plaintiffs' claims. See, e.g., Hughes v.
Vanderbilt University, 215 F3d 543 (6th Cir 2000) (publicity
in 1994 and 1995 about university's experiments on human
subjects in the 1940s was sufficient to charge the plaintiff
with constructive knowledge of the events underlying her
tort claim against the university, which was based on asser-
tion that she had been subjected to experiments in 1945
when she was eight years old). See also Rakes v. U. S., 442
F3d 7 (1st Cir 2006) and Moseley v. Wyeth, 2002 WL 32991341
(W D Okla 2002) (reaching analogous conclusions).

However, assuming that the opinions of federal
courts might carry any weight in our analysis, it is worth
noting that at least as many federal cases have reached an
opposite result. In Bibeau v. Pacific Northwest Research
Foundation, 188 F3d 1105 (9th Cir 1999), for example, a

6 Defendant also argues that the rule is consistent with the approach taken by
the legislature in many "notice" statutes-statutes that "presume[ ] that a reason-
able person reads the local newspaper for purposes of notice." Defendant cites, as
examples, ORCP 7 D(6) (providing for court order for service of summons by,
among other methods, publication in a newspaper of general circulation) and ORS
1 13.155 (notice of initiation of estate proceedings can be accomplished by publish-
ing information once a week for three consecutive weeks in a newspaper published
in the county in which the estate proceeding is pending). In fact, however, those
statutes are irrelevant to the issue at hand, viz., the plaintiff's actual or presumed
state of awareness. Such statutes, which declare that, as a matter of law, publica-
tion itself qualifies as notice, are designed to further the ability of courts to consider
various forms of legal proceedings. They cannot by their own terms realistically be
expanded to encompass the different issues associated with the question of poten-
tial plaintiffs' imputed knowledge of, e.g., the identity of one who harmed them.

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plaintiff who had been subjected to radiation experiments in
the 1960s, while he was imprisoned at the Oregon State Pen-
itentiary, brought an action in 1995 against the research
foundation that conducted the experiments-within two
years of reading a news report referring to similar experi-
ments. The defendant moved for summary judgment, argu-
ing that the statute of limitations period had passed. The
trial court granted the motion but the Ninth Circuit Court of
Appeals reversed. The defendant had submitted "a litany of
news reports and other public revelations regarding the
\* \* \* experiments," most of which were published in the mid-
1980s, but the court concluded that, particularly in light of
certain aspects of plaintiff's history and education, the rea-
sonableness of the plaintiff's failure to discover his claim at
the time those news reports were published was an issue
for the jury. Id. at 1110. Other federal courts have taken a
similar view. See, e.g., In Re Swine Flu Products Liability
Litigation, 764 F2d 637 (9th Cir 1985) (in spite of evidence
that local paper reported in late 1976 that government's
swine flu vaccination program had been suspended because
of connection to neurological problems, additional fact-
finding was necessary to determine whether the general com-
munity awareness of the connection was sufficient to find
that the plaintiff should reasonably have known at that time
that vaccination caused his wife's death).

In the end, defendant's proposal-that all plaintiffs
should be deemed to know all information relating to their
claim that has been published in the local media-involves a
leap of faith that we are not prepared to make. The fact that
news about some event was available at a particular time
does not, by itself, resolve whether a reasonable person would
have read or heard that news, much less what a reasonable
inquiry based on that news would have uncovered.

In the present case, defendant demonstrated that
local media outlets had issued stories mentioning defen-
dant's supervision of Stephens as early as June 2002 and
directly addressing possible inadequacies in that supervision
by December 2002. We are not prepared to say that a juror
would be required to conclude, from the mere fact of that cov-
erage, that an objectively reasonable person would have or
should have known sufficient facts to trigger the 180-day

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notice period before October 28, 2003. Although it is true that
plaintiff's responsive submissions primarily addressed her
actual knowledge (or lack thereof) of defendant's involve-
ment in her injury, the fact remains that defendant's submis-
sions were insufficient to establish, as a matter of law, the
level of awareness that an objectively reasonable person
would have had under the circumstances.7 We agree with the
Court of Appeals that there is a triable issue of fact as to
when plaintiff should have known of defendant's connection
to her injury. It follows that the trial court erred in granting
defendant's motion for summary judgment.

The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed and the case is
remanded to the circuit court for further proceedings.

7 There may be cases in which news coverage of a topic is so widespread that a
general community awareness (and, thus, the awareness of any objectively reason-
able person) can be determined as a matter oflaw. However, this is not such a case.