Ever since the passage of the Abuse of Vulnerable Persons Act (ORS 124.100-124.140), lawyers who represent vulnerable people injured by state actors have argued that the law applies to the state. The State of Oregon, through its Department of Justice, has argued that it does not apply because, among other (silly) reasons, the Oregon Tort Claims Act is the “exclusive remedy.” There was a split among courts, both federal and state, as to who was correct. However, today, the Oregon Supreme Court laid that controversy to rest when it decided, in a case called E.J.T. v. Jefferson County, 370 Or. 215 (2022), that the Abuse of Vulnerable Persons Act (AVP) does apply to the State.
The court didn’t even bother to fully unpack the nonsensical “exclusive remedy” argument from the State. They merely said what we (plaintiffs) have been saying all along, AVP creates a statutory tort and torts may be brought against the State under the Tort Claims Act. The court acknowledged that the State made other arguments as to why they should win, but dismissed them out of hand (in a footnote), stating “we reject (them) without written discussion.” It is almost anticlimactic in its brevity. I cannot fully express the years of frustration this decision resolves.
This is a huge victory for crime victims and other vulnerable plaintiffs around our state. The AVP says that someone who abuses a vulnerable person or someone who permits another person to abuse a vulnerable person is liable under the act. Once liable under the Act, the liable party is subject to treble damages and attorney fees. This creates a huge incentive for state agency defendants who routinely find themselves sued under AVP (such as Oregon’s Department of Human Services) to settle cases and start spending money up front to make sure vulnerable people are not abused in the first place. This means filtering funds toward fully investigating calls to the hotline and hiring more caseworkers and paying them more.
This effort was led by crime victim attorney Erin Olson. Erin represents the vulnerable child who was injured in the case. She filed the motion to have the issue heard by the Oregon Supreme Court after a federal judge dismissed her AVP claim. She argued the case in front of the court. If you want to read the opinion, you can find it here.