Chapter 124

 

      124.005

 

NOTES OF DECISIONS

 

      For purpose of determining if person is “person with a disability,” it is appropriate to look at other statutes with same phrase and to conclude that person must demonstrate physical or mental impairment that restricts one or more major life activities, when compared with most people in general population. Ferguson v. Burdette, 310 Or App 49, 484 P3d 362 (2021)

 

      124.060

 

NOTES OF DECISIONS

 

      Social worker is not psychiatrist or psychologist for purposes of statute. State v. Judd, 301 Or App 549, 457 P3d 316 (2019)

 

      Statute abrogates OEC 504 privilege only insofar as to allow for initial report of suspected elder abuse. State v. Judd, 301 Or App 549, 457 P3d 316 (2019)

 

      124.100

 

NOTES OF DECISIONS

 

      Person is incapacitated if person’s ability to protect self is, while being abused, significantly impaired. Herring v. American Medical Response Northwest, 255 Or App 315, 297 P3d 9 (2013), Sup Ct review denied

 

      Person may be incapacitated even if period of time during which impairment occurs does not last as long as period of time during which abuse occurs. Herring v. American Medical Response Northwest, 255 Or App 315, 297 P3d 9 (2013), Sup Ct review denied

 

      Award for noneconomic damages under this provision may exceed limit imposed on award for noneconomic damages under ORS 31.710. Herring v. American Medical Response Northwest, 255 Or App 315, 297 P3d 9 (2013), Sup Ct review denied

 

      Defendant is not required to have acted with certain mens reafor court to award noneconomic damages under this provision. Herring v. American Medical Response Northwest, 255 Or App 315, 297 P3d 9 (2013), Sup Ct review denied

 

      Where defendant employer received multiple complaints from victims of sexual abuse committed by employer’s employee and defendant failed to take significant action to address issues and continued to employ employee in some capacity, defendant “knowingly” failed to act to prevent abuse under this section. Wyers v. American Medical Response Northwest, Incorporated, 268 Or App 232, 342 P3d 129 (2014), aff’d 360 Or 211, 377 P3d 570 (2016)

 

      Where plaintiff failed to provide required statutory notice to Attorney General within 30 days after commencing claim for financial abuse of vulnerable person, notice requirement of this section was not met and mandatory dismissal without prejudice of plaintiff’s claim was appropriate. Bishop v. Waters, 280 Or App 537, 380 P3d 1114 (2016)

 

      Financial abuse claim belongs to vulnerable person; other persons authorized to file financial abuse claim do so on behalf of vulnerable person. Tyler v. Whetzel, 301 Or App 504, 457 P3d 338 (2019), Sup Ct review denied

 

      Trustee is authorized to initiate or maintain financial abuse claim on behalf of trustor only if trustor is vulnerable person who is living. Tyler v. Whetzel, 301 Or App 504, 457 P3d 338 (2019), Sup Ct review denied

 

LAW REVIEW CITATIONS: 52 WLR 325 (2016); 98 OLR 325 (2020)

 

      124.105

 

LAW REVIEW CITATIONS: 98 OLR 325 (2020)

 

      124.110

 

NOTES OF DECISIONS

 

      Taking is “wrongful” if carried out in pursuit of improper motive or by improper means. Church v. Woods, 190 Or App 112, 77 P3d 1150 (2003)

 

      “Unfounded litigation” as predicate for elder abuse claim under this section can satisfy, at most, “wrongful conduct” element; noneconomic effects suffered as result of litigation do not prove taking of money or property belonging to elderly person as required under this section. Schmidt v. Noonkester, 287 Or App 48, 401 P3d 266 (2017)

 

      Plaintiff’s contractual rights to benefits under insurance policies received in exchange for premiums does not constitute same “money or property” that insurance company acquired from plaintiffs in form of premium payments; thus, allegations that insurance company, in bad faith, delayed processing of claims and failed to pay benefits owed to vulnerable persons under insurance contract do not state claim for wrongful withholding of “money or property” under subsection (1)(b) of this section. Bates v. Bankers Life and Casualty Co., 362 Or 337, 408 P3d 1081 (2018)

 

      Where plaintiff had contract expectancy that plaintiff would appear on deed with defendant, even without written agreement between parties, contract expectancy is property interest which, if wrongfully taken through misrepresentation by nondisclosure, could support claim for elder abuse under this section. Neel v. Lee, 316 Or App 159, 504 P3d 26 (2021)

 

LAW REVIEW CITATIONS: 52 WLR 325 (2016)

 

      124.115

 

NOTES OF DECISIONS

 

      Where employee of broker-dealer was convicted of elder abuse, broker-dealer is exempt from liability under subsection (2) of this section because “person” includes organizational entities. Broker-dealer cannot be held liable unless broker-dealer is itself convicted of financial abuse as described in ORS 124.110. Gattuccio v. Averill, 273 Or App 126, 362 P3d 691 (2015)

 

LAW REVIEW CITATIONS: 98 OLR 325 (2020)

 

      124.140

 

LAW REVIEW CITATIONS: 52 WLR 325 (2016)