No. 12	                       March 7, 2013	321

              IN THE SUPREME COURT OF THE
                    STATE OF OREGON

                         Jack DOE 1,
      an individual proceeding under a fictitious name;
                          Jack Doe 2,
      an individual proceeding under a fictitious name;
                          Jack Doe 3,
      an individual proceeding under a fictitious name;
                          Jack Doe 4,
      an individual proceeding under a fictitious name;
                          Jack Doe 5,
      an individual proceeding under a fictitious name;
                          Jack Doe 6,
      an individual proceeding under a fictitious name;
                       and Jack Doe 7,
      an individual proceeding under a fictitious name,
                    Plaintiffs-Appellants,
                    Petitioners on Review,
                               v.
           LAKE OSWEGO SCHOOL DISTRICT,
        an Oregon public school district, authorized
      and chartered by the laws of the State of Oregon,
                   Defendant-Respondent,
                   Respondent on Review,
                             and
                      Judd JOHNSON,
                        an individual,
                   Defendant-Respondent.
       (CC CV-0802-0740; CA A140979; SC S059589)

   On review from the Court of Appeals.*
   Argued and submitted September 20, 2012; resubmitted
January 7, 2013.
   Kelly Clark, O’Donnell Clark & Crew LLP, Portland,
argued the cause for petitioners on review. Kathryn H.
______________
	   *  Appeal from Clackamas County Circuit Court, James C. Tait, Judge. 242 Or
App 605, 259 P3d 27 (2011).
322	                              Doe v. Lake Oswego School District

Clarke, Portland, filed the brief for petitioners on review.
With her on the brief were Kelly Clark and Kristian
Roggendorf.
   Timothy R. Volpert, Davis Wright Tremaine LLP,
Portland, argued the cause and filed the brief for respondent
on review. With him on the brief was David A. Ernst.
   Erin K. Olson, Portland, filed the brief for amici curiae
Survivor’s Network of those Abused by Priests, National
Center for Victims of Crime, Cardozo Advocates for Kids,
Oregon Abuse Advocates and Survivors in Service, Crime
Victims United, KidSafe Foundation, Survivors for Justice,
Coalition of Jewish Advocates for Children, Jewish Parents
for Safe Yeshivas, National Black Church Initiative, Child
Victims Voice, Stop the Silence: Stop Child Sexual Abuse,
Inc., Jewish Board of Advocates for Children, and National
Child Protection Training Center.
  Lisa T. Hunt, Portland, filed the brief for amicus curiae
Oregon Trial Lawyers Association.
   Before Balmer, Chief Justice, and Kistler, Walters,
Linder, Brewer, and Baldwin, Justices.**
    WALTERS, J.
   The decision of the Court of Appeals is reversed. The
limited judgment of the circuit court is reversed, and the
case is remanded to the circuit court for further proceedings.
     Plaintiffs brought a claim for battery under the Oregon Tort Claims Act based
on allegations that they had been sexually molested by their fifth-grade teacher
(Johnson), an employee of defendant Lake Oswego School District. The trial court
granted defendant’s motion to dismiss, concluding that the OTCA’s 2-year statute
of limitations necessarily began to run at the time that Johnson’s conduct occurred
and thus barred plaintiffs’ claims. The Court of Appeals affirmed. Held: Where
plaintiffs alleged that they were sexually molested by a trusted teacher but did
not comprehend the offensive nature of that conduct at the time, the trial court
was not required to conclude that plaintiffs’ claim for battery accrued on the date
that the touching occurred. The limitations period does not begin to run in a claim
under the OTCA until a plaintiff knows or should have known the tortious nature
of the conduct.
     The decision of the Court of Appeals and the order and limited judgment of the
trial court are reversed, and the case is remanded for further proceedings.


______________
	   **  Landau, J., did not participate in the consideration or decision of this case.
Cite as 353 Or 321 (2013)	323

	           WALTERS, J.
	        At issue in this civil action is a trial court’s order
dismissing as untimely plaintiffs’ claims against a public
school district. Plaintiffs alleged that when they were in the
fifth grade, a teacher who worked for the district sexually
abused them, but that they did not know that their teacher’s
touching was abusive when it occurred. For the reasons that
follow, we conclude that the trial court erred in granting
the school district’s ORCP 21 motion to dismiss plaintiffs’
claims. We reverse the contrary decision of the Court of
Appeals and the limited judgment of the trial court, and we
remand for further proceedings.
	        The facts relevant to our decision are those set forth
in plaintiffs’ Third Amended Complaint.1 Plaintiffs have not
proved those facts to be true but, for purposes of deciding
whether the trial court erred in granting defendant’s ORCP
21 motion to dismiss, we assume their veracity. See Juarez
v. Windsor Rock Products, Inc., 341 Or 160, 163, 144 P3d 211
(2006) (on review of motion to dismiss, court assumes the
truth of well-pleaded facts).
	        Plaintiffs are seven adult men who were born
between 1957 and 1970. Between 1968 and 1984, each
plaintiff was a fifth-grade student in a class taught by
Johnson. During that time period, Johnson was employed
by the Lake Oswego School District (defendant), a
governmental entity.2 While serving as plaintiffs’ teacher,
Johnson engaged in a “grooming process” that involved
befriending plaintiffs, gaining their trust, admiration and
obedience, and conditioning them to respect Johnson as
a person of authority. As part of that “grooming process,”
Johnson also befriended plaintiffs’ families and gained their
trust, their permission to spend substantial periods of time
with plaintiffs, and the benefit of their instruction to their

	    1
        The trial court dismissed the claims that plaintiffs asserted against the
school district in their Third Amended Complaint. We take the facts relevant to
our decision from the claims that plaintiffs labeled as claims for “Sexual Abuse of
a Child.”
	    2
         Plaintiffs brought their action against both Johnson and the Lake Oswego
School District and both are defendants in this case. However, because it is the
trial court’s order dismissing plaintiffs’ claims against the district that is at issue
on review, we refer to the school district as “defendant” and to Johnson by name.
324	                              Doe v. Lake Oswego School District

sons to respect and comply with Johnson’s authority and
requests. Through use of the grooming process, Johnson
intentionally engaged in the following conduct:
    “fondling [Jack Doe 1’s] genitals inside his clothing while
    in the classroom in front of other students”; “fondling
    [Jack Doe 2 and 3’s] genitals and buttock[s] [while they]
    stood in the classroom in front of other students”; “fondling
    [Jack Doe 4’s] genitals outside of his clothing while in the
    classroom in front of other students”; “fondling [Jack Doe
    5’s] genitals inside his clothing and ‘assisting’ [Jack Doe 5]
    in urinating on several occasions”; and “fondling [Jack Doe
    6 and 7’s] genitals[.]”3
	        Plaintiffs alleged that those acts constituted harmful
or offensive touching that caused them to suffer debilitating
physical, mental, and emotional injury. However, plaintiffs
alleged, they did not discover their injuries at the time of
Johnson’s touching. At that time, plaintiffs alleged, they did
not
    “comprehend the abusive nature—and therefore could
    not perceive the harm—of Johnson’s touching due to
    the obedience, admiration, respect, and esteem which
    [plaintiffs] had for Johnson * * *. [Plaintiffs were] unable
    to recognize that [they] had been harmed at the time of the
    abuse, because the touching * * * was similar enough to the
    non-tortious touching by Johnson that occurred during and
    was part of the grooming process that, as * * * young boy[s,
    they were] confused by it and unable to discern at the time
    that the touching was inappropriate or harmful.”
Plaintiffs alleged that the earliest date that any one of them
discovered his injuries was in November 2006; the latest
was in March 2008.
	        Plaintiffs commenced this action in February 2008.
Plaintiffs labeled some of their claims as claims for “Sexual
Abuse of a Child” and others as claims for “Intentional
	    3
         Plaintiffs also alleged that Johnson engaged in intentional conduct “resulting
in some or all of the following: physical injury, mental injury, rape, sexual abuse,
and sexual exploitation[.]” (Emphasis added.) Plaintiffs immediately followed
those allegations with the specific allegations set out in the text above. Because the
parties base their arguments on the specific allegations set out in the text above,
and because plaintiffs alleged that Johnson engaged in some but not necessarily
all of the conduct set forth in their general allegations, we do not consider those
general allegations in our analysis.
Cite as 353 Or 321 (2013)	325

Infliction of Emotional Distress.”4 Plaintiffs brought those
claims under the Oregon Tort Claims Act (OTCA) and sought
to hold defendant vicariously liable for Johnson’s acts. One
plaintiff, Jack Doe 6, also sought to hold defendant liable
for its own allegedly negligent acts. Plaintiff Jack Doe 6
alleged that, in 1982 or 1983, defendant became aware that
Johnson had molested a boy away from school grounds and
thereafter was negligent in failing to terminate or supervise
Johnson. Plaintiff Jack Doe 6 alleged that he reasonably
did not discover defendant’s alleged negligence until March
2008.
	        Defendant filed a motion under ORCP 215 to
dismiss plaintiffs’ claims, asserting that plaintiffs had
failed provide notice of claim or to commence their action
within the time provided by ORS 30.275.6 Defendant argued

	   4
        Plaintiffs also alleged claims for violation of their civil rights under 42 USC
section 1983. The trial court granted defendant’s motion to dismiss those claims
and the Court of Appeals affirmed. Doe v. Lake Oswego School District, 242 Or App
605, 621-23, 259 P3d 27 (2011). The Court of Appeals concluded that plaintiffs
had failed to plead facts necessary to constitute those claims—in particular, facts
alleging that defendant had acted pursuant to a policy or custom of “deliberate
indifference.” Plaintiffs do not challenge that conclusion in this court.
	   5
        ORCP 21 A provides, in part:
    	     “Every defense, in law or fact, to a claim for relief in any pleading, whether
    a complaint, counterclaim, cross-claim or third party claim, shall be asserted
    in the responsive pleading thereto, except that the following defenses may
    at the option of the pleader be made by motion to dismiss: * * * (9) that the
    pleading shows that the action has not been commenced within the time
    limited by statute.”
	   6
        ORS 30.275 provides, in part:
    	   “(1)  No action arising from any act or omission of a public body or an officer,
    employee or agent of a public body within the scope of ORS 30.260 to 30.300
    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 of minority,
    incompetency or other incapacity:
    	   “(a)  For wrongful death, within one year after the alleged loss or injury.
    	   “(b)  For all other claims, within 180 days after the alleged loss or injury.
    	   “* * * * *
    	   “(9)  Except as provided in ORS 12.120, 12.135 and 659A.875, but
    notwithstanding any other provision of ORS chapter 12 or other statute
    providing a limitation on the commencement of an action, an action arising
    from any act or omission of a public body or an officer, employee or agent of
    a public body within the scope of [the OTCA] shall be commenced within two
    years after the alleged loss or injury.”
326	                              Doe v. Lake Oswego School District

that it appeared from the face of plaintiffs’ complaint that
the latest that Johnson’s touching had occurred was in
1984, and that plaintiffs’ claims necessarily accrued at that
time. Therefore, defendant contended, because plaintiffs
concededly had not given notice of claim or filed their action
within the requisite period thereafter, their claims were
untimely and should be dismissed. Plaintiffs countered
that they had pleaded facts from which a jury could find
that they reasonably had not discovered the abusive or
harmful nature of Johnson’s conduct at the time it occurred.
Therefore, plaintiffs argued, they had alleged facts from
which a jury could find that their claims accrued on the
dates that they alleged they had discovered their injuries,
not on the date of Johnson’s alleged touching. Plaintiffs also
argued that the OTCA was unconstitutional if it precluded
their claims.7
	         The trial court ultimately agreed with defendant
that plaintiffs must be deemed to have discovered the facts
necessary to their claims at the time of the touching. The
court concluded, “I am completely ruling, as a matter of
law * * * that there is no 10- to 13-year-old child, other than
one, perhaps, that’s mentally retarded * * * who would not
understand that this kind of touching is wrong.” The trial
court also rejected plaintiffs’ argument that the OTCA was
unconstitutional as applied to them. The trial court granted
defendant’s ORCP 21 motion to dismiss and entered a
limited judgment in its favor.8
	       Plaintiffs appealed, and the Court of Appeals
affirmed. Doe v. Lake Oswego School District, 242 Or App
605, 259 P3d 27 (2011). The court held:
    “Where, as here, a plaintiff seeking damages for sexual
    abuse under the OTCA knew that the sexual touching
    occurred as well as who did the touching, there is no
    basis to say that the plaintiff did not know of or could not

	   7
        In their Third Amended Complaint, plaintiffs included a claim for declaratory
judgment and alleged that, if the court accepted defendant’s argument that their
claims were time-barred under the OTCA, the OTCA was unconstitutional as
applied to them.
	   8
        The limited judgment resolved all of plaintiffs’ claims against defendant
district. The limited judgment did not resolve plaintiffs’ claims against Johnson.
The trial court entered an order staying those claims.
Cite as 353 Or 321 (2013)	327

    reasonably have discovered the injury—that is, the legally
    cognizable harm. Accordingly, we conclude that the trial
    court correctly determined that the allegations in plaintiffs’
    complaint are insufficient to prevent the application of the
    OTCA’s time limitations with respect to the sexual battery
    and IIED claims and those claims were properly dismissed.”
Id. at 616 (footnote omitted). As to Jack Doe 6’s negligence
claim, the court held that plaintiff had failed to raise a
distinct argument regarding the timeliness of that claim,
and the court therefore declined to address it on appeal.
Id. at 616-18. The court also rejected without discussion
plaintiffs’ challenge to the constitutionality of the OTCA as
applied.9 Plaintiffs sought, and we allowed, review.
	        To meet the requirements of the OTCA, a plaintiff
who is a minor at the time of an alleged loss or injury must
give notice of claim within 270 days and must commence
the action within two years following the “alleged loss or
injury.”10 ORS 30.275. In Adams v. Oregon State Police, 289
Or 233, 239, 611 P2d 1153 (1980), this court construed those
terms and held that the limitations period for an OTCA
claim for “alleged loss or injury” does not begin to run until a
“plaintiff has a reasonable opportunity to discover his injury
and the identity of the party responsible for that injury.”
(Emphasis added.) That rule, the court explained, avoids
the mockery that would follow if the law were to say to one
who had been wronged, “[y]ou had a remedy, but before the
wrong was ascertainable to you, the law stripped you of
your remedy.” Id. at 238 (quoting Berry v. Branner, 245 Or
307, 312, 421 P2d 996 (1966)).
	      In Gaston v. Parsons, 318 Or 247, 252-56, 864
P2d 1319 (1994), this court considered the meaning of the

	    9
        However, the Court of Appeals required a different form of limited judgment
than had been entered by the trial court. The Court of Appeals vacated the trial
court’s limited judgment dismissing plaintiffs’ claim for declaratory relief and
required that the trial court instead enter a limited judgment for defendant
declaring that “the OTCA’s statute of limitations provisions do not violate the state
or federal constitution.” Doe, 242 Or App at 618 n 4.
	    10
         Plaintiffs do not argue that their claims were tolled pursuant to ORS 12.160
and we do not consider or decide whether the minority tolling provisions in that
statute apply to a claim under the OTCA. See Baker v. City of Lakeside, 343 Or 70,
77, 164 P3d 259 (2007) (discussing applicability of ORS 12.160 to claims brought
under the OTCA as context for interpretation of ORS 12.020).
328	                              Doe v. Lake Oswego School District

word “injury” in the context of a different statute—ORS
12.110(4)—which provides that a medical malpractice action
must be commenced within two years from the date that
an “injury” is or should have been discovered.11 The court
concluded that the legislature had used the word “injury”
to mean “what formed the basis for an action, i.e., legally
cognizable harm,” and that “harm is legally cognizable if it
is the result of tortious conduct.” 318 Or at 254-55. Thus,
the court explained, as used in ORS 12.110(4), an “injury”
is discovered when a plaintiff knows or should have known
of the existence of three elements: (1) harm; (2) causation;
and (3) tortious conduct. 318 Or at 255. The word “injury”
has the same meaning in claims brought under the OTCA.
Johnson v. Mult. Co. Dept. of Community Justice, 344 Or
111, 118, 178 P3d 210 (2008) (so stating).12
	         In this case, defendant acknowledges the applica-
bility of the discovery rule and contends that the trial court
correctly followed that rule in dismissing plaintiffs’ claims.
According to defendant, plaintiffs necessarily discovered
the facts that gave rise to legally cognizable claims for the
intentional tort of battery no later than 1984, the last date
on which Johnson touched any one of them.
	        Although plaintiffs did not expressly label any of
their claims as claims for battery, they agree that the facts
that they alleged in the claims that they labeled as claims
for “Sexual Abuse of a Child” may properly be considered as
stating claims for that intentional tort.13 Plaintiffs argue,
however, that they did not necessarily discover the facts

	   11
        ORS 12.110(4) provides, in relevant part:
    “An action to recover damages for injuries to the person arising from
    any medical, surgical or dental treatment, omission or operation shall be
    commenced within two years from the date when the injury is first discovered
    or in the exercise of reasonable care should have been discovered.”
(Emphasis added.)
	   12
       In Johnson, the court explained that those three elements of the discovery
rule—harm, causation, and tortious conduct—also incorporate a fourth element:
the probable identity of the tortfeasor. 344 Or at 118 n 2. Accord T. R. v. Boy Scouts
of America, 344 Or 282, 292, 181 P3d 758 (2008).
	   13
        Plaintiffs also argue that the claims that they labeled as claims for “Sexual
Abuse of a Child” may be viewed as negligence claims alleging a breach of
fiduciary duty. For reasons that we explain later in this opinion, we do not reach
that argument.
Cite as 353 Or 321 (2013)	329

necessary to that tort by 1984. At the time that Johnson
touched them, plaintiffs assert, they reasonably did not
recognize that his touching was abusive. In Gaston terms,
plaintiffs argue that, by 1984, they reasonably had not
discovered the tortious nature of Johnson’s conduct.

	        The parties’ arguments confine the scope of our
analysis; the legal question for our consideration on review
is whether plaintiffs’ allegations that Johnson fondled their
genitals in and before 1984 require the conclusion that their
battery claims accrued by that date. Defendant does not
contend that plaintiffs’ battery claims necessarily accrued
at some date after 1984 or challenge plaintiffs’ allegations
that they did not discover their injuries until 2006 at the
earliest. Rather, defendant argues that, because plaintiffs
alleged that Johnson’s touching occurred in or before 1984,
plaintiffs also knew or should have known the facts that
give rise to a battery claim by that date. We therefore begin
our analysis by considering the elements of such a claim.

	In Bakker v. Baza’r, Inc., 275 Or 245, 249, 551 P2d
1269 (1976), this court set out the elements of a battery
claim:

   	 “To constitute liability for a battery, the conduct which
   brings about the harm must be an act of volition on the
   actor’s part, and the actor must have intended to bring
   about a harmful or offensive contact or put the other
   party in apprehension thereof. 1 Harper & James, The
   Law of Torts 215-17, § 3.3 (1956). It is not necessary that
   the contact do actual physical harm—it is sufficient if the
   contact is offensive or insulting. Prosser, Law of Torts 36, §
   9 (4th ed 1971).”

As discussed in Harper, James and Gray on Torts, battery
redresses injury both to an individual’s physical integrity
and to an individual’s dignitary interests:

   “Involved in the tort of battery are two interests of
   personality: first, the interest in the physical integrity of
   the body, that it be free from harmful contacts; second, the
   purely dignitary interest in the body that it be free from
   offensive contact.”
330	                      Doe v. Lake Oswego School District

Fowler V. Harper, Fleming James, Jr., and Oscar S. Gray,
1 Harper, James and Gray on Torts § 3.2, 307 (3d ed 2006).
Prosser explains the reason:
   	 “The original purpose of the courts in providing the
   action for battery undoubtedly was to keep the peace by
   affording a substitute for private retribution. The element
   of personal indignity involved always has been given
   considerable weight. Consequently, the defendant is liable
   not only for contacts which do actual physical harm, but
   also for those relatively trivial ones which are merely
   offensive and insulting.”
W. Page Keeton et al., Prosser and Keeton on the Law of
Torts § 9, 41 (5th ed 1984) (footnotes omitted).
	The Restatement (Second) of Torts § 18(1) (1965)
also recognizes that battery may be either (or both) of two
types—battery that causes “harmful contact” or battery
that causes “offensive contact.” As used in the Restatement,
“harmful contact” includes physical impairment, physical
pain, or illness. Restatement § 15. “Offensive contact” is
defined as contact that offends a reasonable sense of personal
dignity. Restatement § 19. Thus, to be tortious, a defendant’s
physical contact must be harmful or offensive in nature. In
this case, defendant does not argue that plaintiff necessarily
suffered physical impairment, physical pain, or illness by
1984; defendant argues that plaintiff necessarily suffered
offensive contact by that date. Therefore, we address the
“offensive contact” element of a claim for battery.
	        Defendant argues that plaintiffs had to have
known that Johnson’s touching was offensive at the time
that it occurred: “Reaching under a fifth grader’s clothing
and fondling his genitals in front of a class of students is
offensive to a reasonable sense of personal dignity as a
matter of law.” Further, defendant argues, the “[f]ailure
of a child to apprehend the offensive nature of the contact
does not change the fact that society, and therefore the law,
considers the contact inherently harmful. What plaintiffs’
teacher allegedly did was offensive and immediately caused
cognizable harm.” Therefore, in defendant’s view, plaintiffs’
battery claims were legally cognizable, and the OTCA
limitations periods began to run, when Johnson’s touching
occurred—by 1984 at the latest.
Cite as 353 Or 321 (2013)	331

	        Plaintiffs accept that intentional action that results
in offensive contact gives rise to a battery claim, but respond
that they reasonably did not recognize Johnson’s conduct
as offensive when they were fifth-graders in his classroom.
Plaintiffs argue that defendant fails to separately analyze
the facts that give rise to a battery claim and the different
question of when plaintiffs knew or should have known
those facts. According to plaintiffs, the question here is not
whether plaintiffs pleaded facts sufficient to state a claim for
relief, but whether plaintiffs discovered or must be deemed
to have discovered those facts when Johnson’s conduct
occurred. Plaintiffs contend that, although Johnson’s
conduct was indeed offensive, they did not recognize it as
such by 1984. They contend that they did not comprehend
“the abusive nature” of Johnson’s touching due to the
“obedience, admiration, respect, and esteem” that they
had for Johnson. In addition, they contend that, because
the touching was “similar enough to the non-tortious
touching by Johnson that occurred during and as part of the
grooming process,” they, as young boys, were confused by
it and were unable to discern at the time that the touching
was “inappropriate or harmful.” Plaintiffs argue that, under
those alleged circumstances, it was error for the trial court
to dismiss their claims as untimely.
	        We agree with plaintiffs that defendant mistakenly
conflates the question of whether Johnson’s alleged conduct
was in fact offensive with the question whether plaintiffs,
as fifth-graders subjected to Johnson’s grooming tactics,
recognized or must be deemed to have recognized that fact
when the touching occurred. Even though the facts that
give rise to a claim have occurred, the applicable limitations
period does not begin to run until the plaintiff discovers
or should have discovered those facts. And the facts that
a plaintiff must have discovered or be deemed to have
discovered include not only the conduct of the defendant,
but also, under Gaston, the tortious nature of that conduct.
	In Gaston, the facts that gave rise to the plaintiff ’s
negligence claim had occurred when the defendant
completed the plaintiff ’s surgery. The defendant had
operated, committed alleged negligence, and caused the
plaintiff harm. However, the limitations period did not begin
332	                       Doe v. Lake Oswego School District

to run until the plaintiff knew or should have known those
facts. The plaintiff contended that, even though his left arm
was numb and did not function after surgery, he reasonably
did not know that there was a substantial possibility that
the defendant had acted tortiously. The court held that
whether the plaintiff ’s failure to comprehend the nature of
the defendant’s conduct was reasonable was a question of
fact that must be determined by the trier of fact. 318 Or at
257. The court explained:
   “Whether a reasonable person of ordinary prudence would
   be aware of a substantial possibility of tortious conduct is a
   question of fact that depends upon the nature of the harm
   suffered, the nature of the medical procedure, and other
   relevant circumstances. The nature of the harm suffered
   is important in determining whether a reasonable person
   would have been aware of a substantial possibility of
   tortious conduct. * * * A reasonable person that experiences
   symptoms that are incidental to a particular medical
   procedure may not be aware that he or she has been a
   victim of tortious conduct * * *.”
Id. at 256-57. Similarly, in Doe v. American Red Cross, 322
Or 502, 513, 910 P2d 364 (1996), the court held that the
limitations period did not begin to run when the facts giving
rise to a claim for negligence occurred: when the defendant
provided the plaintiff ’s husband with blood for a transfusion,
allegedly negligently, and the husband contracted a serious
disease as a result. The limitations period did not begin
to run until the plaintiff knew or should have known that
defendant may have acted tortiously—a question of fact that
precluded summary judgment for the defendant. Id. at 515.
	        As those cases demonstrate, knowledge that an
actor committed an act that resulted in harm is not always
sufficient to establish that a plaintiff also knew that the act
was tortious. And, as those cases also demonstrate, whether
a plaintiff knew or should have known the elements of a
legally cognizable claim, including the tortious nature of a
defendant’s act, is generally a question of fact determined
by an objective standard:
   	 “The discovery rule applies an objective standard—how
   a reasonable person of ordinary prudence would have acted
   in the same or a similar situation. The discovery rule does
Cite as 353 Or 321 (2013)	333

   not require actual knowledge; however, mere suspicion also
   is insufficient. The statute of limitations begins to run when
   the plaintiff knows or, in the exercise of reasonable care,
   should have known facts that would make a reasonable
   person aware of a substantial possibility that each of the
   elements of a claim exists.”
Kaseberg v. Davis Wright Tremaine, LLP, 351 Or 270, 278,
265 P3d 777 (2011) (internal citations omitted). In applying
that standard, a court must consider the facts from the
perspective of a reasonable person in the circumstances of
the plaintiff. T. R. v. Boy Scouts of America, 344 Or 282, 297-
98, 181 P3d 758 (2008). Those circumstances include, but
are not limited to, plaintiff ’s status as a minor , id. at 297,
the relationship between the parties, Kaseberg, 351 Or at
279, and the nature of the harm suffered. Gaston, 318 Or
at 256. A court cannot decide that question as a matter of
law unless the only conclusion that a reasonable trier of fact
could reach is that the plaintiff knew or should have known
the critical facts at a specified time. Kaseberg, 351 Or at 278
(so stating); T. R., 344 Or at 296 (same).
	       The same principles are applicable here. Just
as the negligent character of a defendant’s conduct is not
always immediately apparent, the line between offensive
and socially acceptable touching also may be difficult to
ascertain:
   	 “The relationship of the parties, the customs prevailing
   in the particular community, and the attitude of the actor
   in the circumstances are important in determining whether
   a particular contact is a battery. Thus, persons on close and
   intimate terms will engage in conduct toward one another
   that would be intolerable between strangers. Frequently
   the question of battery or no battery will turn on the
   issue of implied consent. Familiarities not justified by the
   peculiar association of the parties must conform to the
   usages of the community and contacts not thus sanctioned
   may be actionable batteries. Although the state of mind
   of the actor may make offensive contact not otherwise
   so and, conversely, make inoffensive acts that, if done in
   anger, would be highly objectionable, nevertheless even
   well-intentioned acts, such as practical jokes or horseplay,
   may be actionable if they exceed the bounds of tolerable
   taste. Thus, a pat or similar display of affection by a sincere
334	                      Doe v. Lake Oswego School District

   and even passionate lover may be highly offensive to an
   unresponsive woman who has not consented thereto, and an
   elephantine sense of humor may be responsible for contacts
   that are offensive to one with a more delicate sensitivity.”
Harper, 1 Harper, James and Gray on Torts § 3.2 at 310-11
(footnotes omitted). Just as a plaintiff ’s discovery of the
negligent character of a defendant’s conduct is a question of
fact requiring consideration of the relationship between the
parties and the nature of the harm, so too are those factors
relevant to a discovery of whether a defendant has engaged
in offensive contact.
	        In this case, defendant argues that the trial court
was correct that the only conclusion that a reasonable trier
of fact could reach was that, in 1984, plaintiffs knew or
should have known that Johnson’s touching was offensive.
Plaintiffs respond that, given their status as minors, their
relationship with Johnson, and the nature of the harm that
his acts inflicted, a jury could find from the facts that they
alleged that they reasonably did not know that Johnson’s
acts were offensive when they occurred. We agree with
plaintiffs. Although it is true, as defendant argues, that in
the 1970s and 1980s many fifth-graders would have known
that Johnson’s touching was offensive, plaintiffs alleged
facts from which a jury could find that these plaintiffs
reasonably did not reach that conclusion at the time of
Johnson’s actions. Plaintiffs alleged that Johnson engaged
in a “grooming process” that included gaining the support
of plaintiffs’ families so that they would counsel their sons
to respect his authority and comply with his instructions
and requests. Plaintiffs alleged that, as a result, they had
such admiration and respect for Johnson, and the wrongful
touching in which Johnson engaged was so similar to the
non-tortious touching that they had experienced during
the grooming process that, as young boys, plaintiffs were
confused by Johnson’s conduct and unable to discern that
the touching was inappropriate.
	In Johnson v. Mult. Co., Dept. Community Justice,
this court addressed whether a plaintiff who had been
sexually assaulted should have learned from newspaper
articles that the defendant’s negligent supervision of a sex
offender—her assailant—had contributed to her injury. 344
Cite as 353 Or 321 (2013)	335

Or at 113. The court considered the plaintiff ’s particular
circumstances in concluding that, even though published
media reports indicated that the defendant may have been
negligent, the plaintiff had raised a question of fact about
whether she knew or should have known of the defendant’s
potentially tortious conduct. Id. at 122-23. The court
reasoned:
   	 “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.”
Id. at 122.
	        In this case, we are similarly unprepared to make
the leap of faith for which defendant contends—that in
1984, all fifth-graders must be deemed to have known that a
trusted teacher who had touched them in socially acceptable
ways and whom they had been conditioned to respect and
obey had crossed a line and touched them in a new way that
society abhorred.
	        In stating that conclusion, we emphasize that
plaintiffs’ complaint does no more than allege facts that they
must prove. Defendant may challenge the truth of plaintiffs’
allegations at many remaining junctures, and our decision
does not foreclose it from doing so. We also do not mean to
imply that a limitations period does not begin to run until
a plaintiff knows the full extent of the harm that has been
inflicted or becomes aware of the legal implication of facts
rather than of the facts themselves. Defendant is correct
that, if a plaintiff knows that he or she has suffered some
harm and knows that it is the result of tortious conduct, an
argument that the plaintiff did not know the full extent of
the harm or that those facts had legal significance will be of
no avail. That is not the case here, however. Here, plaintiffs
contend that they did not know a fact necessary to their
battery claims—that, at the time that it occurred, Johnson’s
conduct was offensive.
	        We also reject defendant’s final, statutory argument.
Defendant asserts that ORS 12.117, which provides a statute
of limitations for child abuse claims brought against private
336	                              Doe v. Lake Oswego School District

actors, is indicative of a legislative policy that should govern
our decision in this case.14 ORS 12.117 provides that an
individual who was a minor when he or she was subjected
to “child abuse” by a private actor may bring an action for
damages until he or she reaches age 40 or within five years
from the date that the individual discovered or should have
discovered the causal connection between the injury and
the child abuse, whichever is longer. That statute does not
explicitly address “child abuse” committed by public actors,
deprive individuals abused by public actors of existing
remedies, or preclude the application of the discovery rule
in battery claims against public actors. That the legislature
saw fit to grant individuals subjected to “child abuse” by
private actors at least five years from the date of discovery
of the causal connection between the injury and the abuse
to bring their claims does not indicate a legislative intent
to deprive others subjected to battery by public actors of a
two-year period from the date they discover their injuries
to commence their actions. ORS 12.117 does not render the
discovery rule inapplicable to plaintiffs’ claims.
	       For the reasons stated, we conclude that the trial
court erred in granting defendant’s ORCP 21 motion to
dismiss plaintiffs’ claims for “Sexual Abuse of a Child”—
claims that we have analyzed as claims for battery—on
timeliness grounds.15 The trial court and the Court of
Appeals did not draw a distinction between plaintiffs’
battery claims and their claims for intentional infliction of
emotional distress and negligence. We also will follow that
approach at this stage of the proceedings and, therefore,
	   14
        ORS 12.117(1) provides:
    “Notwithstanding ORS 12.110, 12.115 or 12.160, an action based on conduct
    that constitutes child abuse or conduct knowingly allowing, permitting or
    encouraging child abuse that occurs while the person is under 18 years of age
    must be commenced before the person attains 40 years of age, or if the person
    has not discovered the causal connection between the injury and the child
    abuse, nor in the exercise of reasonable care should have discovered the causal
    connection between the injury and the child abuse, not more than five years
    from the date the person discovers or in the exercise of reasonable care should
    have discovered the causal connection between the child abuse and the injury,
    whichever period is longer.”
	   15
        In this court, plaintiffs argue that their claims for “Sexual Abuse of a Child”
also may be viewed as negligence claims alleging a breach of fiduciary duty.
Because we reach the conclusion that the trial court erred in dismissing those
claims, we need not address that argument.
Cite as 353 Or 321 (2013)	337

conclude that the trial court erred in dismissing plaintiffs’
claims for intentional infliction of emotional distress and
plaintiff Jack Doe 6’s claim that defendant was negligent in
failing to supervise or terminate Johnson, and in entering a
limited judgment for defendant.16
	        The decision of the Court of Appeals is reversed. The
limited judgment of the circuit court is reversed, and the
case is remanded to the circuit court for further proceedings.




	  16
       Because our holding may or may not affect the trial court’s ruling as to the
merits of plaintiffs’ claim for declaratory judgment, we concluded that that is a
matter that the trial court should consider on remand.
