No. 55 August 11, 2016 211

IN THE SUPREME COURT OF THE

STATE OF OREGON

Jan WYERS,

as Personal Representative of the Estate of

Dianne Terpening, Deceased,

Respondent on Review,

v.

AMERICAN MEDICAL RESPONSE NORTHWEST, INC., 

an Oregon corporation,

Petitioner on Review.

091014750; CA A149258 (Control)

Hazel CORNING,

Respondent on Review,

v.

AMERICAN MEDICAL RESPONSE NORTHWEST, INC., 

an Oregon corporation,

Petitioner on Review.

091116570; A149259

Violet ASBURY,

Respondent on Review,

v.

AMERICAN MEDICAL RESPONSE NORTHWEST, INC., 

an Oregon corporation,

Petitioner on Review.

091116571; CA A149260

Stacey WEBB,

Respondent on Review,

v.

AMERICAN MEDICAL RESPONSE NORTHWEST, INC., 

an Oregon corporation,

Petitioner on Review.

091116572; CA A149261
212 Wyers v. American Medical Response Northwest, Inc.

Michele SHAFTEL,

Respondent on Review,

v.

AMERICAN MEDICAL RESPONSE NORTHWEST, INC., 

an Oregon corporation,

Petitioner on Review.

091216650; CA A149262

Natsue AKRE,

Respondent on Review,

v.

AMERICAN MEDICAL RESPONSE NORTHWEST, INC., 

an Oregon corporation,

Petitioner on Review.

100202934; CA A149263

 (SC S063000)

On review from the Court of Appeals.*

Argued and submitted November 9, 2015.

Michael J. Estok, Lindsay Hart, LLP, Portland, argued 

the cause and filed the briefs for petitioner on review. With 

him on the briefs was James L. Dumas, Lindsay Hart, LLP, 

Portland.

Mark McDougal and Gregory Kafoury, Kafoury & 

McDougal, Portland, argued the cause and filed the briefs 

for respondents on review.

Lindsey H. Hughes, Keating Jones Hughes, P.C., 

Portland, filed the brief for amicus curiae Oregon Association 

of Defense Counsel.

Erin K. Olson, Law Office of Erin Olson, P.C., Portland, 

filed the brief for amicus curiae Oregon Trial Lawyers 

Association.

Before Balmer, Chief Justice, and Kistler, Walters, 

Landau, Baldwin, and Brewer, Justices.**

______________

** Appeal from Multnomah County Circuit Court, Kathleen M. Dailey, 

Judge. 268 Or App 232, 342 P3d 129 (2014).

** Linder, J., retired December 31, 2015, and did not participate in the decision of this case. Nakamoto, J., did not participate in the consideration or decision 

of this case.
Cite as 360 Or 211 (2016) 213

LANDAU, J.

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.

Case Summary: Plaintiffs each filed a civil action under the vulnerable person statute, ORS 124.100(5), against an ambulance company, American Medical 

Response Northwest, Inc. (AMR), alleging that AMR had permitted a paramedic 

in its employ to sexually abuse the plaintiffs while they were patients. The trial 

court granted AMR’s motion for summary judgment, plaintiffs appealed, and the 

Court of Appeals reversed. AMR petitioned for review, and the Supreme Court 

allowed review and consolidated the appeals. Held: (1) ORS 124.100(5) requires 

that a defendant knowingly act or fail to act under circumstances in which a 

reasonable person should have known that the same sort of abuse of a vulnerable 

person that occurred would, in fact, occur; and (2) on summary judgment, the 

evidence was sufficient to establish a general issue of material fact about whether 

a reasonable person in AMR’s position should have known that the sort of abuse 

that plaintiffs suffered would occur. 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.
214 Wyers v. American Medical Response Northwest, Inc.

LANDAU, J.

This consolidated appeal concerns six civil actions 

against an ambulance company for permitting a paramedic 

in its employ to sexually abuse women while they were 

patients. The claims are alleged under ORS 124.100(5), 

which authorizes a vulnerable person to bring an action 

against a person who “permit[s]” another person to engage 

in physical or financial abuse “if the person knowingly acts 

or fails to act under circumstances in which a reasonable 

person should have known” of the abuse. The ambulance 

company moved for summary judgment on the ground that 

there was no evidence that it actually knew of its paramedic’s abuse against plaintiffs and then acted in a way 

that permitted that abuse to occur. The trial court agreed 

and granted the motion. The Court of Appeals reversed, concluding that the statute does not require actual knowledge 

of a plaintiff’s abuse. Wyers v. American Medical Response 

Northwest, Inc., 268 Or App 232, 342 P3d 129 (2014). For 

the reasons that follow, we affirm the decision of the Court 

of Appeals and reverse the judgment of the trial court.

I. BACKGROUND

Because the trial court granted a defense motion for 

summary judgment, we state the facts in the light most favorable to plaintiffs. Shell v. Schollander Companies, Inc., 358 

Or 552, 554 n 1, 369 P3d 1101 (2016). Defendant American 

Medical Response Northwest, Inc., (AMR) provides ambulance and other medical transportation services. AMR 

employed Haszard as a paramedic. This case arises out of 

multiple allegations of sexual abuse by Haszard of patients 

while they were being transported in AMR ambulances.

A. The Herring Litigation

In late 2007, AMR transported a female patient, 

Herring, to a hospital. During Herring’s transport, Haszard 

placed his hand on Herring’s hand and shoved their hands 

down inside the front of her pants. Later at the hospital, Herring screamed to staff about the incident, which 

prompted a call to AMR. An employee of AMR’s spoke with 

Herring at the hospital and later called police to report that 

Herring wanted to make a complaint about ambulance staff. 
Cite as 360 Or 211 (2016) 215

Police responded and, as part of their investigation, discovered in their database a prior complaint about Haszard.

Three days later, police arrested Haszard. The 

arrest resulted in publicity, which prompted other women to 

come forward and report similar incidents to the authorities. 

Haszard was eventually charged with various crimes and 

pled guilty to attempted first-degree sexual abuse as to four 

women. Not long after the Herring incident, Herring and a 

number of other former patients filed individual commonlaw battery and negligence actions against both Haszard 

and AMR. Herring eventually obtained a jury verdict in her 

favor. See Herring v. American Medical Response Northwest, 

255 Or App 315, 327, 297 P3d 9 (2013) (affirming judgment), 

and the other former patients settled.

B. Discovery of Earlier Incidents of Abuse

As part of pretrial discovery in the Herring litigation, other former patients were contacted and interviewed 

about their ambulance transport experiences with AMR 

in general and with Haszard in particular. That process 

revealed that additional women—including the six plaintiffs 

in this case—had been inappropriately touched by Haszard 

during ambulance transport.

1. Spain

The first incident occurred in February 2006 and 

involved Spain, who awoke from unconsciousness in the back 

of an AMR ambulance to find Haszard pressing her hand on 

his crotch and rocking back and forth. She later called a 

business number for AMR and told the receptionist that the 

paramedic was a “freak” who had inappropriately touched 

her, that it was unsafe for that paramedic to transport little 

girls, and that he should be taken off ambulance duty. When 

asked, the receptionist declined to provide Spain with the 

paramedic’s name. Spain’s sister witnessed the phone call 

and later recalled that Spain had told her that the receptionist had hung up on Spain.

AMR, which had in place a regular process for handling ambulance staff complaints, had no record of the telephone call from Spain.
216 Wyers v. American Medical Response Northwest, Inc.

2. Whalen

A month later, in March 2006, AMR sent customers a survey. One of those customers, Whalen, reported in 

her survey that Haszard had failed to respect her privacy at 

the hospital by not looking away while a nursing assistant 

helped her into a gown, despite her obvious discomfort. One 

of AMR’s supervisors investigated the complaint by interviewing both Whalen and Haszard. During that interview, 

Whalen told the supervisor that Haszard had stared at her 

and acted sexually aroused, but she made no complaint 

about any unwanted touching. She later recalled that the 

supervisor had “dismissed everything that [she had] said,” 

telling her that she “must have been imagining things.” The 

supervisor, however, did write an internal report recounting 

Whalen’s complaint that Haszard had not shown sufficient 

consideration for her privacy and concluding that Whalen’s 

complaint had been “substantiated.”

3. Plaintiff Akre

In April 2006, Akre was transported by an AMR 

ambulance attended by Haszard. She had trouble breathing, was choking, and feared for her life. During her transport, Haszard repeatedly brushed her bare chest while 

placing leads on her. She was afraid to tell Haszard to stop, 

because she thought that Haszard would harm her. She did 

not report the incident to AMR or to anyone else.

4. Rotting

In December 2006, Rotting was transported by 

AMR ambulance with Haszard attending. During the transport, Haszard touched Rotting in a manner similar to the 

sexual touching that plaintiff Akre had described. He also 

slowly stroked Rotting’s thigh. Rotting reported the incident 

to a nurse and to family members. Her son called AMR and 

spoke with the same supervisor who had investigated the 

Whalen complaint. The supervisor then called Rotting and 

told her that there would be an investigation. The investigation, however, was limited to interviewing Haszard, 

who denied having engaged in any inappropriate conduct. 

Rotting’s son later called AMR again, this time stating that 

the police should be involved. AMR took no further action, 
Cite as 360 Or 211 (2016) 217

although its risk management department was internally 

notified that Rotting might file a complaint.

5. Plaintiffs Shaftel, Asbury, and Terpening

In January 2007, plaintiff Shaftel was transported 

by AMR ambulance, attended by Haszard. While Shaftel 

went in and out of consciousness in the ambulance, Haszard 

repeatedly touched her bare chest. About three weeks 

later, plaintiff Asbury, age 73, also was sexually touched by 

Haszard during an ambulance transport. And three weeks 

after that, plaintiff Terpening, who was hearing impaired, 

was also.1

 None of those three women reported Haszard’s 

conduct to AMR, the police, or hospital staff.

6. Pries

In March 2007, Pries reported to police that Haszard 

had sexually abused her during an ambulance transport by 

taking her hand, placing it inside her pants, and manipulating it. Police spoke with an AMR supervisor about the incident. Several AMR employees, including Haszard, then met 

with a company risk-management official. AMR ultimately 

determined that it could not substantiate Pries’s allegations, 

but it warned Haszard in writing that either that incident or 

the earlier Rotting incident would be reopened if more information came to light. AMR did not make any effort to contact Pries, did not request any further information from the 

police, and did not tell police about the Rotting complaint 

from the previous year.

7. Plaintiffs Webb and Corning

In April 2007, Haszard sexually touched plaintiff 

Webb during an ambulance transport, while she went in and 

out of consciousness. Four months after that, Haszard also 

sexually touched plaintiff Corning, then 86, during a transport. Neither plaintiff Webb nor plaintiff Corning reported 

the incidents to AMR, and the company did not learn about 

them until discovery in the Herring litigation.

C. Initiation and Disposition Below of Plaintiffs’ Claims

Plaintiffs Akre, Shaftel, Asbury, Terpening, Webb, 

and Corning individually brought civil actions against AMR 

1 Terpening is now deceased. Plaintiff Wyers serves as the personal representative of her estate.
218 Wyers v. American Medical Response Northwest, Inc.

for permitting another person—Haszard—to sexually abuse 

them, in violation of ORS 124.100. Each of their complaints 

alleged that AMR knew or had reason to know that Haszard 

had physically abused ill or injured female patients in the 

past and that he was likely to do so in the future if allowed 

to be alone with them in the back of an ambulance. Their 

complaints further alleged that AMR nonetheless directed 

Haszard to continue to work in those circumstances, resulting in their abuse. The six cases were consolidated for trial.

AMR moved for summary judgment, arguing that, 

to establish liability under ORS 124.100(5), plaintiffs must 

produce evidence that it either participated in or knowingly 

permitted Haszard to commit the specific acts of abuse 

that were the bases for plaintiffs’ claims. In this case, AMR 

argued, it is undisputed that it had no knowledge of any of 

those acts of abuse before they occurred. Plaintiffs responded 

that ORS 124.100(5) does not require proof of actual knowledge of their abuse. They argued that, instead, the statute 

requires only that AMR acted or failed to act when it should 

have known that such abuse was likely to occur and that, in 

light of earlier complaints about Haszard, AMR should have 

known that he was likely to abuse them.

The trial court agreed with AMR, concluding that 

the statute requires proof that AMR “had knowledge of the 

specific abuse that *** Haszard allegedly committed on each 

[p]laintiff.” Finding an absence of evidence that AMR had 

been aware of Haszard’s abuse of plaintiffs until long after 

that abuse had occurred, the court granted AMR’s motion 

for summary judgment and dismissed plaintiffs’ claims.

Plaintiffs appealed, and the Court of Appeals 

reversed. Wyers, 268 Or App at 255. That court reasoned 

that ORS 124.100(5) did not require plaintiffs to establish 

that AMR subjectively knew that Haszard was engaging in 

misconduct with plaintiffs at the time that that misconduct 

was occurring. Id. at 246-47. Rather, that statute required 

only that AMR “have knowledge of facts establishing that it 

knew of the substantial risk of the abuse actually suffered.” 

Id. at 247. The court ultimately concluded that a defendant 

“permit[s]” the abuse at issue if the defendant either “acted 

or failed to act with knowledge that would lead a reasonable 
Cite as 360 Or 211 (2016) 219

person to conclude that the plaintiff was being abused or 

would likely be abused in the manner alleged by the plaintiff.” Id. Applying that standard to this case, the court determined that plaintiffs had presented “sufficient evidence 

from which a reasonable juror could find that [AMR had] 

‘permitted’ Haszard to sexually abuse plaintiffs.” Id. at 255. 

We allowed review to address the parties’ arguments about 

the meaning of the requirements set out in ORS 124.100(5).

II. ANALYSIS

A. Interpretation of ORS 124.100(5)

ORS 124.100 through ORS 124.140 set out a framework that creates a civil action for abuse of a vulnerable 

person. ORS 124.100(2) provides:

“A vulnerable person who suffers injury, damage or 

death by reason of physical abuse or financial abuse may 

bring an action against any person who has caused the 

physical or financial abuse or who has permitted another 

person to engage in physical or financial abuse.”

A “vulnerable person” is a person who is elderly, financially 

incapable, or incapacitated, or, in certain circumstances, 

has a disability.2

 ORS 124.100(1)(e). “Physical abuse,” for 

the purpose of the statute, includes sexual abuse. ORS 

124.105(1)(e)-(h).

ORS 124.100(5) identifies the particular requirements for bringing an action for permitting another to 

engage in physical or financial abuse:

“An action may be brought under this section against 

a person for permitting another person to engage in physical or financial abuse if the person knowingly acts or fails 

to act under circumstances in which a reasonable person 

should have known of the physical or financial abuse.”

By its terms, that statute refers both to a requirement that 

the defendant “knowingly” act and that the defendant do so 

under circumstances in which a reasonable person “should 

have known” of the abuse. Not surprisingly, the parties seize 

2 AMR does not dispute that plaintiffs were “vulnerable persons” within the 

meaning of the statute.
220 Wyers v. American Medical Response Northwest, Inc.

on one of those two references to the virtual exclusion of the 

other.

AMR highlights the reference to “knowing[]” action 

or inaction, and argues that “ORS 124.100(5) requires proof 

that the defendant engaged in ‘knowing’ and ‘intentional’ 

misconduct.” AMR briefly acknowledges the subsequent 

statutory reference to what a reasonable defendant “should 

have known,” but asserts that it “cannot undo the actual 

knowledge requirement stated earlier.” (Emphasis in original.) AMR attempts to reconcile the apparent conflict by 

reading the statute to require actual knowledge of the conduct that constitutes the abuse while perhaps not actually 

knowing—but in circumstances in which it should have 

known—that the conduct constituted a crime qualifying as 

abuse within the meaning of the statute.

Plaintiffs highlight the reference to what a defendant “should have known” in ORS 124.100(5), arguing that 

liability depends on proof that a reasonable person merely 

“should have known” of the abuse. In plaintiffs’ view, AMR’s 

reading of that phrase is nonsensical—citing by way of example evidence that a defendant permitted another to commit 

such abusive acts as rape and sodomy under circumstances 

in which the defendant, while perhaps not actually knowing 

that those acts are prohibited forms of abuse, nevertheless 

should have known that fact. At the same time, plaintiffs 

not once in their brief explain the significance of the statute’s reference to “knowingly act[] or fail[] to act.”

We are thus confronted with an issue of statutory 

construction, requiring us to determine the meaning of the 

statute that the legislature most likely intended, based on 

an examination of its text in context, legislative history, and 

pertinent rules of construction. State v. Gaines, 346 Or 160, 

171-72, 206 P3d 1042 (2009). We begin with the text of the 

statute, which as we have noted authorizes an action against 

a defendant who has permitted abuse of a vulnerable person if the defendant “knowingly acts or fails to act under 

circumstances in which a reasonable person should have 

known of the * ** abuse.” ORS 124.100(5). The statute sets 

out two different mental states—one that appears to refer to 

actual knowledge and the other that refers to constructive 
Cite as 360 Or 211 (2016) 221

knowledge. It is an awkwardly phrased bit of drafting, to 

say the least. And the parties’ difficulty in reconciling the 

two is understandable. We cannot, however, pick one mental 

state and ignore the other, as the parties effectively propose. 

We are obligated to take a statute as we find it and give 

effect to all of it, if possible. See, e.g., Force v. Dept. of Rev., 

350 Or 179, 190, 350 P3d 139 (2011) (“Statutory provisions, 

however, must be construed, if possible, in a manner that 

will give effect to all of them.” (Internal quotation marks 

omitted.)); see also ORS 174.010 (“[W]here there are several 

provisions or particulars such construction is, if possible, to 

be adopted as will give effect to all.”).

In this case, the key to complying with that obligation lies in recognizing that statutory references to culpable mental states always refer to an object; said another 

way, a mental state is always “directed toward something.” 

State v. Crosby, 342 Or 419, 428, 154 P3d 97 (2007). That 

“something” to which a mental state is directed may be 

particular conduct, or it may be the circumstances in which 

conduct occurs, or it may be a particular result. Id. at 428-

29. Knowledge as to conduct, for example, can refer to an 

awareness of a bodily movement or knowledge of the essential character of an act, as when a criminal statute requires 

proof of knowledge of the “assaultive nature” of a defendant’s 

conduct. State v. Barnes, 329 Or 327, 337-38, 986 P2d 1160 

(1999). In contrast, knowledge as to circumstances can refer 

to awareness of particular facts while prohibited conduct is 

being committed, as, for example, a criminal statute requiring proof of knowledge of the age of the person to whom a 

defendant has sold drugs. State v. Blanton, 284 Or 591, 593, 

588 P2d 28 (1978).

ORS 124.100(5) does refer to two different mental 

states. But the object of each of those references to a mental state is significantly different. First, the statute requires 

proof that a defendant “knowingly act[ed] or fail[ed] to act.” 

In that phrase, the adverb “knowingly” modifies conduct, 

namely, acting or failing to act. It does not refer to knowledge of particular circumstances. Nor does it refer to knowledge of any particular result. It refers to the quality of the 

defendant’s conduct—“knowing[],” as opposed to accidental, 

reckless, or something else.
222 Wyers v. American Medical Response Northwest, Inc.

To be sure, the particular “act[]” or “fail[ure] to act” 

that the defendant must “knowingly” commit is conduct that 

“permit[s]” another person to engage in prohibited abuse. 

ORS 124.100(5). AMR argues that the use of the term “permit” necessarily implies that the one doing the permitting 

must have actual knowledge of the conduct that has been 

permitted. It is not an unreasonable argument. In ordinary usage, the word “permit” can be used to connote active 

authorization. Webster’s, for example, lists among its definitions of the verb “to consent to expressly or formally ** * to 

give (a person) leave,” Webster’s Third New Int’l Dictionary 

1683 (unabridged ed 2002), suggesting that the actor has 

full knowledge of what is being permitted.

But AMR’s reliance on that definition of the word 

“permit” is unavailing for several reasons. First, ORS 

124.100(5) itself does not say that a defendant must “knowingly permit” abuse to occur. Rather, the word “knowingly” 

modifies “acts or fails to act.” Second, the ordinary meaning 

of the word “permit” is not necessarily as narrow as AMR 

suggests. In common usage, the word “permit” is also used 

to refer to an act or failure to act that has the effect of making something possible, without mention of intention as to 

the result. Webster’s, for example, also provides that “permit” 

can mean “to make possible[;] *** to give an opportunity.” 

Id.; see also American Heritage Dictionary of the English 

Language 1315 (5th ed 2011) (“[t]o afford opportunity or 

possibility”). Third, the effect of AMR’s reading is to create 

the sort of conflict between mental state requirements that 

we have just noted that we are obligated to avoid, if possible. 

If the statute requires a defendant to have knowledge of the 

facts or circumstances of the abuse, then the later reference 

to a requirement that a reasonable defendant “should have 

known” of those very facts or circumstances makes no sense. 

See also generally Moore v. Willis, 307 Or 254, 259, 767 P2d 

62 (1988) (allegation that person knew something is different from allegation that person “should have known” something; former amounts to ultimate fact, but latter requires 

judgment about particular set of circumstances from which 

conclusions must be drawn).

Taking ORS 124.100(5) as it is written, it states 

that what a defendant must know is the character or nature 
Cite as 360 Or 211 (2016) 223

of the defendant’s act or failure to act. That act or failure to 

act must have the effect of permitting abuse to occur. But 

the effect of that act or failure to act of permitting abuse 

is a result, actual knowledge of which the statute does not 

require.

We turn, then, to the requirement that the defendant have acted or failed to act “under circumstances in 

which a reasonable person should have known of the physical or financial abuse.” ORS 124.100(5). The wording of 

that requirement leads to several observations. First, the 

reference to circumstances in which “a reasonable person 

should have known” unambiguously sets out a constructive 

knowledge requirement. That is, ORS 124.100(5) applies 

under circumstances in which a reasonable person should 

have known of another’s abuse, regardless of whether the 

defendant actually knew of the abuse. Cf., Gaston v. Parsons, 

318 Or 247, 266, 864 P2d 1319 (1994) (Peterson, J., dissenting) (“constructive knowledge” of harm refers to when, “in 

the exercise of reasonable care,” it should have been discovered even if not actually discovered); Forest Grove Brick v. 

Strickland, 277 Or 81, 86, 559 P2d 502 (1977) (“constructive knowledge” refers to a person “charged with knowledge 

that a reasonably diligent inquiry would disclose” (internal 

quotation marks omitted)). Second, the statute appears to 

assume that the “circumstances” themselves are known or 

available to the reasonable person. Thus, ORS 124.100(5) 

provides that, based on circumstances that are known to a 

reasonable person, certain other facts perhaps not actually 

known will nevertheless be imputed, because a reasonable 

person aware of those circumstances should have known 

of the abuse. Third, what a reasonable person should have 

known is “the physical or financial abuse.” In contrast to the 

first mental state requirement, then, the second one clearly 

refers to constructive awareness of a particular fact—

another person’s physical or financial abuse—not awareness 

of the defendant’s own conduct.

There remains an issue concerning what ORS 

124.100(5) means when it refers to “the physical or financial 

abuse” that a reasonable person should have known. On the 

one hand, the use of the definite article “the” in reference 

to “physical or financial abuse” could refer to the specific 
224 Wyers v. American Medical Response Northwest, Inc.

incident or incidents of abuse that the defendant allegedly 

has permitted another to commit against the plaintiff or 

plaintiffs. On the other hand, it could refer more generally to 

the type of abuse that the defendant has permitted another 

to commit, whether against the plaintiff or against another 

vulnerable person.

AMR argues for the former interpretation. In its 

view, ORS 124.100(5) applies only under circumstances in 

which it can be demonstrated that it should have known of 

“the very same incident of abuse that injured the plaintiff.” 

In fact, AMR goes even further and contends that the reference to “the” abuse in ORS 124.100(5) has the effect of 

transforming a statute requiring constructive knowledge of 

abuse to one requiring actual knowledge of that abuse. In 

AMR’s view,

“the constructive knowledge requirement in ORS 

124.100(5) is necessarily limited to knowledge of the abuse 

that occurred on the particular plaintiff. In other words, the 

defendant must have some degree of actual knowledge of 

the abuse on the plaintiff.”

(Emphasis in original.)

AMR’s contention that the requirement that a defendant reasonably should have known of “the” abuse amounts 

to a requirement that the defendant have actually known of 

that abuse is squarely contradicted by the statute’s explicit 

reference to constructive—not actual—knowledge. But that 

does not completely resolve the matter. ORS 124.100(5) does 

refer to constructive knowledge of “the” abuse, and AMR’s 

broader suggestion that the phrasing could be taken to refer 

to constructive knowledge of a specific instance or instances 

of abuse against the plaintiff or plaintiffs is not unreasonable. This court, after all, has not infrequently declared that 

the use of the definite article can signify a narrowing intent. 

See, e.g., State v. Lykins, 357 Or 145, 159, 348 P3d 231 (2015) 

(“As a grammatical matter, the definite article, ‘the,’ indicates something specific, either known to the reader or listener or uniquely specified.”).

The court, however, has also cautioned that the use 

of the definite article is not always, so to speak, definitive. 

See, e.g., SAIF v. DeLeon, 352 Or 130, 138, 282 P3d 800 (2012)
Cite as 360 Or 211 (2016) 225

(“[T]he definite article ‘the’ is not dispositive.”). Its use in 

context may reveal an intention to encompass less categorically specific referents. See, e.g., State v. Stark, 354 Or 1, 

7-8, 307 P3d 418 (2013) (statutory reference to “the judgment” applies not only to original judgment but also to subsequently entered judgments). This is such a case for several 

reasons.

To begin with, the statutory context suggests that 

it is not likely that the legislature intended its use of the 

definite article in ORS 124.100(5) to be dispositive. In fact, 

ORS 124.100 refers to “physical or financial abuse” a number of times, only sometimes using the definite article. ORS 

124.100(2), for example, provides that a vulnerable person 

who has been abused may bring an action against a person 

“who has permitted another person to engage in physical 

or financial abuse”—without specifying “the” abuse against 

that particular vulnerable person. Presumably, the abuse 

mentioned in subsection (2) is the same as the abuse mentioned in subsection (5) of the same statute. Subsection (5) 

in fact specifically states that it refers to an action “brought 

under this section,” namely, ORS 124.100(2). Yet subsection 

(2) is phrased more generally, not referring solely to the 

particular abuse that another person may commit against 

a particular vulnerable person.3

 At the very least, the inconsistency in phrasing between subsections (2) and (5) in this 

regard cautions against placing too much emphasis on the 

use of the definite article in the latter subsection.

Aside from that, the consequences of adopting 

AMR’s proposed reading of the statute give us pause. If 

AMR is correct that ORS 124.100(5) applies only under 

circumstances in which a reasonable person should have 

known of the very abuse that its actions permitted, then, 

logically, the statute would practically never apply. It would 

come into play only when a defendant participated in or was 

present during an instance of abuse, or when the defendant 

3 The wording of ORS 124.100(2) itself appears internally inconsistent on 

this very point. It states that a vulnerable person who was the victim of physical 

or financial abuse may bring an action against “any person who has caused the

physical or financial abuse” (using the definite article) and any person “who has 

permitted another person to engage in physical or financial abuse” (omitting any 

article). 
226 Wyers v. American Medical Response Northwest, Inc.

had reason to know in advance of a perpetrator’s plan to 

abuse a particular vulnerable person. Under AMR’s reading 

of ORS 124.100(5), then, an employer that has received confirmed reports of an employee’s repeated abuse of multiple 

vulnerable patients would face no liability under that statute for allowing that employee to abuse a vulnerable patient, 

so long as the employer had no reason to know of the employee’s abuse of that specific patient.

AMR insists that the legislative history demonstrates that ORS 124.100(5) was intended to have precisely 

that limited effect. According to AMR, that history shows 

that the statute was “directed toward ‘abusers’ and toward 

no one else. Individuals who ‘permitted’ abuse by third parties were just a sub-category of ‘abusers.’” AMR argues that 

the legislative history demonstrates that to be the case in 

two ways. First, AMR relies on the absence of legislative history suggesting a broader intended meaning of the statute. 

It reasons that

“there was no discussion about standards of negligence or 

recklessness fitting into this statute, or about potentially 

applying this statute against negligent employers with 

wayward employees. Had such standards been intended, 

one might expect some discussion[,] given that such a law 

would have far-reaching implications ** *.”

Second, AMR argues that the focus of the legislature in 

passing what eventually became ORS 124.100 was on abusers and that the law was not intended to target “institutional providers of care or services.” For the reasons that 

follow, AMR’s reliance on that “history” is unavailing.

We begin with AMR’s reliance on an absence of 

any comment on the constructive knowledge requirement 

during the legislature’s deliberations on what became ORS 

124.100(5). As this court has stated on a number of occasions, silence in the legislative history of a statute, by itself, 

is not often reliable evidence that the legislature intended 

anything. Lake Oswego Preservation Society v. City of Lake 

Oswego, 360 Or 115, 129, ___ P3d ___ (2016) (“[N]egative 

inferences based on legislative silence are often unhelpful 

in statutory interpretation.”); Weldon v. Bd. of Lic. Pro. 

Counselors and Therapists, 353 Or 85, 100, 293 P3d 1023 
Cite as 360 Or 211 (2016) 227

(2012) (stating reluctance to infer legislative intent from 

silence); State v. Rutley, 343 Or 368, 375, 171 P3d 361 (2007) 

(“statutory silence alone is not a sufficiently clear indication of legislative intent to dispense with a culpable mental 

state”). Inferring legislative intent on the basis of a lack of 

comment in the legislative history is problematic for several 

reasons.

At the outset, it relies on unrealistic assumptions 

about the legislative process and the omniscience of legislators. That is, it assumes that legislators are in a position 

to predict all the potential consequences of legislation and 

that they will always address them. Such an assumption 

ignores the fact that legislators often cannot be aware of 

every potential consequence of enacting the bills before 

them, as well as the fact that the press of time in legislative 

sessions of limited duration often does not provide legislators the opportunity to comment on all of a bill’s potential 

consequences. Moreover, drawing conclusions from silence 

in legislative history misapprehends the nature of legislative history itself, which often is designed not to explain 

to future courts the intended meaning of a statute, but 

rather to persuade legislative colleagues to vote in a particular way. Thus, for example, a proposed legislative change 

to the status quo might not prompt comment precisely 

because everyone understands that the law will have that 

effect or because supporters do not wish to draw attention 

to it. See generally Anita S. Krishnakumar, The Sherlock 

Holmes Canon, 84 Geo Wash L Rev 1, 21-35 (2016) (detailing problems with drawing inference from silence in legislative history);4

 John C. Grabow, Congressional Silence and 

the Search for Legislative Intent: A Venture Into “Speculative 

Unrealities,” 64 BUL Rev 737, 765 (1984) (“necessarily frequent silences of Congress provide a wholly unreliable and 

unprincipled basis for inferring legislative intent”).

As for the legislative history that does exist, we 

find little support for the conclusions that AMR draws from 

it. What is now ORS 124.100 was introduced in 1995 as 

4 The name of the article is taken from the Sherlock Holmes story Silver 

Blaze, in which a watchdog failed to bark while a racehorse was stolen, leading 

Holmes to infer that the dog knew the thief, its trainer. Sir Arthur Conan Doyle, 

Silver Blaze, in The Complete Sherlock Holmes 349 (1930). 
228 Wyers v. American Medical Response Northwest, Inc.

Senate Bill (SB) 943. It was drafted by an elder-law practitioner, Bertalan, with input from an elder-abuse task force. 

Bertalan testified before the Senate Judiciary Committee 

following the introduction of the bill and its referral to that 

committee. Tape Recording, Senate Committee on Judiciary, 

SB 943, Mar 23, 1995, Tape 69, Side A (statement of Lisa 

Bertalan). She explained that the focus of the bill was not 

the nursing home industry because that industry already is 

heavily regulated; rather, her focus in drafting the bill was 

less-regulated entities and individual abusers of the elderly 

and the vulnerable. Tape Recording, Senate Committee on 

Judiciary, SB 943, Apr 12, 1995, Tape 102, Side B (statement of Bertalan). Her written testimony explained:

“The purpose of [the bill] is to protect elders and incapacitated adults from physical and financial abuse ***. The 

aim of Senate Bill 943 is to prevent and provide a specific 

remedy for physical abuse and financial exploitation from 

relatives, the new ‘friend’ who suddenly cuts the elderly 

person off from family and the rest of the world, phony contractors who sell the elderly person substandard services 

or unnecessary goods, and the acquaintance who suddenly 

becomes the elderly person’s live-in caregiver in exchange 

for the deed to the family home or other property.”

Testimony, Senate Committee on Judiciary, SB 943, Mar 23,

1995, Ex R (statement of Bertalan); see also Testimony, 

House Committee on Judiciary, SB 943, May 12, 1995 Ex D 

(statement of Bertalan) (to similar effect; purpose of bill is 

to provide specific remedy for “physical abuse and financial 

exploitation” of elderly and incapacitated persons, against 

relatives, acquaintances, businesspeople, and live-in-caregivers who perpetrate abuses).

Following introduction of the bill, representatives 

of the Oregon Health Care Association proposed exclusions 

for nursing facilities, residential care facilities, and assisted 

living facilities. In response, an amendment was introduced 

to do just that. The committee approved the bill with that 

amendment. The Senate then passed the bill unanimously, 

as did the House of Representatives.

Nothing in the foregoing history suggests that the 

part of SB 943 that became ORS 124.100(5) was intended 
Cite as 360 Or 211 (2016) 229

to apply only to individual abusers and not to employers 

or other institutions. To be sure, it does reflect a concern 

that the provisions of the bill not apply to particular institutions, namely, nursing facilities, residential care facilities, 

and assisted living facilities. And, consistently with that 

concern, the final version of the legislation contained an 

exemption for those institutions. See ORS 124.115 (setting 

out persons not subject to action under ORS 124.100). But 

no other institutions or entities—businesses such as AMR, 

for example—were included in that limited list. The express 

exclusion of such a list of certain entities strongly suggests 

that the legislature intended not to exclude any others not 

listed. See Crimson Trace Corp. v. Davis Wright Tremaine 

LLP, 355 Or 476, 497, 232 P3d 980 (2014) (when a statute lists specific exemptions, “the legislature fairly may be 

understood to have intended to imply that no others are to 

be recognized”).

If the reference to “circumstances in which a reasonable person should have known of the physical or financial 

abuse” in ORS 124.100(5) does not bear the narrow interpretation for which AMR contends, there remains the question of what it does mean. As we noted earlier, that wording 

is reasonably capable of referring not just to circumstances 

in which a reasonable person should have known of a particular instance of abuse against a particular plaintiff; rather, 

it could also refer to circumstances in which a reasonable 

person should have known of the same or similar abuse of 

a vulnerable person. Said another way, the statute could be 

read to apply when, in light of information known or available to a reasonable person, that person should have known 

of the kind of abuse that in fact occurred. That interpretation is the better of the reasonable possibilities. It gives 

effect to all the statute’s terms, in particular, to both of its 

different mental state requirements. It results in no redundancy or conflict between statutory terms. It inserts nothing into the statute that the legislature did not include. At 

the same time, it omits nothing from the statute that the 

legislature enacted. And it ensures that the statute applies 

beyond the very narrow circumstances in which a defendant 

either participated in or was present during abuse, or had 

reason to know in advance of a plan to abuse a particular 
230 Wyers v. American Medical Response Northwest, Inc.

vulnerable person, consistently with the apparent purpose 

of the statute as reflected in its wording and its enactment 

history.

To summarize: ORS 124.100(5) refers to two different mental states, one referring to actual knowledge and 

the other to constructive knowledge. The former refers to 

a defendant’s act or failure to act. The latter refers to the 

circumstances in which that act or failure to act occurs. 

The statute thus provides that there must be evidence 

that a defendant knowingly acted or failed to act under 

circumstances in which a reasonable person should have 

known that the same sort of abuse of a vulnerable person 

that occurred would, in fact, occur.5

 So, for example, ORS 

124.100(5) applies if an employer such as AMR knowingly 

(as opposed to, say, inadvertently) schedules an employee to 

work on an ambulance run under circumstances in which a 

reasonable person should have known that the sort of abuse 

inflicted on the plaintiff would occur.

B. Application

With the foregoing interpretation in mind, we turn 

to the question whether the trial court erred in granting 

AMR’s summary judgment motion as to all six plaintiffs. 

Summary judgment is appropriate if, viewing the evidence 

in the light most favorable to the nonmoving party, no genuine issue of material fact exists “and the moving party is 

entitled to judgment as a matter of law.” See Chapman v. 

Mayfield, 358 Or 196, 204, 361 P3d 566 (2015) (so stating 

and citing ORCP 47 C).

As explained in our earlier factual summary, the 

incidents at issue in this case involved instances of abuse 

inflicted on six different vulnerable persons—plaintiffs—by 

AMR’s employee, Haszard. AMR does not dispute that each 

of the six plaintiffs qualified as a “vulnerable person” within 

the meaning of ORS 124.100(1)(e).

5 As we note later in this opinion, the evidence in the record is sufficient 

to permit a reasonable juror to find that a reasonable person in AMR’s position 

should have known that the sort of abuse that did occur would, in fact, occur. We 

need not address whether the statute also contemplates liability under circumstances in which a reasonable person should have known that such abuse as did 

occur was merely foreseeable.
Cite as 360 Or 211 (2016) 231

None of the six plaintiffs reported her interaction 

with Haszard to AMR, to other medical staff, or to the 

police. It thus is undisputed that, until discovery during the 

Herring litigation several years later, AMR had no actual 

knowledge of Haszard’s physical abuse of any of the six 

plaintiffs in this case. The question, however, is not whether 

AMR actually knew about that abuse. Instead, the question 

is whether plaintiffs established genuine issues of material 

fact as to whether AMR knowingly scheduled Haszard to 

work as a paramedic under circumstances in which a reasonable person should have known that the sort of abuse 

that the plaintiffs suffered would occur. AMR does not suggest that it had not knowingly assigned Haszard to work 

as a paramedic during each of the six alleged incidents of 

abuse. That leaves, then, the question whether a genuine 

issue of material fact exists about whether AMR did so under 

circumstances in which a reasonable person should have 

known that the same type of abuse that occurred would in 

fact occur.

1. Plaintiff Akre

The earliest incident involving a plaintiff in this case 

concerned plaintiff Akre. Viewed in the light most favorable 

to plaintiffs, evidence in the record shows that, by the time 

of plaintiff Akre’s abuse, AMR knew that other similarly situated vulnerable persons had reported that Haszard had 

abused them. Specifically, in February 2006, Spain had 

called AMR and reported to its receptionist that one of the 

company’s paramedics was a “freak” who had inappropriately touched her, that it was unsafe for that paramedic to 

transport little girls, and that he should be taken off ambulance duty. Additionally, there is evidence that complaints, 

such as those alleging sexual misconduct, were entered 

into a database and forwarded to AMR’s county operations 

manager.

There is also evidence that, one month after the 

Spain incident, Whalen reported in an AMR customer survey that Haszard had failed to respect her privacy at the hospital by not looking away while a nursing assistant helped 

Whalen into a gown, despite her obvious discomfort. AMR 

followed up with an interview of Whalen, during which she 
232 Wyers v. American Medical Response Northwest, Inc.

complained that Haszard had stared at her and acted sexually aroused. Whalen later recounted that the AMR investigator had “dismissed everything that [she had] said,” telling her that she “must have been imagining things.” The 

investigator, however, did write an internal report describing Whalen’s complaint and concluding that it had been 

“substantiated.” Plaintiff Akre’s abuse occurred about three 

weeks after that.

There is thus evidence that, at the time of plaintiff 

Akre’s abuse, AMR had already received at least two complaints of sexually inappropriate conduct on the part of its 

paramedic, Haszard. Indeed, one of those reports had been 

investigated and confirmed as having been “substantiated.” 

Under those circumstances, there is at least a genuine issue 

of fact about whether AMR should have known of the sort 

of abuse that plaintiff Akre suffered. To be sure, AMR disputes the Spain report, noting that it has no record of such 

a complaint call having been placed or, if it had been placed, 

that the receptionist ever reported the call to anyone else. 

But AMR’s dispute establishes no more than that there is 

a genuine issue of material fact about what transpired. At 

this stage, we are constrained to view the evidence in the 

light most favorable to plaintiff. In that light, there is at 

least a genuine issue of material fact about whether AMR 

should have known when it assigned Haszard to ambulance 

duty that the same sort of abuse inflicted on plaintiff Akre 

would occur. See Towe v. Sacagawea, Inc., 357 Or 74, 109-

10, 346 P3d 1207 (2015) (evidence mixed as to factual issue 

in dispute, reasonable juror could find facts either way, and 

so case presented factual issues for jury to resolve; trial 

court therefore erred in granting summary judgment). The 

trial court therefore erred in granting summary judgment 

against plaintiff Akre.

2. Plaintiffs Shaftel, Asbury, and Terpening

By the time of the alleged abuse against plaintiffs Shaftel, Asbury, and Terpening, there is evidence 

that AMR had received even further reports of Haszard’s 

abusive conduct toward vulnerable persons. In December 

2006, Rotting was transported by ambulance with Haszard 

attending. During that transport, Haszard touched Rotting 
Cite as 360 Or 211 (2016) 233

in a manner similar to the sexual touching that plaintiff 

Akre had alleged; he also slowly stroked Rotting’s thigh. 

Rotting reported the incident to a nurse and to family members, and her son called AMR. Her son spoke with the same 

supervisor who had investigated the Whalen complaint, and 

the supervisor stated that there would be an investigation. 

The investigation, however, was limited to interviewing 

Haszard, who denied having engaged in any inappropriate 

conduct. Rotting’s son called AMR again and stated that 

the police should be involved. AMR took no further action, 

although its risk management department was notified that 

Rotting might file a complaint.

A month later, Haszard sexually abused plaintiff 

Shaftel. And three weeks after that, he sexually abused 

plaintiff Asbury. Three weeks later, he also sexually abused 

plaintiff Terpening. Thus, by the time of Haszard’s abuse 

of those three plaintiffs, there is evidence that AMR had 

received three reports of its employee’s abuse of vulnerable 

persons under circumstances similar to those later incidents 

of abuse that actually occurred. Again, AMR disputes some 

of the foregoing evidence, but that is not the point at this 

stage in the proceedings. On the record before us, viewed in 

the light most favorable to plaintiffs Shaftel, Asbury, and 

Terpening, there is at least a genuine issue of material fact 

about whether AMR should have known that the sort of 

abuse that plaintiffs Shaftel, Asbury, and Terpening suffered would occur. The trial court therefore erred in granting summary judgment against those three plaintiffs.

3. Plaintiffs Webb and Corning

Haszard’s abuse of plaintiffs Webb and Corning 

occurred not long after the abuse of plaintiffs Shaftel, 

Asbury, and Terpening. By that time, AMR had received 

yet another report of abuse. In March 2007, Pries reported 

to police that Haszard had sexually abused her during an 

AMR ambulance transport by taking her hand, placing it 

inside her pants, and manipulating it. Police spoke with an 

AMR supervisor, and several AMR employees, including 

Haszard, then met with a company risk-management official. AMR ultimately determined that it could not substantiate Pries’s allegations, but it warned Haszard in writing 
234 Wyers v. American Medical Response Northwest, Inc.

that either that incident or Rotting’s would be reopened if 

more information came to light. AMR did not make any 

effort to contact Pries, did not request further information 

from police, and did not tell police about the Rotting complaint. A month later, Haszard abused plaintiff Webb during 

an ambulance transport. Four months after that, he abused 

plaintiff Corning.

Thus, by the time of Haszard’s abuse of plaintiffs 

Webb and Corning, AMR had received four reports of abuse 

of vulnerable persons by its employee Haszard, including 

one report involving the police. Indeed, there is evidence 

that AMR warned Haszard not to engage in such conduct in 

the future. That evidence is sufficient to establish a genuine 

issue of material fact about whether a reasonable person in 

AMR’s position should have known that the sort of abuse 

that plaintiffs Webb and Corning suffered would occur. As a 

result, the trial court erred in granting summary judgment 

for AMR against plaintiffs Webb and Corning.

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.