Page 1 – TRIAL MEMORANDUM OF DEFENDANT SUZANNE YOUNG

Robert D. Scholz, OSB #773379 

E-mail: rscholz@msmlegal.com 

MacMILLAN SCHOLZ & MARKS, P.C. 

Attorneys at Law 

900 SW 5th Avenue, Suite 1800 

Portland, Oregon 97204 

Telephone: (503) 224-2165 

Facsimile: (503) 224-0348 

 

Attorneys for Defendant Suzanne Young 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

TAISSA AND RAY ACHCAR-WINKELS, 

individually and as Parents and Next Friends of 

S.A., a minor, 

 Plaintiffs, 

 v. 

LAKE OSWEGO SCHOOL DISTRICT, an 

Oregon municipal corporation; HEATHER 

BECK, an individual; JENNIFER SCHIELE, an 

individual; IAN LAMONT, an individual; 

KAYLA NORDLUM, an individual; ASHLEY 

NORDLUM, an individual; and SUZANNE 

YOUNG, an individual; and UNKNOWN 

STAFF, unknown individuals, 

Defendants.

 Case No. 3:15-cv-00385-MO

 TRIAL MEMORANDUM OF 

 DEFENDANT SUZANNE YOUNG

Defendant Suzanne Young (“Young”) submits the following Trial Memorandum: 

INTRODUCTION 

 Plaintiffs Taissa and Ray Achcar-Winkels (hereinafter “Plaintiffs” or “Plaintiff 

Parents” or “Plaintiff Mother” or “Plaintiff Father”) filed this action on behalf of their 

daughter S.A., and themselves, against the Lake Oswego School District and several of 

its employees alleging misconduct in connection with the Lakeridge High School Pacer 

Case 3:15-cv-00385-MO Document 221 Filed 10/06/17 Page 1 of 21
Page 2 – TRIAL MEMORANDUM OF DEFENDANT SUZANNE YOUNG

Dance Team (“PDT”), in the summer of 2014. Individual defendants include District 

employees Heather Beck, Superintendent of the District, Lakeridge High School 

Principal, Jennifer Schiele, Lakeridge High School Athletic Director, Ian Lamont, and 

Lakeridge High School PDT coaches, Kayla and Ashley Nordlum. Also named as a 

defendant is non-employee, Suzanne Young (“Young”), a parent of a former PDT 

member. Young’s daughter had been a PDT member for school years 2010-2013. 

During that period, Young had assisted the PDT as a volunteer parent, with photography, 

team outfit ordering, promotion and finances. A new PDT coach was to be hired in 2014. 

Young was asked by other parents to continue on, even though her daughter had 

graduated, until a replacement could be found. Plaintiff Mother was to be that 

replacement. 

Plaintiffs allege that their daughter, S.A., a member of PDT, was the subject of 

hazing by other PDT members and that the defendants, including Young, are liable for 

that alleged conduct. 

On August 21, 2015, this Court issued its Findings and Recommendations (F&R, 

Dkt. 54; Opinion & Order Adopting F&R, Dkt. 63) dismissing all nine claims for relief 

asserted against Young in Plaintiffs’ Second Amended Complaint (“SAC”). Four claims 

were dismissed with prejudice (hazing, child abuse, failure to report failure and 

retaliation); and five without prejudice, with leave to amend. Plaintiffs amended. The 

current 172 paragraph Third Amended Complaint (“TAC”; Dkt. 61) was further reduced 

by plaintiffs to three claims against Young: 

• Fourth Claim for Relief (Negligence); 

• Fifth Claim for Relief (Negligent Infliction of Emotional Distress); 

• Sixth Claim for Relief (Intentional Infliction of Emotional Distress). 

Case 3:15-cv-00385-MO Document 221 Filed 10/06/17 Page 2 of 21
Page 3 – TRIAL MEMORANDUM OF DEFENDANT SUZANNE YOUNG

Young moved for summary judgment on all three claims. The Court granted the 

motion against plaintiffs’ claim Sixth Claim for Relief, Intentional Infliction of 

Emotional Distress (“IIED”). (F&R, Dkt. 142 at 49; Opinion & Order adopting in part 

and rejecting in part, F&R, Dkt. 165).1

 

In granting Young’s motion for summary judgment on the IIED in the TAC, that 

Court ruled that Young’s alleged name calling conduct was not sufficiently egregious to 

support the claim. (Id.). Plaintiffs did not object to the ruling dismissing the IIED claim 

against Young. 

The Court denied Young’s motion for summary judgment against the Fourth 

Claim for Relief (Negligence) and Fifth Claim for Relief (Negligent Infliction of Emotion 

Distress). 

ARGUMENT 

1. Fourth Claim for Relief (Negligence) 

Plaintiffs’ Fourth Claim for Relief, entitled “Negligence,” and asserted against all 

defendants, alleges the following breaches of duties at TAC ¶150: 

a. Failing to comply with and enforce District policies on hazing; 

b. Failing to adequately supervise, train, and hire qualified coaches or 

administration; 

c. Failing to restrain peer to peer and third-party harassment; 

d. Failing to restrain assaults and batteries; 

e. Failing to prevent child abuse; 

f. Failing to report child abuse; 

g. Condoning, allowing and participating in retaliation by students, parents; 

staff (including Staff I), volunteers, and other third-parties; 

h. Failing to ensure that coaches were timely equipped with proper training 

certifications; 

i. Failing to comply with OSAA Rules; and 

j. Failing to comply with Oregon law and allowing child abuse to occur. 

 

1

 In the August 21, 2015, Findings & Recommendations, the Court dismissed the claim for IIED in the 

SAC because plaintiffs conceded that it did not meet the standard for an IIED claim against Young because 

it only alleged name calling. (F&R, Dkt. 54 at 15). 

Case 3:15-cv-00385-MO Document 221 Filed 10/06/17 Page 3 of 21
Page 4 – TRIAL MEMORANDUM OF DEFENDANT SUZANNE YOUNG

TAC ¶150 includes certain allegations against Young in spite of the fact that the 

Court previously dismissed with prejudice all claims in the SAC for hazing (Fourth 

Claim for Relief) and retaliation (Fourteenth Claim for Relief), stating: 

As plaintiffs concede, they have no private right of action for hazing or retaliation 

under Oregon law. Instead they must pursue a claim for common law negligence, 

battery, or some other intentional tort independent of any duty under ORS 

339.362. 

(F&R, Dkt. 54). The Court had also dismissed the SAC claim for child abuse (Twelfth 

Claim for Relief) with prejudice because Plaintiffs conceded the claim was more properly 

based in negligence. (Id. at 13-14). And the Court dismissed with prejudice the SAC 

claim for failure to report child abuse (Thirteenth Claim for Relief of the SAC) because 

Young had no duty to report any alleged child abuse. (Id. at 16). 

Young had no obligations to make sure that coaches had training certificates, nor 

did Young have an obligation to obtain any coach training. Plaintiffs do not allege 

specific OSA regulations against Young. Young was not subject to the OSAA rules. 

Plaintiffs cannot establish any violation of any OSAA rule by Young that harmed 

Plaintiffs. 

 The reshuffling of most of Plaintiffs’ allegations in the TAC against Young into 

the heading of “negligence” did not address the fact that this Court also dismissed 

Plaintiffs’ negligence claim in the SAC, stating that: 

[B]oth those claims [negligence and negligent infliction of emotional 

distress] fail to allege sufficient facts to hold Young liable for any 

negligent conduct. Plaintiffs must allege that Young directly participated 

in the tortuous conduct, or aided or substantially assisted in the hazing of 

S.A. Plaintiffs do not allege that Young was present during or had any 

involvement in the hazing events. Plaintiffs do not allege that Young 

knew that S.A. would be subject to harm during those events, knew that 

anyone intended to or was likely to harm S.A. during the events, or that 

Young provided or procured an opportunity for S.A. to be harmed. . . . To 

Case 3:15-cv-00385-MO Document 221 Filed 10/06/17 Page 4 of 21
Page 5 – TRIAL MEMORANDUM OF DEFENDANT SUZANNE YOUNG

state a plausible negligence claim, plaintiffs must allege that Young 

participated in the tortuous conduct or substantially assisted others in 

harming S.A. 

(Id. at 14). 

The TAC realleges three events in the summer of 2014 that purportedly give rise 

to Plaintiffs’ negligence claims against Young: (1) a “bonding trip” in Gearhart, Oregon, 

on June 28-29, 2014; (2) an “initiation” on August 9-10, 2014, in Lake Oswego, Oregon; 

and (3) “mandatory boot camp” in Sunriver, Oregon, on August 24-28, 2014. (TAC ¶47). 

Plaintiffs do not allege, nor is there any evidence, that Young directly participated in any 

tortuous conduct or aided or substantially assisted in the hazing of S.A. Plaintiffs do not 

allege that Young was present at any of the hazing events. Plaintiffs do not allege, nor is 

there any evidence, that Young was present for the initiation. (TAC ¶69.) Plaintiffs do 

not allege, nor is there any evidence, that Young had any involvement in the hazing 

events. Plaintiffs do not allege, nor is there any evidence, Young knew S.A. would be 

subject to harm during those events, knew that anyone intended to or was likely to harm 

S.A. during the events, or that Young provided or procured an opportunity for S.A. to be 

harmed. 

Plaintiffs instead contend Young’s purported knowledge of or involvement in 

prior PDT events during past years made her responsible for what occurred in the 

summer of 2014. 

A. Young’s Limited Role and Involvement with the PDT

In an effort to create a duty on the part of Young that might give rise to some 

liability based on negligence for the alleged hazing events, even though she had nothing 

to do with any of the three events, Plaintiffs restated Young’s alleged role and position 

Case 3:15-cv-00385-MO Document 221 Filed 10/06/17 Page 5 of 21
Page 6 – TRIAL MEMORANDUM OF DEFENDANT SUZANNE YOUNG

with the PDT in the TAC.2 Plaintiffs allege that at all times Young was a volunteer, an 

agent of the District, and was in charge of the finances and public relations for the PDT. 

(TAC ¶31). None of these allegations are sufficient to impose some obligation on the 

part of Young toward protecting S.A. Plaintiffs also allege that Young was the manager 

of the PDT, a member of the coaching staff and also the team chief financial officer. 

(TAC ¶31). Plaintiffs further allege Young received compensation from the PDT for her 

services (TAC ¶32), and that the District gave Young the authority to engage in contracts 

on behalf of the PDT. (TAC ¶32). 

Labeling Young as a manager of the PDT does not enhance Young’s obligations 

to or relationship with S.A. Plaintiff Mother testified that Young managed the accounts, 

the finances, the photography, video and posters. Plaintiff Mother didn’t know if Young 

supervised the team members or whether Young disciplined any members. 

 Brooke Mattern was the PDT coach for seven years, ending in the 2013-2014 

season. Mattern testified she did not know if Young had a specific title; Young was the 

bookkeeper for the PDT, did public relations, video, photos, hosted parties with the 

parents and did ordering. 

With regard to the allegation that Young received compensation from the PDT for 

her services (TAC ¶32), Young received a total of $300 in conjunction with assisting a 

commercial photographer with a team photo shoot and poster preparation. That is the 

only money Young has ever received from the PDT. Young never was given authority to 

engage in contracts on behalf of the PDT. 

 

2

 Noteworthy, in spite of these new allegations of enhanced status, and still continuing to allege Young was 

an agent of the District, plaintiffs abandoned the two claims under 42 U.S.C. § 1983 previously dismissed. 

Case 3:15-cv-00385-MO Document 221 Filed 10/06/17 Page 6 of 21
Page 7 – TRIAL MEMORANDUM OF DEFENDANT SUZANNE YOUNG

Young was not a member of the PDT coaching staff. Athletic Director Lamont 

characterized Young’s role as dealing with finances and accounts. Lamont never 

considered Young as a coach under the OSAA guidelines. According to Lamont, if 

Young was called team manager that did not equate with Young being a coach; many 

team managers are students.3

 Young never took any of the required classes to be 

qualified as a coach under the OSAA, nor did she ever apply to become an OSAA 

certified coach. The OSAA rules do not apply to Young. Young has no dance training or 

dance experience. Young has never taught any dancers in any capacity. Young did not 

attend or plan team practices. On occasion she would stop by practice to drop off checks, 

photographs or other items; she videotaped a few practices for former coach Mattern. 

According to S.A., Young did not train team members. 

 With regard to being the team CFO, Young used that term jokingly in an e-mail to 

Athletic Director Lamont concerning Plaintiffs’ request for a full refund of the entire 

activity fee, as opposed to a pro rata refund amount that Plaintiff Mother had previously 

agreed to with Young after S.A. quit the team. In a letter to Principal Schiele on the 

subject of the refund, Plaintiff Father referred to Young as “the bookkeeper.” 

 

3

 One PDT member testified as to Young’s involvement as follows: “Q. Did she have any involvement 

with the dance team over this last school year 2014/’15? A. Yes. Q. What was her involvement with the 

team? A. She helped assist, or I know she helped manage the money. That was about it.” Another team 

member testified: “Q. Did Suzanne Young ever attend your practices? A. Not for the whole time. 

Sometimes she would come at the beginning just to say ‘Hi’ or drop off, like, posters, for instance.” A 

third team member testified: “Q. Tell me what Suzanne Young’s role is with this dance team or what it 

was last year. A. She is just the mom. Well, her daughter graduated last year, but she just helped a lot 

with, like, financial stuff, like helping us and getting, like, apparel and she did our poster pictures, because 

she is good with photography. Q. Did she come to your practices? A. This year or last year? Q. Last 

year. Well, this school year, present school year. A. Maybe, like, one or two to, like, give Kayla money 

or, like transfer money, something to do with the, like, account. She would, like, watch the routine once 

and then she left.” 

Case 3:15-cv-00385-MO Document 221 Filed 10/06/17 Page 7 of 21
Page 8 – TRIAL MEMORANDUM OF DEFENDANT SUZANNE YOUNG

 The TAC does not allege, nor is there any evidence, that Young had the authority 

or obligation to stop any of the alleged conduct that Plaintiffs contend harmed S.A. 

There is no evidence that ever Young assumed any authority that would create any duties 

to protect S.A. from harm. 

B. Young Did Not Have any Knowledge, or Assist with, or Participate in any 

Alleged Misconduct by PDT Members 

 Plaintiffs assert Young previously had a daughter on the team and gained 

substantial knowledge of the team’s traditions, including traditions of an initiation 

process that amount to hazing. (TAC ¶33). It is further alleged that Young knew about 

inappropriate games (not specified) traditionally played by the team. (TAC ¶33). 

 In an effort to tie Young to the initiation activities, Plaintiffs allege that Young 

hosted at least one prior year’s initiation activities/traditions (not identified) at her home. 

(TAC ¶34). It is also alleged that Young attended numerous bonding (not specified) and 

other traditional team events (not identified) (TAC ¶35); and that Young previously 

collected money from team parents to facilitate initiation activities. (TAC ¶36). 

 These assertions suggesting that Young should have known about the initiation 

activities in advance of the evening were made in SAC ¶42, but the Court ruled that 

“knew or should have known about the activities” was not enough. 

 Indeed, Young had no involvement in planning, organizing, supervising or 

participating in any of the three events. Young had no knowledge as to what activities 

were going to take place at Gearhart. Young had no knowledge when initiation would 

take place and what activities were planned. The initiation activities are alleged to have 

been arranged by the senior team members. (TAC ¶61). Evidence will establish that 

Young was not included in e-mails to others, including Plaintiff Parents, about initiation 

Case 3:15-cv-00385-MO Document 221 Filed 10/06/17 Page 8 of 21
Page 9 – TRIAL MEMORANDUM OF DEFENDANT SUZANNE YOUNG

details. Young did not know that initiation had even taken place on August 9, 2014, until 

mid-September 2014. Young was only aware of the Sunriver event as a result of helping 

secure a rental home in Sunriver for the team and writing checks for the lodging and 

expenses incurred that week by the team, including reimbursing Plaintiff Mother for vans 

Plaintiff Mother rented for transportation. Young had no knowledge of the specific 

activities planned for Sunriver. 

Plaintiffs seek to conflate the general knowledge of initiation as a traditional event 

with knowledge as to what activities had taken place during past initiations and what 

might take place at a future initiation that could cause harm to S.A. The assertion that 

Young had allowed or encouraged inappropriate behavior at past initiations is quite 

frankly offensive, as is the notion that she had a basis to expect that unacceptable 

behavior would take place at initiation. Young had no interest in the event because her 

daughter had graduated. Young was aware that the team traditionally held an initiation 

event. That was no secret. Former coach Brooke Mattern was aware of the initiation 

tradition and that part of the event was without a chaperone. But knowing that initiation 

took place does not equate with knowledge that team members might cause harm to S.A. 

Young and her husband had hosted team sleepovers before, but Young had never 

attended a bonding or other event that involved any activities which might cause harm to 

a team member. Young never collected money from team parents to facilitate initiation 

activities. Young’s limited knowledge of initiation included activities where team 

members dressed up in costumes and drove around Lake Oswego doing funny dances in 

public. She understood that on one occasion team members had been blindfolded, but she 

was not aware whether the team members were driven around blindfolded, she just saw 

Case 3:15-cv-00385-MO Document 221 Filed 10/06/17 Page 9 of 21
Page 10 – TRIAL MEMORANDUM OF DEFENDANT SUZANNE YOUNG

that blindfolds were being made at her house. When Young hosted one sleepover, the 

girls came home with flour on them the seniors had thrown on the under classmen. She 

reported that observation to the then team coach, Brooke Mattern. 

 Specifically with regard to each event: 

 i. Gearhart 

Prior to Gearhart, Plaintiff Parents were aware that team members had played the 

10 fingers game on previous outings. (TAC ¶54.)4

 Prior to the Gearhart event, Plaintiff 

Mother went to coach Kayla Nordlum and told Nordlum she heard the game had been a 

long-standing tradition and she wanted it stopped. Plaintiff Mother did not recall asking 

Young to do anything to make sure the game was not played in Gearhart. Plaintiff 

Mother never expected Young to do something about the 10 fingers game. Once she 

learned about the 10 fingers game, Plaintiff Mother thought the appropriate step was to 

notify coach Kayla Nordlum. 

S.A. didn’t feel that being exposed to the 10 fingers game caused her any 

psychological injury; it was just something she did not want to hear. Despite her 

daughter having been exposed to the other girls who had been playing the 10 fingers 

game, Plaintiff Mother did not feel it was in her daughter’s best interest to take her off the 

dance team.5

 According to S.A., nobody hazed her at Gearhart. S.A. does not blame 

Young for anything that happened at Gearhart. Plaintiff Mother was still glad to have 

Young as the manager of the team even after the 10 fingers game had occurred at 

Gearhart. 

 

4

 According to the former coach, Brooke Mattern, the 10 fingers game was common. She had heard of it 

in high school and college. She expected her team members had played it and she never advised them not 

to play the game. Parent Kelly Savage was aware of the game. 

5

 After learning the 10 fingers game had been played in Gearhart, Plaintiff Father did not call anyone in the 

school administration to tell them he was upset that the game had been played. 

Case 3:15-cv-00385-MO Document 221 Filed 10/06/17 Page 10 of 21
Page 11 – TRIAL MEMORANDUM OF DEFENDANT SUZANNE YOUNG

ii. Initiation 

S.A. does not blame Young for anything that occurred during initiation. S.A. did 

not ask to quit the team after initiation. 

Plaintiffs allege that Young told Plaintiff Mother about initiation traditions. 

Another parent of a freshman team member had concerns about initiation, so Plaintiff 

Mother inquired of Young. Young told Plaintiff Mother of her experience hosting the 

initiation sleepovers and the type of activities that Young was aware of from prior 

initiations. Plaintiff Mother did not ask Young to take any steps to make sure that 

initiation activities would be appropriate. Plaintiff Mother went to coach Kayla with her 

concerns, which Plaintiff Mother felt was the appropriate manner to deal with her 

concerns. 

In the days after the initiation, Plaintiff Mother did not notify Young what 

Plaintiff Mother had witnessed at the high school on the night of initiation. Plaintiff 

Mother went to the high school the evening of initiation and climbed a tree to observe the 

initiation events Plaintiffs allege took place in TAC ¶¶64-67. Plaintiff Mother videoed 

the activities with her cell phone, but later deleted the video. While in the tree, Plaintiff 

Mother did not call law enforcement or Athletic Director Lamont, coach Kayla Nordlum, 

other parents or Young. Plaintiff Mother called her husband from the tree, but he did not 

come to the high school. He told her not to call the police. At the end of the activities at 

the school, Plaintiff Mother watched the team members get into cars and drive away. 

Plaintiff Mother then went home. Plaintiff Parents allowed S.A. to continue with the 

other unsupervised activities that evening, then the sleepover at the house of another team 

member after the activities. Plaintiff Parents allowed S.A. to participate in the team car 

Case 3:15-cv-00385-MO Document 221 Filed 10/06/17 Page 11 of 21
Page 12 – TRIAL MEMORANDUM OF DEFENDANT SUZANNE YOUNG

wash activity the next morning despite what happened the night before. Plaintiff Parents 

contacted Athletic Director Lamont and Principal Schiele within one week after 

initiation. In spite of what Plaintiff Mother had witnessed and learned from S.A. about 

the initiation activities, they did not complain to Lamont or Schiele that Young was 

responsible for what happened. In spite of the initiation events, Plaintiff Parents decided 

to allow S.A. to participate in the Sunriver boot camp less than three weeks later. 

Plaintiff Parents arranged for the rental vans to take the team on that trip. Plaintiff 

Mother never told Young she felt Young was responsible for what happened at initiation. 

Plaintiff Mother wrote a long confidential letter to Superintendent Beck describing the 

initiation events, but she never mentioned Young or that she felt Young had any 

responsibility for what happened. 

iii. Sunriver Boot Camp

Discussion of Young’s responsibility for events that took place in Sunriver is very 

simple. Neither S.A., Plaintiff Mother nor Plaintiff Father contend Young was 

responsible for the events that took place in Sunriver. S.A. testified that she was not 

hazed at Sunriver. 

C. Negligence - Special Relationship and Foreseeability 

The facts at trial will not support a claim for negligence against Young, regardless 

of the type of injury (physical or emotional) asserted by Plaintiffs. 

As discussed above, the evidence offered by Plaintiffs in response to Young’s 

Motion for Summary Judgment did not satisfy the legal standards the Court had 

articulated earlier in this case in connection with Rule 12 Motions. 

Case 3:15-cv-00385-MO Document 221 Filed 10/06/17 Page 12 of 21
Page 13 – TRIAL MEMORANDUM OF DEFENDANT SUZANNE YOUNG

In its more recent Opinion and Order with regard to the Motions for Summary 

Judgment (Dkt. 165), the Court concluded that Plaintiffs did not prove a special 

relationship imposing any duty on the part of Young to protect Plaintiffs from harm by 

third parties. The Court, however, apparently concluded that foreseeability of harm alone 

was sufficient to create potential responsibility on the part of Young. This was despite 

the fact that Plaintiffs failed to offer any evidence that Young was present during or had 

any involvement in the hazing events, that Young knew that S.A. would be subject to 

harm during those events, knew that anyone intended to or was likely to harm S.A. during 

the events, or that Young provided or procured an opportunity for S.A. to be harmed (the 

standard articulated in the Rule 12 Order). The Court has noted that while some 

defendants were aware that there had been prior PDT initiations, nothing suggests the 

conclusion that defendants condoned or approved the unapproved activities about which 

S.A. complains. (F&R, Dkt. 142 at 142). But regardless, as to Young, there will not be 

any factual issue that should be submitted to the jury since foreseeability of harm by itself 

does not create any obligations on the part of Young in this circumstance. While 

Fazzolari eschewed the term “duty,” a defendant must still have some role in the injury 

producing event in order to be deemed negligent. This was explained in Fortney v. 

Crawford Door Sales Corp. of Oregon, 97 Or. App. 276, 280, 775 P.2d 910, 912 (1989), 

a case where directed verdict for the defendant was affirmed: 

Defendant also contends that plaintiff “would impose liability for a falling ladder 

where the defendant did not own it, did not use it and did not touch it.” We agree 

with defendant's implicit suggestion that, although Fazzolari has changed the role 

of duty in negligence law, it has not eliminated the rule that a defendant must 

have some responsible involvement with an event in order to be found negligent 

for its occurrence. 

(Emphasis in original). 

Case 3:15-cv-00385-MO Document 221 Filed 10/06/17 Page 13 of 21
Page 14 – TRIAL MEMORANDUM OF DEFENDANT SUZANNE YOUNG

Similarly, in Nord v. Wetmore, 105 Or. App. 246, 804 P.2d 501 (1991), plaintiff 

sought to impose negligence liability on defendant Wetmore, who drove assailants to the 

location where an assault occurred and let the assailants out of the car near the plaintiffs 

(with whom there had been an altercation moments before). The Court affirmed directed 

verdict for defendant Wetmore, observing: 

Plaintiffs rely on Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 734 P.2d 

1326 (1987), and . . . contend that, under the Fazzolari rationale, a jury could find 

that Rhonda should reasonably have foreseen when she drove back into the 

parking lot that the result would be that her passengers would attack plaintiffs. 

Plaintiffs buttress their argument by referring to evidence that would support the 

inference that Rhonda was aware of the first encounter between Kevin and Milar 

and of details that should have excited her awareness that Milar felt violently 

disposed toward Kevin. In our view, all of that is beside the point. The question is 

not whether she should reasonably have foreseen what occurred, but whether her 

involvement in the events was such that she could or had to do anything to 

prevent what she might have foreseen. Plaintiffs do not contend that Rhonda had 

the right to continue driving Milar anywhere that he did not want to go or to 

prevent him from leaving the vehicle after his request. They do not suggest that 

she could have been liable if she had let him out of the car at the parking lot exit, 

when he asked to be let out. Their view is that, somehow, she became negligently 

involved by putting the car in reverse and taking him the short distance to the 

place where he indicated that he wanted to go. 

As the trial judge suggested in granting the directed verdict, Rhonda was either a 

willing participant in the assault or she was essentially a bystander. The jury 

found that she was not actively involved. As we said in Fortney v. Crawford 

Door Sales Corp., 97 Or.App. 276, 280, 775 P.2d 910 (1989): 

“[A]lthough Fazzolari has changed the role of duty in negligence law, it

has not eliminated the rule that a defendant must have some responsible 

involvement with an event in order to be found negligent for its 

occurrence.” (Emphasis in original.) 

(105 Or. App. 246, 249-250 (emphasis added). There will not be evidence at trial that 

Young had some responsible involvement with any conduct that resulted in harm to 

Plaintiffs, or that she was required to do anything to prevent any conduct directed toward 

S.A., or that she was a “willing participant” in any conduct directed toward S.A. At the 

Case 3:15-cv-00385-MO Document 221 Filed 10/06/17 Page 14 of 21
Page 15 – TRIAL MEMORANDUM OF DEFENDANT SUZANNE YOUNG

time of the initiation, Young was a volunteer parent of a former dance team member who 

had limited involvement with the Pacer Dance Team. She had no supervisory authority 

over the students, nor did she assume or exercise such authority. Such authority was not 

allowed by District rules. Volunteers are only allowed to work with students in a 

supervised environment. There is no evidence that Young, unlike perhaps the Lakeridge 

Administration or the PDT Coaching Staff, might have some potential responsibility for 

controlling the events that Plaintiffs contend caused S.A. harm. (See Fortney v. 

Crawford Door Sales Corp. of Oregon, 97 Or. App. 276, 280, 775 P.2d 910, 912 (1989)). 

Young simply does not stand in the same position as the other defendants. The Court’s 

comment suggests that although the Court is not relying on a special relationship to create 

a duty it arguably did so. (Opinion & Order, Dkt 165 at 12, fn. 3). 

 With all due respect, the Court erred in concluding that Young’s limited 

involvement with the PDT was “not so different” from the other defendants that her 

conduct could not create a foreseeable risk of harm of the kind that befell plaintiffs 

(Opinion & Order, Dkt. 165 at 12). Collecting dues, buying team clothing, paying bills, 

and other routine finance and promotion work on a volunteer basis does not raise Young 

to a management level, nor does helping with team photographs. There is no evidence 

Young exercised “considerable influence in team management decisions.” (Id). There is 

no evidence Young was obligated to complete a series of trainings that dealt with 

coaching and health risks for student athletes. Plaintiffs cannot point to any OSAA rule 

establishing such a requirement. Athletic Director Lamont testified Young was not a 

coach. The conclusion that Young’s “responsibility was indistinguishable from the other 

defendants for purposes of foreseeability” (Id. at 13) is simply not correct. 

Case 3:15-cv-00385-MO Document 221 Filed 10/06/17 Page 15 of 21
Page 16 – TRIAL MEMORANDUM OF DEFENDANT SUZANNE YOUNG

The Court states that Young’s “claim that she did not have any involvement in the 

alleged conduct that resulted in Plaintiffs’ harm is heavily disputed.” (Id. at 13). The 

Court notes that Young knew about the initiation tradition. (Id. at 13). What part of the 

tradition? The part that coaches and parents knew about or the unauthorized, 

unsupervised stunts that students came up with? And what inappropriate initiation 

behavior did Young know about that involved inappropriate and unapproved behavior, 

flour on the students, which she reported to the prior coach? The 10 Fingers game, which 

was well known and which she reported to Plaintiff Mother? And what information did 

Young have that she did not convey to Plaintiff Mother so that Plaintiff Mother could talk 

to the District before initiation? 

D. Plaintiff Parents’ Claims for emotional distress 

 Plaintiff Parents assert solely emotional injury. Since Young had no special 

relationship with Plaintiff Parents, Plaintiff Parents can only recover against Young if 

they can prove that Young “negligently cause[d] foreseeable, serious emotional distress 

and also infringe[d] some other legally protected interest.” (See Philibert v. Kluser, 360 

Or. 698, 702, 385 P.3d 1038 (2016) (emphasis added)). As the Court is aware, Young 

moved for summary judgment with regard to Plaintiff Parents claims. In concluding that 

there were questions of fact precluding summary judgment, Young respectfully submits 

that the Court failed to recognize that Plaintiffs offered no opposition to Young’s Motion 

for Summary Judgment on this issue. Plaintiffs’ Response to Defendant Young’s Motion 

for Summary Judgment (Dkt. 100) merely incorporated by reference Plaintiffs’ Response 

in Opposition to Defendant Lake Oswego School District (“LOSD”) et al.’s Motion for 

Summary Judgment on this issue. (Dkt. 101). 

Case 3:15-cv-00385-MO Document 221 Filed 10/06/17 Page 16 of 21
Page 17 – TRIAL MEMORANDUM OF DEFENDANT SUZANNE YOUNG

 In Plaintiffs’ LOSD Response, at page 26, when addressing the subject of legally 

protected interest, Plaintiffs only asserted, “District Defendants and Nordlum Defendants 

each exercised independent judgment for S.A. and her parents, plaintiffs relied on them 

for protection from the very type of harm S.A. suffered from.” Young is not included. 

 In her Reply in Support of her Motion for Summary Judgment (Dkt. 128, at 10), 

Young pointed out “plaintiff parents offered no response to Young’s arguments that they 

could not recover in negligence because they alleged solely psychic injury.” 

Plaintiff Parents in this case have not alleged that Young infringed upon any 

“legally protected interest,” that allows Plaintiff Parents to recover for psychic injury due 

to harm caused to S.A. There will not be proof at trial that Young infringed upon a 

“legally protected interest.” In Philibert, the legally protected interest was described as 

“the interest in avoiding being a witness to the negligently caused traumatic injury or 

death of a close family member. . . . Plaintiffs there watched as their younger brother was 

crushed by a pickup truck—a violation of their interest in not witnessing such a shocking 

and tragic event.” (Id. at 707). Plaintiffs’ proof will in no way come close to the legally 

protected interest judicially identified in Philibert. Indeed, Judge You’s Findings and 

Recommendations (Dkt. 142) noted that the record on summary judgment did not support 

a finding of sufficient serious injury to S.A. to bring the claim within the bystander 

recovery rule announced in Philibert. (F&R, Dkt. 142 at 58, fn. 26). There is no other 

legally protected interest that would require Young (a volunteer and the parent of a 

former dance team member) to somehow protect Plaintiff Parents from sustaining 

emotional distress as a result of alleged hazing of S.A. by other dance team members. 

// 

Case 3:15-cv-00385-MO Document 221 Filed 10/06/17 Page 17 of 21
Page 18 – TRIAL MEMORANDUM OF DEFENDANT SUZANNE YOUNG

Punitive Damages 

Plaintiffs cannot recover punitive damages against Young. See ORS 30.265(2). 

Plaintiffs, in opposing Defendants’ Motion for Judgment on the Pleadings, argued that 

ORS 30.265(2) is not applicable because Plaintiffs’ TAC “alleged that defendant Suzanne 

Young was sometimes acting as an agent but also sometimes acting as a volunteer.” 

(TAC ¶ 31, Dkt. 61). That is not a correct statement. Plaintiffs alleged in the TAC ¶31 

that “At all times relevant herein, Young acted with approval and authority of the District 

and as an agent of the District.” While Plaintiffs go on to allege that at other times Young 

acted as an approved volunteer, the “at all times relevant” language precludes the 

punitive damage claim. And Plaintiffs proposed jury instructions including language that 

a volunteer can be an agent. 

E. All Other Negligence Particulars Against Young Fail 

In summary, Plaintiffs cannot “show” that Young participated in, aided, or 

procured the alleged hazing or child abuse. 

The allegations that Young failed to comply with District and OSAA rules 

(allegations 150(a) and (i)) are without any factual foundation. The duty to report child 

abuse and hazing does not place any requirements on a volunteer, only on school 

employees.6

The remaining alleged components of the negligence claim in TAC ¶31 also fail. 

There are no underlying allegations or facts that establish a duty and thereby subject 

 

6

 As stated earlier, Young should not even be required to defend these claims given the child abuse and

hazing allegations against her were dismissed with prejudice. Contrary to the TAC ¶31, as a volunteer, 

Young was not obligated to report hazing, harassment, intimidation or bullying under District Policy 7J. 

The policy, attached as Exhibit 2 to the TAC, specifies that reporting by volunteers is encouraged, but is 

not mandatory. District Policy 7J related to reporting of suspected child abuse, attached as Exhibit 9 to the 

TAC, does not impose any reporting obligations on a volunteer. 

Case 3:15-cv-00385-MO Document 221 Filed 10/06/17 Page 18 of 21
Page 19 – TRIAL MEMORANDUM OF DEFENDANT SUZANNE YOUNG

Young to liability for “failing to restrain peer to peer and third-party harassment” or 

“failing to restrain assaults and batteries” or for “condoning, allowing and participating in 

retaliation by students, parents; staff (including Staff I), volunteers, and other thirdparties.” (TAC ¶¶150(c), (d) and (g)). 

Finally, there is no evidence supporting the claims that Young had a duty and 

therefore failed “to adequately supervise, train, and hire qualified coaches or 

administration” or failed “to ensure that coaches were timely equipped with proper 

training certifications.” (TAC ¶¶150(b) and (h)). 

F. No Other Intentional Conduct by Young Directly Against S.A.

Plaintiffs allege Young took intentional actions to harm S.A. (TAC ¶166). 

According to S.A., Young never did anything to specifically harm S.A. She testified 

Young never bullied, harassed or hazed S.A. Plaintiff Father was not aware that Young 

ever said anything to S.A. that Plaintiff Father considered bullying, harassment or 

retaliation. Plaintiffs do not include Young as someone who allegedly caused S.A. to 

leave the team. (TAC ¶88). 

// 

// 

// 

// 

Case 3:15-cv-00385-MO Document 221 Filed 10/06/17 Page 19 of 21
Page 20 – TRIAL MEMORANDUM OF DEFENDANT SUZANNE YOUNG

S.A. testified she never felt she needed to confide in Young about any concerns 

about the events in the summer of 2014. On occasion when she would see Young, S.A. 

would give Young a big hug. S.A. assisted Young with regard to activities related to the 

team after S.A. quit the team with the approval of Plaintiff Mother. 

Dated this 6th day of October, 2017. 

Respectfully submitted, 

 MacMILLAN, SCHOLZ & MARKS, P.C. 

 s/Robert D. Scholz 

 ROBERT D. SCHOLZ, OSB # 773379 

 Of Attorneys for Defendant Suzanne Young 

Case 3:15-cv-00385-MO Document 221 Filed 10/06/17 Page 20 of 21
Page 21 – TRIAL MEMORANDUM OF DEFENDANT SUZANNE YOUNG

CERTIFICATE OF SERVICE 

 I HEREBY CERTIFY that I served the foregoing TRIAL MEMORANDUM OF 

DEFENDANT SUZANNE on October 6, 2017, upon the attorney(s) listed below via 

through CM/ECF electronic filing of the same. 

Leta C. Gorman 

Diane R. Lenkowsky 

JORDAN RAMIS PC 

Attorneys at Law 

Two Centerpointe Dr. 6th Fl. 

Lake Oswego, OR 97035 

EM: leta.gorman@jordanramis.com

diane.lenkowsky@jordanramis.com 

 Of Attorneys for Plaintiffs 

Luke Reese 

Garrett Hemann Robertson 

1011 Commercial St. 

Salem, OR 97301 

EM: lreese@ghrlawyers.com 

 

 Of Attorneys for Defendants Kayla and 

Ashley Nordlum 

 

Matthew A. Levin 

Markowitz Herbold PC 

1211 SW 5th Avenue, Ste. 3000 

Portland OR 97204 

EM: mattlevin@markowitzherbold.com 

 

 Co-counsel for Defendant Suzanne Young 

Karen M. Vickers 

Mersereau Shannon LLP 

1 SW Columbia St., Ste. 1600 

Portland, OR 97258 

EM: kvickers@mershanlaw.com 

 

 Of Attorneys for Defendants Lake Oswego 

School District, Jennifer Schiele, Ian Lamont, 

and Heather Beck 

 DATED this 6th day of October 2017. 

 MacMILLAN, SCHOLZ & MARKS, P.C. 

 s/Robert D. Scholz 

 ROBERT D. SCHOLZ, OSB # 773379 

 Of Attorneys for Defendant Suzanne Young 

Case 3:15-cv-00385-MO Document 221 Filed 10/06/17 Page 21 of 21