PAGE 1 - DISTRICT DEFENDANTS’ TRIAL MEMORANDUM

MERSEREAU SHANNON LLP

111 SW COLUMBIA STREET, SUITE 1100

PORTLAND, OREGON 97201-5865

(503) 226-6400

KAREN M. VICKERS, OSB No. 913810

kvickers@mershanlaw.com

BETH F. PLASS, OSB No. 122031

bplass@mershanlaw.com MERSEREAU SHANNON LLP

111 SW Columbia Street, Suite 1100

Portland, Oregon 97201-5865

Telephone: 503.226.6400

Facsimile: 503.226.0383

Of Attorneys for Defendants Lake 

Oswego School District, Heather 

Beck, Jennifer Schiele and Ian 

Lamont

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,

Defendants.

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

DISTRICT DEFENDANTS’

TRIAL MEMORANDUM

Defendants Lake Oswego School District, Heather Beck, Jennifer Schiele, and Ian 

Lamont (the “District Defendants”) respectfully submit the following trial memorandum. 

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PAGE 2 - DISTRICT DEFENDANTS’ TRIAL MEMORANDUM

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I. Factual Background 

The plaintiffs are SA, a senior at Lakeridge High School, and her parents Ray and Taissa 

Achcar-Winkels (“Mr. and Ms. Achcar-Winkels”). The District Defendants are: the Lake 

Oswego School District; Heather Beck, Lake Oswego School District Superintendent; Jennifer 

Schiele, Lakeridge High School Principal; and Ian Lamont, former Lakeridge High School 

Athletic Director. 

Lakeridge is one of two high schools in Lake Oswego, Oregon. Lakeridge has a dance 

team known as the Pacer Dance Team or “PDT.” Defendant Kayla Nordlum (“Coach Kayla”) 

was hired to coach the PDT in the spring of 2014. Defendant Ashley Nordlum was her assistant 

coach. Defendant Suzanne Young volunteered to video record the PDT’s performances and 

handled finances. Ms. Achcar-Winkels was in charge of ordering and pressing PDT gear. She 

also arranged transportation for team events. In May 2014, SA auditioned for and made the 

PDT.

A. Gearhart

The PDT went to Gearhart, Oregon for one night in June 2014. Before the trip, SA 

perceived that her freshman teammates were not being nice to her. During the trip, PDT 

members played a game called “10 fingers” or “Never Have I Ever.”1

 It involves a group sitting 

around in a circle. One person asks a question, such as “Have you ever snuck out of the house?” 

or “Have you ever had sex?” Any member of the group whose response is “yes” claps and puts 

one finger up. The next morning the team went to the Pig ‘N Pancake restaurant in nearby 

 1 This game is frequently played by teenagers at sleepovers and has been popularized on daytime 

television by The Ellen Show. 

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Seaside for breakfast, but it was crowded so the team decided not to stay. SA and another 

teammate called their mothers to pick them up. 

B. August Sleepover

The PDT had a tradition of having some kind of sleepover/initiation event. This event 

previously involved scavenger hunts, answering trivia questions, etc. Prior to the 2014

sleepover, the senior PDT members presented Coach Kayla with a written agenda, which she 

then provided to PDT parents. The event was supposed to include a movie, dinner, a sleepover 

at the home of team parent Kathy Fewel, and games at Lakeridge Junior High School. Coach 

Kayla did not know that the seniors planned to deviate from the agenda provided. Ms. AchcarWinkels knew that no one from the school district planned to attend the sleepover. 

SA was dropped off at Ms. Fewel’s house on August 9, 2014. At some point in the 

evening, senior members of the PDT dressed the non-senior members in funny costumes; SA 

was dressed as Big Bird. Then the PDT drove to downtown Lake Oswego where they played 

truth or dare. SA’s dare was to dance on top of a parked car. Next, the PDT went to Lakeridge. 

Other Lakeridge students were present. Some of them threw water balloons at the non-senior 

members of the PDT and squirted them with water guns. SA contends that she got a bruise on 

her back from a water balloon. The non-senior members of the team also rolled on a tarp with 

syrup. From there the PDT went to George Rogers Park – a local swimming area where SA 

swims without a life jacket. The non-senior members of the team waded in the water. They then 

went back to the Fewel house and spent the night. Kathy Fewel had originally planned to go 

with the team to all events, but at the last minute she could not go because she hurt her back 

moving furniture to make room for the sleepover.

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Ms. Achcar-Winkels was the only adult to witness the foregoing events at Lakeridge. 

She planned to disguise her presence. At some point, she climbed a tree at the school and took a 

video of the event, which she later deleted after viewing it with her husband, Mr. AchcarWinkels. While in the tree, Ms. Achcar-Winkels called Mr. Achcar-Winkels. They decided it 

was best for Ms. Achar-Winkels not to intervene or to alert the police or anyone else. Thereafter, 

Ms. Achar-Winkels did not tell anyone associated with the school about her presence in the tree

until November 2014, at the earliest – three months after the event and over a month after her 

daughter had left the dance team.

Several days after the August sleepover, SA told an assistant coach some concerns 

regarding the sleepover. The assistant coach, in turn, reported to Coach Kayla that there had 

been a complaint. Coach Kayla immediately elevated the complaint to Lakeridge High School

Athletic Director Ian Lamont. Lamont and Coach Kayla prepared to kick all of the senior girls 

off of the PDT. Lamont then contacted Mr. Achcar-Winkels; the two were previously 

acquainted and had been in social situations together. Mr. Achar-Winkels specifically told 

Lamont that he did not want an investigation or for any of the girls to be punished. Mr. AchcarWinkels’ sentiment was shared by Ms. Achcar-Winkels and SA. Lamont and Principal Schiele 

respected the family’s request and reminded the fall sports teams about the district’s no hazing 

policy. There were no further incidents.

C. Sunriver

In late August the team went to Sunriver. There was an issue with Coach Kayla using 

duct tape on the girls’ doors so that they would not sneak out. Coach Kayla emailed the parents 

about it and Ms. Achcar-Winkels immediately responded that Coach Kayla had her support. SA 

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reportedly had a great time at Sunriver. When the team returned to Lake Oswego from Sunriver 

another parent pulled Ashley Nordlum aside and told her that Ms. Achcar-Winkels was telling 

other parents that the senior members of the PDT forced their younger teammates to drink 

alcohol and do drugs during the August sleepover.2

 Coach Kayla became upset and told Ms. 

Achcar-Winkels by email to stop spreading gossip. Ms. Achcar-Winkels complained to Lamont 

and Principal Schiele about Coach Kayla’s email. Lamont and Schiele took her complaint 

seriously and advised Coach Kayla that the email was inappropriate. Coach Kayla apologized to 

Ms. Achcar-Winkels.

D. Dance Disputes

The PDT’s competition rosters were posted in early September 2014. SA was chosen for 

the “pom” and “state” teams, but along with another freshman dancer, she was made an alternate 

for the “jazz” team. Ms. Achcar-Winkels emailed Coach Kayla the next day giving her “big 

hugs” but wanting to know why SA was not chosen for jazz. Coach Kayla explained her 

reasoning. Later in September the PDT participated in a cheer trial to see who would be able to 

cheer, in addition to dance, during a Friday night football game. SA did not pass the trial so she 

was not allowed to cheer. SA eventually quit the team. Ms. Achcar-Winkels later thanked 

Schiele and Lamont for their responses to her concerns, “You, as well as Ian, have handled this 

with such great leadership, patience, and empathy[.]” Around this time, Schiele began attending 

and dropping in on PDT practices to keep an eye on things. She thereafter personally attended or 

sent an administrator to every PDT competition. 

///

 2 No PDT members used alcohol or drugs during the August sleepover. 

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E. Later Events

SA has testified that between Sunriver and the time she left the team, nothing 

inappropriate happened at school. After leaving the dance team she helped video record PDT 

performances. She enjoyed spending time with a large circle of friends and participated in 

typical teenage activities, like attending high school football games.

Over a month after SA left the team, Ms. Achcar-Winkels sent an email to

Superintendent Beck requesting a confidential meeting regarding the dance team. Ms. AchcarWinkels went to Beck and disclosed new and more detailed concerns and requested that the 

district take a new course of action. Prior to doing so, she did not raise these issues with Coach 

Nordlum or re-engage Schiele and Lamont whom she previously advised had exhibited “great 

leadership.” 

Superintendent Beck commissioned – through counsel – an investigation. After the 

investigation was completed it was reported in the media. Once the district was made aware that 

this upset SA, both Principal Schiele and SA’s school counselor, Molly Healy, checked-in with 

her. Schiele also directed Healy to check-in with SA’s teachers. SA’s school counselor 

continued to check-in with SA periodically throughout the school year. SA told Healy that she 

was doing well in school and that she was not being bullied by her former teammates on the 

dance team. The district also hired a company called Coaching Peace to specifically work with 

the students on the dance team on how to treat other students with respect and how to be positive 

leaders in the community. 

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According to both SA and Ms. Achcar-Winkels, at the time of their depositions in 

September 2015, SA was doing well in school. She went to Hawaii for spring break in 2015, and 

traveled there again during the summer for a two week camp. She has a solid friend group and 

an active teenage social life. SA has attended school dances, participated on the ski racing and 

tennis teams at Lakeridge, and she writes for the school newspaper.

II. Claim: Negligence 

The sole remaining claim against the District Defendants is for negligence. SA brings 

her negligence claim against all of the District Defendants; Mr. and Ms. Achcar-Winkels only 

bring their negligence claim against the defendant district. To prevail, the plaintiffs must 

establish the following elements:

(1) that defendant's conduct caused a foreseeable risk of harm, (2) 

that the risk is to an interest of a kind that the law protects against 

negligent invasion, (3) that defendant's conduct was unreasonable 

in light of the risk, (4) that the conduct was a cause of plaintiff's 

harm, and (5) that plaintiff was within the class of persons and 

plaintiff's injury was within the general type of potential incidents 

and injuries that made defendant's conduct negligent. 

Solberg v. Johnson, 306 Or. 484, 490-491, 760 P.2d 867 (1988) (summarizing the holding of 

Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 734 P.2d 1326 (1987)). The plaintiffs will 

not be able to establish these elements.

III. Legal Issues

A. Oregon law does not permit claims for negligently inflicted emotional 

distress.

Oregon law does not permit claims for negligently inflicted emotional distress. Plaintiffs 

can only recover emotional distress damages in narrow circumstances: “when the defendant 

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PAGE 8 - DISTRICT DEFENDANTS’ TRIAL MEMORANDUM

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acted intentionally[,]” or “when the defendant negligently causes foreseeable, serious emotional 

distress and also infringes on some legally protected interest.” Philibert v. Kluser, 360 Or. 698, 

702, 385 P.3d 1038 (2016) (citations omitted). A legally protected interest is “an independent 

basis of liability separate from the general duty to avoid foreseeable risk of harm.” Phillips v. 

Lincoln County Sch. Dist., 161 Or. App. 429, 432-33, 984 P.2d 947 (1999). 

The right to be “free from physical harm at the hands of another” is the most wellrecognized legally protected interest. Gaston v. Parsons, 318 Or. 247, 255 n. 8, 864 P.2d 1319 

(1994). Characterizing the right to be free from physical harm as a “legally protected interest” is 

a different way of stating Oregon’s physical impact rule. Philibert, 360 Or at 703, n. 2. Oregon 

courts have generally only found additional legally protected interests in four instances: (1) 

intentional torts; (2) private nuisance; (3) invasion of privacy; and (4) miscellaneous cases. 

Meyer v. 4-D Insulation Co., Inc., 60 Or. App. 70, 652 P.2d 852 (1982). 

(1) Mr. and Ms. Achcar-Winkels cannot proceed on a negligence theory.

It is undisputed that Mr. and Ms. Achcar-Winkels did not suffer any physical injuries. 

Mr. and Ms. Achar Winkels’ intentional tort claims have been dismissed and they do not allege 

private nuisance or invasion of privacy. Because there is no other “legally protected interest” 

that they can raise, grounded in the allegations contained in the Third Amended Complaint, 

which would permit them to recover in negligence for purely emotional harm, Mr. and Ms. 

Achcar-Winkels cannot recover any damages in negligence. 

To the extent that these plaintiffs contend that there is a legally protected interest that 

would permit them to recover in negligence, the District Defendants respectfully request that the 

plaintiffs specifically identify the source of that interest in advance of trial. 

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(2) The PDT’s trip to Gearhart is irrelevant because SA does not allege that 

she suffered a physical injury during the trip. 

The plaintiffs do not allege that SA suffered a physical injury during the PDT’s June 

2014 trip to Gearhart. The alleged physical injury at issue in this case did not occur until two 

months later. Accordingly, SA cannot base her negligence claim on the events that occurred at 

Gearhart.

B. Heather Beck, Jennifer Schiele, and Ian Lamont are not proper defendants

to SA’s negligence claim. 

Defendants Beck, Schiele, and Lamont only remain in this case on SA’s negligence 

claim. The Oregon Tort Claims Act permits plaintiffs to name individual defendants, but only if 

they plead damages in excess of the applicable tort claims cap. ORS § 30.265(2)-(4). The

purpose of the statute is to forestall as-applied challenges to the OTCA in the wake of Clarke v. 

OHSU, 343 Or. 581, 175 P.3d 418 (2007). In its Order and Opinion on summary judgment, this 

Court held that in order to keep the individual defendants in the case, the plaintiffs would need to 

specifically allege damages in excess of the applicable cap:

Plaintiffs cannot leave their damages amount a mystery forever. In 

order to maintain their suit against individual defendants, Plaintiffs

will eventually have to allege damages that exceed the applicable 

cap in accordance with ORS § 30.265(4).

Dkt. 165, Opinion and Order, at 20. The plaintiffs have had ample opportunity to amend the 

complaint to allege that SA suffered damages in excess of the cap, but they have not done so. In 

plaintiffs’ statement of special damages, the damages related to SA total $24,147.99, excluding 

prejudgment interest. Accordingly, the defendant school district should be the only defendant on 

SA’s remaining negligence claim against the District Defendants. 

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C. The plaintiffs cannot recover punitive damages on the negligence claim.

The plaintiffs’ remaining negligence claims against the District Defendants are

necessarily brought under the Oregon Tort Claims Act (“OTCA”). ORS § 30.265(2). Punitive 

damages are not allowed for any claims subject to the OTCA. ORS § 30.269(1). The plaintiffs 

cannot recover punitive damages against the District Defendants.

D. Discretionary Immunity

The plaintiffs’ specifications of negligence are not clear. Some specifications may be

subject to a Motion for Judgment as a Matter of Law pursuant to Fed. R. Civ. P. 50 on the basis 

of discretionary immunity. ORS § 30.265(6)(c) immunizes the District Defendants from tort 

liability arising out of the performance of discretionary functions. The statute provides: 

Every public body and its officers, employees and agents acting 

within the scope of their employment or duties * * * are immune 

from liability for: 

* * * * * 

(c) Any claim based upon the performance of or the failure to 

exercise or perform a discretionary function or duty, whether or 

not the discretion is abused. (Emphasis added.)

This defense shields public bodies from tort liability based on decisions and actions that 

involve “room for policy judgment” or the responsibility for deciding “the adaptation of means 

to an end, and discretion in determining how or whether the act shall be done or the course 

pursued.” Mosley v. Portland School Dist. No. 1J, 315 Or. 85, 92, 843 P.2d 415 (1992), quoting 

with approval from McBride v. Magnuson, 282 Or. 433, 437, 578 P.2d 1259 (1978). 

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Case 3:15-cv-00385-MO Document 217 Filed 10/06/17 Page 10 of 11
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MERSEREAU SHANNON LLP

111 SW COLUMBIA STREET, SUITE 1100

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DATED: October 6, 2017.

MERSEREAU SHANNON LLP

s/ Karen M. Vickers

KAREN M. VICKERS, OSB No. 913810

kvickers@mershanlaw.com

BETH F. PLASS, OSB No. 122031

bplass@mershanlaw.com

503.226.6400

Of Attorneys for Defendants Lake 

Oswego School District, Heather 

Beck, Jennifer Schiele and Ian 

Lamont

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