|Oregon State Bar Bulletin JUNE 2009|
As a civil fiduciary litigator — I handle trust disputes, will contests, civil financial elder abuse claims, undue influence claims, capacity cases, etc. — I read Janine Robben’s article with keen interest (“Keeping an Eye Out for Elders,” April 2009). What wasn’t addressed is that Oregon has one of the most broadly written statutes for civil financial elder abuse in the nation, and bystander liability can occur when a person “knowingly acts or fails to act under circumstances in which a reasonable person should have known” that another person was permitted to financially abuse a vulnerable adult. ORS 124.100(5).
With this language, plus a seven-year statute of limitations from discovery and the opportunity of an award of treble damages and attorneys’ fees, it is likely more and more people will be hauled into court, because proving that someone did not “know or should have known” can be a difficult task and often is a question to be resolved by the fact finder. This increases potential liability for those who routinely deal with “vulnerable adults” (which by definition in ORS 124.100(1)(a) includes anyone 65 years of age or older — regardless of their mental or physical health) as well as those that happen upon a situation in which they knew or should have known that another is taking advantage of a vulnerable adult.
So proceed with caution.
I enjoyed Suzanne Rowe’s Word Choices III article in the April 2009 Bulletin. She identified one of my pet peeves: the misuse of lie and lay. Unless you are a chicken, I doubt that you “lay in the sun” (present tense), but it’s possible that you lay in the sun yesterday (if you were outside between 2:15 and 2:25 when the sun made its appearance).
My eighth-grade English teacher taught me the following rhyme, which has served me well all these years:
Yesterday in bed I lay,
In pain I have lain.
Sorry, but I don’t have a rhyme for might vs. may.
Jeffrey W. Knapp
Because of a production and proofreading error, many of the footnotes were accidentally omitted from the article “No: We Don’t Need a New Constitution” (May 2009). The footnotes are printed below. We apologize for the error.
1. The full text of the proposed constitution is in “A New Constitution for Oregon,” 67 Or L Rev 127-168 (1988).
2. The U.S. Supreme Court did not adopt the “one person, one vote” standard for legislative apportionment until the following year, in Reynolds v. Sims, 377 US 533 (1964).
3. Revised Constitution, Article I, section 2, reproduced in 67 Or L Rev at 131.
4. State v. Baker, 50 Or 381, 92 P 1076 (1907).
5. State v. Hunter, 208 Or 282, 288, 300 P2d 455 (1956).
6. C. Barton, et al., “Separate Views of Seven Members Opposing Substantive Due Process,” 67 Or L Rev 224, 224-227 (1988).
7. Charles H. Carey, ed., The Oregon Constitution 101 (1926) (remarks of Delegate Delazon Smith).
8. “A New Constitution for Oregon,” 67 Or L Rev 127, 210 (1988) (“Dissenting Opinion of Stafford Hansell”).