S056261, Opinion — Schmidt v. Mt. Angel Abbey

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Argued and submitted March 3, decision of Court of Appeals reversed, and case
remanded to Court of Appeals for further proceedings December 24, 2009

David SCHMIDT,
Petitioner on Review,
and
N. M.,
Plaintiff,
v.
MT. ANGEL ABBEY,
an Oregon not for profit corporation,
Respondent on Review,
and
ARCHDIOCESE OF PORTLAND
IN OREGON,
an Oregon corporation;
Roman Catholic Archbishop of Portland in Oregon,
dba Archdiocese of Portland in Oregon
and Roman Catholic Archbishop of Portland in Oregon,
and successors,
a corporation sole;
and Louis Charvet, deceased,
Defendants-Respondents,
and
SWISS-AMERICAN CONGREGATION OF THE
ORDO SANCTI BENEDICTI,
Defendant.
(CC 020403531; CA A124850; SC S056261)
223 P3d 399

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CJS, Judgments § 248.

# En Banc

On review from the Court of Appeals .*

Kathryn H. Clarke, Portland, argued the cause for peti-
tioner on review. Erin K. Olson, Law Office of Erin Olson PC,
Portland, filed the brief for petitioner on review.

Lisa E. Lear, Bullivant Houser Bailey PC, Portland,
argued the cause and filed the brief for respondent on review.

\* Appeal from Multnomah County Circuit Court, John A. Wittmayer, Judge.
218 Or App 661, 180 P3d 160 (2008).

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With her on the brief were Richard J. Whittemore and Beth
Cupani.

Walter J. Ledesma, Woodburn, filed a brief on behalf of
amicus curiae Oregon Trial Lawyers Association.

BALMER, J.

The decision of the Court of Appeals is reversed, and the
case is remanded to the Court of Appeals for further
proceedings.

Walters, J., concurred and filed an opinion.

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BALMER, J.

This tort action requires us to consider the proper
interpretation of the terms "sexual exploitation" and "cru-
elty" as used in ORS 12.117, which extends the statute of lim-
itations for certain tort actions. Plaintiff's complaint alleges
that, while plaintiff was a student at Mt. Angel Seminary, a
priest questioned plaintiff about sexuality and reproduction
and began masturbating under his cassock while plaintiff
was present. Plaintiff averred that the priest's actions consti-
tuted a tort and caused him physical and emotional harm,
and, for present purposes, defendant does not dispute those
allegations. Defendant, however, moved for summary judg-
ment, arguing that plaintiff's claim was time-barred and that
ORS 12.117 did not extend the statute of limitations because
the priest's alleged conduct was neither "sexual exploitation"
nor "cruelty" within the meaning of that statute. The trial
court agreed and granted defendant's motion for summary
judgment. Plaintiff appealed, and the Court of Appeals
affirmed. Schmidt v. Archdiocese of Portland in Oregon, 218
Or App 661, 180 P3d 160 (2008). For the reasons set out
below, we reverse the decision of the Court of Appeals and
remand the case to that court for further proceedings.

Because this case comes to us on summary judg-
ment, we view the facts and all reasonable inferences that
may be drawn from those facts in the light most favorable to
the nonmoving party-here, plaintiff. See Oregon Steel Mills,
Inc. v. Coopers & Lybrand, LLP, 336 Or 329, 332, 83 P3d 322
(2004) (stating standard). In 1958, when plaintiff was a high
school freshman at Mt. Angel Seminary, Father Charvet-
plaintiff's freshman advisor-asked plaintiff to meet Charvet
in his office at a specific time. When plaintiff arrived, Charvet
was sitting behind his desk and told plaintiff to stand in front
of the desk. Charvet then began questioning plaintiff as to
what he knew about sexuality and reproduction. Among
other things, Charvet asked plaintiff whether he had ever
masturbated and explained to plaintiff "what that was
about." At that point, Charvet became "less technical" and
began using "street or gutter talk as opposed to clinical
[terms]." During Charvet's questioning, plaintiff "could see
that there was a lot of motion going on under his cassock,"
and, according to plaintiff, it was "pretty obvious" that

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Charvet was masturbating. Although Charvet never
instructed plaintiff to remain in the room, plaintiff stated
that his training as a student in the seminary prevented him
from leaving and that he "felt in a locked situation." The inci-
dent lasted approximately 30 to 45 minutes.

In 2002, plaintiff filed this action against Charvet
and Mt. Angel Abbey, Charvet's employer, seeking damages
for intentional infliction of emotional distress and for breach
of a fiduciary duty.1 As noted, defendant moved for summary
judgment, arguing that plaintiff's action was barred by
the statute of limitations. Defendant argued that ORS
12.117(1),2 which extends the statute of limitations for tort
actions based on conduct that constitutes "child abuse," did
not apply because Charvet's alleged conduct was not "child
abuse" within the meaning of that statute.3 Plaintiff

1 Plaintiff also asserted a claim against the Archdiocese of Portland and
Mt. Angel Abbey for sexual battery arising out of an incident where a different
priest (Father Frank) allegedly had sodomized plaintiff. The trial court granted
summary judgment on that claim, concluding that the evidence was insufficient to
support respondeat superior liability for Father Frank's conduct. The Court of
Appeals agreed. Schmidt v. Archdiocese of Portland in Oregon, 218 Or App 661,
696, 180 P3d 160 (2008). We limited our review of the Court of Appeals decision to
the statute of limitations issue, ORAP 9.20(2), and therefore express no opinion as
to the respondeat superior issue. Because plaintiff's claims against the archdiocese
related only to the incident involving the other priest, the archdiocese is not a party
on review. Additionally, in November 2008, this court granted plaintiff's stipulated
motion to dismiss plaintiff's claims against Charvet individually. As a result, the
only respondent on review is Mt. Angel Abbey.

¿ ORS 12.117(1) provides:

"Notwithstanding ORS 12.110, 12.115 or 12.160, an action based on con-
duct that constitutes child abuse or conduct knowingly allowing, permitting or
encouraging child abuse accruing while the person who is entitled to bring the
action is under 18 years of age shall be commenced not more than six years
after that person attains 18 years of age, or if the injured person has not dis-
covered the injury or the causal connection between the injury and the child
abuse, nor in the exercise of reasonable care should have discovered the injury
or the causal connection between the injury and the child abuse, not more than
three years from the date the injured person discovers or in the exercise of
reasonable care should have discovered the injury or the causal connection
between the child abuse and the injury, whichever period is longer."

(Emphasis added.) The legislature amended ORS 12.117(1) in the 2009 legislative
session in ways unrelated to our analysis. See Or Laws 2009, ch 879 (setting out
amendments).

3 Defendant does not challenge plaintiff's contention that the other require-
ment of ORS 12.117 is met-i.e., that plaintiff, exercising reasonable care, did not
"discover[ ] the injury or the causal connection between the injury and the child
abuse" more than three years before bringing this action.

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responded that Charvet's conduct fell within two examples of
child abuse enumerated in ORS 12.117(2).4 Plaintiff argued
that the conduct was covered by ORS 12.117(2)(a)(B), which
defines as child abuse any "[i]ntentional conduct by an adult
that results in * * * [a]ny mental injury to a child which
results in observable and substantial impairment of the
child's mental or psychological ability to function caused by
cruelty to the child, with due regard to the culture of the
child." (Emphasis added.) Plaintiff also argued that
Charvet's conduct came within ORS 12.117(2)(d), which pro-
vides that child abuse includes

"[sexual exploitation of a child, including but not lim-
ited to:

"(A) Conduct constituting [a] violation of ORS 163.435
and any other conduct which allows, employs, authorizes,
permits, induces or encourages a child to engage in the per-
forming for people to observe or the photographing, filming,
tape recording or other exhibition which, in whole or in
part, depicts sexual conduct or contact; and

"(B) Allowing, permitting, encouraging or hiring a
child to engage in prostitution, as defined in ORS chapter
167."

4 ORS 12.117(2) provides:

"As used in subsection (1) of this section, 'child abuse' means any of the
following:

"(a) Intentional conduct by an adult that results in:

"(A) Any physical injury to a child; or

"(B) Any mental injury to a child which results in observable and substan-
tial impairment of the child's mental or psychological ability to function caused
by cruelty to the child, with due regard to the culture of the child;

"(b) Rape of a child, which includes but is not limited to rape, sodomy,
unlawful sexual penetration and incest, as those acts are defined in ORS chap-
ter 163;

"(c) Sexual abuse, as defined in ORS chapter 163, when the victim is a
child; or

"(d) Sexual exploitation of a child, including but not limited to:

"(A) Conduct constituting [a] violation of ORS 163.435 and any other con-
duct which allows, employs, authorizes, permits, induces or encourages a child
to engage in the performing for people to observe or the photographing, film-
ing, tape recording or other exhibition which, in whole or in part, depicts sexual
conduct or contact; and

"(B) Allowing, permitting, encouraging or hiring a child to engage in pros-
titution, as defined in ORS chapter 167."

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(Emphasis added.) The trial court agreed with defendant
that Charvet's actions did not come within either of those
provisions and therefore did not constitute "child abuse" as
defined in ORS 12.117. Accordingly, the trial court concluded
that plaintiff's action was barred by the statute of limitations
and granted defendant's motion for summary judgment.

Plaintiff appealed, and the Court of Appeals
affirmed, holding that the statute of limitations extension did
not apply and that plaintiff's claims therefore were time-
barred. The majority agreed with the trial court that
Charvet's actions did not constitute "cruelty" or "sexual
exploitation" as those terms are used in ORS 12.117(2).
Judge Edmonds dissented in part,5 concluding that Charvet's
conduct constituted "cruelty" under ORS 12.117(2)(a)(B). We
begin with a discussion of whether a reasonable factfinder
could find that Charvet's conduct falls within the "cruelty"
provision of ORS 12.117(2)(a)(B). We then consider whether a
reasonable factfinder could find that Charvet's conduct con-
stitutes "sexual exploitation" under ORS 12.117(2)(d).

As noted, under ORS 12.117(2)(a)(B), an action is
subject to the extended statute of limitations if it is based on
conduct that (1) is intentional, (2) results in a mental injury
to the child that results in "observable and substantial
impairment of the child's mental or psychological ability to
function," and (3) constitutes "cruelty to the child." Defen-
dant does not argue that Charvet's conduct was not inten-
tional or that plaintiff did not suffer the requisite mental
injury; instead, defendant argues only that Charvet's conduct
was not "cruelty to the child." We therefore limit our analysis
of ORS 12.117(2)(a)(B) to that issue, turning first to the
analysis of the Court of Appeals.

The majority initially looked to dictionary defini-
tions of "cruelty" and "cruel" and determined, based on those
definitions, that the phrase "cruelty to the child" has several
possible meanings. The majority began with the question
whether the term "cruelty" refers to the mental state of the

5 Judge Edmonds concurred in the majority's decision regarding the incident
involving the other priest. As noted, we do not address that issue on review.

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person engaging in the conduct or to a particular type of con-
duct. Because ORS 12.117 applies to "action[s] based on con-
duct that constitutes child abuse" and generally defines child
abuse in terms of conduct, the majority determined that the
phrase "cruelty to the child" refers to a type of conduct rather
than to a particular mental state. The majority then turned
to an analysis of the nature of that conduct.

The majority determined, after analyzing the plain
meaning of "cruel," that the term refers to relatively extreme
or severe conduct; however, because the precise nature of the
conduct was still unclear, the majority examined legislative
history.6 That history demonstrated, in the majority's view,
that the legislature intended "cruelty" to encompass a "nar-
row" range of severe or extreme conduct and that, generally
speaking, the legislature was concerned with verbal con-
duct-such as shouting at a child-that occurs repeatedly.
Finally, because the meaning of the phrase "cruelty" was still
unclear, the majority looked to the general purpose of the
statute. Although the primary purpose of the statute was the
protection of children, the majority determined that the leg-
islature had "made a significant effort to enact specific,
detailed criteria giving rise to * * * the entitlement to an
extended limitations period," again demonstrating that it
intended the word "cruelty" to refer to "a narrow range of
extreme or severe conduct." Schmidt, 218 Or App at 681-82.
Ultimately, the majority concluded that, given the nature of
Charvet's conduct, including the fact that the masturbation
itself lasted only 10 minutes and occurred on only one occa-
sion, a reasonable jury could not have found that that con-
duct constituted "cruelty to [a] child." Id. at 682-83.

Judge Edmonds dissented from the majority's hold-
ing that Charvet's conduct did not constitute "cruelty to [a]
child" under the statute. He concluded that, in 1989, when
the legislature enacted ORS 12.117(2)(a)(B), "cruelty" had a
well-defined legal meaning. Looking to case law that existed

6 The legislature took the text of ORS 12.117(2)(a)(B) almost verbatim from
former ORS 418.740 (1987), repealed by Or Laws 1993, ch 546, § 141, and renum-
bered as ORS 419B.005 (1993), the statute defining "abuse" for purposes of man-
datory child abuse reporting. The majority therefore looked to the legislative his-
tory of former ORS 418.740. See Schmidt, 218 Or App at 675-76 (explaining
legislative history).

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when ORS 12.117 was enacted and the definition of "cruelty"
contained in Black's Law Dictionary at that time, the dissent
concluded that the legislature intended to include two
categories of conduct with the phrase "cruelty to [a] child":
(1) conduct that was "specifically intended to inflict harm on
a child by an actor" and (2) acts that "by their very nature
expressed a wanton disregard for the welfare of the child
such that they evidenced an 'evil mind.'" Schmidt, 218 Or
App at 701-02 (Edmonds, J., concurring in part and dissent-
ing in part). Judge Edmonds then concluded, "[a]s a matter of
common sense," that masturbating in front of a child is the
kind of conduct that by its very nature "evidenc[es] a wanton
disregard for the welfare of the child and an 'evil mind.'" Id.
at 704.

We begin, as the Court of Appeals did, with the text
of the statute, specifically, the term "cruelty." As the majority
noted, that term could refer to conduct that is performed with
a purpose of inflicting pain or injury or to conduct that is by
its very nature "inhuman" or causes extreme pain or distress.
See Schmidt, 218 Or App at 672 (describing dictionary defi-
nitions)." The majority concluded that it must choose
between those two general interpretations and selected the
latter after a text and context analysis. We do not find it nec-
essary, however, to choose between the two. Rather, for the
reasons set out below, we conclude that a person has engaged
in "cruelty to [a] child" when that person engages in conduct
with the specific intent of injuring or harming the child and
the conduct is capable of producing those results or when the
person engages in conduct toward the child that is so extreme
or severe that the act demonstrates a willful and wanton dis-
regard for the welfare of the child.

7 The majority also noted an alternative dictionary definition: "causing or con-
ducive to injury, grief, or pain." Schmidt, 218 Or App at 672 (quoting Webster's
Third New Int'l Dictionary 546 (unabridged ed 2002)). However, ORS
12.117(2)(a)(B) requires, by its terms, that "cruelty" cause "mental injury" to the
child that "results in observable and substantial impairment of the child's mental
or psychological ability to function." We cannot interpret the term "cruelty" as
referring to any act that causes injury because, were we to use that interpretation,
the term would add nothing to the meaning of the statute that is not conveyed by
the other words. See ORS 174.010 ("[W]here there are several provisions or partic-
ulars such construction is, if possible, to be adopted as will give effect to all.").

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In concluding that the term "cruelty" referred only to
the specific nature of the conduct, the Court of Appeals'
majority noted that ORS 12.117, as a whole, is concerned
with specific "conduct," rather than with the mental state of
the person who engages in that conduct. We agree that, as a
general matter, ORS 12.117 defines "child abuse" in terms of
conduct. Nonetheless, nothing in the statute suggests that
the legislature was concerned only with "conduct" and not
also with the intent of the actor. Indeed, other provisions of
the statute suggest precisely the opposite. For instance,
under ORS 12.117(2)(c), the term "child abuse" is defined as
including "[s]exual abuse, as defined in ORS chapter 163,
when the victim is a child." To commit third-degree sexual
abuse, the actor must touch the victim's "intimate parts
for the purpose of arousing or gratifying the sexual
desire of either party." ORS 163.305 (so defining "sexual con-
tact"); see ORS 163.415 (defining third-degree sexual abuse
in terms of "sexual contact"). In other words, determining
whether a specific act constitutes "child abuse" under
ORS 12.117(2)(c) requires an analysis of both the nature of
the act itself and the actor's purpose or mental state. Simi-
larly, as discussed below, "sexual exploitation" under ORS
12.117(2)(d) requires that the actor use the child for his or her
own profit or advantage, again requiring an investigation
into the actor's purpose in addition to the nature of the con-
duct itself.

An interpretation of the term "cruelty" that includes
consideration of the mental state of the actor, rather than
solely the nature of the conduct itself, is supported by this
court's interpretation of that term in other contexts prior to
the enactment of ORS 12.117(2)(a)(B). For instance, in
Chaffin v. Chaffin, 239 Or 374, 387, 397 P2d 771 (1964), this
court held that an "act of cruelty" by a parent towards a
child-but not a mere negligent act-would permit a right of
action against the parent. The court further described such
an act of "cruelty" as "an act which is done with an intention
to injure the child or is of such a cruel nature in and of itself
as to evidence not a reasonably normal parental mind, but an
evil mind."8 Id. (emphasis added).

8 As Judge Edmonds noted in his dissent, the Court of Appeals later used the
Chaffin test to interpret the phrase "cruelty" as used in former ORS 416.030(2)(c)

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This court has similarly interpreted the term "cruel"
in the context of divorce proceedings. Before 1971, an individ-
ual seeking a dissolution of marriage was required to assert
one of several "causes" for the dissolution, among them
"[c]ruel and inhuman treatment" by his or her spouse. For-
mer ORS 107.030 (1969), repealed by Or Laws 1971, ch 280,
§ 28. This court interpreted that phrase as indicating "a pur-
pose of one spouse to injure the other, or such gross and cal-
lous want of consideration for the sensibilities and legitimate
wishes and interests of the other as to amount in law to such
a purpose." Guinn v. Guinn, 188 Or 554, 562, 217 P2d 248
(1950) (emphasis added); see also Nelson v. Nelson, 221 Or
117, 119, 350 P2d 702 (1960) (same).

We conclude, based on the context described above,
that the term "cruelty to [a] child," as used in ORS
12.117(2)(a)(B), most reasonably is interpreted to include
(1) acts that are performed with the specific intent of injuring
or harming the child and that are capable of producing those
results and (2) acts that, by their very nature, demonstrate a
willful and wanton disregard for the child's welfare, such that
one can infer a willingness to have the child injured.

Applying that standard, a jury could reasonably
determine, based on the relationship between Charvet and
plaintiff and the nature of the conduct at issue, that
Charvet's actions toward plaintiff fall within the "cruelty"
provision of ORS 12.117(2)(a)(B). Charvet was a priest-a
celibate spiritual adviser and leader-and was plaintiff's
freshman advisor and dormitory proctor while the 14-year-
old plaintiff attended seminary. Plaintiff presented evidence
that Charvet, using his position as a priest and advisor, sum-
moned plaintiff to his office, where Charvet engaged in an
explicit explanation of sexuality and masturbated while
plaintiff watched.9 Because of his training in the Catholic

(1987), repealed by Or Laws 2001, ch 900, § 261, which dealt with exemptions from
liability concerning public assistance payments. See Kerr v. Welfare Comm., 3 Or
App 27, 31, 470 P2d 167, rev den (1970), cert den, 402 US 950 (1971) (so interpreting
"cruelty").

9 Defendant argues that plaintiff's statements regarding Charvet's masturba-
tion are insufficient to create an issue of material fact because it is "mere specula-
tion" that Charvet actually masturbated. Defendant points to the fact that plaintiff
stated at one point in his deposition that he had "assumed" that Charvet was

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church, plaintiff felt that he could not leave the room and
therefore remained there for 30-45 minutes. Because of the
duration of the encounter, the nature of Charvet's conduct
and its potential for inflicting severe emotional injury, and
the nature of Charvet and plaintiff's relationship, we con-
clude that a reasonable trier of fact could find that the con-
duct described above demonstrates a wanton disregard for
plaintiff's welfare and a willingness to have plaintiff suffer
psychological harm as a result of Charvet's acts. There is
therefore sufficient evidence to create an issue of material
fact as to whether Charvet's conduct constituted "cruelty to
[a] child."

We turn next to plaintiff's claim that Charvet's con-
duct constituted "sexual exploitation" as that term is used in
ORS 12.117(2)(d). As discussed above, ORS 12.117(2)(d) pro-
vides that "child abuse" means, among other things, "[s]exual
exploitation of a child, including but not limited to [three spe-
cific examples]." As a result, the Court of Appeals rejected
plaintiff's argument that it should rely on the "common
sense" meaning of the words "sexual" and "exploitation," stat-
ing that "where the legislature has provided that a general
term 'includ[es] but [is] not limited to' expressly enumerated
items-here, specific types of conduct-that is not the appli-
cable textual analysis." Schmidt, 218 Or App at 684-85 (alter-
ations in original). Instead, the majority applied the principle
of ejusdem generis-that is, the majority construed "sexual
exploitation" by analyzing the "basic characteristics" of the
enumerated examples. Id. at 683.

The majority first examined ORS 163.43510-
contributing to the sexual delinquency of a minor-which is

masturbating. However, plaintiff also testified that he could see "a lot of motion
going on," that "[i]t went on for a long time," that it was "pretty obvious" that
Charvet was masturbating, and that plaintiff therefore had concluded that
Charvet was masturbating. On this record, there is a genuine dispute as to that
material fact, among others, that cannot be decided on summary judgment.

10 ORS 163.435(1) provides;

"A person 18 years of age or older commits the crime of contributing to the
sexual delinquency of a minor if:

"(a) Being a male, he engages in sexual intercourse with a female under
18 years of age; or

"(b) Being a female, she engages in sexual intercourse with a male under
18 years of age; or

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the first example of "sexual exploitation" listed in ORS
12.117(2)(d). A basic characteristic of the activities compris-
ing the crime of contributing to the sexual delinquency of a
minor, the majority determined, is "sexual intercourse-that
is, actual sexual contact-between the perpetrator and the
victim." Schmidt, 218 Or App at 683. Next, the majority
examined the second example of "sexual exploitation" listed
within the statute: "conduct which allows, employs, author-
izes, permits, induces or encourages a child to engage in the
performing for people to observe or the photographing,
filming, tape recording or other exhibition which, in whole
or in part, depicts sexual conduct or contact[.]" ORS
12.117(2)(d)(A). That example, the majority explained,
includes only actions that are "directed at causing a child to
perform sexual conduct or contact or to participate in the
'exhibition' of such conduct or contact." Schmidt, 218 Or App
at 684. Because the record in this case did not demonstrate
that Charvet had engaged in sexual intercourse with plaintiff
or that Charvet had encouraged plaintiff to perform sexual
conduct or contact or to participate in the exhibition of such
conduct or contact, the majority determined that a jury could
not find that Charvet had sexually exploited plaintiff.11 Id.

On review, plaintiff renews his argument that the
ordinary meaning of the term "sexual exploitation" is broad
enough to cover Charvet's conduct. Defendant responds that
the Court of Appeals correctly interpreted that term by using
the principle of ejusdem generis and determining its mean-
ing, in part, by examining the specific examples that follow
the term. The issue on review, then, is the correct inter-
pretation of the term "sexual exploitation" as used in ORS
12.117(2)(d).

Plaintiff begins by pointing to the plain and ordinary
meaning of the term "sexual exploitation." See State v.
Briney, 345 Or 505, 511, 200 P3d 550 (2008) (court gives
words of common usage their plain, ordinary meaning). The

"(c) The person engages in deviate sexual intercourse with another person
under 18 years of age or causes that person to engage in deviate sexual
intercourse."

11 The court did not address the third example in the statute: "[a]llowing, per-
mitting, encouraging or hiring a child to engage in prostitution, as defined in ORS
chapter 167." See ORS 12.117(2)(d)(B) (providing example).

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dictionary defines "exploitation" as "an unjust or improper
use of another person for one's own profit or advantage."
Webster's Third New Int'l Dictionary 801-02 (unabridged ed
2002).12 Plaintiff asserts that Charvet's conversation with
plaintiff and his masturbation in plaintiff's presence consti-
tute "an unjust or improper use" of plaintiff in a sexual way
for Charvet's own "advantage." According to plaintiff, the
inquiry should end at that point. He argues that the Court of
Appeals erred in limiting the plain meaning of "sexual exploi-
tation" to encompass only conduct that is similar to the spe-
cific examples listed in the statute and that the principle of
ejusdem generis should not be applied to ORS 12.117.

We agree with plaintiff that the appropriate starting
point is the ordinary meaning of "sexual exploitation."
However, we disagree with plaintiff's assertion that the
dictionary is the only source we should consider in interpret-
ing that term. We consider not only the dictionary definition
of the terms that the legislature chooses to use, but also the
context in which those terms are used. When, as here, the
legislature uses a general term in a statute and also provides
specific examples, those specific examples provide useful con-
text for interpreting the general term.

For example, in Vannatta v. Keisling, 324 Or 514,
533, 931 P2d 770 (1997), we used the principle of ejusdem
generis in determining whether the legislature had authority
under the Oregon Constitution to enact laws that restricted
campaign contributions and expenditures. The relevant con-
stitutional provision granted the legislature the authority to
enact laws prohibiting "all undue influence [in elections],
from power, bribery, tumult, and other improper conduct."
Id. at 528. As noted, we applied the principle of ejusdem
generis and concluded that the phrase "other improper con-
duct" referred only to improper conduct "of the same kind" as
that in the specific examples. Id. at 533.

Again, in Lewis v. CIGNA Ins. Co., 339 Or 342, 351,
121 P3d 1128 (2005), we used the principle of ejusdem generis
to examine the correct interpretation of a statute that
imposed a penalty for failing to cooperate with "personal and

12 There are other definitions, none of which applies to this case.

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telephonic interviews and other formal or informal infor-
mation gathering techniques." In deciding that the phrase
"other * * * information gathering techniques" did not
include independent medical examinations, we relied, in
part, on the principle of ejusdem generis;

"[The relevant statute] lists 'personal and telephonic inter-
views' as examples of 'formal and informal information
gathering techniques,' which suggests that 'information
gathering techniques' in this context share the basic char-
acteristics of personal and telephonic interviews. [W]hen
the legislature chooses to state both a general standard and
a list of specifics, the specifics do more than place their par-
ticular subjects beyond the dispute; they also refer the
scope of the general standard to matters of the same kind,
often phrased in Latin as "ejusdem generis."'"

Id. at 350 (quoting Bellikka v. Green, 306 Or 630, 636, 762
P2d 997 (1988)). As Vannatta and Lewis demonstrate, we are
not free, as plaintiff suggests, to ignore the examples that the
legislature set forth in ORS 12.117(2)(d) when interpreting
the term "sexual exploitation." Instead, we examine the ordi-
nary meaning of the general term "sexual exploitation" as
well as the specific examples that the legislature has given to
help in understanding the meaning of that more general
term.13

Plaintiff argues that reliance on the principle of
ejusdem generis is incorrect here because that principle
applies only when "a nonspecific or general phrase * * *
appears at the end of a list of items in a statute." See
Vannatta, 324 Or at 533 (so describing ejusdem generis)
(emphasis added). Because the general phrase in ORS
12.117-"[s]exual exploitation * * * , including but not limited
to"-appears before the list of examples, plaintiff contends,
the examples do not limit the general phrase. We disagree. In
interpreting a general term, we have considered the context
provided by specific examples when those examples fall after
the general term, as well as when they are placed before that

13 Plaintiff's position that the term "sexual exploitation" should be interpreted
independently of the specific examples given in ORS 12.117 would be correct if the
legislature had placed the term in a separate sentence or had, through another
grammatical device, demonstrated that the different grounds for extending the
statute of limitations were unrelated.

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term as they were in Vannatta and Lewis. See Liberty v. State
Dept. of Transportation, 342 Or 11, 20, 148 P3d 909 (2006)
(applying ejusdem generis when interpreting the phrase "out-
door activities such as hunting, fishing, [and other specified
activities]").

Plaintiff next argues that this court need not apply
the principle of ejusdem generis because the legislature chose
to connect the general term "sexual exploitation" with the
specific examples by using the phrase "including but not lim-
ited to." Plaintiff cites United States v. Migi, 329 F3d 1085,
1088 (9th Cir 2003), where the Ninth Circuit refused to apply
ejusdem generis when the plain meaning of the statutory text
was "apparent." The court also noted that use of the phrase
"including but not limited to" helps to mitigate "the some-
times unfortunate results of rigid application of the ejusdem
generis rule." Id. at 1089 (internal quotation marks omitted).
Regardless of whether we are constrained by the "rule" of
ejusdem generis, we will apply the principle when, as here, it
provides useful guidance in interpreting a statutory term. In
doing so, we give interpretive weight to all the words that the
legislature used-including both the term "sexual exploita-
tion" and the specific examples of sexual exploitation. That
does not mean, of course, that the specific examples consti-
tute the universe of items to which the general term refers;
rather, it means only that our interpretation of the general
term includes consideration of those specific examples. 14

14 Many other courts interpret statutes that use the phrase "including but not
limited to" and then provide specific examples in the same way; that is, they inter-
pret the general term in light of (although not limited to) the specific examples. See
State v. Kavajecz, 139 Idaho 482, 486-87, 80 P3d 1083, 1087-88 (2003) (interpreting
phrase "any lewd or lascivious act or acts * * * including but not limited to, genital-
genital contact, oral-genital contact, anal-genital contact, oral-anal contact,
manual-anal contact, or manual-genital contact" to not include kissing a child's
chest); Board Chosen Freeholders v. State, 159 NJ 565, 570, 576-77, 732 A2d 1053,
1056, 1059 (1999) (interpreting phrase judicial costs, "including but not limited to
the following costs: salaries, health benefits and pension payments of all judicial
employees, juror fees and library material costs" to not include the capital costs of
judicial facilities); Peralta Community College Dist. v. FEHC, 52 Cal3d 40, 48-50,
801 P2d 357, 362 (1990) (interpreting phrase "to take such action, including, but
not limited to, hiring, reinstatement or upgrading of employees, with or without
back pay, and restoration to membership in any respondent labor organization" to
not include unlimited compensatory damages). But see United States v. Migi, 329
F3d 1085, 1089 (9th Cir 2003) (ejusdem generis does not apply when Congress

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Having established that the principle of ejusdem
generis may help us understand the legislature's intent in
this case, we turn to the proper application of that principle.
The Court of Appeals correctly noted that, when applying the
principle, the court "examine[s] the 'basic characteristics' of
the enumerated items." Schmidt, 218 Or App at 683 (quoting
Lewis, 339 Or at 350). However, in examining the "basic
characteristics" of the activities, we do not look at each activ-
ity individually, glean a basic characteristic from that activ-
ity, and then determine whether the conduct at issue in this
case shares that basic characteristic. If we simply looked at
each example individually and determined that no sexual
exploitation occurred because plaintiff's conduct did not fall
within the listed examples, we would be disregarding other
words of the statute. The legislature provided that "sexual
exploitation" includes, but is not limited to, the conduct enu-
merated in the statute. As a result, we cannot interpret the
term as encompassing only the conduct in the listed
examples.

Instead, when using the principle of ejusdem generis,
the court seeks to find, if it can, a common characteristic
among the listed examples. We then determine whether the
conduct at issue, even though not one of the listed examples,
contains that characteristic and, thus, falls within the
intended meaning of the general term. See Liberty, 342 Or at
20-21 (describing and applying principle); see also Vannatta,
324 Or at 533 (finding common characteristic). That can be
done here. The three examples of sexual exploitation offered
by the legislature are: (1) contributing to the sexual delin-
quency of a minor, which occurs when an adult engages in
sexual intercourse or deviate sexual intercourse with some-
one under the age of 18 or causes someone under the age of 18
to have deviate sexual intercourse; (2) "conduct which allows,
employs, authorizes, permits, induces or encourages a child
to engage in the performing for people to observe or the pho-
tographing, filming, tape recording or other exhibition which,
in whole or in part, depicts sexual conduct or contact," or, in
simpler terms, allowing or encouraging child pornography;

connects the general term and the specific examples with the phrase "including but
not limited to").

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and (3) "[a]llowing, permitting, encouraging or hiring a child
to engage in prostitution, as defined in ORS chapter 167."15

Here, we seek to identify, if we can, a common char-
acteristic of the examples that helps us in determining, at a
minimum, what conduct the legislature intended to include
within the general term "sexual exploitation." Obviously,
"sexual exploitation" necessarily requires some conduct of a
sexual nature, and, as discussed above, the dictionary defi-
nition of exploitation is "an unjust or improper use of another
person for one's own profit or advantage." As a result, identi-
fying the relevant common trait in the listed examples as the
fact that each activity is sexual in nature or the fact that each
involves an adult improperly using a child for his own pur-
poses would not help us to better understand the meaning of
the term "sexual exploitation" as used in ORS 12.117(2)(d).

Defendant offers a more limiting alternative com-
mon characteristic: each example given in ORS 12.117(2)(d),
defendant argues, "addresses a child either touching himself
or someone else." Defendant is incorrect, however, because
not all the enumerated examples necessarily involve a child
touching him or herself or someone else. The second example
requires only that the perpetrator "encourage[ ]" a child to
engage in a performance that "depicts sexual conduct or con-
tact" for others to observe or record. ORS 12.117(2)(d)(A)
(emphasis added). "Sexual contact" clearly requires some sort
of physical contact with the child. But the term "sexual con-
duct" does not necessarily require that the child touch him or
herself or someone else. It could, for example, involve a
child's partial or complete nudity, without any touching of
the child or another. See ORS 163.665(3)(f) (for purposes of
child pornography statutes, "sexually explicit conduct"

15 ORS 167.007(1) provides:

"A person commits the crime of prostitution if:

"(a) The person engages in or offers or agrees to engage in sexual conduct
or sexual contact in return for a fee; or

"(b) The person pays or offers or agrees to pay a fee to engage in sexual
conduct or sexual contact."

For purposes of ORS 167.007, "sexual conduct" means "sexual intercourse or devi-
ate sexual intercourse," and "sexual contact" means "any touching of the sexual
organs or other intimate parts of a person not married to the actor for the purpose
of arousing or gratifying the sexual desire of either party." ORS 167.002.

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includes "[l]ewd exhibition of sexual or other intimate
parts"). Although, to be useful, the common trait must be
narrow enough to provide some context for the proper inter-
pretation of "sexual exploitation," we cannot adopt a trait
unless it is common to all the listed examples.

Although defendant's proposed "common character-
istic" is incorrect, we find the examples that the legislature
provided helpful in another way: in each situation, an adult
causes-or attempts to cause-a child to be personally
involved in a sexual act. We therefore conclude that conduct
qualifies as "sexual exploitation of a child" under ORS
12.117(2)(d) if an individual uses a child in a sexual way for
his or her own gratification or benefit, and the child is person-
ally involved.

Here, plaintiff presented evidence that Charvet
called plaintiff into his office and, with the door shut, began
asking plaintiff questions about sexuality and describing
masturbation using "street or gutter talk." Charvet then
began masturbating. While Charvet was masturbating,
plaintiff was physically present and could see-and did see
what Charvet was doing. Further, plaintiff felt that he could
not leave the situation and that he was forced to watch
Charvet masturbate. Considering Charvet's role as a priest
and spiritual advisor-and his role as plaintiff's advisor
within the seminary-plaintiff's belief was not unreasonable.

From that evidence, a jury reasonably could find
that Charvet was using plaintiff's presence and plaintiff's
reactions to Charvet's questioning for his own sexual stimu-
lation. Charvet intentionally exposed plaintiff to Charvet's
own sexual conduct, with full awareness that plaintiff could
observe what Charvet was doing, and plaintiff did, in fact,
observe and understand what Charvet was doing. Indeed, a
trier of fact could infer that Charvet needed to have plaintiff
present for Charvet to masturbate, or at least that Charvet
required plaintiff's presence to facilitate the act. In that way,
Charvet personally involved plaintiff in Charvet's masturba-
tion, a sexual act.

For the foregoing reasons, we conclude that there
was sufficient evidence for a reasonable factfinder to find
that Charvet's conduct constituted "cruelty to [a] child" under

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ORS 12.117(2)(a)(B). We also conclude that there was suffi-
cient evidence for a reasonable factfinder to find that that
conduct constituted "sexual exploitation of a child" under
ORS 12.117(2)(d). Accordingly, the trial court erred in con-
cluding that plaintiff's action was time-barred and granting
defendant's motion for summary judgment on that ground.

Because a majority of the Court of Appeals con-
cluded that plaintiff's claim was time-barred, it did not reach
defendant's alternative argument that Charvet's alleged con-
duct was insufficient to support respondeat superior liabil-
ity.16 We therefore remand the case to that court so that it
may consider that issue.

The decision of the Court of Appeals is reversed, and
the case is remanded to the Court of Appeals for further
proceedings.

# WALTERS, J., concurring.

I concur in the majority's decision. I write separately
to note a small, but I think important, point about the appli-
cation of the principle of ejusdem generis. Under the principle
of ejusdem generis, a general statutory phrase is not given its
plain and ordinary meaning; its meaning is limited or nar-
rowed by the specific examples that the legislature provides
in conjunction with that general term. Lewis v. CIGNA Ins.
Co., 339 Or 342, 351, 121 P3d 1128 (2005). In this case, the
majority decides that it is not always constrained by the prin-
ciple of ejusdem generis when the legislature precedes the
specific examples with the phrase "including but not limited
to." 347 Or at 404.

I agree with the majority that the principle of
ejusdem generis may not apply in that circumstance, but I
want to explain why. The assumption underlying the princi-
ple of ejusdem generis is that the legislature intentionally has
used specific examples to limit or narrow the meaning of a
general term. In my experience, however, that is not always
the case. The legislature may instead use examples to illus-
trate the applicability of a term, without intending to limit or

16 As noted, the court did reach the issue of respondeat superior liability for
Father Frank's conduct. We express no opinion as to that issue.

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narrow its common meaning, or to broaden the common
meaning of a term. It is understandable to think that the
phrase "including but not limited to," followed by a list of
examples, conveys an intent to illustrate or to broaden,
rather than to limit the meaning of a general term. After all,
the phrase says that the general term is not limited to the
examples. But as this case demonstrates, that phrase can
mean that the examples given are not the only application of
a general term, and in that sense, that the examples are not
limiting, without also meaning that the examples do not per-
form a different narrowing function. In other words, a gen-
eral statutory term may be limited by, even though it is not
limited to, specific statutory examples. I write to point out
that the phrase "including but not limited to" is itself impre-
cise, and to urge that the legislature both decide the purpose
for which it uses examples and convey that purpose as clearly
as it can.

Let me illustrate the various purposes to which
examples may be put. Suppose that the legislature were to
enact a statute prohibiting the "cutting of all trees, including
but not limited to oak, maple, and birch." One common mean-
ing of the word "tree," as stated in the dictionary, is "a woody
perennial plant, having a single main stem that may be short
but is usu[ally] considerably elongated, has generally few or
no branches on its lower part, and is crowned with a head of
branches and foliage or (as in palms) of foliage only."
Webster's Third New Int'l Dictionary 2435 (unabridged ed
2002). By giving three examples of plants the legislature con-
siders to fall within the definition of the word "tree," the leg-
islature could be seeking to narrow the dictionary definition
of the general term "tree," or it could be using the examples to
illustrate the application of that definition, or even to
broaden that definition.

If the legislature intended to use the examples to
limit the dictionary definition of "tree" to plants that share
common characteristics with oak, maple, and birch, we would
apply the principle of ejusdem generis when faced with a
question of whether the statute prohibits the cutting of a cer-
tain plant that might not be considered a tree. We would look,
as we do in this case, for a common characteristic that those
three examples share beyond the fact that all are tall, woody,

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and crowned with foliage. We would then determine if the
plant at issue also shared that characteristic.

If, alternatively, the legislature intended to protect
all plants that fall within the dictionary definition of the word
"tree," but used the examples to ensure that certain trees, the
only ones actually growing in the area subject to statutory
protection, would not be cut, we might take a different
approach. We might understand the examples as illustrative
and not examine whether the plant at issue had characteris-
tics in common with oak, maple, or birch, other than those
required by the dictionary definition of the word "tree."

Still another possibility is that the legislature used
the examples to expand, rather than to contract, the
dictionary definition of "tree." A "maple" is "a tree or shrub of
the genus Acer." Id. at 1379 (first emphasis added; second
emphasis in original). By specifically including "maple" in its
list of protected plants, the legislature could have intended to
broaden the dictionary definition of "tree" to prohibit the cut-
ting of all maples, including small Japanese maples, which
might not otherwise be considered "trees."

Examples serve no right or wrong purpose, and the
legislature may use examples in one statute to establish lim-
its on an ambiguous term, and in another to illustrate or
expand. Precisely because there are so many ways in which
the legislature may use examples, I write to urge that the leg-
islature consider the distinctions that I have drawn, use care
in selecting examples, and express as clearly as possible the
office that it expects its examples to serve. With that assis-
tance, courts will be better able to carry out the legislature's
intent.