Ballard v. City of Albany

• Jurisdiction: Oregon
• Parties: Brenda BALLARD, as personal representative of the Estate of Philip Randall Ballard, deceased, Plaintiff-Appellant, v. CITY OF ALBANY; Linn County; State of Oregon and Oregon State Police, Defendants-Respondents, and Albany Police Department; Linn County Sheriff's Office; Aaron Olympius, RCT-OSP; Darrin Phillips, Sr TRP-OSP; Alan Sprague, Sgt-Albany Police Department; Ben Atcley, Cpl-Albany Police Department; Robin McKnight, Ofc-Albany Police Department; Troy Michelson, Ofc; Dan Kloss, Ofc-Albany Police Department; John Does 1-6; Andy Olson, OSP Albany; Curtis Hyde, Ofc-Albany Police Department and Robert A. Rosage, TRP-OSP Albany, Defendants.
• Citation: 221 Or. App. 630,191 P.3d 679
• Docket Number: 001570; A126379.
• Court: Oregon Court of Appeals
• Decision Date: 13 August 2008

191 P.3d 679

221 Or. App. 630

Brenda BALLARD, as personal representative of the Estate of Philip Randall Ballard, deceased, Plaintiff-Appellant, v.CITY OF ALBANY; Linn County; State of Oregon and Oregon State Police, Defendants-Respondents, and Albany Police Department; Linn CountySheriff's Office; Aaron Olympius, RCT-OSP; Darrin Phillips, Sr TRP-OSP; Alan Sprague, Sgt-Albany Police Department; Ben Atcley, Cpl-Albany Police Department; Robin McKnight, Ofc-Albany Police Department; Troy Michelson, Ofc; Dan Kloss, Ofc-Albany Police Department; John Does 1-6; Andy Olson, OSP Albany; Curtis Hyde, Ofc-Albany Police Department and Robert A. Rosage, TRP-OSP Albany, Defendants.

001570; A126379.

Court of Appeals of Oregon.

Argued and Submitted October 25, 2007.

Decided August 13, 2008.

Helen C. Tompkins, Portland, argued the cause and filed the briefs for appellant.

Bruce L. Mowery, Salem, argued the cause and filed the brief for respondents City of Albany and Linn County.

Judy C. Lucas, Senior Assistant Attorney General, argued the cause for respondentsState of Oregon and Oregon State Police.With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge.

SERCOMBE, J.

Plaintiff, personal representative of the estate of Philip R. Ballard(Ballard),¹ appeals a judgment for defendantsCity of Albany(city), Linn County(county), and the State of Oregon and the Oregon State Police(OSP) on plaintiff's negligence and battery claims.Plaintiff sought damages for personal injuries suffered during a traffic stop when police officers used a police dog to remove him from his car.As elaborated below, we affirm in part and reverse in part.

On July 20, 1998, an Oregon state police officer stopped plaintiff on a state highway in Albany, Oregon, because he suspected that plaintiff was driving while his license was suspended.Plaintiff was lawfully arrested.He refused to get out of his car, and state police officers called for backup from the city police.One city police officer brought a police dog.The use of force in arresting plaintiff gave rise to the claims in this case.Plaintiff's second amended complaint alleged that, in removing plaintiff from his car subsequent to his arrest, officers smashed plaintiff's front driver's window, used pepper spray and night sticks, and finally deployed the police dog to pull him from the car, causing him serious permanent injuries.

Following a motion for summary judgment, the trial court entered a limited judgment dismissing plaintiff's claims against the city and county, which plaintiff sought to set aside under ORCP 71.The trial court denied plaintiff's motion.The case then went to trial on plaintiff's remaining negligence and battery claims against OSP.The trial court directed a verdict for OSP on plaintiff's negligence claim and a partial directed verdict on the battery claim, removing from the jury's consideration the allegations relating to use of the police dog.The jury considered the remaining battery allegations against OSP and returned a verdict for OSP.

Plaintiff appeals the limited judgment dismissing his claims against the city and county, the order denying his motion to set aside the judgment, and the judgment dismissing his claim against OSP.His first three assignments of error relate to the trial court's rulings on the claims against the city and county.His remaining four assignments of error pertain to rulings on the OSP claims.We address them in turn as we describe the circumstances under which they arose during the various phases of the litigation.

We first address plaintiff's second assignment of error, in which he contends that the trial court erred in denying his motion under ORCP 71 B² to set aside the limited judgment in favor of the city and county on the ground of excusable neglect.Reasoning that the relief that plaintiff sought was controlled by ORCP 64, the trial court treated the motion as one for a new trial and denied it as untimely.Plaintiff contends that the summary judgment was entered against him because of his excusable neglect and that the trial court erred in denying his motion.

Plaintiff's claim of excusable neglect arises from the following circumstances.Plaintiff's original attorney withdrew from representation of plaintiff in March 2003.At that same time, plaintiff began to suffer serious health problems unrelated to this case.Over the next several months, plaintiff, acting pro se, requested several continuances of settlement conference and trial dates.In October 2003, defendants filed their answers to the second amended complaint.Plaintiff represented to the court and defendants that he had found an attorney and, with plaintiff's consent, the court set a trial date of March 2, 2004.Defendants requested the name of plaintiff's attorney, but it was not forthcoming.

In November 2003, the city and county notified plaintiff by letter that they intended to file a motion in December 2003 seeking dismissal of his claims.Those defendants filed a motion for summary judgment at that time.Plaintiff, who continued to be unrepresented, requested a continuance of his time to respond.Although the court granted the continuance, plaintiff filed no written response or opposition to the motion.At the April 16, 2004, summary judgment hearing, plaintiff appeared without an attorney, and did not request a further postponement.Plaintiff did not contest defendants' motion, except to say that he did not understand the proceeding, that he was close to retaining counsel, and that he wished to have a jury trial.

The court granted the motion for summary judgment and entered a limited judgment in favor of the city and county on May 24, 2004.On June 18, 2004, after obtaining counsel, plaintiff filed arguments against the summary judgment motion, together with a motion, under ORCP 71 B and C, to set aside the limited judgment on the ground of excusable neglect.The trial court treated plaintiff's motion as a motion for new trial under ORCP 64 and denied it as untimely.Plaintiff filed a notice of appeal from the limited judgment and the order on October 20, 2004, 19 days after the court entered its order, and five months after entry of the limited judgment against the city and county.Plaintiff's appeal of the limited judgment was untimely.SeeORS 19.255(1)("[A] notice of appeal must be served and filed within 30 days after the judgment appealed from is entered in the register.").On defendants' motion to dismiss, we allowed the appeal to proceed on the order denying plaintiff's motion to set aside the limited judgment.

We agree with plaintiff that the substance of the motion fell under ORCP 71 B, because the ground for relief — excusable neglect — is available under ORCP 71 B(1)(a) but not under ORCP 64.SeeHousley and Housley,202 Or.App. 182, 187, 120 P.3d 1245(2005)(motion seeking relief from judgment on ground of "excusable neglect" after moving party, having filed an answer, failed to appear at trial, was motion under ORCP 71 B and not ORCP 64).We conclude that the trial court therefore erred in treating the motion as one under ORCP 64.

However, as an alternative ground for its ruling, the court also found that "[plaintiff's] conduct in failing to adequately respond to the Motion for Summary Judgment did not constitute excusable neglect."The court thus made the determination required by ORCP 71 B(1)(a).We review that determination for an abuse of discretion, Wood v. James W. Fowler Co.,168 Or.App. 308, 311, 7 P.3d 577(2000), and will not disturb it "except for manifest abuse of such discretion."Pacheco v. Blatchford,91 Or. App. 390, 392, 754 P.2d 1219, rev. den.,306 Or. 660, 763 P.2d 151(1988).

In support of his motion to set aside the limited judgment, plaintiff explained by affidavit that his failure to respond to the summary judgment motion was the result of his lack of understanding of the proceedings and his continued inability to find an attorney to represent him after his first attorney withdrew in March 2003.He stated that, between March 2003 and the date of the April 2004 hearing, he consulted with four law firms without success.Plaintiff noted that he had thought that his former attorney would resume representation, but that reengagement failed.Further, plaintiff explained that he became seriously ill in March 2003, was twice hospitalized, and was diagnosed with only a few months to live.Plaintiff averred that, "[b]ecause of the severity of my illness and the treatment and medications, I was unable to think clearly and did not have the strength or stamina to actively work on pending legal matters."Plaintiff stated that he finally retained an attorney on May 26, 2004, and that, within a few weeks, the new attorney filed the motion to set aside the judgment, as well as a response to the motion for summary judgment.

Plaintiff offers reasonable excuses for why he had not retained an attorney to represent him and why he did not file any response to the city and county's motion for summary judgment.Although we have never before held that a plaintiff's inability to retain an attorney is excusable neglect under ORCP 71, we do not foreclose it.But seeChristian v. SAIF,32 Or.App. 205, 208, 573 P.2d 763, rev. den.,282 Or. 385(1978)(difficulty retaining attorney would not constitute excusable neglect under predecessor statute).Each case must be considered on its own facts.Morever, illness can be a ground for setting aside a judgment under ORCP 71 B. See, e.g., National Mortgage Co. v. Robert C. Wyatt, Inc.,173 Or.App. 16, 24, 20 P.3d 216, rev. den.,332 Or. 430, 30 P.3d 1183(2001).As the Supreme Court explained in Hiatt v. Congoleum Industries,279 Or. 569, 579, 569 P.2d 567(1977)(quotingWagar v. Prudential Ins. Co.,276 Or. 827, 833, 556 P.2d 658(1976)), "[o]rdinarily, if [a movant]...