Box v. State

• Decision Date: 12 May 2021
• Docket Number: A166624
• Citation: 492 P.3d 685,311 Or.App. 348
• Court: Oregon Court of Appeals
• Parties: Bernadette BOX, Personal Representative of the Estate of Robert Clinton Box, Plaintiff-Appellant, v. State of Oregon, DEPARTMENT OF OREGON STATE POLICE, Defendant-Respondent.

311 Or.App. 348

492 P.3d 685

Bernadette BOX, Personal Representative of the Estate of Robert Clinton Box, Plaintiff-Appellant,

v.State of Oregon, DEPARTMENT OF OREGON STATE POLICE, Defendant-Respondent.

A166624

Court of Appeals of Oregon.

Argued and submitted October 9, 2019.

May 12, 2021

Janet M. Schroer, Portland, argued the cause for appellant. Also on the opening brief were Mark Sherman and Hart Wagner LLP. Also on the combined reply and answering brief on cross-assignment were Hart Wagner LLP; David D. Park and Elliott & Park; and Richard D. Adams and Rogue Law Firm PC.

David B. Thompson, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Shorr, Presiding Judge, and James, Judge, and Landau, Senior Judge.

SHORR, P. J.

Plaintiff is the personal representative for the estate of Robert Box. Box was shot and killed by Oregon State Police troopers outside his home. Plaintiff brought this wrongful death action against defendant State of Oregon, alleging that its troopers, West and Smyth, were negligent in their tactical approach to Box's home, and that the Oregon State Police (OSP) negligently supervised and retained Smyth. Plaintiff also alleged that the troopers trespassed on the Box property.

Before trial, plaintiff moved for partial summary judgment on her trespassing claim, arguing that, as a matter of law, the OSP troopers were trespassing on Box's property at the time and place of the shooting. In addition, defendant moved for summary judgment against all of plaintiff's claims. Plaintiff responded that there was a genuine dispute of material fact as to each element of her claims and presented evidence in support of that assertion, including an ORCP 47 E declaration asserting that plaintiff's counsel had retained a qualified expert whose testimony would create issues of material fact as to the issues of negligence and causation. The trial court denied plaintiff's motion for partial summary judgment and granted summary judgment for defendant. The court concluded that plaintiff's ORCP 47 E declaration created a disputed issue for trial on the negligence claim but granted summary judgment to defendant on the ground that defendant was immune from liability under the doctrine of apparent authority immunity.

Plaintiff appeals, raising two assignments of error. In the first, plaintiff contends that the trial court erred in granting defendant summary judgment after concluding that defendant was entitled to apparent authority immunity. In the second, plaintiff assigns error to the court's denial of plaintiff's motion for partial summary judgment, arguing that the troopers were trespassers as a matter of law. Defendant cross-assigns error to the court's conclusion that plaintiff's ORCP 47 E declaration was sufficient to defeat summary judgment on the negligence claim. For the reasons explained below, we conclude that the trial court erred in granting summary judgment to defendant and in denying partial summary judgment to plaintiff. Consequently, we reverse and remand.

I. PLAINTIFF'S ALLEGATIONS AND THE EVIDENCE PRESENTED ON SUMMARY JUDGMENT

Before turning to the evidence presented on summary judgment, we provide a brief overview of plaintiff's claims for negligence and trespass. Plaintiff's claims arise from the troopers’ entry onto the Box property, and eventual shooting of Box, who was armed at the time of the shooting. Plaintiff alleged two specifications of negligence. In the first, plaintiff alleged that Smyth was predisposed to dangerous performance deficiencies, including tunnel vision in stressful circumstances; the supervising and commanding OSP officers were aware of Smyth's stress-induced performance deficiencies; and the supervising officers negligently retained, supervised, and trained Smyth in light of the danger posed by those performance deficiencies. In the second, plaintiff alleged that Smyth and West, who went to the Box property in response to a reported assault, were negligent in their tactical approach to the Box property and in failing to properly notify Box of their presence. Plaintiff alleged that the troopers’ negligence created conditions—significantly Box's possession of a gun at the time of the shooting—where the use of lethal force became probable and caused Box's death. Plaintiff's claim for trespass alleged that, during the troopers’ approach, and at the time of the shooting, the troopers entered areas of the Box property without authority or consent to enter.

We turn to the record before the trial court at the time of summary judgment. On review of a grant of summary judgment, we view the record in the light most favorable to, and draw all reasonable inferences in favor of, the nonmoving party. Jones v. General Motors Corp. , 325 Or. 404, 413, 939 P.2d 608 (1997). Because we first address the court's ruling on defendant's motion for summary judgment, we begin by stating the facts in the light most favorable to plaintiff.

A. Supervision and Retention of Smyth

We begin with the evidence that is relevant to the alleged negligent supervision and retention of Smyth. Smyth was hired as a trooper for OSP in 2008. In 2009, a personnel complaint was sustained against Smyth after he operated his patrol car "in an unsafe manner" while responding to West's request for backup due to a "combative subject." Smyth "drove in excess of 100 miles per hour" on a city street with a speed limit of 30 to 35 miles per hour. Smyth also failed to stop at a red light and drove "into the opposite lane of travel at two different intersections." Smyth told the investigating sergeant that, "when he heard Trooper West say that she had a combative subject[,] he was so focused that he did not hear her say" she no longer needed assistance or hear her talking with another trooper on the radio. Smyth stated that he remembered thinking about "images" of police officers "losing their lives or coming close to it" during his response.

In 2013, Smyth joined OSP's SWAT team, a position he held in addition to his OSP patrol duties. Sergeant Glass was Smyth's SWAT supervisor. During Smyth's tenure on the SWAT team, Glass received five written complaints from Smyth's peers and training officers about Smyth's performance during training exercises. One complainant noted that, "[t]hroughout the day," Smyth "was in a heightened state and seemed to be on edge constantly, and appeared unable to calm down. This definitely seemed to negatively affect his ability to properly and safely process information as it was presented to him." Another described Smyth as being "so focused on the downed threat, he did not perceive anything else that was going on." During that training, a team member "had to physically go get him * * * to move to a position of cover" with the rest of the team. This reflected Smyth's tendency "to get overwhelmed with a lot going on" and "tunne[l] in on one problem[,] leaving him and [his] teammates open to other conditions that are just as important." One complainant wrote that Smyth's "decision making and overreaction have the potential to lead to someone being seriously injured, or killed, on a real world operation." The other complaints were also consistent in describing Smyth's performance issues. Each involved Smyth repeatedly demonstrating problems processing information, moving forward with operations while failing to account for safety concerns, and reacting to stress by "going into a ‘tunnel vision mode’ that causes him to either overreact, or to react inappropriately, to the given set of circumstances."

Glass also personally observed Smyth's performance deficiencies. Glass observed that Smyth "was not as calm as he should have been" and that he "over processed information, which made him make mistakes." Glass testified that it is important for troopers to maintain calm in "high risk situations, so that they can process information." Smyth's behavior was a "safety hazard" because he tended to bypass threats.

Glass discussed his concerns with Lieutenant Fugate, who decided to terminate Smyth from the SWAT team as a result of the performance deficiencies observed during the SWAT trainings. Fugate understood Smyth's issue as a reaction to stress during which Smyth experienced an inability to see and hear things and was "focused on trying to get from Point A to Point B." Fugate understood that Smyth's tunnel vision could be dangerous to fellow troopers and members of the public.

After Smyth was terminated from SWAT, he retained his position as an OSP patrol trooper. Neither Glass nor Fugate reported the reasons for his termination or information about his performance to Smyth's patrol supervisors. Glass thought it might be important for Smyth's patrol supervisors to know of the reasons for Smyth's termination, but did not take action to inform them because his "chain of command would dictate [that his] lieutenant do that." Fugate believed it would have been common practice to communicate with Smyth's patrol supervisors regarding the reasons for his termination, but he did not remember having any conversations to that effect.

Sergeant Proulx was Smyth's direct supervisor at the time of the shooting. Proulx was not told of the reasons for Smyth's removal from SWAT. Proulx was unaware that Smyth had difficulty processing information in a stressed or heightened state. Lieutenant Altman participated in Smyth's 2015 performance review, and was unaware of Smyth's past performance issues, responses to stress, or tunnel vision deficiencies at the time of Smyth's performance review. Altman did not review Smyth's entire personnel file as part of Smyth's performance review. Lieutenant Lux, also an indirect supervisor, "signed off" on Smyth's performance reviews. Lux had no knowledge of the complaints that led to Smyth's removal from SWAT.

OSP's fitness for duty evaluation policy lists the following indicators, among...