Bray v. American Property Management Corp.

• Decision Date: 30 September 1998
• Citation: 965 P.2d 426,156 Or.App. 356
• Parties: Judy M. BRAY, Personal Representative for the Estate of Roy William Bray, Respondent--Cross-Appellant, v. AMERICAN PROPERTY MANAGEMENT CORP., an Oregon corporation, Appellant--Cross-Respondent, and Joseph E. Weston, Marilyn Weston and American Property Management Corp., a general partnership doing business as Weston Investment Co., Defendants. 9504-02768; CA A93122.
• Court: Oregon Court of Appeals

Page 426

965 P.2d 426

156 Or.App. 356

Judy M. BRAY, Personal Representative for the Estate of Roy William Bray, Respondent--Cross-Appellant, v. AMERICAN PROPERTY MANAGEMENT CORP., an Oregon corporation Appellant--Cross-Respondent and Joseph E. Weston, Marilyn Weston and American Property Management Corp., a general partnership doing business as Weston Investment Co., Defendants.

9504-02768; CA A93122.

Court of Appeals of Oregon.

Argued and Submitted Nov. 6, 1997.

Decided Sept. 30, 1998.

Thomas M. Christ, Portland, argued the cause for Appellant--Cross-Respondent. With him on the briefs was Mitchell, Lang & Smith.

Dennis H. Elliott, Portland, argued the cause for Respondent--Cross-Appellant. With him on the brief was Elliott & Park.

Before De MUNIZ, P.J., and HASELTON and LINDER, JJ.

HASELTON, Judge.

Defendant American Property Management Corporation ¹ appeals a judgment entered after a jury rendered a verdict for plaintiff Judy Bray on her claim for wrongful death under the theory of respondeat superior. Plaintiff's husband Roy Bray died as a result of being stabbed during an altercation with defendant's employee. Defendant argues (1) that the trial court erred in denying its motion for a directed verdict because its employee was not acting "within the scope of his employment" when he stabbed plaintiff's husband; (2) that the trial court gave misleading jury instructions; and (3) that the trial court erred in excluding certain evidence. Plaintiff "cross-appeals," assigning error to the trial court's exclusion of evidence. ² We reverse on appeal and dismiss the "cross-appeal."

As viewed in the light most favorable to plaintiff, Brown v. J.C. Penney Co., 297 Or. 695, 705, 688 P.2d 811 (1984), the record discloses the following facts: In 1993, plaintiff and decedent bought a cafe/bakery which was located in The Jeffrey Center in downtown Portland. The Jeffrey Center also housed a parking garage, and the back door of the bakery opened onto the driveway of that parking garage. Defendant was the property manager for The Jeffrey Center, including the garage. Defendant's employee Oscar Davis was the parking attendant for the garage.

The Brays used the back door of the bakery and the garage driveway to load the van for early morning van deliveries of baked goods. The Brays' lease required that their van be out of the driveway of the parking garage before 8:00 every morning. Sometimes, however, Roy Bray would be late in making deliveries and would leave the van parked in the driveway until after 8:00, or would return to the driveway and park there after 8:00. After 8:00, the garage got busy and, if parked in the driveway, the delivery van obstructed and interfered with customers' use of the garage during that peak time in the morning. Oscar Davis and the Brays had several heated exchanges over the presence of the van in the driveway after 8:00.

Defendant apparently permitted the Brays to use the driveway to load the delivery van but did not grant them parking privileges. The Brays, however, regularly parked their car there at night when the daytime customers were gone. Davis's supervisor, Debra McCracken, was not aware of the Brays' use of the garage for nighttime parking until Davis informed her on December 14.

The Jeffrey Center employed a security service to monitor traffic in the building, lock the building at night, and "secure the parking garage." The security guards were on duty from 6:00 a.m. to 6:00 p.m. on the weekdays and from 8:00 a.m. to 4:00 p.m. on Saturday. They would report any incidents occurring on their shifts to McCracken. McCracken testified at trial that neither Davis, nor anyone else, was ever authorized by defendant to use force. There is no evidence in the record, however, that defendant explicitly told its employees that the use of force was not authorized. That is, although there is no evidence that defendant's management explicitly authorized Davis to use force, there is no evidence that McCracken, or any of defendant's managers, ever expressly forbade Davis from using force.

On the evening of December 13, 1994, Bray drove his car into the garage before Davis left work for the day. Bray asked Davis to park his car. Davis refused. In response, Bray called Davis a "son of a bitch" and threatened to "get even." Bray threw his keys at Davis and walked into the bakery. The next morning, Davis related the prior evening's exchange with Bray to McCracken. McCracken told Davis not to permit Bray to park his vehicle in the garage and that she would send the Brays a letter reminding them that they had no parking privileges.

After 6:00 that same evening, December 14, Bray again drove into the parking garage before Davis left work for the day. Davis told Bray that he could not park in the garage. Bray cursed and grabbed Davis around the neck and began to choke him. Bray and Davis fell to the floor, scuffling. Davis reached into his pocket in the midst of that skirmish, pulled out his knife, and opened it using both hands. Davis then stabbed Bray in the chest. Bray rose, stumbled into the bakery, and died.

As personal representative of her husband's estate, plaintiff brought this wrongful death action. She alleged in her complaint that

"[a]t the time Oscar Davis assaulted and killed Roy Bray, he was acting within the course and scope of his employment with defendant APM and under defendant APM's express instruction not to let Roy Bray park his vehicle in the garage."

Defendant denied that Davis was acting within the scope of his employment when he stabbed Bray, and further, asserted the affirmative defense of self-defense.

After the presentation of the evidence, defendant moved for a directed verdict on the ground that plaintiff's evidence was insufficient, as a matter of law, to support a verdict holding defendant vicariously liable for Davis's tortious act. Defendant argued that, under the three-part test for vicarious liability announced in Chesterman v. Barmon, 305 Or. 439, 442, 753 P.2d 404 (1988), plaintiff's evidence fell short with respect to Chesterman's second and third elements. More specifically, defendant argued, first, that

"the evidence stands unrebutted that Roy Bray was the aggressor, and that Mr. Davis's acts in responding to that aggression, whether excessive or not, clearly were not motivated to serve the employer at that time, and the employer, therefore, cannot be held vicariously liable."

Second, defendant argued that Davis was not hired to eject trespassers from the garage, but rather, was hired to park cars. Therefore, plaintiff provided no proof that Davis's act of "forcefully removing trespassers from the garage" was the kind of act he was hired to perform.

Defendant's motion for a directed verdict was premised on its argument that only one of two conclusions could follow from the evidence: (1) that Davis acted in self-defense, or (2) that Davis used excessive force and, therefore, was not entitled to the defense of self-defense. This is because, defendant asserted, there is no evidence in the record showing Davis to be the aggressor. Defendant argued that either factual conclusion would defeat the imposition of liability based upon respondeat superior.

The trial court denied defendant's motion for a directed verdict. The case was submitted to the jury, which answered special interrogatories as follows:

"1. Did Oscar Davis act in self-defense?

"ANSWER: No.

"If your answer to question 1 is 'Yes,' your verdict is for defendant. Do not answer any more questions.

" * * * * *

"2. Was Oscar Davis acting within the scope of his employment with defendant?

"ANSWER: Yes.

" * * * * *

"3. What are plaintiff's damages?

"ANSWER: Economic Damages $281,000

Noneconomic Damages $130,000."

The parties agree that, given the court's instructions, ³ the jury, in rejecting self-defense necessarily determined that Davis used excessive force.

Defendant appeals, raising three assignments of error. In its first assignment of error, defendant argues that the trial court erred in denying its motion for a directed verdict because the evidence was insufficient as a matter of law to hold defendant vicariously liable for Davis's tortious act. Because we conclude that the first assignment compels reversal, we do not consider the other two. ⁴

Employers are liable for the tortious acts of their employees when those acts are committed within the scope of their employment. An employee acts within the scope of employment when: (1) the tortious act occurs within the time and space limits of the employment; (2) the employee was motivated, at least in part, to serve the interests of the employer; and (3) the "act [was] of a kind which the employee was hired to perform." Chesterman, 305 Or. at 442, 753 P.2d 404. Defendant concedes that plaintiff has met the first prong of the test. The issues reduce to whether plaintiff offered evidence from which the jury could conclude that Davis's conduct satisfied the second and third parts of the Chesterman test.

As to Davis's motivation, defendant contends that Davis was motivated solely by self-defense when he stabbed Bray. Although the jury found that Davis was not entitled to a defense of self-defense, defendant asserts that that finding merely evinces the jury's determination that Davis used excessive force in repelling Bray's attack. The use of excessive force, defendant asserts, could only have been motivated by Davis's personal purposes, including Davis's antipathy towards Bray, and not by any desire to serve defendant.

Plaintiff responds by pointing out that only one day before Bray was stabbed, Davis's supervisor told him not to let Bray park in the garage. That fact, plaintiff asserts, supports a finding that Davis was motivated, at least in part, to serve his employer when he initially confronted Bray. The scuffle and eventual stabbing, even if motivated largely by self-defense, was an inseparable part of that initial...