Bray v. American Property Management Corp.

• Decision Date: 10 November 1999
• 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.
• Court: Oregon Court of Appeals

988 P.2d 933

164 Or. App. 134

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.

Submitted on Remand September 29, 1999.

Decided November 10, 1999.

Thomas M. Christ, Portland, and Mitchell, Lang & Smith for appellant-cross-respondent.

Dennis H. Elliott, Portland, and Elliott & Park for respondent-cross-appellant.

Before De MUNIZ, Presiding Judge, and HASELTON and LINDER, Judges.

HASELTON, J.

This wrongful death case is before us on remand, Bray v. American Property Management Corp., 329 Or. 317, 984 P.2d 854 (1999), following the Supreme Court's decisions in Fearing v. Bucher, 328 Or. 367, 977 P.2d 1163 (1999), and Lourim v. Swensen, 328 Or. 380, 977 P.2d 1157 (1999). In our original opinion, we concluded that the trial court erred in denying defendant's motion for a directed verdict and, specifically, that defendant was not vicariously liable for its employee's conduct in stabbing and killing plaintiff's decedent. Bray v. American Property Management Corp., 156 Or.App. 356, 965 P.2d 426 (1998), rem'd 329 Or. 317, 984 P.2d 854 (1999). On reconsideration, we conclude that our holding was incorrect in light of Fearing and Lourim. We further reject defendant's other, previously unaddressed, assignments of error. Accordingly, we affirm.

The material facts, viewed most favorably to plaintiff as the party prevailing at trial, were recounted in our previous opinion:

"In 1993, plaintiff [Judy Bray] and decedent [her husband, Roy Bray] bought a café/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 a.m.

"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." Bray, 156 Or.App. at 358-60, 965 P.2d 426.

As personal representative of her husband's estate, plaintiff brought this wrongful death action, alleging that defendant, as Davis's employer, was vicariously liable for Davis's conduct. At trial, defendant moved for a directed verdict, arguing that plaintiff's proof was legally insufficient to satisfy the second and third elements of the three-part test for vicarious liability set out in Chesterman v. Barmon, 305 Or. 439, 442, 753 P.2d 404 (1988). The court denied that motion, and the jury returned a verdict for plaintiff.

On appeal, we reversed, concluding that, although the evidence permitted a finding that Davis was motivated, at least in part, to serve defendant, no reasonable juror could conclude that Chesterman's third element was satisfied—that is, that the "act [was] of a kind which the employee was hired to perform." Chesterman, 305 Or. at 442, 753 P.2d 404. We concluded:

"Although McCracken had told Davis not to allow Bray to park in the garage after the two had been involved in a heated verbal exchange the day before, a reasonable juror could not conclude that Davis's killing of Bray was a reasonably foreseeable consequence of McCracken's directive." Bray, 156 Or.App. at 365, 965 P.2d 426¹

But see 156 Or.App. at 368, 370, 965 P.2d 426 (De Muniz, P.J., dissenting) ("The fact that Davis's response to Bray's attack was excessive does not destroy the act's connection to Davis's job duties.") (emphasis in original).

Plaintiff sought review, and, while review was pending, the Supreme Court issued its opinions in Fearing and Lourim. The Supreme Court subsequently vacated our decision and remanded to us for further consideration in light of those decisions. We now conclude that Fearing and Lourim dictate a different analysis than we initially applied and, hence, compel a different result.

Fearing and Lourim addressed the legal sufficiency of allegations that the defendant employers were vicariously liable for sexual abuse committed by their employees. In both cases, the Supreme Court held that the facts alleged were sufficient to permit the imposition of such liability. In so holding, the court emphasized that, even if the tortious act was not itself within the scope of the employment, the employer could, nevertheless, be liable "if acts that were within [the employee's] scope of employment `resulted in the acts which led to injury to plaintiff.'" Fearing, 328 Or. at 374, 977 P.2d 1163 (quoting Chesterman, 305 Or. at 443,

753 P.2d 404); see Lourim, 328 Or. at 386,

977 P.2d 1157²

In Fearing, the court concluded:

"[A] jury could infer that the sexual assaults were the culmination of a progressive series of actions that began with and continued to involve [the employee's] performance of the ordinary and authorized duties of a priest. Viewing the complaint in that light, the jury also could infer that, in cultivating a relationship with plaintiff and his family, [the employee], at least initially, was motivated by a desire to fulfill his priestly duties and that, over time, his motives became mixed. * * *

"* * * * *

"This is not a case like G.L. [v. Kaiser Foundation Hospitals, 306 Or. 54, 757 P.2d 1347 (1988) ], in which the only nexus alleged between the employment and the assault was that the employment brought the tortfeasor and the victim together in time and place and, therefore, gave the tortfeasor the `opportunity' to commit the assaults. Here, plaintiff alleges that [the employee] `us[ed] and manipulat[ed] his fiduciary position, respect and authority as youth pastor and priest' to befriend plaintiff and his family, gain their trust, spend large periods of time alone with plaintiff, physically touch plaintiff and, ultimately, to gain the opportunity to commit the sexual assaults upon him. A jury reasonably could infer that [the employee's] performance of his pastoral duties with respect to plaintiff and his family were a necessary precursor to the sexual abuse and that the assaults thus were a direct outgrowth of and were engendered by conduct that was within the scope of [the employee's] employment." 328 Or. at 375-77, 977 P.2d 1163 (emphasis in original; citation omitted).

Similarly, in Lourim, the court concluded:

"[A] jury reasonably could infer that the sexual assaults were merely the culmination of a progressive series of actions that involved the ordinary and authorized duties of a Boy Scout leader. * * * A jury also reasonably could infer that [the employee's] performance of his duties as troop leader with respect to plaintiff and his family was a necessary precursor to the sexual abuse and that the assaults were a direct outgrowth of and were engendered by conduct that was within the scope of [the employee's] employment. Finally, a jury could infer that [the employee's] contact with plaintiff was the direct

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