Clifford v. City of Clatskanie

• Decision Date: 15 March 2006
• Docket Number: 012002; A124955.
• Citation: 131 P.3d 783,204 Or. App. 566
• Parties: Laurie CLIFFORD, personal representative of the Estate of Travis Lee Clifford, Appellant, v. CITY OF CLATSKANIE, an Oregon municipal corporation, Respondent.
• Court: Oregon Court of Appeals

131 P.3d 783

204 Or. App. 566

Laurie CLIFFORD, personal representative of the Estate of Travis Lee Clifford, Appellant, v. CITY OF CLATSKANIE, an Oregon municipal corporation, Respondent.

012002; A124955.

Court of Appeals of Oregon.

Argued and Submitted December 16, 2005.

Decided March 15, 2006.

Linda K. Williams, Portland, argued the cause for appellant. With her on the briefs were Mark McDougal and Gregory Kafoury.

Janet M. Schroer, Portland, argued the cause for respondent. With her on the brief was Hoffman, Hart & Wagner, LLP.

Before WOLLHEIM, Presiding Judge, and HASELTON, Judge, and HARRIS, Judge pro tempore.

HASELTON, J.

Plaintiff, the personal representative of the estate of her deceased son, Travis Clifford (Travis), appeals, assigning error to the allowance of summary judgment in favor of defendant City of Clatskanie on plaintiff's claim for "Wrongful Death Outrageous Conduct." That claim was based on alleged misconduct by three of defendant's police officers, Kuehl, Turks, and Short. As explained below, we conclude that (1) plaintiff's claim is properly, and exclusively, characterized as a claim for intentional infliction of emotional distress (IIED); (2) there are disputed issues of material fact regarding whether Short, with intent to cause Travis emotional distress, made statements to third parties and whether those statements did, in fact, cause Travis to suffer emotional distress; and (3) there are also disputed issues of material fact as to whether Short's alleged statements were subject to "absolute privilege" or "discretionary immunity." Accordingly, we reverse and remand.¹

Summary judgment is proper "if the pleadings, depositions, affidavits, declarations and admissions on file show that there is no genuine issue as to any material fact * * *." ORCP 47 C. "No genuine issue as to a material fact exists if, based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." Id. In reviewing the allowance of summary judgment here, we draw all reasonable inferences in favor of plaintiff, who was the nonmoving party. West v. Allied Signal, Inc., 200 Or.App. 182, 187, 113 P.3d 983 (2005).

The gravamen of plaintiff's claim is as follows: In February 1998, Travis was a senior at Clatskanie High School. On the evening of Friday, February 6, and into the early morning hours of Saturday, February 7, there was a teenage drinking party at the home of Travis's former girlfriend. In response to two anonymous 9-1-1 calls, Clatskanie police officers Turks and Short went to the house and cited various high school students for being minors in possession of alcohol. Over the following three days, Turks, Short, and Clatskanie Chief of Police Kuehl allegedly told third persons, including high school students, that Travis had made at least one of the 9-1-1 calls. The alleged identifications of Travis as the 9-1-1 caller were false or, at least, made with reckless disregard of the truth, and were made with the intention of causing Travis emotional distress. As a result of those alleged disclosures by one or more of the city's agents, other high school students ostracized and harassed Travis, causing him extreme emotional distress, and that extreme emotional distress ultimately resulted in Travis committing suicide on Tuesday, February 10.²

Defendant moved for summary judgment on several grounds, including the following: (1) Plaintiff's pleadings did not state a cognizable claim for wrongful death. (2) Plaintiff had failed to adduce evidence that Kuehl, Turks, or Short had told Travis's fellow students that he was the 9-1-1 caller or, alternatively, to the extent that any of those officers had told any nonstudent that Travis was the caller, that that person had conveyed that information to any student. (3) In a related sense, plaintiff had not adduced any evidence that any disclosure by defendant's agents had, in fact, caused Travis to suffer mental distress. (4) Plaintiff had failed to adduce evidence that any of the officers intended to cause Travis emotional distress. (5) In all events, any liability arising from the alleged disclosures would be precluded either by absolute executive privilege or by discretionary immunity.

Plaintiff disputed each of those grounds for summary judgment. Specifically — and of particular pertinence to our disposition of this appeal — plaintiff attempted to counter defendant's arguments regarding the alleged lack of proof of statements to students by any of the officers. In that regard, plaintiff submitted excerpts of the deposition of Bernadette O'Brien. In her deposition, O'Brien testified that, on the evening of February 7, 1998 — the evening after the drinking party — she had been in the squad room at the Clatskanie Police Station, waiting to participate in a police "ride-along" that was to begin at 5:00 p.m.³ As O'Brien waited, she overheard Short talking with other officers about the drinking party and its aftermath. In response to questioning by plaintiff's attorney during O'Brien's deposition, she testified:

"Q. And what did you overhear?

"A. He was talking about how — he said, We talked to some kids today, and I wasn't paying any attention to who the other party of the `we' was. We told them that, and then he gave the name of a boy that I didn't recognize the name at the time, but I have subsequently come to believe that it was probably Travis Clifford. We told these kids that Travis Clifford had made the 9-1-1 call and gotten them busted.

"I, of course, was confused about this because I had been in the room at the time that the 9-1-1 call had come in, and we were under the impression that it was a neighbor. I said, how did you find this out because we didn't know that?

"And he says, Well, we didn't.

"I said, Well, why are you telling them that?

"He says, It doesn't matter who did it. He is still going to get his ass kicked.

"Q. And all of these statements that you have just recalled were all made by Officer Short?

"A. That's correct. They weren't verbatim of course but pretty much what he said.

"Q. Any further conversation then or did that end the conversation about the 9-1-1 call?

"A. Well, I asked why he would do that, and he said because he couldn't stand the little whatever he said. I don't recall the expletive that he used."

Defendant, in reply, moved to strike several of plaintiff's other evidentiary submissions in opposition to summary judgment. However, defendant did not move to strike O'Brien's deposition testimony or otherwise object to its admissibility on any ground.

The trial court granted the motion for summary judgment:

"I find no genuine issue of material fact that could go to a jury about whether the — and by the way, who made the phone call doesn't seem to be very important to me.

"But that the city officers knew that this young man was suicidal or had any mental health problem, for that matter, other than he's just a kid in the community who was giving them trouble, that whatever was going to happen next would cause his death and that in fact that the city did anything that would — did contribute, other than the fact that this kid was very troubled.

"Lots of things troubled him and he was already in a state that — that he could have very well taken his life. I also think there are privilege issues here, immunity issues on behalf of the state, which I believe many of these officers were acting in the — in their capacity as police officers and are in fact — were in fact privileged and — or are in fact privileged, and so — let's see if there's anything else I want to say about it. I think I've covered it."

On appeal, the parties, for the most part, renew their arguments. Before addressing the substantive sufficiency of plaintiff's proof proffered in opposing defendant's motion for summary judgment, we must address two predicate matters the resolution of which circumscribes our review. First, what is the proper characterization of plaintiff's cause of action? Second, what is the significance, procedurally and substantively, of O'Brien's recounting of Short's statements?

In her complaint, plaintiff pleaded only a single claim for relief, which was denominated, amorphously and ambiguously, as a hybrid: "Wrongful Death Outrageous Conduct." The substance of the complaint is a melange of (1) allegations of IIED, resulting in injury to Travis; and (2) disconnected references to "invasion of privacy," "gross negligence," "deprivation of civil rights," and "wrongful death," including an allegation that Travis's parents were entitled to recover damages for loss of consortium and society.

Under ORCP 16 B, such an amalgam of putative "claims" within a single claim is impermissible: "Each separate claim or defense shall be separately stated." To the extent that the claim, as pleaded, seeks to recover damages arising from Travis's death such a recovery would not be permissible because it would, in effect, render the claim a "common-law action for wrongful death," which is not cognizable under Oregon law. See, e.g., Storm v. McClung, 334 Or. 210, 222 n. 4, 47 P.3d 476 (2002) ("Since at least 1891, this court has adhered to the view that no right of action for wrongful death existed at common law."); Richard v. Slate, 239 Or. 164, 167, 396 P.2d 900 (1964) ("[A]t common law no remedy by way of a civil action for wrongful death existed.").

Conversely, whatever its other deficiencies and superfluities, plaintiff's complaint does allege a legally sufficient claim for IIED, so long as relief is limited to recovery of nondeath-related damages. We note further, albeit parenthetically, that, in response to our questions during oral argument, plaintiff's appellate counsel characterized the claim as one for IIED. Accordingly, we treat plaintiff's claim, properly and...