Denucci v. Henningsen
| Decision Date | 08 February 2012 |
| Docket Number | A142059.,C071949CV |
| Citation | 248 Or.App. 59,273 P.3d 148 |
| Parties | Katherine DENUCCI, Plaintiff–Appellant, v. J. HENNINGSEN and Washington County, a municipal corporation, Defendants–Respondents,andJohn M. Elliott, dba Elliott Law Offices, Defendant. |
| Court | Oregon Court of Appeals |
OPINION TEXT STARTS HERE
Carl G. Kiss, Portland, argued the cause and filed the briefs for appellant.
William G. Blair, Senior Assistant County Counsel, argued the cause for respondents. With him on the briefs were Dan Olsen, County Counsel, and Office of County Counsel.
Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.
Plaintiff brought a civil action against Washington County Deputy Sheriff Henningsen and Washington County, asserting that Henningsen had arrested her without probable cause. Plaintiff's claim against defendant Henningsen, brought pursuant to 42 U.S.C. section 1983, was that he violated her Fourth Amendment right to be free from unreasonable seizures. Plaintiff's claim against defendant Washington County was for the tort of false arrest.
A jury returned a verdict in favor of defendants. Plaintiff appeals, assigning error to the trial court's grant of defendants' motion in limine and instruction of the jury. Defendant Henningsen cross-assigns error to the trial court's denial of his motion for directed verdict on plaintiff's section 1983 claim, and defendant Washington County cross-assigns error to the trial court's denial of its motion to dismiss and motion for directed verdict on plaintiff's false arrest claim. As explained below, we address defendants' cross-assignments of error first, and we conclude that the trial court erred in denying defendant Henningsen's motion for directed verdict on plaintiff's section 1983 claim but that the trial court did not err in denying defendant Washington County's motion to dismiss and motion for directed verdict on plaintiff's false arrest claim. As to plaintiff's assignments of error, we conclude that the trial court erred in instructing the jury, and, because we remand based on that error, we do not reach plaintiff's assignment of error regarding the trial court's grant of defendants' motion in limine. Accordingly, we reverse and remand plaintiff's false arrest claim against defendant Washington County and otherwise affirm.
We begin with the facts, which we state in the light most favorable to plaintiff.1 On May 14, 2005, a car struck a young boy on a bicycle in plaintiff's neighborhood. Plaintiff, who has medical training and experience with trauma patients, was the first person to arrive at the scene of the accident. She evaluated the boy's condition and assisted him until emergency medical technicians (EMTs) arrived.
When the EMTs arrived, plaintiff spoke with one of them, Lieutenant Bach. She told Bach what she had observed of the accident and the boy's condition. Then she backed away to allow the EMTs to assist the boy. Around that time, the boy's father sped to the scene in a van, almost hitting two of plaintiff's children who were standing nearby.
When the father got out of the van, plaintiff and other neighbors who had gathered yelled at him, telling him to slow down. Plaintiff then headed back toward Bach in order to tell him that the father had arrived. While plaintiff was walking toward Bach, the father yelled at her and she yelled back at him that he did not need to yell and that his son would be alright. At some point during that exchange, the father called plaintiff a bitch. When plaintiff reached Bach, who was within five to nine feet of the boy, she told him that the boy's father had arrived and asked if Bach needed anything else from her. The father, who had also approached Bach, asked plaintiff what Bach wanted him to do, and Bach said that the father should step back. Then he told plaintiff that she should step back.
Defendant Henningsen, who had just arrived at the scene, immediately repeated Bach's request for plaintiff to step back. Plaintiff complied, backing toward the side of the road. As she backed up, she said to Henningsen,
After that exchange, plaintiff stood at the side of the road talking with her children and several neighbors for a few minutes. Henningsen had turned to face the other direction and was 5 or 10 feet from plaintiff. Plaintiff believed that she recognized Henningsen and asked his name. Henningsen turned and said, “What?” Plaintiff, who is 4 feet 10 inches tall, took one step toward him and repeated her question in a louder voice. Henningsen said, “That's it,” and arrested plaintiff. He handcuffed her and put her in his police car, where she remained for between 30 and 45 minutes. When plaintiff asked why she was being arrested, Henningsen said, “You know why.” Plaintiff sustained a shoulder injury during the arrest.
Plaintiff was released with a citation in lieu of arrest. The citation, issued by Henningsen, was for violating ORS 162.257, interfering with a firefighter or an emergency medical services provider.2 The district attorney later amended the charging instrument to include a charge of violating ORS 162.247, interfering with a peace officer. On September 29, 2005, the charges against plaintiff were dismissed on the district attorney's motion.
On March 24, 2006, plaintiff provided a notice of claim under the Oregon Tort Claims Act (OTCA) to Washington County. Then she filed this civil action against defendant Henningsen for violation of her Fourth Amendment right to be free from unreasonable seizures and defendant Washington County for false arrest.3
Defendant Washington County moved to dismiss plaintiff's false arrest claim on the ground that plaintiff had failed to give timely notice of claim under the OTCA, which requires plaintiffs to give notice of tort claims against public bodies “within 180 days after the alleged loss or injury.” ORS 30.275(2)(b). The county argued that, although plaintiff gave notice within 180 days of the day that the charges against her were dismissed, that was insufficient; according to the county, plaintiff had to give notice within 180 days of the day of her arrest. The trial court denied the county's motion.
Defendants moved in limine to exclude evidence that the district attorney had moved to dismiss the charges against plaintiff. The trial court granted defendants' motion, over plaintiff's objection, and the case proceeded to trial. Defendant Henningsen raised a qualified immunity defense, asserting that even if no probable cause existed for his arrest of plaintiff for interfering with an emergency medical services provider, ORS 162.257, the scope of ORS 162.257 was not clearly established, so he was entitled to qualified immunity.
At the close of evidence, defendant Washington County moved for a directed verdict on plaintiff's false arrest claim, again asserting that plaintiff had failed to give timely notice of her tort claim. Defendant Henningsen moved for a directed verdict on plaintiff's section 1983 claim based on his qualified immunity defense. The trial court denied both defendants' directed verdict motions.
In instructing the jury on the issue of whether there was probable cause for Henningsen to arrest plaintiff, the court paraphrased the text of ORS 162.257, which defines the crime of interfering with an emergency medical services provider, and declined to give any additional instruction, including an instruction that plaintiff had submitted, in order to clarify the words of the statute. The case went to the jury, and the jury found for defendants.
On appeal, plaintiff assigns error to the trial court's grant of defendants' motion in limine excluding evidence that the district attorney moved to dismiss the charges against her and to the trial court's jury instructions regarding the elements of the crime of interfering with an emergency medical services provider. Defendant Washington County cross-assigns error to the trial court's denial of its motion to dismiss and motion for directed verdict based on its claim that plaintiff's tort claim notice was untimely. Defendant Henningsen cross-assigns error to the trial court's denial of his motion for directed verdict based on his qualified immunity defense.
We consider defendants cross-assignments of error first because, if correct, they obviate the need to remand for a new trial.4 Defendants cross-assign error to the trial court's denial of (1) Washington County's motion to dismiss the false arrest claim, (2) Washington County's motion for directed verdict on the false arrest claim, and (3) Henningsen's motion for directed verdict on the section 1983 claim. We address the first two cross-assignments, regarding the false arrest claim, together,5 and then turn to the third cross-assignment, regarding the section 1983 claim.
After a trial, we review the denial of a motion to dismiss under the same standard that we use for the denial of a directed verdict. Faverty v. McDonald's Restaurants, 133 Or.App. 514, 521, 892 P.2d 703 (1995), rev. dismissed, 326 Or. 530, 971 P.2d 407 (1998). That is, “we view the evidence, including reasonable attendant inferences, in the light most favorable to the nonmoving party.” Hudjohn v. S & G Machinery Co., 200 Or.App. 340, 342, 114 P.3d 1141 (2005).6 Consequently, we review to determine whether defendants were entitled to judgment as a matter of law, Brown v. J.C. Penney Co., 297 Or. 695, 705, 688 P.2d 811 (1984), viewing the evidence in the light most favorable to plaintiff.
Plaintiff's false arrest claim is a common-law tort claim, and, thus, it is governed by the OTCA because defendant Washington County is a “public body.” ORS 30.260(4)(a); ORS 30.265(1); ORS 174.109. The OTCA requires that, before filing suit against a public body, a plaintiff must...
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...if the availability of the defense depends on facts that are in dispute, the jury must determine those facts. Denucci v. Henningsen, 248 Or.App. 59, 71, 273 P.3d 148 (2012). In other words, summary judgment is improper if, resolving all disputes of fact in the summary judgment record in fav......
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