Hanson v. Dept. of Corrections , 324 Or. App. 70 ( 2023 )

70
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted January 5, reversed and remanded February 1, 2023
Elaine HANSON,
as Personal Representative of
the Estate of Douglas J. Burnham, Jr.,
Plaintiff-Appellant,
v.
OREGON DEPARTMENT OF CORRECTIONS,
an agency of the State of Oregon,
Defendant-Respondent,
and
Steve SHELTON, M.D. et al.,
Defendants.
Umatilla County Circuit Court
18CV34999; A177792
Robert W. Collins, Jr., Judge.
Carl Post and John Burgess filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
TOOKEY, P. J.
Reversed and remanded.
Nonprecedential Memo Op: 324 Or App 70 (2023) 71
TOOKEY, P. J.
Plaintiff, the personal representative of the dece-
dent, appeals a judgment dismissing a negligence action
she brought against defendant, Oregon Department of
Corrections (DOC), for an eye injury the decedent suffered
while in defendant’s custody. In a single assignment of error,
plaintiff argues that the trial court erred in granting sum-
mary judgment for DOC.
“We review a trial court’s grant of summary judg-
ment for errors of law and will affirm if there are no gen-
uine disputes about any material fact and the moving
party is entitled to judgment as a matter of law.” Beneficial
Oregon, Inc. v. Bivins, 313 Or App 275, 277, 496 P3d 1104
(2021) (internal quotation marks omitted). In so doing, “we
view the facts in the light most favorable to the nonmoving
parties”—in this case, plaintiff—and we “examine whether
no objectively reasonable juror could find in their favor on
the question at issue.” Id. In making that determination,
“we examine ‘the pleadings, depositions, affidavits, decla-
rations, and admissions on file.’ ” Id. (quoting ORCP 47 C).
We conclude that the record on summary judgment raises
a genuine issue of material fact; therefore, we reverse and
remand.
Plaintiff’s complaint alleged, among other things,
that DOC’s conduct fell below the applicable standard of
care in ignoring the decedent’s complaints about eye pain
for several days and failing to timely render medical care,
resulting in permanent loss of vision in the decedent’s right
eye.1 DOC moved for summary judgment, arguing, among
other points, that the “first indication of any concerns about
the decedent’s eye arose on September 7, 2016,” but plaintiff
“declined medical attention” that day; that on September 8,
2016, DOC “transported the decedent to the emergency
room less than an hour” after examining his injured eye;
and that the decedent received “outstanding medical care.”
In response, plaintiff argued that there was a genuine
issue of material fact as to the timeliness of DOC’s medical
1
Plaintiff’s complaint also raised a claim under 42 USC section 1983, alleg-
ing that DOC had been deliberately indifferent to the decedent’s medical needs.
That claim was dismissed in the trial court and is not at issue on appeal.
72 Hanson v. Dept. of Corrections
treatment. To support that argument, plaintiff provided,
among other evidence, a declaration from the decedent’s
live-in orderly, which stated, in part:
“3. In the first week of September 2016, in the week
before he was taken to the hospital, [the decedent] fell out
of his wheelchair and injured himself.
“4. In the first week of September 2016, [the decedent]
was complaining to me and medical staff that his eye was
in pain and that it was not being treated. Looking at his
eye, I thought it was likely infected.”
The trial court ultimately granted summary judg-
ment for DOC, concluding:
“I find no evidence in anything that’s been supplied,
including the affidavits of [the decedent’s live-in orderly],
that indicate[s] * * * that [DOC] was notified of an eye
injury or an eye infection prior to their observation of that
condition on September 8th when [the decedent] was taken
to the emergency room and then immediately—or shortly
thereafter—transferred to Portland, so the Court is grant-
ing this motion for summary judgment.”
On appeal, plaintiff assigns error to the trial
court’s grant of summary judgment, arguing that the evi-
dence before the trial court created a genuine issue of fact—
namely, whether DOC had been notified about, but failed
to timely diagnose and treat, the decedent’s eye injury. In
response, DOC argues that the trial court did not err in
granting summary judgment, because there is no genuine
issue of material fact as to DOC’s treatment or awareness of
the decedent’s eye injury prior to September 8, 2016.
We conclude that the trial court erred in granting
summary judgment for DOC, because the evidence created
a genuine issue of fact about DOC’s notice of, and timeli-
ness of treatment for, the decedent’s eye injury. As noted
above, the trial court’s decision to grant summary judgment
as to plaintiff’s negligence claim rested on its determina-
tion that there was “no evidence in anything that’s been
supplied, including the affidavits of [the decedent’s live-in
orderly], that indicate[s] * * * that [DOC] was notified of an
eye injury or an eye infection prior to their observation of
that condition on September 8th when [the decedent] was
Nonprecedential Memo Op: 324 Or App 70 (2023) 73
taken to the emergency room[.]” (Emphasis added.). But,
contrary to that determination, the declaration from the
decedent’s live-in orderly explicitly stated that, “[i]n the first
week of September 2016, in the week before he was taken to
the hospital, * * * [the decedent] was complaining to me and
medical staff that his eye was in pain and that it was not
being treated. Looking at his eye, I thought it was likely
infected.” (Emphases added.) Viewed in the light most favor-
able to plaintiff, that declaration would permit an objec-
tively reasonable juror to find that DOC was notified about,
but failed to timely provide medical care for, the decedent’s
eye injury in the week preceding his transfer to the hospital
on September 8, 2016.2 We therefore reverse and remand.
Reversed and remanded.
2
On appeal, plaintiff also argues that the trial court erred in concluding
that all of the relevant events occurred on September 8, 2016, because the rel-
evant period of time as framed by the complaint included the week leading up
to September 8, 2016. DOC responds that, because plaintiff did not make that
argument to the trial court, that argument is unpreserved, and we should decline
to address it. From that premise, DOC reasons that we must affirm because the
trial court’s conclusion that the relevant events occurred on September 8, 2016,
represented an independent basis for the trial court’s granting of summary judg-
ment, and “[t]his court must affirm when appellants fail to challenge the alterna-
tive basis of the trial court’s ruling.” (Internal quotation marks omitted.)
Having reviewed the record, we do not understand the trial court’s ruling
to reflect two independent bases for granting DOC’s motion for summary judg-
ment, as DOC contends. And because, as explained above, the evidence would
have allowed an objectively reasonable juror to find that DOC was notified about,
but failed to timely provide medical care for, the decedent’s eye injury in the
week preceding his transfer to the hospital on September 8, 2016, we reverse and
remand.