Box v. Oregon State Police ( 2021 )

348
Argued and submitted October 9, 2019; reversed and remanded May 12; on
respondent’s petition for reconsideration filed June 16, and appellant’s response
to petition for reconsideration filed June 18, reconsideration allowed by opinion
August 11, 2021
See 313 Or App 802, 492 P3d 1292 (2021)
Bernadette BOX,
Personal Representative of
the Estate of Robert Clinton Box,
Plaintiff-Appellant,
v.
STATE OF OREGON,
Department of Oregon State Police,
Defendant-Respondent.
Josephine County Circuit Court
16CV13330; A166624
492 P3d 685
Oregon State Police (OSP) troopers shot and killed Robert Box outside his
home. Plaintiff, the personal representative for Box’s estate, brought this wrong-
ful death action against defendant State of Oregon, alleging claims for negli-
gence and trespass. Before trial, plaintiff moved for partial summary judgment
on her trespass claim, arguing that the OSP troopers were trespassers as a mat-
ter of law. Defendant opposed plaintiff’s motion and moved for summary judg-
ment against all of plaintiff’s claims. The trial court denied plaintiff’s motion
and granted summary judgment to defendant. With respect to the negligence
claim, the court concluded that plaintiff’s ORCP 47 E declaration was sufficient
to controvert the allegations of defendant on the elements of negligence and
causation. However, the court ultimately concluded that both the negligence and
trespass claims were barred by apparent authority immunity. Plaintiff appeals,
first assigning error to the court’s grant of summary judgment to defendant,
and, second, to the court’s denial of plaintiff’s motion for partial summary judg-
ment. Defendant cross-assigns error to the court’s conclusion that plaintiff’s
ORCP 47 E declaration was sufficient to create issues of fact as to negligence and
causation. Held: The trial court erred in granting summary judgment to defen-
dant. Apparent authority immunity does not apply to plaintiff’s claims because
there is no evidence that the troopers or OSP actually relied on the laws in ques-
tion when they engaged in the allegedly negligent or trespassory conduct. As to
defendant’s cross-assignment of error, the court did not err in giving effect to
plaintiff’s ORCP 47 E declaration, and, in any case, there is sufficient evidence in
the record to create an issue of fact as to whether the allegedly negligent conduct
caused Box’s death. Lastly, the troopers trespassed as a matter of law when they
entered areas of the Box property where they lacked privilege or consent to do
so. Therefore, the court erred in denying plaintiff’s partial motion for summary
judgment.
Reversed and remanded.
Cite as 311 Or App 348 (2021) 349
Pat Wolke, Judge.
Janet M. Schroer argued the cause for appellant. Also
on the opening brief were Mark Sherman and Hart Wagner
LLP. Also on the combined reply and answering brief on
cross-assignment were Hart Wagner LLP; David D. Park
and Elliott & Park; and Richard D. Adams and Rogue Law
Firm PC.
David B. Thompson, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Shorr, Presiding Judge, and James, Judge, and
Landau, Senior Judge.
SHORR, P. J.
Reversed and remanded.
350 Box v. Oregon State Police
SHORR, P. J.
Plaintiff is the personal representative for the
estate of Robert Box. Box was shot and killed by Oregon
State Police troopers outside his home. Plaintiff brought
this wrongful death action against defendant State of
Oregon, alleging that its troopers, West and Smyth, were
negligent in their tactical approach to Box’s home, and that
the Oregon State Police (OSP) negligently supervised and
retained Smyth. Plaintiff also alleged that the troopers tres-
passed on the Box property.
Before trial, plaintiff moved for partial summary
judgment on her trespassing claim, arguing that, as a mat-
ter of law, the OSP troopers were trespassing on Box’s prop-
erty at the time and place of the shooting. In addition, defen-
dant moved for summary judgment against all of plaintiff’s
claims. Plaintiff responded that there was a genuine dis-
pute of material fact as to each element of her claims and
presented evidence in support of that assertion, including
an ORCP 47 E declaration asserting that plaintiff’s counsel
had retained a qualified expert whose testimony would cre-
ate issues of material fact as to the issues of negligence and
causation. The trial court denied plaintiff’s motion for par-
tial summary judgment and granted summary judgment for
defendant. The court concluded that plaintiff’s ORCP 47 E
declaration created a disputed issue for trial on the negli-
gence claim but granted summary judgment to defendant
on the ground that defendant was immune from liability
under the doctrine of apparent authority immunity.
Plaintiff appeals, raising two assignments of error.
In the first, plaintiff contends that the trial court erred in
granting defendant summary judgment after concluding
that defendant was entitled to apparent authority immunity.
In the second, plaintiff assigns error to the court’s denial
of plaintiff’s motion for partial summary judgment, argu-
ing that the troopers were trespassers as a matter of law.
Defendant cross-assigns error to the court’s conclusion that
plaintiff’s ORCP 47 E declaration was sufficient to defeat
summary judgment on the negligence claim. For the rea-
sons explained below, we conclude that the trial court erred
in granting summary judgment to defendant and in denying
Cite as 311 Or App 348 (2021) 351
partial summary judgment to plaintiff. Consequently, we
reverse and remand.
I. PLAINTIFF’S ALLEGATIONS AND THE
EVIDENCE PRESENTED ON SUMMARY JUDGMENT
Before turning to the evidence presented on sum-
mary judgment, we provide a brief overview of plaintiff’s
claims for negligence and trespass. Plaintiff’s claims arise
from the troopers’ entry onto the Box property, and even-
tual shooting of Box, who was armed at the time of the
shooting. Plaintiff alleged two specifications of negligence.
In the first, plaintiff alleged that Smyth was predisposed
to dangerous performance deficiencies, including tunnel
vision in stressful circumstances; the supervising and com-
manding OSP officers were aware of Smyth’s stress-induced
performance deficiencies; and the supervising officers neg-
ligently retained, supervised, and trained Smyth in light
of the danger posed by those performance deficiencies. In
the second, plaintiff alleged that Smyth and West, who
went to the Box property in response to a reported assault,
were negligent in their tactical approach to the Box prop-
erty and in failing to properly notify Box of their pres-
ence. Plaintiff alleged that the troopers’ negligence created
conditions—significantly Box’s possession of a gun at the
time of the shooting—where the use of lethal force became
probable and caused Box’s death. Plaintiff’s claim for tres-
pass alleged that, during the troopers’ approach, and at the
time of the shooting, the troopers entered areas of the Box
property without authority or consent to enter.
We turn to the record before the trial court at the
time of summary judgment. On review of a grant of sum-
mary judgment, we view the record in the light most favor-
able to, and draw all reasonable inferences in favor of, the
nonmoving party. Jones v. General Motors Corp., 325 Or
404, 413, 939 P2d 608 (1997). Because we first address the
court’s ruling on defendant’s motion for summary judgment,
we begin by stating the facts in the light most favorable to
plaintiff.
A. Supervision and Retention of Smyth
We begin with the evidence that is relevant to the
alleged negligent supervision and retention of Smyth. Smyth
352 Box v. Oregon State Police
was hired as a trooper for OSP in 2008. In 2009, a person-
nel complaint was sustained against Smyth after he oper-
ated his patrol car “in an unsafe manner” while responding
to West’s request for backup due to a “combative subject.”
Smyth “drove in excess of 100 miles per hour” on a city
street with a speed limit of 30 to 35 miles per hour. Smyth
also failed to stop at a red light and drove “into the opposite
lane of travel at two different intersections.” Smyth told the
investigating sergeant that, “when he heard Trooper West
say that she had a combative subject[,] he was so focused
that he did not hear her say” she no longer needed assis-
tance or hear her talking with another trooper on the radio.
Smyth stated that he remembered thinking about “images”
of police officers “losing their lives or coming close to it”
during his response.
In 2013, Smyth joined OSP’s SWAT team, a position
he held in addition to his OSP patrol duties. Sergeant Glass
was Smyth’s SWAT supervisor. During Smyth’s tenure on
the SWAT team, Glass received five written complaints
from Smyth’s peers and training officers about Smyth’s per-
formance during training exercises. One complainant noted
that, “[t]hroughout the day,” Smyth “was in a heightened
state and seemed to be on edge constantly, and appeared
unable to calm down. This definitely seemed to negatively
affect his ability to properly and safely process information
as it was presented to him.” Another described Smyth as
being “so focused on the downed threat, he did not perceive
anything else that was going on.” During that training, a
team member “had to physically go get him * * * to move to
a position of cover” with the rest of the team. This reflected
Smyth’s tendency “to get overwhelmed with a lot going on”
and “tunne[l] in on one problem[,] leaving him and [his]
teammates open to other conditions that are just as import-
ant.” One complainant wrote that Smyth’s “decision making
and overreaction have the potential to lead to someone being
seriously injured, or killed, on a real world operation.” The
other complaints were also consistent in describing Smyth’s
performance issues. Each involved Smyth repeatedly demon-
strating problems processing information, moving forward
with operations while failing to account for safety concerns,
and reacting to stress by “going into a ‘tunnel vision mode’
Cite as 311 Or App 348 (2021) 353
that causes him to either overreact, or to react inappropri-
ately, to the given set of circumstances.”
Glass also personally observed Smyth’s performance
deficiencies. Glass observed that Smyth “was not as calm as
he should have been” and that he “over processed informa-
tion, which made him make mistakes.” Glass testified that
it is important for troopers to maintain calm in “high risk
situations, so that they can process information.” Smyth’s
behavior was a “safety hazard” because he tended to bypass
threats.
Glass discussed his concerns with Lieutenant Fugate,
who decided to terminate Smyth from the SWAT team as
a result of the performance deficiencies observed during
the SWAT trainings. Fugate understood Smyth’s issue as
a reaction to stress during which Smyth experienced an
inability to see and hear things and was “focused on try-
ing to get from Point A to Point B.” Fugate understood that
Smyth’s tunnel vision could be dangerous to fellow troopers
and members of the public.
After Smyth was terminated from SWAT, he retained
his position as an OSP patrol trooper. Neither Glass nor
Fugate reported the reasons for his termination or infor-
mation about his performance to Smyth’s patrol supervi-
sors. Glass thought it might be important for Smyth’s patrol
supervisors to know of the reasons for Smyth’s termination,
but did not take action to inform them because his “chain
of command would dictate [that his] lieutenant do that.”
Fugate believed it would have been common practice to
communicate with Smyth’s patrol supervisors regarding the
reasons for his termination, but he did not remember having
any conversations to that effect.
Sergeant Proulx was Smyth’s direct supervisor at
the time of the shooting. Proulx was not told of the reasons
for Smyth’s removal from SWAT. Proulx was unaware that
Smyth had difficulty processing information in a stressed
or heightened state. Lieutenant Altman participated in
Smyth’s 2015 performance review, and was unaware of
Smyth’s past performance issues, responses to stress, or
tunnel vision deficiencies at the time of Smyth’s performance
review. Altman did not review Smyth’s entire personnel file
354 Box v. Oregon State Police
as part of Smyth’s performance review. Lieutenant Lux, also
an indirect supervisor, “signed off” on Smyth’s performance
reviews. Lux had no knowledge of the complaints that led to
Smyth’s removal from SWAT.
OSP’s fitness for duty evaluation policy lists the
following indicators, among others, that may necessitate
a fitness for duty evaluation: “[a] pattern of performance
problems unresponsive to corrective measures and inappro-
priate for discipline or termination”; or “[o]ther observed or
reported conditions reasonably raising the question of an
employee’s continuing psychological or physical suitability
to carry out essential job functions.” The policy provides
that, when an employee’s behavior “raises the possibility”
that a fitness for duty evaluation is needed, the supervisor
should immediately confer with the Office of Professional
Standards. Smyth’s supervisors did not raise the possibility
that Smyth’s behavior may warrant a fitness for duty evalu-
ation with the Office of Professional Standards.
B. Evidence Relevant to the Troopers’ Tactical Decisions
and Training
As we discuss below, this case arises in part from
Smyth’s and West’s response to a 9-1-1 call made to the
Josephine County Sheriff’s Office regarding a domestic
assault at the Box property. OSP provides limited assistance
to Josephine County in responding to emergency calls. OSP
troopers are directed to respond to calls where there is an
“imminent risk of harm to an individual,” which includes
domestic violence calls that are “in progress.” OSP troopers
assisting in Josephine County did not receive additional
training. Smyth testified that he could not remember the
last time he had received training in the search and seizure
of private homes.
Proulx testified that OSP troopers are trained to
discuss a response plan when responding to calls as a team.
That plan should include which officer is the lead officer,
where to position vehicles, and how the officers will enter
the property.
Plaintiff also introduced several documents that are
used by OSP in its trooper training program. The Domestic
Cite as 311 Or App 348 (2021) 355
Disturbance training document warns that domestic distur-
bance calls are high risk and directs troopers to “[d]evelop
[an] action plan while enroute to [the] call.” Among other
things, troopers on domestic disturbance calls are directed
to “[c]onsider phone contact” to bring subjects outside, and
to “[n]ever rush in” when entering a residence. The Contact
and Cover training documents emphasize the tactical
importance of designating a contact officer and cover offi-
cer when responding to a call. “The object of ‘Contact and
Cover’ is for the cover officer to discourage any assaults on
the contact officer.” The contact officer “[d]irects the scope
of the contact and actions of suspects” and “may also direct
positioning of [the] cover officer.” The cover officer “devotes
full attention to suspects through a position of surveillance
and control.” Typically, the contact officer is the officer who
initiates the activity, and the contact officer “should make it
clear to the other officer that he or she is the cover officer.”
According to the training, two common mistakes are when
“[t]he primary/contact officer does not communicate what he
wants from the cover officer” and “[t]he cover officer loses
concentration.”
Both troopers testified that, when responding to
domestic violence calls, it was common to use a stealth
approach. Smyth testified that he was aware of the follow-
ing tactics to reduce the risk of lethal force: keep distance
from the suspect if appropriate, seek hard cover, contact the
suspect by phone, and consider whether suspects may be
armed.
C. The Box Property
We turn to a discussion of the facts regarding Box
and his property. Box, his wife, Bernadette, his daugh-
ter, Kelsey, and his daughter’s girlfriend, Megan, all lived
together in the house on the Box property. The property
is adjacent to Fir Canyon road. A driveway leads from Fir
Canyon into the Box property. The driveway leads directly
into a large dirt clearing. The house is to the right of that
clearing.1 The front of the house faces Fir Canyon, and, at
the end of the driveway to the right side, there is a ramp that
1
The description of the property is from the viewpoint of a person approach-
ing from Fir Canyon via the driveway.
356 Box v. Oregon State Police
leads to the front porch. To the back of the clearing, there
is a detached workshop. A covered patio is attached to the
back of the house. To the left of the clearing, there is another
private driveway that connects to a common driveway that
is shared by neighboring properties. The front of the house
is not visible from Fir Canyon because it is obscured by a
“dense row” of trees, and there are trees on both sides of the
driveway as well. A person entering from Fir Canyon would
necessarily walk past the ramp that leads to the front porch
before reaching the back patio or workshop area.
To aid the reader, we provide a picture of the prop-
erty below.
The driveway leading from Fir Canyon is on the right side
and cannot be seen entirely in the photograph. The ramp
leading to the front porch is shown to the right of the house.
The rear patio and workshop are to the left.
“No trespassing” signs were posted on the front and
side of the workshop. According to Bernadette, the work-
shop and rear patio area is not open to the public. The Boxes
considered that space to be “private living and recreation
space” and “an extension of [their] interior living space.”
Cite as 311 Or App 348 (2021) 357
With regard to Box’s use of his gun, he typically kept
it stored in a closet inside the house. Several years before
this shooting, Box had accessed the gun for protection when
a person trespassed on his property. One month before the
shooting, a neighbor, who was under the influence of drugs,
attempted to walk into the Boxes’ home at around 2:00 a.m.
Kelsey testified that she did not think Box would ever point
a gun at a police officer. Detective Brown, who investigated
the shooting, testified that gun ownership is common in the
area where Box lived.
D. The Troopers’ Shooting of Box
We turn to the facts giving rise to the shooting. The
historical facts are largely undisputed, with one exception
noted below. The day of the shooting, Bernadette went to
Portland for an overnight trip. Box stayed behind to “watch
the house.” That evening, Box had an argument with Kelsey
and Megan. Eventually Box hit Kelsey several times on her
face. After Box hit her, Kelsey told Box that she was “going
to have someone come and kick his ass.” Kelsey called 9-1-1
to report the assault.
West responded to the call first. Dispatch told West
that Kelsey was injured and was afraid to leave her bed-
room because Box was still present in the home. West tried
to call Kelsey, but Box answered instead. The phone call
was recorded on West’s dash-cam recording system. Box
told West that Kelsey and her girlfriend were leaving and
described the assault. Box stated that Kelsey “punched
[him] in the eye, so [he] punched her back.” Box ended the
call just as West identified herself as a police officer.
West and Smyth convened near the Box residence.
West told Smyth that Box admitted to punching Kelsey. The
troopers learned that Kelsey had left the Box residence to go
to the hospital. The troopers discussed whether to interview
Kelsey at the hospital, which was 10 to 15 minutes away.
Smyth and West decided to proceed to the Box residence
because they believed they had probable cause to arrest
Box for domestic violence assault, and because they “were
already there.” West was aware that “there are laws that
say that a domestic situation is a shall arrest.” The troopers
358 Box v. Oregon State Police
understood that a crime was no longer in progress after
Kelsey left the scene. Smyth testified that, at that time, the
troopers had no information that anyone at the Box prop-
erty was in urgent need of medical assistance or that any
emergency required immediate entry onto the property.2
West testified that she and Smyth did not make a
tactical plan for approaching the house. According to the
troopers’ testimony, the troopers did not discuss any of the
following topics before proceeding to the Box property: how
they planned to approach the Box residence, whether they
would drive up to the house with vehicle lights on or off, or
whether they would walk in, who would be the primary and
cover officers, the particular circumstances and character-
istics of the area or Box’s property, what, if any, hazards
they might discover, whether Box might be armed, or how
they planned to contact Box to initiate a discussion with
him. The troopers did not attempt to contact dispatch for
more information about Box or to contact Box and instruct
him to come outside unarmed.
At approximately 10:55 p.m., the troopers drove to
the Box property, parked down the street on Fir Canyon
Road, and turned off their vehicle lights. It was dark when
the troopers arrived and there were no street lights. Smyth
and West walked up the road to Box’s driveway. West “fol-
lowed [Smyth’s] lead” during the approach. At the driveway,
the troopers stopped and concealed themselves behind trees
on either side of the driveway in an attempt to inspect the
property without being seen. Smyth was on the right side of
the driveway and West was on the left. According to Smyth,
the troopers were “on the very edge” of the property “in a
place where [they] weren’t seen.” Smyth and West saw Box
walk from his workshop to the rear patio where he was no
longer visible. Box was speaking to someone on the phone.
Smyth testified that he heard Box say “Oh, they’re here
already, are they?” From that statement, Smyth concluded
that Box knew that the troopers were present. West did not
hear anything that Box said.
2
This fact is significant to our later conclusion that the troopers’ entry
onto the Box property was not justified by a need for emergency aid or exigent
circumstances.
Cite as 311 Or App 348 (2021) 359
While still concealed behind the trees, Box’s dogs
alerted to the troopers’ presence and started barking loudly
at the troopers. West arced her taser to scare the dogs away
from her. Smyth started moving further up the driveway and
into the open clearing, toward the rear patio area. Smyth
moved in that direction because he wanted to make contact
with Box. Smyth did not know where West was when he was
advancing. West started moving toward the house after the
dogs moved away from her. There was a light on in Box’s
workshop and on the front porch, but “the area was not lit
up.”
A truck and a van were parked between the rear
patio area and the clearing, as shown in the picture pro-
vided above. Smyth moved to a position near the driver’s
side of the van, with the van between Smyth and the house.
From his position near the van, Smyth called out to Box
to come outside. Smyth did not identify himself as an OSP
trooper before calling Box outside. Box stepped out of the
rear patio door. Box was still on the phone, which he was
holding with his left hand. Box walked from the rear patio
to the area between the front of the van and the side of the
truck bed, which was six to 10 feet from Smyth. West was
somewhere behind Smyth in the clearing.
Both troopers saw that Box had a gun in the
front pocket of his pants on the right side. Both troopers
saw Box reach for his gun. Smyth saw Box pull the gun
from his pocket with his right hand. Box brought the gun
with one hand “up over the [truck] bed,” which was three
to four feet high. Smyth thought Box pointed the gun at
West, because he thought West was somewhere to his left
where Box was pointing the gun. Smyth did not know where
Box was looking at the time or what Box was doing with
his left hand, because he was focused on the gun. Smyth
acknowledged that he experienced tunnel vision when
he saw Box holding the gun: “I’ve got both hands on my
gun, and I see my gun crystal clear. And I don’t see his
head and I don’t see his legs. I have nothing, I’ve got tun-
nel vision, I don’t see anything.” Smyth also experienced
“auditory exclusion.” West did not see Box point the gun at
her.
360 Box v. Oregon State Police
On West’s dash-cam recording, Box can be heard
saying something that sounds like “hang on” before Smyth
identifies himself as law enforcement. Smyth says “Trooper
Smyth and Trooper West, state police, you are being
recorded.” While Smyth is speaking, Box says “Oh” in a sur-
prised manner. Almost immediately after Smyth finishes
identifying himself and West, Smyth says “don’t go for that
gun.” Box says something in response that is difficult to
discern. Plaintiff contends that Box states, “Let me show
you I’m getting this outta here.” Defendant argues that the
statement is unintelligible. West begins to yell “get your
hands—” before she is cut off by the sound of gunfire.
Smyth fired his gun first, and West fired second.
Box dropped the gun in the back of the truck bed and fell to
the ground. Box never fired the gun. It was recovered in the
rear of the truck bed, behind the wheel well on the passen-
ger’s side, the side nearest the rear patio. Smyth fired seven
rounds, five of which struck Box. West fired four, and struck
Box twice. Smyth’s shell casings were found near the rear
of the van on the driver’s side. West’s were found farther
behind Smyth on the side of the clearing opposite the house.
Dr. Olson performed the autopsy. Box had three
bullet wounds in his upper abdomen that “go at a steep
downward angle from left to right” to the pelvic area. Based
on Box’s height, which was over six feet, Olson determined
that Box was bent over when he was struck by those bullets.
According to Olson, those bullet wounds were also likely the
fatal wounds.
Bernadette Box was on the phone with her hus-
band that night and at the time of the shooting. Box told
Bernadette that he was listening to the police scanner but
had not heard anything about the police coming to arrest
him. Bernadette could “hear the dogs going off” through the
phone. Box told her that he could hear the dogs and that he
thought “[there was] someone in the bushes.”
As a result of the troopers’ shooting and killing of
Box, plaintiff brought this wrongful death action alleging
both a negligence claim and a trespass claim. We address
the details of each claim separately below in the respective
analyses of the issues on appeal that apply to each claim.
Cite as 311 Or App 348 (2021) 361
II. PLAINTIFF’S NEGLIGENCE CLAIM
A. Procedural Background
As briefly noted above, plaintiff alleged two spec-
ifications of negligence against the state. The first alleged
that the troopers’ preshooting conduct was negligent and
the second alleged that OSP negligently supervised and
trained Smyth. As to the first specification, plaintiff alleged
that the troopers negligently approached the Box home, and,
in doing so, created conditions where the use of lethal force
became probable. The crux of plaintiff’s theory is that Box
was disarming when the troopers shot him, and that the
troopers would either have seen that Box was disarming or
Box would have disarmed before exiting his house if not for
the troopers’ negligence or OSP’s negligent supervision and
training. Specifically, plaintiff alleges that the state, acting
through West and Smyth, “unreasonably created a foresee-
able risk of a need to use deadly force and, therefore, was
negligent in one or more of the following particulars, each of
which was a substantial factor in causing the death” of Box:
“a. In failing to provide Mr. Box with reasonable
advance notice of the presence of law enforcement by
approaching the driveway entrance to the Box Property
in their patrol vehicles with lights on and overhead lights
activated;
“b. In failing to use a cell phone or the dispatch oper-
ator to communicate with Mr. Box that they were pres-
ent and that he should present himself for questioning,
unarmed;
“c. In not using a microphone and loudspeaker to
announce their presence from one of their two patrol
vehicles;
“d. In failing to inquire of Mr. Box whether he was
armed before asking him to come out and talk with them;
“e. In failing to initiate communication with Mr. Box
from a position of hard cover and distance;
“f. In failing to tactically retreat or reposition after the
dogs alerted to their presence.
“g. In conducting an unlawful and secret entry and
search of the Box property.”
362 Box v. Oregon State Police
With respect to the second specification, plaintiff
alleged that Smyth’s supervising officers “were negligent in
one or more of the following particulars, each of which was a
substantial factor in causing the death” of Box:
“a. Failure of Smyth’s SWAT supervisors to inform
and provide complete information to Smyth’s patrol super-
visors about Smyth’s tunnel vision deficiency;
“b. Failure of Trooper Smyth’s patrol supervisors to
critically evaluate Smyth’s tunnel vision deficiency and
assess whether it rendered Smyth unfit to safely perform
the duties of his position;
“c. Failure to re-assign Trooper Smyth to a position in
which his tunnel vision deficiency would not pose a danger
to the public;
“d. Retaining Trooper Smyth in light of the danger to
the public posed by his tunnel vision deficiency.
“e. Failure to adopt standards and procedures that
require a fitness for duty evaluation of a trooper who has
demonstrated the deficiencies of Trooper Smyth.
“f. Failure to properly train its troopers how to safely
approach persons’ homes and property in rural Josephine
County under the above described circumstances.”
As noted, defendant moved for summary judgment
on all of plaintiff’s claims. With respect to the negligence
claim, defendant argued that the troopers acted reasonably
in their approach to Box’s home and in their use of lethal
force against Box and that there was no causal connection
between the alleged negligent conduct of the troopers and
Box’s death. As to the negligent retention and supervi-
sion theory, defendant asserted that, because the troopers
had acted reasonably the night of the shooting, there was
no causal connection between any claimed negligence by
OSP and Box’s death. Defendant also argued that appar-
ent authority immunity applied to the actions of the troop-
ers and OSP’s supervision of them, entitling it to summary
judgment.
Plaintiff opposed, pointing to evidence in the record
from which a reasonable juror could find for plaintiff based
on her theory that OSP’s negligent training and supervision
Cite as 311 Or App 348 (2021) 363
and the troopers’ negligent preshooting conduct created the
circumstance that caused the troopers to make the split-
second decision to shoot and kill Box. Plaintiff’s counsel also
filed an ORCP 47 E declaration, which stated that a qual-
ified expert had been retained whose testimony would cre-
ate questions of fact sufficient to defeat summary judgment
with regard to negligence and causation. Lastly, plaintiff
argued that apparent authority immunity did not bar plain-
tiff’s claims because there was no evidence that the troopers
relied on any law when they engaged in the allegedly negli-
gent conduct.
The trial court granted summary judgment to defen-
dant on all of plaintiff’s claims. Although the court expressed
skepticism with respect to the merit of plaintiff’s theories
of negligence, it ruled that plaintiff’s ORCP 47 E declara-
tion was sufficient to create an issue of material fact on
negligence and causation. Ultimately, however, the court
concluded that plaintiff’s claims were barred under ORS
30.265(6)(f), the apparent authority immunity provision of
the Oregon Tort Claims Act. The court identified two stat-
utes as forming the basis of apparent authority immunity
in this case, ORS 133.055(2)(a), which directs police officers
to arrest suspected perpetrators of domestic violence, and
ORS 161.239, which authorizes police officers to use deadly
force in certain circumstances, including in self-defense and
defense of others.
In her first assignment of error on appeal, plaintiff
argues that the trial court erred in concluding that appar-
ent authority immunity applied to plaintiff’s negligence
claim. Defendant, in turn, cross-assigns error to the court’s
conclusion that the ORCP 47 E declaration was sufficient to
create an issue of fact on the element of causation. We first
address apparent authority immunity.
B. Apparent Authority Immunity
Apparent authority immunity “applies to pub-
lic actors who, acting without bad faith or malice, rely
on their plausible interpretation of laws that turn out
to be unconstitutional, invalid, or inapplicable.” Cruz v.
Multnomah County, 279 Or App 1, 13, 381 P3d 856 (2016);
364 Box v. Oregon State Police
ORS 30.265(6)(f).3 For the purposes of apparent authority
immunity, an “inapplicable” law includes a law that is other-
wise valid but is misinterpreted by a public actor. Cruz, 279
Or App at 18 (“A valid law that is misconstrued by a public
actor to authorize or require the public actor to take a par-
ticular action is an inapplicable law” if “the law, properly
construed, would not authorize or require the action.”).
A public actor invoking apparent authority immu-
nity is not required to analyze the validity of a statute
before relying on it, but the actor must rely on a plausible
interpretation of the statute at the time the actor commits
the act or omission for which the actor seeks immunity.
See id. at 16 (in determining whether the defendants were
immune for the unlawful detention of the plaintiff, “the rel-
evant temporal context [was] whether defendants’ construc-
tion was plausible at the time that they detained plaintiff”);
Walker v. Mitchell, 133 Or App 565, 576, 891 P2d 1359 (1995)
(apparent authority immunity did not apply to state aero-
nautics division’s allegedly improper classification of an air-
port, despite argument that it relied on the application of an
administrative rule, because there was no evidence in the
record that the division in fact relied on that rule in classi-
fying the airport).
On appeal, plaintiff contends that the trial court
erred in applying apparent authority immunity on this
record, because there is no “nexus” between the negligent
conduct plaintiff alleged against the troopers and OSP and
the statutes that the troopers and OSP supervisors purport-
edly relied on for immunity.
In response, defendant contends that apparent author-
ity immunity defeats plaintiff’s negligence claim because the
troopers were acting under a plausible interpretation of ORS
161.239(1)(c) and (e), which authorize a police officer’s use of
3
ORS 30.265(6)(f) provides that public bodies and their officers, employees,
and agents acting within the scope of their employment are immune from liabil-
ity for
“[a]ny claim arising out of an act done or omitted under apparent author-
ity of a law, resolution, rule or regulation that is unconstitutional, invalid or
inapplicable except to the extent that they would have been liable had the
law, resolution, rule or regulation been constitutional, valid and applicable,
unless such act was done or omitted in bad faith or with malice.”
Cite as 311 Or App 348 (2021) 365
deadly force while making an arrest. As we understand it,
defendant’s argument does not address a connection between
the allegedly negligent conduct—the troopers’ and OSP’s pre-
shooting negligence—and ORS 161.239. Instead, defendant
contends that it cannot be liable for preshooting negligence
if it is immune for the shooting itself. Essentially, defendant
argues that summary judgment was appropriate because the
shooting was the actual cause of Box’s death, and that, there-
fore, plaintiff cannot prove that the preshooting negligence
caused Box’s death as a matter of law.
As we explain, we reject defendant’s causation argu-
ment and conclude that plaintiff is not precluded from prov-
ing, as a matter of law, that the preshooting negligence was
a cause of Box’s death. Although we reach that argument
later in this opinion, for the purpose of our apparent author-
ity immunity analysis, we note that, in rejecting defendant’s
causation argument, we consequently reject defendant’s
argument that it cannot be liable for preshooting negligence
if it is immune for the shooting itself. Thus, the issue before
us is not, as defendant implies, whether apparent authority
immunity applies to the troopers’ decision to shoot Box, but
whether apparent authority immunity applies to the conduct
at issue in plaintiff’s complaint: the troopers’ preshooting tac-
tical decisions and OSP’s preshooting supervisory decisions.
With that background in mind, we turn to the legal
question raised by plaintiff in her first assignment of error,
whether apparent authority immunity applies to her negli-
gence claim. As explained below, we conclude that apparent
authority immunity does not immunize defendant for the
preshooting negligent conduct of the troopers or Smyth’s
OSP supervisors, and, therefore, the trial court erred in
granting summary judgment to defendant on the ground of
apparent authority immunity.
The trial court concluded that the troopers had
relied on both ORS 133.055(2)(a) and ORS 161.239 in tak-
ing the actions that they did.4 ORS 133.055(2)(a) provides, in
4
Defendant makes no argument on appeal with respect to ORS 133.055(2)(a)
and only argues that the troopers were acting under a plausible interpretation of
ORS 161.239(1)(c) and (e) when they shot and killed Box. Because the trial court
identified both statutes in its ruling, we address each of them in our analysis.
366 Box v. Oregon State Police
part, that, “when a peace officer responds to an incident of
domestic disturbance and has probable cause to believe that
an assault has occurred between family or household mem-
bers, * * * the officer shall arrest and take into custody the
alleged assailant.” ORS 161.239(1)(c) and (e) provide, in part,
that “a peace officer may use deadly physical force” when the
officer “reasonably believes” that “the use of deadly physi-
cal force is necessary to defend the peace officer or another
person from the use or threatened imminent use of deadly
physical force,” or that the officer’s “life or personal safety
is endangered.” Given the particular theories of negligence
in this case, neither statute provides apparent authority
immunity to the state.
With respect to the troopers’ preshooting tactical
negligence, nothing in the record suggests that the troopers
relied on either statute in determining their tactical man-
ner of approach. The troopers identified the “shall arrest”
statute, ORS 133.055(2)(a), as contributing to their decision
to proceed to the Box residence instead of meeting Kelsey at
the hospital, and the troopers’ statements support an infer-
ence that the troopers understood that statute to require
them to go to Box’s home to arrest him. But, even if that
were a plausible interpretation of the statute, that would
merely immunize the troopers for an arrest of Box.5 There
is no evidence that suggests that the troopers relied on the
“shall arrest” statute in either their failure to develop a tac-
tical plan of approach or in their tactical decisions at the
scene. Additionally, an interpretation of the statute that
authorized those alleged tactical errors would not be a plau-
sible interpretation.
Similar reasoning applies to the deadly force stat-
ute, ORS 161.239. The troopers may have been aware of their
legal right to use self-defense when threatened with force,
and the troopers both testified that they believed Box was
a threat to their safety. However, a finding that the officers
relied on the deadly force statute in their decisions to shoot
5
As we explain in our discussion of plaintiff’s trespass claim, due to well-
established constitutional protections of the home and curtilage, that statute
would not plausibly permit the troopers to enter those areas absent certain
exceptions that do not apply in this case.
Cite as 311 Or App 348 (2021) 367
Box would not provide immunity for any of the preshooting
tactical choices that plaintiff alleges were negligent in this
case. There is no evidence that the troopers relied on the
deadly force statute in making those tactical decisions, nor
could any plausible interpretation of the deadly force statute
justify making them.
As for OSP’s alleged negligent supervision and
retention of Smyth, we reach the same conclusion. There is
no evidence in the record that any of Smyth’s OSP super-
visors relied on either statute in making decisions about
Smyth’s training, performance reviews, or retention. Both
statutes are entirely unrelated to those supervisory deci-
sions. Therefore, no interpretation of either statute could
justify the negligent conduct that plaintiff alleges, and the
trial court erred in granting summary judgment to defen-
dant on that basis.
C. Causation
Defendant asserts that the trial court’s grant of
summary judgment to defendant on plaintiff’s negligence
claim was nonetheless appropriate, because plaintiff’s
causation argument fails as a matter of law. As noted above,
defendant argues that plaintiff is precluded from proving
that the alleged preshooting negligence caused the death of
Box. As we understand that argument, defendant asserts
that the troopers’ shooting of Box was reasonable—or as pre-
viously noted, immune from suit under apparent authority
immunity—and the actual cause of Box’s death. Therefore,
in defendant’s view, under Joshi v. Providence Health System,
342 Or 152, 149 P3d 1164 (2006), the alleged preshooting
negligence could only have increased the risk of Box’s death,
and could not, as a matter of law, “constitute the requisite
cause” of his death as required by ORS 30.020, the wrongful
death statute. Defendant’s causation rationale is the logi-
cal basis for several of defendant’s arguments in this case,
including its challenge to the trial court’s decision to give
effect to plaintiff’s ORCP 47 E declaration, and, therefore,
we address it in detail below.
We first briefly address defendant’s contention that
the shooting was reasonable, which defendant asserts plaintiff
368 Box v. Oregon State Police
admitted below. In an opposition memorandum filed with
the trial court, plaintiff stated that
“plaintiff does not dispute that when Troopers Smyth and
West fired their weapons, they did so having the belief that
it was necessary for their own protection. Those acts are
not alleged to be negligent, nor is their belief it was neces-
sary to shoot germane to the reasonableness of the conduct
that is at issue.”
Plaintiff went on to explain that “[t]he actions at issue are
those which created the circumstances that forced Smyth
and West to make that split second decision to defend
themselves—the supervision and training they received
and their tactical decisions and actions.” Defendant insists
that the statement was an admission by plaintiff that the
shooting was, itself, reasonable. We disagree. Plaintiff was
simply distinguishing the allegedly negligent acts that form
the factual basis of her claim from other acts of the troopers,
for the purpose of ensuring that any assessment of reason-
ableness properly focused on the acts that plaintiff alleged
were negligent. In doing so, plaintiff did nothing more than
describe the crux of her claim, that the troopers’ preshoot-
ing tactical approach was negligent, and that Box was shot
as a result of that negligence.
In any case, we need not, and do not, decide whether
the shooting itself was reasonable because we reject defen-
dant’s argument that any preshooting negligence cannot
be a cause of Box’s death. As we explain below, defendant’s
assertion to the contrary is based in a misunderstanding of
causation and plaintiff’s theories of negligence.
The plaintiff in a wrongful death action must prove
that a defendant’s tortious act or omission was the cause-
in-fact of the decedent’s death. Cause-in-fact “has a well-
defined legal meaning: it generally requires evidence of a
reasonable probability that, but for the defendant’s negli-
gence, the plaintiff would not have been harmed.” Joshi v.
Providence Health System, 198 Or App 535, 538-39, 108 P3d
1195 (2005), aff’d, 342 Or 152, 149 P3d 1164 (2006). There
may be multiple causes-in-fact of a single injury. Wright v.
Turner, 354 Or 815, 831, 322 P3d 476 (2014) (“[A] person’s
injuries may have multiple causes without necessarily being
Cite as 311 Or App 348 (2021) 369
incurred in multiple accidents.”); Joshi, 198 Or App at 542(“[I]f it was a cumulative cause of a harm, negligent con-
duct may be a ‘but-for’ cause of the harm even if the conduct
was not, by itself, sufficient to cause the harm.” That is so
because “causation-in-fact includes every one of the great
number of events without which any happening would not
have occurred. * * * Each of those events is considered to be
a cause-in-fact of a harm, even though other events were
also necessary antecedents of the harm.” (Internal quota-
tion marks omitted.)). It follows that, where there are multi-
ple causes-in-fact of a plaintiff’s injury, some of those causes
may be non-negligent acts. A defendant whose negligent act
is a cause of the plaintiff’s injury is not necessarily absolved
of legal liability for that negligent act, merely because other,
non-negligent conduct was also a cause of the plaintiff’s
injury. Cf. Horton v. OHSU, 277 Or App 821, 830-31, 373 P3d
1158 (2016) (where the plaintiff underwent liver transplant
surgery to save her child after the defendants negligently
performed surgery on the child, reasonable factfinder could
determine that negligent surgery was a cause-in-fact of the
plaintiff’s harm, despite the plaintiff’s intervening choice to
have the transplant surgery).
Here, plaintiff’s theory of causation is that, absent
OSP’s negligent supervision and retention of Smyth or the
troopers’ negligent tactical approach to the Box residence,
the troopers would not have been in the circumstances that
required them to make the decision whether or not to use
lethal force. Therefore, to defeat summary judgment on the
issue of causation, plaintiff was required to identify evidence
from which a reasonable juror could infer that, absent OSP’s
or the troopers’ preshooting negligence, there was a reason-
able probability that the shooting would not have occurred.
Under plaintiff’s theory, whether the ultimate decision to
shoot Box was reasonable is immaterial.
Although Joshi informs the causation analysis in
every wrongful death case, defendant’s reliance on Joshi is
misplaced here. In that case, the plaintiff brought a wrong-
ful death action against a hospital, alleging that the medical
staff had contributed to her husband’s death by negligently
failing to diagnose and treat his stroke. Joshi, 342 Or at370 Box v. Oregon State Police
155. At trial, the plaintiff offered expert testimony that, had
the defendants diagnosed the stroke earlier, her husband
would have benefited from treatment. However, the expert
opined that the administration of any treatments would
have given the plaintiff’s husband, “at most, a 30 percent
chance of improvement in outcome.” Id. at 156.
The Supreme Court first held that a plaintiff in a
wrongful death action brought under ORS 30.020 “must
demonstrate that the defendant’s negligent act or omission
more likely than not brought about the death of the dece-
dent.” Id. at 159. The plaintiff may do so “by showing a rea-
sonable probability that a defendant’s act led to decedent’s
death or by showing that defendant’s act was a substantial
factor in decedent’s death.” But the plaintiff “cannot avoid
[that] requirement by showing that defendants’ negligent act
or omission merely increased the risk of death.” Id. at 164.
Accordingly, the Joshi court held that the plaintiff could not
demonstrate a reasonable probability that the defendants’
negligence led to the decedent’s death, where the plaintiff’s
evidence only established, at most, that even if the treat-
ment had not been negligent, the decedent’s chance of sur-
vival was only 30 percent greater. Id.Defendant contends here that, as in Joshi, plaintiff
can only show that the alleged negligent conduct increased
the risk of death, which is insufficient as a matter of law.
Defendant argues that that is so because the shooting itself
was reasonable under the circumstances and the actual
cause of Box’s death; any preshooting conduct can only have
increased the risk of Box’s death. We conclude that the rea-
soning in Joshi does not control the outcome here, because
Joshi is factually distinct from this case.
In Joshi, the expert opined that the decedent had
only a 30 percent chance of survival—or, stated another
way, a 70 percent chance of death—even with competent
treatment. That is, the expert employed mathematical per-
centages to opine that it was more likely than not that the
decedent would have died regardless of the defendants’ neg-
ligence. In this case, the record lacks the kind of evidence
that could provide the clarity and certainty inherent in the
percentages to which the Joshi expert opined. Instead, the
Cite as 311 Or App 348 (2021) 371
evidence in the record on which a reasonable juror could rely
is subject to more than one reasonable inference, including
ones that could support a finding that OSP’s or the trooper’s
preshooting negligence was a cause of Box’s death and not
merely circumstances that increased the risk of death.
Further, in Joshi, the substantial probability that the dece-
dent would die preexisted the defendants’ negligence. Here,
plaintiff alleges the opposite—that defendant’s negligence
created the risk that the use of lethal force would be neces-
sary. In other words, plaintiff asserts that OSP’s and the
troopers’ actions started the causal sequence that led to
Box’s death.
Defendant also argues that plaintiff’s negligent
supervision and retention claim fails as a matter of law,
because the actual shooting was not tortious and was “the
only act that Smyth’s alleged ‘tunnel vision’ is relevant to.”
Again, defendant’s argument fails to account for the actions
at issue in plaintiff’s negligence claim, the preshooting
conduct. Plaintiff has alleged that defendant’s employee,
Smyth, committed a tort when he acted negligently prior to
the shooting, and that that negligent conduct caused Box’s
death. Additionally, Smyth’s tunnel vision and other perfor-
mance issues that OSP was allegedly aware of are relevant
to Smyth’s preshooting conduct and decision making—not
only to the shooting itself. To recap this section, we reject
defendant’s argument that the alleged preshooting neg-
ligence by the state troopers could not have caused Box’s
death as a matter of law.
D. Plaintiff’s ORCP 47 E Declaration
Having determined that plaintiff is not precluded
from proving causation in the manner alleged, we turn to
defendant’s cross-assignment of error. Defendant argues
that the trial court erred in ruling that plaintiff’s ORCP 47 E
declaration was sufficient to create an issue of fact as to
causation. The declaration stated:
“An unnamed, qualified expert has been retained who
is available and willing to testify to admissible facts or
opinions creating a question of fact sufficient to controvert
the allegations of the defendant with regard to negligence
and causation, and whose facts and opinions if revealed by
372 Box v. Oregon State Police
affidavit or declaration would be a sufficient basis for deny-
ing the motion for summary judgment.”
On appeal, defendant argues, as it did to the trial
court, that the ORCP 47 E declaration was not sufficient to
defeat summary judgment because expert testimony could
not create a fact issue on causation as a matter of law. See
VFS Financing, Inc. v. Shilo Management Corp., 277 Or App
698, 706, 372 P3d 582, rev den, 360 Or 401 (2016) (ORCP
47 E affidavit did not preclude summary judgment because
expert could not testify to create a fact issue regarding the
plaintiff’s failure to meet a standard of commercial unrea-
sonableness when the courts had already determined that
the plaintiff’s conduct was commercially reasonable as a
matter of law). We conclude that the trial court did not err
in concluding that the ORCP 47 E declaration created an
issue of fact on the element of causation.
The Oregon Rules of Civil Procedure “protect
from pretrial disclosure the identities of experts and the
substance of their testimony.” Hinchman v. UC Market,
LLC, 270 Or App 561, 569, 348 P3d 328 (2015). As such,
ORCP 47 E
“authorizes attorneys to submit, in good faith, an affida-
vit that states that an unnamed qualified expert has been
retained and will testify to admissible facts or opinions cre-
ating a question of fact and provides that such an affidavit
‘will be deemed sufficient to controvert the allegations of
the moving party’ and will be an ‘adequate basis for the
court to deny the motion.’ ”
Two Two v. Fujitec America, Inc., 355 Or 319, 328, 325 P3d
707 (2014) (quoting ORCP 47 E). In other words, an ORCP
47 E affidavit or declaration is generally sufficient to create
issues of fact and defeat summary judgment as to the issues
raised in the summary judgment motion, or to the issues
identified in the affidavit, if the affidavit so specifies. Id. at
329-30.
However, “[t]he submission of an ORCP 47 E affida-
vit or declaration does not automatically create an issue of
fact, but will preclude summary judgment when the expert
testimony is ‘required’ to establish a genuine issue of mate-
rial fact.” VFS Financing, Inc., 277 Or App at 706 (citing
Cite as 311 Or App 348 (2021) 373
Hinchman, 270 Or App at 569). One instance when “expert
testimony is ‘required’ to create a genuine issue of material
fact” is “when ‘the point or points put at issue by the * * *
summary judgment motion are ones that are susceptible to
proof through expert testimony, given the plaintiff’s partic-
ular theory of her claim.’ ” Id. (quoting Hinchman, 270 Or
App at 570 (ellipsis in VFS Financing, Inc.)).
Defendant makes two arguments as to the suffi-
ciency of the ORCP 47 E declaration in this case. First, as
noted, defendant argues that the ORCP 47 E declaration
was not sufficient to defeat the motion for summary judg-
ment on the issue of causation because plaintiff cannot
prove, as a matter of law, that the alleged negligence was
the cause-in-fact of Box’s death. We reject that argument for
the reasons stated above. Second, defendant argues that the
ORCP 47 E declaration is not sufficient in this case because
the issue of causation is not “susceptible” to proof by expert
testimony. We also reject that argument. As we explained
in Hinchman, the points or point at issue in a motion for
summary judgment are susceptible to proof by expert tes-
timony if they could “conceivably be proven through expert
testimony,” and do not “necessarily * * * require proof by
testimony from witnesses with personal knowledge.” 270
Or App at 572. Further, “[a]s a consequence of Oregon’s pol-
icy choice to broadly shield the content of expert testimony
from discovery and disclosure pretrial * * * the assessment
of whether an ORCP 47 E affidavit creates an issue of fact
precluding summary judgment will sometimes require an
act of imagination by the summary judgment court.” Id. at
570. Here, expert testimony could be helpful to the jury in
its determination of causation. That is, it is at least conceiv-
able that an expert witness could explain why OSP’s train-
ing and standards, or the troopers’ tactical errors, caused
Box’s death based on the witness’s expertise in the area.
Further, even if plaintiff’s theory of causation was
not susceptible to proof by expert testimony, there is enough
evidence in the summary judgment record from which a
jury could infer that defendant’s preshooting negligence
caused Box’s death. See Two Two, 355 Or at 331-32 (rea-
soning that, even if an ORCP 47 E affidavit was given the
limited interpretation that the plaintiffs had retained an
374 Box v. Oregon State Police
expert to testify only to the defendant’s failure to meet the
standard of care, “a jury could nonetheless infer from that
evidence of negligence and other facts in the summary judg-
ment record that defendant’s negligence caused plaintiffs’
injuries”).
A plaintiff need not present direct evidence that the
defendant’s negligent conduct caused the injury, or that the
injury would not have otherwise occurred. Magnuson v. Toth
Corp., 221 Or App 262, 268, 190 P3d 423, rev den, 345 Or
415 (2008). Rather, “[c]ausation may be proved by circum-
stantial evidence, expert testimony, or common knowledge.”
Two Two, 355 Or at 332 (citing Trees v. Ordonez, 354 Or 197,
220, 311 P3d 848 (2013)). And, in assessing the sufficiency
of the evidence “on summary judgment, the question is not
which conclusion is most likely but whether an issue of fact
exists that permits jury resolution.” Id. Here, the summary
judgment record supports reasonable inferences from which
a reasonable jury could conclude that there is a reason-
able probability that the shooting would not have occurred
absent the troopers’ and OSP’s negligent conduct, because it
is the troopers’ preshooting negligent conduct that put the
troopers in a position to have to make a split-second deci-
sion whether or not to shoot and kill Box, and, with respect
to Smyth, put Smyth in that position when it was known
to OSP that his stress-induced deficiencies compromised his
ability to follow protocol and properly make those kinds of
tactical and split-second decisions.
A jury would not be required to make inferences from
the evidence that support plaintiff’s theory of causation, and
a jury might reasonably reject plaintiff’s theory. However,
it is for the jury to determine what reasonable inferences it
will draw from the evidence. State v. Miller, 196 Or App 354,
358, 103 P3d 112 (2004), rev den, 338 Or 488 (2005).
In sum, the trial court erred in granting summary
judgment to defendant on plaintiff’s negligence claim.
III. PLAINTIFF’S TRESPASS CLAIM
We turn to plaintiff’s second assignment of error,
which asserts that the trial court erred when it denied plain-
tiff’s motion for partial summary judgment on plaintiff’s
Cite as 311 Or App 348 (2021) 375
trespass claim6 and when it granted defendant’s summary
judgment motion on the trespass claim. We first summarize
the relevant procedural history and the parties’ arguments
before the trial court, before turning to plaintiff’s appeal.7
Plaintiff’s claim for trespass alleged that defen-
dant, “acting through its troopers, intentionally or reck-
lessly entered the Box Property” and that defendant “lacked
lawful authority, privilege or consent” to do so. Plaintiff
further alleged that, “[a]s a direct result of the defendant’s
trespass, [Box] was shot dead” and that plaintiff was enti-
tled to recover damages for “the physical and mental pain,
suffering and distress sustained by Mr. Box between the
time of the shooting and his death,” “the pecuniary loss to
the Estate,” and “pecuniary loss and the loss of the society,
companionship and services” to Box’s family.
Plaintiff moved for partial summary judgment on
the trespass claim, contending that the troopers were tres-
passers as a matter of law. Plaintiff argued that, absent a
warrant or an exception to the warrant requirement, a law
enforcement officer has no greater authority to enter the
land of another. Plaintiff contended that, although consent
is generally implied for strangers to approach the front door
to a residence, the reverse is presumed for other areas in
6
As a point of clarification, we note that, to prevail on her partial motion for
summary judgment, plaintiff was not required to present evidence concerning
her alleged damages or that the trespass caused Box’s death. Although a plaintiff
in an action for trespass who wishes to recover actual damages must prove that
the trespass caused those damages, nominal damages are presumed. Rhodes
v. Harwood, 273 Or 903, 926, 544 P2d 147 (1975) (in an action for trespass to
land, “the law presumes that a plaintiff has been damaged without the necessity
of proof of actual damage”). Therefore, the only issue with respect to plaintiff’s
motion is whether the troopers lacked authority to enter particular areas of Box’s
property.
7
Generally, an order denying a motion for summary judgment is not appeal-
able. Cessna v. Chu-R & T, Inc., 185 Or App 39, 50, 57 P3d 936 (2002), rev den,
335 Or 266 (2003). However, “[i]n an appeal arising from cross-motions for sum-
mary judgment, the granting of one motion and the denial of the other are both
reviewable.” Arrowood Indemnity Co. v. Fasching, 304 Or App 749, 751, 469 P3d
271, rev allowed, 367 Or 290 (2020). Because both parties moved for summary
judgment on the trespass claim in their respective motions, we treat plaintiff’s
assignment of error as an appeal arising from cross-motions for summary judg-
ment and, thus, the trial court’s order denying plaintiff’s partial motion for sum-
mary judgment and granting summary judgment to defendant on the trespass
claim is reviewable.
376 Box v. Oregon State Police
the curtilage of a home. Therefore, according to plaintiff,
the troopers exceeded the scope of implied consent when
they hid behind the trees to surveil the Box property, and
when they bypassed the front door to approach the rear
patio entrance. Plaintiff also argued that no exigent cir-
cumstances existed that would justify the troopers’ entry
into the curtilage of Box’s home under that exception to the
warrant requirement.
Defendant responded, in relevant part, that the
troopers’ presence was justified by exigent circumstances to
investigate and preserve evidence. Defendant also argued
that the troopers were on “permissible areas” of the Box
property because visitors could reasonably assume that the
rear patio door was the main entrance. Defendant argued
that, in any case, the distinction between the back and front
yard was immaterial, because, when the troopers saw Box
from behind the trees, they were entitled to approach him
under State v. Gabbard, 129 Or App 122, 877 P2d 1217,
rev den, 320 Or 131 (1994).
Defendant also moved for summary judgment on
the entire trespass claim. In addition to the same argu-
ments that defendant raised in response to plaintiff’s
motion, defendant argued that there was no causal con-
nection between the troopers’ presence on the property and
Box’s death. Defendant also argued that apparent authority
immunity applied to the trespass claim.
The trial court denied plaintiff’s motion for par-
tial summary judgment and granted defendant’s motion for
summary judgment on the trespass claim. The court first
concluded that the troopers did not trespass as a matter
of law. The court stated that Box knew the troopers were
present on the property when they arrived and “armed him-
self to encounter the police.” The court explained that the
troopers “had enough information to believe that Mr. Box
was expecting them” and, therefore, “had a valid concern
about contacting him within his house.” The court concluded
that the troopers had a legal right to walk up Box’s drive-
way to his front door, and further agreed with defendant
that “[t]here is no significant difference between the facts
in this case” and “the facts in Gabbard,” a case in which
Cite as 311 Or App 348 (2021) 377
the police officers were entitled to approach the defendant
when he emerged from a shed on his property. Therefore,
the court concluded, the troopers were entitled to bypass
the front door and approach the rear patio area when they
saw Box walking there “whether or not they approached
him within in his curtilage.” Although the court was not
entirely clear, in responding to plaintiff’s argument that the
troopers exceeded the scope of implied consent by hiding
behind the trees lining the driveway, the court further deter-
mined that the troopers’ act of hiding behind the trees was
“not the basis for damages in this case.” Therefore, the court
granted summary judgment to defendant and denied plain-
tiff’s motion for summary judgment on the grounds that
the troopers did not trespass as a matter of law. Ultimately,
the court also granted summary judgment to defendant on
the trespass claim on the ground that apparent authority
immunity applied based on the troopers’ reliance on ORS
133.055(2)(a), which required them to arrest the suspect in
cases of domestic violence.
On appeal plaintiff argues that the troopers were
trespassers as a matter of law, raising substantially the
same arguments that she did before the trial court. Plaintiff
also challenges the court’s conclusion that apparent author-
ity immunity applied to the trespass claim.
Defendant makes no arguments with respect to the
troopers’ status as trespassers. Instead, it contends that the
trespass did not cause Box’s death and the resulting dam-
ages as a matter of law. As with the negligence claim, defen-
dant argues that “the only possible theory” of causation for
the trespass claim is that the trespass increased the risk
that the troopers would use lethal force. Defendant also
argues that the trial court correctly concluded that apparent
authority immunity applied to the trespass claim because
the troopers interpreted ORS 161.239(1)(c) and (e) to autho-
rize their use of deadly force.
From the trial court rulings and the parties’ argu-
ments on appeal, we understand the issues relevant to plain-
tiff’s second assignment of error to be whether (1) either
party is entitled to summary judgment on the basis that
the troopers were or were not trespassers as a matter of law,
378 Box v. Oregon State Police
(2) apparent authority immunity applied to the trespass
claim, and (3) a dispute of fact exists as to whether the
alleged trespass caused Box’s death, which is the basis of
plaintiff’s damages.
We begin with the troopers’ status as trespassers.
“On review of cross-motions for summary judgment, we view
the record for each motion in the light most favorable to the
party opposing it to determine whether there is a genuine
issue of material fact and, if not, whether either party is
entitled to judgment as a matter of law.” O’Kain v. Landress,
299 Or App 417, 419, 450 P3d 508 (2019). A material fact is
“one that, under applicable law, might affect the outcome
of a case.” Zygar v. Johnson, 169 Or App 638, 646, 10 P3d
326 (2000), rev den, 331 Or 584 (2001). We have reviewed
the summary judgment record and conclude that it does
not present a genuine dispute of material fact. We further
conclude, for the reasons below, that the troopers were tres-
passers as a matter of law. Therefore, the trial court erred
in denying plaintiff’s motion for partial summary judg-
ment and granting summary judgment to defendant on the
basis that the troopers were not trespassers as a matter of
law.
“Trespass to real property is an intentional entry
upon the land of another by one not privileged to enter.”
Collier v. City of Portland, 57 Or App 341, 344, 644 P2d 1139(1982). In general, that rule also applies to the intentional
intrusion onto land by law enforcement officers; absent some
privilege or authority to enter the property of another, a police
officer who does so is liable for trespass. State v. Ohling, 70
Or App 249, 253, 688 P2d 1384, rev den, 298 Or 334 (1984)
(explaining that officers trespassed when, after knocking on
the front door and receiving no response, they entered the
defendant’s backyard, because officers lacked consent and
“[n]either the warrant nor their status as peace officers gave
them any greater right to intrude onto defendant’s property
than any other stranger would have”); Collier, 57 Or App at
344 (“Merely entering a building constitutes a trespass, and,
unless the law provides an exception applicable to the facts
of this case, there was a trespass when the police entered
plaintiff’s residence.”).
Cite as 311 Or App 348 (2021) 379
An officer may acquire the authority or privilege to
enter another’s property from a warrant or if an exception to
the warrant requirement applies, such as the exception for
exigent circumstances. Id. at 345. An officer’s entry may also
be justified by implied or express consent of the homeowner.
State v. Somfleth, 168 Or App 414, 424, 8 P3d 221 (2000).
Strangers, including police officers, have implied consent to
enter the curtilage of a home to approach the front door.
Id. (“[G]iven prevailing social norms, the homeowner is pre-
sumed to have implicitly consented to entry into the front
yard to approach the front door.”). Conversely, “such a pre-
sumption of implied consent to enter is not ascribed to other
areas of the curtilage.” Id. at 425. Rather, “entry onto those
areas is presumptively a trespass.” Id.The facts relevant to the troopers’ status as tres-
passers are few, and largely undisputed. To the extent there
are disputed issues of fact relevant to the trespass claim, we
address them later in our analysis. Prior to entering Box’s
property, the troopers were aware that Kelsey and her girl-
friend had left. The troopers entered the Box property and
hid behind the trees. From there, Smyth moved to a position
next to the van in the rear patio area and West moved into
the clearing behind Smyth. The front porch light was on,
but both troopers bypassed the ramp leading to the front
porch and door. A person entering from Fir Canyon would
necessarily walk past that ramp. The only other light came
from the workshop. A “No Trespassing” sign was posted on
the front of the workshop.
Given the undisputed fact of the troopers’ warrant-
less entry, the troopers trespassed unless that entry was
authorized by exigent circumstances, the need for emer-
gency aid, or express or implied consent.8 Thus, the question
8
As noted, ORS 133.055(2)(a) directs officers to investigate and arrest
suspects in cases of domestic violence, and ORS 133.235(5) provides that, “[i]n
order to make an arrest, a peace officer may enter premises in which the officer
has probable cause to believe the person to be arrested to be present.” Given
established constitutional principles requiring a warrant or an exception to that
requirement before police may enter a person’s home, those statutes do not give
law enforcement officers authority to enter a home or the protected areas sur-
rounding it. State v. Olson, 287 Or 157, 164-65, 598 P2d 670 (1979) (“[B]oth the
Oregon and the United States Constitutions dictate that where exigent circum-
stances which militate against securing [a] warrant do not exist, probable cause
380 Box v. Oregon State Police
before us is whether there was a genuine dispute of material
fact as to whether any of the above conditions existed, and,
if not, whether either party is entitled to summary judg-
ment as a matter of law. We consider each condition in turn.
On this record, there is no genuine dispute regard-
ing the existence of exigent circumstances or an emergency
requiring the troopers’ aid that would justify the troopers’
locations on the property. The troopers testified that they
were aware that Kelsey had left for the hospital, and the
record lacks any evidence that the troopers were required
“to act swiftly to prevent danger to life or serious damage to
property, or to forestall a suspect’s escape or the destruction
of evidence.” State v. Pierce, 226 Or App 336, 341, 203 P3d
343 (2009).
Nor is there evidence that Box gave his express con-
sent for either trooper to enter, and we conclude that there
is no dispute of material fact as to whether the troopers
had implied consent. As noted, a homeowner is presumed
to impliedly consent to entry into the curtilage to approach
the front door. That implied consent is limited and “does
not extend to conduct beyond that which would reason-
ably be expected of someone approaching the door.” State v.
Goldberg, 309 Or App 660, 667, 483 P3d 671 (2021). Further,
the presumption that a person impliedly consents to visitors
approaching the front door “is not ascribed to other areas
of the curtilage.” Somfleth, 168 Or App at 425. To the con-
trary, “entry onto those areas is presumptively a trespass.”
Id. Nonetheless, a homeowner may manifest, “by custom or
conduct,” implied consent to enter those other areas of the
curtilage such that the presumption of trespass is overcome.
Pierce, 226 Or App at 347. The pertinent question is whether
“a member of the public [would] reasonably understand that
the property owner has so manifested such consent as to
overcome the presumption that entry into the ‘nonfront’
areas of the curtilage is a trespass.” Id. at 347-48.
to arrest does not justify a forced entry into the home of the suspect. Such proba-
ble cause justifies only the issuance of a warrant. For this reason the application
of ORS 133.235(5) would be an unconstitutional application where there are no
exigent circumstances.”); Somfleth, 168 Or App at 424 (A “fundamental princi-
ple * * * is that intrusions onto residential curtilage are deemed to be trespasses
unless the entry is privileged or has defendant’s express or implied consent.”
(Internal quotation marks and brackets omitted.)).
Cite as 311 Or App 348 (2021) 381
Here, the troopers’ conduct exceeded “that which
would reasonably be expected of someone approaching the
[front] door.” Goldberg, 309 Or App at 667; State v. Jackson,
71 Or App 76, 79, 691 P2d 130 (1984) (officer “left the area in
which consent to the presence of strangers is implied” when,
after knocking on the front door and receiving no answer, he
moved off the front porch towards the side yard). As noted,
the troopers stopped and hid behind trees along the edge
of the driveway before they approached the house. Further,
the evidence establishes that Box did not, by custom or con-
duct, manifest consent for the troopers’ entry apart from
approaching the front door. The troopers bypassed the lit
front porch at 11:00 p.m. and moved toward the rear patio
where multiple cars were parked so as to obscure the view
of the rear patio. There was a light on at the workshop, but
not in the rear patio, and no trespassing signs were posted.
No member of the public would reasonably understand from
those circumstances that Box had impliedly invited entry
into the rear patio area.
As noted, the trial court determined that, under
Gabbard, the troopers had implied consent to approach Box
in the rear patio area when they saw him walking in that
direction. We disagree. In Gabbard, two officers drove up the
defendant’s driveway and parked between the defendant’s
shed and house. While getting out of the vehicle, the officers
noticed that the defendant was coming out of his shed. The
defendant and the officers walked toward each other. 129 Or
App at 125. We explained that the officers were permitted
to walk toward the defendant, rather than to the front door,
because “[a]n officer’s right to go to the front door of a house
is based on implied consent to allow visitors to take reason-
able steps to make contact with the occupant.” Id. at 128.
Therefore, “[w]hen defendant came out of the shed, it was no
longer necessary for the officers to proceed to the front door.
Their decision to go toward defendant, rather than to the
front door, was reasonable in [those] circumstances.” Id. at
128-29.
The factual circumstances in this case materially
differ from those in Gabbard. In Gabbard, the defendant
and the officers walked toward each other simultaneously.
That is, the defendant saw the officers and manifested his
382 Box v. Oregon State Police
implied consent for their approach by walking toward them.
In contrast, there is no evidence that Box made any ges-
ture or other indication that he consented to making contact
with the troopers in his rear patio, as they surveilled from
behind the trees. To the contrary, defendant proceeded to go
inside his home, and, by the time the troopers approached
the rear patio, Box had already disappeared from view.
The trial court also found that Box was aware of
the troopers’ presence prior to the encounter that led to the
shooting. We acknowledge that, viewing the evidence in the
record in the light most favorable to defendant, there is at
least a disputed issue of fact whether Box was aware of the
troopers’ presence prior to the encounter. However, that fact
is not material to the question of implied consent here. That
is, even if Box was aware of the troopers’ presence, that fact
alone would not be sufficient to overcome the presumption
against implied consent to enter the curtilage apart from
the approach to the front door. Rather, our case law makes
clear that some greater outward manifestation is required.
See Pierce, 226 Or App at 348-49 (the defendant and his
friend did not manifest consent for public to enter backyard
by arguing loudly in the backyard at 1:00 a.m., even though
it was reasonably foreseeable from that conduct that others
would want to contact them there).
In sum, there is no genuine dispute of material fact
that the troopers entered areas of the Box property where
they lacked authority or consent to be, and, as a result, the
troopers were trespassers as a matter of law. Therefore,
the trial court erred in denying plaintiff’s motion for par-
tial summary judgment and in granting defendant’s motion
based on its conclusion that the troopers were not trespass-
ers as a matter of law.
We reach the second and third issues next, which
relate to defendant’s motion for summary judgment, begin-
ning with the issue of apparent authority immunity. For
reasons similar to those explained earlier, we conclude that
defendant and its troopers do not have immunity for the
trespass. Although the troopers may have relied on ORS
133.055(2)(a) in their decision to proceed to the Box prop-
erty that night, there is no evidence in the record that the
Cite as 311 Or App 348 (2021) 383
troopers relied on that statute in entering the particular
areas of the property, which is the conduct that forms the
basis of the trespass claim. And, an interpretation of ORS
133.055(2)(a) that authorized entry into such constitution-
ally protected areas without a warrant, express or implied
consent, or exigent circumstances would not be a plausible
interpretation given our established and long held principles
prohibiting that conduct. See Pierce, 226 Or App at 346-47(“[B]edrock constitutional principles * * * rigorously protect
the residential curtilage from warrantless, uninvited intru-
sions.”). As we explained above, we also reject defendant’s
argument concerning the troopers’ reliance on the deadly
force statute, ORS 161.239, and any resulting immunity for
the shooting itself.
We turn to the third issue, whether there was a
dispute of fact as to whether the troopers’ trespass caused
Box’s death. As noted, defendant argues that the trial court
correctly granted summary judgment to defendant because
plaintiff “offers no analysis of how the alleged trespass
caused Mr. Box’s death, which plaintiff must show to prevail
on its wrongful death action.” Plaintiff briefly asserts in her
reply that there is “a permissible inference based upon com-
mon knowledge and experience that unlawful entry into the
curtilage of a home invites violence.” Plaintiff also argues
that causation can be inferred by “the same evidence that
demonstrates that the troopers’ failure to maintain cover
and distance was a cause of the shooting.”
“It is well settled that a landowner is entitled to
prove and recover whatever damages are caused by a defen-
dant’s trespass.” Sutherlin School Dist. #130 v. Herrera, 120
Or App 86, 92, 851 P2d 1171 (1993). Under certain circum-
stances, that may include consequential damages for mental
distress and personal injury. Lunda v. Matthews, 46 Or App
701, 708, 613 P2d 63 (1980); Restatement (Second) of Torts
§ 162 (1965) (“A trespass on land subjects the trespasser to
liability for physical harm to the possessor of the land at
the time of the trespass, or to the land or to his things, or
to members of his household or to their things, caused by
any act done, activity carried on, or condition created by the
trespasser, irrespective of whether his conduct is such as
384 Box v. Oregon State Police
would subject him to liability were he not a trespasser.”).
However, “both the presence of damage and the causal link
between the damage and the trespass [must] be proved with
reasonable certainty.” Sutherlin School Dist. #130, 120 Or
App at 92.
We conclude that there is evidence in the summary
judgment record sufficient to create an issue of fact as to
whether the troopers’ trespass caused plaintiff’s alleged
damages, including the death of Box. As we have explained,
direct evidence of causation is not required. Rather,
“[c]ircumstantial evidence, expert testimony, or common
knowledge may provide a basis from which the causal
sequence may be inferred.” Magnuson, 221 Or App at 268.
Here, as with the negligence claim, a reasonable jury could
infer that there was a causal link between the troopers’
trespass into the curtilage of Box’s home and Box’s death,
because, had the troopers instead approached Box’s front
door, the encounter would not have resulted in Box’s death.
See State v. Ford, 310 Or 623, 631, 801 P2d 754 (1990) (one
reason for “knock and announce” rule is “to protect persons
who might be injured by violent resistance to unannounced
entries by law enforcement officers”); Ohling, 70 Or App at
253 (Approaching the front door of a residence “is so com-
mon in this society that, unless there * * * [is] evidence of
a desire to exclude casual visitors, the person living in the
house has impliedly consented to the intrusion. * * * Going
to the back of the house is a different matter.”).
We also disagree with the trial court’s conclusion
that the troopers’ act of stepping behind the trees to surveil
the property was “not the basis for damages in this case.”
That conclusion disregarded plaintiff’s theory of trespass—
plaintiff contended that the troopers exceeded the scope of
implied consent when they stepped behind the trees and
when they approached the rear patio. A reasonable jury
could conclude that that aspect of the trespass or the entire
trespass were causally linked to the damages alleged by
plaintiff, including Box’s death.
Finally, defendant contends that the trespass was
not a cause of Box’s death as a matter of law because, as with
the negligence claim, “the only possible theory” of causation
Cite as 311 Or App 348 (2021) 385
for the trespass claim is that the trespass increased the
risk that the troopers would use lethal force. We reject that
argument for the reasons discussed above. And, in any case,
there is sufficient evidence from which to infer a causal link
between the troopers acts of trespass and Box’s death.
In sum, we conclude that the trial court erred in
granting summary judgment to defendant on the negligence
claim on the ground of apparent authority immunity. We
further conclude that the trial court did not err in conclud-
ing that plaintiff’s ORCP 47 E declaration created an issue
of fact on the element of causation, and we reject defendant’s
argument that plaintiff is precluded from proving causation
as a matter of law. Lastly, we conclude that the troopers
were trespassers as a matter of law, and plaintiff was enti-
tled to partial summary judgment on the trespass claim.
Therefore, the court erred in denying plaintiff’s motion for
summary judgment on the trespass claim, and in granting
summary judgment to defendant on the ground that the
troopers were not trespassers as a matter of law and on
the ground of apparent authority immunity. We also reject
defendant’s argument that plaintiff failed to demonstrate
that there was a triable issue of fact whether the troopers’
trespass was a cause of Box’s death.
Reversed and remanded.