Box v. Oregon State Police

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 at

370 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.