Anselmo v. Target Corp.

No. 354 April 23, 2025 21

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

Patricia ANSELMO,

as Personal Representative for the Estate of

Jeffrey Buckmeyer,

Plaintiff-Appellant,

v.

TARGET COPORATION

and Marketsource, Inc.,

Defendants-Respondents,

and

John DOE #1

and John Doe #2,

Defendants.

Multnomah County Circuit Court

19CV37823; A179624

Judith H. Matarazzo, Judge.

Argued December 21, 2023.

Kelly D. Jones argued the cause for appellant. Also on

the opening brief were Michael Fuller, OlsenDaines, and

The Law Office of Kelly D. Jones. On the reply brief were

Michael Fuller and OlsenDaines.

William E. Corum, Missouri, argued the cause for

respondents. Also on the brief were Husch Blackwell, LLP,

Missouri, and Mackenzie B. Schmitt, Brisbee & Stockton,

LLC, Liani J. Reeves, and Bullard Law.

Before Shorr, Presiding Judge, Lagesen, Chief Judge and

Pagán, Judge.*

SHORR, P. J.

Reversed and remanded.

______________

* Lagesen, Chief Judge vice Hadlock, Judge pro tempore; Pagán, Judge vice

Mooney, Senior Judge.

22 Anselmo v. Target Corp.

Cite as 340 Or App 21 (2025) 23

SHORR, P. J.

Plaintiff appeals the general judgment of dismissal

entered after the trial court granted summary judgment in

favor of defendants, assigning error solely to the ruling that

led to the dismissal of her intentional infliction of emotional

distress (IIED) claim. Plaintiff filed this lawsuit as personal

representative of her former husband’s (Jeffrey Buckmeyer’s)

estate, seeking damages for alleged injuries that Buckmeyer

sustained when defendants’ agent, McGee, allegedly falsely

reported that he saw pornographic photographs of Buckmeyer

with children on Buckmeyer’s iPhone. We conclude that the

trial court erred in granting defendants’ motion for summary

judgment and dismissing the IIED claim. As explained below,

in granting summary judgment, the trial court did not prop-

erly credit an ORCP 47 E declaration from plaintiff’s counsel

that created an issue of material fact.

STANDARD OF REVIEW

This is a civil case in which the parties have a right

to trial by jury. Or Const, Art I, § 17. To summarily defeat

plaintiff’s IIED claim, without a jury trial, defendants must

have established that there were no genuine issues of mate-

rial fact for a jury to decide and that they were entitled to pre-

vail as a matter of law. ORCP 47 C. Faced with defendants’

motion, plaintiff had the burden to produce evidence on any

issue properly raised by that motion on which she would have

the burden of persuasion at trial. Fields v. City of Newport,

326 Or App 764, 767, 533 P3d 384, rev den, 371 Or 476 (2023).

We review the trial court’s decision to grant summary judg-

ment for legal error, viewing the facts in the light most favor-

able to the nonmoving party, here, plaintiff. Id.

FACTS

One day in late July 2018, Buckmeyer entered the

electronics department of one of defendant Target Corporation’s

stores and requested technical assistance to “free up space”

on his iPhone. Defendants’ employee or agent, McGee, stepped

up to assist Buckmeyer. McGee and Buckmeyer did not know

each other, and there is no evidence that they had ever met

each other before that encounter. Buckmeyer asked McGee

how to delete a folder of photographs on his iPhone 6S, and

24 Anselmo v. Target Corp.

he handed his phone to McGee. As McGee scrolled through

the “photos” app on Buckmeyer’s iPhone, he encountered an

album labeled “business” and asked Buckmeyer if that was

the folder he wanted to delete. Buckmeyer confirmed that it

was. Although the album appeared to be secure, McGee was

able to open it without a password. The album indicated that

it contained over a thousand images, with about 20 of those

images appearing together on the iPhone screen in “gallery”

mode. McGee later reported that he observed Buckmeyer

in many of those images, naked, with an erect penis, and

surrounded by young children, of different races, tied and

bound with some sort of black material. He did not mention

his observation to Buckmeyer but proceeded instead to tell

Buckmeyer how to delete the photos, and he returned the

iPhone to Buckmeyer. McGee did not write down the serial

number or any other identifying information about the phone.

Buckmeyer left the electronics department, made a purchase,

and eventually exited the store.

McGee went to speak with someone in Human

Resources who, in turn, took him to speak with John

Robinson, Executive Leader in the loss prevention office.

According to Robinson’s deposition, McGee looked as if he

had “just * * * seen a horror movie[.]” McGee told Robinson

“that he was assisting someone and that he saw some dis-

turbing pictures on [that] person’s phone.” Robinson asked

for clarification of what he saw, and McGee “said he saw pic-

tures he thought of naked young girls.” Robinson pulled up

security footage that depicted McGee “speaking with some-

one at the electronics counter” and McGee confirmed that

the person in the footage was the one with the disturbing

photos on his iPhone. Buckmeyer was later identified as the

customer with the iPhone.

Either Robinson or McGee called the Tigard Police

to report what McGee had seen. Officer Tillotson responded

and interviewed McGee in Robinson’s office. Tillotson doc-

umented that interview in a police incident report, record-

ing McGee’s reports of what he claimed to have seen on the

phone. Tillotson then consulted with Tigard Police Detective

Yonsoo Lee, who served as a Task Force Officer with the

Federal Bureau of Investigation (FBI) and was trained in

Cite as 340 Or App 21 (2025) 25

investigating crimes related to child pornography. Lee

went to the Target store that same day and interviewed

Robinson and McGee. After concluding those interviews,

Lee “determined that there was probable cause to believe

that [Buckmeyer] was in possession of child pornography.”

Several days later, Lee sought and obtained a warrant to

search Buckmeyer’s home, vehicle, and electronic devices.

He and other officers executed the warrant a week later and

seized three electronic devices, including an iPhone 6S.

The seized devices were analyzed by the FBI, which,

after a number of months, determined that the devices did

not contain any pornographic images involving children or

otherwise. The devices were returned to Buckmeyer, and he

was not arrested or charged with any crimes. Buckmeyer

died several months later, and the FBI closed its file.

PROCEDURAL BACKDROP

Although this is a fairly complex civil case, actively

litigated below, plaintiff assigns error solely to the trial

court’s granting of summary judgment in favor of defen-

dants on her IIED claim.

Defendants moved for summary judgment on plain-

tiff’s IIED claim, asserting an absence of evidence that

McGee had intended to cause any harm to Buckmeyer, an

element of the IIED claim. See, e.g., House v. Hicks, 218 Or

App 348, 357-58, 179 P3d 730, rev den, 345 Or 381 (2008)

(discussing the elements of IIED, including that a defendant

“intended to cause [the] plaintiff severe emotional distress

or knew with substantial certainty that their conduct would

cause such distress”). Defendants argued that Buckmeyer

was a stranger to McGee and that there was simply no

evidence, direct or circumstantial, to support a finding

that McGee had fabricated the report or intended to inflict

emotional distress on Buckmeyer. They presented McGee’s

deposition testimony that he genuinely believed that he

saw child pornography on Buckmeyer’s phone. They further

argued that child abuse reporting statutes immunize those

who report abuse in good faith and that, at a minimum,

those statutes reflect a social norm in favor of reporting over

not reporting suspected abuse.

26 Anselmo v. Target Corp.

Plaintiff responded that material issues of fact

existed on the question of intent. She argued that a jury

could find that McGee did not tell the truth about what he

saw on Buckmeyer’s iPhone, casting McGee’s story about

the amount of detail he observed as implausible and noting

the FBI’s inability to find any pornographic images involv-

ing children on the seized devices. Her counsel additionally

submitted an ORCP 47 E declaration, stating:

“The estate has retained an expert whose opinions and

facts create issues of fact and defeat summary judgment as

to the issues raised [in] Target and MarketSource’s motions,

including the veracity of McGee’s accusations, whether his

reporting was in good faith, and McGee’s potential statu-

tory immunity.”

Plaintiff argued that a jury could infer from the absence

of pornographic images on the devices that McGee’s report

to law enforcement was intentionally false. She further

asserted that making a false report of child sexual abuse

exceeds the bounds of what is socially tolerable and is,

therefore, outrageous. She additionally argued that a jury

could likewise find that McGee either intended to cause

Buckmeyer severe distress by making that false report or

that he would have known that such a report was substan-

tially certain to cause such distress.

In its ruling from the bench, the trial court stated:

“With respect to the intentional infliction of emotional dis-

tress, I do find that there is not sufficient evidence of intent,

that McGee intended or knew with substantial certainty

that his false report would cause severe emotional distress.”

The court issued an order to that effect and dismissed the

IIED claim.1

1

At that point in the proceeding, the trial court denied defendants’ motions

for summary judgment directed to the negligence claim and with respect to defen-

dants’ statutory immunity defenses under ORS 163.693(4) and ORS 419B.025,

finding that material issues of fact remained.

Several months later, the court granted a new motion for summary judg-

ment in favor of defendants on the negligence claim because it found insufficient

evidence for a jury to find that the “report to police was unreasonable and or

negligently false.” The court also granted the motion “separately” for the reason

that without “physical impact” plaintiff was not entitled to recover noneconomic

damages on her negligence claim. The court later denied plaintiff’s motion to

file her proposed (fourth) amended complaint, and the case was subsequently

Cite as 340 Or App 21 (2025) 27

Challenging the dismissal of the IIED claim, plain-

tiff renews her arguments from below and contends that she

“presented the court with direct, circumstantial, and infer-

ential evidence from which an objectively reasonable juror

could find that McGee’s accusations were a fiction he knew

with substantial certainty would cause severe distress to

Buckmeyer[.]” She asks us to reverse the judgment as to the

IIED claim only.

Defendants ask us to affirm the trial court, arguing

that “the evidence in the summary judgment record does not

permit a reasonable jury to find that McGee engaged in out-

rageous conduct,” and that “the evidence * * * also will not

permit the findings required to * * * establish that McGee—

through outrageous conduct—either caused Buckmeyer

severe emotional distress or intended to do so.”

We conclude that the trial court did not give due

consideration to the ORCP 47 E declaration from plain-

tiff’s counsel, which would theoretically permit a finding

that McGee intentionally engaged in outrageous conduct,

therefore precluding summary judgment on plaintiff’s IIED

claim.2 We explain further below.

ANALYSIS

To prove her IIED claim, plaintiff had to establish

three elements: (1) defendants intended to cause Buckmeyer

severe emotional distress or knew with substantial certainty

that their conduct would cause such distress; (2) defendants

dismissed in its entirety. Plaintiff has not appealed any judgment incorporating

those rulings.

2

Defendants additionally argue that the trial court’s later grant of their

motion for summary judgment on the negligence claim, which plaintiff did not

appeal, forecloses a finding for plaintiff on the IIED claim, arguing that conduct

that is not even negligent certainly cannot be the basis for an IIED claim. We

reject that argument without discussion other than to note that the negligence

claim was dismissed based on a different record than was before the court at the

time the IIED claim was dismissed, and that the court offered other bases for

granting summary judgment for defendants on the negligence claim, indepen-

dent of the nature of McGee’s actions. As plaintiff would have had to prevail on all

independent bases in order to make an appeal of the dismissal of her negligence

claim viable, we do not consider the dismissal of the negligence claim and plain-

tiff’s decision not to appeal the judgment dismissing that claim to resolve the

issues before us concerning the IIED claim. Defendants do not point us to case

law in support of their assertion that the later ruling on the negligence claim is

preclusive on the IIED claim.

28 Anselmo v. Target Corp.

engaged in outrageous conduct, extraordinarily beyond the

bounds of socially tolerable behavior; and (3) defendants’

conduct in fact caused Buckmeyer to suffer severe emotional

distress. House, 218 Or App at 357-58.

To avoid summary judgment on a claim for relief, a

plaintiff must show the existence of a factual question on all

dispositive issues framed by the defendant’s motion. Towe v.

Sacagawea, Inc., 357 Or 74, 85-86, 347 P3d 766 (2015) (citing

Two Two v. Fujitec America, Inc., 355 Or 319, 326, 325 P3d

707 (2014), for the proposition that a “party seeking sum-

mary judgment frames issues on which party opposing sum-

mary judgment must show existence of factual question”);

ORCP 47 C.

The arguments raised below and before us indicate

that the parties agree that whether McGee’s conduct was

outrageous largely turns on his intent: an accurate or good-

faith (though ultimately incorrect) report would not be out-

rageous; an intentionally false report of child sexual abuse

would likely be sufficiently outrageous to support a claim.

Because plaintiff would bear the burden of proving all ele-

ments of the IIED claim at trial, ORCP 47 C required plain-

tiff to produce evidence on the issue of the outrageousness

of McGee’s conduct, in order to defeat summary judgment.

The intent element of IIED is often demonstrated by indi-

rect evidence. Mauri v. Smith, 135 Or App 662, 676, 901 P2d

247 (1995), cert den, 519 US 813, aff’d in part, rev’d in part

on other grounds, 324 Or 476, 929 P2d 307 (1996) (“[P]roof of

intent is almost inevitably circumstantial and inferential;

few defendants admit a specific intent to inflict [emotional

distress].”); see also Kalgaard v. Lindo Mar Adventure Club,

Ltd., 147 Or App 61, 67, 934 P2d 637 (1997) (“What moti-

vates a person to act seldom is susceptible of direct proof.

Proof of what motivates a person to act is almost always cir-

cumstantial and inferential.” (Internal citations omitted.)).

Therefore, the outrageousness of the conduct can support

an inference of intent to cause severe emotional distress, or

can demonstrate that an individual knew with substantial

certainty that their outrageous conduct would cause such

distress. Schoen v. Freightliner LLC, 224 Or App 613, 626,

199 P3d 332 (2008).

Cite as 340 Or App 21 (2025) 29

ORCP 47 C allows a plaintiff to “satisfy the burden

of producing evidence with an affidavit or a declaration under

section E of this rule.” ORCP 47 E, in turn, provides, in part:

“If a party, in opposing a motion for summary judgment, is

required to provide the opinion of an expert to establish a

genuine issue of material fact, an affidavit or a declaration

of the party’s attorney stating that an unnamed qualified

expert has been retained who is available and willing to

testify to admissible facts or opinions creating a question of

fact will be deemed sufficient to controvert the allegations

of the moving party and an adequate basis for the court to

deny the motion. The affidavit or declaration shall be made

in good faith based on admissible facts or opinions obtained

from a qualified expert who has actually been retained by

the attorney, who is available and willing to testify, and who

has actually rendered an opinion or provided facts that, if

revealed by affidavit or declaration, would be a sufficient

basis for denying the motion for summary judgment.”

As described above, plaintiff offered a declara-

tion pursuant to ORCP 47 E, but the trial court neverthe-

less granted defendants’ motion for summary judgment.

On appeal, plaintiff argues that the declaration was suffi-

cient to establish that there was a question of fact regard-

ing whether McGee’s report was made in good faith or was

intentionally fabricated. Defendant asserts that expert tes-

timony cannot offer any opinion about what McGee subjec-

tively believed when he made his report.

A lawyer’s ORCP 47 E affidavit should generally be

taken at “face value.” Hofer v. OHSU, 328 Or App 352, 361,

536 P3d 989 (2023). In Hinchman v. UC Market, LLC, 270 Or

App 561, 348 P3d 328 (2015), we explained that, although

expert testimony might be “required” to create a genuine

issue of material fact when issues raised in the defendant’s

motion are not within the knowledge of the ordinary lay

juror, “that is not the only circumstance in which expert

testimony might be required to establish a genuine issue of

material fact.” Id. at 569 (emphasis in original). Expert tes-

timony can be used to create a genuine issue of material fact

“if the point or points put at issue by the defendant’s sum-

mary judgment motion are ones that are susceptible to proof

through expert testimony, given the plaintiff’s particular

30 Anselmo v. Target Corp.

theory of [their] claim.” Id. at 570 (emphasis added); see also

Moore v. Kaiser Permanente, 91 Or App 262, 265, 754 P2d

615, rev den, 306 Or 661 (1988) (ORCP 47 E intended “to

enable parties to avoid summary judgment on any genuine

issue of material fact which may or must be proved by expert

evidence” (emphasis added)).

In this case, plaintiff’s theory of IIED was that

McGee made up the accusation of seeing child pornography

on Buckmeyer’s phone, and such an intentional fabrication

would constitute outrageous conduct that McGee would have

known with substantial certainty would inflict severe emo-

tional distress on Buckmeyer. That theory of the case impli-

cates at least one issue susceptible to proof by an expert:

what was contained on the phone at the time of the encoun-

ter at Target. If a forensic examination of Buckmeyer’s phone

could establish the contents of the phone as of that day, and

nothing on the phone could conceivably have been mistaken

for what McGee reported he saw, a factfinder could infer that

McGee invented the story and intentionally falsely reported

Buckmeyer for child pornography.3 ORCP 47 E requires the

trial court to presume that plaintiff had an expert will-

ing and able to testify in support of her theory that McGee

invented the story, even if plaintiff did not want to “reveal

the range or limits of the expert’s testimony.” Two Two, 355

Or at 329. Despite McGee maintaining in his deposition that

he did not make up the story and continued to believe he saw

what he reported, “[i]f the record contains facts that create

a plausible inference that a person’s statements about his or

her conduct are not true, summary judgment is inappropri-

ate.” Kalgaard, 147 Or App at 67.

3

We acknowledge that plaintiff faces the additional factual hurdle of demon-

strating that the phone examined by its expert was indeed the same phone that

Buckmeyer presented to McGee, as McGee did not record the serial number of the

phone he handled. We conclude that there is evidence in the record from which a

fact finder could infer that it was the same phone, though such a finding would

not be required. The phone McGee looked at was an iPhone 6S; the FBI seized an

iPhone 6S in its search of Buckmeyer’s apartment. Plaintiff stated in her deposi-

tion that Buckmeyer contacted her from a new number on the day his electronics

were seized by the FBI, as he had had to get a new phone. After he passed away,

only two phones were found in his apartment. Presumably plaintiff’s expert could

provide some evidence regarding the dates of usage of the phone examined to

show that it was in use on the date in question. Here, whether the forensic exam-

ination was of the same phone presented to McGee is a question of fact that is not

appropriately resolved on summary judgment.

Cite as 340 Or App 21 (2025) 31

The arguments raised below and before us focus on

whether there is sufficient evidence to establish a jury ques-

tion as to the first two elements of plaintiff’s IIED claim.4

Moreover, the parties appear to agree that the question

with respect to those two elements boils down to whether

the evidence is sufficient to support a finding that McGee

made his report knowing it was false or if instead he made

a report that was accurate or that he, in good faith, believed

to be accurate. Whether McGee accurately or in good faith

reported seeing child pornography or fabricated the alle-

gations goes to the second element of the IIED claim, the

outrageousness of the conduct: if he acted in good faith,

his actions were not outrageous; if he made up the report,

that is outrageous. In turn, if a fact finder concluded that

McGee did engage in the outrageous behavior of intention-

ally falsely reporting Buckmeyer for such heinous conduct,

the fact finder could also infer that the first element of the

IIED claim was satisfied: that McGee would have known

with substantial certainty that reporting someone for pos-

session of child pornography with no basis would cause that

person severe emotional distress.

Although defendants came forward with evidence

and arguments in support of their motion that might under-

mine plaintiff’s theory before a jury, nothing in those argu-

ments or evidence defeats plaintiff’s claim at the summary

judgment stage. A reasonable juror might be persuaded that

McGee would not have invented such a dramatic story about

a complete stranger with whom he had no history and no

motivation to harm; a juror could also conclude that, even

if McGee was wrong, he was simply mistaken, and not

intentionally lying; however, a juror might also reasonably

4

Defendant Target Corporation did not raise the third element of IIED,

whether the conduct in fact caused Buckmeyer to suffer severe emotional distress,

as a basis for summary judgment. Plaintiff therefore was not required to produce

evidence to create a material issue of fact as to that element in order to defeat

defendant Target Corporation’s summary judgment motion. Two Two, 355 Or at

326. Defendant MarketSource, Inc. argued in passing that the only evidence of

Buckmeyer’s actual severe emotional distress was “secondhand.” Regardless, on

appeal, neither Target Corporation nor MarketSource Inc. has raised any issue

as to the third element outside of contending that if there is no disputed issue of

fact on the second element (outrageous conduct), there can be no issue of fact as to

the third element (causation of severe emotional distress). As discussed above, we

conclude that there was a disputed issue of fact on the second element.

32 Anselmo v. Target Corp.

conclude that a complete lack of any photos resembling the

detailed images McGee reported to have seen indicates

that he invented the story, for whatever reason, and there-

fore acted outrageously. Accounting for plaintiff’s ORCP

47 E affidavit, there is sufficient evidence in the summary

judgment record to defeat defendants’ motion for summary

judgment. See, e.g., State v. Miller, 196 Or App 354, 358, 103

P3d 112 (2004), rev den, 338 Or 488 (2005) (“The inference

need not inevitably follow from the established facts; rather,

if the established facts support multiple reasonable infer-

ences, the jury may decide which inference to draw.”). What

occurred and McGee’s motives are questions for the jury,

regardless of his declaration to the contrary. See, e.g., Perry

v. Rein, 215 Or App 113, 127-28, 168 P3d 1163 (2007) (Where

the plaintiff’s evidence places the credibility of an affiant at

issue, the subjective belief of the affiant is not susceptible to

summary judgment.).

Reversed and remanded.