Summary
This Oregon Court of Appeals opinion reverses a trial court's grant of summary judgment dismissing a plaintiff's intentional infliction of emotional distress claim against a retail corporation and its agent. The court held that the trial court failed to properly credit the plaintiff's ORCP 47 E declaration regarding retained expert testimony, which created a genuine issue of material fact as to whether the defendant's employee intentionally fabricated a report of child pornography possession. Consequently, the case was remanded for further proceedings on the IIED claim.
Topics
Practice areas
Questions Presented
- Whether the trial court properly granted summary judgment on the estate's intentional infliction of emotional distress claim based on an asserted lack of evidence that McGee intended to cause severe emotional distress or knew with substantial certainty that his conduct would cause it.
- Whether plaintiff's counsel's ORCP 47 E declaration was sufficient to create a genuine issue of material fact concerning whether McGee fabricated the report and whether the report was made in good faith.
Holdings
- Summary judgment was improper because the record, including plaintiff's ORCP 47 E declaration, permitted a reasonable jury to find that McGee intentionally fabricated the report, engaged in outrageous conduct, and knew with substantial certainty that the report would cause Buckmeyer severe emotional distress.
- An ORCP 47 E attorney declaration must generally be taken at face value and may defeat summary judgment when it represents that a retained expert can provide admissible facts or opinions creating a factual question on an issue susceptible to expert proof.
Key quotations
“A lawyer’s ORCP 47 E affidavit should generally be taken at “face value.”” (at 29)
“If 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 inappropriate.” (at 30)
“What occurred and McGee’s motives are questions for the jury, regardless of his declaration to the contrary.” (at 32)
Factual background
Jeffrey Buckmeyer gave his iPhone to Target employee McGee for technical assistance deleting a photo folder. McGee later reported that he had seen Buckmeyer naked and surrounded by bound children in photographs on the phone, prompting police and FBI investigation, a search warrant, and seizure of Buckmeyer's electronic devices. The FBI found no child-pornography images on the devices, Buckmeyer was never arrested or charged, and his estate alleged that McGee had fabricated the report and thereby caused severe emotional distress.
Procedural history
Patricia Anselmo, as personal representative of Jeffrey Buckmeyer's estate, brought claims arising from a Target employee's report to law enforcement that he had seen child pornography on Buckmeyer's phone. The Multnomah County Circuit Court granted summary judgment for defendants on the IIED claim and dismissed it. The Court of Appeals reversed that ruling and remanded; plaintiff did not appeal the separate dismissal of her negligence claim.
Remand instructions
Reverse the judgment dismissing the IIED claim and remand for further proceedings consistent with the opinion.