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Harryman v. Fred Meyer, Inc.

Court of Appeals of Oregon

December 13, 2017

Jerry Thomas HARRYMAN, Plaintiff-Appellant,
v.
FRED MEYER, INC., a foreign corporation and Fred Meyer Stores, Inc., a foreign corporation, Defendants-Respondents, and William Monroe YOUNG, Defendant.

          Argued and submitted August 31, 2016

         Clackamas County Circuit Court CV14080506; A159913 Deanne L. Darling, Judge.

          Harrison Latto argued the cause and fled the briefs for appellant.

          Leora Coleman-Fire argued the cause for respondents. With her on the brief were Jeffrey S. Eden and Schwabe, Williamson & Wyatt, P.C.

          Before Egan, Presiding Judge, and Armstrong, Judge, and Lagesen, Judge.

         Case Summary: Plaintiff appeals a judgment for defendant in a personal-injury action. Plaintiff shot another person in the leg while during an altercation at defendant's store, and plaintiff was convicted of second-degree assault as a result of the incident. Plaintiff brought a damages action against defendant, alleging that, after the shooting, defendant's employees injured plaintiff when they pushed him to the floor and disarmed him. The trial court concluded that defendant was entitled to summary judgment based on ORS 31.180(1), which provides a complete defense to a personal-injury action if the "person damaged was engaged in conduct at the time that would constitute * * * a Class B felony." On appeal, plaintiff assigns error to that ruling, arguing that the defense applies only when the felony is ongoing at the time of the injury and that, when defendant's [289 Or. 325] employees allegedly injured plaintiff, plaintiff had already committed second-degree assault. Plaintiff also argues that defendant failed to prove that the force used by its employees was justifiable, as is required by ORS 31.180(5). Held: The trial court did not err. First, the record establishes as a matter of law that plaintiff's injuries occurred "at the time" of the commission of the crime. Second, plaintiff had the burden to prove that defendant's employees used force that was not justifiable, and he did not offer any evidence bearing on that fact. Accordingly, the trial court did not err in granting defendant's motion for summary judgment.

         [289 Or. 326] EGAN, P. J.

         In this personal injury action, plaintiff appeals a judgment for defendant Fred Meyer, Inc., challenging the trial court's granting of defendant's motion for summary judgment based on ORS 31.180, which provides that it is a defense to a personal injury action that the "person damaged was engaged in conduct at the time that would constitute * * * a Class B felony." We conclude that the trial court did not err and therefore affirm.

         In reviewing the trial court's ruling, we view the evidence in the record on summary judgment in the light most favorable to plaintiff, the nonmoving party, to determine whether there are genuine issues of material fact that preclude summary judgment and whether defendant was entitled to judgment as a matter of law. ORCP 47 C.

         The underlying facts are largely undisputed. Plaintiff was waiting in the checkout line at defendant's store when he and Young, who was ahead of plaintiff in line, engaged in an argument that escalated into a physical fight.[1] Plaintiff, who had a handgun, shot Young in the leg. Defendant's employees responded by pushing plaintiff to the floor and disarming him. As a result of his act of shooting Young, plaintiff was convicted in November 2013 of assault in the second degree with a firearm, ORS 163.175, [2] a Class B felony, for which he was sentenced to a mandatory minimum prison term of 70 months. We affirmed plaintiff's conviction. State v. Harryman, 277 Or.App. 346, 371 P.3d 1213, rev den, 360 Or. 401 (2016).

         [289 Or. 327] In 2014, plaintiff brought this action, seeking damages for injuries he claims to have sustained when defendant's employees pushed him to the floor and disarmed him. Plaintiff's theory was that Young had assaulted him, and that he had acted in self-defense in shooting Young. Defendant's employees were negligent, plaintiff alleged, in assuming that plaintiff was the aggressor and in using unnecessary and excessive force to restrain him. Plaintiff alleged:

"Employees of [defendant], acting in the ordinary course of their employment * * *, responded to the assault of * * * [Young] against plaintiff by physically taking plaintiff into their control and disarming him. In the course of restraining and disarming plaintiff, such employees also negligently or intentionally caused physical injuries to plaintiff, by using unnecessary and excessive force, by throwing him on the concrete floor, striking him in the head and body, and pressing his body to the floor."

         Defendant filed a motion for summary judgment contending, among other arguments, that plaintiff's claim is barred by ...


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