Oregon Case Law Update: Plaintiffs Can Be Barred from Recovery if Engaged in Felony

Oregon Case Law Update: Plaintiffs Can Be Barred from Recovery if Engaged in Felony
From the Desk of Matt Ukishima: Under Oregon law, a defense against personal injuries is when a plaintiff was injured while in the act of committing a Class A or B felony.  But, whose burden of proof is it to show a defendant used unjustifiable physical force causing a plaintiff injuries?  Read on to find out.
Claims Pointer: In this case arising out of a plaintiff who was injured after he shot a customer in a store and was tackled by store employees, the Oregon Court of Appeals held that the record established as a matter of law plaintiff’s injuries arose during the commission of a felony and was a substantial factor contributing to his injuries.  The court also held that once the defendant has established the plaintiff was in the act of committing a class A or B felony, plaintiff has to burden of proof to show that defendant’s force was unjustifiable.
Harryman v. Fred Meyer, 289 Or App 324 (2017)
Jerry Harryman (“Plaintiff”) was standing in the checkout line at Fred Meyer Inc. (“Fred Meyer”) when he got into an argument with a customer ahead of him.  The argument escalated into a physical fight, and Plaintiff pulled out a handgun and shot the other customer in the leg.  Fred Meyer employees responded by pushing Plaintiff to the floor and disarming him.  Plaintiff was convicted of assault in the second degree with a firearm, a Class B felony.  Afterwards, Plaintiff brought a personal injury suit against Fred Meyers for personal injuries sustained when Fred Meyer employees pushed him to the floor and disarmed him.  Plaintiff claimed that he shot the other customer in self-defense, and the employees were negligent in assuming he was the agressor and using excessive force to restrain him.  Fred Meyer asked the court to grant summary judgment and dismiss Plaintiff’s claim based on ORS 31.180, which provides a defense against personal injury claims if the injured party was engaged in conduct that constitutes a Class B felony.  The trial court agreed with Fred Meyer and dismissed Plaintiff’s claim. Plaintiff appealed.
In reviewing the trial court’s decision, the Oregon Court of Appeals looked at the relevant portions of ORS 31.180, which provides:

(1) It is a complete defense in any civil action for personal injury or wrongful death that:

(a) The person damaged was engaged in conduct at the time that would constitute aggravated murder, murder or a Class A or a Class B felony; and

(b) The felonious conduct was a substantial factor contributing to the injury or death.

(2) To establish the defense described in this section, the defendant must prove by a preponderance of the evidence the fact that the person damaged was engaged in conduct that would constitute aggravated murder, murder or a Class A or a Class B felony.

*****

 (5) The defense established by this section is not available if the injury or death resulted from the use of physical force that was not justifiable under the standards established by ORS 161.195 to 161.275.

Plaintiff brought forth two arguments for why ORS 31.180 should not apply as a defense.  First, he argued that the statute required him to be engaged in “conduct at the time,” meaning that the Class B felony must have been “ongoing at the time the injuries were inflicted.” (emphasis added).  He contended Plaintiff’s felony act had ended before he was pushed to the floor and injured by Fred Meyer employees.  That is, Fred Meyer was required to show the offense was ongoing at the time the injuries were inflicted.  Plaintiff argued that if the court were to interpret otherwise, it would allow police officers to assault a suspected felon “any time after the commission of the crime, without judicial recourse.”
In analyzing Plaintiff’s argument, the court looked at ORS 31.180 in context of the statutes that authorized the use of physical force.  Upon review, the court surmised that in enacting ORS 31.180, legislative had contemplated that the defense would extend to “injuries inflicted during a justifiable response to criminal conduct.”  The court said that in any event, there was no evidence suggesting that the altercation had ended when Fred Meyer employees knocked Plaintiff down to the floor.  Instead, the record shows Plaintiff had just shot a customer and was still armed when the employees knocked him down.  Accordingly, the court concluded that the injuries occurred “at the time” that Plaintiff was committing the Class B felony.
Plaintiff’s second argument was that Fred Meyer’s employees used excessive force on him, and as such, the ORS 31.180 defense should not apply.  Under ORS 31.180(5) this defense is not available “if the injury or death resulted from the use of physical force that was not justifiable under the standards established by ORS 161.195 to 161.275.”  The court held, in the absence of an explicit assignment, the burden is on the Plaintiff to prove the injury was caused by the use of force that was not justifiable.  In this case, Plaintiff failed to put forth any evidence on summary judgment that the physical force was not justified.  As a result, the Oregon Court of Appeals agreed with the trial court’s decision to grant Fred Meyer summary judgment and dismiss Plaintiff’s claim.
View full opinion at: http://www.publications.ojd.state.or.us/docs/A159913.pdf
Case updates are intended to inform our clients and others about legal matters of current interest. They are not intended as legal advice. Readers should not act upon the information contained in this article without seeking professional counsel.
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