Buckel v. Nunn

955 P.2d 303, 152 Or. App. 664, 1998 Ore. App. LEXIS 261
CourtCourt of Appeals of Oregon
DecidedFebruary 25, 1998
Docket91-CV-0348; CA A95293
StatusPublished

This text of 955 P.2d 303 (Buckel v. Nunn) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buckel v. Nunn, 955 P.2d 303, 152 Or. App. 664, 1998 Ore. App. LEXIS 261 (Or. Ct. App. 1998).

Opinion

EDMONDS, J.

Plaintiff appeals after the jury rendered a verdict for defendants Ron and Dennis Nunn. Defendants also make two cross-assignments of error, contending that the trial court erred in granting partial summary judgment to plaintiff and in denying their motion for summary judgment that plaintiffs claims are barred as a matter of law. ORCP 47. We affirm.

In 1991, plaintiff brought an action alleging false imprisonment, intentional infliction of emotional distress and reckless infliction of emotional distress against Ron Nunn, Dennis Nunn, Steve Rodriguez, doing business as S&S Security, and Richard Rowe, Rodriguez’s employee. Ron Nunn is the owner of the Town & Country Market, where plaintiff was employed as a part-time grocery clerk. Dennis Nunn is the store’s manager. Dennis contracted with S&S Security to investigate alleged employee thefts at the market. During November and December 1989, S&S Security conducted an investigation. As part of its investigation, Rodriguez and Rowe confined plaintiff in a room and interrogated her for three hours, repeatedly accusing her of stealing from the market. At first, plaintiff claimed that she was innocent of any wrongdoing. However, she eventually confessed to taking merchandise, lottery tickets and cash from the market.

Dennis remained in the market and near the room in which the interrogation occurred. During the interrogation, one of the security officers frequently left the room to confer with Dennis about items that were allegedly missing and to request that Dennis add up the cost of the merchandise that plaintiff had admitted stealing. Plaintiff also wrote a letter to Ron and Dennis apologizing for her actions and then signed a promissory note for $9,000, representing the amount that she had admitted stealing. After plaintiff refused to make any payments on the note, she was prosecuted criminally for theft in the second degree and was eventually acquitted.

Plaintiff then brought this action alleging that Dennis and Ron Nunn hired S&S Security to investigate thefts from the market.1 She sought damages against the Nunns, [667]*667Rodriguez and Rowe. The case went to trial, and at the close of the evidence, the Nunns moved for a directed verdict on the ground that they were not vicariously liable, because the security officers were acting as independent contractors. The trial court granted the motion. Thereafter, the jury returned a verdict against the security officers in the amount of $80,790, and a judgment was entered against them. We affirmed the judgment on appeal. Buckel v. Nunn, 133 Or App 399, 891 P2d 16 (1995). Plaintiff appealed the trial court’s ruling regarding the Nunn’s motion for a directed verdict. On appeal, we reversed and remanded for a new trial as to the Nunns, holding that an issue of fact existed as to whether the security officers were independent contractors and whether their actions were imputable to the Nunns on the basis of vicarious liability. Buckel v. Nunn, 131 Or App 121, 128-29, 883 P2d 878 (1994).

After remand to the trial court, plaintiff filed an amended complaint. She alleged for the first time that “Dennis Nunn substantially assisted the security officers, and acted in-concert with them, in such confinement and interrogation.”2 We regard that allegation as an allegation that [668]*668Dennis was a co-actor in the commission of the torts. The Nunns responded by filing an amended answer in which they claimed, by way of an affirmative defense, that plaintiffs exclusive remedy was barred by the workers’ compensation provisions of ORS 656.018 and ORS 656.156.

The Nunns then moved for summary judgment under ORS 656.018 and ORS 656.156. The trial court denied their motion, and that ruling is one of the grounds that they cross-assign as error. Plaintiff also moved for partial summary judgment and argued that, because the issue of liability and damages had already been adjudicated in the first trial against the security officers, the only issues remaining were whether the Nunns had a right to control the security officers and whether Dennis had acted in concert with them. The trial court ruled that because the Nunns were parties in the first trial, they had had an opportunity to fully litigate the issue of whether the security officers had engaged in tortious conduct. The court also ruled that, even if the Nunns were not “parties” at the time that the jury decided the case against the security officers, they were in privity with the security officers, and, therefore, the jury verdict on that issue was binding against them. After the trial court’s pretrial rulings, the issues left for trial included whether Ron was vicariously liable for the conduct of the security officers and the conduct of Dennis, as well as whether Dennis had acted in concert with the security officers and, therefore, was directly liable.

At trial, plaintiff testified that Dennis had been present during the confinement and interrogation and that he had participated by supplying information to Rowe and Rodriguez. She testified that, during this time, Dennis never told her that she could leave, and she contended that she only admitted to the thefts so that she could end her confinement and the interrogation. The Nunns offered plaintiffs written apology into evidence, and plaintiff objected on the ground that it was no longer relevant evidence in light of the trial court’s ruling that the fact that the security officers had committed the torts had already been adjudicated adversely against the Nunns. The Nunns explained to the court that the letter “contravenes [the] perception that [plaintiff] was just doing things to get out of there.” They argued that the [669]*669detail in the letter belied the suggestion that plaintiff wrote the letter to expedite her release. The trial court admitted the evidence for that sole purpose.

On appeal, plaintiff assigns the trial court’s ruling as error, arguing that the letter was not admissible because extrinsic evidence cannot be used to impeach a witness’ testimony on a collateral matter and that the letter was more prejudicial than probative. OEC 403.3 “Plaintiff submits that her right to avoid relitigation of the [apology] was a substantial right.” In their cross-assignments of error, the Nunns argue that the trial court erred in denying their motion for summary judgment on the ground that plaintiffs exclusive claim is under the Workers’ Compensation Laws and that it erred in granting plaintiffs motion for partial summary judgment precluding them from litigating whether the security officers had committed the torts as alleged.

Because the Nunn’s summary judgment argument regarding the Workers’ Compensation Law is potentially dis-positive, we discuss it first. ORS 656.018 provides that the liability of every employer who complies with the Workers’ Compensation Law is exclusive and in place of all other liability for injuries arising out of and in the course of employment.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

John N. Sheagren, M.D., P.C. v. Albrecht
860 P.2d 868 (Court of Appeals of Oregon, 1993)
State Farm Fire & Casualty Co. v. Reuter
700 P.2d 236 (Oregon Supreme Court, 1985)
Buckel v. Nunn
883 P.2d 878 (Court of Appeals of Oregon, 1994)
Buckel v. Nunn
891 P.2d 16 (Court of Appeals of Oregon, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
955 P.2d 303, 152 Or. App. 664, 1998 Ore. App. LEXIS 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buckel-v-nunn-orctapp-1998.