Box v. Oregon State Police, 492 P.3d 685

Background

OSP Troopers Smyth and West responded to a 9‑1‑1 domestic assault report concerning Robert Box; they drove to Box’s rural property, parked on the road, and approached on foot at night.
The troopers concealed themselves behind trees lining the driveway, bypassed the lit front porch ramp, and advanced toward the rear patio/workshop area.
Smyth and West saw Box, observed a handgun in his pants pocket, and within seconds Smyth fired seven rounds (five struck Box) and West fired four rounds (two struck Box); Box died; he never fired.
Plaintiff (Box’s estate) sued the State for (1) negligence (tactical approach and negligent supervision/retention of Smyth for known “tunnel vision”/stress response) and (2) trespass (entry into protected curtilage).
At summary judgment the trial court denied plaintiff’s partial summary judgment on trespass, granted defendant summary judgment, concluding plaintiff’s ORCP 47 E declaration raised negligence issues but that apparent‑authority immunity barred liability.
The Court of Appeals reversed and remanded: it held apparent‑authority immunity did not apply to the preshooting tactical and supervisory claims, the ORCP 47 E declaration was adequate to create triable issues on causation, and the troopers trespassed as a matter of law.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether apparent‑authority immunity bars negligence claims (preshooting tactics; negligent supervision/retention).	Appellant: No—there is no evidence troopers or supervisors relied on statutes to justify the tactical or supervisory choices at issue.	Respondent: Yes—the troopers acted under plausible interpretations of statutes ("shall arrest" and deadly‑force statutes) and are immune under ORS 30.265(6)(f).	Reversed: immunity does not apply. No record evidence that troopers or supervisors relied on those laws for the preshooting tactical or retention decisions; statutes could not plausibly authorize the challenged conduct.
Sufficiency of ORCP 47 E declaration to defeat summary judgment on causation.	Appellant: ORCP 47 E affidavit properly preserved an unnamed expert who would create issues of fact on negligence and causation.	Respondent: Expert testimony could not establish causation as a matter of law; ORCP 47 E therefore insufficient.	Affirmed: ORCP 47 E declaration was sufficient to controvert defendant’s allegations; causation is triable and expert testimony could be relevant.
Whether the troopers were trespassers as a matter of law.	Appellant: Yes—the troopers exceeded implied consent (approach to front door) when they hid, bypassed the front porch and entered other curtilage areas without warrant, consent, or exigency.	Respondent: No—implied consent/existing case law (Gabbard) and exigent circumstances justified their approach.	Reversed (partial summary judgment for plaintiff): Troopers trespassed as a matter of law—no exigency or express consent; implied consent to approach only covers reasonable approach to front door and does not extend to the rear patio/workshop here; Gabbard was distinguishable.
Whether preshooting trespass/negligence can be causation as a matter of law (defendant’s Joshi argument).	Appellant: Yes—preshooting negligence and trespass created the circumstances that made lethal force probable; those acts may be a but‑for or substantial cause.	Respondent: No—any preshooting conduct only increased the risk of death; as in Joshi, increased risk alone is legally insufficient.	Rejected defendant’s absolute rule: The court held Joshi is distinguishable; plaintiff may show causation by reasonable probability or as a substantial factor and the record contains reasonable inferences supporting causation.

Key Cases Cited

Cruz v. Multnomah County, 279 Or App 1 (clarifies apparent‑authority immunity standard under ORS 30.265(6)(f))
Joshi v. Providence Health System, 342 Or 152 (wrongful‑death causation; increased risk alone insufficient in those facts)
Two Two v. Fujitec America, Inc., 355 Or 319 (ORCP 47 E affidavits generally sufficient to controvert summary‑judgment motions)
Hinchman v. UC Market, LLC, 270 Or App 561 (scope of expert identity protection and ORCP 47 E context)
State v. Gabbard, 129 Or App 122 (approaching occupant vs. front‑door approach; facts where approach away from front door was reasonable)
State v. Ohling, 70 Or App 249 (warrantless entry into curtilage is trespass absent privilege or exception)
State v. Pierce, 226 Or App 336 (curtilage receives strong constitutional protection; exigent circumstances exceptions explained)
Collier v. City of Portland, 57 Or App 341 (police entry without privilege is trespass)