57 P.3d 914 | Or. Ct. App. | 2002
Plaintiffs, on separate occasions at separate Fred Meyer department stores, purchased merchandise and attempted to leave the stores. When four of the five plaintiffs attempted to leave the stores, an “electronic article surveillance” alarm went off and Fred Meyer employees stopped plaintiffs to determine if they had paid for their merchandise. They had. A Fred Meyer employee stopped the fifth plaintiff after he had left the store and asked him for a receipt showing that he had paid for food items that he consumed while in the store. A cashier confirmed that plaintiff paid for the items. Plaintiffs later brought this action against defendant Fred Meyer for false arrest. The case was tried to a jury, which found in favor of defendant. Plaintiffs then appealed, challenging the trial court’s failure to give two requested instructions. We affirm.
The two instructions that the trial court declined to give each related to what constitutes a “detention” for purposes of false arrest. As to detention generally, plaintiffs asked the trial court to instruct the jury that
“[t]he detention constituting an arrest may arise by detaining a person under an asserted authority to do so. The detention is complete if the person against whom and in whose presence the authority is asserted believes it to be valid, or is in doubt as to its validity, and submits to it.”
Plaintiffs also asked the trial court to instruct that a detention could be accomplished in the following specific way:
“Detention constituting an arrest may arise if a person is deprived of their property and is required to remain to regain possession of their property.”
The trial court gave neither of those instructions but gave this one instead:
“An arrest is the imposition of restraint on another person’s freedom of movement. The restraint may be accomplished by actual or apparent physical barriers, compulsive physical force, a threat to apply physical force, or assertion of legal authority. To be arrested, the plaintiff must reasonably believe that he or she is not free to leave. Whether*56 there has been * * * an arrest must be judged by the totality of the circumstances.”
Before closing argument and before instructing the jury, the trial court provided the parties’ counsel with a written copy of all of the instructions that it planned to give to the jury. The trial court specifically asked both counsel at that point whether they had any “objections, exceptions, clarifications, comments, [or] suggestions” with respect to the instructions that it was about to give. Plaintiffs’ counsel said that he had no objections. The trial court then instructed the jury. Afterwards, the trial court again asked the parties if they had any objections or wanted to preserve any issues on the record regarding the instructions. Plaintiffs’ counsel, for a second time, advised the court that plaintiffs had no objections. On appeal, however, plaintiffs assert that the trial court’s failure to give either of the requested instructions was reversible error.
For purposes of resolving plaintiffs’ challenges, the applicable legal principles are well settled. In general, to preserve a claim of error in the jury instructions, a party must specifically except to the trial court’s instructions and state the point of exception with particularity. ODOT v. Winters, 170 Or App 118, 125, 10 P3d 961 (2000), rev den, 332 Or 239, cert den, 534 US 996 (2001). When no instruction at all is given on the subject of a requested instruction, however, merely requesting an instruction on the subject adequately preserves a claim that the failure to give the requested instruction was error. Roberts v. Mitchell Bros., 289 Or 119, 129-30, 611 P2d 297 (1980). On the other hand, when, as in this case, the trial court gives an instruction on the subject, an express exception is required to preserve error unless the requested instruction is “clearly and directly” contrary to the given instruction, thereby calling the trial court’s attention to the alleged error. Id. at 131; Holland v. Srs. of St. Joseph, Seeley, 270 Or 129, 141, 526 P2d 577 (1974).
With regard to plaintiffs’ first requested instruction — which dealt with detention generally — plaintiffs assert summarily in their brief that the alleged error is preserved because they submitted the proposed instruction and the trial court refused to give it. As defendant correctly points out, in this case the trial court gave an instruction on the same subject matter. As a result, the request alone was not adequate to preserve error unless the proposed instruction, by its terms, was so “clearly and directly” contrary to the instruction given as to put the trial court on notice of any error in failing to give it. Defendant asserts in its brief that the requested instruction is not so inherently contrary that any asserted error in not giving it would have been obvious to the trial court. At oral argument, plaintiffs responded to
We need not decide whether plaintiffs are correct in that regard. The short answer to their argument is that it is self-defeating. If, as plaintiffs contend, the requested instruction “clearly and directly” incorporated a subjective rather than objective state of mind, then it was not a correct statement of Oregon law. In Oregon, a plaintiff in a false imprisonment action must reasonably believe that he or she has been detained. See, e.g., Lukas v. J. C. Penney Co., 233 Or 345, 353-54, 378 P2d 717 (1963) (restraint for false imprisonment may arise out of conduct that induces a reasonable apprehension of force or a reasonable fear of personal safety if plaintiff does not submit to the restraint); Roberts v. Coleman et al, 228 Or 286, 294, 365 P2d 79 (1961) (similar). The trial court’s refusal to give that proposed instruction therefore was not error.
We turn, then, to plaintiffs’ second requested instruction as to specific conduct that can constitute a detention. That instruction would have told the jury that a detention for purposes of false arrest may arise if a person is deprived of his or her property and is required to remain to regain its possession. The requested instruction thus included a specific factual circumstance not highlighted in the instruction that the court gave. We assume for purposes of discussion that the instruction adequately called the court’s attention to plaintiffs’ position that they were entitled to have the jury specifically so instructed. But we disagree that the failure to give the requested instruction was either error or prejudicial to plaintiffs.
First, the trial court’s instruction adequately stated the law, even if it did so in more general terms than plaintiffs
Second, and in all events, plaintiffs were not prejudiced by the trial court’s failure to give the requested instruction. After the trial court provided counsel with a written copy of the instructions that it proposed to give to the jury, plaintiffs’ counsel specifically argued to the jury that Fred Meyer employees detained some of the plaintiffs by seizing their property. For example, counsel argued:
“[A plaintiffs] bag then is taken out of her hands by the young blond woman who testified, put through scans, the alarm goes off. Come with me, you know what? That’s an assertion with [sic] authority.”
As that portion of the record demonstrates, plaintiffs were not foreclosed by the trial court’s instructions from presenting their theory to the jury.
In sum, the trial court did not err in failing to give either of plaintiffs’ requested instructions. Assuming that plaintiffs’ requested instruction on detention “clearly and directly” contradicted the instruction that the trial court gave by using a subjective rather than objective state of mind, it was not a correct statement of Oregon law. Plaintiffs’ second
Affirmed.
We frequently cite ORCP 59 H in discussing the preservation principles applicable to proposed instructions. See, e.g., Winters, 170 Or App at 125. That rule is not the source of those principles, however, but instead merely reflects them in a general way. The Oregon Rules of Civil Procedure govern procedure and practice only in the circuit courts of this state, unless the rules are expressly made applicable to other courts by rule or statute. ORCP 1. Consequently, the point of ORCP
“[section 59 H] is included as it does describe conduct in the trial court. It also provides a basis for new trial in ORCP 64 B(7). The Council cannot make rules of appellate procedure, and the question of preserving error on appeal is one determined by the appellate courts. On the question of whether failure to give a requested instruction preserves error in instructions given, see Holland *** and Becker v. Beaverton School Dist., 25 Or App 879[, 551 P2d 498] (1976).”
Council on Court Procedures, Staff Comment to ORCP 59, reprinted in Lisa A. Kloppenberg, Oregon Rules of Civil Procedure: 1997-1998 Handbook 184 (1997). Thus, ORCP 59 H serves only to reinforce appellate preservation principles and to alert trial counsel to them, rather than to dictate preservation rules for appellate courts.