Anselmo v. Target Corp.

No. 354                      April 23, 2025                             21

           IN THE COURT OF APPEALS OF THE
                   STATE OF OREGON

                     Patricia ANSELMO,
          as Personal Representative for the Estate of
                      Jeffrey Buckmeyer,
                      Plaintiff-Appellant,
                                v.
                   TARGET COPORATION
                   and Marketsource, Inc.,
                   Defendants-Respondents,
                              and
                         John DOE #1
                       and John Doe #2,
                          Defendants.
               Multnomah County Circuit Court
                     19CV37823; A179624
   Judith H. Matarazzo, Judge. (Judgment of Dismissal)
  Tom Ryan, Judge. (Order on Defendants’ Joint Motion for
Summary Judgment)
   Argued December 21, 2023.
   Kelly D. Jones argued the cause for appellant. Also on
the opening brief were Michael Fuller, OlsenDaines, and
The Law Office of Kelly D. Jones. On the reply brief were
Michael Fuller and OlsenDaines.
   William E. Corum, Missouri, argued the cause for
respondents. Also on the brief were Husch Blackwell, LLP,
Missouri, and Mackenzie B. Schmitt, Brisbee & Stockton,
LLC, Liani J. Reeves, and Bullard Law.
  Before Shorr, Presiding Judge, Lagesen, Chief Judge and
Pagán, Judge.*
   SHORR, P. J.
   Reversed and remanded.
______________
   * Lagesen, Chief Judge vice Hadlock, Judge pro tempore; Pagán, Judge vice
Mooney, Senior Judge.
22   Anselmo v. Target Corp.
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         SHORR, P. J.
         Plaintiff appeals the general judgment of dismissal
entered after the trial court granted summary judgment in
favor of defendants, assigning error solely to the ruling that
led to the dismissal of her intentional infliction of emotional
distress (IIED) claim. Plaintiff filed this lawsuit as personal
representative of her former husband’s (Jeffrey Buckmeyer’s)
estate, seeking damages for alleged injuries that Buckmeyer
sustained when defendants’ agent, McGee, allegedly falsely
reported that he saw pornographic photographs of Buckmeyer
with children on Buckmeyer’s iPhone. We conclude that the
trial court erred in granting defendants’ motion for summary
judgment and dismissing the IIED claim. As explained below,
in granting summary judgment, the trial court did not properly credit an ORCP 47 E declaration from plaintiff’s counsel
that created an issue of material fact.
                  STANDARD OF REVIEW
          This is a civil case in which the parties have a right
to trial by jury. Or Const, Art I, § 17. To summarily defeat
plaintiff’s IIED claim, without a jury trial, defendants must
have established that there were no genuine issues of material fact for a jury to decide and that they were entitled to prevail as a matter of law. ORCP 47 C. Faced with defendants’
motion, plaintiff had the burden to produce evidence on any
issue properly raised by that motion on which she would have
the burden of persuasion at trial. Fields v. City of Newport,

, 

, rev den, 

 (2023).
We review the trial court’s decision to grant summary judgment for legal error, viewing the facts in the light most favorable to the nonmoving party, here, plaintiff. 

                             FACTS
         One day in late July 2018, Buckmeyer entered the
electronics department of one of defendant Target Corporation’s
stores and requested technical assistance to “free up space”
on his iPhone. Defendants’ employee or agent, McGee, stepped
up to assist Buckmeyer. McGee and Buckmeyer did not know
each other, and there is no evidence that they had ever met
each other before that encounter. Buckmeyer asked McGee
how to delete a folder of photographs on his iPhone 6S, and
24                                 Anselmo v. Target Corp.

he handed his phone to McGee. As McGee scrolled through
the “photos” app on Buckmeyer’s iPhone, he encountered an
album labeled “business” and asked Buckmeyer if that was
the folder he wanted to delete. Buckmeyer confirmed that it
was. Although the album appeared to be secure, McGee was
able to open it without a password. The album indicated that
it contained over a thousand images, with about 20 of those
images appearing together on the iPhone screen in “gallery”
mode. McGee later reported that he observed Buckmeyer
in many of those images, naked, with an erect penis, and
surrounded by young children, of different races, tied and
bound with some sort of black material. He did not mention
his observation to Buckmeyer but proceeded instead to tell
Buckmeyer how to delete the photos, and he returned the
iPhone to Buckmeyer. McGee did not write down the serial
number or any other identifying information about the phone.
Buckmeyer left the electronics department, made a purchase,
and eventually exited the store.
          McGee went to speak with someone in Human
Resources who, in turn, took him to speak with John
Robinson, Executive Leader in the loss prevention office.
According to Robinson’s deposition, McGee looked as if he
had “just … seen a horror movie[.]” McGee told Robinson
“that he was assisting someone and that he saw some disturbing pictures on [that] person’s phone.” Robinson asked
for clarification of what he saw, and McGee “said he saw pictures he thought of naked young girls.” Robinson pulled up
security footage that depicted McGee “speaking with someone at the electronics counter” and McGee confirmed that
the person in the footage was the one with the disturbing
photos on his iPhone. Buckmeyer was later identified as the
customer with the iPhone.
        Either Robinson or McGee called the Tigard Police
to report what McGee had seen. Officer Tillotson responded
and interviewed McGee in Robinson’s office. Tillotson documented that interview in a police incident report, recording McGee’s reports of what he claimed to have seen on the
phone. Tillotson then consulted with Tigard Police Detective
Yonsoo Lee, who served as a Task Force Officer with the
Federal Bureau of Investigation (FBI) and was trained in
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investigating crimes related to child pornography. Lee
went to the Target store that same day and interviewed
Robinson and McGee. After concluding those interviews,
Lee “determined that there was probable cause to believe
that [Buckmeyer] was in possession of child pornography.”
Several days later, Lee sought and obtained a warrant to
search Buckmeyer’s home, vehicle, and electronic devices.
He and other officers executed the warrant a week later and
seized three electronic devices, including an iPhone 6S.
         The seized devices were analyzed by the FBI, which,
after a number of months, determined that the devices did
not contain any pornographic images involving children or
otherwise. The devices were returned to Buckmeyer, and he
was not arrested or charged with any crimes. Buckmeyer
died several months later, and the FBI closed its file.
               PROCEDURAL BACKDROP
         Although this is a fairly complex civil case, actively
litigated below, plaintiff assigns error solely to the trial
court’s granting of summary judgment in favor of defendants on her IIED claim.
         Defendants moved for summary judgment on plaintiff’s IIED claim, asserting an absence of evidence that
McGee had intended to cause any harm to Buckmeyer, an
element of the IIED claim. See, e.g., House v. Hicks, 

, 

, rev den, 

 (2008)
(discussing the elements of IIED, including that a defendant
“intended to cause [the] plaintiff severe emotional distress
or knew with substantial certainty that their conduct would
cause such distress”). Defendants argued that Buckmeyer
was a stranger to McGee and that there was simply no
evidence, direct or circumstantial, to support a finding
that McGee had fabricated the report or intended to inflict
emotional distress on Buckmeyer. They presented McGee’s
deposition testimony that he genuinely believed that he
saw child pornography on Buckmeyer’s phone. They further
argued that child abuse reporting statutes immunize those
who report abuse in good faith and that, at a minimum,
those statutes reflect a social norm in favor of reporting over
not reporting suspected abuse.
26                                              Anselmo v. Target Corp.

         Plaintiff responded that material issues of fact
existed on the question of intent. She argued that a jury
could find that McGee did not tell the truth about what he
saw on Buckmeyer’s iPhone, casting McGee’s story about
the amount of detail he observed as implausible and noting
the FBI’s inability to find any pornographic images involving children on the seized devices. Her counsel additionally
submitted an ORCP 47 E declaration, stating:
         “The estate has retained an expert whose opinions and
     facts create issues of fact and defeat summary judgment as
     to the issues raised [in] Target and MarketSource’s motions,
     including the veracity of McGee’s accusations, whether his
     reporting was in good faith, and McGee’s potential statutory immunity.”
Plaintiff argued that a jury could infer from the absence
of pornographic images on the devices that McGee’s report
to law enforcement was intentionally false. She further
asserted that making a false report of child sexual abuse
exceeds the bounds of what is socially tolerable and is,
therefore, outrageous. She additionally argued that a jury
could likewise find that McGee either intended to cause
Buckmeyer severe distress by making that false report or
that he would have known that such a report was substantially certain to cause such distress.
          In its ruling from the bench, the trial court stated:
“With respect to the intentional infliction of emotional distress, I do find that there is not sufficient evidence of intent,
that McGee intended or knew with substantial certainty
that his false report would cause severe emotional distress.”
The court issued an order to that effect and dismissed the
IIED claim.1

     1
       At that point in the proceeding, the trial court denied defendants’ motions
for summary judgment directed to the negligence claim and with respect to defendants’ statutory immunity defenses under ORS 163.693(4) and ORS 419B.025,
finding that material issues of fact remained.
     Several months later, the court granted a new motion for summary judgment in favor of defendants on the negligence claim because it found insufficient
evidence for a jury to find that the “report to police was unreasonable and or
negligently false.” The court also granted the motion “separately” for the reason
that without “physical impact” plaintiff was not entitled to recover noneconomic
damages on her negligence claim. The court later denied plaintiff’s motion to
file her proposed (fourth) amended complaint, and the case was subsequently
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         Challenging the dismissal of the IIED claim, plaintiff renews her arguments from below and contends that she
“presented the court with direct, circumstantial, and inferential evidence from which an objectively reasonable juror
could find that McGee’s accusations were a fiction he knew
with substantial certainty would cause severe distress to
Buckmeyer[.]” She asks us to reverse the judgment as to the
IIED claim only.
         Defendants ask us to affirm the trial court, arguing
that “the evidence in the summary judgment record does not
permit a reasonable jury to find that McGee engaged in outrageous conduct,” and that “the evidence … also will not
permit the findings required to … establish that McGee—
through outrageous conduct—either caused Buckmeyer
severe emotional distress or intended to do so.”
         We conclude that the trial court did not give due
consideration to the ORCP 47 E declaration from plaintiff’s counsel, which would theoretically permit a finding
that McGee intentionally engaged in outrageous conduct,
therefore precluding summary judgment on plaintiff’s IIED
claim.2 We explain further below.
                                 ANALYSIS
         To prove her IIED claim, plaintiff had to establish
three elements: (1) defendants intended to cause Buckmeyer
severe emotional distress or knew with substantial certainty
that their conduct would cause such distress; (2) defendants
dismissed in its entirety. Plaintiff has not appealed any judgment incorporating
those rulings.
     2
       Defendants additionally argue that the trial court’s later grant of their
motion for summary judgment on the negligence claim, which plaintiff did not
appeal, forecloses a finding for plaintiff on the IIED claim, arguing that conduct
that is not even negligent certainly cannot be the basis for an IIED claim. We
reject that argument without discussion other than to note that the negligence
claim was dismissed based on a different record than was before the court at the
time the IIED claim was dismissed, and that the court offered other bases for
granting summary judgment for defendants on the negligence claim, independent of the nature of McGee’s actions. As plaintiff would have had to prevail on all
independent bases in order to make an appeal of the dismissal of her negligence
claim viable, we do not consider the dismissal of the negligence claim and plaintiff’s decision not to appeal the judgment dismissing that claim to resolve the
issues before us concerning the IIED claim. Defendants do not point us to case
law in support of their assertion that the later ruling on the negligence claim is
preclusive on the IIED claim.
28                                  Anselmo v. Target Corp.

engaged in outrageous conduct, extraordinarily beyond the
bounds of socially tolerable behavior; and (3) defendants’
conduct in fact caused Buckmeyer to suffer severe emotional
distress. House, 

.
         To avoid summary judgment on a claim for relief, a
plaintiff must show the existence of a factual question on all
dispositive issues framed by the defendant’s motion. Towe v.
Sacagawea, Inc., 

, 

 (2015) (citing
Two Two v. Fujitec America, Inc., 

, 

 (2014), for the proposition that a “party seeking summary judgment frames issues on which party opposing summary judgment must show existence of factual question”);
ORCP 47 C.
          The arguments raised below and before us indicate
that the parties agree that whether McGee’s conduct was
outrageous largely turns on his intent: an accurate or goodfaith (though ultimately incorrect) report would not be outrageous; an intentionally false report of child sexual abuse
would likely be sufficiently outrageous to support a claim.
Because plaintiff would bear the burden of proving all elements of the IIED claim at trial, ORCP 47 C required plaintiff to produce evidence on the issue of the outrageousness
of McGee’s conduct, in order to defeat summary judgment.
The intent element of IIED is often demonstrated by indirect evidence. Mauri v. Smith, 

, 

 (1995), cert den, 

, aff’d in part, rev’d in part
on other grounds, 

, 

 (1996) (“[P]roof of
intent is almost inevitably circumstantial and inferential;
few defendants admit a specific intent to inflict [emotional
distress].”); see also Kalgaard v. Lindo Mar Adventure Club,
Ltd., 

, 

 (1997) (“What motivates a person to act seldom is susceptible of direct proof.
Proof of what motivates a person to act is almost always circumstantial and inferential.” (Internal citations omitted.)).
Therefore, the outrageousness of the conduct can support
an inference of intent to cause severe emotional distress, or
can demonstrate that an individual knew with substantial
certainty that their outrageous conduct would cause such
distress. Schoen v. Freightliner LLC, 

,

 (2008).
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         ORCP 47 C allows a plaintiff to “satisfy the burden
of producing evidence with an affidavit or a declaration under
section E of this rule.” ORCP 47 E, in turn, provides, in part:
   “If a party, in opposing a motion for summary judgment, is
   required to provide the opinion of an expert to establish a
   genuine issue of material fact, an affidavit or a declaration
   of the party’s attorney stating that an unnamed qualified
   expert has been retained who is available and willing to
   testify to admissible facts or opinions creating a question of
   fact will be deemed sufficient to controvert the allegations
   of the moving party and an adequate basis for the court to
   deny the motion. The affidavit or declaration shall be made
   in good faith based on admissible facts or opinions obtained
   from a qualified expert who has actually been retained by
   the attorney, who is available and willing to testify, and who
   has actually rendered an opinion or provided facts that, if
   revealed by affidavit or declaration, would be a sufficient
   basis for denying the motion for summary judgment.”
         As described above, plaintiff offered a declaration pursuant to ORCP 47 E, but the trial court nevertheless granted defendants’ motion for summary judgment.
On appeal, plaintiff argues that the declaration was sufficient to establish that there was a question of fact regarding whether McGee’s report was made in good faith or was
intentionally fabricated. Defendant asserts that expert testimony cannot offer any opinion about what McGee subjectively believed when he made his report.
         A lawyer’s ORCP 47 E affidavit should generally be
taken at “face value.” Hofer v. OHSU, 

,

 (2023). In Hinchman v. UC Market, LLC, 

, 

 (2015), we explained that, although
expert testimony might be “required” to create a genuine
issue of material fact when issues raised in the defendant’s
motion are not within the knowledge of the ordinary lay
juror, “that is not the only circumstance in which expert
testimony might be required to establish a genuine issue of
material fact.” 

 (emphasis in original). Expert testimony can be used to create a genuine issue of material fact
“if the point or points put at issue by the defendant’s summary judgment motion are ones that are susceptible to proof
through expert testimony, given the plaintiff’s particular
30                                              Anselmo v. Target Corp.

theory of [their] claim.” 

 (emphasis added); see also
Moore v. Kaiser Permanente, 

, 

, rev den, 

 (1988) (ORCP 47 E intended “to
enable parties to avoid summary judgment on any genuine
issue of material fact which may or must be proved by expert
evidence” (emphasis added)).
         In this case, plaintiff’s theory of IIED was that
McGee made up the accusation of seeing child pornography
on Buckmeyer’s phone, and such an intentional fabrication
would constitute outrageous conduct that McGee would have
known with substantial certainty would inflict severe emotional distress on Buckmeyer. That theory of the case implicates at least one issue susceptible to proof by an expert:
what was contained on the phone at the time of the encounter at Target. If a forensic examination of Buckmeyer’s phone
could establish the contents of the phone as of that day, and
nothing on the phone could conceivably have been mistaken
for what McGee reported he saw, a factfinder could infer that
McGee invented the story and intentionally falsely reported
Buckmeyer for child pornography.3 ORCP 47 E requires the
trial court to presume that plaintiff had an expert willing and able to testify in support of her theory that McGee
invented the story, even if plaintiff did not want to “reveal
the range or limits of the expert’s testimony.” Two Two, 

. Despite McGee maintaining in his deposition that
he did not make up the story and continued to believe he saw
what he reported, “[i]f the record contains facts that create
a plausible inference that a person’s statements about his or
her conduct are not true, summary judgment is inappropriate.” Kalgaard, 

.
    3
       We acknowledge that plaintiff faces the additional factual hurdle of demonstrating that the phone examined by its expert was indeed the same phone that
Buckmeyer presented to McGee, as McGee did not record the serial number of the
phone he handled. We conclude that there is evidence in the record from which a
fact finder could infer that it was the same phone, though such a finding would
not be required. The phone McGee looked at was an iPhone 6S; the FBI seized an
iPhone 6S in its search of Buckmeyer’s apartment. Plaintiff stated in her deposition that Buckmeyer contacted her from a new number on the day his electronics
were seized by the FBI, as he had had to get a new phone. After he passed away,
only two phones were found in his apartment. Presumably plaintiff’s expert could
provide some evidence regarding the dates of usage of the phone examined to
show that it was in use on the date in question. Here, whether the forensic examination was of the same phone presented to McGee is a question of fact that is not
appropriately resolved on summary judgment.
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         The arguments raised below and before us focus on
whether there is sufficient evidence to establish a jury question as to the first two elements of plaintiff’s IIED claim.4
Moreover, the parties appear to agree that the question
with respect to those two elements boils down to whether
the evidence is sufficient to support a finding that McGee
made his report knowing it was false or if instead he made
a report that was accurate or that he, in good faith, believed
to be accurate. Whether McGee accurately or in good faith
reported seeing child pornography or fabricated the allegations goes to the second element of the IIED claim, the
outrageousness of the conduct: if he acted in good faith,
his actions were not outrageous; if he made up the report,
that is outrageous. In turn, if a fact finder concluded that
McGee did engage in the outrageous behavior of intentionally falsely reporting Buckmeyer for such heinous conduct,
the fact finder could also infer that the first element of the
IIED claim was satisfied: that McGee would have known
with substantial certainty that reporting someone for possession of child pornography with no basis would cause that
person severe emotional distress.
        Although defendants came forward with evidence
and arguments in support of their motion that might undermine plaintiff’s theory before a jury, nothing in those arguments or evidence defeats plaintiff’s claim at the summary
judgment stage. A reasonable juror might be persuaded that
McGee would not have invented such a dramatic story about
a complete stranger with whom he had no history and no
motivation to harm; a juror could also conclude that, even
if McGee was wrong, he was simply mistaken, and not
intentionally lying; however, a juror might also reasonably

    4
      Defendant Target Corporation did not raise the third element of IIED,
whether the conduct in fact caused Buckmeyer to suffer severe emotional distress,
as a basis for summary judgment. Plaintiff therefore was not required to produce
evidence to create a material issue of fact as to that element in order to defeat
defendant Target Corporation’s summary judgment motion. Two Two, 

. Defendant MarketSource, Inc. argued in passing that the only evidence of
Buckmeyer’s actual severe emotional distress was “secondhand.” Regardless, on
appeal, neither Target Corporation nor MarketSource Inc. has raised any issue
as to the third element outside of contending that if there is no disputed issue of
fact on the second element (outrageous conduct), there can be no issue of fact as to
the third element (causation of severe emotional distress). As discussed above, we
conclude that there was a disputed issue of fact on the second element.
32                                    Anselmo v. Target Corp.

conclude that a complete lack of any photos resembling the
detailed images McGee reported to have seen indicates
that he invented the story, for whatever reason, and therefore acted outrageously. Accounting for plaintiff’s ORCP
47 E affidavit, there is sufficient evidence in the summary
judgment record to defeat defendants’ motion for summary
judgment. See, e.g., State v. Miller, 

, 

 (2004), rev den, 

 (2005) (“The inference
need not inevitably follow from the established facts; rather,
if the established facts support multiple reasonable inferences, the jury may decide which inference to draw.”). What
occurred and McGee’s motives are questions for the jury,
regardless of his declaration to the contrary. See, e.g., Perry
v. Rein, 

, 

 (2007) (Where
the plaintiff’s evidence places the credibility of an affiant at
issue, the subjective belief of the affiant is not susceptible to
summary judgment.).
         Reversed and remanded.