*1 Argued July part, part and submitted affirmed in reversed in and remanded for new 27, 1981 trial October
WOLF, by guardian ad Wolf,
litem Marvin Petitioner, NORDSTROM, INC.,
Respondent. (CA 27808) 17116, SC *2 Raymond Conboy, argued Portland, J. the cause and filed Garry briefs for Petitioner. With him on the briefs were L. Raymond Conboy, and J. Kahn Portland. argued H.
Katherine O’Neil the cause and filed briefs Respondent. the Williamson, With her on Schwabe, the briefs were
Wyatt, Wagner, Moore & Roberts and Mark H. Portland, Denecke, Justice,
Before Lent, Linde, Chief Peterson and Campbell, Justices.
CAMPBELL, J. specially concurring dissenting Peterson, J., filed a and opinion.
CAMPBELL, J. through this action Plaintiff, boy, brought young battery in imprisonment litem for false ad guardian as a employee defendant’s detention with his connection directed verdict granted a The trial court suspect. shoplifting cause detain probable on the defense defendant against false carnages on the of punitive jury’s aside the court’s action appealed claim.1 Plaintiff imprisonment Defendant verdict for jury setting aside the puni- jury in the instruction error alleging cross-appealed defendants against verdict in the directed tive in the failure cause to detain probable defense of cause, ORS governing statute jury on the instruct as We affirm affirmed. Appeals The Court of 131.655. We reverse verdict. and the directed instruction statutory verdict setting aside only. issue trial on that for new and remand 21, 1978, On June a shoplifting incident occurred at store in downtown Portland. At approximately p.m., 1:10 security officer, *3 defendant’s Plymale, Laura arrived at the scene of the incident and young boys, saw two wearing a of pair new white tennis shoes the belonging to A description store. later-written shoplifter the showed him old, white, 13 years be with brown hair eyes, and 5'3" brown tall, weighing pounds, wearing jeans, and blue a green jacket, cap, a baseball and stolen new white tennis shoes. boys away The detaining broke from the clerk them and ran for the exit. Plymale boys, nearest Ms. followed the pausing at Bailey, the entrance to ask another employee, help Mr. for pursuit. her The chase ended two blocks southwest of the store apprehension with her boys. both shop- p.m., plaintiff
At 1:15 an indoor entering of defendant’s store to meet ping mall two blocks northwest description Plaintiff fit the later generally his mother. hat, he rather than except wore no was alone shoplifter $5,000 $15,000 general damages punitive Plaintiff recovered a verdict and for general damages except is not it before us relates defendant’s cross-appeal. old, shoes, boy, beat-up with another tennis and wore white near the shoplifter’s flight nowhere defendant’s store or therefrom. As he searched an elevator to path for his mother’s floor, building’s up office fourth two men rushed men, Calhoun, him.2 plaintiff One Mr. asked if he had been past minutes, in defendant’s store five to which no. plaintiff grabbed plaintiff by answered Mr. Calhoun then of his waistband trousers “and said ‘come with me because “ you.’ questions I have some At time did no either man identify any himself to or show identification from store. Calhoun Mr. marched out of the building telling they without him going, despite where were plaintiffs tearful protests. attempted escape Plaintiff captor and leaving building, was restrained. Before plain- tiff told Mr. Calhoun that his building mother worked to which responded, Mr. Calhoun Plaintiff “Oh.” was forced to walk the two blocks to defendant’s Upon store. their arrival at the store at about 1:35 p.m., it was determined that shoplifter he was released with apologies. Plaintiff returned to his mother’s office.
The issue in this case is the jury’s whether verdict for punitive damages on the false imprisonment prop- count was erly set aside the trial court. policy underlying awards of primary justification guide determining for use as a propriety awards was expressed in
Noe v. Kaiser Hospital, Foundation Or (1967): only justified theory
“Punitive can be Hodel, determent. See Exemplary Damages The Doctrine of Oregon, L It Rev 175 is in those instances where the suffi- violation of societal interests is ciently great a kind that sanctions would tend to prevent, punitive damages proper. Regard- that the use of less obligations the nomenclature which a violation of these *4 willful, (grossly
is negligent, described wanton, malicious, etc.) apparent it is that this court has proper decided that it use the sanction of identity by evidence, The second man was not disclosed therefore we Bailey. do not that was know it or was not Mr. particularly where there has been a aggravated * * * disregard (As rights interpreted in [of victim].” Payless Drug Stores, v. Crooks 285 Or (1979). parties arguments have focused their on two by Penney Co.,
cases decided
this court: Lukas v. J. C.
233 Or
(1963),
Montgomery
345,
In shopping A sus- for a dress. clerk became defendant’s store belonging picious to the store concealed a dress security bag shopping officer. in and so alerted defendant’s her by a and detained left the store but followed Plaintiff security a from the store. The officer officer about half block identify plaintiffs request engaged refused to himself attempt minutes with for about two a scuffle ultimately shopping bag. Plaintiff allowed to search the nothing, released. and, when the officer found search “particu- insufficient evidence of found that there was court puni- disregard” justify larly aggravated of the submission jury. us is The case before issue to the tive controlling. sufficiently In its facts to make Lukas similar in Lukas, woman was detained an adult who being proximity the store after in the two minutes object by employee. She was told of there store followed namely, shopping bag. She was detention, search her any point, personally avoided and could have restrained at not the scuffle place. by allowing was no to take There the search pointed question person out the clerk that she was suspect. shoplifting us, a thirteen the detention was of In the case before employee year boy with defendant’s for some minutes old informing plaintiff identifying nor himself neither his flight objective not in the Plaintiff was detention. shoplifter,
path he seen the true nor was captor Rather, em- defendant’s store. opposite ployee the chase to direction from in the travelled building and detained defendant’s store two blocks from *5 given the later plaintiff, description who did even match forced security employee the officer. store, the summary him to defendant’s unlike accompany Lukas, despite in the clear absence of performed search plaintiffs allegedly possession. stolen tennis shoes from distinguishable the case The Lukas case is from before us and does not control our decision. Fabish, plaintiff
In an was detained over hour in suspicion defendant’s store on of theft of a book. Plaintiff repeatedly phone asked to make a pur call to establish his chase thereby book from another store and clear himself of the shoplifting charge. requests His were denied. The court found these facts justify sufficient an of punitive damages to type deter this and upheld conduct the trial court’s refusal to withdraw the issue from the jury. The facts before us are sufficiently similar justify to Fabish to a similar result. We hold that conduct such as that of the defendant’s here, employee child, involving illogical a pursuit, and an aggravated detention, mode of justifies the submission punitive damages issue to jury, and that the trial court erred withdrawing in verdict for
Defendant, cross-appellant, “(t)he contended that court erred in a directing against verdict defendant on the probable issue of plaintiff.” cause to detain We review the evidence in the light most defendant, favorable to the against whom a directed granted. City verdict was Rogue River v. DeBoer, (1980). The directed verdict only was proper if there was no evidence that defendant had probable cause to detain or there was no conflict in the evidence and capable it was one construction. Id. parties conflict agree that there was no probable evidence and that the issue of cause was therefore for Penney 345, 357, the court. J. Lukas v. C. that, as a We must address defendant’s contention law, probable matter of of no cause was finding court’s error.
The statue requiring probable cause for detention of a suspect shoplifting 131.655, provides: is ORS law, “(1) any provision peace Notwithstanding other a officer, employe or who has merchant merchant’s believing person a committed theft of cause for has property of store or other mercantile establishment person regard thereto interrogate detain time. manner and a reasonable reasonable officer, “(2) employe, peace If a merchant or merchant’s believing person committed probable cause for that a had with establishment, property of a store or ther mercantile theft thereto, regard interrogates person detains and peace officer, person brings against merchant thereafter employe any upon civil or criminal action based merchant’s *6 interrogation, probable shall be such cause the detention action, interrogation if were the detention and defense to in time.” done a reasonable manner and a reasonable defendant’s witness. Her testi Plymale
Ms. mony probable to establish cause to detain is insufficient present at the scene of the Plymale because Ms. not Bailey Calhoun nor Mr. testified. detention. Neither Mr. any testimony did not establish connec Plymale’s Since Ms. we alleged shoplifter, and the find that tion between Wagner proper. v. Kaiser Foundation the directed verdict was Bussman, 81, (1979); v. Hospital, 285 P2d 1106 Hansen Or 589 757, (1976). properly 1265 The trial court 274 549 P2d Or the issue of against a verdict defendant on directed defen proper, Since the directed verdict was cause to detain. regarding to a instruction its jury dant was not entitled 131.655(2). liability defense to under ORS assigns as error Defendant also damages.3 particular, In punitive jury court’s instruction [3] you may general damages, you “If found that the entitled have punitive damages. Punitive are awarded
then award consider whether discourage general in some cases in order to in addition to engaging in wanton misconduct. and others from defendant amounting disregard to a deliberate misconduct is conduct “Wanton rights. rights others, a reckless indifference such or you considering punitive damages, first must determine whether “In misconduct, guilty was the cause which defendant was wanton plaintiff. you properly punitive damages, you consider “If to award decide fixing following of the defendant’s the amount: the character items
835 argues defining defendant that instruction “wanton mis- conduct” as “conduct to a amounting disregard deliberate reckless others, rights rights” to such indifference added) (emphasis punitive violates the standard for Motors, Inc., Chamberlain v. Jim Fisher court this 229, addition, 282 Or P2d In defendant objects to the trial court’s refusal to give requested jury instruction.4 in Chamberlain held that recklessness, by
This court itself, support will not an award of Although may be a part aggravating recklessness circum justify stances of punitive damages, the trial judge instructing jury erred recklessness alone as justify sufficient an award damages. We cannot actually determine the standard used at arriving punitive damages its verdict and must therefore remand this case for retrial on the of punitive damages. Weiss issue Northwest Acceptance Corp., (1976); Maxwell v. Port. Terminal RR.
(1969). Since the trial court’s proper, directed verdict was we this be exceptional find case to general within the rule of Maxwell retrial should be on all factual issues. The court refusing did not err in to give requested instructions, however, since it governing misstates the law punitive damage awards by requiring “malice and intentional *7 ill plaintiff.” will towards
conduct, motives, damages the defendant’s be the amount which would required discourage engaging to the defendant others from such conduct the future.” appropriate you punitive damages, you “Before it would be for to consider proven by preponderance plaintiff to find would need that has a of the evidence defendant, through specific employees, agents that or motivated malice you plaintiff. Only and intentional ill will towards if that has find you permitted punitive established these elements would be to even consider damages. then, required punitive damages, you to it “Even would not be award but your discretion, bearing punitive damages a would be matter for own in mind that are disfavored the law. you “If but it find that the defendant’s conduct was unlawful resulted mistake, punitive good you permitted damages.” to from faith would not be a directing verdict trial court of the judgment is affirmed. cause defense on the and the damages award is reversed punitive of the withdrawal issue. punitive damages a new trial remanded for case PETERSON, J., concurring and dissent- specially ing. opinion the majority result of concur with the
I damages the punitive a retrial on provision except for issues, for a trial on all I remand question alone. would My reasons are plaintiff. of the liability directed favor with these: to the
1.Most of the evidence which is relevant general relevant damages determination of the award of also punitive any, if which the determination relevant to the is entitled. Much the evidence general punitive issue is also relevant interwoven, error affects one issue. issues are Where result, following as well affect other. As issues to one trial not be limited appeal, reversal on new should issue.
2. The remand for a retrial as to punitive damages only would neither indeed, save time expense;, nor such a segregated issue might well add difficulties encountered on the retrial.
3. The award general damages may have affected the award of damages; award of punitive damages may general have affected the award of damages. carefully evidence set forth
I have reviewed the all, determine whether pages 830-31 to majority opinion to the issue most, any part evidence is relevant of that It general as well as only, punitive damages that, at a retrial limited strikes me almost all of the to offer party attempt or the other will trial. The original in the same evidence that was offered (1) evidence offer all attorney will plaintiffs *8 boys, in order to the two involving the occurrence original so far wanton misconduct for a claim of create a foundation (2) concerned; as the evidence the manner detained; (3) which was seized and and the effect of the upon plaintiff. attempt occurrence the will to all the set virtually pages offer factual evidence forth on the that opinion 830-31 of order claim the majority inhumane, callous, treating defendants were him in cav- alier, wanton manner. defendants, hand, other attempt on the will
offer much of the factual on pages evidence forth 830-31 of the majority opinion in they order show that were well motivated, and that once it learned the plaintiff that was person, the “he was wrong apologies.” released with The issues relating general damages and punitive damages closely are connected and are interwoven. If same the issues, evidence relates to both jury properly should decide both issues.
A retrial limited to punitive damages, alone would shorten, simplify, neither nor expense reduce the a retrial. Indeed, a retrial only might limited to lead to difficulties which would not be if encountered the trial were limited to the determination of general damages damages.
Finally, I am puni- fearful that the determination tive damages may have gen- influenced the determination of eral Granted, the reverse be true. at first the trial they instructed that should determine of general amount if any, to which the plaintiff entitled, and that such be “such a sum as will reasonably fairly compensate the plaintiff injuries for the so but limited [including, general caused to] period continued, actual restraint anx- iety, nervousness, anguish suffering mental resulting from act, wrongful including injury humiliation and feelings plaintiff.” Then, the jury was instructed as to general damages law as instruction. We should assume, generally assume, juries do follow However, instructions. as we observed in Maxwell Port. “* * * (1969), Terminal RR * * * ordinary two-party personal-injury case evidence *9 [i]n damages; of fault can influence the jury’s measurement of the kind and of degree injuries may jurors influence some * * *” liability. their evaluation of the evidence In Maxwell we therefore question refused remand for trial on the of only. damages damage questions Because the herein are so closely connected I fear that determination one jury’s have influenced the determination of the other. (which I margin listing I have forth in the virtually complete) believe to be of all the cases which the of a trial on issue propriety remand for a limited has been tell, I precise presented discussed.1 As far as can issue has Almost cited in the this case never arisen. all cases margin question of whether there should be involved alone,2 or case damages, retrial as to whether the should be as liability remanded for trial on well as Where the liability question relevant had no relevance to the evidence a limited trial ordered in some of the cases. damages, closely are connected the issues as But where general damages as are the issues interwoven isues, relevant to both herein, the evidence was when savings no here, and there would be case where I only, issue remanding for a trial expense in time or this favors I not whether issues. know favor a retrial on both I that because defendant, but am convinced may well have type to one relevant the evidence retrial on type of the other the award affected be ordered. both issues should J.,
Denecke,
joins
opinion.
in this
C.
1
343, 546
(1976);
Acceptance Corp.,
Chopp v.
1065
v. Northwest
Or
P2d
Weiss
573,
Miller,
138, 504
(1972); Maxwell Port. Terminal RR.
253 Or
P2d 106
v.
264 Or
450, 431
(1967);
Skultety
(1969);
Humphreys, 247
Western
v.