Wolf Ex Rel. Wolf v. Nordstrom, Inc.

PETERSON, J.,

specially concurring and dissenting.

I concur with the result of the majority opinion except for the provision for a retrial on the punitive damages question alone. I would remand for a trial on all damage issues, with liability directed in favor of the plaintiff. My reasons are these:

1.Most of the evidence which is relevant to the determination of the award of general damages is also relevant to the determination of punitive damages, if any, to which the plaintiff is entitled. Much of the evidence relevant to the punitive damages issue is also relevant to the general damages issue. Where issues are interwoven, an error which affects one of the issues may as well affect the other. As a result, following reversal on appeal, the new trial should not be limited to one issue.

2. The remand for a retrial as to punitive damages only would save neither time nor expense;, indeed, a trial of such a segregated issue might well add to the difficulties encountered on the retrial.

3. The award of general damages may have affected the award of punitive damages; and the award of punitive damages may have affected the award of general damages.

I have carefully reviewed the evidence set forth in the majority opinion on pages 830-31 to determine whether all, most, or any part of that evidence is relevant to the issue of punitive damages as well as general damages. It strikes me that, at a retrial limited to punitive damages only, one party or the other will attempt to offer almost all of the same evidence that was offered in the original trial. The plaintiffs attorney will offer (1) all of the evidence as to the original occurrence involving the two boys, in order to create a foundation for a claim of wanton misconduct so far *837 as the plaintiff is concerned; (2) evidence of the manner in which plaintiff was seized and detained; and (3) the effect of the occurrence upon the plaintiff. The plaintiff will attempt to offer virtually all of the factual evidence set forth on pages 830-31 of the majority opinion in order to claim that the defendants were treating him in an inhumane, callous, cavalier, wanton manner.

The defendants, on the other hand, will attempt to offer much of the factual evidence set forth on pages 830-31 of the majority opinion in order to show that they were well motivated, and that once it was learned that the plaintiff was the wrong person, “he was released with apologies.”

The issues relating to general damages and punitive damages are closely connected and are interwoven. If the same evidence relates to both issues, one jury should properly decide both issues.

A retrial limited to punitive damages, alone would neither simplify, shorten, nor reduce the expense of a retrial. Indeed, a retrial limited to punitive damages only might lead to difficulties which would not be encountered if the trial were limited to the determination of general damages and punitive damages.

Finally, I am fearful that the determination of punitive damages may have influenced the determination of general damages. Or the reverse may be true. Granted, at the first trial the trial jury was instructed that they should determine the amount of general damages, if any, to which the plaintiff was entitled, and that such damages be “such a sum as will reasonably and fairly compensate the plaintiff for the injuries so caused [including, but not limited to] the general damages for the period for which the actual restraint continued, anxiety, nervousness, mental anguish or suffering resulting from the wrongful act, including humiliation and injury to the feelings of the plaintiff.” Then, the jury was instructed as to the law as to the general damages instruction. We should assume, and generally do assume, that juries follow the instructions. However, as we observed in Maxwell v. Port. Terminal RR Co., 253 Or 573, 577 , 456 P2d 484 (1969), “* * * *838 [i]n the ordinary two-party personal-injury case * * * evidence of fault can influence the jury’s measurement of damages; and the kind and degree of injuries may influence some jurors in their evaluation of the evidence on liability. * * *” In Maxwell we therefore refused to remand for trial on the question of damages only. Because the damage questions herein are so closely connected I fear that the determination of one may have influenced the jury’s determination of the other.

I have set forth in the margin a listing (which I believe to be virtually complete) of all the cases in which the propriety of a remand for trial on a limited issue has been discussed. 1 As far as I can tell, the precise issue presented in this case has never arisen. Almost all of the cases cited in the margin involved the question of whether there should be a retrial as to damages, alone, 2 or whether the case should be remanded for trial on liability as well as damages. Where the evidence relevant to liability had no relevance to the question of damages, a limited trial was ordered in some of the cases.

But where the issues are as closely connected and interwoven as are the issues of general damages and punitive damages herein, when the evidence was relevant to both isues, as is the case here, and where there would be no savings of time or expense in remanding for a trial on one issue only, I favor a retrial on both issues. I know not whether this favors the plaintiff or the defendant, but I am convinced that because the evidence relevant to one type of damages may well have affected the award of the other type of damages, retrial on both issues should be ordered.

Denecke, C. J., joins in this opinion.

Weiss v. Northwest Acceptance Corp., 274 Or 343 , 546 P2d 1065 (1976); Chopp v. Miller, 264 Or 138 , 504 P2d 106 (1972); Maxwell v. Port. Terminal RR. Co., 253 Or 573 , 456 P2d 484 (1969); Skultety v. Humphreys, 247 Or 450 , 431 P2d 278 (1967); Western Feed Co. v. Heidloff, 230 Or 324 ; 370 P2d 612 (1962); Brown v. Bonesteele, 218 Or 312 , 344 P2d 928 (1959); Scott v. Brogan, 157 Or 549 , 73 P2d 688 (1937).

See, however, Weiss o. Northwest Acceptance Corp., supra, n 1, where retrial was ordered on the punitive damage question only. The case is arguably distinguishable because the other damage claim, for lost wages, was in the nature of a liquidated claim for special damages. It does not appear that the propriety of the new trial order, limited to punitive damages only, was questioned.