holding that, under the terms of the UTPA, “a defendant is liable for misrepresentations made negligently, without evidence that it was attended by either conscious ignorance or reckless indifference to its truth or falsity” and that the term willful as defined in the UTPA “requires no more than proof of ordinary negligence by a defendant in not knowing, when it should have known, that a representation made by him was not true”
How later courts described this case
- holding that, under the terms of the UTPA, “a defendant is liable for misrepresentations made negligently, without evidence that it was attended by either conscious ignorance or reckless indifference to its truth or falsity” and that the term willful as defined in the UTPA “requires no more than proof of ordinary negligence by a defendant in not knowing, when it should have known, that a representation made by him was not true”
- noting that, under Unfair Trade Practices Act, “willful” “requires no more than proof of ordinary negligence by a defendant in not knowing, when it should have known, that a representation made by [the defendant] was not true”
- describing the issue in Sanders as “whether reliance was a necessary element to a private action under ORS 646.638(1) * * * because of the requirement that the loss be the ‘result of’ wilful conduct”
- discussing the differences in the elements to be proved and the burden of proof between the two types of actions
Written by the judges who cited it.
The opinion
HOWELL, J.,
specially concurring.
I concur in all aspects of Justice Tongue’s opinion except that I do not approve of the references *392 in the opinion to error being "deemed” or "presumed” to be prejudicial. As I stated in my brief dissent in Elam v. Soares, 282 Or 93 , 577 P2d 1336 (1978), our function as an appellate court should be to decide whether the error was prejudicial, without any presumption as to whether it was prejudicial or harmless. In the instant case, to instruct the jury that the evidence must be clear and convincing rather than a preponderance was error requiring a reversal, and any references to evidence being "deemed” or "presumed” prejudicial is unnecessary.