Dailey v. Sundance Ranches, Inc.

RICHARDSON, P. J.,

concurring.

I join in the opinion of the majority. I emphasize, however, as we did in 2-D’s Logging v. Weyerhaeuser, 53 Or App 677, 632 P2d 1319, rev den 292 Or 109 (1981), and as the majority again indicates here, that it cannot be ascertained from the Oregon Supreme Court’s opinions whether the general function of appellate courts in reviewing an award of punitive damages is simply to determine if there is substantial evidence to support the award or whether the court must also make a legal or policy determination regarding the appropriateness of punitive damages as a sanction for the conduct in question.

If there is a legal or policy component to our review, I would find it difficult to reconcile our decision here with Chamberlain v. Jim Fisher Motors, Inc., 282 Or 229, 578 P2d 1225 (1978). However, if our review is only for substantial evidence, I agree that there was sufficient evidence to support the imposition of punitive damages here, whether or not there was enough evidence to support the verdict in Chamberlain.

As we noted in 2-D’s Logging, it seems clear that the Supreme Court can establish a review standard in punitive damages cases under which the appellate inquiry *150 goes beyond the question of evidentiary sufficiency. 53 Or App at 688-89. But as we also noted in 2-D’s Logging, the Supreme Court does not appear to have adopted a broader review standard, although it has periodically applied such a standard de facto and decided whether punitive damages were appropriate rather than whether they were proved.

Because I understand the Supreme Court to adhere nominally to the substantial evidence review standard, I agree with the majority opinion.