Opinion
D.C. No. CV-96-01088-MA
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted, Sept. 14, 1999.
Appeal from the United States District Court for the District of Oregon Malcolm M. Marsh, Chief District Judge Presiding.
Before ALDISERT , KLEINFELD, and W. FLETCHER, Circuit Judges.
The Honorable Ruggero J. Aldisert, Senior Circuit Judge for the Third Circuit, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Both Ernst and Western States Chiropractic College ("College") appeal from a jury verdict finding that the College committed battery and violated Title IX by coercing Ernst to submit to a proctological exam. The district court struck a jury award in Ernst's favor of $150,000 in punitive damages because the jury had not awarded any compensatory damages. We reverse the district court, direct an award of nominal damages of $1 to Ernst, and reinstate the jury's award of $150,000 in punitive damages.
Ernst argues that the district court should not have directed the jury to strike the $150,000 award in punitive damages. We agree. Ernst was entitled to nominal damages because the jury found that the College had committed a battery against him, and these presumed or nominal damages are sufficient to support the jury's award of punitive damages.
Ernst did not need to show actual damages to win on his claim of battery because damages are not an element of a prima facie case. " 'Battery' is defined as a voluntary act that is intended to cause the resulting harmful or offensive contact." Because the jury found that the College intentionally violated Ernst's legal rights by committing a battery against him, we must presume that Ernst was damaged. He is therefore entitled to nominal damages as a matter of law. Where "willful wrongdoing by defendant [is] established," such as battery, Oregon still follows the common law rule that "[s]ome damages are always presumed to follow from the violation of any right or duty implied by law. Therefore the law will in such cases award nominal damages, if none greater are proved ." The Restatement 2d of Torts is in accord:
Walthers v. Gossett, 941 P.2d 575, 578 (Or.App.1997); see Albers v. Whitley, 546 F.Supp. 726, 738 (D.Or.1982); Restatement 2d of Torts §§ 13, 18 (1979).
Kulm v. Coast-to-Coast Stores Central Organization, Inc., 432 P.2d 1006, 1009 (Or.1967); see also Hoaglin v. Decker, 713 P.2d 674, 676 (Or.App.1986) (distinguishing between intentional trespass in which "the law presumes damages from the unauthorized entry" and unintentional trespasses in which " 'nominal damages could not be awarded" ' (quoting Hall v. Cornett, 240 P.2d 231 (Or.1952)).
Smith v. Pallay, 279 P. 279, 281 (Or.1929); see also Tom Lee, Inc. v. Pacific Telephone & Telegraph Co., 59 P.2d 683, 687 (Or.1936) (explaining that "the rule is well established that nominal damages may be recovered for the bare infringement of a right unaccompanied by any actual damage"); Jones v. Peterson, 74 P. 661, 661 (Or.1903) (noting that a victim of a "trivial battery ... is in all cases entitled" to at least nominal damages).
When a cause of action for a tort exists but no harm has been caused by the tort or the amount of harm is not significant ..., judgment will be given for nominal damages, consisting of a trivial award against a wrongdoer who has caused no harm or an insignificant harm.
...
... This is true in actions for trespass to the person ....
Restatement 2d of Torts § 907 cmt. a, b (1979).
This case is therefore quite similar to Wilks v. Reyes and Floyd v. Laws. In Wilks and Floyd, we instructed district judges to reinstate jury verdicts and award $1 in nominal damages because a constitutional violation requires an award of nominal damages "even if the plaintiff suffered no actual damage." We specifically held in Floyd that
Wilks v. Reyes, 5 F.3d 412 (9th Cir.1993).
Floyd v. Laws, 929 F.2d 1390 (9th Cir.1991).
Wilks, 5 F.3d at 417.
[i]f the jury finds a constitutional violation, an award of nominal damages is mandatory, not permissive. That a jury might choose to award zero actual damages is irrelevant to the legal question of whether, on the basis of the jury's verdict, the plaintiff was entitled to judgment and nominal damages.
Floyd, 929 F.2d at 1402.
While Oregon does not generally permit a jury "to award punitive damages in the absence of an award of actual damages to the plaintiff," an "award of punitive damages coupled with an award of only nominal damages is proper ... [in those cases] in which damages are presumed." In Rhodes v. Harwood, for example, the Oregon Supreme Court upheld an award of $1500 in punitive damages coupled with $1 in nominal damages for an intentional trespass. The court specifically held that the plaintiffs did not need to show actual damages to support the award of punitive damages because "in an action for trespass to land, as in an action for wrongful attachment, the law presumes that a plaintiff has been damaged without the necessity of proof of actual damage." The district court therefore erred in striking the jury's award of punitive damages because the award was supported by the nominal damages Ernst was entitled to as a matter of law from the jury's finding that the College had committed a battery.
Building Structures, Inc. v. Young, 986 P.2d 1287, 1289 & n. 2 (Or.1998); see also Lane County v. Wood, 691 P.2d 473, 479 (Or.1984) (holding that "an award of nominal damages is sufficient to support the awards of punitive damages against" public officials for breach of their fiduciary duties); Crouter v. United Adjusters, Inc., 485 P.2d 1208 (1971) (holding that nominal damages can support an award of punitive damages for wrongful attachment of property); Hinish v. Meier & Frank Co., 113 P.2d 438 (Or.1941) (holding that nominal damages can support an award of punitive damages for invasion of privacy).
Rhodes v. Harwood, 544 P.2d 147, 158 (Or.1975).
Id. at 159.
We note that the College does not raise the issue on appeal of whether the College's coercion or bullying of Ernst to engage in the exam was sufficient to overbear Ernst's apparent consent to undergo the exam. We therefore assume, as the jury verdict indicates, that there was no consent to the exam and that Ernst established a valid claim for battery.
The College argues that Article I, section 8 of the Oregon Constitution forbids punitive damages here because this was a tort committed through speech. In Huffman and Wright Logging Co. v. Wade, the Oregon Supreme Court set out three categories of torts for purposes of Article I, section 8:(1) those permitting liability for the content of speech; (2) those permitting liability for speech-caused harm; and (3) those permitting liability for harm not caused by speech. Huffman forbids punitive damages only for those torts that fall within the first category. For torts in the second and third categories, Huffman provides only that the defendant may get a limiting instruction at his request.
Huffman and Wright Logging Co. v. Wade, 857 P.2d 101, 108 (Or.1993).
Id. at 108, 110-11.
See id. at 110-11.
See id. at 111.
The jury found that the College had committed a battery on Ernst. Battery, here from the presumably unconsented touching of Ernst during the proctological exam, falls within the third category of cases--those in which liability is premised on harm not caused by speech. Thus, this case is quite similar to Huffman, in which the court upheld a punitive damages award for a politically motivated trespass. The College was entitled to no more than a limiting instruction, and having requested none, is entitled to no further relief under Article I, section 8 of the Oregon Constitution.
See id. at 113.
Because the jury's award of punitive damages is sustainable wholly on its finding of battery, we need not reach the arguments concerning Title IX raised by the parties.
REVERSED.