See Grimshaw v. Ford Motor Co, 119 Cal.App.3d 757, 174 Cal.Rptr. 348 (1981). See also McElwain v. Georgia-Pacific Corp., 245 Or. 247, 421 P.2d 957 (1966) (punitive damages for intentional discharge of pollutants).See, e.g., Harrell v. Ames, 265 Or. 183, 508 P.2d 211 (1973) (punitive damages awarded against defendant who struck plaintiff while driving under the influence of intoxicants); Dorn v. Wilmarth, 254 Or. 236, 458 P.2d 942 (1969) (same).
Lastly, defendant claims the trial court erred in failing to take from the jury the issue of punitive damages. Its sole argument is that this court's decision in McElwain v. Georgia-Pacific, 245 Or. 247, 421 P.2d 957 (1966), was in error. Defendant points out no distinction between the evidence relating to punitive damages in this case and that in McElwain.
The opinions of the Supreme Court and this court on when punitive damages are awardable, and when their recoverability is a question for the factfinder, have at best given rise to mixed signals and, at worst, have been inconsistent and schizophrenic. In McElwain v. Georgia-Pacific, 245 Or. 247, 421 P.2d 957 (1966), plaintiffs sought compensatory and punitive damages for injury to their property caused by emissions from defendant's mill. The Supreme Court reversed the trial court's withdrawal of the punitive damages issue from the jury and stated:
In that case, the Ninth Circuit explained that "Oregon's Supreme Court has 'uniformly sanctioned the recovery of punitive damages whenever there was evidence of a wrongful act done intentionally, with knowledge that it would cause harm to a particular person.'" Id. (quoting McElwain v. Georgia-Pac. Corp., 245 Or. 247, 249 (1966)). In McElwain, the Oregon Supreme Court defined "malice" as "nothing more than a wrongful act done intentionally, without just cause or excuse."
If there was malice the defendant's failure to give written notice would not be a technical error because it would affect a substantial right of the plaintiff. In the case of McElwain v. Georgia-Pacific, 245 Or. 247, 249, 421 P.2d 957 (1966), this court said: In Wolf v. Nordstrom, 291 Or. 828, 835, 637 P.2d 1280 (1981), a case not discussed in the briefs, we may have caused confusion.
(4) One whose business involves the operation of a plant which emits smoke, fumes or "particulates" may also have an uninsurable liability for punitive damages, even in the absence of any "wanton" or "fraudulent" conduct, upon the ground that he has "intentionally" permitted fumes, smoke or particles to be released and blown by the wind upon another's property, for the reason that "[t]he intentional disregard of the interest of another is the legal equivalent of legal malice and justifies punitive damages for trespass."McElwain v. Georgia-Pacific, 245 Or. 247, 249, 421 P.2d 957 (1966). See also Note, 46 Or L Rev 477 (1967).
The final question is whether the evidence supports the submission of punitive damages. In McElwain v. Georgia-Pacific, 245 Or. 247, 249, 421 P.2d 957 (1966), the Supreme Court said: "Although this court has on occasion indulged in the dictum that punitive damages are not 'favored in the law,' it has, nevertheless, uniformly sanctioned the recovery of punitive damages whenever there was evidence of a wrongful act done intentionally, with knowledge that it would cause harm to a particular person or persons. * * * Malice is the term most frequently used in our decisions to define a state of mind that will justify the imposition of punitive damages.
The Oregon Supreme Court has sanctioned the award of punitive damages "whenever there was evidence of a wrongful act done intentionally, with knowledge that it would cause harm to a particular person or persons." McElwain v. Georgia-Pacific Co., 421 P.2d 957 (Or. 1966). [16] COT argues that, having prevailed on its claim for tortious interference with contract, the magistrate judge erred in not instructing the jury on punitive damages.
This, we held, was sufficient to warrant allowance of punitive damages under Oregon law. The correctness of our view there stated concerning punitive damages under the law of Oregon has recently been confirmed in McElwain v. Georgia-Pacific Corporation, Or., 421 P.2d 957, decided on December 28, 1966. The Oregon Supreme Court there held that punitive damages may be recovered "* * * whenever there was evidence of a wrongful act done intentionally, with knowledge that it would cause harm to a particular person or persons."
Again, this is evidence which Defendants may use to rebut Williams's contention that Defendants acted recklessly and maliciously, but it is not determinative. See McElwain v. Georgia-Pacific Corp, 245 Or. 247, 252-254 (1966) (affirming an award of punitive damages against the operator of a mill where the defendant took significant remedial steps because they knew prior to constructing the mill "that the mill would cause damage to adjoining property"). Therefore, this portion of Defendants' motion is denied.