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Whitman-Mccoy v. Department of Corrections12/21/1994
in a personal injury claim unless an actual injury occurs. As a result of the holding in Hall, maybe it is proper in a personal injury case, to instruct the jury that it cannot award "special damages" unless it first awards "general damages" that reflect the occurrence of an injury.
The terms "special damages" and "general damages" distinguish between those damages that are the natural and necessary result of the injury (general damages) and those "naturally, but not necessarily resulting from" the injury (special damages). Parker v. Harris Pine Mills, Inc., 206 Or. 187, 208, 291 P.2d 709 (1955). (Emphasis in original.) The instruction in Hall told the jury that general damages (those that necessarily result from an injury) must exist before a tortfeasor could recover other damages. If there were no general damages suffered by the plaintiff, then he had not incurred any injury. In 1987, the legislature changed the nomenclature for general and special damages for personal injury when it enacted ORS 18.560. Or.Laws 1987, ch. 774, s 6. That statute now describes "general damages" as "noneconomic damages," and "special damages" as "economic damages," and limits their application to those damages arising out of "bodily injury, including emotional injury or distress, death or property damage * * *."
Significantly, the elements of liability for a claim for wrongful discharge do not require proof of a personal injury . In Bratcher v. Sky Chefs, Inc., 308 Or. 501, 783 P.2d 4 (1989), the court said:
"In every action for wrongful discharge, it must be shown that the plaintiff was discharged. Whether the discharge be direct ('You're fired!') or less direct ('I'll make things so miserable for you that you'll be forced to leave!'), the employer's intent is relevant and important. The employer seeks to dismiss an employee. If an employer is seeking to accomplish indirectly what could not be done directly, that
can and should be shown. Employers who tell an employee, 'Resign or be fired' may be found to have discharged an employee. Similarly, an employer who decides, 'I'll make things so miserable that you'll quit' may be found to have discharged an employee. Because the latter is the substantial equivalent of the former, the employer's intent in creating or permitting the conditions is key." 308 Or at 505, 783 P.2d 4. (Emphasis in original; citation omitted.)
Whereas an injury is an essential element of liability in a claim for personal injury , it is not an element of liability for the tort of common law wrongful discharge from employment. The latter action lies when there has been a bare infringement of a protected interest without any accompanying personal injury. In a wrongful discharge claim, a personal injury is only a potential aspect of the measure of damages. Consequently, the Hall rule has no application to a claim based on wrongful discharge. The trial court's instructions, based on the Hall rule, deprived the jury of the opportunity to consider plaintiff's claim for damages. That was prejudicial error, which entitles plaintiff to a new trial on the issue of damages.
Reversed and remanded for a new trial on issue of damages.
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