Payless Drug Stores Northwest, Inc. v. Brown
Decision Date | 02 July 1986 |
Citation | 80 Or.App. 255,722 P.2d 31 |
Parties | PAYLESS DRUG STORES NORTHWEST, INC., a foreign corporation, Respondent, v. Robert BROWN and Maxine Brown, Appellants. David B. Frohnmayer, Attorney General for the State of Oregon, Third-Party Defendant. 83-1-1014; CA A30985. |
Court | Oregon Court of Appeals |
Peter Fels, Oregon Legal Services Corp., Pendleton, argued the cause for appellants. With him on brief was Steven N. Thomas, Pendleton.
Leslie Swanson, Eugene, argued the cause for respondent. With him on brief were Sharon A. Rudnick and Harrang, Swanson, Long & Watkinson, P.C., Eugene.
Norman J. Weiner, Mark C. McClanahan and Miller, Nash, Wiener, Hager & Carlsen, Portland, filed a brief amicus curiae for Oregon Retail Council.
Dave Frohnmayer, Atty. Gen., and Philip Schradle, Asst. Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem, filed a brief amicus curiae for State of Oregon.
Anna M. Moran, Portland, filed a brief amicus curiae for American Civil Liberties Union of Oregon.
Before JOSEPH, C.J., and WARDEN and NEWMAN, JJ.
This case is before us on remand from the Supreme Court. Payless Drug Stores v. Brown, 300 Or. 243, 708 P.2d 1143 (1985). Defendants appealed a judgment against them for $117.74, plus costs. Plaintiff's security guard arrested Bobby Brown, defendants' 15-year old unemancipated daughter, outside plaintiff's Pendleton store for "shoplifting." ORS 164.045. Plaintiff recovered the merchandise. It did not seek "actual damages," but demanded that defendants pay a statutory penalty of $17.74, the retail value of the merchandise, plus a minimum statutory "additional penalty" of $100.
ORS 30.875(2) provides, in part:
"The parents having custody of an unemancipated minor who takes possession of any merchandise displayed or offered for sale by any mercantile establishment, * * * without the consent of the owner, and with the intention of converting such merchandise or produce to the minor's own use without having paid the purchase price thereof, * * * shall be civilly liable to the owner for actual damages, for a penalty to the owner in the amount of the retail value of the merchandise or produce not to exceed $250, plus an additional penalty to the owner of not less than $100 nor more than $250."
Defendants alleged affirmatively that ORS 30.875(2) is unconstitutional and moved for summary judgment. The court denied the motion, and the jury returned a verdict of $117.74 for plaintiff.
We held, however, that we would not review the denial of a motion for summary judgment on an appeal from a judgment entered after a trial, citing Mt. Fir Lumber Co. v. Temple Dist. Co., 70 Or.App. 192, 688 P.2d 1378 (1984). The Supreme Court reversed and remanded for consideration of the first assignment of error. Accordingly, we consider that assignment of error, recognizing that it "was directed against the validity of ORS 30.875 in principle, regardless of the facts in this case," 300 Or. at 248, 708 P.2d 1143, and affirm.
In their assignment, defendants assert that plaintiffs must meet the Oregon "statutory" requirements for pleading and proving "punitive damages," including that plaintiff must have suffered actual damage and that defendants must have engaged in aggravated conduct. It may be that the Supreme Court did not intend that we should consider this non-constitutional issue on remand, but we do so, because it is part of the assignment of error and raises a question of law.
Defendants' argument is without merit. The legislature recognized that, although shoplifting may involve a technical conversion, in a conversion action the merchant may not be able to prove damages if the merchandise is recovered and punitive damages could not, therefore, be recovered. The legislature, however, wanted to deter juvenile shoplifting. To accomplish that objective, it provided in ORS 30.875 for civil penalties within the limits it fixed and without regard to pleading or proof of actual damage. See Brown v. Multnomah County Dist. Ct, 280 Or. 95, 100, 570 P.2d 52 (1977); Nordling v. Johnston, 205 Or. 315, 324, 283 P.2d 994, 287 P.2d 420 (1955). The statute gives clear notice to parents that they may be subject to civil penalties, not punitive damages. Plaintiff was not required to plead or prove punitive damages.
Defendants also assert that ORS 30.875(2) violates the Due Process clause of the Fourteenth Amendment. 1 They argue that the statute infringes on a fundamental interest of parents in child rearing:
Accordingly, defendants assert that the statute must, but fails, to meet the constitutional test of "strict scrutiny," citing Lassiter v. Dept. of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). In Lassiter, however, the issue was whether an indigent parent had a right to appointed counsel at a hearing on termination of parental rights. The court stated that
"a parent's desire for and rights to 'the companionship, care, custody, and management of his or her children' is an important interest that 'undeniably warrants deference and, absent a powerful countervailing interest, protection.' " 452 U.S. at 27, 101 S.Ct. at 2159.
The parents' interest here is not comparable to the interest that Lassiter considered.
The discussion in Bryan v. Kitamura, 529 F.Supp. 394, 395 (D. Hawaii 1982) is instructive. There the defendants challenged the constitutionality of an Hawaii statute which made parents civilly liable for the tortious acts of their unmarried minor children. The defendants argued that the statute violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment, because it interfered with fundamental parental rights. The court rejected the argument:
529 F.Supp. at 398. (Emphasis supplied.)
We take a similar view of ORS 30.875(2). It does not deny parents the right to choose how to teach their children or bar parents from making decisions concerning them, but encourages parents to teach lawful behavior to their children. The standard of review, therefore, is not "strict scrutiny," but whether the statute advances a legitimate state purpose and whether the means chosen are rationally related to achieving that purpose. See Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963); Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934).
Deterrence of juvenile shoplifting is unquestionably a legitimate state purpose. Defendants argue, however, that ORS 30.875(2) violates due process, because there is no rational relationship between that legitimate purpose and the imposition of vicarious liability on the parents of the child. There is no reported case in Oregon in which a statute imposing vicarious liability on parents has been challenged. 2 See ORS 30.765 ( ); ORS 30.190 ( ); ORS 339.270 ( ). 3 In Piscataway Township Board of Education v. Caffiero, 86 N.J. 308, 431 A.2d 799 (1981), however, parents challenged a statute which imposed vicarious liability for...
To continue reading
Request your trial-
Distinctive Printing and Packaging Co. v. Cox
...Thus, the task is one of determining whether a rational basis exists for the classification at issue. See, Payless Drug Stores v. Brown, 80 Or.App. 255, 722 P.2d 31 (1986), rev. denied 302 Or. 159, 727 P.2d 129; Bryan v. Kitamura, 529 F.Supp. 394 (D.Haw.1982); Hayward v. Ramick, 248 Ga. 841......
-
State v. Reetz
..."punishment." Because we agree with the state's first position, we do not reach its alternative argument.5 See Payless Drug Stores v. Brown, 80 Or.App. 255, 258, 722 P.2d 31, rev. den. 302 Or. 159, 727 P.2d 129 (1986).6 ORS 30.875 permits recovery of actual damages, if any, and penalties. R......
-
Hager v. American Honda Motor Co., Inc.
...Payless Drug Stores v. Brown, 73 Or.App. 90, 95, 698 P.2d 45, rev'd on other grounds 300 Or. 243, 708 P.2d 1143 (1985), on remand 80 Or.App. 255, 722 P.2d 31, rev. den. 302 Or. 159, 727 P.2d 129 (1986). The admission of hearsay does not affect a substantial right of a party if the evidence ......
-
Payless Drug Stores Northwest, Inc. v. Brown
...129 727 P.2d 129 302 Or. 159 Payless Drug Stores Northwest, Inc. v. Brown NOS. A30985, S33184 Supreme Court of Oregon OCT 28, 1986 80 Or.App. 255, 722 P.2d 31 Lent, J., would DENIED. ...