HOME FORWARD v. GRAHAM (2017)

Defendants petition for reconsideration of our decision in Home Forward v. Graham, 287 Or. App. 191, 401 P.3d 797 (2017), in which we held that the trial court applied an incorrect legal standard in determining whether an act was “outrageous in the extreme” within the meaning of ORS 90.396(1)(f). We reversed and remanded to permit the trial court to apply the correct legal standard in the first instance.

In their petition, defendants argue, among other things, that the following sentence incorrectly states the standard applicable for determining whether an act is “outrageous in the extreme” within the meaning of ORS 90.396(1)(f):

“An act need not violate a criminal statute to qualify as ‘outrageous in the extreme,’ ORS 90.396(4), but it must either be comparable to the offenses listed under paragraph (f)—such as prostitution or burglary—or be ‘similar in degree’ to the conduct described in paragraphs (a) through (e), such as an act that ‘seriously threatens to inflict substantial personal injury’ on another person.”

Home Forward v. Graham, 287 Or. App. at 198 (emphasis added).

We agree with defendants that that sentence contains a misstatement of law insofar as it suggests that an act may qualify as “outrageous in the extreme” even if it is not “similar in degree” to the acts listed in ORS 90.396(1)(a) to (e), so long as it is comparable to the offenses listed in ORS 90.396(1)(f)(A) to (E). Cf. Emon Enterprises, LLC v. Kilcup, 285 Or. App. 639, 642, 395 P.3d 78 (2017) (“As guidance for applying that somewhat imprecise standard, the legislature has specified that the act must be ‘similar in degree’ to the acts—listed in paragraphs (a) to (e) of the statute—that also justify termination in as few as 24 hours.”). We therefore allow reconsideration for the limited purpose of correcting that error. We replace the above-quoted sentence with the following:

“An act need not violate a criminal statute to qualify as ‘outrageous in the extreme,’ ORS 90.396(4), but it must be ‘similar in degree’ to the conduct described in paragraphs (a) to (e), such as an act that ‘seriously threatens to inflict substantial personal injury’ on another person.”

Otherwise, we adhere to our original opinion and reject the remainder of defendants' arguments without written discussion.

Reconsideration allowed; former opinion modified and adhered to as modified.

PER CURIAM