I concur in judgment because the jury apparently found no damage. I write separately because I believe that the conduct here was clearly actionable and warranted an instruction on punitive damages. To merely concur might indicate approval of the conduct evidenced in this case.
The advertisements run by Spitzer presented these cars as "factory cars" and "a special purchase from Chrysler Corporation." However, they were not purchased from Chrysler, but from Avis, and the representation that they were factory cars was obviously intended to hide the fact that they were rental cars. Whether the salesperson "innocently thought a factory car was one formerly driven by a Chrysler employee" is immaterial. Spitzer Motor Center, Inc. is responsible for whoever got these cars from Avis and then advertised them as coming from Chrysler. These actions were certainly conscious and deliberate on the part of Spitzer and the intent to deceive is self-evident. From these facts, the jury could infer malice. SeeBuchanan v. Spitzer Motor City, Inc. (Feb. 7, 1991), Cuyahoga App. Nos. 57893 and 58058, unreported, 1991 WL 13003, an odometer rollback case, where punitive damages were upheld. In that case, we held that the jury could reasonably infer malice where the appellants (Spitzer) acted with a conscious disregard for the rights of others, that had a great probability of causing substantial harm. In my opinion, the facts here are no less egregious. *Page 539