dissenting.
I disagree with the majority’s conclusion that evidence as to the conduct of the flight crew and United’s maintenance of the landing gear supports the jury’s finding of aggravated misconduct and its awarding punitive damages. First, I think that there was no evidence from which a jury could find that McBroom and the rest of the flight crew were guilty of aggravated misconduct. Faced with an unusual and potentially hazardous situation, McBroom took steps to diagnose the problem and to land the plane safely. Those precautions, as well as preparing the passengers for an emergency landing, took additional time. While the plane circled, it continued to burn fuel. McBroom’s alleged mistakes were in failing to monitor the fuel adequately so that he was forced to land short of the airport and in disregarding reliable signs that the landing gear was in a down and locked position. His belief that the fuel gauges were accurate and that he had more fuel than he actually did is relevant in evaluating the extent to *322which his conduct was negligent. McBroom was responsible for the safety of his crew and the passengers and, although he may have been negligent, I do not think the evidence permits an inference that he acted with “ ‘wanton disregard of harm to others.’ ” 79 Or App at 317. McBroom’s precautionary behavior is not the sort of conduct which is appropriately punished as a deterrent to future similar misbehavior. Schmidt v. Pine Tree Land Dev., 291 Or 462, 466, 631 P2d 1373 (1981); Noe v. Kaiser Foundation Hosp., 248 Or 420, 425, 435 P2d 306 (1967).
Second, I disagree that evidence of United’s maintenance of the landing gear supports the award of punitive damages. I do not think that a rational jury could find that it was reasonably foreseeable that United’s allowing the hydraulic mechanism to remain corroded would initiate this chain of events and ultimately cause a crash. Stewart v. Jefferson Plywood Co., 255 Or 603, 609, 469 P2d 783 (1970), holds that a court may remove the issue of a defendant’s negligence from the jury if the “plaintiffs injury and the manner of its occurrence was so highly unusual that we can say as a matter of law that a reasonable man, making an inventory of the possibilities of harm which his conduct might produce, would not have reasonably expected the injury to occur.” I would apply this rule, based on Restatement (Second) Torts § 435(2) (1965), to hold, as a matter of law, that the accident was not a reasonably foreseeable result of allowing the two parts of the hydraulic system to corrode and fail. Although United knew that the parts could fail, it took precautions to insure that, in the event the hydraulic system did fail, the landing gear would still come down and lock in the proper position. All of the evidence establishes that the backup system is safe. It was not reasonably foreseeable as a matter of law that, if the hydraulic system failed and the landing gear freely fell into a locked position, it would cause the crew to panic and negligently fail to land the plane. This series of events was so extraordinary that United’s conduct in allowing the hydraulic system to corrode, even if negligent, was not a legal cause of plaintiff s injury and United could not have been held liable for compensatory damages on the basis of its conduct in maintaining the landing gear. It follows that it cannot be held liable for punitive damages for conduct which was too remote a cause to sustain a verdict for plaintiff.
Moreover, even if United could be found liable for *323negligence in this respect, I think that its conduct was not, as a matter of law, a sufficiently aggravated violation of societal interests to justify punitive damages. In Falls v. Mortensen, 207 Or 130, 138, 295 P2d 182 (1956), the Supreme Court quoted from Prosser, Torts (2d ed 1971) the three requirements for the imposition of punitive damages:
“ ‘* * * The elements necessary to characterize an injury as wantonly or wilfully inflicted are (1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another, (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand, and (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. * * *’ ”
Although negligence, as a basis of liability, requires that a plaintiffs injury be a reasonably foreseeable consequence of a defendant’s negligence, punitive damages require a greater degree of foreseeability: “[I]t must be apparent that the result is likely to prove disastrous to another.” (Emphasis supplied.) In this case, the accident was so remote a consequence of United’s conduct in maintaining the gear that it was not, as a matter of law, a likely consequence of United’s actions. Because I think that the evidence does not support an award of punitive damages, I would affirm the judgment n.o.v. Accordingly, I dissent.
Buttler, J., joins in this dissent.