282 March 7, 2013 No. 9

IN THE SUPREME COURT OF THE

STATE OF OREGON

Michael COCCHIARA,

Petitioner on Review,

v.

LITHIA MOTORS, INC.;

and Lithia Motors Support Services, Inc.,

Respondents on Review,

and

LITHIA DM, INC.,

dba Lithia Chrysler Jeep Dodge,

Defendant.

(CC 06-2731-L7; CA A146452; SC S060100)

En Banc

On review from the Court of Appeals.*

Argued and submitted November 8, 2012; resubmitted 

January 7, 2013.

G. Jefferson Campbell, Jr., Medford, argued the cause 

and filed the brief for petitioner on review.

Ryan J. Vanderhoof of Hornecker, Cowling, Hassen & 

Heysell, LLP, Medford, argued the cause and filed the brief 

for respondents on review. With him on the brief was Eric 

B. Mitton.

Shenoa L. Payne of Haglund, Kelley, Jones & Wilder, 

LLP, Portland, filed the brief for amicus curiae Oregon Trial 

Lawyers Association.

BALMER, C. J.

The decision of the Court of Appeals is reversed. The 

judgment of the circuit court is reversed, and the case is 

remanded to the circuit court for further proceedings.

______________

* Appeal from Jackson County Circuit Court, Ronald D. Grensky, Judge. 247 

Or App 545, 270 P3d 350 (2011).
Cite as 353 Or 282 (2013) 283

Plaintiff’s existing job did not meet his health needs, and plaintiff turned 

down a job with a different employer in reliance on his manager’s promise that 

plaintiff had been given a new job with defendants that would meet plaintiff’s 

health needs. When defendants did not in fact hire plaintiff for the new job, he 

brought this action claiming promissory estoppel, fraudulent misrepresentation, 

and unlawful employment practices. The trial court granted summary judgment 

for defendants on the first two claims, and plaintiff voluntarily dismissed the 

unlawful employment practices claim. The Court of Appeals affirmed. Held: The 

Court of Appeals erred in determining that, as a matter of law, plaintiff could not 

reasonably rely on defendant’s representations and could not recover future lost 

wages associated with the new job solely because of the at-will nature of the new 

job. The decision of the Court of Appeals is reversed.

The judgment of the circuit court is reversed, and the case is remanded to the 

circuit court for further proceedings.
284 Cocchiara v. Lithia Motors, Inc.

BALMER, C. J.

In this employment case we must determine 

whether a prospective employee may bring a promissory 

estoppel claim or a fraudulent misrepresentation claim 

based on an employer’s representations regarding a job that 

is terminable at will. Plaintiff worked as a salesperson for 

defendant1

 for nearly eight years before he had a heart attack 

that required him to seek a less stressful job. In reliance on 

his manager’s promise that plaintiff had been given a new 

“corporate” job with defendant that would meet his health 

needs, plaintiff turned down a job with a different employer. 

Ultimately, defendant did not hire plaintiff for the corporate 

job, and plaintiff subsequently had to take jobs that paid 

less than the corporate job with defendant or less than the 

position that he had turned down. Plaintiff brought this 

action against defendant claiming promissory estoppel, 

fraudulent misrepresentation, and unlawful employment 

practices, including employment discrimination. The trial 

court granted partial summary judgment for defendant—on 

the promissory estoppel and fraudulent misrepresentation 

claims—and plaintiff dismissed the unlawful employment 

practices claim without prejudice. The Court of Appeals 

affirmed, holding that, because the corporate job was 

terminable at will, plaintiff could not reasonably rely on 

the promise of employment or recover future lost wages. 

Cocchiara v. Lithia Motors, Inc., 247 Or App 545, 270 P3d 

350 (2011). For the reasons that follow, we reverse the 

decision of the Court of Appeals.

FACTS

We state the facts in the light most favorable to 

plaintiff because the trial court granted defendant’s motion 

for partial summary judgment. Petock v. Asante, 351 Or 408, 

411 n 1, 268 P3d 579 (2011) (stating standard). Plaintiff 

worked as a salesperson at a Lithia Dodge dealership from 

1997 to October 2005. Following a major heart attack in 

1 Plaintiff named his former employer, Lithia Motors Support Services, Inc., 

and its parent company, Lithia Motors, Inc., as defendants. For convenience, we 

refer to them collectively as defendant. Plaintiff noted in his amended complaint 

that he did not become an employee of Lithia Motors Support Services, Inc. until 

2000, but it appears that, prior to that time, plaintiff was employed by another 

subsidiary of Lithia Motors, Inc. 
Cite as 353 Or 282 (2013) 285

2004, plaintiff’s doctors recommended that he find a less 

stressful job that would allow him to work shorter hours 

and avoid working on the weekends. Plaintiff discussed 

those needs with Summers, his General Sales Manager 

at the dealership, but he also pursued other employment 

because his sales job could not meet his health needs.

Plaintiff received an offer to be a sales representative 

for the Medford Mail Tribune, a position that satisfied his 

health requirements. Plaintiff went to Summers to tell him 

that he planned to take the Medford Mail Tribune job, and 

he told Summers that that job would be less stressful and 

would provide compensation that was comparable to his 

current position. Summers responded that plaintiff should 

not accept the Medford Mail Tribune position because 

he was “too valuable” to defendant. Summers then told 

plaintiff that there was a new “corporate” job available with 

defendant that would meet his health needs.

After placing a call to defendant’s corporate offices, 

Summers advised plaintiff that he had been given the 

corporate position and that he would be contacted the next 

day to come in to finalize the paperwork. Plaintiff then 

asked Summers to confirm that the offer was definite, given 

plaintiff’s outstanding offer from the Medford Mail Tribune. 

Summers confirmed that plaintiff had been given the job 

and that the meeting the next day was a “mere formality.” 

Plaintiff acknowledges that there was no discussion as to 

whether or not the corporate job would be terminable at 

will. After his discussion with Summers, plaintiff told the 

Medford Mail Tribune that he had decided not to accept its 

offer because he had received another job with defendant.

When plaintiff met with one of defendant’s 

representatives the next day, the representative told 

plaintiff that he had not been hired for the corporate job. 

Instead, the representative was meeting with plaintiff to 

interview him as one possible candidate for the corporate 

job. Ultimately, defendant did not hire plaintiff for that 

job. When plaintiff then tried to accept the Medford Mail 

Tribune’s prior job offer, that job had been filled. Plaintiff 

later accepted a different sales representative job with 

the Medford Mail Tribune, but the job paid less than the 
286 Cocchiara v. Lithia Motors, Inc.

previously offered job at the Medford Mail Tribune. Plaintiff 

subsequently accepted yet another job that paid less than 

the promised corporate job with defendant.

As noted, plaintiff brought this action against 

defendant on a theory of promissory estoppel, fraudulent 

misrepresentation, and unlawful employment practices, 

including employment discrimination under ORS 659A.112.2

As part of his claim for damages, plaintiff sought economic 

damages for the income that he would have earned in the 

corporate job with defendant. Defendant filed a motion 

for partial summary judgment, arguing that, because 

the corporate job was an at-will position that defendant 

could have fired plaintiff from at any time, plaintiff had 

no reasonable basis to rely on the corporate job offer, as 

required for both the promissory estoppel and fraudulent 

misrepresentation claims. Moreover, defendant argued, it 

would be illogical to hold defendant liable for damages that 

plaintiff would have been unable to recover had he been 

terminated on his first day. The trial court granted summary 

judgment on the promissory estoppel and fraudulent 

misrepresentation claims, noting that, even if plaintiff had 

relied on all the statements that Summers allegedly had 

made, plaintiff would lose

“[b]ecause they didn’t tell him you got a job for the rest of 

your life here. * * * He didn’t rely on having a job for more 

tha[n] a day because *** nobody said to him, and you’re 

going to have this job for X amount of days, months, or 

years. ** * [H]e couldn’t rely on something that was never 

said to him.”

Plaintiff dismissed his unlawful employment practices claim 

without prejudice and appealed, arguing that the trial court 

erred in granting defendant’s motion for partial summary 

judgment.

On appeal, the Court of Appeals affirmed, relying in 

large part on its prior decision in Slate v. Saxon, Marquoit,

Bertoni & Todd, 166 Or App 1, 999 P2d 1152, rev den, 330 

2 ORS 659A.112 was amended in 2007 and 2009. See Or Laws 2007, ch 70, 

§ 291; Or Laws 2009, ch 508, § 6. However, because we do not address plaintiff’s 

claim under ORS 659A.112, we need not consider the impact of those amendments. 

Therefore, all references to ORS 659A.112 are to the 2011 version of the statute. 
Cite as 353 Or 282 (2013) 287

Or 375 (2000). The Court of Appeals began by summarizing 

the Slate decision:

“The plaintiff in Slate had been a law clerk at the defendant 

law firm, which offered him a position as an associate 

attorney, conditioned on the plaintiff passing the Oregon 

bar examination and on the defendants’ renewal of some 

juvenile and indigent-defense contracts. Those conditions 

later were met, yet the ‘defendants advised plaintiff 

that they were terminating the planned employment 

arrangement, although plaintiff had not yet begun working 

for them.’ The plaintiff sued for breach of contract and 

promissory estoppel, claiming damages associated with 

having taken the bar examination in Oregon, instead of in 

another jurisdiction, and with having not sought alternative 

employment. The trial court granted summary judgment to 

the defendants, and we affirmed.

“Our holding in Slate turned on the at-will nature of the 

employment that the defendants had offered the plaintiff. 

* * * We * ** held, for two reasons, that the trial court 

correctly had granted the defendants’ motion for summary 

judgment on the plaintiff’s promissory-estoppel claim. 

First, because the promised employment was at will, ‘there 

could have been no reasonable basis for reliance on’ that 

promise. In other words, the plaintiff could not reasonably

have understood that the promised employment would last 

for any particular length of time. Second, any monetary 

losses that the plaintiff experienced were not ‘attributable 

to the promise [of employment] per se.’ That is, the plaintiff 

would have experienced the same losses if the defendants 

had hired him, but had ‘discharged [him] immediately after 

he came to work rather than before.’ Because the plaintiff 

could not have recovered damages for being terminated 

from the at-will job, he also could not have recovered 

damages from not having been hired into that position.”

Cocchiara, 247 Or App at 549-50 (bracketed alterations in 

Cocchiara; emphasis in original; internal citations to Slate

omitted).

Noting that the corporate job in this case was also 

an at-will job, the Court of Appeals applied the reasoning 

from Slate that “‘[i]t is circular and not based on reality 

to argue, as [the plaintiff] does, that either his reliance or 

his change in position was attributable to the promise of 
288 Cocchiara v. Lithia Motors, Inc.

at will employment rather than the at will employment 

contract itself.’” Id. at 551 (alterations added; quoting 

Slate, 166 Or App at 7). The court reasoned that plaintiff 

“could not reasonably rely on defendant[’s] statements as 

having promised anything other than at-will employment,” 

from which he could have been fired at any time. Id. at 550-

51. In addition, the court noted that plaintiff had claimed 

damages associated with not being hired for the corporate 

job, but had not claimed damages associated with turning 

down the original sales representative job with the Medford 

Mail Tribune. Id. at 551. The court stated:

“Slate is based largely on the plaintiff’s inability to prove 

that he suffered any damages from the defendants’ breach 

of a promise to give him at-will employment. Our holding 

here similarly is based on our conclusion that plaintiff 

has not alleged any claim for damages that fairly can be 

said to spring from defendant[’s] failure to give him the 

corporate job; as a matter of law, plaintiff could not prove 

any entitlement to lost wages from that job, as defendant[] 

could have fired him from it at any time.”

Id. at 554. Based on that reasoning, the Court of Appeals 

agreed that plaintiff could not succeed on his promissory 

estoppel claim. Id. at 551.

Furthermore, the Court of Appeals determined that 

the rationale in Slate was not limited to promissory estoppel 

claims, contrary to what plaintiff urged, because fraudulent 

misrepresentations claims, like promissory estoppel claims, 

require proof of reasonable reliance and damages. Id. at 551-

52. The court, therefore, determined that plaintiff could not 

recover on his claim for fraudulent misrepresentation “[f]or 

the same reason that defendant[’s] promise to hire plaintiff 

into the corporate job cannot subject them to liability on a 

promissory-estoppel theory under Slate[.]”3 Id. at 552.

3 The Court of Appeals also rejected plaintiff’s alternative argument that the 

corporate job was offered to accommodate plaintiff’s health condition, pursuant to 

ORS 659A.112, and therefore was no longer terminable at will. Cocchiara, 247 Or 

App at 554-56. Plaintiff renews essentially that same argument on review, but, 

as explained more fully below, we hold that plaintiff is not barred from bringing 

a promissory estoppel or fraudulent misrepresentation claim solely because the 

corporate job was terminable at will. For that reason, we do not reach plaintiff’s 

alternative argument regarding ORS 659A.112 and its effect on the at-will nature 

of the corporate job.
Cite as 353 Or 282 (2013) 289

On review, plaintiff renews his argument that a 

prospective employee can bring both promissory estoppel and 

fraudulent misrepresentation claims in the context of at-will 

employment. Plaintiff asserts that Slate was incorrectly 

decided because it ignored the reality that prospective 

employees often rely on offers of at-will employment and 

that employers expect prospective employees to rely on those 

offers. Plaintiff argues that barring promissory estoppel 

claims entirely in the context of at-will employment is poor 

public policy and that the issue of reasonable reliance should 

instead be determined by a jury. Moreover, plaintiff argues, 

Slate is distinguishable on its facts.

Plaintiff further asserts that Slate should not apply 

to claims for fraudulent misrepresentation, and he cites two 

Ninth Circuit decisions interpreting Oregon law regarding 

fraudulent misrepresentation in support of his position. In 

both of those cases, the federal court allowed plaintiffs who 

had been offered at-will employment to bring claims for 

fraudulent misrepresentation based on statements made 

by their prospective employers during the hiring process. 

Arboireau v. Adidas-Salomon AG, 347 F3d 1158 (9th Cir 

2003) (employee terminated seven months into at-will job 

due to relocation of job overseas could survive summary 

judgment on fraudulent misrepresentation claim due to 

employer’s failure during hiring to disclose likelihood that 

job might be relocated); Meade v. Cedarapids, Inc., 164 F3d 

1218 (9th Cir 1999) (employer’s false statements during 

hiring regarding employer growth provided basis for at-will 

employees to survive summary judgment on fraudulent 

misrepresentation claim after employer’s plant closed).

Defendant responds that allowing promissory 

estoppel and fraudulent misrepresentation claims in the 

context of at-will employment, as plaintiff proposes, would 

create “drastic exceptions” to the at-will employment 

doctrine that would render it meaningless. Defendant argues 

that this court should instead adopt the holding from Slate

and other jurisdictions that a prospective employee cannot 

reasonably rely on an offer of at-will employment. A contrary 

holding, defendant argues, would create an unworkable rule 

regarding how long an employer would have to employ new 
290 Cocchiara v. Lithia Motors, Inc.

hires. Moreover, defendant suggests, employees can avoid 

the result faced by plaintiff in this case by entering into 

employment contracts that remove the at-will presumption. 

Alternatively, defendant argues that, even if plaintiff could 

reasonably rely on the offer of employment in this case, he 

still loses because (1) he did not plead damages associated 

with turning down the job with the Medford Mail Tribune, 

and (2) he is not entitled to damages resulting from not 

being hired for the corporate job because defendant could 

have fired him at any time.

AT-WILL EMPLOYMENT DOCTRINE

Both parties agree that, in Oregon, “the general 

rule is that an employer may discharge an employee at any 

time and for any reason, absent a contractual, statutory, or 

constitutional requirement to the contrary.” Washburn v. 

Columbia Forest Products, Inc., 340 Or 469, 475, 134 P3d 

161 (2006). The focus of the at-will employment doctrine is 

on termination: Both the employer and the employee have 

a right to terminate the employment relationship for any 

reason or for no reason without liability. Samuel Williston 

& Richard A. Lord, 1 A Treatise on the Law of Contracts

§ 4:23, 722 (4th ed 2007) (noting that the at-will employment 

doctrine “eventually was adopted by the majority of 

American courts which accepted the notion that it provided 

each party to the employment at-will relationship with a 

right of termination”). As a result, when employment is at 

will, typically, neither party can expect the employment to 

continue for any specified period of time. See Sheets v. Knight, 

308 Or 220, 234 n 13, 779 P2d 1000 (1989), abrogated on 

other grounds by McGanty v. Staudenraus, 321 Or 532, 901 

P2d 841 (1995) (“Because at-will employees may be fired 

at any time and for any reason, they have no reasonable 

expectation of continued employment.” (Emphasis added.)).

Perhaps because the at-will employment doctrine 

focuses on termination, courts have disagreed regarding 

the significance of the at-will nature of employment before 

employment begins. In particular, courts have disagreed 

whether it is reasonable to rely on an offer of at-will 

employment, which in turn affects whether an employer’s 

termination of an at-will employment agreement before the 
Cite as 353 Or 282 (2013) 291

employee begins working is actionable under a theory of 

promissory estoppel or fraudulent misrepresentation. See 

Slate, 166 Or App at 5 (so noting as to promissory estoppel); 

P.G. Guthrie, Annotation, Employer’s Misrepresentation 

as to Prospect, or Duration, of Employment as Actionable 

Fraud, 24 ALR 3d 1412 (1969) (last updated 2009) (compiling 

fraud cases). Compare Grouse v. Group Health Plan, Inc., 

306 NW2d 114, 115-16 (Minn 1981) (allowing claim for 

promissory estoppel where employer revoked offer of at-will 

employment after plaintiff resigned other employment 

and turned down other job offer in reliance on employer’s 

offer), with White v. Roche Biomedical Laboratories, Inc., 

807 F Supp 1212, 1219-20 (DSC 1992), aff’d, 998 F2d 1011 

(4th Cir 1993) (“[R]eliance on a promise consisting solely of 

at-will employment is unreasonable as a matter of law since 

such a promise creates no enforceable rights in favor of the 

employee other than the right to collect wages accrued for 

work performed.”). We turn now to those claims for relief 

under Oregon law.

PROMISSORY ESTOPPEL

Oregon has adopted the Restatement formulation of 

promissory estoppel:

“A promise which the promisor should reasonably expect 

to induce action or forbearance on the part of the promisee 

or a third person and which does induce such action or 

forbearance is binding if injustice can be avoided only by 

enforcement of the promise. The remedy granted for breach 

may be limited as justice requires.”

Restatement (Second) of Contracts § 90(1) (1981); see Schafer 

et al v. Fraser et ux, 206 Or 446, 468-69, 471-72, 290 P2d 

190 (1955) (quoting with approval Restatement of the Law of 

Contracts § 90 (1932)).4

 The Restatement (Second) comments 

4 In Schafer, this court adopted the formulation of promissory estoppel in 

section 90 of Restatement of the Law of Contracts (1932). 206 Or at 468-69, 471-72. 

We quote section 90 of the Restatement (Second) of Contracts here because “most 

of the elements that must be established in order for a plaintiff to successfully 

plead and prove an offensive action based on promissory estoppel *** are similar 

or even identical under both Restatements.” Samuel Williston & Richard A. Lord, 

4 A Treatise on the Law of Contracts § 8:7, 138 (4th ed 2008). Moreover, although 

there are differences between the two Restatements, id., this court has applied the 

Restatement (Second) of Contracts in other cases. See, e.g., Caba v. Barker, 341 Or 

534, 540, 145 P3d 174 (2006) (quoting Restatement (Second) of Contracts).
292 Cocchiara v. Lithia Motors, Inc.

clarify that the requirement that enforcement be necessary 

to avoid injustice “may depend on the reasonableness of the 

promisee’s reliance, [and] on its definite and substantial 

character in relation to the remedy sought,” among other 

things. Restatement (Second) § 90 comment b.

Nothing in our case law or the Restatement (Second) 

suggests that a promisee’s reliance is per se unreasonable if 

the underlying promise is for a contract that is terminable 

at will. Even Slate, on which defendant relies, does not 

foreclose a promissory estoppel claim in all cases of 

at-will employment. See 166 Or App at 7 (“Assuming that 

promissory estoppel ever could provide a basis for recovery 

under circumstances of this general kind, it cannot here.” 

(Internal citation omitted.)). Far from foreclosing such a 

claim, the Restatement (Second) provides the following 

illustration in the section on promissory estoppel:

“A applies to B, a distributor of radios manufactured 

by C, for a ‘dealer franchise’ to sell C’s products. Such 

franchises are revocable at will. B erroneously informs A 

that C has accepted the application and will soon award 

the franchise, that A can proceed to employ salesmen and 

solicit orders, and that A will receive an initial delivery 

of at least 30 radios. A expends $1,150 in preparing to do 

business, but does not receive the franchise or any radios. B 

is liable to A for the $1,150 but not for the lost profit on 30 

radios.”

Restatement (Second) § 90 comment d, illustration 8. 

Similarly to that illustration, in this case Summers 

erroneously informed plaintiff that he had been given a job 

(that was terminable at will) and told him that he should 

turn down the position with the Medford Mail Tribune. The 

Restatement (Second) illustration indicates that the at-will 

nature of an underlying promise of employment does not 

bar a claim based on promissory estoppel, even if it might 

limit the nature of the damages available in some cases.

The Restatement (Second) approach is sound. 

An employer’s legal right to fire an employee at any time 

and for any reason absent contrary contractual, statutory, 

or constitutional requirements does not carry with it a 

conclusive presumption that the employer will exercise that 
Cite as 353 Or 282 (2013) 293

right. See Tadsen v. Praegitzer Industries, Inc., 324 Or 465, 

471, 928 P2d 980 (1996) (rejecting the premise in a wrongful 

discharge case that “an employer should enjoy a conclusive 

presumption that, had it not discharged the employee 

illegally, it would have discharged him or her lawfully at 

any time after it in fact did so unlawfully”). Absent that 

presumption, it may be reasonable for an employee to rely 

on a promise of employment, because the employee may 

have reason to believe that the employer’s right to terminate 

at will not be exercised before the employee begins work. 

Particularly where, as here, the employee has had a lengthy 

employment relationship with his employer, and the 

employer asserts the employee’s value to the company, it 

may be reasonable for the employee to rely on the promise 

of employment, even though the job is terminable at will. 

We caution, however, that reasonableness is an issue for the 

jury, considering all the relevant circumstances. See Schafer, 

206 Or at 481 (noting that issue of reliance in promissory 

estoppel claim “presented a question for the jury”).

The Court of Appeals stated that “‘[i]t is circular 

and not based on reality to argue, as [the plaintiff] does, that 

either his reliance or his change in position was attributable 

to the promise of at will employment rather than the at will 

employment contract itself.’” Cocchiara, 247 Or App at 551 

(quoting Slate, 166 Or App at 7). In Slate, the court went on 

to clarify that no injustice would be avoided by allowing a 

party to recover for revocation of a promise of employment 

when the same party would not be entitled to recover for 

the “termination of the consummated contract.” Slate, 166 

Or App at 8. That is similar to the argument that defendant 

makes—and that we reject—in this case. Although an 

employer has a right to fire an at-will employee—though not 

for an unlawful reason—without liability, the fact that the 

employer has that right does not mean that a prospective 

employee can never reasonably rely on a promise of at-will 

employment. And if a prospective employee does reasonably 

rely on such a promise, a remedy may be necessary to avoid 

injustice.

In addition to challenging the reasonableness of 

plaintiff’s reliance in the context of an at-will job, defendant 

argues that plaintiff cannot survive summary judgment 
294 Cocchiara v. Lithia Motors, Inc.

because plaintiff did not plead damages associated with the 

job that he turned down at the Medford Mail Tribune, and 

plaintiff is not entitled to recover damages associated with 

the corporate job because he could have been fired from that 

job at any time. In response, plaintiff asserts that a decision 

in this case should not turn on the type of damages that were 

or were not alleged because the motion for partial summary 

judgment was not focused on damages, and that, at least 

in the context of promissory estoppel, plaintiff would be 

entitled to damages associated with the loss of the corporate 

job if he proved the necessary elements of that claim. As 

noted, the Court of Appeals agreed with defendant:

“Our holding here * ** is based on our conclusion that 

plaintiff has not alleged any claim for damages that fairly 

can be said to spring from defendant[’s] failure to give him 

the corporate job; as a matter of law, plaintiff could not prove 

any entitlement to lost wages from that job, as defendant[] 

could have fired him from it at any time.”

Cocchiara, 247 Or App at 554 (emphasis added).

At the outset, we note that defendant does not 

argue, nor did the Court of Appeals conclude, that, in 

general, damages associated with the corporate job could 

not be recovered in an action for promissory estoppel (or 

fraudulent misrepresentation). Instead, both defendant and 

the Court of Appeals relied on Slate for the proposition that 

the at-will nature of the corporate job precluded plaintiff 

from recovering lost wages for that job. However, this court 

has rejected a similar proposition in a wrongful discharge 

case. In Tadsen, 324 Or 465, a jury awarded front pay to 

an at-will employee who had alleged unlawful employment 

practices, including wrongful discharge, and this court 

affirmed the trial court’s denial of a motion to strike the 

claim for front pay.5

 In that case, the employer had argued 

that an at-will employee cannot recover front pay because 

the employee has no “‘right’ to, or assurance of” future 

employment. Tadsen, 324 Or at 470-71. This court rejected 

that argument:

5 The court in Tadsen explained that “front pay” is “a short hand term 

frequently used in federal courts and administrative agencies to refer to future 

lost pay and benefits.” 324 Or at 467 n 5. 
Cite as 353 Or 282 (2013) 295

“We decline to hold that an at-will employee never can 

prove the requisite facts for an award of front pay. The 

fact that at-will employment may be terminated for any 

nondiscriminatory purpose does not necessarily mean that 

the likely duration of that employment is incapable of proof 

to the required degree of certainty. At-will employment 

may be a factor that bears on whether the proof is sufficient 

in a particular case, but the right to terminate someone’s 

employment does not establish as a matter of law that an 

employee cannot prove the existence of front pay damages.”

Id. at 471 (emphasis added).

Similarly, in this case, the fact that the corporate 

job was terminable at will, standing alone, does not create a 

conclusive presumption that plaintiff cannot prove damages 

related to the loss of that job. Instead, as in Tadsen, plaintiff 

may seek to prove what he would have earned in the 

corporate job and how long he likely would have remained in 

that job had he been hired as promised and allowed to start 

work. Although it may be easier for a plaintiff to prove the 

likely duration of employment in a wrongful discharge case, 

where the employee has a history of employment with the 

employer, a plaintiff is entitled to attempt to make such a 

showing outside the wrongful discharge context. Of course, 

if an employer lawfully fires an employee after the employee 

has started work, which could include firing the employee 

for no reason at all under the at-will employment doctrine, 

the employee will not be able to show that the job would 

have continued beyond that point. In this case, however, 

plaintiff was not allowed to start the corporate job; indeed, 

the employer told him that he had never actually been hired 

for that job, making it difficult for the employer to argue 

that plaintiff was lawfully fired. Thus, the general principle 

from Tadsen applies in this case: The at-will nature of the 

employment does not foreclose plaintiff from attempting to 

prove the likely duration of employment had he been hired 

as promised and allowed to start work, although “[a]t-will 

employment may be a factor that bears on whether the proof 

is sufficient in a particular case[.]” Id. Whether plaintiff is 

ultimately entitled to recover damages associated with not 

being hired for the corporate job, and in what amount, is not 

before this court. Nonetheless, defendant is not entitled to 
296 Cocchiara v. Lithia Motors, Inc.

judgment as a matter of law solely because the corporate job 

was terminable at will.

We recognize that allowing a prospective employee 

to bring a promissory estoppel claim raises practical concerns 

that the Court of Appeals articulated in Slate: “It would 

serve the interests of no one—least of all new professional 

persons in search of work—to discourage putative employers 

from discharging them earlier rather than later, under 

circumstances where there is no possibility that an actual 

employment relationship will ever exist.” 166 Or App at 5-6. 

On the other hand, as the Eighth Circuit has recognized:

“[I]f damages sustained in reasonable reliance on an 

employer promise were not available, the effect of such 

a rule would be to allow the employer to take advantage 

of whatever benefits might accrue to him by his inducing 

a potential employee to leave behind home and/or steady 

employment while at the same time being completely free 

of any obligation to keep his word.”

Bower v. AT & T, Technologies, Inc., 852 F2d 361, 364 (8th 

Cir 1988). Moreover, a rule barring a promissory estoppel 

(or fraudulent misrepresentation) claim would allow 

an employer to abuse its ability to induce the reliance of 

prospective employees. For example, an employer could 

promise an at-will job to multiple people to keep them 

available while the employer continued to vet them or to 

prevent them from accepting a position with a competitor. 

Acknowledging the possibility of reasonable reliance 

“encourages employers [and employees] to take [their] 

promises seriously,” id., and, more importantly, is consistent 

with the law of promissory estoppel.

FRAUDULENT MISREPRESENTATION

This court has previously articulated the elements 

of a common law fraud claim, also known as an action in 

deceit, in more than one way, which is not surprising because 

“fraud” is “‘a term so vague that it requires definition 

in nearly every case.’” Riley Hill General Contractor v. 

Tandy Corp., 303 Or 390, 405, 737 P2d 595 (1987) (quoting

W. Page Keeton, et al., Prosser and Keeton on the Law of 

Torts § 105, 727 (W. Page Keeton ed., 5th ed 1984)). For 

purposes of this case, two elements that are consistently 
Cite as 353 Or 282 (2013) 297

required for a fraud claim are relevant: justifiable reliance 

and damages. See Riley Hill General Contractor, 303 Or 

at 405 (listing five elements of action in deceit, including “‘[j]ustifiable reliance upon the representation’” and

“‘[d]amage to the plaintiff, resulting from such reliance’” 

(quoting Keeton, Prosser and Keeton on the Law of Torts

§ 105 at 728)); U.S. National Bank v. Fought, 291 Or 201, 220-

21, 630 P2d 337 (1981) (listing nine elements of an action 

in deceit, including “‘reliance on [the misrepresentation’s] 

truth,’” a “‘right to rely thereon,’” and “‘consequent and 

proximate injury’” (quoting Conzelmann v. N. W. P. & D. 

Prod. Co., 190 Or 332, 350, 225 P2d 757 (1950))).

As noted, the Court of Appeals rejected plaintiff’s 

fraud claim because the court determined that plaintiff could 

not prove the elements of justifiable reliance and damages. 

The court noted that the “alleged misrepresentations *** 

simply mirror the alleged promise”—that plaintiff had 

been given the corporate job—and the court had already 

held both that plaintiff could not reasonably rely on that 

promise and that plaintiff was not entitled to any damages 

associated with that promise. Cocchiara, 247 Or App at 

550-52. Thus, the reasoning the court applied to the claim 

for promissory estoppel similarly applied to the claim for 

fraudulent misrepresentation.

As with our analysis above of the promissory 

estoppel claim, we disagree with the Court of Appeals that, 

for purposes of his fraud claim, plaintiff could not reasonably 

rely on defendant’s statement that plaintiff had definitely 

been given the corporate job. In a fraud claim,

“[t]he principal argument in support of some such 

requirement as justifiability of reliance would seem 

to be that of providing some objective corroboration to 

plaintiff’s claim that he did rely. * ** [T]he foolish nature 

of the plaintiff’s conduct if he did rely is relevant primarily 

because of the likelihood that he did not rely.”

Keeton, Prosser and Keeton on the Law of Torts § 108 at 749-

50. In this case, a jury could find that plaintiff reasonably 

relied on defendant’s promise, because a jury could find that 

he was planning to accept the job with the Medford Mail 

Tribune—as evidenced by plaintiff notifying Summers that 
298 Cocchiara v. Lithia Motors, Inc.

he planned to take that job—until defendant offered him 

the corporate job.

Moreover, the standard for reasonable or justifiable 

reliance in the context of fraud is both subjective and 

objective:

“If he is a person of normal intelligence, experience and 

education, he may not put faith in representations which 

any such normal person would recognize at once as 

preposterous * * * or which are shown by facts within his 

observation to be so patently and obviously false that he 

must have closed his eyes to avoid discovery of the truth, 

and still compel the defendant to be responsible for his loss.

“*****

“[T]he matter seems to turn upon an individual standard 

of the plaintiff’s own capacity and the knowledge which he 

has, or which may fairly be charged against him from the 

facts within his observation in the light of his individual 

case[.]”

Keeton, Prosser and Keeton on the Law of Torts § 108 at 750-

51 (footnote omitted). “Normal” people rely on offers of at-will 

employment every day, or at least a jury would be entitled to 

so find, based on the facts in a particular case. Here, a jury 

could find that plaintiff’s reliance was not “preposterous” 

or based on plaintiff ignoring an obviously false statement, 

particularly given Summers’ assertion about plaintiff’s 

value to the company and his recommendation that plaintiff 

turn down the Medford Mail Tribune job.

In addition, allowing fraud claims in the context of 

at-will employment serves the purpose behind allowing fraud 

claims: “The type of interest protected by the law of deceit 

is the interest in formulating business judgments without 

being misled by others—in short, in not being cheated.” 

Riley Hill General Contractor, 303 Or at 407. If employers 

could make misleading statements to prospective at-will 

employees without liability, business judgments regarding 

employment would not be protected from deceit. Business 

judgments regarding at-will employment inherently involve 

some risk, and a prospective employee (or employer) should 

be able to evaluate that risk without the interference of 

fraud.
Cite as 353 Or 282 (2013) 299

Although a prospective employee can bring a 

fraudulent misrepresentation claim in the context of at-will 

employment, we emphasize that there are limitations on 

those claims. Most notably, a plaintiff will have to prove 

damages to bring a successful claim. See, e.g., Riley Hill 

General Contractor, 303 Or at 405 (listing damage to the 

plaintiff as an element of a fraud claim). Nonetheless, 

plaintiff’s decision to plead only damages associated 

with the loss of the corporate job—rather than damages 

associated with turning down the Medford Mail Tribune 

job—does not defeat his fraud claim, as the Court of Appeals 

suggested. See Cocchiara, 247 Or App at 552. As noted, the 

at-will nature of employment does not create a conclusive 

presumption barring a plaintiff from recovering future lost 

pay where the employee has been unlawfully terminated 

from the job, Tadsen, 324 Or at 470-71, or, as in this case, 

where plaintiff was never hired as promised or allowed 

to start work. Because this case was decided on a motion 

for summary judgment, however, whether plaintiff can 

sufficiently prove his damages associated with not being 

hired for the corporate job is not now before this court.

For those reasons, the Court of Appeals erred in 

determining that, as a matter of law, plaintiff could not 

reasonably rely on defendant’s representations and could 

not recover future lost wages solely because of the at-will 

nature of the corporate job. We emphasize that our holding 

goes no further, and we express no view as to whether 

plaintiff’s reliance was in fact reasonable, whether plaintiff 

can satisfy the other elements of his promissory estoppel and 

fraudulent misrepresentation claims, or whether plaintiff is 

entitled to recover his claimed damages.

The decision of the Court of Appeals is reversed. 

The judgment of the circuit court is reversed, and the case 

is remanded to the circuit court for further proceedings.