GIERKE, Justice.
Patricia Larson, Darrold Larson, David Pence, Terri Carlson, John Robertson, Robyn Robertson, and Loralee Isaacson, directors of FM Women’s Help & Caring Connection, Inc., have appealed from a district court judgment holding them jointly and severally liable for damages to Fargo Women’s Health Organization, Inc. (Women’s Health). We affirm.
We related some of the underlying facts and assertions in Fargo Women’s Health Organization v. Larson, 381 N.W.2d 176, 177-178 (N.D.), cert, denied, 476 U.S. 1108, 106 S.Ct. 1957, 90 L.Ed.2d 365 (1986):
“The plaintiffs (Women’s Health) operate a medical clinic in Fargo which performs abortions. The Help Clinic,» also operating in Fargo, provides pregnancy tests and anti-abortion counseling services but does not perform abortions. During January 1985, Women’s Health filed an action for damages and injunctive relief asserting that the Help Clinic, through false and deceptive advertising and related activity, misleads persons into believing that abortions are conducted at the clinic with the intent of deceptively luring those persons to the clinic to unwittingly receive anti-abortion propaganda. Women’s Health also asserts [684]*684that the Help Clinic uses the similar name ‘Women’s Help Clinic’ to intentionally confuse women seeking abortions from Women’s Health and to cause them to mistakenly contact the Help Clinic.
* * # * *
“The trial court’s order imposing a preliminary injunction provided in relevant part:
“‘THEREFORE IT IS ORDERED, ... that the defendant be enjoined from using the name Women’s Help Clinic, or comparable words which are similar, and confusing....
“ ‘... [Tjhat the defendants ... shall be prohibited from falsely and deceptively advertising that they provide elective abortions and financial assistance for such services.
“ ‘... [Tjhat the defendants do not falsely lull people that come to them for counseling into thinking that they are, in fact, the Women’s Health Organization or the Fargo Women’s Health Organization, Inc. and that the defendants take no action or inaction which would lull people into believing that they are dealing with the Fargo Women’s Health Organization, Inc. when they are in fact dealing with defendants or F-M Women’s Help and Caring Connection, Inc....
“ ‘... [Tjhat if the defendants advertise using the term abortion, then they must state that they do not perform abortions.’ ”
We modified the injunction by striking the last sentence and affirmed it as modified.
In Fargo Women’s Health Organization, Inc. v. Larson, 391 N.W.2d 627 (N.D.1986), the trial court issued an order finding the Women’s Help Clinic and its directors in contempt for violating the preliminary injunction we affirmed in Fargo Women’s Health Organization, Inc., supra, 381 N.W.2d 176. We affirmed as to Women’s Help Clinic and some of its directors, but reversed as to other directors.
The trial court found that when the defendants started advertising there was a noticeable decline in Women’s Health’s business and that Women’s Health began advertising “to counteract the Defendants’ advertising ... in its effort to mitigate its damages.” By its special verdict, the jury found that the Defendants violated our false advertising statute, proximately causing damages to Women’s Health in the amount of $23,500, and assessed punitive damages in the amount of $5,500. Judgment was entered accordingly and the defendants appealed, contending that damages may not be recovered for violation of the false advertising statutes and that the trial court erred in allowing punitive damages and costs.
Chapter 51-12, N.D.C.C., makes false advertising unlawful, provides that a violation is a class B misdemeanor, and authorizes actions to enjoin violations of the chapter. Chapter 51-12 does not mention suits to recover damages. The defendants argue that criminal penalties and injunctions are the exclusive remedies for false advertising and that the courts may not allow damage claims. We disagree.
Violation of a statute may be both a crime and a tort, and there may be both a civil tort action and a criminal prosecution for the same act. See, e.g., Dahlen v. Landis, 314 N.W.2d 63 (N.D.1981); Prosser and Keeton on Torts, §§ 2, 36 (5th Ed.1984). The defendants’ arguments ignore the role of the judiciary in the expression of law. See § 1-01-03, N.D.C.C. [“The will of the sovereign power is expressed by: ... 7. The decisions of the tribunals enforcing those rules, which, though not enacted, form what is known as customary or common law.”j. “Tort law is overwhelmingly common law, developed in case-by-case decisionmaking by courts.” Prosser and Keeton, supra, § 3, p. 19. Defendants’ arguments also ignore legislative enactments such as §§ 9-10-01,1 9-10-0[685]*6856,2 and 32-03-01,3 N.D.C.C.
“The violation of a statute or ordinance may be considered as evidence of negligence.” Keyes v. Amundson, 391 N.W.2d 602, 608 (N.D.1986). We said in Keyes, supra, 391 N.W.2d at 608:
“We believe the appropriate approach in determining whether or not a plaintiff’s injury is of the kind that an ordinance was intended to prevent requires interpreting the purpose of the ordinance to include all risks that may reasonably be anticipated as likely to follow from its violation.”
Just as “[djanger invites rescue” [ Wagner v. International Ry. Co., 232 N.Y. 176,133 N.E. 437 (1921)], deception invites correction. Furthermore, a person injured by another’s wrongful act must “exercise reasonable care to avoid loss or to minimize the resulting damages” [Schneidt v. Absey Motors, Inc., 248 N.W.2d 792, 796 (N.D.1976)] and “may not recover for damages which could have been avoided by reasonable efforts” [,Johnson v. Monsanto Co., 303 N.W.2d 86, 92 (N.D.1981)]. Women’s Health sought to counteract the defendants’ false advertising with corrective advertising to mitigate its damages and sued to recover the cost of that advertising. In our view, injury to a competitor (and the expense of mitigating damages) is a risk that may reasonably be anticipated as likely to follow from a violation of the false advertising statutes.
Chapter 51-12, N.D.C.C., is a consumer protection statute, remedial in nature, which “must be liberally construed in favor of protecting consumers.” State ex rel. Spaeth v. Eddy Furniture Co., 386 N.W.2d 901, 903 (N.D.1986). “Disseminating false information is a wrong against both consumer and competitor.” Note, Competitive Torts, 11 Harvard L.Rev. 888, 892 (1964).
Free access — add to your briefcase to read the full text and ask questions with AI
GIERKE, Justice.
Patricia Larson, Darrold Larson, David Pence, Terri Carlson, John Robertson, Robyn Robertson, and Loralee Isaacson, directors of FM Women’s Help & Caring Connection, Inc., have appealed from a district court judgment holding them jointly and severally liable for damages to Fargo Women’s Health Organization, Inc. (Women’s Health). We affirm.
We related some of the underlying facts and assertions in Fargo Women’s Health Organization v. Larson, 381 N.W.2d 176, 177-178 (N.D.), cert, denied, 476 U.S. 1108, 106 S.Ct. 1957, 90 L.Ed.2d 365 (1986):
“The plaintiffs (Women’s Health) operate a medical clinic in Fargo which performs abortions. The Help Clinic,» also operating in Fargo, provides pregnancy tests and anti-abortion counseling services but does not perform abortions. During January 1985, Women’s Health filed an action for damages and injunctive relief asserting that the Help Clinic, through false and deceptive advertising and related activity, misleads persons into believing that abortions are conducted at the clinic with the intent of deceptively luring those persons to the clinic to unwittingly receive anti-abortion propaganda. Women’s Health also asserts [684]*684that the Help Clinic uses the similar name ‘Women’s Help Clinic’ to intentionally confuse women seeking abortions from Women’s Health and to cause them to mistakenly contact the Help Clinic.
* * # * *
“The trial court’s order imposing a preliminary injunction provided in relevant part:
“‘THEREFORE IT IS ORDERED, ... that the defendant be enjoined from using the name Women’s Help Clinic, or comparable words which are similar, and confusing....
“ ‘... [Tjhat the defendants ... shall be prohibited from falsely and deceptively advertising that they provide elective abortions and financial assistance for such services.
“ ‘... [Tjhat the defendants do not falsely lull people that come to them for counseling into thinking that they are, in fact, the Women’s Health Organization or the Fargo Women’s Health Organization, Inc. and that the defendants take no action or inaction which would lull people into believing that they are dealing with the Fargo Women’s Health Organization, Inc. when they are in fact dealing with defendants or F-M Women’s Help and Caring Connection, Inc....
“ ‘... [Tjhat if the defendants advertise using the term abortion, then they must state that they do not perform abortions.’ ”
We modified the injunction by striking the last sentence and affirmed it as modified.
In Fargo Women’s Health Organization, Inc. v. Larson, 391 N.W.2d 627 (N.D.1986), the trial court issued an order finding the Women’s Help Clinic and its directors in contempt for violating the preliminary injunction we affirmed in Fargo Women’s Health Organization, Inc., supra, 381 N.W.2d 176. We affirmed as to Women’s Help Clinic and some of its directors, but reversed as to other directors.
The trial court found that when the defendants started advertising there was a noticeable decline in Women’s Health’s business and that Women’s Health began advertising “to counteract the Defendants’ advertising ... in its effort to mitigate its damages.” By its special verdict, the jury found that the Defendants violated our false advertising statute, proximately causing damages to Women’s Health in the amount of $23,500, and assessed punitive damages in the amount of $5,500. Judgment was entered accordingly and the defendants appealed, contending that damages may not be recovered for violation of the false advertising statutes and that the trial court erred in allowing punitive damages and costs.
Chapter 51-12, N.D.C.C., makes false advertising unlawful, provides that a violation is a class B misdemeanor, and authorizes actions to enjoin violations of the chapter. Chapter 51-12 does not mention suits to recover damages. The defendants argue that criminal penalties and injunctions are the exclusive remedies for false advertising and that the courts may not allow damage claims. We disagree.
Violation of a statute may be both a crime and a tort, and there may be both a civil tort action and a criminal prosecution for the same act. See, e.g., Dahlen v. Landis, 314 N.W.2d 63 (N.D.1981); Prosser and Keeton on Torts, §§ 2, 36 (5th Ed.1984). The defendants’ arguments ignore the role of the judiciary in the expression of law. See § 1-01-03, N.D.C.C. [“The will of the sovereign power is expressed by: ... 7. The decisions of the tribunals enforcing those rules, which, though not enacted, form what is known as customary or common law.”j. “Tort law is overwhelmingly common law, developed in case-by-case decisionmaking by courts.” Prosser and Keeton, supra, § 3, p. 19. Defendants’ arguments also ignore legislative enactments such as §§ 9-10-01,1 9-10-0[685]*6856,2 and 32-03-01,3 N.D.C.C.
“The violation of a statute or ordinance may be considered as evidence of negligence.” Keyes v. Amundson, 391 N.W.2d 602, 608 (N.D.1986). We said in Keyes, supra, 391 N.W.2d at 608:
“We believe the appropriate approach in determining whether or not a plaintiff’s injury is of the kind that an ordinance was intended to prevent requires interpreting the purpose of the ordinance to include all risks that may reasonably be anticipated as likely to follow from its violation.”
Just as “[djanger invites rescue” [ Wagner v. International Ry. Co., 232 N.Y. 176,133 N.E. 437 (1921)], deception invites correction. Furthermore, a person injured by another’s wrongful act must “exercise reasonable care to avoid loss or to minimize the resulting damages” [Schneidt v. Absey Motors, Inc., 248 N.W.2d 792, 796 (N.D.1976)] and “may not recover for damages which could have been avoided by reasonable efforts” [,Johnson v. Monsanto Co., 303 N.W.2d 86, 92 (N.D.1981)]. Women’s Health sought to counteract the defendants’ false advertising with corrective advertising to mitigate its damages and sued to recover the cost of that advertising. In our view, injury to a competitor (and the expense of mitigating damages) is a risk that may reasonably be anticipated as likely to follow from a violation of the false advertising statutes.
Chapter 51-12, N.D.C.C., is a consumer protection statute, remedial in nature, which “must be liberally construed in favor of protecting consumers.” State ex rel. Spaeth v. Eddy Furniture Co., 386 N.W.2d 901, 903 (N.D.1986). “Disseminating false information is a wrong against both consumer and competitor.” Note, Competitive Torts, 11 Harvard L.Rev. 888, 892 (1964). However, the interest of a consumer wronged by false advertising “will seldom be sufficiently great to impel him to bring suit. The injured competitor therefore may stand as the most effective private vindicator of both his and the consumer’s interest in accurate product information.” Id. As Judge Linde, concurring in Bob Godfrey Pontiac, Inc. v. Roloff 291 Or. 318, 630 P.2d 840, 854 (1981), observed:
“Often it will be cold comfort to the victim of a forbidden act that the wrongdoer will be disciplined, if this excludes liability for damages or other compensation to the injured person, and this policy choice should not be presumed to be implicit in legislative silence.”
In light of the foregoing considerations and “[i]n light of the strong public policy underpinnings of our false advertising and consumer fraud statutes” (State ex rel. Spaeth v. Eddy Furniture Co., supra, 386 N.W.2d at 903), we conclude that a legislative policy choice to insulate false advertisers from liability for damages resulting from violation of our false advertising statutes “should not be presumed to be implicit in legislative silence” with regard to actions for damages. We therefore hold that criminal penalties and injunctions are not the exclusive remedies for false advertising and that one injured by a violation of our false advertising statutes may bring an action to recover damages.
“The two essential primary elements of a cause of action in tort are wrongful conduct by one party followed by damages to the other.” Carroll v. Rye Twp., 13 N.D. 458, 101 N.W. 894, 895 (1904). Chapter 51-12, N.D.C.C., declares that false advertising is wrongful conduct. By its special verdict, the jury found wrongful conduct by the defendants, followed by damages to Women’s Health. Thus, both “essential primary elements of a cause of action in tort” were met and we find no error in the trial court’s allowance of damages resulting from the defendants’ false advertising.
[686]*686The defendants complain that the plaintiffs did not disclose the legal theory upon which they were relying and that the trial court did not state “the legal basis for its monetary award.” “There is no necessity whatever that a tort have a name. New and nameless torts are being recognized constantly.” Prosser and Keeton, supra, § 1, p. 3. Pleadings need only “advise the other party of the event being sued upon.” 5 C. Wright & A. Miller, Federal Practice and Procedure: Civil, § 1202, p. 60 (1969). The theory-of-the-pleadings doctrine has been abolished. Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707 (8th Cir. 1979); 5 C. Wright & A. Miller, supra, § 1219; 2A Moore’s Federal Practice 118.14 (1987). A pleading need only contain a short and plain statement of the claim; it is not necessary to set out the legal theory upon which the claim is based. Connecticut Gen. Life Ins. Co. v. Universal Ins. Co., 838 F.2d 612 (1st Cir.1988); Siegelman v. Cunard White Star Ltd., 221 F.2d 189 (2d Cir.1955).
The defendants contend that the trial court erred in granting punitive damages. The only argument presented is that “[a]s there has been no tortious harm committed in this case, the exemplary award based upon these fallacious grounds should be overturned.” Our conclusion that the trial court did not err in allowing damages as a result of the defendants’ false advertising is dispositive of this argument. We find no error in allowing punitive damages.
The defendants contend that the trial court erred in allowing court costs, arguing that “there is no statutory or common law basis for the award of costs in this case.” Chapter 28-26, N.D.C.C., provides for the allowance of costs and disbursements. Section 28-26-06, for example, provides for the taxation of a prevailing party’s disbursements, while § 28-26-10, provides that “costs may be allowed for or against either party in the discretion of the court.” We find no error in the allowance of costs.
The judgment is affirmed.
ERICKSTAD, C.J., and MESCHKE and LEVINE, JJ., concur.