damages

A pecuniary compensation or indemnity, which may be recovered in the courts by any person who has suffered loss, detriment, or injury, whether to his person, property, or rights, through the unlawful act or omission or negligence of another. A sum of money awarded to a person injured by the tort of another. Restatement, Second, Torts, No. 12A.

Money compensation sought or awarded as a remedy for a breach of contract or for tortious acts. Damages may be compensatory or punitive according to whether they are awarded as the measure of actual loss suffered or as punishment for outrageous conduct and to deter future transgressions. Nominal damages are awarded for the vindication of a right where no real loss or injury can be proved. Generally, punitive or exemplary damages are awarded only if compensatory or actual damages have been sustained.

See also economic loss

- injury

- just compensation

- loss

- pain and suffering.

- actual damages

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@ benefit-of-the-bargain damages

Difference between the value received and the value of the fraudulent party's performance as represented.

@ Civil Damage Acts

See Dram Shop Acts

@ compensatory damages

Compensatory damages are such as will compensate the injured party for the injury sustained, and nothing more; such as will simply make good or replace the loss caused by the wrong or injury

Damages awarded to a person as compensation, indemnity, or restitution for harm sustained by him

The rationale behind compensatory damages is to restore the injured party to the position he or she was in prior to the injury. Northwestern Nat. Cas. Co. v. McNulty, C.A.Fla., 307 F.2d 432, 434. equivalent of actual damages, above.

Compensatory or actual damages consist of both general and special damages. General damages are the natural, necessary, and usual result of the wrongful act or occurrence in question. Special damages are those "which are the natural, but not the necessary and inevitable result of the wrongful act."

@ consequential damages

Such damage, loss or injury as does not flow directly and immediately from the act of the party, but only from some of the consequences or results of such act. Richmond Redevelopment and Housing Authority v. Laburnum Const. Corp., 195 Va. 827, 80 S.E.2d 574, 580.

Damages which arise from intervention of special circumstances not ordinarily predictable. Roanoke Hospital Ass'n v. Doyle & Russell, Inc., 215 Va. 796, 214 S.E.2d 155, 160.

Those losses or injuries which are a result of an act but are not direct and immediate.

Consequential damages resulting from a seller's breach of contract include any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise, and injury to person or property proximately resulting from any breach of warranty. U.C.C. No. 2-715(2).

See also Hadley v. Baxendale, rule of; and incidental damages, below.

@ continuing damages

Continuing damages. Such as accrue from the same injury, or from the repetition of similar acts, between two specified periods of time.

@ criminal damage

Criminal damage. Criminal damage to property is by means other than by fire or explosive:

(a) Willfully injuring, damaging, mutilating, defacing, destroying, or substantially impairing the use of any property in which another has an interest without the consent of such other person; or

(b) Injuring, damaging, mutilating, defacing, destroying, or substantially impairing the use of any property with intent to injure or defraud an insurer or lienholder.

See arson

@ damages ultra

Additional damages claimed by a plaintiff not satisfied with those paid into court by the defendant

@ direct damages

Direct damages are such as follow immediately upon the act done. Damages which arise naturally or ordinarily from breach of contract; they are damages which, in ordinary course of human experience, can be expected to result from breach. Roanoke Hospital Ass'n v. Doyle & Russell, Inc., 215 Va. 796, 214 S.E.2d 155, 160.

@ excessive damages

Damages awarded by a jury which are grossly in excess of the amount warranted by law on the facts and circumstances of the case; unreasonable or outrageous damages.

See remittitur.

@ excess liability damages

A cause of action in tort by an insured against his liability carrier for the negligent handling of settlement negotiations which result in a judgment against the insured in excess of his policy limits. G. A. Stowers Furniture Co. v. American Indemnity Co., Tex.Com.App., 15 S.W.2d 544.

@ exemplary or punitive damages

@ punitive damages

@ punitory damages

@ exemplary damages

@ exemplary or punitive damages

exemplary or punitive damages or punitory damages

Exemplary damages are damages on an increased scale, awarded to the plaintiff over and above what will barely compensate him for his property loss, where the wrong done to him was aggravated by circumstances of violence, oppression, malice, fraud, or wanton and wicked conduct on the part of the defendant, and are intended to solace the plaintiff for mental anguish, laceration of his feelings, shame, degradation, or other aggravations of the original wrong, or else to punish the defendant for his evil behavior or to make an example of him, for which reason they are also called "punitive" or "punitory" damages or "vindictive" damages (punitory damages, vindictive damages).

Unlike compensatory or actual damages (compensatory damages or actual damages), punitive or exemplary damages are based upon an entirely different public policy consideration-that of punishing the defendant or of setting an example for similar wrongdoers, as above noted. In cases in which it is proved that a defendant has acted willfully, maliciously, or fraudulently, a plaintiff may be awarded exemplary damages in addition to compensatory or actual damages. Damages other than compensatory damages which may be awarded against person to punish him for outrageous conduct. Wetherbee v. United Ins. Co. of America, 18 C.A.Sd 266, 95 Cal.Rptr. 678, 680.

Such are given as an enhancement of compensatory damages because of wanton, reckless, malicious or oppressive character of acts complained of. Cape Publications, Inc. v. Bridges, Fla.App., 387 So.2d 436, 440.

+ exemplary damages

/agzempbriy daemajaz/ Damages on an increased scale, awarded to plaintiff over and above actual or ordinary damages, where wrong done to plaintiff was aggravated by circumstances of violence, oppression, malice, fraud, or wanton and wicked conduct on part of defendant. Goines v. Pennsylvania R. R., 208 Misc. 103, 143 N.Y.S.2d 576, 583.

See also damages (punitive damages exemplary or punitive damages)

@ expectancy damages

As awarded in actions for nonperformance of contract, such damages are calculable by subtracting the injured party's actual dollar position as a result of the breach from that party's projected dollar position had performance occurred. The goal is to ascertain the dollar amount necessary to ensure that the aggrieved party's position after the award will be the same-to the extent money can achieve the identity-as if the other party had performed. Alover Distrib., Inc. v. Kroger Co., C.A.I11., 513 F.2d 1137, 1140.

@ fee damages

Damages sustained by and awarded to an abutting owner of real property occasioned by the construction and operation of an elevated railroad in a city street, are so called, because compensation is made to the owner for the injury to, or deprivation of, his easements of light, air, and access, and these are parts of the fee.

@ foreseeable damages

Loss that the party in breach had reason to know of when the contract was made.

@ future damages

Those sums awarded to an injured party for, among other things, residuals or future effects of an injury which have reduced the capability of an individual to function as a whole man, future pain and suffering, loss or impairment of earning capacity, and future medical expenses. Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618, 631.

Those damages that flow as a natural and necessary result of the act claimed of, while "special damages" are damages which actually result from the act by reason of the special circumstances of the case and not as a necessary result of the act. Porter v. Crawford & Co., Mo.App., 611 S.W.2d 265, 271.

Compare special damages.

@ general damages

Such as the law itself implies or presumes to have accrued from the wrong complained of, for the reason that they are its immediate, direct, and proximate result, or such as necessarily result from the injury, or such as did in fact result from the wrong, directly and proximately, and without reference to the special character, condition, or circumstances of the plaintiff. Myers v. Stephens, 43 Cal.Rptr. 420, 433, 233 C.A.2d 104.

@ hedonic damages

Damages awarded in some jurisdictions for the loss of enjoyment of life, or for the value of life itself, as measured separately from the economic productive value that an injured or deceased person would have had. Compensation to a personal injury victim "for the limitations on the person's life created by the injury." Thompson v. National Railroad Passenger Corp., C.A.Tenn., 621 F.2d 814, 824.

Many courts hold that such loss is included in damages for disability and pain and suffering.

See also damages

@ inadequate damages

Damages are called "inadequate," within the rule that an injunction will not be granted where adequate damages at law could be recovered for the injury sought to be prevented, when such a recovery at law would not compensate the parties and place them in the position in which they formerly stood.

See also damages

@ incidental damages

Under U.C.C. No. 2-710, such damages include any commercially reasonable charges, expenses or commissions incurred in stopping delivery, in the transportation, care and custody of goods after the buyer's breach, in connection with the return or resale of the goods or otherwise resulting from the breach. Also, such damages, resulting from a seller's breach of contract, include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach. U.C.C. No. 2-715(1).

See also consequential damages, damages.

@ irreparable damages

In the law pertaining to injunctions, damages for which no certain pecuniary standard exists for measurement. Damages not easily ascertainable at law. With reference to public nuisances which a private party may enjoin, the term includes wrongs of a repeated and continuing character, or which occasion damages estimable only by conjecture, and not by any accurate standard.

See also damages

@ land damages

A term sometimes applied to the amount of compensation to be paid for land taken under the power of eminent domain or for injury to, or depreciation of, land adjoining that taken.

See just compensation; also, severance damages, below, this topic.

@ limitation of damages

Provision in contract or agreement by which parties agree in advance as to the amount or limit of damages for breach. U.C.C. No. 2-718.

See also liquidated damages and penalties.

@ liquidated damages and penalties

Liquidated damages and penalties.

The term is applicable when the amount of the damages has been ascertained by the judgment in the action, or when a specific sum of money has been expressly stipulated by the parties to a bond or other contract as the amount of damages to be recovered by either party for a breach of the agreement by the other. Stein v. Bruce, 366 S.W.2d 732, 735.

The purpose of a penalty is to secure performance, while the purpose of stipulating damages is to fix the amount to be paid in lieu of performance. The essence of a penalty is a stipulation as in terrorem while the essence of liquidated damages is a genuine covenanted pre-estimate of such damages.

Liquidated damages is the sum which party to contract agrees to pay if he breaks some promise and, which having been arrived at by good faith effort to estimate actual damage that will probably ensue from breach, is recoverable as agreed damages if breach occurs. In re Plywood Co. of Pa., C.A.Pa., 425 F.2d 151, 154.

Such are those damages which are reasonably ascertainable at time of breach, measurable by fixed or established external standard, or by standard apparent from documents upon which plaintiffs based their claim. Ramada Development Co. v. U.S. Fidelity & Guaranty Co., C.A.Mich., 626 F.2d 517, 525.

Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty. U.C.C. No. 2-718(1)

Compare unliquidated damages.

@ mitigation of damages

Although the law of damages contemplates full and just compensation for negligently inflicted injuries, the law likewise prescribes, as a reciprocal principle, that a tortfeasor should not sustain liability for those damages not attributable to the injury producing event. Consequently, a plaintiff may not recover damages for the effects of an injury which reasonably could have been avoided or substantially ameliorated. This limitation on recovery is generally denominated as "mitigation of damages" or "avoidance of consequences." Mitigation of damages or avoidance of consequences arises only after the injury producing event has occurred.

+ mitigation of damages

Doctrine of "mitigation of damages," sometimes called doctrine of avoidable consequences, imposes on party injured by breach of contract or tort duty to exercise reasonable diligence and ordinary care in attempting to minimize his damages, or avoid aggravating the injury, after breach or injury has been inflicted and care and diligence required of him is the same as that which would be used by man of ordinary prudence under like circumstances. Darnell v. Taylor, La.App., 236 So.2d 57, 61.

Mitigation of damages is an affirmative defense and applies when plaintiff fails to take reasonable actions that would tend to mitigate his injuries. Mott v. Persichetti, Colo.App., 534 P.2d 823, 825.

See Restatement, Contracts No. 336(1); U.C.C. No. 2-603.

See also avoidable consequences doctrine

@ necessary damages

A term said to be of much wider scope in the law of damages than "pecuniary." It embraces all those consequences of an injury usually denominated "general" damages, as distinguished from special damages; whereas the phrase "pecuniary damages" covers a smaller class of damages within the larger class of "general" damages.

@ nominal damages

Nominal damages are a trifling sum awarded to a plaintiff in an action, where there is no substantial loss or injury to be compensated, but still the law recognizes a technical invasion of his rights or a breach of the defendant's duty, or in cases where, although there has been a real injury, the plaintiffs evidence entirely fails to show its amount.

@ pecuniary damages

Such as can be estimated in and compensated by money; not merely the loss of money or salable property or rights, but all such loss, deprivation, or injury as can be made the subject of calculation and of recompense in money. Those damages (either general or special) which can be accurately calculated in monetary terms. Ellis v. Crockett, 51 Haw. 45, 86, 451 P.2d 814, 820.

See also pecuniary loss.

@ presumptive damages

A term occasionally used as the equivalent of "exemplary" or "punitive" damages.

@ prospective damages

Damages which are expected to follow from the act or state of facts made the basis of a plaintiffs suit; damages which have not yet accrued, at the time of the trial, but which, in the nature of things, must necessarily, or most probably, result from the acts or facts complained of.

See also damages

@ proximate damages

Proximate damages are the immediate and direct damages and natural results of the act complained of, and such as are usual and might have been expected.

See damages

@ remote damages

remote damages are those attributable immediately to an intervening cause, though it forms a link in an unbroken chain of causation, so that the remote damage would not have occurred if its elements had not been set in motion by the original act or event.

The unusual and unexpected result, not reasonably to be anticipated from an accidental or unusual combination of circumstances-a result beyond which the negligent party has no control.

@ rescissory damages

Such damages contemplate a return of the injured party to the position he occupied before he was induced by wrongful conduct to enter into the transaction. When return of the specific property, right, etc. is not possible (e.g. in a stock fraud transaction, the stock is no longer available), the rescissory damages would be the monetary equivalent (e.g. value of stock).

@ severance damages

In condemnation, where the property condemned constitutes only a part of an owner's interest, the owner is entitled to just compensation, not only for the fair market value of the interest actually taken, but also such additional amount as will be equivalent to the diminution or lowering, if any, of the fair market value of the owner's interest in the land which was not taken, due to the severance therefrom of the interest which was taken.

+ severance damages

Essence of severance damages is the loss in value to the remainder tract by reason of a partial taking of land and this is predicated on the enhanced value of the remainder tract because of its relationship to whole prior to the taking. U. S. v. 105.40 Acres of Land, More or Less in Porter County, State of Indiana, C.A.Ind., 471 F.2d 207, 211.

If only part of single tract is taken, owner's compensation for taking includes any and all elements of value arising out of relation of part taken to entire tract and such damages are often called severance damages. U. S. v. 26.81 Acres of Land, More or Less, in Benton County, Ark., D.C.Ark., 244 F.Supp. 831, 839

@ special damages

Those which are the actual, but not the necessary, result of the injury complained of, and which in fact follow it as a natural and proximate consequence in the particular case, that is, by reason of special circumstances or conditions. Twin Coach Co. v. Chance Vought Aircraft Inc., 2 Storey 588, 163 A.2d 278, 286.

Such are damages which do not arise from wrongful act itself, but depend on circumstances peculiar to the infliction of each respective injury. Myers v. Stephens, 233 C.A.2d 104, 43 Cal.Rptr. 420, 432, 433.

In contract law, damages not contemplated by the parties at the time of the making of the contract. To be recoverable, they must flow directly and immediately from the breach of contract, and must be reasonably foreseeable. Special damages must be specially pleaded and proved. Fed.R. Civil P. 9(g).

Compare general damages, above.

@ speculative damages

Prospective or anticipated damages from the same acts or facts constituting the present cause of action, but which depend upon future developments which are contingent, conjectural, or improbable.

@ statutory damages

Damages resulting from statutorily created causes of actions, as opposed to actions at common law; e.g. wrongful death and survival actions; actions under tort claims acts; under No. 504 of the federal Copyright Act, a copyright owner has the right to collect statutory damages in lieu of actual damages for copyright infringement.

@ substantial damages

A sum, assessed by way of damages, which is worth having; opposed to nominal damages, which are assessed to satisfy a bare legal right. Considerable in amount and intended as a real compensation for a real injury.

@ temporary damages

Damages allowed for intermittent and occasional wrongs, such as injuries to real estate, where cause thereof is removable or abatable.

@ treble damages

Damages given by statute in certain types of cases, consisting of the single damages found by the jury, actually tripled in amount.

See e.g. Section 4 of Clayton Act which provides for treble damages for antitrust violations. 15 U.S.C.A. No. 15.

@ damage to person

The measure of injury, physical, mental and emotional, as a result of another's action or omission, whether such action or omission be intentional or negligent. "Damage" and "injury" are commonly used interchangeably, but they are different to extent that injury is what is actually suffered while damage is the measure of compensation for such suffering.

See damage

- injury

- loss

@ damage to property

Injury to property and generally does not include conversion of such property or taking of such property by public authority (i.e. eminent domain). Wandermere Corp. v. State, 79 Wash.2d 688, 488 P.2d 1088.

See also damage

@