DAMAGES
damages,n. pl. Money claimed by, or ordered to be paid to, a person as compensation for loss or injury <the plaintiff seeks $8,000 in damages from the defendant>. — damage,adj.“Damages are the sum of money which a person wronged is entitled to receive from the wrongdoer as compensation for the wrong.” Frank Gahan, The Law of Damages 1 (1936). accumulative damages.Statutory damages allowed in addition to amounts available under the common law. — Also termed enhanced damages. actual damages.An amount awarded to a complainant to compensate for a proven injury or loss; damages that repay actual losses. — Also termed compensatory damages; tangible damages; real damages. [Cases: Damages 15. C.J.S. Damages §§ 21–22.] added damages.See punitive damages. additional damages.Damages usu. provided by statute in addition to direct damages. • Additional damages can include expenses resulting from the injury, consequential damages, or punitive damages. benefit-of-the-bargain damages.Damages that a breaching party to a contract must pay to the aggrieved party, equal to the amounts that the aggrieved party would have received, including profits, if the contract had been fully performed. — Also termed loss-of-bargain damages. [Cases: Damages 117.]compensatory damages (k<<schwa>>m-pen-s<<schwa>>-tor-ee).1. Damages sufficient in amount to indemnify the injured person for the loss suffered. — Often shortened to compensatories. 2. See actual damages. [Cases: Damages 15. C.J.S. Damages §§ 21–22.] consequential damages.Losses that do not flow directly and immediately from an injurious act but that result indirectly from the act. [Cases: Damages 15–25. C.J.S. Damages §§ 21–38, 42; Parent and Child § 344.] contemptuous damages.See nominal damages. continuing damages. 1. Damages arising from the same injury. 2. Damages arising from the repetition of similar acts within a definite period. cosmetic damages.The amount awarded to compensate for personal disfigurement. damages for lost expectations.See expectation damages. damages ultra (<<schwa>>l-tr<<schwa>>). Additional damages claimed by a plaintiff who is not satisfied with the amounts the defendant paid into court. direct damages.See general damages. discretionary damages.Damages (such as mental anguish or pain and suffering) that are not precisely measurable but are determined by the subjective judgment of a jury. — Also termed indeterminate damages. double damages.Damages that, by statute, are twice the amount that the fact-finder determines is owed or twice the amount of actual damages awarded. • In some cases, double damages are awarded in addition to actual damages, so the effect is the same as treble damages. [Cases: Damages 227. C.J.S. Damages §§ 218–219, 383.] enhanced damages. 1. See accumulative damages. 2.Patents. Damages for patentinfringement in an amount up to three times that of compensatory damages, at the discretion of thecourt, based on the egregiousness of the defendant’s conduct, including the willfulness of theinfringement. [Cases: Patents 319(3). C.J.S. Patents § 569.] estimated damages.See liquidated damages. excess damages.Damages awarded to an insured — beyond the coverage provided by an insurance policy — because the insurer did not settle the claim within policy limits. • If the insurer acted in bad faith in not settling, the insured may have a claim to recover the excess damages from the insurer. — Also termed excess-liability damages. [Cases: Insurance 3350. C.J.S. Insurance §§ 1160–1163, 1342.] excessive damages.A jury award that grossly exceeds the amount warranted by law based on the facts and circumstances of the case; unreasonable or outrageous damages, which are subject to reduction by remittitur. See REMITTITUR. [Cases: Damages 127–140. C.J.S. Damages §§384–385, 387–394; Parent and Child § 344.] exemplary damages.See punitive damages. expectation damages.Compensation awarded for the loss of what a person reasonably anticipated from a transaction that was not completed. — Also termed expectancy damages; lost-expectation damages; damages for lost expectations. [Cases: Damages 23. C.J.S. Damages §§ 28–33.] fee damages.Damages awarded to the owner of abutting property for injury caused by the construction and operation of an elevated railroad. • The term is used because the damage is to the property owner’s easements of light, air, and access, which are parts of the fee. foreseeable damages.Damages that a breaching party knew or should have known would result from a breach when the contract was made. [Cases: Damages 21. C.J.S. Damages §§ 30–33.] future damages.Money awarded to an injured party for an injury’s residual or projected effects, such as those that reduce the person’s ability to function. • Examples are expected pain andsuffering, loss or impairment of earning capacity, and projected medical expenses. [Cases: Damages 25. C.J.S. Damages § 42.] general damages.Damages that the law presumes follow from the type of wrong complained of; specif., compensatory damages for harm that so frequently results from the tort for which a party has sued that the harm is reasonably expected and need not be alleged or proved. • General damages do not need to be specifically claimed. — Also termed direct damages; necessary damages. [Cases: Damages 5. C.J.S. Damages §§ 3–6.] gross damages.The total damages found before adjustments and offsets. hedonic damages (hi-don-ik). Damages that attempt to compensate for the loss of the pleasure of being alive. • Such damages are not allowed in most jurisdictions. — Also termed (erroneously) hedonistic damages. [Cases: Damages 48–56.20. C.J.S. Damages §§ 94–104; Parent and Child § 344; Torts §§ 66–83.] imaginary damages.See punitive damages. inadequate damages.Damages insufficient to fully and fairly compensate the parties; damages bearing no reasonable relation to the plaintiff’s injuries, indicating prejudice, mistake, or other fact to support setting aside a jury’s verdict. [Cases: Damages 127–140. C.J.S. Damages §§ 384–385, 387–394; Parent and Child § 344.] incidental damages. 1. Losses reasonably associated with or related to actual damages. 2. A seller’s commercially reasonable expenses incurred in stopping delivery or in transporting andcaring for goods after a buyer’s breach. UCC § 2-710. [Cases: Sales 384(4).] 3. A buyer’s expenses reasonably incurred in caring for goods after a seller’s breach. UCC § 2-715(1). [Cases: Sales 418(19). C.J.S. Sales §§ 396, 400–401, 404–405.] “What are incidental damages? The Code does not define incidental damages; rather 2–715(1) lists many expenses that are included as incidental damages. However, Comment 1 to 2–715 stresses that those listed ‘are not intended to be exhaustive’ but are merely illustrative of the typical kinds of incidental expenses that can be recovered under 2–715: (1) those associated withrightful rejection (for instance, inspection and storage); (2) those associated with a proper revocation of acceptance; and (3) those involved in effecting cover.” 1 James J. White & Robert S.
Summers, Uniform Commercial Code § 10-3, at 561–62 (4th ed. 1995).
indeterminate damages.See discretionary damages.
intervening damages.Continuing damages that accrue during the pendency and prosecution of
an unsuccessful appeal. • A lower court may include intervening damages in an award.
irreparable damages (i-rep-<<schwa>>-r<<schwa>>-b<<schwa>>l). Damages that cannot be
easily ascertained because there is no fixed pecuniary standard of measurement, e.g., damages for
a repeated public nuisance. — Also termed nonpecuniary damages.
land damages.See just compensation under COMPENSATION.
lawful damages.Those damages fixed by law and ascertained in a court of law.
liquidated damages.An amount contractually stipulated as a reasonable estimation of actual
damages to be recovered by one party if the other party breaches. • If the parties to a contract have
properly agreed on liquidated damages, the sum fixed is the measure of damages for a breach,
whether it exceeds or falls short of the actual damages. — Also termed stipulated damages;
estimated damages. See LIQUIDATED-DAMAGES CLAUSE. Cf. unliquidated damages;
PENALTY CLAUSE. [Cases: Damages 74–84. C.J.S. Damages §§ 175–179, 184–194.]
“Where the terms of a contract specify a sum payable for non-performance, it is a question of
construction whether this sum is to be treated as a penalty or as liquidated damages. The
difference in effect is this: The amount recoverable in case of a penalty is not the sum named, but
the damage actually incurred. The amount recoverable as liquidated damages is the sum named as
such. In construing these terms a judge will not accept the phraseology of the parties; they may
call the sum specified ‘liquidated damages,’ but if the judge finds it to be a penalty, he will treat it
as such.” William R. Anson, Principles of the Law of Contract 470 (Arthur L. Corbin ed., 3d Am. ed. 1919).
“The distinction between a penalty and genuine liquidated damages, as they are called, is not
always easy to apply, but the Courts have made the task simpler by laying down certain guiding
principles. In the first place, if the sum payable is so large as to be far in excess of the probable
damage on breach, it is almost certainly a penalty. Secondly, if the same sum is expressed to be
payable on any one of a number of different breaches of varying importance, it is again probably a
penalty, because it is extremely unlikely that the same damage would be caused by these varying
breaches. Thirdly, where a sum is expressed to be payable on a certain date, and a further sum in
the event of default being made, this latter sum is prima facie a penalty, because mere delay in
payment is unlikely to cause damage. Finally, it is to be noted that the mere use of the words
‘liquidated damages’ is not decisive, for it is the task of the Court and not of the parties to decide
the true nature of the sum payable.” P.S. Atiyah, An Introduction to the Law of Contract 316–17
(3d ed. 1981).
loss-of-bargain damages.See benefit-of-the-bargain damages.
lost-expectation damages.See expectation damages.
moratory damages (mor-<<schwa>>-tor-ee ormahr-).Civil law. Damages for a delay in
performing an obligation. La. Civ. Code arts. 1989, 1994. • There must be a default before these
damages can be recovered, while compensatory damages are recoverable both for a failure of
performance and for a defective performance.
multiple damages.Statutory damages (such as double or treble damages) that are a multiple of
the amount that the fact-finder determines to be owed. — Also termed multiplied damages. See
double damages; treble damages. [Cases: Damages 227. C.J.S. Damages §§ 218–219, 383.]
“[T]he statutory multiple damages differ from the common law punitive damages in that
punitive damages involved no fixed sum or limit. The fixed limit of multiple damages not only
reduces their threat to the defendant and the potential for abuse, it also reduces the possibility of a
measured deterrence. Likewise, because the enhancement of the award is fixed by the statutory
multiple, there is no occasion for introducing evidence of the defendant’s wealth as there is in the
case of common law punitive damages …. Perhaps a more important distinction is that multiple
damages statutes may be enacted for entirely non-punitive purposes. Specifically, some double or
treble damages statutes, and also specified ‘civil penalties,’ are intended to provide a kind of
liquidated damages for actual losses that cannot be proved or that are otherwise unrecognized by
the law.” Dan B. Dobbs, Law of Remedies § 3.12, at 359 (2d ed. 1993).
necessary damages.See general damages.
nominal damages. 1. A trifling sum awarded when a legal injury is suffered but when there is
no substantial loss or injury to be compensated. 2. A small amount fixed as damages for breach of
contract without regard to the amount of harm. — Also termed contemptuous damages. Cf.
substantial damages. [Cases: Damages 8–14. C.J.S. Damages §§ 3, 12–20.]
“Nominal damages are damages awarded for the infraction of a legal right, where the extent
of the loss is not shown, or where the right is one not dependent upon loss or damage, as in the case of rights of bodily immunity or rights to have one’s material property undisturbed by direct
invasion. The award of nominal damages is made as a judicial declaration that the plaintiff’s right
has been violated.” Charles T. McCormick, Handbook on the Law of Damages § 20, at 85 (1935).
“Nominal damages are awarded if the plaintiff establishes a breach of contract or a tort of the
kind that is said to be ‘actionable per se’ but fails to establish a loss caused by the wrong. In the
case of tort not actionable per se as, for example, negligence, if the plaintiff fails to establish a loss,
the action will be dismissed. The practical significance of a judgment for nominal damages is that
the plaintiff thereby establishes a legal right. The judgment has the effect of a declaration of legal
rights and may deter future infringements or may enable the plaintiff to obtain an injunction to
restrain a repetition of the wrong. The obtaining of nominal damages will also, in many cases,
entitle a plaintiff to costs …. [Also,] nominal damages might serve as a peg upon which to hang an
award of exemplary damages.” S.M. Waddams, The Law of Damages 477–78 (3d ed. 1997).
nonpecuniary damages.Damages that cannot be measured in money. See irreparable
particular damages.See special damages.
pecuniary damages (p<<schwa>>-kyoo-nee-er-ee). Damages that can be estimated and
monetarily compensated. • Although this phrase appears in many old cases, it is now widely
considered a redundancy — since damages are always pecuniary.
permanent damages.Damages for past, present, and future harm that cannot be avoided or
presumptive damages.See punitive damages.
prospective damages.Future damages that, based on the facts pleaded and proved by the
plaintiff, can reasonably be expected to occur. [Cases: Damages 25. C.J.S. Damages § 42.]
proximate damages.Damages directly, immediately, and naturally flowing from the act
complained of. Cf. speculative damages (1). [Cases: Damages 18. C.J.S. Damages §§ 23–25,
27.]
punitive damages.Damages awarded in addition to actual damages when the defendant acted
with recklessness, malice, or deceit; specif., damages assessed by way of penalizing the
wrongdoer or making an example to others. • Punitive damages, which are intended to punish and
thereby deter blameworthy conduct, are generally not recoverable for breach of contract. The
Supreme Court has held that three guidelines help determine whether a punitive-damages award
violates constitutional due process: (1) the reprehensibility of the conduct being punished; (2) the
reasonableness of the relationship between the harm and the award; and (3) the difference between
the award and the civil penalties authorized in comparable cases. BMW of North America, Inc. v.
Gore, 517 U.S. 559, 116 S.Ct. 1589 (1996). — Also termed exemplary damages; vindictive
damages; punitory damages; presumptive damages; added damages; aggravated damages;
speculative damages; imaginary damages; smart money; punies. [Cases: Damages 87–94. C.J.S.
Damages §§ 183, 195–217.]
“Although compensatory damages and punitive damages are typically awarded at the same
time by the same decisionmaker, they serve distinct purposes. The former are intended to redress
the concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct. The
latter, which have been described as ‘quasi-criminal,’ operate as ‘private fines’ intended to punish
the defendant and to deter future wrongdoing. A jury’s assessment of the extent of a plaintiff’s
injuries is essentially a factual determination, whereas its imposition of punitive damages is an
expression of its moral condemnation.” Cooper Indus. v. Leatherman Tool, 532 U.S. 424, 432, 121
S.Ct. 1678, 1683 (2001)(per Stephens, J.).
real damages.See actual damages.
reliance damages.Damages awarded for losses incurred by the plaintiff in reliance on the
contract. [Cases: Damages 22.]
“Reliance damages are … ‘real’ losses in a much more tangible way than losses of
expectations. The distinction is nicely illustrated by McRae v. Commonwealth Disposals
Commission…. In this case, … the defendants sold a shipwrecked tanker which they advertised as
lying on a certain reef in the Pacific, and the plaintiffs spent a substantial sum of money equipping
a salvage expedition to go in search of the ship. The ship was wholly non-existent, and the
plaintiffs were held entitled to damages. Here it was clear that the plaintiffs had incurred
substantial expenses — real losses — in reliance on the contract, and the Australian High Court
awarded these reliance damages to the plaintiffs.” P.S. Atiyah, An Introduction to the Law of
Contract 311 (3d ed. 1981).
reliance-loss damages.A reimbursement for losses or expenses that the plaintiff suffers in
reliance on the defendant’s contractual promise that has been breached.
remote damages.See speculative damages (1).
rescissory damages (ri-sis-<<schwa>>-ree or ri-siz-). Damages contemplated to restore a
plaintiff to the position occupied before the defendant’s wrongful acts.
restitution damages.Damages awarded to a plaintiff when the defendant has been unjustly
enriched at the plaintiff’s expense.
“Suppose A pays money to B in pursuance of a contract which turns out to be void, or
perhaps is subsequently frustrated: clearly A cannot sue B for breach of contract. B’s promise to
perform his side of the bargain is vitiated by the mistake or the frustrating event, so A’s lost
expectations are losses which he must just put up with. But his claim to repayment of the money is
evidently much stronger: for this money is a tangible loss to A and a tangible enrichment to B. So
in this sort of case the money will often be recoverable, though English lawyers think of this as a
quasi-contractual claim to recover money as on a total failure of consideration, and not a
contractual claim to restitution damages. There is, however, no strong reason for refusing to call
this a contractual action, any more than there is a reason for calling an action for damages
quasi-contractual.” P.S. Atiyah, An Introduction to the Law of Contract 312 (3d ed. 1981).
severance damages.In a condemnation case, damages awarded to a property owner for
diminution in the fair market value of land as a result of severance from the land of the property
actually condemned; compensation awarded to a landowner for the loss in value of the tract that
remains after a partial taking of the land. [Cases: Eminent Domain 95–96. C.J.S. Eminent
Domain §§ 84, 86, 105, 126–127, 142, 147, 152–153.]
special damages.Damages that are alleged to have been sustained in the circumstances of a
particular wrong. • To be awardable, special damages must be specifically claimed and proved. —
Often shortened to specials. — Also termed particular damages. See Fed. R. Civ. P. 9(g). [Cases:
Damages 5. C.J.S. Damages §§ 3–6.]
speculative damages. 1. Damages that are so uncertain to occur that they will not be awarded.
— Also termed remote damages. 2. See punitive damages.
statutory damages.Damages provided by statute (such as a wrongful-death-and-survival
statute), as distinguished from damages provided under the common law. [Cases: Death 80.]
stipulated damages.See liquidated damages.
substantial damages.A considerable sum awarded to compensate for a significant loss or
injury. Cf. nominal damages. [Cases: Damages 6, 10. C.J.S. Damages §§ 38–41, 299.]
“Substantial damages … are the result of an effort at measured compensation, and are to be
contrasted with nominal damages which are in no sense compensatory, but merely symbolic.”
Charles T. McCormick, Handbook on the Law of Damages § 20, at 85 (1935).
tangible damages.See actual damages.
temperate damages.Rare. Reasonable damages.
temporary damages.Damages allowed for an intermittent or occasional wrong, such as a
real-property injury whose cause can be removed or abated. [Cases: Damages 39. C.J.S.
Damages § 57.]
treble damages.Damages that, by statute, are three times the amount that the fact-finder
determines is owed. — Also termed triple damages. [Cases: Damages 227. C.J.S. Damages §§
218–219, 383.]
uncertain damages.Damages that are not clearly the result of a wrong. • The rule against
allowing recovery of uncertain damages refers to these damages, not damages that are uncertain
only in amount. [Cases: Damages 6. C.J.S. Damages §§ 38–41, 299.]
unliquidated damages.Damages that cannot be determined by a fixed formula and must be
established by a judge or jury. Cf. liquidated damages. [Cases: Damages 1, 6, 194. C.J.S.
Damages §§ 1–2, 4–6, 38–41, 299.] vindictive damages.See punitive damages.