Cjs On Damages

Summary, 24 C.J.S.
Damages Summary
24 C.J.S. Damages Summary

Corpus Juris Secundum
Database updated July 2015
Damages
Joseph Bassano, J.D., Eric Mayer, J.D., Jeanne M. Naffky, J.D.,
Karl Oakes, J.D., Jeffrey J. Shampo, J.D., and Eric C. Surette, J.D.
Correlation Table
Summary
Scope:
This title includes pecuniary compensation, indemnity, or satisfaction, allowed by law for injuries resulting from
the unlawful act or default of another; nature and grounds of recovery thereof in general; rights to substantial
or nominal damages, to immediate, consequential, remote, or prospective damages, and to compensatory or
exemplary damages; penalties and liquidated damages and measure of damages for breach of contract in general;
measure of damages for torts in general; interest as an element of damages; what amounts are inadequate or
excessive as awards of damages; and proceedings relating to recovery and assessment of damages in general.
Treated Elsewhere:
Excessive fines in criminal cases, see C.J.S., Criminal Law 2211
Moneys recoverable under statutes imposing payment as punishment for violating same, see C.J.S., Penalties
1 et seq.
Pecuniary punishments imposed upon conviction of a crime, see C.J.S., Fines 1 et seq.
Restitution payable to crime victims, see C.J.S., Criminal Law 2473 to 2493
Time during which interest runs and computation of interest, see C.J.S., Interest and Usury; Consumer Credit
97 to 133
Research References:
Westlaw Databases
All Federal & State Cases (ALLCASES)
All Federal Cases (ALLFEDS)
American Law Reports (ALR)
West's A.L.R. Digest (ALRDIGEST)
End of Document
2015 Thomson Reuters. No claim to original U.S. Government Works.
Research References, 25 C.J.S. Damages I Refs.
25 C.J.S. Damages I Refs.

Database updated June 2015
Damages
I. Overview
Topic Summary Correlation Table
Research References
A.L.R. Library
A.L.R. Index, Consequential Damages
A.L.R. Index, Damages
A.L.R. Index, Liquidated Damages
A.L.R. Index, Nominal Damages
A.L.R. Index, Punitive Damages
A.L.R. Index, Special Damages
A.L.R. Index, Speculative Damages
West's A.L.R. Digest, Damages 1 , 5
End of Document
Research References, 25 C.J.S. Damages I A Refs.
25 C.J.S. Damages I A Refs.

Damages
I. Overview
A. Definitions and Distinctions
Research References
A.L.R. Library
West's A.L.R. Digest, Damages 1
End of Document
1.Definitions, 25 C.J.S. Damages 1
25 C.J.S. Damages 1
Damages
I. Overview
Topic Summary References Correlation Table
1. Definitions
West's Key Number Digest
West's Key Number Digest, Damages 1
The word "damages" has been subject to a variety of definitions and in a legal sense means the compensation
that the law will award for an injury done.
"Damages," absent a restrictive modifier like compensatory, actual, consequential, or punitive, is an inclusive
term embracing the panoply of legally recognized pecuniary relief. 1 In its common usage, "damage" includes
harm, loss, injury, detriment, or diminution in value, 2 and is the estimated money equivalent for detriment or
injury sustained. 3
"Damages" are a measure of the loss or harm, generally in the form of pecuniary compensation, resulting from an
injury suffered by a person 4 because of the unlawful act, omission, or negligence of another. 5 The term embraces
monetary compensation for loss or harm already suffered, as well as harm certain to be suffered in the future. 6
More specifically, "damages" is a term used in torts to denote an award made to a person by a competent judicial
tribunal because of a legal wrong done to him by another. 7 It is the word that expresses in dollars and cents the
injury sustained by a plaintiff 8 and includes both the original debt or damage and whatever interest ought to be
added to make a just verdict. 9
There are two aspects to the word "damages," causation and amount. 10 It signifies compensation for the default of
the party charged therewith 11 and includes special, as well as general, damages 12 and all factors going to make
up the total amount that the plaintiff may recover under correct principles of law. 13 In its ordinary acceptation,
it is opposed to awards of previously fixed compensation. 14
CUMULATIVE SUPPLEMENT
Cases:
Compensation, not enrichment, is the basis for an award of damages. MCI Communications Services v. CMES,
Inc., 728 S.E.2d 649 (Ga. 2012).
1.Definitions, 25 C.J.S. Damages 1
[END OF SUPPLEMENT]
Footnotes
OhioLeininger v. Pioneer Natl. Latex, 115 Ohio St. 3d 311, 2007-Ohio-4921, 875 N.E.2d 36 (2007); Whitaker v.
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9
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M.T. Automotive, Inc., 111 Ohio St. 3d 177, 2006-Ohio-5481, 855 N.E.2d 825 (2006).
Cal.Windham at Carmel Mountain Ranch Assn. v. Superior Court, 109 Cal. App. 4th 1162, 135 Cal. Rptr. 2d 834
(4th Dist. 2003).
UtahEleopulos v. McFarland and Hullinger, LLC, 2006 UT App 352, 145 P.3d 1157 (Utah Ct. App. 2006).
Colo.Double Oak Const., L.L.C. v. Cornerstone Development Intern., L.L.C., 97 P.3d 140 (Colo. App. 2003).
La.McGee v. A C And S, Inc., 933 So. 2d 770 (La. 2006).
Cal.Citizens of Humanity, LLC v. Costco Wholesale Corp., 171 Cal. App. 4th 1, 89 Cal. Rptr. 3d 455 (2d Dist.
2009) (disapproved of on other grounds by, Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 120 Cal. Rptr. 3d 741,
246 P.3d 877 (2011)).
Wis.Tietsworth v. Harley-Davidson, Inc., 261 Wis. 2d 755, 2003 WI App 75, 661 N.W.2d 450 (Ct. App. 2003),
decision rev'd on other grounds, 2004 WI 32, 270 Wis. 2d 146, 677 N.W.2d 233, 53 U.C.C. Rep. Serv. 2d 721 (2004).
Ford v. Trendwest Resorts, Inc., 146 Wash. 2d 146, 43 P.3d 1223 (2002).
Compensation for a legal wrong or injury
Okla.Estrada v. Port City Properties, Inc., 2011 OK 30, 258 P.3d 495 (Okla. 2011).
Mass.Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 914 N.E.2d 891 (2009); Denver Street LLC v. Town of
Saugus, 78 Mass. App. Ct. 526, 939 N.E.2d 1187 (2011), review granted, 459 Mass. 1104, 942 N.E.2d 968 (2011).
Mass.Denver Street LLC v. Town of Saugus, 78 Mass. App. Ct. 526, 939 N.E.2d 1187 (2011), review granted, 459
Mass. 1104, 942 N.E.2d 968 (2011).
AlaskaPugliese v. Perdue, 988 P.2d 577 (Alaska 1999).
IowaWagner v. Kelso, 195 Iowa 959, 193 N.W. 1 (1923).
IdahoTaylor v. Neill, 80 Idaho 90, 326 P.2d 391 (1958).
Damages to property or person as either general or special, see 7.
Mass.Binder v. Harris, 267 Mass. 162, 166 N.E. 707 (1929).
"Liability for damages"
The term "liability for damages" means liability for an amount to be ascertained by a trial of the facts in particular
cases, as contrasted with an amount previously ascertained by law for defined classes of disabilities.
Md.Hurt v. Pennsylvania Threshermen & Farmers' Mut. Cas. Ins. Co., 175 Md. 403, 2 A.2d 402 (1938).
End of Document
2.Distinctions, 25 C.J.S. Damages 2
25 C.J.S. Damages 2
Damages
I. Overview
2. Distinctions
The term "damages" is to be distinguished from other terms, such as "debt," "expenses," "interest,"
"penalty," "salary," "verdict," and the like.
The term "damages" is to be distinguished from other terms, 1 such as "debt," 2 "interest," 3 "penalty," 4
"restitution," 5 "injury," 6 and "salary." 7 "Damages" is distinguished from "verdict" in that a verdict expresses
the final decision of a jury whereas "damages" expresses in dollars and cents the injury sustained by a plaintiff
and includes both the original damage and whatever interest should be added to make a just verdict. 8
Damages are distinguished from other sorts of payments by their remedial purpose. 9 For example, "rescission"
places the parties in the positions that they occupied before the transaction occurred; "damages," in contrast, make
a plaintiff whole for harm that the plaintiff has suffered. 10
Costs and attorney's fees.

In its early signification, "damages" included costs. 11 However, the word "costs" is of limited significance, much
narrower than "damages," 12 and the terms are now regarded as distinct, costs being awarded as damages only
where the circumstances of the particular case withdraw it from the general rule. 13 Also, unlike attorney's fees,
the awarding of damages does not require authorization by special statute or by contract. 14
Footnotes
1
2
3
Expenses
Mass.Berube v. Selectmen of Edgartown, 336 Mass. 634, 147 N.E.2d 180 (1958).
Mo.Owen v. Owen, 642 S.W.2d 410 (Mo. Ct. App. S.D. 1982).
OhioCity of Kettering v. Johnson, 116 Ohio App. 302, 22 Ohio Op. 2d 127, 187 N.E.2d 612 (2d Dist. Montgomery
County 1962).
2.Distinctions, 25 C.J.S. Damages 2
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Ark.Western Union Telegraph Co. v. Cobbs, 47 Ark. 344, 1 S.W. 558 (1886).
Kan.State v. Hunziker, 30 Kan. App. 2d 279, 41 P.3d 880 (2002), aff'd, 274 Kan. 655, 56 P.3d 202 (2002).
UtahSohm v. Dixie Eye Center, 2007 UT App 235, 166 P.3d 614 (Utah Ct. App. 2007).
Injury defined
In negligence actions, "injury" is typically defined as "any harm caused to a person, such as a broken bone, a cut, or
a bruise."
UtahSohm v. Dixie Eye Center, 2007 UT App 235, 166 P.3d 614 (Utah Ct. App. 2007).
Ind.State v. Billheimer, 178 Ind. 83, 96 N.E. 801 (1911).
Mass.Fidelity & Cas. Co. of New York v. Huse & Carleton, 272 Mass. 448, 172 N.E. 590, 72 A.L.R. 1143 (1930).
"Verdict" defined, see C.J.S., Trial 818.
Ill.Central Illinois Light Co. v. Home Ins. Co., 213 Ill. 2d 141, 290 Ill. Dec. 155, 821 N.E.2d 206 (2004).
Or.Sweeney v. SMC Corp., 178 Or. App. 576, 37 P.3d 244 (2002).
Wash.State ex rel. Macri v. City of Bremerton, 8 Wash. 2d 93, 111 P.2d 612 (1941).
Mass.City of Newton v. Boston & A.R. Co., 172 Mass. 5, 51 N.E. 183 (1898).
S.C.Brock v. Bolton, 37 S.C. 40, 16 S.E. 370 (1892).
La.Shreveport Neon Signs, Inc. v. Williams, 5 So. 3d 977 (La. Ct. App. 2d Cir. 2009).
End of Document
Research References, 25 C.J.S. Damages I B Refs.
25 C.J.S. Damages I B Refs.

Damages
I. Overview
B. Particular Classes and Descriptions of Damages
Research References
A.L.R. Library
End of Document
3.Actual or compensatory damages, 25 C.J.S. Damages 3
25 C.J.S. Damages 3
Damages
I. Overview
3. Actual or compensatory damages
"Actual damages" is a term used as synonymous with "compensatory damages" and with "general
damages."
"Actual damages" is a term used as synonymous with "compensatory damages" 1 and with "general damages" 2
although actual damages may be either general or special. 3 They are "substantial" as distinguished from "nominal"
damages. 4
"Actual damages" are damages in satisfaction of, or in recompense for, loss or injury sustained. 5 They are such
compensation or damages for an injury as follow from the nature and character of the act 6 and will put the
injured party in the position in which he or she was before he or she was injured. 7 They are those damages
that the injured party is entitled to recover for the wrongs done and injuries received when none was intended. 8
The term "actual damages" is also used to indicate such losses as are actually sustained and are susceptible of
measurement, 9 and as used in this sense, the phrase "determinate pecuniary loss" has been suggested as a more
appropriate designation. 10 "Actual damages" covers all losses recoverable as a matter of right 11 and includes
all damages except exemplary or punitive damages. 12
Actual damages, by definition, are not liquidated or for a fixed sum, and require proof of actual loss. 13
"Compensatory damages" are those given as compensation 14 as an equivalent for the injury done 15 and
are awarded to make the injured party whole. 16 They are damages in satisfaction of, or in recompense
for, loss or injury sustained, 17 awarded to a person as compensation, indemnity, or restitution for harm
sustained by him or her. 18 "Compensatory damages" includes all damages other than punitive or exemplary
damages. 19 The term "compensatory damages" is sometimes used synonymously with "substantial damages." 20
"Compensatory damages" are distinguishable from "exemplary damages," 21 or "punitive damages," 22 and
"nominal damages." 23
Footnotes
Ariz.State v. Griswold, 8 Ariz. App. 361, 446 P.2d 467 (1968).
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Minn.Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271 (Minn. 1995).
S.C.Gosnell v. Dorchester School Dist. No. 2, 301 S.C. 21, 389 S.E.2d 865, 59 Ed. Law Rep. 557 (1990).
For a detailed discussion of compensatory damages, see 25 to 191.
N.C.Ringgold v. Land, 212 N.C. 369, 193 S.E. 267 (1937).
N.D.Meyerle v. Pioneer Pub. Co., 45 N.D. 568, 178 N.W. 792 (1920).
Conn.Manning v. Pounds, 2 Conn. Cir. Ct. 344, 199 A.2d 188 (App. Div. 1963).
IdahoTaylor v. Neill, 80 Idaho 90, 326 P.2d 391 (1958).
Tex.First Nat. Bank of Hico v. English, 240 S.W.2d 503 (Tex. Civ. App. Waco 1951).
Miss.Southland Co. v. Aaron, 224 Miss. 780, 80 So. 2d 823 (1955).
N.C.Blow v. Joyner, 156 N.C. 140, 72 S.E. 319 (1911).
Injury in fact
Actual damages include damages for injury in fact, as distinguished from exemplary, nominal, or punitive damages.
Wash.Eagle Group, Inc. v. Pullen, 114 Wash. App. 409, 58 P.3d 292 (Div. 2 2002).
Ariz.U. S. Fidelity & Guaranty Co. v. Davis, 3 Ariz. App. 259, 413 P.2d 590 (1966).
Fla.Bidon v. Department of Professional Regulation, Florida Real Estate Com'n, 596 So. 2d 450 (Fla. 1992).
Mo.Schmidt v. Central Hardware Co., 516 S.W.2d 556 (Mo. Ct. App. 1974).
Ariz.Arizona Copper Co. v. Burciaga, 20 Ariz. 85, 177 P. 29 (1918) (overruled in part on other grounds by,
Consolidated Arizona Smelting Co. v. Egich, 22 Ariz. 543, 199 P. 132 (1920)).
S.C.Smoak v. Martin, 108 S.C. 472, 94 S.E. 869 (1918).
Ariz.Arizona Copper Co. v. Burciaga, 20 Ariz. 85, 177 P. 29 (1918) (overruled in part on other grounds by,
Consolidated Arizona Smelting Co. v. Egich, 22 Ariz. 543, 199 P. 132 (1920)).
Mich.Ross v. Leggett, 61 Mich. 445, 28 N.W. 695 (1886).
Injury from negligence
Actual damages are given to compensate person for injury resulting from another's negligence.
Ark.Missouri Pac. R. Co. v. Yancey, 178 Ark. 147, 10 S.W.2d 22 (1928).
U.S.Kapuschinsky v. U.S., 259 F. Supp. 1 (D.S.C. 1966).
Colo.Hedgpeth v. Schoen, 109 Colo. 341, 125 P.2d 632 (1942).
Mo.State ex rel. St. Joseph Belt Ry. Co. v. Shain, 341 Mo. 733, 108 S.W.2d 351 (1937).
"Actual" damages not interpreted as "accrued" damages
U.S.Connecticut Railway & Lighting Co. v. Palmer, 305 U.S. 493, 59 S. Ct. 316, 83 L. Ed. 309 (1939).
W.Va.Pegram v. Stortz, 31 W. Va. 220, 6 S.E. 485 (1888) (overruled in part on other grounds by, Mayer v. Frobe,
40 W. Va. 246, 22 S.E. 58 (1895)).
OhioMouse v. Central Sav. & Trust Co., 120 Ohio St. 599, 7 Ohio L. Abs. 334, 167 N.E. 868 (1929).
Va.News Leader Co. v. Kocen, 173 Va. 95, 3 S.E.2d 385, 122 A.L.R. 842 (1939).
Wash.Rasor v. Retail Credit Co., 87 Wash. 2d 516, 554 P.2d 1041 (1976).
Md.AGV Sports Group, Inc. v. Protus IP Solutions, Inc., 417 Md. 386, 10 A.3d 745 (2010).
Cal.Hall v. Berkell, 130 Cal. App. 2d 800, 279 P.2d 832 (4th Dist. 1955).
Ariz.State v. Griswold, 8 Ariz. App. 361, 446 P.2d 467 (1968).
Ark.Manhattan Credit Co. v. Skirvin, 228 Ark. 913, 311 S.W.2d 168 (1958).
Tex.Anderson v. Alcus, 42 S.W.2d 294 (Tex. Civ. App. Beaumont 1931).
Nature and theory of compensatory damages, see 25.
Similar definitions
(1) "Compensatory damages" are damages awarded to repair actual damage that plaintiff proved that he or she suffered
at the hands of defendant.
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D.C.Morrissette v. Boiseau, 91 A.2d 130 (Mun. Ct. App. D.C. 1952).

(2) "Compensatory damages" are those allowed as a recompense for the injury actually received.
Va.Weatherford v. Birchett, 158 Va. 741, 164 S.E. 535 (1932).
(3) "Compensatory damages" are such as will compensate the injured party for the injury sustained.
La.Loeblich v. Garnier, 113 So. 2d 95 (La. Ct. App. 1st Cir. 1959).
Colo.Ballow v. PHICO Ins. Co., 878 P.2d 672 (Colo. 1994).
Fla.Bidon v. Department of Professional Regulation, Florida Real Estate Com'n, 596 So. 2d 450 (Fla. 1992).
S.C.Laird v. Nationwide Ins. Co., 243 S.C. 388, 134 S.E.2d 206 (1964).
Md.Superior Const. Co. v. Elmo, 204 Md. 1, 104 A.2d 581 (1954).
U.S.Monongahela Nav. Co. v. U S, 148 U.S. 312, 13 S. Ct. 622, 37 L. Ed. 463 (1893).
S.C.Laird v. Nationwide Ins. Co., 243 S.C. 388, 134 S.E.2d 206 (1964).
Va.Orebaugh v. Antonious, 190 Va. 829, 58 S.E.2d 873 (1950).
Cal.Hall v. Berkell, 130 Cal. App. 2d 800, 279 P.2d 832 (4th Dist. 1955).
Fla.McLeod v. Continental Ins. Co., 591 So. 2d 621 (Fla. 1992).
Distinction stated
Compensatory damages are designed to make plaintiff whole for his or her injury, without reference to defendant's
ability to pay, while punitive damages are designed to punish defendant without reference to plaintiff's injury.
Nev.Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962) (abrogated on other grounds by, Ace Truck and Equipment
Rentals, Inc. v. Kahn, 103 Nev. 503, 746 P.2d 132 (1987)).
Tex.Anderson v. Alcus, 42 S.W.2d 294 (Tex. Civ. App. Beaumont 1931).
End of Document
4.Consequential damages, 25 C.J.S. Damages 4
25 C.J.S. Damages 4
Damages
I. Overview
4. Consequential damages
"Consequential damages" are such as are not produced without the concurrence of some other event
attributable to the same origin or cause.
"Consequential damages" are such as are not produced without the concurrence of some other event attributable to
the same origin or cause. 1 They are such damages as do not flow directly and immediately from the act of the party
but only from the consequences or results of such act; 2 they arise from the intervention of special circumstances
not ordinarily predictable. 3 The term may include damage that is so remote as not to be actionable. 4
"Consequential damages" are defined as synonymous with the term "special damages." 5
Cases:
Indiana subscribes to the general principle of tort law that all damages directly attributable to the wrong done are
recoverable; additionally, the law allows an injured plaintiff to recover the reasonable costs of necessary medical
expenses. Diehl v. Clemons, 12 N.E.3d 285 (Ind. Ct. App. 2014).
[END OF SUPPLEMENT]
Footnotes
U.S.DP Service, Inc. v. AM Intern., 508 F. Supp. 162 (N.D. Ill. 1981).
1
S.D.Louiseau v. Arp, 21 S.D. 566, 114 N.W. 701 (1908).
Similar definitions
(1) "Consequential damages" are those that follow naturally, but indirectly, from a wrongful act.
Or.Deetz v. Cobbs & Mitchell Co., 120 Or. 600, 253 P. 542 (1927).
4.Consequential damages, 25 C.J.S. Damages 4
2
3
4
5
(2) "Consequential damages" are damages that follow on account of knowledge of special conditions, imputed to the
defaulting party and increasing the standard of liability.
Tex.Martin v. Southern Engine & Pump Co., 130 S.W.2d 1065 (Tex. Civ. App. Galveston 1939).
(3) "Consequential damages" are the natural results of the injury but not the direct and necessary consequences.
Tenn.Swain v. Tennessee Copper Co., 111 Tenn. 430, 78 S.W. 93 (1903).
Va.Carva Food Corp. v. Dawley, 202 Va. 543, 118 S.E.2d 664 (1961).
Virginia Polytechnic Institute and State University v. Interactive Return Service, Inc., 267 Va. 642, 595 S.E.2d 1, 187
Ed. Law Rep. 303 (2004).
U.S.Clark v. Ferro Corp., 237 F. Supp. 230 (E.D. Tenn. 1964).
U.S.Hycel, Inc. v. American Airlines, Inc., 328 F. Supp. 190 (S.D. Tex. 1971).
Tex.Frost National Bank v. Heafner, 12 S.W.3d 104 (Tex. App. Houston 1st Dist. 1999).
Damages otherwise described as special
Some courts recognize as consequential damages those damages that are sometimes spoken of as special damages, as
contrasted with general damages.
U.S.Monarch Brewing Co. v. George J. Meyer Mfg. Co., 130 F.2d 582 (C.C.A. 9th Cir. 1942).
End of Document
5.Direct damages, 25 C.J.S. Damages 5
25 C.J.S. Damages 5
Damages
I. Overview
5. Direct damages
"Direct damages" are such as result from an act without the intervention of any intermediate controlling
or self-efficient cause.
"Direct damages" are such as result from an act without the intervention of any intermediate controlling or selfefficient cause. 1 They include all such injurious consequences as proceed from, or have direct causal connection
with, such consequences. 2 Direct damages compensate for the loss, damage, or injury that is conclusively
presumed to have been foreseen or contemplated by the party as a consequence of his or her breach of contract
or wrongful act. 3
Footnotes
S.D.Louiseau v. Arp, 21 S.D. 566, 114 N.W. 701 (1908).
1
2
3
Similar definitions
(1) "Direct damages" are damages that naturally follow from the breach of contract when the defaulting party is without
notice of any special conditions that would increase the measure of liability.
Tex.Martin v. Southern Engine & Pump Co., 130 S.W.2d 1065 (Tex. Civ. App. Galveston 1939).
(2) "Direct damages" are such as follow immediately on the act being done.
Ga.Georgia Grain Growers Ass'n v. Craven, 95 Ga. App. 741, 98 S.E.2d 633 (1957).
U.S.State of Md., for Use of Pumphrey v. Manor Real Estate & Trust Co., 83 F. Supp. 91 (D. Md. 1949), judgment
aff'd in part, rev'd in part on other grounds, 176 F.2d 414 (4th Cir. 1949).
Tex.Frost National Bank v. Heafner, 12 S.W.3d 104 (Tex. App. Houston 1st Dist. 1999).
End of Document
6.Exemplary or punitive damages, 25 C.J.S. Damages 6
25 C.J.S. Damages 6
Damages
I. Overview
6. Exemplary or punitive damages
"Exemplary damages" are damages imposed by way of punishment and are given for that purpose
in addition to compensation for a loss sustained. "Punitive damages" are synonymous with exemplary
damages and can be given to make an example of the wrongdoer.
"Exemplary damages," according to the ordinary acceptance of the term, 1 are damages imposed by way of
punishment, and are given for that purpose in addition to compensation for a loss sustained, 2 and, for this reason,
are distinguished from compensatory damages. 3 They are also described as "added," "punitive," "punitory,"
"vindictive," or "imaginary" damages, or "smart money," 4 the terms being ordinarily regarded as synonymous. 5
Under authority that the idea of punishment does not enter into the definition of "exemplary damages," the term is
employed to mean an increased award of damages in view of the supposed aggravation of the injury to the feelings
of the plaintiff by the wanton or reckless act of the defendant. 6 The term "exemplary damages" has also been
employed as descriptive of elements of recovery insusceptible of pecuniary measurement 7 and of a sum for the
plaintiff's expenses in litigation awarded in addition to his or her actual damages. 8
"Punitive damages" are those given in addition to compensation for a loss sustained, in order to punish, and make
an example of, the wrongdoer. 9 "Punitive," "vindictive," and "exemplary" damages are all synonymous terms,
as are the terms "punitive" and "punitory" damages. 10 Punitive damages are sometimes likened to a monetary
forfeiture provided for by statute. 11
Smart money.
Punitive damages are also termed "smart money." 12 "Smart money" is a term sometimes applied to such damages
as are in excess of the actual loss and are allowed in theory when a tort is aggravated by evil motive, actual malice,
deliberate violence, or oppression or fraud. 13 It is money required by way of punishment to make the wrongdoer
smart. 14
Footnotes
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10
IowaGregory v. Sorenson, 214 Iowa 1374, 242 N.W. 91 (1932).

For a detailed discussion of exemplary or punitive damages, see 221 to 267.
Tex.Allison v. Simmons, 306 S.W.2d 206 (Tex. Civ. App. Waco 1957), writ refused n.r.e.
Va.Baker v. Marcus, 201 Va. 905, 114 S.E.2d 617 (1960).
Similarly defined
(1) "Exemplary damages" are an amount allowed over and above actual or compensatory damages.
Fla.Goodrich v. Malowney, 157 So. 2d 829 (Fla. Dist. Ct. App. 2d Dist. 1963).
(2) "Exemplary damages" are damages that, besides making good the loss, serve to punish and make an example of
the wrongdoer.
N.Y.Leombruno v. Julian, 37 N.Y.S.2d 618 (Sup 1942), judgment conditionally rev'd on other grounds, 264 A.D.
981, 37 N.Y.S.2d 202 (3d Dep't 1942).
(3) "Exemplary damages" are damages on an increased scale, awarded to plaintiff over and above what will compensate
him or her for his or her property loss, where the wrong done to him or her was aggravated by circumstances of violence,
oppression, malice, fraud, or wanton and wicked conduct on the part of defendant.
N.Y.Goines v. Pennsylvania R. R., 208 Misc. 103, 143 N.Y.S.2d 576 (Sup 1955), judgment rev'd on other grounds,
3 A.D.2d 307, 160 N.Y.S.2d 39 (1st Dep't 1957).
S.C.Garrick v. Florida Cent. & P.R. Co., 53 S.C. 448, 31 S.E. 334 (1898) (overruled in part on other grounds by,
Hull v. Seaboard Air Line Ry., 76 S.C. 278, 57 S.E. 28 (1907)).
IowaBrause v. Brause, 190 Iowa 329, 177 N.W. 65 (1920).
Tex.South Texas Coaches v. Eastland, 101 S.W.2d 878 (Tex. Civ. App. Dallas 1937), writ dismissed.
Distinguished from vindictive damages
Fla.Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936).
Ariz.Gila Water Co. v. Gila Land & Cattle Co., 30 Ariz. 569, 249 P. 751 (1926).
Ill.Madison v. Wigal, 18 Ill. App. 2d 564, 153 N.E.2d 90 (2d Dist. 1958).
Tenn.Liberty Mut. Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760 (1963).
Ariz.Gila Water Co. v. Gila Land & Cattle Co., 30 Ariz. 569, 249 P. 751 (1926).
Conn.Shupack v. Gordon, 79 Conn. 298, 64 A. 740 (1906).
Cal.Carter v. Agricultural Ins. Co., 266 Cal. App. 2d 805, 72 Cal. Rptr. 462 (4th Dist. 1968).
Va.Baker v. Marcus, 201 Va. 905, 114 S.E.2d 617 (1960).
Similarly defined
(1) "Punitive damages" are damages other than compensatory or nominal damages, awarded against a person to punish
him or her for his or her outrageous conduct.
U.S.Chesapeake & Potomac Tel. Co. v. Clay, 194 F.2d 888 (D.C. Cir. 1952).
Md.Superior Const. Co. v. Elmo, 204 Md. 1, 104 A.2d 581 (1954).
(2) "Punitive damages" are an amount allowed over and above actual or compensatory damages.
Fla.Rosenberg v. Ryder Leasing, Inc., 168 So. 2d 678 (Fla. Dist. Ct. App. 3d Dist. 1964).
(3) "Punitive damages" are damages awarded in excess of the actual loss.
AlaskaBridges v. Alaska Housing Authority, 375 P.2d 696 (Alaska 1962).
Fla.Goodrich v. Malowney, 157 So. 2d 829 (Fla. Dist. Ct. App. 2d Dist. 1963).
Colo.Murphy v. Hobbs, 7 Colo. 541, 5 P. 119 (1884).
11
12
13
14
Exemplary damages, generally, see 221 to 267.

U.S.Toepleman v. U.S., 263 F.2d 697 (4th Cir. 1959).
Difference stated
A forfeiture is closely related to punitive damages in a civil action, the difference being that the jury or court determines
the amount of punitive damages whereas a forfeiture is fixed in amount by statute.
U.S.U.S. v. Cato Bros., Inc., 175 F. Supp. 811 (E.D. Va. 1959), order rev'd on other grounds, 273 F.2d 153, 2 Fed.
R. Serv. 2d 940 (4th Cir. 1959).
U.S.Lake Shore & M.S. Ry. Co. v. Prentice, 147 U.S. 101, 13 S. Ct. 261, 37 L. Ed. 97 (1893).
Ky.Ashland Dry Goods Co. v. Wages, 302 Ky. 577, 195 S.W.2d 312 (1946).
N.C.Hinson v. Dawson, 244 N.C. 23, 92 S.E.2d 393, 62 A.L.R.2d 806 (1956).
Pa.Springer v. J. H. Somers Fuel Co., 196 Pa. 156, 46 A. 370 (1900).
End of Document
7.General or special damages, 25 C.J.S. Damages 7
25 C.J.S. Damages 7
Damages
I. Overview
7. General or special damages
Ordinariness or directness in the usual case is the hallmark of general or direct damages; the presence of
peculiar circumstances signals special or consequential damages.
Ordinariness or directness in the usual case is the hallmark of general or direct damages; the presence of peculiar
circumstances signals special or consequential damages. 1 Stated differently, the usual consequences of a wrong
are general damages, and the unusual consequences are special damages. 2 "General damages" are those that
flow naturally from the breach of contract; "special damages" or "consequential damages" are other foreseeable
damages within the reasonable contemplation of the parties at the time the contract was made. 3
General damages are those that may not be fixed with any degree of pecuniary exactitude but which instead involve
mental or physical pain or suffering, inconvenience, the loss of gratification or intellectual or physical enjoyment,
or other losses of life of lifestyle, which cannot really be measured definitively in terms of money. 4
The primary objective of general damages is to restore the party in as near a fashion as possible to the state he
or she was in at the time immediately preceding injury 5 and thus, by their nature, are not susceptible of exact
quantification. 6
There is no mechanical rule for determining general damages; the facts and circumstances of each case control. 7
Although there is no per se rule that general damages must be awarded to every plaintiff who sustains an injury,
a plaintiff who substantiates his or her pain and suffering with evidence is entitled to general damages. 8
Special compensatory damages are the natural but not the necessary result of an alleged wrong and are often
considered to be synonymous with pecuniary loss and include such items as medical and hospital expenses, loss
of earnings, and diminished capacity. 9 They do not necessarily result from the wrong or breach of contract
complained of, or which the law does not imply as a result of that injury, even though they might naturally and
proximately result from the injury. 10 Special damages have a ready market value, such that the amount of damages
theoretically may be determined or calculated with relative certainty. 11
Special damages, although resulting from the wrongful act, are not usually associated with the claim in question
and must be pleaded in order to avoid unfair surprise to the defendant. 12
"Recoverable special damages" are those that are within the proximate cause limits, that can be proven with a
reasonable degree of certainty, and that do not duplicate elements of damage awarded under the general damages
headings. 13
The amount and nature of such damages are peculiar to each individual plaintiff. 14 They always grow out of
an unusual or peculiar state of facts, which may be known to one of the parties and not to the other. 15 Special
damages are those damages to which an exact dollar amount can be assigned 16 or which can be established with
reasonable mathematical certainty. 17
Unlike general damages for breach of contract, "special damages" are those losses that do not arise directly and
inevitably from any similar breach of any similar agreement; instead, they are secondary or derivative losses
arising from circumstances that are particular to the contract or to the parties; 18 they do not follow by implication
of law merely upon proof of the breach. 19
In cases of tort, special damages are such consequences of an injury as are peculiar to the circumstances and
condition of the injured party, 20 such as the plaintiff's medical expenses or lost wages incurred as a result of
the tort. 21
General damages and special damages must represent distinct injuries. 22 The subject of general and special
damages as distinguished is principally a question of pleading, the general rule being that, where special damages
are not claimed, a party can recover only such damages as are not only the natural and proximate result but also
the necessary result of the act complained of. 23
Footnotes
U.S.In re Ardent, Inc., 305 B.R. 133 (Bankr. D. D.C. 2003) (applying New Jersey law).
1
Contractual damages
Contractual damages are of two typesgeneral damages (sometimes called direct damages) and special damages
(sometimes called consequential damages).
Cal.Lewis Jorge Const. Management, Inc. v. Pomona Unified School Dist., 34 Cal. 4th 960, 22 Cal. Rptr. 3d 340,
102 P.3d 257 (2004).
2
3
Damages for personal injury or property damage

Damages to property or person are either general or special.
U.S.Schonfeld v. Hilliard, 218 F.3d 164 (2d Cir. 2000).
Ill.Petty v. Chrysler Corp., 343 Ill. App. 3d 815, 278 Ill. Dec. 714, 799 N.E.2d 432 (1st Dist. 2003).
Colo.Giampapa v. American Family Mut. Ins. Co., 64 P.3d 230 (Colo. 2003).
Minn.DeRosier v. Utility Systems of America, Inc., 780 N.W.2d 1 (Minn. Ct. App. 2010).
Mont.Byrum v. Andren, 2007 MT 107, 337 Mont. 167, 159 P.3d 1062 (2007).
Or.State Farm Fire and Cas. Co. v. American Family Mut. Ins. Co., 242 Or. App. 60, 253 P.3d 65 (2011).
Tenn.Newcomb v. Kohler Co., 222 S.W.3d 368 (Tenn. Ct. App. 2006).
Death of cattle as special damages
Death of cattle that were held at preconditioning feedlot and losses incurred due to decreased weight gain of surviving
cattle did not necessarily flow from damage to water well arising from seismic testing and, as such, damages due to
dead cattle were special damages, rather than direct or general damages, in action brought by feedlot owners against
company that conducted seismic survey; damages resulted from sand in well water, which caused calves stress and
increased their susceptibility to illnesses, and losses due to decreased weight gain were analogous to lost profits.
Tex.Burke v. Union Pacific Resources Co., 138 S.W.3d 46 (Tex. App. Texarkana 2004).
U.S.French v. Allstate Indem. Co., 637 F.3d 571 (5th Cir. 2011), cert. denied, 132 S. Ct. 420, 181 L. Ed. 2d 260
(2011) (decided under Louisiana law).
La.Graham v. Offshore Specialty Fabricators, Inc., 37 So. 3d 1002 (La. Ct. App. 1st Cir. 2010); Barnes v. Riverwood
Apartments Partnership, 16 So. 3d 361 (La. Ct. App. 2d Cir. 2009), on reh'g, (Aug. 5, 2009).
N.C.Iadanza v. Harper, 169 N.C. App. 776, 611 S.E.2d 217 (2005).
Speculative nature
La.Daigle v. City of Shreveport, 46-429 La. App. 2 Cir. 10/5/11, 2011 WL 4580557 (La. Ct. App. 2d Cir. 2011);
Williams v. Ruben Residential Properties, LLC, 58 So. 3d 534 (La. Ct. App. 2d Cir. 2011); Britt v. City of Shreveport,
55 So. 3d 76 (La. Ct. App. 2d Cir. 2010).
No proof of specific amount required
Ga.In re Estate of Zeigler, 295 Ga. App. 156, 671 S.E.2d 218 (2008).
Loss of enjoyment
Loss of enjoyment of life falls within the definition of general damages because it involves the quality of a person's
life, which is inherently speculative and can not be measured definitively in terms of money.
Physical impairment and disability
La.Thibeaux v. Trotter, 883 So. 2d 1128 (La. Ct. App. 3d Cir. 2004), writ denied, 896 So. 2d 31 (La. 2005).
Disability
La.Wood v. American Nat. Property & Cas. Ins. Co., 1 So. 3d 764 (La. Ct. App. 3d Cir. 2008).
Injury to reputation, mental suffering, hurt feelings, emotional distress
S.C.Erickson v. Jones Street Publishers, L.L.C., 368 S.C. 444, 629 S.E.2d 653 (2006) (disapproved of on other
grounds by, Floyd v. WBTW, 2007 WL 4458924 (D.S.C. 2007)).
Discomfort, annoyance, or inconvenience
Neb.Stephens v. Pillen, 12 Neb. App. 600, 681 N.W.2d 59 (2004).
5
6
7
8
9
10
11
12
Loss of consortium
La.Crownover v. City of Shreveport, 996 So. 2d 315 (La. Ct. App. 2d Cir. 2008).
La.Harris v. Delta Development Partnership, 994 So. 2d 69 (La. Ct. App. 1st Cir. 2008).
La.Wingfield v. State ex rel. Dept. of Transp. and Development, 835 So. 2d 785 (La. Ct. App. 1st Cir. 2002), writ
denied, 845 So. 2d 1060 (La. 2003) and writ denied, 845 So. 2d 1060 (La. 2003) and writ denied, 845 So. 2d 1059
(La. 2003).
Koehn v. Rhodes, 882 So. 2d 757 (La. Ct. App. 2d Cir. 2004).
Wash.Lopez v. Salgado-Guadarama, 130 Wash. App. 87, 122 P.3d 733 (Div. 3 2005).
Haw.Bynum v. Magno, 106 Haw. 81, 101 P.3d 1149 (2004), as amended, (Dec. 2, 2004).
Fla.Land Title of Cent. Florida, LLC v. Jimenez, 946 So. 2d 90 (Fla. Dist. Ct. App. 5th Dist. 2006).
U.S.French v. Allstate Indem. Co., 637 F.3d 571 (5th Cir. 2011), cert. denied, 132 S. Ct. 420, 181 L. Ed. 2d 260
(2011).
La.Moffitt v. Sewerage & Water Bd. of New Orleans, 40 So. 3d 336 (La. Ct. App. 4th Cir. 2010); Iles v. Ogden, 37
So. 3d 427 (La. Ct. App. 4th Cir. 2010), on reh'g, 2009-820 La. App. 4 Cir. 3/31/10, 2010 WL 1239084 (La. Ct. App.
4th Cir. 2010), writ denied, 44 So. 3d 694 (La. 2010) and writ denied, 44 So. 3d 695 (La. 2010).
U.S.Tipton v. Mill Creek Gravel, Inc., 373 F.3d 913 (8th Cir. 2004).
Mich.Fleet Business Credit v. Krapohl Ford Lincoln Mercury Co., 274 Mich. App. 584, 735 N.W.2d 644 (2007).
13
Pleading requirements
A party can recover only such special damages as he or she actually sustained as a consequence of alleged wrongful
acts, and he or she is required to plead them plainly, fully, and distinctly.
Ga.Sanders v. Brown, 257 Ga. App. 566, 571 S.E.2d 532 (2002).
AlaskaAlaska Const. Equipment, Inc. v. Star Trucking, Inc., 128 P.3d 164 (Alaska 2006).
14
Particular losses
"Special damages" are tangible losses or injuries to the plaintiff's property, business, occupation, or profession in which
it is possible to identify a specific amount of money as damages.
S.C.Erickson v. Jones Street Publishers, L.L.C., 368 S.C. 444, 629 S.E.2d 653 (2006) (disapproved of on other
grounds by, Floyd v. WBTW, 2007 WL 4458924 (D.S.C. 2007)).
Wis.Musa v. Jefferson County Bank, 2001 WI 2, 240 Wis. 2d 327, 620 N.W.2d 797 (2001).
15
16
17
18
19
20
21
22
23
Special character, condition, or circumstance of person wronged

OhioHudson v. United Servs. Auto. Assn. Ins. Co., 150 Ohio Misc. 2d 23, 2008-Ohio-7084, 902 N.E.2d 101 (C.P.
2008).
Colo.Rogers v. Funkhouser, 121 Colo. 13, 212 P.2d 497 (1949).
Tex.Meyer v. Thompson, 284 S.W.2d 384 (Tex. Civ. App. Galveston 1955), writ refused n.r.e..
Minn.Deal v. Northwood Children's Home Society, Inc., 608 N.W.2d 922 (Minn. Ct. App. 2000).
La.Winn v. Industrial Crane Rental Inc., 772 So. 2d 821 (La. Ct. App. 3d Cir. 2000).
Amount of special damages need not be mathematically exact
Nev.Countrywide Home Loans, Inc. v. Thitchener, 124 Nev. 725, 192 P.3d 243 (2008).
102 P.3d 257 (2004).
Fla.Land Title of Cent. Florida, LLC v. Jimenez, 946 So. 2d 90 (Fla. Dist. Ct. App. 5th Dist. 2006).
N.Y.Delehanty v. Walzer, 59 N.Y.S.2d 777 (Sup 1945), judgment rev'd on other grounds, 271 A.D. 886, 67 N.Y.S.2d
25 (2d Dep't 1946), judgment aff'd, 298 N.Y. 820, 83 N.E.2d 863 (1949).
Damages for torts in general, see 137, 138.
La.Wainwright v. Fontenot, 774 So. 2d 70 (La. 2000).
Minn.Deal v. Northwood Children's Home Society, Inc., 608 N.W.2d 922 (Minn. Ct. App. 2000).
U.S.In re Usery, 123 F.3d 1089 (8th Cir. 1997).
Cal.Mills v. San Diego Conservatory of Music, 47 Cal. App. 300, 191 P. 546 (2d Dist. 1920).
La.Wainwright v. Fontenot, 774 So. 2d 70 (La. 2000).
Pleading general or special damages, see 276, 277.
End of Document
8.Liquidated damages, 25 C.J.S. Damages 8
25 C.J.S. Damages 8
Damages
I. Overview
8. Liquidated damages
"Liquidated damages" are those the amount whereof has been ascertained by a judgment or by agreement
of the parties.
"Liquidated damages" are those the amount whereof has been ascertained by a judgment 1 or by the specific
agreement of the parties, 2 or which are susceptible of being made certain by mathematical calculation from
known factors. 3
Liquidated damages are a maximum limitation of liability. 4
Unliquidated damages.
Damages are "unliquidated" where they are an uncertain quantity, depending on no fixed standard, referred to the
wise discretion of a jury, and can never be made certain except by accord or verdict. 5 Tort claims are considered to
be unliquidated damage claims, 6 especially when the complaint alleges only general damages without demanding
a specific amount. 7
Footnotes
D.C.District of Columbia v. World Fire & Marine Ins. Co., 68 A.2d 222 (Mun. Ct. App. D.C. 1949).
1
S.C.Retailers Service Bureau v. Smith, 165 S.C. 238, 163 S.E. 649 (1932).
For a detailed discussion of liquidated damages, see 192 to 220.
S.C.Retailers Service Bureau v. Smith, 165 S.C. 238, 163 S.E. 649 (1932).
Agreements as to liquidated damages, see 192 to 220.
Similarly defined
(1) The term "liquidated damages" refers to the sum a party to a contract agrees to pay if he or she breaks some promise
and which, having been arrived at by a good-faith effort to estimate in advance the actual damage that will probably
ensue from the breach, is legally recoverable as agreed damages if the breach occurs.
8.Liquidated damages, 25 C.J.S. Damages 8
5
6
7
N.J.Westmount Country Club v. Kameny, 82 N.J. Super. 200, 197 A.2d 379 (App. Div. 1964).
(2) The term "liquidated damages" is used in reference to the breach of a contract or nonperformance of duty as
expressing a fixed sum that is agreed upon between the parties as the ascertained damage that the one is to receive
and the other to pay because of the default.
U.S.U.S. v. U.S. Fidelity & Guaranty Co., 151 F. 534 (C.C.D. Md. 1907).
(3) "Liquidated damages" have been defined as those that are certain by computation from the face of a contract or that
may be made certain by reference to well-established market values plus compensation.
Cal.Ansco Const. Co. v. Ocean View Estates, Inc., 169 Cal. App. 2d 235, 337 P.2d 146 (2d Dist. 1959).
N.J.Williams & Davis v. Davis, 105 N.J.L. 542, 147 A. 337 (N.J. Sup. Ct. 1929).
"Unliquidated damages" distinguished
(1) "Liquidated damages" are those agreed on, fixed by law, or susceptible of being made certain by mathematical
calculations from known factors while "unliquidated damages" are those that cannot be made certain by one party alone.
Mass.Cochrane v. Forbes, 267 Mass. 417, 166 N.E. 752 (1929).
(2) Damages are liquidated where they can be determined from the contract itself or from the contract and rules of
law applicable thereto, and are unliquidated where it is necessary to introduce evidence before plaintiff can prove his
or her case.
U.S.In re Silver, 109 F. Supp. 200 (E.D. Ill. 1952), order aff'd, 204 F.2d 259 (7th Cir. 1953).
U.S.Nester v. Western Union Tel. Co., 25 F. Supp. 478, 1 Fed. R. Serv. 4, 1 Fed. R. Serv. 83, 1 Fed. R. Serv. 85,
1 Fed. R. Serv. 271 (S.D. Cal. 1938), judgment aff'd, 106 F.2d 587 (C.C.A. 9th Cir. 1939), judgment rev'd on other
grounds, 309 U.S. 582, 60 S. Ct. 769, 84 L. Ed. 960, 128 A.L.R. 628 (1940).
Ga.Henderson v. American Hat Mfg. Co., 57 Ga. App. 10, 194 S.E. 254 (1937).
Tex.Boykins v. Parr, 327 S.W.2d 463 (Tex. Civ. App. Waco 1959), writ refused n.r.e., (Dec. 2, 1959).
D.C.Snowder v. District of Columbia, 949 A.2d 590 (D.C. 2008).
Fla.I-Net Technologies, Inc. v. Salazar, 2011 WL 3586233 (Fla. Dist. Ct. App. 4th Dist. 2011).
End of Document
9.Other kinds of damages, 25 C.J.S. Damages 9
25 C.J.S. Damages 9
Damages
I. Overview
9. Other kinds of damages
There are a variety of kinds of damages that the law recognizes.
There are a variety of kinds of damages that the law recognizes.
Accumulative damages.
"Accumulative damages" are damages awarded by statute in addition to the amount recoverable at common law. 1
Such damages are also denominated "enhanced damages." 2
Added damages.
The term "added damages" is used as synonymous with what are more commonly termed "punitive," "vindictive,"
or "exemplary" damages. 3
Affirmative damages.
The term "affirmative damages" is a term used to denote damages recoverable by a defendant in excess of any
amount that the plaintiff would be entitled to claim. 4
Civil damages.
The term "civil damages" is one employed to describe the damages that under statutes relating to the sale of
intoxicating liquors may be collected by a spouse, child, parent, guardian, or employer who is injured in person,
property, or means of support. 5
Economic damages.
"Economic damages" are defined as compensation determined by the trier of fact for pecuniary losses whereas
noneconomic damages are defined as compensation determined by the trier of fact for all nonpecuniary losses
including, but not limited to, physical pain and suffering and mental and emotional suffering; economic damages
are akin to special damages, and noneconomic damages are akin to general damages. 6
Estimated damages.
The term "estimated damages" is used as equivalent to the term "liquidated damages." 7
Gross damages.
"Gross damages" is a term sometimes employed in statutes relating to the assessment of damages for injuries
to land or property not taken 8 or to the assessment of damages for recurring injuries to land as by flowage to
indicate the amount awarded for damages up to the time of the proceeding, as distinguished from an award for
annual damages thereafter. 9
Hedonic damages.
The term "hedonic damages" refers to damages for loss of enjoyment of life or lifestyle. 10
Incidental damages.
"Incidental damages" is a term used in condemnation proceedings to describe compensation for such
inconvenience as results to a person whose land is taken by reason of the taking and use. 11
Indeterminate damages.
"Indeterminate damages" is a designation sometimes applied to elements of recovery that are not susceptible of
pecuniary measurement 12 or to damages that are ordinarily termed "exemplary damages." 13
Individual damages.
"Individual damages" is a term sometimes applied to indicate that special and peculiar injury to a private person
that will permit him or her to sue to enforce a right or to redress a wrong of a public nature. 14
Irreparable damages.
The phrase "irreparable damages" is sometimes employed as meaning damages that can be estimated only by
conjecture and not by any accurate standard. 15
Land damages.
"Land damages" is a term employed with reference to compensation for land injured or taken in eminent domain
proceedings. 16
Necessary damages.
"Necessary damages" are those consequences of an injury usually denominated "general" as distinguished from
"special" damages. 17
Negligible damages.
"Negligible damages" are a small sum of money awarded as compensation. 18
Nominal damages.
Nominal damages are recoverable where there is a breach of a legal duty or the invasion of a legal right and no
actual damages result or where actual damages are not proven. 19
Nonpecuniary damages.
"Nonpecuniary damages," in actions for personal injuries, mean damages the amount of which cannot be
determined by any known rule, but which depend on the enlightened judgment of an impartial court or jury, such
as damages for pain, suffering, loss of reputation, impairment of faculties, etc. 20
Ordinary damages.
"Ordinary damages" are a sum awarded as a fair measure of compensation to the plaintiff, the amount being, as
near as can be estimated, that by which he or she is the worse for the defendant's wrongdoing. 21
Pecuniary damages.
"Pecuniary damages" are a smaller class of damages within the larger class of damages generally. 22 They are not
limited to the loss of money 23 but as applied to actions for personal injuries have been defined as damages that
can be accurately estimated, such as loss of wages, costs of medical attendance, and the like. 24 "Pecuniary" is a
word of much narrower scope than "necessary." 25
Permanent damages.
"Permanent damages" are damages for the entire injury done, present, past, and prospective, 26 and, generally
speaking, are those that are practically irremediable. 27
Presumptive damages.
The term "presumptive damages" is sometimes used as synonymous with "exemplary damages." 28
Prospective damages.
"Prospective damages" are damages that are expected to follow from the act or state of facts that made the basis
of a plaintiff's suit; damages that 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. 29
Proximate damages.
"Proximate damages" include all damage directly and immediately caused by the wrongful act, and such
consequential damages as result from intermediate causes, where the natural and probable effect of the act
complained of is to set in operation the intervening cause from which the loss directly results. 30 Proximate
damages in cases of negligence are the ordinary and natural results of the negligence. 31
Remote damages.
"Remote damages" are such as are the result of accident or an unusual combination of circumstances that could
not reasonably be anticipated and over which the party sought to be charged had no control. 32
Simple damages.
"Simple damages" are those that are compensatory. 33
Speculative damages.
The term "speculative damages" is sometimes used as synonymous with "exemplary damages." 34 However,
ordinarily damages are said to be speculative when the probability that a circumstance will exist as an element
for compensation becomes conjectural. 35
Stipulated damages.
"Stipulated damages" is a term used as synonymous with "liquidated damages" 36 and as likened somewhat to
penal obligations. 37
Substantial damages.
"Substantial damages" are damages that are considerable in amount and intended as a real compensation for a
real injury. 38 Such damages indemnify the plaintiff and generally measure the plaintiff's actual loss and provide
amends therefor. 39 They are damages worth having as opposed to nominal damages. 40
Temperate damages.
"Temperate damages" are a reasonable compensation for the injury, more than nominal damages. 41
Temporary damages.
"Temporary damages" are damages to real estate that are recovered from time to time as they accrue from the
injury. 42
Footnotes
Mo.Casey v. St. Louis Transit Co., 116 Mo. App. 235, 91 S.W. 419 (1905).
1
Mo.Casey v. St. Louis Transit Co., 116 Mo. App. 235, 91 S.W. 419 (1905).
2
Mich.Ross v. Leggett, 61 Mich. 445, 28 N.W. 695 (1886).
3
U.S.The Reuben Doud, 3 F. 520 (E.D. Wis. 1880).
4
IowaHeadington v. Smith, 113 Iowa 107, 84 N.W. 982 (1901).
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Civil damage laws, see C.J.S., Intoxicating Liquors 686 to 691.

Conn.Deas v. Diaz, 121 Conn. App. 826, 998 A.2d 200 (2010), certification denied, 298 Conn. 905, 3 A.3d 69 (2010).
U.S.Gallo v. McAndrews, 29 F. 715 (S.D. N.Y. 1887).
Wash.City of Tacoma v. Bonnell, 58 Wash. 593, 109 P. 60 (1910).
Me.Ingram v. Maine Water Co., 98 Me. 566, 57 A. 893 (1904).
La.Foster v. Trafalgar House Oil & Gas, 603 So. 2d 284 (La. Ct. App. 2d Cir. 1992).
Ky.Chicago, St. L. & N.O.R. Co. v. Rottgering, 26 Ky. L. Rptr. 1167, 83 S.W. 584 (Ky. 1904).
40 W. Va. 246, 22 S.E. 58 (1895)).
40 W. Va. 246, 22 S.E. 58 (1895)).
Ind.Wea Tp., Tippecanoe County v. Cloyd, 46 Ind. App. 49, 91 N.E. 959 (1910).
Mo.Renwood Food Products v. Schaefer, 240 Mo. App. 939, 223 S.W.2d 144 (1949).
Wash.Columbia College of Music & School of Dramatic Art. v. Tunberg, 64 Wash. 19, 116 P. 280 (1911).
Mass.New York, N.H. & H.R. Co. v. Blackstone, 184 Mass. 491, 69 N.E. 315 (1904).
Mo.Browning v. Wabash Western Ry. Co., 24 S.W. 731 (Mo. 1893), aff'd, 124 Mo. 55, 27 S.W. 644 (1894).
Me.Baker v. Farrand, 2011 ME 91, 26 A.3d 806 (Me. 2011).
Conn.Wasko v. Manella, 87 Conn. App. 390, 865 A.2d 1223 (2005).
For a detailed discussion of nominal damages, see 17 to 22.
Neb.L.W. Pomerene Co. v. White, 70 Neb. 171, 97 N.W. 232 (1903), modified on other grounds on reh'g, 70 Neb.
177, 98 N.W. 1040 (1904).
Damages for physical and mental pain and suffering, generally, see 104 to 117.
W.Va.Chafin v. Gay Coal & Coke Co., 113 W. Va. 823, 169 S.E. 485 (1933).
N.Y.McIntyre v. New York Cent. R. Co., 37 N.Y. 287, 35 How. Pr. 36, 1867 WL 6524 (1867).
Neb.L.W. Pomerene Co. v. White, 70 Neb. 171, 97 N.W. 232 (1903), modified on other grounds on reh'g, 70 Neb.
177, 98 N.W. 1040 (1904).
N.C.Phillips v. Chesson, 231 N.C. 566, 58 S.E.2d 343 (1950).
W.Va.McHenry v. City of Parkersburg, 66 W. Va. 533, 66 S.E. 750 (1909).
U.S.Douglas Aircraft Co. v. Kerns, 164 F.2d 1007 (C.C.A. 10th Cir. 1947).
Similarly expressed
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
The term "permanent damages" does not include the idea of absolute, but only practical, irremediability.
Okla.H.D. Youngman Contractor, Inc. v. Girdner, 1953 OK 277, 262 P.2d 693 (Okla. 1953).
Ga.State Highway Bd. v. Coleman, 78 Ga. App. 54, 50 S.E.2d 262 (1948).
Cal.Friend & Terry Lumber Co. v. Miller, 67 Cal. 464, 8 P. 40 (1885).
Similar definition
"Proximate damages" are those that accrue directly and in natural sequence, and as a specific result from the act done,
without the intervention of an independent cause.
U.S.U.S. v. Chicago, B. & Q. R. Co., 82 F.2d 131, 106 A.L.R. 942 (C.C.A. 8th Cir. 1936).
Cal.Henry v. Southern Pac. R. Co., 50 Cal. 176, 1875 WL 1559 (1875).
Wis.Mueller v. Milwaukee St. R. Co., 86 Wis. 340, 56 N.W. 914 (1893).
IdahoOlson v. Quality-Pak Co., 93 Idaho 607, 469 P.2d 45 (1970).
Miss.Bridges v. Land, 252 So. 2d 209 (Miss. 1971) (rejected on other grounds by, Tideway Oil Programs, Inc. v.
Serio, 431 So. 2d 454, 58 A.L.R.4th 819 (Miss. 1983)).
U.S.Erie Basin Metal Products, Inc. v. U.S., 138 Ct. Cl. 67, 150 F. Supp. 561 (1957).
IdahoLockwood Graders of Idaho, Inc. v. Neibaur, 80 Idaho 123, 326 P.2d 675 (1958).
U.S.Great Am. Music Mach., Inc. v. Mid-South Record Pressing Co., 393 F. Supp. 877, 17 U.C.C. Rep. Serv. 381
(M.D. Tenn. 1975).
Cal.Jones v. San Bernardino Real Estate Bd., 168 Cal. App. 2d 661, 336 P.2d 606 (4th Dist. 1959).
IdahoLockwood Graders of Idaho, Inc. v. Neibaur, 80 Idaho 123, 326 P.2d 675 (1958).
Damages that are merely possible
Ill.Allison v. Chicago Transit Authority, 336 Ill. App. 224, 83 N.E.2d 386 (1st Dist. 1948).
Mo.Harrison v. Murray Iron Works Co., 96 Mo. App. 348, 70 S.W. 261 (1902).
N.C.Moseley v. Johnson, 144 N.C. 257, 144 N.C. 274, 56 S.E. 922 (1907).
Ala.Matheny v. Petersen, 276 Ala. 478, 163 So. 2d 635 (1964).
Va.Orebaugh v. Antonious, 190 Va. 829, 58 S.E.2d 873 (1950).
Ala.Matheny v. Petersen, 276 Ala. 478, 163 So. 2d 635 (1964).
Ga.Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).
Ga.Hilton v. Jesup Banking Co., 128 Ga. 30, 57 S.E. 78 (1907).
W.Va.McHenry v. City of Parkersburg, 66 W. Va. 533, 66 S.E. 750 (1909).
End of Document
Research References, 25 C.J.S. Damages II Refs.
25 C.J.S. Damages II Refs.

Damages
II. Nature and Existence of Right to Damages in General
Research References
A.L.R. Library
A.L.R. Index, Multiple Damages
A.L.R. Index, Pain and Suffering
West's A.L.R. Digest, Damages 1 to 5 , 7
End of Document
10.Nature and theory of pecuniary reparation, 25 C.J.S. Damages 10
25 C.J.S. Damages 10
Damages
10. Nature and theory of pecuniary reparation
"Damages" are monetary compensation for loss or harm suffered by a person, or certain to be suffered in
the future, as the result of the unlawful act or omission.
"Damages" are monetary compensation for loss or harm suffered by a person, or certain to be suffered in the
future, as the result of the unlawful act or omission 1 or negligence of another. 2 The term refers to pecuniary
compensation, recompense, or satisfaction for an injury sustained, 3 and the injured party is entitled to full
indemnification for the resulting damages. 4 The point of an award of damages, whether it is for breach of contract
or for a tort, is, so far as possible, to put the victim where he or she would have been had the breach or tort not taken
place, 5 in other words, to make the injured party whole again. 6 The primary objective, then, is to compensate
the injured plaintiff, not punish the defendant. 7
The word "damages" expresses in dollars and cents the injury sustained by a plaintiff; 8 it includes both the original
debt or damage and whatever interest ought to be added to make a just verdict. 9
The fact that a judicial remedy may require one party to pay money to another is not a sufficient reason to
characterize the relief as "money damages"; rather, the proper characterization of a monetary remedy turns on
what that remedy represents. 10
Damages are distinguished from other sorts of payments by their remedial purpose. 11 However, the creation of
a right to recover damages is not merely remedial legislation for purposes of retroactive application even if the
conduct upon which the right to recover is based had previously been declared wrongful; damages and punishments
are substantive law. 12
A determination of liability is a prerequisite to a finding of damages, such that an award of damages cannot survive
independent of the accompanying determination of liability. 13
A plaintiff seeks damages for a past violation of its rights; this violation is not mooted by a promise not to repeat
the alleged conduct in the future. 14
10.Nature and theory of pecuniary reparation, 25 C.J.S. Damages 10
Unlike attorney's fees, the awarding of damages does not require authorization by special statute or by contract. 15
Footnotes
Cal.Citizens of Humanity, LLC v. Costco Wholesale Corp., 171 Cal. App. 4th 1, 89 Cal. Rptr. 3d 455 (2d Dist.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
2009) (disapproved of on other grounds by, Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 120 Cal. Rptr. 3d 741,
246 P.3d 877 (2011)).
UtahEleopulos v. McFarland and Hullinger, LLC, 2006 UT App 352, 145 P.3d 1157 (Utah Ct. App. 2006).
La.Hughes v. Goodreau, 836 So. 2d 649 (La. Ct. App. 1st Cir. 2002), writ denied, 841 So. 2d 793 (La. 2003).
U.S.Mississippi Chemical Corp. v. Dresser-Rand Co., 287 F.3d 359, 58 Fed. R. Evid. Serv. 1087, 47 U.C.C. Rep.
Serv. 2d 244 (5th Cir. 2002).
D.C.American Service Center Associates v. Helton, 867 A.2d 235 (D.C. 2005).
Mo.R.J.S. Sec., Inc. v. Command Sec. Services, Inc., 101 S.W.3d 1 (Mo. Ct. App. W.D. 2003).
Tex.Celanese Ltd. v. Chemical Waste Management, Inc., 75 S.W.3d 593 (Tex. App. Texarkana 2002).
Mass.Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 914 N.E.2d 891 (2009); Denver Street LLC v. Town of
Saugus, 78 Mass. App. Ct. 526, 939 N.E.2d 1187 (2011), review granted, 459 Mass. 1104, 942 N.E.2d 968 (2011).
Mass. 1104, 942 N.E.2d 968 (2011).
Conn.Town of New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 970 A.2d 592 (2009).
Ill.Central Illinois Light Co. v. Home Ins. Co., 213 Ill. 2d 141, 290 Ill. Dec. 155, 821 N.E.2d 206 (2004).
IdahoState ex rel. Wasden v. Daicel Chemical Industries, Ltd., 141 Idaho 102, 106 P.3d 428 (2005).
Mo.Brand v. Kansas City Gastroenterology and Hepatology, 2011 WL 135010 (Mo. Ct. App. W.D. 2011), reh'g
and/or transfer denied, (71061)(Mar. 1, 2011); Giles v. Riverside Transport, Inc., 266 S.W.3d 290 (Mo. Ct. App. W.D.
2008).
U.S.Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895 (9th Cir. 2007).
La.Shreveport Neon Signs, Inc. v. Williams, 5 So. 3d 977 (La. Ct. App. 2d Cir. 2009).
End of Document
11.Double recovery or double damages, 25 C.J.S. Damages 11
Damages
11. Double recovery or double damages
West's Key Number Digest, Damages 1, 5
Recovery of double damages for a single injury is prohibited.
Under the "double recovery doctrine," a plaintiff can recover only once for a single injury even if the plaintiff
asserts multiple legal theories; satisfaction of the plaintiff's damages for an injury bars further recovery for that
injury. 1 In the absence of punitive damages, a plaintiff can recover no more than the loss actually suffered. 2
A plaintiff may not recover damages twice for the same injury simply because he or she has two legal theories, 3
but the mere fact that damages are recovered from two different persons or sources does not necessarily mean
that there has been a double recovery. 4
The overlapping of damages is generally not permissible, 5 and a person is not entitled to recover twice for the
same elements of damage growing out of the same occurrence or event. 6
Impairment of earning capacity and loss of earnings.

Impairment of earning capacity and loss of earnings so closely compliment each other that damages may not be
awarded for loss of future earnings and for impairment of earning capacity during the same period of time. 7
Cases:
Under Texas law, the absence of tort liability does not preclude the application of the one satisfaction rule. Coastal
Agricultural Supply, Inc. v. JP Morgan Chase Bank, N.A., 759 F.3d 498, 84 U.C.C. Rep. Serv. 2d 165 (5th Cir.
2014).
Treble-damages remedy under Racketeer Influenced and Corrupt Organizations Act (RICO) was compensatory,
rather than punitive, and therefore award to plaintiffs of punitive damages on their state-law claim for tortious
interference with business opportunity was not impermissible double-counting, due to treble damages awarded to
11.Double recovery or double damages, 25 C.J.S. Damages 11
plaintiffs under RICO based on same conduct. 18 U.S.C.A. 1961 et seq. BCS Services, Inc. v. BG Investments,
Inc., 728 F.3d 633 (7th Cir. 2013).
Where a judge or jury discernibly awards separate recoveries for deceptive acts or practices under consumer
protection law and a common law claim based on the same act, one recovery is precluded, with preference given
to retaining the deceptive acts award. M.G.L.A. c. 93A, 1. Costa v. Brait Builders Corp., 463 Mass. 65, 972
N.E.2d 449 (2012).
The one-satisfaction rule applies when all defendants commit the same act or technically different acts that cause
a single injury. Cunningham v. Haroona, 382 S.W.3d 492 (Tex. App. Fort Worth 2012), reh'g overruled, (Oct. 18,
2012) and rule 53.7(f) motion granted, (Nov. 27, 2012).
[END OF SUPPLEMENT]
Footnotes
Nev.Elyousef v. O'Reilly & Ferrario, LLC, 245 P.3d 547, 126 Nev. Adv. Op. No. 43 (Nev. 2010).
1
2
3
4
5
6
7
Employment discrimination and retaliation

Jury's award of $180,000 to Hispanic metropolitan police department captain in employment discrimination and
retaliation action under 1983, Title VII, and District of Columbia (D.C.) Human Rights Act constituted impermissible
double recovery where captain's claims under federal and D.C. theories arose from same operative facts and sought
identical relief.
D.C.Medina v. District of Columbia, 643 F.3d 323 (D.C. Cir. 2011).
D.C.Medina v. District of Columbia, 643 F.3d 323 (D.C. Cir. 2011).
U.S.Greenwood Ranches, Inc. v. Skie Const. Co., Inc., 629 F.2d 518, 6 Fed. R. Evid. Serv. 1022 (8th Cir. 1980).
Ill.Dial v. City of O'Fallon, 81 Ill. 2d 548, 44 Ill. Dec. 248, 411 N.E.2d 217 (1980).
Ill.Kurth v. Amee, Inc., 3 Ill. App. 3d 506, 278 N.E.2d 162 (2d Dist. 1972).
Damages in excess of statutory limitation
Ill.Kimes v. Trapp, 52 Ill. App. 2d 442, 202 N.E.2d 42 (3d Dist. 1964).
U.S.Bartholomew v. Universe Tankships, Inc., 279 F.2d 911 (2d Cir. 1960).
IowaSchnebly v. Baker, 217 N.W.2d 708 (Iowa 1974).
Wash.Brink v. Griffith, 65 Wash. 2d 253, 396 P.2d 793 (1964).
OhioEpps v. Clymer Materials Co., 104 Ohio App. 173, 4 Ohio Op. 2d 239, 147 N.E.2d 502 (3d Dist. Union County
1957).
End of Document
12.Discretion of court, 25 C.J.S. Damages 12
Damages
12. Discretion of court
The trial court has broad discretion in determining whether damages are appropriate.
The trial court has broad discretion in determining whether damages are appropriate, 1 and such discretion extends
to special damages. 2 However, when reviewing a special damages award, the trial court has a narrower and more
limited discretion than when assessing general damages. 3
Where a system of damages already exists for the rational allocation of costs, and where society as a whole relies
upon that system, it has been held that there is little reason for a court to impose an entirely new system of
allocation; this is particularly true where the new system could have significant unintended consequences. 4 For
example, when Congress has prescribed a comprehensive tort recovery regime to be uniformly applied, there is
no cause for enlargement of damages statutorily provided. 5
Footnotes
Conn.Jacques All Trades Corp. v. Brown, 57 Conn. App. 189, 752 A.2d 1098 (2000).
1
2
3
4
5
La.Burgess v. C.F. Bean Corp., 743 So. 2d 251 (La. Ct. App. 4th Cir. 1999), writ denied, 750 So. 2d 991 (La. 1999).
La.Burgess v. C.F. Bean Corp., 743 So. 2d 251 (La. Ct. App. 4th Cir. 1999), writ denied, 750 So. 2d 991 (La. 1999).
La.Winn v. Industrial Crane Rental Inc., 772 So. 2d 821 (La. Ct. App. 3d Cir. 2000).
Ill.City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 290 Ill. Dec. 525, 821 N.E.2d 1099 (2004).
La.Trinh ex rel. Tran v. Dufrene Boats, Inc., 6 So. 3d 830 (La. Ct. App. 1st Cir. 2009), writ denied, 5 So. 3d 166
(La. 2009) and writ denied, 5 So. 3d 166 (La. 2009).
End of Document
13.Character of injury, 25 C.J.S. Damages 13
Damages
13. Character of injury
In order that damages may be claimed, they must result from a legal injury actually sustained.
Under the common law, nominal damages may be awarded to a litigant who has established a cause of action, 1 and
where the act constituting the wrong is followed by actual damages that are its natural and proximate consequences,
they must be made good by the wrongdoer 2 even though the injury cannot be specifically classified. 3 If a
substantial right has been violated, the fact that only nominal damages have been sustained, 4 or that the damage
is small, 5 will not prevent a recovery since the right to damages depends on the injury and not on the amount
of damages. 6
A plaintiff may be compensated for intangible, psychological injuries, such as injury to reputation and credibility, 7
as well as financial, property, or physical harms. 8
As a general rule, a person is required to have sustained an actual detriment from the particular injury of which he
or she complains before he or she can be compensated for its infliction, 9 and a plaintiff may not be compensated
for damages that he or she has not suffered. 10 It is the fact of an injury that sets in force and operation the factors
that create and establish the basis for a claim of damages, 11 and damages may be recovered only where they result
from a loss or legal injury actually sustained. 12 For example, no legal damages flow from an inability to engage
in unlawful activity. 13 Additionally, simply because a statute authorizes the recovery of damages to compensate
for injuries does not mean that the statute authorizes the recovery of damages for any type of loss. 14 Under the
doctrine of "damnum absque injuria," a person may suffer damages and be without remedy because no legal right
or right established by law and possessed by him or her has been invaded, or the person causing the damage owes
no duty known to the law to refrain from doing the act causing the damage. 15 Thus, not every loss constitutes
a legal injury for which compensation is available. 16
Footnotes
U.S.Manzanares v. City Of Albuquerque, 628 F.3d 1237, 78 Fed. R. Serv. 3d 310 (10th Cir. 2010).
1
13.Character of injury, 25 C.J.S. Damages 13
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Conn.Right v. Breen, 88 Conn. App. 583, 870 A.2d 1131 (2005), judgment rev'd on other grounds, 277 Conn. 364,
890 A.2d 1287 (2006).
U.S.Mack v. Johnson, 430 F. Supp. 1139 (E.D. Pa. 1977), aff'd, 582 F.2d 1275 (3d Cir. 1978) and aff'd, 582 F.2d
1276 (3d Cir. 1978).
Tex.Ansley v. Tarrant County Water Control and Imp. Dist. No. One, 498 S.W.2d 469 (Tex. Civ. App. Tyler 1973),
writ refused n.r.e., (Oct. 24, 1973).
U.S.Harrison Engineering & Construction Corporation v. Rollison, 109 F.2d 602 (C.C.A. 5th Cir. 1940).
Tex.Pullman Co. v. Dudley, 77 S.W.2d 592 (Tex. Civ. App. Eastland 1934).
OhioPierson v. Hermann, 3 Ohio App. 2d 398, 32 Ohio Op. 2d 533, 210 N.E.2d 893 (10th Dist. Franklin County
1965).
Vt.Harding v. Ja Laur Corp., 20 Md. App. 209, 315 A.2d 132 (1974).
Okla.Reed v. Voss, 1923 OK 158, 89 Okla. 20, 213 P. 730 (1923).
U.S.Akouri v. State of Florida Dept. of Transp., 408 F.3d 1338, 67 Fed. R. Evid. Serv. 257 (11th Cir. 2005).
Ind.Indiana Family & Social Services Admin., Div. of Family and Children, Lake County Office v. Ace Foster Care
and Pediatric Home Nursing Agency Corp., 823 N.E.2d 1199 (Ind. Ct. App. 2005).
U.S.Akouri v. State of Florida Dept. of Transp., 408 F.3d 1338, 67 Fed. R. Evid. Serv. 257 (11th Cir. 2005).
La.Romero v. General Acc. Fire & Life Assur. Corp., 199 So. 2d 607 (La. Ct. App. 3d Cir. 1967).
N.C.Alltop v. J. C. Penney Co., 10 N.C. App. 692, 179 S.E.2d 885 (1971).
La.Terrell v. Nanda, 759 So. 2d 1026 (La. Ct. App. 2d Cir. 2000).
Okla.Cockings v. Austin, 1995 OK 46, 898 P.2d 136 (Okla. 1995).
Wis.Matthies v. Positive Safety Mfg. Co., 2001 WI 82, 244 Wis. 2d 720, 628 N.W.2d 842 (2001).
La.Bourgeois v. A.P. Green Industries, Inc., 716 So. 2d 355 (La. 1998).
Md.Bennett Heating & Air Conditioning, Inc. v. NationsBank of Maryland, 342 Md. 169, 674 A.2d 534 (1996).
Mont.H-D Irrigating, Inc. v. Kimble Properties, Inc., 2000 MT 212, 301 Mont. 34, 8 P.3d 95 (2000).
UtahGillmor v. Wright, 850 P.2d 431 (Utah 1993).
Cal.Cooper v. F.A.A., 622 F.3d 1016 (9th Cir. 2010), cert. granted, 131 S. Ct. 3025, 180 L. Ed. 2d 843 (2011).
No damages based on merits of being or nonbeing
OhioSchirmer v. Mt. Auburn Obstetrics & Gynecologic Assoc., Inc., 108 Ohio St. 3d 494, 2006-Ohio-942, 844
N.E.2d 1160 (2006).
Cal.City of Carlsbad v. Rudvalis, 109 Cal. App. 4th 667, 135 Cal. Rptr. 2d 194 (4th Dist. 2003).
Fla.Shaw v. Puleo, 159 So. 2d 641 (Fla. 1964) (overruled in part on other grounds by, Griffis v. Hill, 230 So. 2d
143 (Fla. 1969)).
Pa.Brown v. Philadelphia College of Osteopathic Medicine, 2000 PA Super 262, 760 A.2d 863 (2000).
Breach of contract
A breach of contract may occur without causing damage.
U.S.Blair v. U.S. for Use and Benefit of Gregory-Hogan, 150 F.2d 676 (C.C.A. 8th Cir. 1945).
Tort
To determine whether plaintiff may recover on an asserted tort theory, the court must examine the nature of plaintiff's
loss because the nature of the injury most often determines which duty has been breached.
Tex.Grace Petroleum Corp. v. Williamson, 906 S.W.2d 66 (Tex. App. Tyler 1995) (disapproved of on other grounds
by, Formosa Plastics Corp. USA v. Presidio Engineers and Contractors, Inc., 960 S.W.2d 41 (Tex. 1998)).
Statute providing for criminal sanctions
Even when a statute expressly provides for criminal sanctions, damages may be available.
Cal.Faria v. San Jacinto Unified School Dist., 50 Cal. App. 4th 1939, 59 Cal. Rptr. 2d 72, 114 Ed. Law Rep. 569
(4th Dist. 1996).
End of Document
14.Presumption of damages, 25 C.J.S. Damages 14
Damages
14. Presumption of damages
Unless damage is the gravamen of the action, some damages are presumed to result from the violation or
infringement of a legal right.
Some damages are always presumed to follow from proof of a legal wrong or from proof of the violation of any
right or duty implied by law. 1 Where the evidence shows the violation or infringement of a legal right, the law
will presume damages sufficient to sustain an action. 2 However, where actual damage is the gravamen or gist of
the action, or a constituent part of the cause of action, nominal damages will not be presumed 3 as, for example,
in actions for negligence resulting in personal injuries. 4
Where a presumption of damages is warranted, the damages presumed may be only nominal 5 and not capable of
exact measurement. 6 A presumption of damages may be proper even though the proof shows that the plaintiff
actually derived benefit from the act of the defendant. 7
A suit for damages is not precluded by reason of the plaintiff's membership in a class for which no monetary
relief is sought. 8
Footnotes
Mo.Weaver v. Jordan, 362 S.W.2d 66 (Mo. Ct. App. 1962).
1
Tex.H. J. Heinz Co. v. Ashley, 291 S.W.2d 427 (Tex. Civ. App. Galveston 1956).
Inference of damage
N.J.Stein v. Schmitz, 21 N.J. Misc. 218, 32 A.2d 844 (Sup. Ct. 1943) (overruled in part on other grounds by, Toft
v. Ketchum, 18 N.J. 280, 113 A.2d 671, 52 A.L.R.2d 1208 (1955)).
Invasion of property right
The law infers some damage from the invasion of a property right.
Ga.Weimer v. Cauble, 214 Ga. 634, 106 S.E.2d 781 (1959).
Wrongful deprivation of property
14.Presumption of damages, 25 C.J.S. Damages 14
4
5
6
7
8
Where one has been wrongfully deprived of the possession of property, there is a presumption of damage.
N.Y.In re Jones' Will, 16 A.D.2d 685, 227 N.Y.S.2d 486 (2d Dep't 1962), judgment aff'd, 12 N.Y.2d 1049, 239
N.Y.S.2d 880, 190 N.E.2d 240 (1963).
Ga.Clark v. Wright, 137 Ga. App. 720, 224 S.E.2d 825 (1976).
OhioYounce v. Baker, 9 Ohio App. 2d 259, 38 Ohio Op. 2d 316, 224 N.E.2d 144 (2d Dist. Montgomery County
1966).
Ala.Hinkle v. Railway Express Agency, 242 Ala. 374, 6 So. 2d 417 (1942).
Or.Hall v. Cornett, 193 Or. 634, 240 P.2d 231 (1952).
Distinction stated
Minn.Greenwood v. Evergreen Mines Co., 220 Minn. 296, 19 N.W.2d 726 (1945).
Nominal damages in actions for negligence in absence of actual damage, see 23.
Miss.Poyner v. Gilmore, 171 Miss. 859, 158 So. 922 (1935).
W.Va.Harper v. Consolidated Bus Lines, 117 W. Va. 228, 185 S.E. 225 (1936).
Ala.City of Birmingham v. Lewis, 92 Ala. 352, 9 So. 243 (1891).
S.C.Livingston v. Sims, 197 S.C. 458, 15 S.E.2d 770 (1941) (overruled on other grounds by, Santee Portland Cement
Co. v. Daniel Intern. Corp., 299 S.C. 269, 384 S.E.2d 693 (1989)).
Conn.Beattie v. New York, N. H. & H. R. R. Co., 84 Conn. 555, 80 A. 709 (1911).
Nominal damage where benefit sustained, see 20.
U.S.Norris v. Slothouber, 718 F.2d 1116, 37 Fed. R. Serv. 2d 1055 (D.C. Cir. 1983).
End of Document
15.Property right in damages, 25 C.J.S. Damages 15
Damages
15. Property right in damages
While there is authority that a legal right to recover actual or compensatory damages is property, there is
also authority that the right to recover specific types of damages is not a vested property right because such
rights are created by the State and common law independent from the constitution, and thus, the State and
its people may alter such rights.
While there is authority that a legal right to recover damages, 1 either actual or compensatory, 2 is property, there
is also authority that the right to recover specific types of damages is not a vested property right because such
rights are created by the State and common law independent from the constitution, and thus, the State and its
people may alter such rights. 3 Such alteration is only forbidden when at the very least the party is deprived of
every reasonable method of securing just compensation but not where the plaintiff would not recover as much as
he or she would have had the former rule continued. 4
Punitive damages.
The right to punitive damages is not property. 5
Footnotes
Colo.Rosane v. Senger, 112 Colo. 363, 149 P.2d 372 (1944).
1
2
3
4
5
La.Central Louisiana Tel. Co. v. Green-Snider Const. Co., 228 So. 2d 73 (La. Ct. App. 2d Cir. 1969).
Cal.Yoshioka v. Superior Court, 58 Cal. App. 4th 972, 68 Cal. Rptr. 2d 553 (2d Dist. 1997), as modified on other
grounds, (Nov. 18, 1997).
Cal.Yoshioka v. Superior Court, 58 Cal. App. 4th 972, 68 Cal. Rptr. 2d 553 (2d Dist. 1997), as modified on other
grounds, (Nov. 18, 1997).
U.S.Maryland Cas. Co. v. Brown, 321 F. Supp. 309 (N.D. Ga. 1971).
N.J.Colonial Penn Ins. Co. v. Ford, 172 N.J. Super. 242, 411 A.2d 736 (Law Div. 1979).
End of Document
16.What law governs, 25 C.J.S. Damages 16
Damages
16. What law governs
Traditional law provides, in actions of tort, the measure and elements of damages are determined by the
law of the place where the act occasioning the injury was committed while in contract actions, the law of the
place of the contract, or the law of the place of performance, generally controls. More modern law favors
following the law of damages of the state having the most significant relationship to the action.
Many jurisdictions follow the traditional rule that, in actions of tort, the measure and elements of damage are
determined by the law of the place where the act occasioning the injury was committed 1 while in actions of
contract, the law of the place of the contract, 2 or the place of performance of the contract, 3 is to be followed.
Since the rules for ascertaining the measure of damages and the elements thereof, whether the action is in tort or
contract, pertain to the substance of the right, 4 not to the remedy, and hence are matters of substance to be settled
by reference, not to the law of the forum, but to the law of the appropriate state. 5 The law of the forum controls
in procedural matters pertaining to damages, 6 such as the cure of excessive verdicts by enforced remittiturs. 7
In determining which law governs the allocation of postevent losses, the law of the parties' jurisdiction normally
controls where the tortfeasor and the victims share a common domicile. 8
Where the courts have adopted the doctrine of "center of gravity," the law of the place where the wrong or injury
occurred is no longer absolute. 9 Furthermore, in certain situations, the interests of one state or country will be
such as to override the inflexible rule of the law of the place where the wrong or injury occurred. 10
"Governmental interest" or most significant relationship test.

In some jurisdictions, the issue-specific approach to choice-of-law determinations in tort is required for damages
issues because the state where the conduct and injury occurred may not be, by reason of those contacts alone, the
state with the primary interest. 11 The choice-of-law governmental-interest analysis to determine which state has
the most significant relationship to the occurrence and the parties concerning the issue of recovery of damages
requires the court to consider how strongly the contacts involved relate to each state's policy of deterrence and
compensation, as well as the interests of interstate comity, that is, whether application of one law will further or
frustrate the policies of the other state. 12 Application of factors under the choice-of-law "governmental interest"
test to determine which state has the most significant relationship to the occurrence and the parties concerning the
issue of recovery of damages is accomplished by identifying the governmental policies underlying each state's
statute and then determining how those policies are affected by the contacts, the most important factor being the
competing interests of the states, followed in importance by the interests underlying tort law and the interests of
interstate comity. 13
Exemplary or punitive damages.

In actions of tort, the allowance of exemplary or punitive damages is generally controlled by the law of the place
where the wrong or injury occurred. 14 However, there is also authority that the right to exemplary or punitive
damages may be determined by the law of the jurisdiction with the strongest interest in the resolution of the
particular issue presented. 15
Cases:
Under Missouri choice-of-law rules, Missouri law, not New Jersey law, applied with respect to patient's punitive
damages claim against drug manufacturer, in products liability action patient brought after she developed
osteonecrosis of the jaw (ONJ) after taking manufacturer's drugs; Missouri had most significant relationship to
the damages claim, given that Missouri was where manufacturer's sales representatives failed to warn patient's
doctor, making it also, at least in part, state of conduct causing the injury. Restatement (Second) of Conflict of
Laws 145. Winter v. Novartis Pharmaceuticals Corp., 739 F.3d 405 (8th Cir. 2014).
[END OF SUPPLEMENT]
Footnotes
Me.Raymond v. Lyden, 1999 ME 59, 728 A.2d 124 (Me. 1999).
1
Md.Black v. Leatherwood Motor Coach Corp., 92 Md. App. 27, 606 A.2d 295 (1992).
2
3
Class action
Under choice of law doctrine of lex loci delicti, trial court was required to apply law of place of injury in class-action
suit against manufacturers, sellers, and distributors of polyacrylamide, for medical monitoring and punitive damages,
to those class members whose exposure to acrylamide allegedly occurred out of state.
W.Va.State of West Virginia ex rel. Chemtall Inc. v. Madden, 216 W. Va. 443, 607 S.E.2d 772 (2004).
Ariz.Muccilli v. Huff's Boys' Store, Inc., 12 Ariz. App. 584, 473 P.2d 786 (Div. 1 1970).
U.S.Slaughter v. Philadelphia Nat. Bank, 417 F.2d 21 (3d Cir. 1969).
Kan.ARY Jewelers, L.L.C. v. Krigel, 277 Kan. 464, 85 P.3d 1151 (2004).
N.J.Department of Mental Health of Com. of Ky. v. Mullins, 56 N.J. Super. 449, 153 A.2d 731 (App. Div. 1959),
aff'd, 31 N.J. 598, 158 A.2d 527 (1960).
Place where performance promised
Del.Canadian Indus. Alcohol Co. v. Nelson, 38 Del. 26, 188 A. 39 (1936).
U.S.Halstead v. U.S., 535 F. Supp. 782, 34 U.C.C. Rep. Serv. 472 (D. Conn. 1982), aff'd, 707 F.2d 671 (2d Cir. 1983).
Mass.Steranko v. Inforex, Inc., 5 Mass. App. Ct. 253, 362 N.E.2d 222, 22 U.C.C. Rep. Serv. 166 (1977).
5
6
7
8
9
10
11
12
13
14
15
N.Y.Butler v. Stagecoach Group, PLC, 72 A.D.3d 1581, 900 N.Y.S.2d 541 (4th Dep't 2010), leave to appeal granted,
75 A.D.3d 1115, 903 N.Y.S.2d 297 (4th Dep't 2010) and aff'd as modified on other grounds, 17 N.Y.3d 306, 929
N.Y.S.2d 41, 952 N.E.2d 1033 (2011).
U.S.Halstead v. U.S., 535 F. Supp. 782, 34 U.C.C. Rep. Serv. 472 (D. Conn. 1982), aff'd, 707 F.2d 671 (2d Cir. 1983).
Mass.Steranko v. Inforex, Inc., 5 Mass. App. Ct. 253, 362 N.E.2d 222, 22 U.C.C. Rep. Serv. 166 (1977).
U.S.Gatenby v. Altoona Aviation Corp., 259 F. Supp. 573 (W.D. Pa. 1966).
Kan.Gannaway v. Missouri-Kansas-Texas R. Co., 2 Kan. App. 2d 81, 575 P.2d 566 (1978).
Mo.Stevens v. Missouri Pac. R. Co., 355 S.W.2d 122 (Mo. 1962).
Vt.Myers v. Langlois, 168 Vt. 432, 721 A.2d 129 (1998).
U.S.Gatenby v. Altoona Aviation Corp., 259 F. Supp. 573 (W.D. Pa. 1966).
Doctrine of "center of gravity" for contract actions, see C.J.S., Conflict of Laws 39.
Doctrine of "center of gravity" for tort actions, see C.J.S., Conflict of Laws 40.
For a detailed discussion of the traditional and modern choice-of-law rules, see C.J.S., Conflict of Laws 35 to 51.
U.S.Tyminski v. U.S., 481 F.2d 257 (3d Cir. 1973).
N.J.Erny v. Estate of Merola, 171 N.J. 86, 792 A.2d 1208 (2002).
Md.Naughton v. Bankier, 114 Md. App. 641, 691 A.2d 712 (1997).
U.S.Franklin Supply Co. v. Tolman, 454 F.2d 1059 (9th Cir. 1971).
Mont.Phillips v. General Motors Corp., 2000 MT 55, 298 Mont. 438, 995 P.2d 1002 (2000).
Products liability action
Louisiana had the most significant interest in a products-liability case against a California manufacturer of add-on
equipment arising out of a single-vehicle accident, and thus, Louisiana law on punitive damages applied where the
passenger and owner of the truck were residents of Louisiana, the accident and resulting damage occurred in Louisiana,
the equipment was purchased and installed in Louisiana, and the only contacts between California and the case were that
the manufacturer was a California corporation and the allegedly defective equipment was manufactured in California.
La.Clark v. Favalora, 722 So. 2d 82 (La. Ct. App. 1st Cir. 1998).
Employer tort
Washington law on punitive damages, rather than Virginia's, applied in employees' tort action against employer where
at the relevant time all three plaintiffs were Washington residents, defendants were incorporated in and had principal
places of business in Washington, most of the alleged conduct occurred in Washington, and all of the contacts pointed
to Washington as the state with the most significant relationship.
Wash.Korslund v. Dyncorp Tri-Cities Services, Inc., 121 Wash. App. 295, 88 P.3d 966 (Div. 3 2004), aff'd, 156
Wash. 2d 168, 125 P.3d 119 (2005).
End of Document
Research References, 25 C.J.S. Damages III Refs.
25 C.J.S. Damages III Refs.

Damages
III. Nominal Damages
Research References
A.L.R. Library
West's A.L.R. Digest, Damages 8 to 14
End of Document
Research References, 25 C.J.S. Damages III A Refs.
25 C.J.S. Damages III A Refs.

Damages
A. In General
Research References
A.L.R. Library
West's A.L.R. Digest, Damages 8 , 11 to 14
End of Document
17.Nature and theory of award, 25 C.J.S. Damages 17
Damages
A. In General
17. Nature and theory of award
Under the common law, nominal damages may be awarded to a litigant who has established a cause of
action but has not established that he or she is entitled to compensatory damages.
Under the common law, nominal damages may be awarded to a litigant who has established a cause of action but
has not established that he or she is entitled to compensatory damages. 1 Nominal damages are not compensation
for loss or injury but rather recognition of a violation of rights; 2 they are a symbolic recognition of harm that may
be awarded without proof of actual harm and have only declaratory effect. 3
To warrant recovery of nominal damages, there must be an unlawful infringement of a property right. 4
Nominal damages are regarded as the subject of a substantial legal claim, and a party is entitled to them in the
event that he or she can show any invasion of, or injury to, his or her legal right, 5 but the mere possibility that a
person will be required to pay damages to a third person does not warrant the imposition of nominal damages. 6
While nominal damages are not strictly compensatory, they are always included in general damages. 7
In equity.
An award of nominal damages is founded on equitable principles and is subject to the maxim that he or she who
comes into equity to obtain it must come with clean hands, 8 and, therefore, even nominal damages will not be
awarded, for a breach of contract, to one whose intent was to evade the laws of the state. 9 A judgment awarding
nominal damages may be granted in equity when it is necessary to preserve rights and to prevent possible breaches
in the future. 10
Nominal damages on default.
17.Nature and theory of award, 25 C.J.S. Damages 17
In some states, the plaintiff is entitled, on default, to at least nominal damages, 11 as where on the hearing the
court is satisfied that the damages resulted from a cause not declared on 12 or that the cause of action alleged in
fact did not exist. 13
As supporting claim of costs and of punitive damages.

A judgment for nominal damages, though involving a trifling sum, nevertheless is a substantial right since such
a judgment determines the incidence of costs; it gives a peg to hang costs on. 14
Generally, once a cause of action is established, the plaintiff is entitled to recover, as a matter of law, nominal
damages, which in turn support an award of punitive damages. 15 Where the plaintiff suffers a substantial legal
injury due to the defendant's egregious conduct, nominal damages, supporting a claim of punitive damages, may
be awarded to vindicate the invasion of the plaintiff's rights. 16
Footnotes
U.S.Manzanares v. City Of Albuquerque, 628 F.3d 1237, 78 Fed. R. Serv. 3d 310 (10th Cir. 2010).
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
890 A.2d 1287 (2006).
U.S.Calhoun v. DeTella, 319 F.3d 936 (7th Cir. 2003).
Ala.Roberson v. C.P. Allen Const. Co., Inc., 50 So. 3d 471 (Ala. Civ. App. 2010).
OhioPagan v. Village of Glendale, Ohio, 559 F.3d 477 (6th Cir. 2009).
Ark.Fritz v. Baptist Memorial Health Care Corp., 92 Ark. App. 181, 211 S.W.3d 593 (2005).
Conn.Beverly Hills Concepts, Inc. v. Schatz and Schatz, Ribicoff and Kotkin, 247 Conn. 48, 717 A.2d 724 (1998).
Cal.Walker v. Pacific Indem. Co., 183 Cal. App. 2d 513, 6 Cal. Rptr. 924 (1st Dist. 1960).
Ga.Western Union Telegraph Co. v. Glenn, 8 Ga. App. 168, 68 S.E. 881 (1910).
Tex.Warren v. Hill, 77 S.W.2d 322 (Tex. Civ. App. Amarillo 1934).
La.Norman v. Radio Station KRMD, 187 So. 831 (La. Ct. App. 2d Cir. 1939).
La.Norman v. Radio Station KRMD, 187 So. 831 (La. Ct. App. 2d Cir. 1939).
N.Y.Henry Hof, Inc. v. Noll, 273 A.D. 361, 77 N.Y.S.2d 484 (1st Dep't 1948), judgment aff'd, 299 N.Y. 588, 86
N.E.2d 108 (1949).
Conn.Wheeler v. Hartford, M. & R. Tramway Co., 80 Conn. 561, 69 A. 535 (1908).
N.C.Ward & Ward v. Agrillo, 196 N.C. 95, 144 S.E. 697 (1928).
Amount of claim or damages on default, generally, see C.J.S., Judgments 221.
Conn.Went v. Schmidt, 117 Conn. 257, 167 A. 721 (1933).
Conn.Went v. Schmidt, 117 Conn. 257, 167 A. 721 (1933).
Mo.Green v. Study, 286 S.W.3d 236 (Mo. Ct. App. S.D. 2009).
N.C.D.G. II, LLC v. Nix, 713 S.E.2d 140 (N.C. Ct. App. 2011).
N.J.Smith v. Whitaker, 160 N.J. 221, 734 A.2d 243 (1999).
N.M.Sanchez v. Clayton, 117 N.M. 761, 877 P.2d 567, 92 Ed. Law Rep. 1003 (1994).
End of Document
18.Nominal or substantial damages, 25 C.J.S. Damages 18
Damages
A. In General
18. Nominal or substantial damages
A plaintiff cannot recover both nominal and compensatory damages, and if the legal wrong and the resulting
damages are established, the plaintiff is entitled to recover substantial damages unless the loss is not such
that compensatory damages may be awarded therefor.
A plaintiff is not entitled to both nominal and compensatory damages. 1 In general, if actual damage is necessary to
the cause of action, as in negligence, nominal damages are not awarded. 2 Where both the wrong and the damages
resulting therefrom are established, the plaintiff is entitled to recover substantial damages, 3 and an award of
nominal damages only is erroneous. 4 Where the fact of substantial damage is shown, it is improper to award
only nominal damages on the ground that the amount of substantial damage has not been shown with reasonable
certainty. 5
Injury and damages are integrally related under the law of negligence, and there can be no invasion of the rights of
another unless legal damage is caused, and for that reason, nominal damages cannot be recovered. 6 Also, nominal
damages are not available when the harm is entirely economic and subject to proof. 7
Nominal damages are not for compensation; they are for cases in which there are no damages or none that could
ever be proved. 8 For example, only nominal damages are recoverable for a breach of contract that by its terms
is terminable by either party on a specified notice. 9
Footnotes
1
2
3
Special and nominal damages

D.C.Morrissette v. Boiseau, 91 A.2d 130 (Mun. Ct. App. D.C. 1952).
890 A.2d 1287 (2006).
Ill.Smith v. WGN, Inc., 47 Ill. App. 2d 183, 197 N.E.2d 482 (1st Dist. 1964).
18.Nominal or substantial damages, 25 C.J.S. Damages 18
N.M.Bank of N. M. v. Rice, 78 N.M. 170, 429 P.2d 368, 4 U.C.C. Rep. Serv. 314 (1967).
4
5
6
7
8
9
Award not limited to nominal damages

Because defects in paver business's performance were substantial, rather than nominal, trial court did not err in awarding
homeowners the cost to repair the defects in business's work based on the ground that it constituted economic waste.
Ala.Superior Wall and Paver, LLC v. Gacek, 73 So. 3d 714 (Ala. Civ. App. 2011).
Ky.Nolan v. Spears, 432 S.W.2d 425 (Ky. 1968).
Mich.Ross v. Richardson, 29 Mich. App. 110, 185 N.W.2d 106 (1970).
UtahGould v. Mountain States Tel. & Tel. Co., 6 Utah 2d 187, 309 P.2d 802 (1957).
Mass.Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 914 N.E.2d 891 (2009).
Tex.MBM Financial Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660 (Tex. 2009).
N.Y.Square Lex 48 Corp. v. Shelton Towers Associates, 98 Misc. 2d 1039, 415 N.Y.S.2d 325 (Sup 1978).
End of Document
19.Extent of damages not shown, 25 C.J.S. Damages 19
Damages
A. In General
19. Extent of damages not shown
The law infers some damage from the invasion of a property right and if no evidence is given of any
particular amount of loss, declares the right by awarding what it terms nominal damages.
The law infers some damage from the invasion of a property right and if no evidence is given of any particular
amount of loss, declares the right by awarding what it terms nominal damages; this principle applies to conversion
cases. 1
Ordinarily, where property has a market value that can be shown, such value is the criterion by which actual
damages for its destruction or loss may be fixed, but it may be that property destroyed or lost has no market value,
and in such case, while it may be that no rule that will be absolutely certain to do justice between the parties can
be laid down, it does not follow from this, nor is it the law, that the plaintiff must be turned out of court with
nominal damages merely. 2
Where the injury is occasioned by the wrongful acts of several persons, the injured party is entitled to at least
nominal damages even though there is no possibility of apportionment of the damages. 3 However, the fact that
the actual amount of damages sustained from a tort cannot be measured with accuracy will not limit the plaintiff's
recovery to merely nominal damages. 4
Footnotes
Ga.Dierkes v. Crawford Orthodontic Care, P.C., 284 Ga. App. 96, 643 S.E.2d 364 (2007).
1
Application to right of publicity

Nominal damages, as required to support claim for infringement on the right of publicity, would be presumed for claim
brought against law firm by firm partner's surviving spouse who alleged that firm wrongfully infringed on her right
of publicity by continuing to use partner's name; spouse did not merely allege an unrecoverable claim of damages for
retention of the professional goodwill value of partner's name.
S.C.Gignilliat v. Gignilliat, Savitz & Bettis, L.L.P., 385 S.C. 452, 684 S.E.2d 756 (2009).
Ala.Lary v. Gardener, 908 So. 2d 955 (Ala. Civ. App. 2005).
19.Extent of damages not shown, 25 C.J.S. Damages 19
3
4
Property having sentimental value

Damages for harm to certain items of property that have no market value, such as heirlooms, photographs, trophies,
and pets, are not restricted to nominal damages; damages must be ascertained in some rational way from such elements
as are attainable.
Ill.Leith v. Frost, 387 Ill. App. 3d 430, 326 Ill. Dec. 418, 899 N.E.2d 635 (4th Dist. 2008).
N.Y.Burt Olney Canning Co. v. State, 230 N.Y. 351, 130 N.E. 574 (1921).
Colo.Nielsen v. Hansford, 78 Colo. 456, 242 P. 677 (1925).
Mo.Herod v. St. Louis-San Francisco Ry. Co., 299 S.W. 74 (Mo. Ct. App. 1927).
End of Document
20.Wrong resulting in benefit, 25 C.J.S. Damages 20
Damages
A. In General
20. Wrong resulting in benefit
Nominal damages may be recovered even though the wrong has resulted in a benefit to the plaintiff.
Even where a benefit has resulted from the wrong done or the right violated, the plaintiff can recover nominal
damages. 1 However, more recent law has held that an award of nominal damages was inappropriate, in the first
partner's breach-of-contract action against the second partner, even though the second partner was found to have
breached the contract where the first partner may have profited as a result of the breach by the second partner. 2
Footnotes
U.S.Oklahoma Natural Gas Corp. v. Municipal Gas Co. of Muskogee, 113 F.2d 308 (C.C.A. 10th Cir. 1940).
1
2
UtahNasner v. Burton, 2 Utah 2d 236, 272 P.2d 163 (1954).

Mo.Rissler v. Heinzler, 316 S.W.3d 533 (Mo. Ct. App. W.D. 2010).
End of Document
21.Subsequent reparation of loss, 25 C.J.S. Damages 21
Damages
A. In General
21. Subsequent reparation of loss
Nominal damages may be recovered for the invasion of a right even though reparation for the loss has
been made.
Although reparation for the loss for which the action was brought has been made, the plaintiff may still be entitled
to nominal damages for the legal wrong or invasion of right that caused such loss. 1 Thus, nominal damages may
be recovered for the conversion or detention of personal property even where such property is returned by the
wrongdoer to the owner thereof. 2
Footnotes
U.S.Dow v. Humbert, 91 U.S. 294, 23 L. Ed. 368, 1875 WL 17908 (1875).
1
N.J.Turon v. J. & L. Const. Co., 8 N.J. 543, 86 A.2d 192 (1952) (overruled on other grounds by, LaFage v. Jani,
166 N.J. 412, 766 A.2d 1066 (2001)).
Wis.Farr v. Hunt, 87 Wis. 223, 58 N.W. 377 (1894).
End of Document
22.Amount of nominal damages, 25 C.J.S. Damages 22
Damages
A. In General
22. Amount of nominal damages
"Nominal damages," as the term implies, are in name only and customarily are defined as a mere token
or "trifling."
"Nominal damages," as the term implies, are in name only and customarily are defined as a mere token or
"trifling." 1 Recovery of nominal damages is important not for the amount of the award but for the fact of
the award; indeed, nominal damages do not measure anything. 2 Under some authority, the amount of nominal
damages awarded cannot be greater than the smallest appreciable amount that can be awarded under the
circumstances of the case. 3
Nominal damages are a token award only, and a vast majority of cases usually adjudge $1 to be the amount. 4
Some jurisdictions hold that although the amount of nominal damages awarded is not limited to $1, the nature
of the award compels that the amount be minimal. 5 Others hold that the amount of nominal damages can vary
according to the circumstances of the case. 6
At least one jurisdiction has held that in the context of nominal damages, "nominal" does not necessarily mean
"small," the term is purely relative, carries with it no suggestion of certainty as to amount, and that instead of being
restricted to a very small amount, the sum awarded may, according to circumstances, vary almost indefinitely. 7
Footnotes
U.S.Cummings v. Connell, 402 F.3d 936 (9th Cir. 2005), opinion amended on other grounds, 2005 WL 1154321
1
2
3
(9th Cir. 2005).

(9th Cir. 2005).
Encroachment on neighbors' property
22.Amount of nominal damages, 25 C.J.S. Damages 22
6
7
An award of nominal damages in the amount of $1,000 to the owners of property on which their neighbors' garage
encroached was more than the smallest appreciable amount that could be awarded under the circumstances and was
thus improper.
N.H.Flanagan v. Prudhomme, 138 N.H. 561, 644 A.2d 51 (1994).
U.S.Mollinger-Wilson v. Quizno's Franchise Co., 122 Fed. Appx. 917 (10th Cir. 2004).
D.C.Henson v. Prue, 810 A.2d 912 (D.C. 2002).
Haw.Kanahele v. Han, 125 Haw. 446, 263 P.3d 726 (2011).
Or.Mays v. Vejo, 224 Or. App. 426, 198 P.3d 943 (2008).
(9th Cir. 2005).
Ariz.Roberts v. City of Phoenix, 225 Ariz. 112, 235 P.3d 265 (Ct. App. Div. 1 2010).
Ky.Young v. Vista Homes, Inc., 243 S.W.3d 352 (Ky. Ct. App. 2007).
Md.Brown v. Smith, 173 Md. App. 459, 920 A.2d 18 (2007).
OhioFisher v. Barker, 159 Ohio App. 3d 745, 2005-Ohio-1039, 825 N.E.2d 244 (2d Dist. Montgomery County 2005).
Ga.Brock v. King, 279 Ga. App. 335, 629 S.E.2d 829 (2006), judgment aff'd, 282 Ga. 56, 646 S.E.2d 206 (2007).
Jury verdict not excessive
Jury verdict awarding $625,000 to purchaser in nominal damages was not excessive as a matter of law during lis
pendens action; nominal damages awards could only be set aside based upon prejudice, bias, or mistake, and the limited
partner failed to argue any of those grounds.
Ga.MTW Inv. Co. v. Alcovy Properties, Inc., 273 Ga. App. 830, 616 S.E.2d 166 (2005).
End of Document
Research References, 25 C.J.S. Damages III B Refs.
25 C.J.S. Damages III B Refs.

Damages
B. Absence of Actual Damage or Proof Thereof
Research References
A.L.R. Library
End of Document
23.Absence of actual damage, 25 C.J.S. Damages 23
Damages
23. Absence of actual damage
Nominal damages are recoverable where a legal wrong is shown although it is shown that there were no
actual damages.
Nominal damages are awarded where no actual damage flows from the injury. 1 They are a symbolic recognition
of harm that may be awarded without proof of actual harm and have only declaratory effect. 2
Breach of contract.
The breach of a contractual obligation, even though no actual loss results, warrants an allowance of nominal
damages. 3
Torts; negligence.
In suits based on intentional torts, no actual damages are necessary in order for an award of nominal damages. 4
Thus, nominal damages have been awarded for an action on trespass 5 and for actions involving a violation of
the right of privacy. 6
Nominal damages may be had in an action in tort for personal injuries even though no actual damages are sustained
from the violation of the right. 7 However, there is some conflict in the authorities as to whether this rule applies
in actions based on negligence, 8 and while there is authority that nominal damages may be recovered in an
action based on negligence where no actual loss, injury, or damage has occurred, 9 there is also more modern
authority that in a negligence action, if no actual loss or damage is sustained, the plaintiff is not entitled to nominal
damages. 10
Violation of legal or constitutional right.
Nominal damages are available where the violation of a legal or constitutional right produces no actual
damages. 11
Footnotes
U.S.Doe v. Chao, 306 F.3d 170, 54 Fed. R. Serv. 3d 49, 189 A.L.R. Fed. 719 (4th Cir. 2002), aff'd, 540 U.S. 614,
1
124 S. Ct. 1204, 157 L. Ed. 2d 1122 (2004); Lippoldt v. Cole, 468 F.3d 1204 (10th Cir. 2006); Hubbard v. U.S., 480
F.3d 1327 (Fed. Cir. 2007).
Ala.Jones v. Hamilton, 53 So. 3d 134 (Ala. Civ. App. 2010), cert. denied, (June 18, 2010).
Ariz.Roberts v. City of Phoenix, 225 Ariz. 112, 235 P.3d 265 (Ct. App. Div. 1 2010).
Ga.King v. Brock, 282 Ga. 56, 646 S.E.2d 206 (2007); MTW Inv. Co. v. Alcovy Properties, Inc., 273 Ga. App.
830, 616 S.E.2d 166 (2005).
IdahoRansom v. Topaz Marketing, L.P., 143 Idaho 641, 152 P.3d 2 (2006).
Miss.Sumler v. East Ford, Inc., 915 So. 2d 1081 (Miss. Ct. App. 2005).
OhioZerkle v. Kendall, 172 Ohio App. 3d 468, 2007-Ohio-3432, 875 N.E.2d 652 (2d Dist. Champaign County 2007).
OhioPagan v. Village of Glendale, Ohio, 559 F.3d 477 (6th Cir. 2009).
Contract rights
(1) Maryland law requires the award of at least nominal damages if a contract has been breached.
U.S.Planmatics, Inc. v. Showers, 30 Fed. Appx. 117 (4th Cir. 2002) (applying Maryland law).
(2) The party whose legal right has been invaded by a breach of contract is entitled to at least nominal damages, for
the law recognizes that every injury imports damages.
Ala.Avis Rent A Car Systems, Inc. v. Heilman, 876 So. 2d 1111 (Ala. 2003).
As available in negligence actions
N.C.Smith v. Hamrick, 159 N.C. App. 696, 583 S.E.2d 676 (2003).
As available for noneconomic harm to civil or property rights
Tex.Intercontinental Group Partnership v. KB Home Lone Star L.P., 295 S.W.3d 650 (Tex. 2009).
3
4
5
6
7
8
9
10
11
As available for breach of fiduciary duty

Tex.Ridgeway v. Burlington Northern Santa Fe Corp., 205 S.W.3d 577 (Tex. App. Fort Worth2006).
U.S.MindGames, Inc. v. Western Pub. Co., Inc., 218 F.3d 652 (7th Cir. 2000).
Tex.Centre Equities, Inc. v. Tingley, 106 S.W.3d 143 (Tex. App. Austin 2003).
Ill.Crosby v. City of Chicago, 11 Ill. App. 3d 625, 298 N.E.2d 719 (1st Dist. 1973).
UtahBoyer v. Boyer, 2008 UT App 138, 183 P.3d 1068 (Utah Ct. App. 2008).
W.Va.Rohrbaugh v. Wal-Mart Stores, Inc., 212 W. Va. 358, 572 S.E.2d 881 (2002).
166 N.J. 412, 766 A.2d 1066 (2001)).
Miss.Williams v. Wiggins, 285 So. 2d 163 (Miss. 1973).
Neb.Beavers v. Christensen, 176 Neb. 162, 125 N.W.2d 551 (1963).
Ky.Hayes v. Hayes, 357 S.W.2d 863 (Ky. 1962).
N.C.Jewell v. Price, 264 N.C. 459, 142 S.E.2d 1 (1965).
Conn.Right v. Breen, 277 Conn. 364, 890 A.2d 1287 (2006).
Mich.Henry v. Dow Chemical Co., 473 Mich. 63, 701 N.W.2d 684 (2005).
Wyo.Bird v. Rozier, 948 P.2d 888 (Wyo. 1997).
U.S.Schneider v. County of San Diego, 285 F.3d 784 (9th Cir. 2002).
Federal constitutional violation
Nominal damages are a proper means by which to vindicate a federal constitutional violation that does not result in
actual harm.
Or.Barcik v. Kubiaczyk, 321 Or. 174, 895 P.2d 765, 100 Ed. Law Rep. 759 (1995).
End of Document
24.Absence of proof as to actual damage, 25 C.J.S. Damages 24
Damages
24. Absence of proof as to actual damage
Nominal damages may be recovered where a cause of action for a legal wrong is established, but there is
no proof of actual damages.
Nominal damages are awarded where the violation of a right is shown, substantial damages claimed, and some
actual loss proved, and yet the damages are not susceptible of reasonable certainty of proof as to their extent. 1
An award of nominal damages does not mean that there were not actual economic damages, just that the exact
amount of damages attributable to the improper conduct was not proven. 2
Breach of contract.
In an action founded on a contract, if the plaintiff establishes a contract and a breach thereof, he or she may recover
nominal damages without proof of actual damages. 3 However, nominal damages do not necessarily follow from
a breach of contract in the absence of a request therefor. 4 Furthermore, the plaintiff is not entitled to recover more
than nominal damages unless he or she adduces proof that an actual substantial loss or injury has been sustained, 5
or unless the contract itself furnishes a guide to the measurement of the damages, 6 and he or she is not entitled
to even nominal damages if the breach is excusable or justifiable. 7
Torts.
The rule that nominal damages may be awarded in the absence of proof as to actual damages has been applied
in the case of torts generally, 8 such as in actions for personal injuries, 9 for conversion or detention of personal
property, 10 or for trespass on 11 or injuries to 12 real property as, for example, by flowage 13 or infringement
of riparian rights. 14 However, in some jurisdictions, nominal damages have not been allowed for tortious
interference with business 15 or for fraudulent and negligent misrepresentation. 16
Footnotes
Ga.King v. Brock, 282 Ga. 56, 646 S.E.2d 206 (2007); MTW Inv. Co. v. Alcovy Properties, Inc., 273 Ga. App.
1
4
5
6
7
8
10
830, 616 S.E.2d 166 (2005).

Me.Baker v. Farrand, 2011 ME 91, 26 A.3d 806 (Me. 2011).
U.S.Bains LLC v. Arco Products Co., Div. of Atlantic Richfield Co., 405 F.3d 764 (9th Cir.2005).
Failure to prove damages
(1) Franchisee failed to establish that they incurred more than nominal damages as a result of franchisor's breach-oftermination agreement, in connection with franchisor's failure to timely deliver replacement franchise agreement; any
declining income franchisee suffered could not be attributed to the untimely delivery, lost profit damages could not be
proven based upon lost profits from a business that was contemplated but never established, and there was no evidence
that franchisee sustained damages from loss of franchise agreement.
U.S.Mollinger-Wilson v. Quizno's Franchise Co., 122 Fed. Appx. 917 (10th Cir.2004)(applying Colorado law).
(2) Absence of proof of fair market value of personal property destroyed by fire limited homeowners' insurer to nominal
damages in subrogation action.
Conn.Wasko v. Manella, 87 Conn. App. 390, 865 A.2d 1223 (2005).
(3) Evidence supported finding that new tenants were limited to nominal damages on their claim for damages to a
leased premises; new tenants showed evidence of damage to the premises; however, they only speculated as to the
amount of such damages.
Ga.Lay Bros., Inc. v. Golden Pantry Food Stores, Inc., 273 Ga. App. 870, 616 S.E.2d 160(2005).
U.S.Western Insulation, LP v. Moore, 316 Fed. Appx. 291 (4th Cir. 2009) (applying Virginia law); Hydrite Chemical
Co. v. Calumet Lubricants Co., 47 F.3d 887, 25 U.C.C. Rep. Serv. 2d 723 (7th Cir. 1995); Salt Lake Tribune Publishing
Co., LLC v. Management Planning, Inc., 454 F.3d 1128 (10th Cir. 2006) (applying New Jersey law).
Ala.Brooks v. Franklin Primary Health Center, Inc., 53 So. 3d 932 (Ala. Civ. App. 2010).
Colo.City of Westminster v. Centric-Jones Constructors, 100 P.3d 472 (Colo. App. 2003).
Mass.Brooks v. Connor, 2006 Mass. App. Div. 13, 2006 WL 279043 (2006).
Md.Taylor v. NationsBank, N.A., 365 Md. 166, 776 A.2d 645 (2001).
Mo.Emerald Pointe, L.L.C. v. Jonak, 202 S.W.3d 652 (Mo. Ct. App. S.D. 2006).
N.Y.Mizrahi v. Taic, 266 A.D.2d 59, 698 N.Y.S.2d 635 (1st Dep't 1999).
Tex.Dennis v. Galbreth, 228 S.W.2d 579 (Tex. Civ. App. Fort Worth 1950).
U.S.Zim v. Western Pub. Co., 573 F.2d 1318 (5th Cir. 1978).
Tex.Huntington Corp. v. Inwood Const. Co., 472 S.W.2d 804 (Tex. Civ. App. Dallas 1971), writ refused n.r.e., (Apr.
26, 1972).
Ala.World's Exposition Shows v. B.P.O. Elks, No. 148, 237 Ala. 329, 186 So. 721 (1939).
Cal.Bromberg v. Signal Gasoline Corp., 130 Cal. App. 469, 20 P.2d 83 (2d Dist. 1933).
Mont.Rickards v. Aultman & Taylor Machinery Co., 64 Mont. 394, 210 P. 82 (1922).
OhioLeCrone v. Ohio Bell Tel. Co., 120 Ohio App. 129, 28 Ohio Op. 2d 374, 201 N.E.2d 533 (10th Dist. Franklin
County 1963).
Tex.Press v. Davis, 118 S.W.2d 982 (Tex. Civ. App. Fort Worth 1938), judgment modified on other grounds, 135
Tex. 60, 140 S.W.2d 438, 128 A.L.R. 757 (1940).
Some proof needed
In the absence of specific proof of the amount of damages flowing from a tortious act, general or nominal damages
may be inferred, but the defendant's liability for the damages must be established, including proof that the tortious act
was the proximate cause of some actual loss.
Ga.Whiteside v. Decker, Hallman, Barber & Briggs, P.C., 310 Ga. App. 16, 712 S.E.2d 87 (2011), cert. denied,
(Oct. 17, 2011).
Ky.Hayes v. Hayes, 357 S.W.2d 863 (Ky. 1962).
166 N.J. 412, 766 A.2d 1066 (2001)).
Wash.Northwestern Equipment Co. v. Sofe, 91 Wash. 118, 157 P. 459 (1916).
11
12
13
14
15
16
U.S.Arvidson v. Reynolds Metals Co., 125 F. Supp. 481 (W.D. Wash. 1954), judgment aff'd, 236 F.2d 224 (9th
Cir. 1956).
La.Freestate Indus. Development Co. v. T. & H., Inc., 209 So. 2d 568 (La. Ct. App. 2d Cir. 1968), writ refused, 252
La. 172, 210 So. 2d 54 (1968) and writ refused, 252 La. 173, 210 So. 2d 54 (1968).
Ga.Price v. High Shoals Mfg. Co., 132 Ga. 246, 64 S.E. 87 (1909).
Vt.Clark v. Aqua Terra Corp., 133 Vt. 54, 329 A.2d 666 (1974).
Claim against State
On a claim against the State for damages from the flooding of land, even though it could be considered as a claim based
on trespass, recovery would be limited to nominal damages where there was an absence of proof as to damages.
N.Y.Williams v. State, 106 Misc. 19, 175 N.Y.S. 560 (Ct. Cl. 1919).
N.Y.New York Rubber Co. v. Rothery, 132 N.Y. 293, 30 N.E. 841 (1892).
U.S.New England Surfaces v. E.I. du Pont de Nemours and Co., 546 F.3d 1 (1st Cir. 2008), decision clarified on
denial of reh'g, 546 F.3d 11 (1st Cir. 2008) (applying Maine law).
Fla.Imperial Majesty Cruise Line, LLC v. Weitnauer Duty Free, Inc., 987 So. 2d 706 (Fla. Dist. Ct. App. 4th Dist.
2008).
U.S.New England Surfaces v. E.I. du Pont de Nemours and Co., 546 F.3d 1 (1st Cir. 2008), decision clarified on
denial of reh'g, 546 F.3d 11 (1st Cir. 2008) (applying Maine law).
End of Document
Summary, 24 C.J.S. Damages Summary

Damages
Correlation Table
Summary
Scope:
Treated Elsewhere:
1 et seq.
97 to 133
Westlaw Databases
End of Document
Research References, 24 C.J.S. Damages IV Refs.
24 C.J.S. Damages IV Refs.

Damages
IV. Compensatory Damages
Research References
A.L.R. Library
A.L.R. Index, Excessive or Inadequate Damages
A.L.R. Index, Future and Prospective Damages
A.L.R. Index, Mitigation or Aggravation of Damages
West's A.L.R. Digest, Damages 6, 15 to 73, 95 to 140.7
End of Document
Research References, 24 C.J.S. Damages IV A Refs.
24 C.J.S. Damages IV A Refs.

Damages
A. In General
Research References
A.L.R. Library
West's A.L.R. Digest, Damages
End of Document
6, 15 to 23, 25 to 29, 62(1) to 62(4)

25.Nature and theory of compensatory damages, 25 C.J.S. Damages 25
Damages
A. In General
1. General Considerations
25. Nature and theory of compensatory damages
Compensatory damages are awarded to replace the loss caused by the wrong or injury.
As their name implies, 1 compensatory damages are awarded in accordance with the limitations prescribed by
law 2 to make good or replace the loss caused by the wrong or injury 3 and are confined to compensation. 4 The
goal of awarding compensatory damages is to fully compensate a party for a legally recognized loss. 5
Compensatory damages are damages sufficient in amount to indemnify the injured party for the loss suffered, 6
thereby making the plaintiff whole, 7 or restoring him or her to the same position he or she occupied prior to the
injury. 8 Compensatory damages involve the quantum of hurt to a plaintiff resulting from an injury regardless of
who caused the injury from which the damages sprang. 9
Cases:
To award plaintiff the cost of new items as replacement cost is to award plaintiff a windfall and make her more
than whole. Benford v. Everett Commons, LLC, 2014 IL App (1st) 130314, 381 Ill. Dec. 269, 10 N.E.3d 354
(App. Ct. 1st Dist. 2014).
[END OF SUPPLEMENT]
Footnotes
Kan.Walbridge v. Walbridge, 80 Kan. 567, 103 P. 89 (1909).
1
U.S.Westerman v. Sears, Roebuck & Co., 577 F.2d 873, 24 U.C.C. Rep. Serv. 1141 (5th Cir. 1978).
2
N.Y.Boehm v. Ekco Products Co., 47 A.D.2d 807, 365 N.Y.S.2d 101 (4th Dep't 1975).
25.Nature and theory of compensatory damages, 25 C.J.S. Damages 25
4
5
6
7
U.S.State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S. Ct. 1513, 155 L. Ed. 2d 585, 60 Fed. R. Evid.
Serv. 1349, 1 A.L.R. Fed. 2d 739 (2003).
Ala.Slack v. Stream, 988 So. 2d 516, 235 Ed. Law Rep. 1235 (Ala. 2008).
D.C.Modern Management Co. v. Wilson, 997 A.2d 37 (D.C. 2010), cert. denied, 132 S. Ct. 111, 181 L. Ed. 2d 36
(2011).
Conn.Town of New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 970 A.2d 592 (2009).
IdahoTodd v. Sullivan Const. LLC, 146 Idaho 118, 191 P.3d 196 (2008).
Ill.Strong v. City of Peoria, 401 Ill. App. 3d 1096, 341 Ill. Dec. 351, 930 N.E.2d 561 (3d Dist. 2010).
Mo.Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179 (Mo. 2009).
Pa.Phillips v. Cricket Lighters, 584 Pa. 179, 883 A.2d 439, 58 U.C.C. Rep. Serv. 2d 827 (2005).
Tex.Geters v. Eagle Ins. Co., 834 S.W.2d 49 (Tex. 1992).
Va.School Bd. of City of Newport News v. Com., 279 Va. 460, 689 S.E.2d 731, 253 Ed. Law Rep. 966 (2010).
Wyo.Vroman v. Town & Country Credit Corp., 2007 WY 82, 158 P.3d 141 (Wyo. 2007).
Actual harm or injury
Va.Virginia Highlands Airport Authority v. Singleton Auto Parts, Inc., 277 Va. 158, 670 S.E.2d 734 (2009).
Wis.Trinity Evangelical Lutheran Church and School-Freistadt v. Tower Ins. Co., 2003 WI 46, 261 Wis. 2d 333,
661 N.W.2d 789 (2003).
Tex.Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000).
IowaBrokaw v. Winfield-Mt. Union Community School Dist., 788 N.W.2d 386, 259 Ed. Law Rep. 907 (Iowa 2010).
La.Hornsby v. Bayou Jack Logging, 902 So. 2d 361 (La. 2005).
Tenn.Mercer v. Vanderbilt University, Inc., 134 S.W.3d 121 (Tenn. 2004).
W.Va.Cook v. Cook, 216 W. Va. 353, 607 S.E.2d 459 (2004).
Wyo.Horn v. Wooster, 2007 WY 120, 165 P.3d 69 (Wyo. 2007).
26.
Colo.Stamp v. Vail Corp., 172 P.3d 437 (Colo. 2007).
Ill.Best v. Taylor Mach. Works, 179 Ill. 2d 367, 228 Ill. Dec. 636, 689 N.E.2d 1057 (1997).
Kan.Hayes Sight & Sound, Inc. v. ONEOK, Inc., 281 Kan. 1287, 136 P.3d 428 (2006).
N.J.Caldwell v. Haynes, 136 N.J. 422, 643 A.2d 564 (1994).
S.C.Vaught v. A.O. Hardee & Sons, Inc., 366 S.C. 475, 623 S.E.2d 373 (2005).
S.D.O'Bryan v. Ashland, 2006 SD 56, 717 N.W.2d 632 (S.D. 2006).
Wis.Teschendorf v. State Farm Ins. Companies, 2006 WI 89, 293 Wis. 2d 123, 717 N.W.2d 258 (2006).
Haw.Bynum v. Magno, 106 Haw. 81, 101 P.3d 1149 (2004), as amended, (Dec. 2, 2004).
UtahMahana v. Onyx Acceptance Corp., 2004 UT 59, 96 P.3d 893, 53 U.C.C. Rep. Serv. 2d 1043 (Utah 2004).
N.J.McAndrew v. Mularchuk, 38 N.J. 156, 183 A.2d 74 (1962).
End of Document
26.Extent of right to compensatory damages, 24 C.J.S. Damages 26
Damages
A. In General
1. General Considerations
26. Extent of right to compensatory damages
Compensatory damages are not confined to direct pecuniary losses, but double recovery for the same items
amounts to overcompensation and is prohibited.
Compensatory damages are not confined to direct pecuniary losses, 1 and in some jurisdictions, elements are taken
into consideration that are usually regarded as elements of punitive or exemplary damages. 2 Where the guilt
of the defendant is established in a tort action, compensatory damages become a matter of right. 3 The right to
compensatory damages does not necessarily imply a right to substantial damages, but substantial damages must
be based on a finding of substantial injury. 4 The plaintiff may recover compensatory damages only for those
injuries caused by the event made the basis of the suit. 5
While a compensatory damage award should be sufficient to fully compensate a party for a legally recognized
loss, 6 it should not permit the party to recover a windfall 7 or make a profit on the transaction. 8
Double recovery.
Double recovery for the same items amounts to overcompensation and is prohibited. 9
Thus, although a plaintiff seeking full compensation for his injuries may plead and prove multiple causes of
action 10 or advance a number of legal theories, 11 the plaintiff may not receive more than a single recovery and
satisfaction for each distinct item of compensable damage supported by the evidence. 12 However, if separate
items of compensable damage are shown by distinct and independent evidence, the plaintiff may recover the entire
amount of damages whether that amount is expressed by the jury in a single verdict or multiple verdicts referring
to different claims or legal theories. 13 Thus, the possible rendition of multiple judgments in separate but related
actions does not defeat the proposition that a litigant may recover damages only once, particularly if the respective
recoveries are intended to redress distinct losses. 14
Collateral-source rule.
The collateral-source rule is an exception to the general rule of damages preventing a double recovery by an
injured party. 15 Since, under the common-law collateral-source rule, any third-party benefits or gifts obtained by
the injured plaintiff accrue solely to the plaintiff's benefit and are not deducted from the amount of the tortfeasor's
liability, 16 when a tort plaintiff's items of damage are reimbursed by a third party who is independent of the
wrongdoer, the plaintiff may still seek full compensation from the tortfeasor even though the effect may be a
double recovery. 17
In at least one jurisdiction, the common-law collateral-source rule has been changed by statute in order to allow
a party found liable for tort damages to reduce any award against that party by payments made to the plaintiff by
certain enumerated collateral sources; the primary purpose of such statute is to prevent double recoveries. 18
Cases:
Any separate damages awarded to tenant in his action against landlord for alleged damage to the leased premises on
his claim of partial constructive eviction would have been duplicative, where tenant sought the same damages for
partial constructive eviction as for breach of the covenant of quiet enjoyment, and the same damages calculation
applied to both claims. Bostany v. Trump Organization LLC, 127 A.D.3d 435, 2015 WL 1526130 (1st Dep't 2015).
Under Puerto Rico law, offsetting a damages award by the settlement amount is rooted in the principle that no
one should or may unjustly enrich himself by receiving double compensation for the same accident. PortuguesSantana v. Rekomdiv Intern. Inc., 725 F.3d 17 (1st Cir. 2013).
Under Texas law, where there is an indivisible injury caused by the settling and nonsettling defendant, there can
be but one recovery for one injury, and the fact that more than one defendant may have caused the injury or that
there may be more than one theory of liability, does not modify this rule. Coastal Agricultural Supply, Inc. v. JP
Morgan Chase Bank, N.A., 759 F.3d 498, 84 U.C.C. Rep. Serv. 2d 165 (5th Cir. 2014).
To the extent a double recovery is sought based on breach of contract and tort claims, an election of remedies is
required. White v. Weinberg, 759 S.E.2d 903 (Ga. Ct. App. 2014).
Having once been awarded damages for the injuries by a court, a plaintiff cannot seek compensation for those
injuries again, regardless of whether or not the plaintiff has recovered all that he or she might have recovered in
the initial proceeding. Schandelmeier-Bartels v. Chicago Park Dist., 2015 IL App (1st) 133356, 389 Ill. Dec. 451,
26 N.E.3d 541 (App. Ct. 1st Dist. 2015).
In general, a plaintiff is entitled to but one compensation for her loss, and that satisfaction of her claim prevents
further action against another for the same damages; this rule is equitable in nature, and the purpose of the rule is to
prevent double recovery and, thus, unjust enrichment. John B. Parsons Home, LLC v. John B. Parsons Foundation,
217 Md. App. 39, 90 A.3d 534 (2014).
Tort damages generally include damages for all the legal and natural consequences of the injury (i.e., the damages
that naturally flow from the injury), which may include damages for loss of the ability to work and earn money,
as well as pain and suffering and mental and emotional distress damages. Hannay v. Department of Transp., 497
Mich. 45, 860 N.W.2d 67 (2014).
Mere uncertainty of the amount of damages will not bar recovery in civil action where it is clear that the damages
were the result of the defendant's conduct. Glaze v. W.C.A.B. (City of Pittsburgh), 2012 WL 664493 (Pa. Commw.
Ct. 2012).
Damages award to buyers for both expectancy and reliance damages impermissibly constituted double recovery,
and thus buyers were deemed to have elected award based on reliance damages, since reliance damages yielded
greater recovery. Yeng v. Zou, 407 S.W.3d 485 (Tex. App. Houston 14th Dist. 2013).
Jury award allowed an improper double recovery for employer's client on client's Deceptive Trade Practices Act
(DTPA) claim against employer, in awarding both "benefit-of-the-bargain" damages and a partial refund of service
fees paid by client for employer's failure to provide promised subscription workers' compensation coverage for
employee, which obligated client to settle a lawsuit with employee's relatives for employee's death at client's
job site. V.T.C.A., Bus. & C. 17.41 et seq. Business Staffing, Inc. v. Viesca, 394 S.W.3d 733 (Tex. App. San
Antonio 2012).
Double recovery of damages is not permitted; the law does not permit a double satisfaction for a single injury.
State Farm Mut. Auto. Ins. Co. v. Schatken, 737 S.E.2d 229 (W. Va. 2012).
[END OF SUPPLEMENT]
Footnotes
U.S.Wilson v. Western Oceanic, Inc., 540 F. Supp. 228 (S.D. Tex. 1982).
1
2
3
4
5
6
7
8
9
D.C.Bay General Industries, Inc. v. Johnson, 418 A.2d 1050 (D.C. 1980).
N.H.Vratsenes v. N. H. Auto, Inc., 112 N.H. 71, 289 A.2d 66 (1972).
As to elements of compensatory damage award, see 51 to 117.
Mo.Grier v. Kansas City, C.C. & St. J. Ry. Co., 286 Mo. 523, 228 S.W. 454 (1921), aff'd, 258 U.S. 610, 42 S. Ct.
382, 66 L. Ed. 789 (1922).
Colo.Prichard v. Hunter, 140 Colo. 92, 342 P.2d 666 (1959).
N.Y.Rusciano & Son Corp. v. Mihalyfi, 165 Misc. 932, 1 N.Y.S.2d 787 (Sup 1938).
Tex.Texarkana Memorial Hosp., Inc. v. Murdock, 946 S.W.2d 836 (Tex. 1997).
U.S.Matter of Swift, 129 F.3d 792 (5th Cir. 1997).
Ill.In re Consolidated Objections to Tax Levies of School Dist. No. 205, 193 Ill. 2d 490, 250 Ill. Dec. 745, 739
N.E.2d 508, 150 Ed. Law Rep. 795 (2000).
UtahSavage v. Utah Youth Village, 2004 UT 102, 104 P.3d 1242 (Utah 2004).
As to measure and amount of compensatory damages, generally, see 118 to 181.
As to remedial purpose of compensatory damages, see 25.
Fla.MCI Worldcom Network Services, Inc. v. Mastec, Inc., 995 So. 2d 221 (Fla. 2008).
U.S.Westric Battery Co. v. Standard Elec. Co., 482 F.2d 1307, 14 U.C.C. Rep. Serv. 55 (10th Cir. 1973).
S.D.Hulstein v. Meilman Food Industries, Inc., 293 N.W.2d 889 (S.D. 1980).
U.S.E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 122 S. Ct. 754, 151 L. Ed. 2d 755 (2002).
Conn.Hees v. Burke Const., Inc., 290 Conn. 1, 961 A.2d 373 (2009).
Ga.Georgia Northeastern R. Co., Inc. v. Lusk, 277 Ga. 245, 587 S.E.2d 643 (2003).
Ill.Thornton v. Garcini, 237 Ill. 2d 100, 340 Ill. Dec. 557, 928 N.E.2d 804 (2010).
IowaMiller v. Rohling, 720 N.W.2d 562 (Iowa 2006).
La.Albert v. Farm Bureau Ins. Co., 940 So. 2d 620 (La. 2006).
Minn.Abraham v. County of Hennepin, 639 N.W.2d 342 (Minn. 2002).
Miss.City of Jackson v. Estate of Stewart ex rel. Womack, 908 So. 2d 703 (Miss. 2005).
Nev.Elyousef v. O'Reilly & Ferrario, LLC, 245 P.3d 547, 126 Nev. Adv. Op. No. 43 (Nev. 2010).
Tex.Stauffacher v. Coadum Capital Fund 1, LLC, 344 S.W.3d 584 (Tex. App. Houston 14th Dist. 2011), reh'g
overruled, (July 26, 2011) and review denied, (Nov. 18, 2011).
Wis.Berner Cheese Corp. v. Krug, 2008 WI 95, 312 Wis. 2d 251, 752 N.W.2d 800 (2008).
Two or more defendants
Once an award of damages has been determined for an injury, there may not be additional compensatory damages for
that same injury from two or more defendants.
U.S.Jackson v. City of St. Louis, 220 F.3d 894 (8th Cir. 2000).
10
11
Wrongful death and survival action

Actions for damages in a wrongful death and survival action are cumulative, not alternative, and recovery for items
cannot overlap or result in the double recovery of damages.
Pa.Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1 (1994).
Ill.Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 230 Ill. Dec. 229, 693 N.E.2d 358 (1998).
Successive suits
Successive lawsuits for continuing trespass are permitted if the trespass is not abated following trial so long as there
is no double recovery of damages.
Wash.Woldson v. Woodhead, 159 Wash. 2d 215, 149 P.3d 361 (2006).
U.S.F.D.I.C. v. First Heights Bank, FSB, 229 F.3d 528, 2000 FED App. 0364P (6th Cir. 2000).
Mass.Szalla v. Locke, 421 Mass. 448, 657 N.E.2d 1267 (1995).
Nev.Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 212 P.3d 1068 (2009).
N.H.Transmedia Restaurant Co., Inc. v. Devereaux, 149 N.H. 454, 821 A.2d 983 (2003).
Tex.Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006).
Va.Antisdel v. Ashby, 279 Va. 42, 688 S.E.2d 163 (2010).
Tort and contract damages
The prevailing plaintiff may not recover both tort and contract damages for the same injury even though plaintiff might
have set forth alternate legal theories of recovery.
U.S.Ambassador Hotel Co., Ltd. v. Wei-Chuan Investment, 189 F.3d 1017 (9th Cir. 1999).
12
13
14
Breach of contract implied in law and unjust enrichment

A claim of breach of contract implied in law is related to unjust enrichment, and a determination that plaintiff has
adequately stated claims based on both of these legal theories does not entitle plaintiff to recover separate compensatory
damages for each of such claims.
U.S.Chou v. University of Chicago, 254 F.3d 1347, 155 Ed. Law Rep. 64 (Fed. Cir. 2001).
Ala.Turquoise Properties Gulf, Inc. v. Overmyer, 2011 WL 4507521 (Ala. 2011).
Conn.Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 935 A.2d 1004 (2007).
La.Bellard v. American Cent. Ins. Co., 980 So. 2d 654 (La. 2008).
Tex.Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006).
Va.Cox v. Geary, 271 Va. 141, 624 S.E.2d 16 (2006).
U.S.F.D.I.C. v. First Heights Bank, FSB, 229 F.3d 528, 2000 FED App. 0364P (6th Cir. 2000).
Examination of claims
In determining whether multiple damage awards constitute impermissible double recovery, the trial court must consider
the nature of the claims involved, the duties imposed, and the injury sustained; when the claims, duties, and injuries
are the same, duplicative recovery is barred.
Va.Wilkins v. Peninsula Motor Cars, Inc., 266 Va. 558, 587 S.E.2d 581 (2003).
Conn.Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 952 A.2d 1 (2008).
N.M.Chavarria v. Fleetwood Retail Corp., 2006-NMSC-046, 140 N.M. 478, 143 P.3d 717 (2006), as revised, (Oct.
11, 2006).
Va.Dunn Const. Co. v. Cloney, 278 Va. 260, 682 S.E.2d 943 (2009).
15
16
17
18
Separate causes of action

Loss of established course of life and emotional distress are two separate and distinct claims with differing elements
and different compensable damages; hence, if supported by the evidence, a separate recovery is allowed for each, and
whether the damages overlap is a question of proof.
Mont.Henricksen v. State, 2004 MT 20, 319 Mont. 307, 84 P.3d 38 (2004).
Ala.Ex parte Barnett, 978 So. 2d 729 (Ala. 2007).
As to operation of collateral-source rule in relation to reduction or mitigation of damages, see 189 to 191.
Ark.Shipp v. Franklin, 370 Ark. 262, 258 S.W.3d 744 (2007).
D.C.Caglioti v. District Hosp. Partners, Lp, 933 A.2d 800 (D.C. 2007).
Colo.Volunteers of America Colorado Branch v. Gardenswartz, 242 P.3d 1080 (Colo. 2010).
Basis for rule
The theory underlying the adoption of the collateral-source rule is to prevent a tortfeasor from escaping liability because
of the act of a third party even if a possibility exists that the plaintiff may be compensated twice.
Neb.Countryside Co-op. v. Harry A. Koch Co., 280 Neb. 795, 790 N.W.2d 873 (2010).
Minn.Do v. American Family Mut. Ins. Co., 779 N.W.2d 853 (Minn. 2010).
End of Document
27.Generally, 25 C.J.S. Damages 27
Damages
A. In General
2. Natural and Proximate Cause
27. Generally
West's Key Number Digest, Damages 16 to 18
A wrongdoer is liable for all of the natural and direct or proximate consequences of his or her wrongful
act or omission.
The legal concept of proximity is applicable to ascertain and measure damages. 1

An act or omission is the proximate cause of a loss where there is no intervening, independent, culpable, and
controlling cause 2 or, in other words, where there is an unbroken connection between the act and the damage. 3
It may be stated as a broad general rule that a wrongdoer is liable to the person injured in compensatory damages for
all of the natural and direct or proximate consequences of his or her wrongful act or omission, 4 and, conversely,
that he or she is liable only for such consequences, 5 and this rule is applicable in cases both of contract and of
tort. 6 As a corollary to these rules, it follows that remote consequences of the defendant's act or omission do not
afford a proper basis for an award of damages. 7
In case of injury to property, the defendant is liable in damages for the natural and proximate consequences of
his or her wrong. 8 He or she is likewise liable in actions for personal injuries. 9 Damages may not be recovered
for injuries sustained in another or prior accident. 10
Footnotes
Neb.Steele v. Sedlacek, 267 Neb. 1, 673 N.W.2d 1 (2003).
1
N.J.Creanga v. Jardal, 185 N.J. 345, 886 A.2d 633 (2005).

Va.Saks Fifth Avenue, Inc. v. James, Ltd., 272 Va. 177, 630 S.E.2d 304 (2006).
Ga.Smith v. Hardy, 144 Ga. App. 168, 240 S.E.2d 714 (1977).
N.J.Hill v. Macomber, 103 N.J. Super. 127, 246 A.2d 731 (App. Div. 1968).
Other definition
3
4
Proximate cause is a cause that, in natural and continuous sequence, produces the injury and without which the injury
would not have occurred.
N.D.Klimple v. Bahl, 2007 ND 13, 727 N.W.2d 256 (N.D. 2007).
U.S.Benolken v. U.S., 99 F. Supp. 723 (D. Neb. 1951).
Ariz.Butler v. Wong, 117 Ariz. 395, 573 P.2d 86 (Ct. App. Div. 2 1977).
U.S.LNC Investments, Inc. v. First Fidelity Bank, N.A. New Jersey, 173 F.3d 454 (2d Cir. 1999).
Miss.Busick v. St. John, 856 So. 2d 304 (Miss. 2003).
Mo.Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127 (Mo. 2007).
Mont.Neal v. Nelson, 2008 MT 426, 347 Mont. 431, 198 P.3d 819 (2008).
Tenn.Banks v. Elks Club Pride of Tennessee 1102, 301 S.W.3d 214 (Tenn. 2010).
Va.PTS Corp. v. Buckman, 263 Va. 613, 561 S.E.2d 718 (2002).
Economic loss
Under the common law, a defendant who negligently injures a plaintiff or his property may be liable for all proximately
caused harm, including economic losses.
N.J.Donelson v. DuPont Chambers Works, 206 N.J. 243, 20 A.3d 384 (2011).
6
7
8
9
10
Probable, direct, and proximate consequences

An award of damages may encompass only those damages that are the probable, direct, and proximate consequences
of the wrong complained of.
Neb.Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011).
U.S.Gaines Towing and Transp., Inc. v. Atlantia Tanker Corp., 191 F.3d 633 (5th Cir. 1999).
Okla.Jones v. Mercy Health Center, Inc., 2006 OK 83, 155 P.3d 9 (Okla. 2006), petition for reh'g of application for
writ of error filed, (Feb. 13, 2007).
Causal relationship or connection required
Ala.Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So. 2d 388 (1961).
Uncertainty as to cause of injury, see 38.
Ala.Kennedy v. Boles Investments, Inc., 53 So. 3d 60, 71 U.C.C. Rep. Serv. 2d 597 (Ala. 2010).
Haw.Chun v. Park, 51 Haw. 462, 51 Haw. 501, 462 P.2d 905 (1969).
IowaSouthard v. Visa U.S.A. Inc., 734 N.W.2d 192 (Iowa 2007).
Kan.Apperson v. Security State Bank, 215 Kan. 724, 528 P.2d 1211 (1974).
Colo.McNeill v. Allen, 35 Colo. App. 317, 534 P.2d 813 (App. 1975).
Wyo.Sagebrush Development, Inc. v. Moehrke, 604 P.2d 198 (Wyo. 1979).
Me.Estate of Hoch v. Stifel, 2011 ME 24, 16 A.3d 137 (Me. 2011).
S.C.Watson v. Wilkinson Trucking Co., 244 S.C. 217, 136 S.E.2d 286 (1964).
U.S.Union Oil Co. of California v. Hunt, 111 F.2d 269 (C.C.A. 9th Cir. 1940).
End of Document
28.Intervening causes, 25 C.J.S. Damages 28
Damages
A. In General
28. Intervening causes
An intermediate cause that, disconnected from the primary act, produces the injury will be regarded as
the proximate cause.
Where there is an intermediate cause disconnected from the primary act and self-operating that produces the injury,
it will be regarded as the proximate cause, and the party who committed the original act will be discharged. 1
On the other hand, the fact that there has been an intervening cause between the defendant's act and the injury
complained of will not in all cases relieve him or her from responsibility. 2 The efficient and predominating cause
in producing a given event or effect must be looked to although there may be subordinate and dependent causes in
operation. 3 A result may be physically secondary and consequential and yet in legal contemplation proximate. 4
It is sufficient if it is established that the defendant's act produced or set in motion other agencies, which in turn
produced or contributed to the final result. 5
Plaintiff's own act.

Although an act of the plaintiff himself or herself has intervened between the defendant's wrong and the injury
suffered, the defendant is not thereby excused if the intervening act was the result of or naturally and reasonably
induced by his or her earlier wrong. 6 Thus, in cases of personal injury, while the injured person must exercise
reasonable care to effect a cure, both as to his or her selection of a physician and as to his or her own personal
conduct, if he or she does so, he or she may recover all damages flowing naturally and proximately from the
original injury. 7 Where there is a subsequent injury, either by way of an aggravation of the injuries already
received or by a distinct accident, the wrongdoer is held liable for the entire damage if the subsequent injury was
a sequence or natural result likely to flow from the original injury. 8
On the other hand, the plaintiff cannot recover for damages due to his or her own voluntary and independent acts 9
or negligence. 10 If a subsequent injury is attributable to a distinct intervening cause, the wrongdoer is liable only
for the original injury. 11
Act of third person.

Where there has intervened between the defendant's act and the injury an independent illegal act of a third person
producing the injury, and without which it would not have happened, the latter is held the proximate cause of
the loss, and the defendant is excused. 12 On the other hand, the defendant may be liable where damage results
from the intervention of legal and innocent acts of third persons, naturally and probably following from his or
her wrongful act. 13
Aggravation by medical or surgical treatment.

In the case of unskillful treatment by a physician or surgeon increasing the damage, or failing to minimize it,
the original tortfeasor may be liable for such consequence where the person injured has used reasonable care in
selecting the physician or surgeon. 14 In selecting a physician, the injured person is required to exercise only
ordinary care and prudence. 15 The law regards the wrong of the one who caused the original injury as the
proximate cause of damages flowing from the malpractice of the physician or surgeon and holds him or her liable
therefor; 16 such malpractice cannot stand as an efficient intervening cause. 17
While there is authority that where the physician or surgeon is selected by the one causing the injury, he or she
is liable for the increased damage occasioned by unskilled treatment, 18 there is also authority that the original
wrongdoer is not liable for such aggravated damages where there is reasonable care in the selection of the physician
or surgeon. 19
Aggravation of injury while in hospital.

The original wrongdoer may be liable for the subsequent negligence or malpractice of a hospital to which the
injured person was sent for treatment and care. 20 However, he or she is not liable for intentional harm inflicted
by the hospital staff or another patient. 21
Natural agencies.
Natural phenomena of a usual and ordinary kind are not regarded as independent intervening agencies that will
break the chain of causation between a wrongful act or omission and the ensuing loss. 22 Where, as a result of an
act, the inevitable and immutable laws of nature are brought into play, thereby causing damage, the operation of
these natural laws is not such an intervening independent act as will insulate the defendant from the consequences
of his or her act. 23
Disease.
The plaintiff is not entitled to recover damages for conditions that are due entirely to a previous disease. 24
Although the immediate cause of damage is a disease, the defendant may be liable therefor in which case his or her
wrongful act superinduced such disease or impairment of health. 25 An award of damages for injuries sustained as
a proximate result of another's negligence will not be denied even though the injuries are aggravated or enhanced
by an existing or subsequently occurring disease. 26
Cases:
It is settled law in New York that a tortfeasor is responsible for the subsequent negligence of a physician against
a plaintiff because their wrongs coalesced and resulted in damage which would not have been sustained but for
the original injury. Peralta v. Quintero, 20 F. Supp. 3d 462 (S.D. N.Y. 2014).
[END OF SUPPLEMENT]
Footnotes
La.Orthopaedic Clinic of Monroe v. Ruhl, 786 So. 2d 323 (La. Ct. App. 2d Cir. 2001), writ denied, 798 So. 2d 970
1
2
3
4
5
6
(La. 2001).
N.Y.Lehmann v. Lehmann, 182 Misc. 2d 22, 696 N.Y.S.2d 663 (N.Y. City Civ. Ct. 1999).
Intervening causes:
Negligence, generally, see C.J.S., Negligence 223.
Tort, generally, see C.J.S., Torts 28 to 30.
U.S.D'Ambra v. U.S., 518 F.2d 275 (1st Cir. 1975).
Fla.University Community Hospital v. Martin, 328 So. 2d 858 (Fla. Dist. Ct. App. 2d Dist. 1976).
Ill.Balestri v. Terminal Freight Co-op. Ass'n, 76 Ill. 2d 451, 31 Ill. Dec. 189, 394 N.E.2d 391 (1979).
Mich.Sutter v. Biggs, 377 Mich. 80, 139 N.W.2d 684 (1966).
Ill.Perfect v. Kaley, 130 Ill. App. 2d 61, 264 N.E.2d 430 (1st Dist. 1970).
Okla.Shadden v. Valley View Hosp., 1996 OK 140, 915 P.2d 364 (Okla. 1996).
Or.Smith v. J. C. Penney Co., Inc., 269 Or. 643, 525 P.2d 1299 (1974).
Ala.Underwood v. Smith, 261 Ala. 181, 73 So. 2d 717 (1954).
La.Warren v. Fidelity Mut. Ins. Co., 99 So. 2d 382 (La. Ct. App. 1st Cir. 1957).
Injury due to belief of plaintiff
Where an injured person's bona fide conviction of his or her inability to perform normal physical acts has resulted in
an inability to do so, he or she has sustained real damage.
La.Fossier v. D.H. Holmes Co., 19 La. App. 434, 139 So. 709 (Orleans 1932).
U.S.U.S. v. Chesapeake & O. Ry. Co., 130 F.2d 308 (C.C.A. 4th Cir. 1942).
Ala.Underwood v. Smith, 261 Ala. 181, 73 So. 2d 717 (1954).
Requirement that the injured person must exercise reasonable care to effect a cure, both as to his or her selection of a
physician and as to his or her own personal conduct, see 50.
U.S.Malandris v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 447 F. Supp. 543 (D. Colo. 1977), judgment aff'd and
modified on other grounds, 703 F.2d 1152, 31 Fed. R. Serv. 2d 233 (10th Cir. 1981).
Mo.Ponciroli v. Wyrick, 573 S.W.2d 731 (Mo. Ct. App. 1978).
UtahSkollingsberg v. Brookover, 26 Utah 2d 45, 484 P.2d 1177 (1971).
Duty to prevent or reduce damages, see 44 to 50.
Failure to make payments
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Plaintiff farmer's intervening action of failing to make payments due to a creditor severed the legal causation between
the agricultural lender's alleged bad-faith refusal to surrender its collateral to the creditor and the creditor's eventual
foreclosure on the farmer's property.
Mich.Farm Credit Services of Michigan's Heartland, P.C.A. v. Weldon, 232 Mich. App. 662, 591 N.W.2d 438 (1998).
Colo.Welp v. Crews, 149 Colo. 109, 368 P.2d 426 (1962).
Pa.Becker v. Borough of Schuylkill Haven, 200 Pa. Super. 305, 189 A.2d 764 (1963).
La.Jenkins v. Lindsey, 693 So. 2d 238 (La. Ct. App. 4th Cir. 1997).
UtahThompson v. Jacobsen, 23 Utah 2d 359, 463 P.2d 801 (1970).
Colo.Niccoli v. Ayala, 501 P.2d 138 (Colo. App. 1972).
Colo.Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276, 25 U.C.C. Rep. Serv. 134, 2 A.L.R.4th 245 (1978).
Okla.Atherton v. Devine, 1979 OK 132, 602 P.2d 634 (Okla. 1979).
Wash.Lindquist v. Dengel, 20 Wash. App. 630, 581 P.2d 177 (Div. 3 1978), judgment aff'd, 92 Wash. 2d 257, 595
P.2d 934 (1979).
Duty to procure medical attention, see 50.
U.S.Stephenson v. Steinhauer, 188 F.2d 432 (8th Cir. 1951).
Ill.Cline v. Kirchwehm Bros. Cartage Co., 42 Ill. App. 2d 85, 191 N.E.2d 410 (1st Dist. 1963).
Good standing and reputation
OhioJones v. Butler, 72 Ohio App. 335, 27 Ohio Op. 273, 52 N.E.2d 347 (7th Dist. Trumbull County 1942).
S.C.Bessinger v. De Loach, 230 S.C. 1, 94 S.E.2d 3 (1956).
Va.Corbett v. Clarke, 187 Va. 222, 46 S.E.2d 327 (1948).
Ala.Nall v. Alabama Utilities Co., 224 Ala. 33, 138 So. 411 (1931).
Mass.Selby v. Kuhns, 345 Mass. 600, 188 N.E.2d 861 (1963).
U.S.Jensen v. U.S., 184 F.2d 72 (3d Cir. 1950).
Mo.Brown v. Kroger Co., 358 S.W.2d 429 (Mo. Ct. App. 1962).
Selection of physician by employer or carrier in workers'-compensation cases, see C.J.S., Workers' Compensation
364.
Ala.Nall v. Alabama Utilities Co., 224 Ala. 33, 138 So. 411 (1931).
Me.Andrews v. Davis, 128 Me. 464, 148 A. 684 (1930).
Cal.Herrero v. Atkinson, 227 Cal. App. 2d 69, 38 Cal. Rptr. 490, 8 A.L.R.3d 629 (1st Dist. 1964).
N.Y.Echevarria v. City of New York, 34 Misc. 2d 405, 227 N.Y.S.2d 480 (Sup 1962).
U.S.Lucas v. City of Juneau, 15 Alaska 413, 127 F. Supp. 730 (Terr. Alaska 1955).
Rainstorm
Cal.Ely v. Bottini, 179 Cal. App. 2d 287, 3 Cal. Rptr. 756 (1st Dist. 1960).
U.S.U.S. v. Chicago, B. & Q. R. Co., 82 F.2d 131, 106 A.L.R. 942 (C.C.A. 8th Cir. 1936).
S.C.Early v. South Carolina Public Service Authority, 228 S.C. 392, 90 S.E.2d 472 (1955).
Mo.Widener v. St. Louis Public Service Co., 360 Mo. 761, 230 S.W.2d 698 (1950).
Ill.Griswold v. Chicago Rys. Co., 339 Ill. 94, 170 N.E. 845 (1930).
Ky.Hazelwood v. Hodge, 357 S.W.2d 711 (Ky. 1961).
Disease as concurring cause, see 29.
Tex.Armour & Co. v. Tomlin, 60 S.W.2d 204 (Tex. Comm'n App. 1933).
End of Document
29.Concurring causes, 25 C.J.S. Damages 29
Damages
A. In General
29. Concurring causes
It is not sufficient that a cause concurred with another cause in producing an injury unless it can be
determined that such cause was the proximate cause of the damage.
The act or omission complained of must have been the proximate cause of the damage, and it is not alone sufficient
that it concurred in producing the injury. 1
Generally, there may be more than one proximate cause of damage, 2 and where several proximate causes
contribute to an accident, the injury may be attributed to any or all of such causes. 3
Where the act or omission complained of predominates over the influence of other concurring causes, it will in
general be held to be the proximate cause. 4
Apportionment of damages.
The apportionment of damages between two or more proximate causes of an injury is appropriate where there are
distinct harms, or there is a reasonable basis for determining the contribution of each cause to a single harm. 5
Physical condition of injured party.

A tortfeasor takes the person that he or she injures as he or she finds him or her. 6 The fact that the peculiar
physical condition in which the injured person is at the time of the wrongful act aggravates the injury will not
prevent such injuries from being regarded as proximate. 7 The tortfeasor is not exonerated from liability if, by
reason of some preexisting condition, his or her victim is more susceptible to injury. 8 Knowledge of the condition
of the injured person need not be shown. 9 However, the injured person may not recover damages for injuries that
are not attributable to the wrongful act but which result from his or her original condition or injury. 10
Disease or weakness.
The duty of care and of abstaining from injuring another person is due to the weak, the sick, the infirm, equally with
the healthy and strong. 11 The fact that the injured person is afflicted with a disease or weakness that has a tendency
to aggravate the injury will not prevent the wrongful act from being regarded as the proximate cause. 12 Recovery
may be had of such damages as proximately result from the activation of a dormant disease or condition. 13
On the other hand, where the wrongful act does not cause a diseased condition but only aggravates and increases
the severity of a condition existing at the time of the injury, the injured person may recover only for such increased
or augmented sufferings as are the natural and proximate result of the wrongful act. 14 Where the preexisting
condition was bound to worsen, an appropriate discount should be made for the damages that would have been
suffered even in the absence of the wrongful act. 15
A person suffering from a prior impaired condition may not recover for a result that is not a natural and direct,
or proximate, result of the wrongful act. 16
Footnotes
Ill.Voykin v. Estate of DeBoer, 192 Ill. 2d 49, 248 Ill. Dec. 277, 733 N.E.2d 1275 (2000).
1
4
5
6
7
8
9
La.Reck v. Stevens, 373 So. 2d 498, 14 A.L.R.4th 313 (La. 1979).

Concurring causes:
Negligence, generally, see C.J.S., Negligence 216 to 222.
Tort, generally, see C.J.S., Torts 31.
Conn.Goodyear v. Discala, 269 Conn. 507, 849 A.2d 791 (2004).
IowaJohnson v. Baker, 254 Iowa 1077, 120 N.W.2d 502 (1963).
OhioReeg v. Hodgson, 1 Ohio App. 2d 272, 30 Ohio Op. 2d 293, 95 Ohio L. Abs. 148, 202 N.E.2d 310 (4th Dist.
Scioto County 1964).
Negligence
It is not necessary that negligence is sole proximate cause of damage; it is sufficient that such negligence is one
contributing cause thereof.
Cal.Fibreboard Paper Products Corp. v. East Bay Union of Machinists, Local 1304, United Steelworkers of America,
AFL-CIO, 227 Cal. App. 2d 675, 39 Cal. Rptr. 64 (1st Dist. 1964).
Colo.Stephens v. Koch, 192 Colo. 531, 561 P.2d 333 (1977).
OhioReeg v. Hodgson, 1 Ohio App. 2d 272, 30 Ohio Op. 2d 293, 95 Ohio L. Abs. 148, 202 N.E.2d 310 (4th Dist.
Scioto County 1964).
Tex.Houston & T.C.R. Co. v. Maxwell, 61 Tex. Civ. App. 80, 128 S.W. 160 (1910), writ refused.
D.C.Zoerb v. Barton Protective Services, 851 A.2d 465 (D.C. 2004).
Vt.Callan v. Hackett, 170 Vt. 609, 749 A.2d 626 (2000).
U.S.Lutz v. U.S., 685 F.2d 1178 (9th Cir. 1982).
Colo.Fischer v. Moore, 183 Colo. 392, 517 P.2d 458 (1973).
Tenn.Foster v. Baptist Memorial Hospital, 506 S.W.2d 775 (Tenn. Ct. App. 1973).
Tex.Cavitt v. Jetton's Greenway Plaza Cafeteria, 563 S.W.2d 319 (Tex. Civ. App. Houston 1st Dist. 1978).
Pregnancy
U.S.Evans v. S. J. Groves & Sons Co., 315 F.2d 335 (2d Cir. 1963).
Ariz.City of Scottsdale v. Kokaska, 17 Ariz. App. 120, 495 P.2d 1327 (Div. 1 1972).
Tenn.Silcox v. Smith County, 487 S.W.2d 652 (Tenn. Ct. App. 1972).
U.S.Russell v. City of Wildwood, 428 F.2d 1176 (3d Cir. 1970).
Ind.Johnson v. Bender, 174 Ind. App. 638, 369 N.E.2d 936 (1977).
10
11
12
13
14
15
16
Mo.Miller v. Gulf, M. & O. R. Co., 386 S.W.2d 97 (Mo. 1964).

N.M.Baer v. Regents of University of California, 126 N.M. 508, 1999-NMCA-005, 972 P.2d 9 (Ct. App. 1998).
La.Williams v. Reinhart, 155 So. 2d 51 (La. Ct. App. 1st Cir. 1963).
Wash.Reeder v. Sears, Roebuck & Co., 41 Wash. 2d 550, 250 P.2d 518 (1952).
Haw.Gibo v. City and County of Honolulu, 51 Haw. 299, 459 P.2d 198 (1969).
Predisposition to disease
Kan.Knoblock v. Morris, 169 Kan. 540, 220 P.2d 171 (1950).
Disease as intervening cause, see 28.
Ky.Hazelwood v. Hodge, 357 S.W.2d 711 (Ky. 1961).
La.Rice v. Traders & General Ins. Co., 114 So. 2d 92 (La. Ct. App. 1st Cir. 1959).
N.Y.Ruge v. Arden Hill Hospital, 83 Misc. 2d 109, 371 N.Y.S.2d 354 (Sup 1975).
U.S.Henderson v. U.S., 328 F.2d 502 (5th Cir. 1964).
Mo.Brown v. Kroger Co., 358 S.W.2d 429 (Mo. Ct. App. 1962).
End of Document
Damages
A. In General
3. Natural and Probable Consequences
a. In General
30. Generally
A wrongdoer is liable for the natural and probable consequences of his or her wrongful act or omission.
A wrongdoer is responsible for the natural and probable consequences of his or her wrongful act or omission, 1
and this rule applies both in contract and in tort. 2
Natural consequences are such as might reasonably have been foreseen, 3 such as occur in an ordinary state of
things. 4 If according to usual experience the result was to be expected, it is not too remote. 5 However, the
"eggshell plaintiff" rule rejects the limit of foreseeability. 6
Speculative or conjectural damages.

Damages must not be merely speculative or conjectural. 7
Election between contract and tort action.

There is authority that, where on the same state of facts an action may be brought either in contract or in tort,
the recovery should be the same regardless of which form of action is elected. 8 However, there is also authority
to the effect that a narrower limit is to be applied in the assessment of damages for a breach of contract than is
applied in an action for a tort. 9
Footnotes
Del.Mills v. Telenczak, 345 A.2d 424 (Del. 1975).
1
2
Nev.Johnson v. Utile, 86 Nev. 593, 472 P.2d 335 (1970).

U.S.Ivey v. Phillips Petroleum Co., 36 F. Supp. 811 (S.D. Tex. 1941).
3
4
5
6
7
8
9
N.J.Kurtz v. Oremland, 33 N.J. Super. 443, 111 A.2d 100 (Ch. Div. 1954), aff'd, 16 N.J. 454, 109 A.2d 286 (1954).
Colo.Prutch v. Ford Motor Co., 618 P.2d 657, 29 U.C.C. Rep. Serv. 1507 (Colo. 1980).
N.D.Johnson v. Monsanto Co., 303 N.W.2d 86 (N.D. 1981).
Tex.Humble Oil & Refining Co. v. Wood, 292 S.W. 200 (Tex. Comm'n App. 1927).
Mo.Evans v. Wabash Ry. Co., 223 Mo. App. 439, 12 S.W.2d 767 (1928).
IowaBenn v. Thomas, 512 N.W.2d 537 (Iowa 1994).
Md.Adams v. Benson, 208 Md. 261, 117 A.2d 881 (1955).
UtahGraham v. Street, 2 Utah 2d 144, 270 P.2d 456 (1954).
As to speculative damages, see 36 to 39.
Ala.Nashville, C. & St. L. Ry. v. Campbell, 212 Ala. 27, 101 So. 615 (1924).
Election between contract and tort, see C.J.S., Actions 139, 160 to 175.
Ga.Porter v. Davey Tree Expert Co., 34 Ga. App. 355, 129 S.E. 557 (1925).
End of Document
Damages
A. In General
b. Breach of Contract
31. Generally
Damages for breach of contract are such as arise naturally from the breach or as are reasonably within
the contemplation of the parties.
As a general rule, sometimes expressed in statutory enactments, the damages to which one party to a contract is
entitled because of a breach thereof by the other are such as arise naturally from the breach itself, 1 or such as may
reasonably be supposed to have been within the contemplation of the parties at the time of making the contract
as a probable result of a breach thereof, 2 or as sometimes stated, such as were reasonably foreseeable and within
the contemplation of the parties at the time when they made the contract. 3
Conversely, damages that do not arise naturally from a breach of the contract, or that are not within the reasonable
contemplation of the parties, are not recoverable. 4 The promisor is not required to compensate the injured party
for injuries that the promisor, when he or she made the contract, had no reason to foresee as the probable result
of his or her breach. 5
Damages arising naturally and in the course of things from the breach itself have been termed "direct damages" 6
while damages such as may reasonably be supposed to have been within the contemplation of the parties have
been regarded as "consequential damages." 7 Consequential damages for breach of contract are to be awarded
only when it is made to appear that it was within the contemplation of the parties that the specific damages sought
would probably result from a breach of the contract. 8
The damages that are within the contemplation of the parties are to be measured in terms of knowledge of the
parties at the time of making the contract. 9 Ordinary damage because of the breach of a contract is assumed as
a matter of law to be within the contemplation of the parties. 10
It is not necessary that the exact manner by which damages occur by reason of breach of contract be foreseeable, 11
nor is it necessary that the parties should actually have contemplated the very consequences of the breach for which
action is brought. 12 It is not required that the parties shall have considered the consequences at the time of making
the contract, but the consequences must be such as the parties may fairly be supposed to have considered, 13 or
may be reasonably supposed, in the light of all the facts known or that should have been known to them, to have
considered as likely to follow in the ordinary course of things, from a breach. 14
Cases:
Under Wisconsin law, the non-breaching party may recover expectation damages and any other losses foreseeably
flowing from the breach. Vojdani v. Pharmsan Labs, Inc., 741 F.3d 777 (7th Cir. 2013).
Damages for breach of contract are recoverable where: (1) the damages were reasonably foreseeable by the
breaching party at the time of contracting; (2) the breach is a substantial causal factor in the damages; and (3) the
damages are shown with reasonable certainty. Kansas Gas and Elec. Co. v. U.S., 685 F.3d 1361 (Fed. Cir. 2012).
Michigan law follows the rule of Hadley v. Baxendale, that the damages recoverable for breach of contract are
those that arise naturally from the breach or those that were in the contemplation of the parties at the time the
contract was made. Shathaia v. Travelers Cas. Ins. Co. of America, 984 F. Supp. 2d 714 (E.D. Mich. 2013).
Under Michigan law, damages recoverable in breach of contract action are those that arise naturally from breach
or those that were in parties' contemplation at time contract was made. Reed v. Netherlands Ins. Co., 860 F. Supp.
2d 407 (E.D. Mich. 2012).
The requirement that the party breaching a contract prove any losses the nonbreaching party would have incurred,
to reduce the nonbreaching party's recovery of reliance damages, does not eliminate the requirement that the
defendant's breach caused the plaintiff's damages. Cal. Civ. Code 3300. Agam v. Gavra, 236 Cal. App. 4th 91,
186 Cal. Rptr. 3d 295 (6th Dist. 2015).
Expectation damages for breach of contract includes consequential damages, in other words those that cannot be
reasonably prevented and arise naturally from the breach, or which are reasonably contemplated by the parties.
Selmark Associates, Inc. v. Ehrlich, 467 Mass. 525, 5 N.E.3d 923 (2014).
[END OF SUPPLEMENT]
Footnotes
U.S.Gemini Investors Inc. v. AmeriPark, Inc., 643 F.3d 43 (1st Cir. 2011).
1
Ark.Bank of America, N.A. v. C.D. Smith Motor Co., Inc., 353 Ark. 228, 106 S.W.3d 425, 50 U.C.C. Rep. Serv.
2d 670 (2003).
102 P.3d 257 (2004).
D.C.Hildreth Consulting Engineers, P.C. v. Larry E. Knight, Inc., 801 A.2d 967 (D.C. 2002).
Me.Lee v. Scotia Prince Cruises Ltd., 2003 ME 78, 828 A.2d 210 (Me. 2003).
Neb.Gary's Implement, Inc. v. Bridgeport Tractor Parts, Inc., 281 Neb. 281, 799 N.W.2d 249 (2011).
N.J.Totaro, Duffy, Cannova and Company, L.L.C. v. Lane, Middleton & Company, L.L.C., 191 N.J. 1, 921 A.2d
1100 (2007).
N.Y.Bi-Economy Market, Inc. v. Harleysville Ins. Co. of New York, 10 N.Y.3d 187, 856 N.Y.S.2d 505, 886 N.E.2d
127 (2008).
Pa.Helpin v. Trustees of University of Pennsylvania, 608 Pa. 45, 10 A.3d 267, 262 Ed. Law Rep. 932 (2010).
Vt.EBWS, LLC v. Britly Corp., 181 Vt. 513, 2007 VT 37, 928 A.2d 497 (2007).
Actual loss
Under Illinois law, generally, damages due to breach of contract are limited to actual losses arising from breach.
U.S.Rexam Beverage Can Co. v. Bolger, 620 F.3d 718 (7th Cir. 2010).
6
7
Proximate cause
Damages sought for breach of contract are subject to limitations of causation, certainty, and foreseeability, and a party
seeking to recover damages for breach of contract must prove that the breach of contract proximately caused the
damages or that the damages likely resulted from the breach of contract.
Mont.Tin Cup County Water and/or Sewer Dist. v. Garden City Plumbing & Heating, Inc., 2008 MT 434, 347 Mont.
468, 200 P.3d 60 (2008).
UtahChristensen & Jensen, P.C. v. Barrett & Daines, 2008 UT 64, 194 P.3d 931 (Utah 2008).
Measure of damages for breach of contract, see 122 to 136.
Kan.Duffin v. Patrick, 216 Kan. 81, 530 P.2d 1230 (1975).
Md.Lloyd v. General Motors Corp., 397 Md. 108, 916 A.2d 257, 62 U.C.C. Rep. Serv. 2d 8 (2007).
Mont.Montana Petroleum Tank Release Compensation Bd. v. Crumleys, Inc., 2008 MT 2, 341 Mont. 33, 174 P.3d
948 (2008).
Or.Logan v. D.W. Sivers Co., 343 Or. 339, 169 P.3d 1255 (2007).
U.S.Bohac v. Department of Agriculture, 239 F.3d 1334 (Fed. Cir. 2001).
102 P.3d 257 (2004).
Del.Paul v. Deloitte & Touche, LLP, 974 A.2d 140 (Del. 2009).
IdahoSilver Creek Computers, Inc. v. Petra, Inc., 136 Idaho 879, 42 P.3d 672 (2002).
468, 200 P.3d 60 (2008).
UtahCabaness v. Thomas, 2010 UT 23, 232 P.3d 486 (Utah 2010).
Wyo.Strong Const., Inc. v. City of Torrington, 2011 WY 82, 255 P.3d 903 (Wyo. 2011).
102 P.3d 257 (2004).
N.M.E & B Specialties Co., Inc. v. Phillips, 86 N.M. 331, 523 P.2d 1357 (1974).
R.I.Riley v. Stafford, 896 A.2d 701 (R.I. 2006).
Tex.Basic Capital Management, Inc. v. Dynex Commercial, Inc., 348 S.W.3d 894 (Tex. 2011).
U.S.Avery v. Schuman Co., 159 F. Supp. 906 (S.D. Cal. 1958).
102 P.3d 257 (2004).
U.S.Otis Elevator Co. v. Standard Const. Co., 92 F. Supp. 603 (D. Minn. 1950).
U.S.Porous Media Corp. v. Midland Brake, Inc., 220 F.3d 954, 42 U.C.C. Rep. Serv. 2d 114 (8th Cir. 2000).
Ark.Reynolds Health Care Services, Inc. v. HMNH, Inc., 364 Ark. 168, 217 S.W.3d 797 (2005).
UtahCabaness v. Thomas, 2010 UT 23, 232 P.3d 486 (Utah 2010).
Foreseeable consequences
Consequential damages, which result naturally, but not necessarily, from the defendant's wrongful acts, are not
recoverable unless the parties contemplated at the time they made the contract that such damages would be a probable
result of the breach; to be recoverable, such damages must be foreseeable and directly traceable to the wrongful act
and result from it.
Cal.Erlich v. Menezes, 21 Cal. 4th 543, 87 Cal. Rptr. 2d 886, 981 P.2d 978 (1999).
10
11
12
13
14
IdahoSilver Creek Computers, Inc. v. Petra, Inc., 136 Idaho 879, 42 P.3d 672 (2002).
N.H.George v. Al Hoyt & Sons, Inc., 162 N.H. 123, 27 A.3d 697 (2011).
N.Y.Bi-Economy Market, Inc. v. Harleysville Ins. Co. of New York, 10 N.Y.3d 187, 856 N.Y.S.2d 505, 886 N.E.2d
127 (2008).
102 P.3d 257 (2004).
Del.Hajoca Corp. v. Security Trust Co., 41 Del. 514, 25 A.2d 378 (Super. Ct. 1942).
Ill.Sitnick v. Glazer, 11 Ill. App. 2d 462, 138 N.E.2d 84 (1st Dist. 1956).
Cal.Sabraw v. Kaplan, 211 Cal. App. 2d 224, 27 Cal. Rptr. 81 (1st Dist. 1962).
Ill.Sitnick v. Glazer, 11 Ill. App. 2d 462, 138 N.E.2d 84 (1st Dist. 1956).
Vt.Norton & Lamphere Const. Co. v. Blow & Cote, Inc., 123 Vt. 130, 183 A.2d 230 (1962).
U.S.Contempo Design, Inc. v. Chicago and N.E. Ill. Dist. Council of Carpenters, 226 F.3d 535 (7th Cir. 2000).
End of Document
32.Special circumstances, 25 C.J.S. Damages 32
Damages
A. In General
32. Special circumstances
Unless at the time of the making of the contract the defaulting party had knowledge of special circumstances,
damages arising out of such circumstances are not recoverable.
Damages arising out of the special circumstances surrounding the contract and different from those that would
naturally and probably flow from the breach of such a contract may be recovered where it is shown that at the time
of making the contract, the defaulting party had knowledge of such special circumstances. 1 When the special
circumstances have been brought to the attention of the defaulting party, damages normally flowing from a breach
of the contract in view of the special circumstances are said to be within the contemplation of the parties. 2
On the other hand, in order to be recoverable, special damages must reasonably be supposed to have been within
the contemplation of the parties when making the contract as the probable result of a breach. 3 The special
circumstances must have been communicated to, or known by, the defaulting party. 4 In the absence of proof of
knowledge of such special circumstances by the defaulting party at the time when the contract is entered into, only
the amount that would arise generally, and in the great multitude of cases not affected by any special circumstances
from such a breach of contract, may be recovered, 5 or as sometimes expressed, where notice of special damages is
not given, damages for breach of contract are limited to those reasonably within the contemplation of the parties. 6
In order that knowledge of special circumstances may increase the liability arising in the case of a breach of the
contract, it must have been brought home to the party sought to be charged under such circumstances that he or
she must know that the person he or she contracts with reasonably believes that he or she accepts the contract with
the special condition attached to it. 7 Notice may be implied from circumstances and a course of dealing between
the parties whereby the party sought to be charged becomes familiar with facts that indicate that the contract was
based on, or made with reference to, conditions that render special damages the natural and probable result of
a breach. 8 Where the parties contract with reference to special circumstances, a party cannot relieve himself or
herself from liability for special damages resulting from special circumstances by a mere statement before entering
into the contract that he or she would not be liable therefor. 9
32.Special circumstances, 25 C.J.S. Damages 32
Cases:
Contemplated damages may be awarded if the parties were aware that the damages would result from a breach of
contract. McEwen v. MCR, LLC, 2012 MT 319, 291 P.3d 1253 (Mont. 2012).
[END OF SUPPLEMENT]
Footnotes
IowaRoyal Indem. Co. v. Factory Mut. Ins. Co., 786 N.W.2d 839 (Iowa 2010).
1
2
3
4
5
6
8
9
Mont.Zook Bros. Const. Co. v. State, 171 Mont. 64, 556 P.2d 911 (1976).
Va.Virginia Polytechnic Institute and State University v. Interactive Return Service, Inc., 267 Va. 642, 595 S.E.2d
1, 187 Ed. Law Rep. 303 (2004).
Breach of warranty of goods sold, see C.J.S., Sales 521 to 535.
Cal.Christensen v. Slawter, 173 Cal. App. 2d 325, 343 P.2d 341, 74 A.L.R.2d 567 (1st Dist. 1959).
AlaskaNative Alaskan Reclamation and Pest Control, Inc. v. United Bank Alaska, 685 P.2d 1211 (Alaska 1984).
Me.Steamship Navigation Co. v. Camden Nat. Bank, 2006 ME 11, 889 A.2d 1014 (Me. 2006).
Md.Lloyd v. General Motors Corp., 397 Md. 108, 916 A.2d 257, 62 U.C.C. Rep. Serv. 2d 8 (2007).
UtahRanch Homes, Inc. v. Greater Park City Corp., 592 P.2d 620 (Utah 1979).
Vt.Smith v. Country Village Intern., Inc., 183 Vt. 535, 2007 VT 132, 944 A.2d 240 (2007).
U.S.U. S. for Use of Westinghouse Elec. Corp. v. Marietta Mfg. Co., 339 F. Supp. 18 (S.D. W. Va. 1972).
Cal.Automatic Poultry Feeder Co. v. Wedel, 213 Cal. App. 2d 509, 28 Cal. Rptr. 795 (5th Dist. 1963).
R.I.George v. George F. Berkander, Inc., 92 R.I. 426, 169 A.2d 370 (1961).
U.S.D. M. Picton & Co. v. Eastes, 160 F.2d 189 (C.C.A. 5th Cir. 1947).
Reason for rule
The reason for the rule that where notice of special damages is not given, damages for breach of contract are limited to
those reasonably within the contemplation of the parties, is to protect the freedom of the parties to bargain over risks
from special circumstances.
Pa.Keystone Diesel Engine Co. v. Irwin, 411 Pa. 222, 191 A.2d 376, 1 U.C.C. Rep. Serv. 184 (1963).
Tex.Dale Truck Line v. R. & M. Well Servicing & Drilling Co., 286 S.W.2d 446 (Tex. Civ. App. Galveston 1956),
writ refused n.r.e.
Tex.Dale Truck Line v. R. & M. Well Servicing & Drilling Co., 286 S.W.2d 446 (Tex. Civ. App. Galveston 1956),
writ refused n.r.e.
Tex.McKibbin v. Pierce, 190 S.W. 1149 (Tex. Civ. App. Amarillo 1916).
End of Document
33.Collateral contracts and transactions, 25 C.J.S. Damages 33
Damages
A. In General
33. Collateral contracts and transactions
Damages resulting from collateral contracts or transactions are not recoverable unless the original contract
was made with reference to the collateral undertakings.
As a general rule, the right to recover damages is limited to such damages as arise out of the contract on which
the action is founded, 1 and a recovery cannot be had for damages or losses resulting out of collateral contracts
or transactions affected by the breach of the contract sued on. 2
Where, however, the collateral contract was in the contemplation of the parties to the original or particular
contract when it was made, the latter being made with reference to the former, there may, on a breach of the
particular contract, be a recovery in damages for losses sustained or gains prevented with reference to the collateral
undertaking. 3
Footnotes
U.S.Ed S. Michelson, Inc. v. Nebraska Tire & Rubber Co., 63 F.2d 597 (C.C.A. 8th Cir. 1933).
1
U.S.Ed S. Michelson, Inc. v. Nebraska Tire & Rubber Co., 63 F.2d 597 (C.C.A. 8th Cir. 1933).
2
3
Tex.Iowa Mfg. Co. v. Baldwin, 82 S.W.2d 994 (Tex. Civ. App. Eastland 1935), writ dismissed.
U.S.Grace & Co. (Pacific Coast) v. Pittsburgh Testing Laboratory, 249 F.2d 165 (9th Cir. 1957).
Mo.Wright v. Ickenroth, 215 S.W.2d 43 (Mo. Ct. App. 1948).
Recovery of profits on breach of contract, see 59 to 61.
A.L.R. Library
Recovery of anticipated lost profits of new business: post-1965 cases, 55 A.L.R.4th 507
End of Document
Damages
A. In General
c. Torts
34. Generally
A tortfeasor is responsible for injuries that are the natural and probable consequence of his or her wrong.
In the case of torts, the general rule is that the wrongdoer is liable for any injury that is the natural and probable
consequence of his or her misconduct. 1 Such liability extends not only to injuries that are directly and immediately
caused by his or her act 2 but also to such consequential injuries as, according to the common experience of people,
are likely to result from such act. 3
The converse of this rule is also true, and the wrongdoer is liable only for the natural and probable consequences
of his or her act, 4 and remote, contingent, or speculative damages are not recoverable. 5
Aggravation of preexisting condition or acceleration of progressive disease.

A tortfeasor is liable for injuries that he or she causes even though the injuries consist of the aggravation of a
preexisting condition or acceleration of a progressive disease. 6 However, the plaintiff can recover only for that
part of his or her suffering that proximately resulted from the defendant's negligence and was thereby activated,
aggravated, or accelerated. 7
Footnotes
U.S.Sheets v. Salt Lake County, 45 F.3d 1383 (10th Cir. 1995).
1
Ill.Clark v. Children's Memorial Hosp., 2011 IL 108656, 353 Ill. Dec. 254, 955 N.E.2d 1065 (Ill. 2011).
Mo.Meyer ex rel. Coplin v. Fluor Corp., 220 S.W.3d 712 (Mo. 2007).
Nev.State, University and Community College System v. Sutton, 120 Nev. 972, 103 P.3d 8, 194 Ed. Law Rep. 707
(2004).
2
3
5
6
7

U.S.Sutherland v. Auch Inter-Borough Transit Co., 366 F. Supp. 127 (E.D. Pa. 1973).
Ill.Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 215 Ill. Dec. 108, 662 N.E.2d 1248 (1996).
Mass.Com. v. Angelo Todesca Corp., 446 Mass. 128, 842 N.E.2d 930 (2006).
Infection
An infection, unquestionably connected to, and flowing from, an injury carelessly caused, is equally chargeable to the
careless defendant.
N.Y.Poplar v. Bourjois, Inc., 298 N.Y. 62, 80 N.E.2d 334 (1948).
La.Connell v. Black, 260 So. 2d 924 (La. Ct. App. 4th Cir. 1972).
Me.Addy v. Jenkins, Inc., 2009 ME 46, 969 A.2d 935 (Me. 2009).
Tex.Winn v. Warner, 199 S.W.2d 560 (Tex. Civ. App. Waco 1947), writ refused n.r.e.
U.S.Reising v. U.S., 60 F.3d 1241 (7th Cir. 1995).
U.S.Reising v. U.S., 60 F.3d 1241 (7th Cir. 1995).
End of Document
35.Unforeseen and unanticipated consequences, 25 C.J.S. Damages 35
Damages
A. In General
c. Torts
35. Unforeseen and unanticipated consequences
While there is authority that unless the tort is willful, the wrongdoer is liable only for such consequences
as were or should have been contemplated or might have been foreseen, there is also authority that
a wrongdoer is liable for all the natural and probable consequences of his or her wrong although not
contemplated, foreseen, or anticipated.
There is authority that, in the case of torts not amounting to willful or wanton wrongs, the rule has been stated
that the wrongdoer is liable only for such consequences as were or should have been contemplated or might, in
the light of attending circumstances, have been foreseen, 1 or such as according to common experience and the
usual course of events might reasonably have been anticipated. 2 However, there is also authority that the rule
limiting the damages in contract actions to those within the contemplation of the parties does not apply to actions
for tort and that a wrongdoer is liable for all the natural and probable consequences of his or her wrong although
not contemplated, foreseen, or anticipated. 3 The wrongdoer is liable for the natural and probable consequences
of his or her act or omission although their particular form or character was not foreseen or anticipated. 4 It is
also not necessary that the particular consequences shall have been foreseen or within the contemplation of the
wrongdoer. 5
Extraordinary circumstances.
A wrongdoer ordinarily is not liable for consequences that arise from a conjunction of his or her fault with other
circumstances that are of an extraordinary nature. 6
Willful torts.
In the case of willful torts, the wrongdoer is responsible for the direct and immediate consequences regardless of
whether they might have been contemplated, foreseen, or expected. 7
35.Unforeseen and unanticipated consequences, 25 C.J.S. Damages 35
Cases:
Damages have their proximate cause in an alleged breach of care when the injury was a natural and probable
consequence of the negligent act, which, in light of the attending circumstances, could have been reasonably
foreseen or anticipated. International Business Machines Corp. v. ACS Human Services, LLC, 999 N.E.2d 880
(Ind. Ct. App. 2013).
Proximate cause plays a central role in determining the precise extent of the defendant's liability and, in turn, what
the plaintiff's position would have been absent the defendant's negligence. Harris v. ShopKo Stores, Inc., 2013
UT 34, 308 P.3d 449 (Utah 2013).
[END OF SUPPLEMENT]
Footnotes
U.S.Streber v. Hunter, 221 F.3d 701, 55 Fed. R. Evid. Serv. 376 (5th Cir. 2000).
1
2
3
4
5
6
7
Mass.Com. v. Angelo Todesca Corp., 446 Mass. 128, 842 N.E.2d 930 (2006).
Miss.Allred v. Fairchild, 916 So. 2d 529 (Miss. 2005).
Or.Wallach v. Allstate Ins. Co., 344 Or. 314, 180 P.3d 19 (2008).
AlaskaERA Helicopters, Inc. v. Digicon Alaska, Inc., 518 P.2d 1057 (Alaska 1974).
IdahoBarlow v. International Harvester Co., 95 Idaho 881, 522 P.2d 1102 (1974).
Ky.Western Union Telegraph Co. v. Ramsey, 261 Ky. 657, 88 S.W.2d 675, 103 A.L.R. 541 (1935).
Tex.Winn v. Warner, 199 S.W.2d 560 (Tex. Civ. App. Waco 1947), writ refused n.r.e.
U.S.Krawill Machinery Corp. v. Robert C. Herd & Co., 155 F. Supp. 296 (D. Md. 1957), judgment aff'd, 256 F.2d
946 (4th Cir. 1958), judgment aff'd, 359 U.S. 297, 79 S. Ct. 766, 3 L. Ed. 2d 820 (1959).
N.Y.Poplar v. Bourjois, Inc., 298 N.Y. 62, 80 N.E.2d 334 (1948).
Improbable or unexpected severe consequences
U.S.Gallick v. Baltimore & O. R. Co., 372 U.S. 108, 83 S. Ct. 659, 9 L. Ed. 2d 618 (1963).
Miss.City of Jackson v. Estate of Stewart ex rel. Womack, 908 So. 2d 703 (Miss. 2005).
N.Y.Cooper v. Weissblatt, 154 Misc. 522, 277 N.Y.S. 709 (App. Term 1935).
Tex.Thompson v. Hodges, 237 S.W.2d 757 (Tex. Civ. App. San Antonio 1951), writ refused n.r.e.
End of Document
Damages
A. In General
4. Uncertain, Speculative, and Contingent Consequences
36. Generally
The rule, applicable in actions of contract and in actions of tort, is that uncertain, contingent, or speculative
damages may not be recovered.
Damages that are uncertain, contingent, or speculative in their nature cannot be made the basis of a recovery. 1
This rule is applicable in actions of contract 2 and, subject to some differentiation as to the degree of certainty
required, in actions of tort. 3
Future damages or consequences.

The plaintiff is entitled to an award of damages to compensate him or her for losses that he or she is reasonably
certain to incur in the future, 4 but future damages must be reduced to present value. 5 Moreover, compensation
for future damages cannot be based on a mere conjectural probability of future loss. 6 Thus, an award for future
disability cannot be based on mere conjectures and probabilities. 7 Where a plaintiff claims compensation for
future consequences of an injury, ordinarily, he or she must prove with reasonable certainty that such consequences
will happen. 8
Damages becoming certain.

In some cases, elements of damage, which are totally uncertain at the time of the injury, may be rendered
sufficiently certain by the lapse of time before trial of an action to recover them to afford a basis of compensation. 9
Sources of uncertainty.
Damages may be uncertain either as to their existence or their nature or in respect of the cause from which they
proceed. 10
Cases:
Although speculative damages based on conjecture are not recoverable, damages need not be determined with
mathematical certainty; it is sufficient if a reasonable basis for computation exists. Hannay v. Dept. of Transp.,
299 Mich. App. 261, 829 N.W.2d 883 (2013).
[END OF SUPPLEMENT]
Footnotes
Ala.Martin v. Battistella, 9 So. 3d 1235 (Ala. 2008).
1
AlaskaCameron v. Chang-Craft, 251 P.3d 1008 (Alaska 2011).
Ark.Dawson v. Temps Plus, Inc., 337 Ark. 247, 987 S.W.2d 722 (1999).
Conn.Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 889 A.2d 785 (2006).
D.C.Zoerb v. Barton Protective Services, 851 A.2d 465 (D.C. 2004).
IdahoBratton v. Scott, 150 Idaho 530, 248 P.3d 1265 (2011).
Kan.Martinez v. Milburn Enterprises, Inc., 290 Kan. 572, 233 P.3d 205 (2010).
Mont.Watson v. West, 2009 MT 342, 353 Mont. 120, 218 P.3d 1227 (2009).
Tenn.Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008).
Va.SunTrust Bank v. Farrar, 277 Va. 546, 675 S.E.2d 187 (2009).
Wyo.Knight v. TCB Const. and Design, LLC, 2011 WY 27, 248 P.3d 178 (Wyo. 2011).
3
4
5
6
7
8
Possible damages
Damages may not be based upon sheer speculation or surmise, and the mere possibility or even probability that damage
will result from wrongful conduct does not render it actionable.
Cal.Ferguson v. Lieff, Cabraser, Heimann & Bernstein, 30 Cal. 4th 1037, 135 Cal. Rptr. 2d 46, 69 P.3d 965, 9
A.L.R.6th 749 (2003).
Kan.State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 107 P.3d 1219 (2005).
468, 200 P.3d 60 (2008).
N.M.Louis Lyster, General Contractor, Inc. v. Town of Las Vegas, 75 N.M. 427, 405 P.2d 665 (1965).
Okla.Florafax Intern., Inc. v. GTE Market Resources, Inc., 1997 OK 7, 933 P.2d 282 (Okla. 1997).
U.S.U.S. v. Sutro, 235 F.2d 499 (9th Cir. 1956).
S.D.Kunkel v. United Sec. Ins. Co. of N. J., 84 S.D. 116, 168 N.W.2d 723 (1969).
IdahoSmith v. Mitton, 140 Idaho 893, 104 P.3d 367 (2004).
OhioGalayda v. Lake Hosp. Sys., Inc., 71 Ohio St. 3d 421, 1994-Ohio-64, 644 N.E.2d 298 (1994).
Mo.Hines v. Sweet, 567 S.W.2d 435 (Mo. Ct. App. 1978).
N.D.Matter of Estate of Ridl, 455 N.W.2d 188 (N.D. 1990).
Vt.Hedges v. Durrance, 175 Vt. 588, 2003 VT 63, 834 A.2d 1 (2003).
Prospective and anticipated consequences, see 40 to 43.
Wis.Kincannon v. National Indem. Co., 5 Wis. 2d 231, 92 N.W.2d 884 (1958).
AlaskaChenega Corp. v. Exxon Corp., 991 P.2d 769 (Alaska 1999).
Del.Gannett Co., Inc. v. Kanaga, 750 A.2d 1174 (Del. 2000).
Md.Lewin Realty III, Inc. v. Brooks, 138 Md. App. 244, 771 A.2d 446 (2001), judgment aff'd, 378 Md. 70, 835
A.2d 616 (2003).
9
10
Lost earnings
Plaintiff seeking damages for lost future earnings has the burden of demonstrating, with reasonable certainty, that he
or she has sustained loss of future earnings or earning capacity.
D.C.Croley v. Republican Nat. Committee, 759 A.2d 682 (D.C. 2000).
Neb.Katskee v. Nevada Bob's Golf of Nebraska, Inc., 238 Neb. 654, 472 N.W.2d 372 (1991).
U.S.Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 194 F.2d 846 (8th Cir. 1952).
U.S.Piekarsky v. Rossman, 95 F. Supp. 748 (M.D. N.C. 1951).
Neb.Bitler v. Terri Lee, Inc., 163 Neb. 833, 81 N.W.2d 318 (1957).
Uncertainty as to existence, nature, or cause, see 38.
End of Document
37.Degree of certainty required, 25 C.J.S. Damages 37
Damages
A. In General
37. Degree of certainty required
The amount of damages must be established with reasonable, but not absolute, certainty.
In cases admitting of such proof, the amount of damages must be established with reasonable certainty. 1 However,
absolute certainty is not required. 2 Thus, it is sufficient if a reasonable basis of computation is afforded even
though the result is only approximate. 3 What is required is that evidence of such certainty as the nature of the
particular case permits should be produced. 4
Damages are not uncertain for the reason that the loss sustained is incapable of proof with the certainty of a
mathematical demonstration 5 or is to some extent contingent and not capable of being accurately determined. 6 It
is not a sufficient reason for disallowing damages claimed that a party can state their amount only approximately. 7
It is sufficient if there is such certainty as satisfies the mind of a prudent and impartial person. 8
Cases:
In cases in which defendants' misconduct prevent plaintiffs from calculating damages accurately, damages can be
estimated by methods that would be deemed impermissibly speculative in other contexts. BCS Services, Inc. v.
BG Investments, Inc., 728 F.3d 633 (7th Cir. 2013).
Uncertainty as to the amount of damages does not preclude recovery, and mathematical certainty as to the amount
of recovery is not necessary; if a reasonable basis for computing an approximate amount of damages is provided,
that is all that the law requires. Howard v. Trotter, 2012 ND 258, 825 N.W.2d 857 (N.D. 2012).
[END OF SUPPLEMENT]
37.Degree of certainty required, 25 C.J.S. Damages 37
Footnotes
U.S.Samaritan Inns, Inc. v. District of Columbia, 114 F.3d 1227, 22 A.D.D. 752 (D.C. Cir. 1997).
1
6
7

D.C.Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724 (D.C. 2000).
IdahoGriffith v. Clear Lakes Trout Co., Inc., 146 Idaho 613, 200 P.3d 1162, 67 U.C.C. Rep. Serv. 2d 883 (2009).
Me.Jenkins, Inc. v. Walsh Bros., Inc., 2001 ME 98, 776 A.2d 1229 (Me. 2001).
468, 200 P.3d 60 (2008).
N.D.Langer v. Bartholomay, 2008 ND 40, 745 N.W.2d 649 (N.D. 2008).
Va.Nichols Const. Corp. v. Virginia Machine Tool Co., LLC, 276 Va. 81, 661 S.E.2d 467 (2008).
Uncertainty as to measure or extent of damages, see 39.
Evidence, generally, see 305.
Questions of law and fact, see 413 to 422.
U.S.Dominium Management Services, Inc. v. Nationwide Housing Group, 195 F.3d 358 (8th Cir. 1999).
IdahoGriffith v. Clear Lakes Trout Co., Inc., 146 Idaho 613, 200 P.3d 1162, 67 U.C.C. Rep. Serv. 2d 883 (2009).
La.Menard v. Lafayette Ins. Co., 31 So. 3d 996 (La. 2010).
Me.Lee v. Scotia Prince Cruises Ltd., 2003 ME 78, 828 A.2d 210 (Me. 2003).
UtahTingey v. Christensen, 1999 UT 68, 987 P.2d 588 (Utah 1999).
U.S.Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S. Ct. 1187, 90 L. Ed. 1515 (1946).
Ala.Goolesby v. Koch Farms, LLC, 955 So. 2d 422 (Ala. 2006).
D.C.Trustees of University of Dist. of Columbia v. Vossoughi, 963 A.2d 1162, 241 Ed. Law Rep. 234 (D.C. 2009).
U.S.Plumbers and Fitters, Local 761 v. Matt J. Zaich Const. Co., 418 F.2d 1054 (9th Cir. 1969).
N.J.Clay v. City of Jersey City, 74 N.J. Super. 490, 181 A.2d 545 (Ch. Div. 1962), judgment aff'd, 84 N.J. Super.
9, 200 A.2d 787 (App. Div. 1964).
Inference
Evidence tending to show the extent of damages as a matter of just and reasonable inference is sufficient.
Ala.Jamison, Money, Farmer & Co., P.C. v. Standeffer, 678 So. 2d 1061 (Ala. 1996).
U.S.Brown v. Presbyterian Healthcare Services, 101 F.3d 1324 (10th Cir. 1996).
Me.Jenkins, Inc. v. Walsh Bros., Inc., 2001 ME 98, 776 A.2d 1229 (Me. 2001).
Mass.Agoos Leather Companies v. American & Foreign Ins. Co., 342 Mass. 603, 174 N.E.2d 652 (1961).
Or.Cross v. Harris, 230 Or. 398, 370 P.2d 703 (1962).
Ark.Bank of America, N.A. v. C.D. Smith Motor Co., Inc., 353 Ark. 228, 106 S.W.3d 425, 50 U.C.C. Rep. Serv.
2d 670 (2003).
Or.Buck v. Mueller, 221 Or. 271, 351 P.2d 61 (1960).
Fla.Twyman v. Roell, 123 Fla. 2, 166 So. 215 (1936).
End of Document
38.Uncertainty as to existence or cause, 25 C.J.S. Damages 38
Damages
A. In General
38. Uncertainty as to existence or cause
No recovery may be had where it is not shown with reasonable certainty that damage was suffered and that
such damage resulted from the act or omission complained of.
Damages sought in a breach-of-contract action must be ascertainable in their nature and origin. 1 Where it
cannot be shown with reasonable certainty that any damage resulted from the act complained of, there can be no
recovery. 2 Damages cannot be recovered for a breach of contract where it cannot be determined by which party's
fault they were incurred. 3
This, however, has been said to be but a statement in another form of the rule requiring that damages be the natural
and proximate consequences of the wrongful act. 4
Cause of disease.
The mere fact that a certain diseased condition might consistently arise from the injury is insufficient to show that
it was caused thereby. 5 The evidence should so exclude other causes, and the circumstances should be such that
a reasonable inference arises that the injury caused the disease. 6
Footnotes
Ala.Systrends, Inc. v. Group 8760, LLC, 959 So. 2d 1052 (Ala. 2006).
1
Ill.Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 297 Ill. Dec. 319,
837 N.E.2d 99 (2005).
Miss.Kennedy v. Illinois Cent. R. Co., 30 So. 3d 333 (Miss. 2010).
Mo.Chesterfield Village, Inc. v. City of Chesterfield, 64 S.W.3d 315 (Mo. 2002).
468, 200 P.3d 60 (2008).
38.Uncertainty as to existence or cause, 25 C.J.S. Damages 38
1100 (2007).
N.D.Livinggood v. Balsdon, 2006 ND 11, 709 N.W.2d 723 (N.D. 2006).
Pa.Wachovia Bank, N.A. v. Ferretti, 2007 PA Super 320, 935 A.2d 565 (2007).
S.D.Weekley v. Prostrollo, 2010 SD 13, 778 N.W.2d 823 (S.D. 2010), reh'g granted, (Mar. 10, 2010).
3
4
5
6
Causation
In order to award contract damages, there must be evidence that the damages were in fact caused by the breach.
S.D.Bunkers v. Jacobson, 2002 SD 135, 653 N.W.2d 732 (S.D. 2002).
Mo.Herbert & Brooner Const. Co. v. Golden, 499 S.W.2d 541 (Mo. Ct. App. 1973).
Mont.Lovely v. Burroughs Corp., 165 Mont. 209, 527 P.2d 557 (1974).
Neb.Nebraska Nutrients, Inc. v. Shepherd, 261 Neb. 723, 626 N.W.2d 472 (2001).
Injury and damage as essential to cause of action, see C.J.S., Actions 59 to 61.
IdahoMcOmber v. Nuckols, 82 Idaho 280, 353 P.2d 398 (1960).
U.S.Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S. Ct. 248, 75 L. Ed. 544 (1931).
Neb.Harper v. Young, 139 Neb. 624, 298 N.W. 342 (1941).
N.Y.Hoey v. Metropolitan St. Ry. Co., 70 A.D. 60, 74 N.Y.S. 1113 (1st Dep't 1902).
End of Document
39.Uncertainty as to measure or extent, 25 C.J.S. Damages 39
Damages
A. In General
39. Uncertainty as to measure or extent
Uncertainty as to the measure or extent of damages does not bar recovery of damages.
The rule as to the recovery of uncertain damages generally has been directed against uncertainty as to fact or
cause of damage rather than uncertainty as to measure or extent. 1 In other words, the rule against uncertain or
contingent damages applies only to such damages as are not the certain results of the wrong and not to such as
are the certain results but uncertain in amount. 2
In many cases, although substantial damages are established, their amount is, insofar as susceptible of pecuniary
measurement, either entirely uncertain or extremely difficult of ascertainment. 3 In such cases, the plaintiff is
not denied all right of recovery, 4 and the amount is fixed by the court or by the jury in the exercise of a sound
discretion under proper instructions from the court. 5
This is particularly true of torts, 6 especially those resulting in personal injuries. 7
Even in the case of contracts, a party who has broken his or her contract will not ordinarily be permitted to escape
liability because of the uncertainty in the amount of damage resulting, 8 and the fact that the full extent of the
damages for the breach must be a matter of speculation is not a ground for refusing all damages. 9
However, where actual pecuniary damages are sought, there must be evidence of their existence and extent, 10
and some data from which they may be computed. 11 No substantial recovery may be based on mere guesswork
or inference, but recovery must be supported by evidence of facts, circumstances, and data justifying an inference
that the damages awarded are a just and reasonable compensation for the injury suffered. 12 When compensatory
damages are susceptible of proof with approximate accuracy and may be measured with some degree of certainty,
they must be so proved 13 even in actions of tort. 14
Where there is evidence as to damage from various causes, as to a portion of which the defendant cannot be held
responsible, and no evidence as to the portion of the damage resulting from the separate causes, the proof is too
uncertain to permit the jury arbitrarily to apportion part of all of the proved damages to the acts for which the
defendant is responsible. 15 On the other hand, where the evidence clearly shows some substantial damages to
which the plaintiff is entitled, he or she is not confined to a recovery of mere nominal damages by a failure to
show as to all of the items of damage that the defendant was responsible therefor. 16 In the case of concurrent
torts by several persons, the difficulty of ascertaining with exactness the proportion of damage caused by each
tortfeasor is not a ground for denying the right to recovery of a substantial sum where the best evidence of which
the case is susceptible, reasonably tending to show the relative proportion, is adduced. 17
Certainty as to only part of damages.

In cases of tort, where there are elements of certainty as to only a part of the damages that have resulted, leaving
it apparent that there are actual damages beyond what can be thus accurately measured, the plaintiff's recovery is
not limited to only as much as can be measured with certainty. 18
Cases:
Under New Jersey law, where a wrong has been committed resulting in damages, mere uncertainty to the amount
will not preclude recovery; courts will fashion a remedy even though the proof of damages is inexact. In re
Rappaport, 517 B.R. 518 (Bankr. D. N.J. 2014).
[END OF SUPPLEMENT]
Footnotes
U.S.In re Pharmaceutical Industry Average Wholesale Price Litigation, 685 F. Supp. 2d 186 (D. Mass. 2010) (stating
1
New York law).

Ala.Systrends, Inc. v. Group 8760, LLC, 959 So. 2d 1052 (Ala. 2006).
Colo.Vanderbeek v. Vernon Corp., 50 P.3d 866 (Colo. 2002).
IdahoMcCuskey v. Canyon County Com'rs, 128 Idaho 213, 912 P.2d 100 (1996).
Ill.Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 297 Ill. Dec. 319,
837 N.E.2d 99 (2005).
Miss.Kennedy v. Illinois Cent. R. Co., 30 So. 3d 333 (Miss. 2010).
1100 (2007).
Pa.Wachovia Bank, N.A. v. Ferretti, 2007 PA Super 320, 935 A.2d 565 (2007).
U.S.Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S. Ct. 1187, 90 L. Ed. 1515 (1946); Brown v.
Presbyterian Healthcare Services, 101 F.3d 1324 (10th Cir. 1996).
IdahoMcCuskey v. Canyon County Com'rs, 128 Idaho 213, 912 P.2d 100 (1996).
Va.Condominium Services, Inc. v. First Owners' Ass'n of Forty Six Hundred Condominium, Inc., 281 Va. 561, 709
S.E.2d 163 (2011).
6
7
9
10
11
12
13
14
Wash.Lewis River Golf, Inc. v. O.M. Scott & Sons, 120 Wash. 2d 712, 845 P.2d 987, 22 U.C.C. Rep. Serv. 2d
510 (1993).
U.S.United Mine Workers of America v. Pennington, 377 U.S. 929, 84 S. Ct. 1333, 12 L. Ed. 2d 294 (1964).
Ark.Morton v. Park View Apartments, 315 Ark. 400, 868 S.W.2d 448 (1993).
Vt.Shahi v. Madden, 183 Vt. 320, 2008 VT 25, 949 A.2d 1022 (2008).
U.S.United Mine Workers of America v. Pennington, 377 U.S. 929, 84 S. Ct. 1333, 12 L. Ed. 2d 294 (1964).
Ark.Morton v. Park View Apartments, 315 Ark. 400, 868 S.W.2d 448 (1993).
Miss.J.K. v. R.K., 30 So. 3d 290 (Miss. 2009).
S.E.2d 163 (2011).
IdahoTrilogy Network Systems, Inc. v. Johnson, 144 Idaho 844, 172 P.3d 1119 (2007).
IowaField v. Palmer, 592 N.W.2d 347 (Iowa 1999).
Tex.Texas Sanitation Co. v. Marek, 381 S.W.2d 710 (Tex. Civ. App. Corpus Christi 1964).
Vt.Shahi v. Madden, 183 Vt. 320, 2008 VT 25, 949 A.2d 1022 (2008).
IowaMcCune v. Muenich, 255 Iowa 755, 124 N.W.2d 130 (1963).
Minn.Ray v. Miller Meester Advertising, Inc., 684 N.W.2d 404 (Minn. 2004).
Del.Henne v. Balick, 51 Del. 369, 146 A.2d 394 (1958).
Malpractice
The court is reluctant to interfere with the exercise of the jury's discretion in actions for malpractice.
IowaShepherd v. McGinnis, 257 Iowa 35, 131 N.W.2d 475 (1964).
Cal.Macken v. Martinez, 214 Cal. App. 2d 784, 29 Cal. Rptr. 867 (1st Dist. 1963).
N.D.Martin v. Trinity Hosp., 2008 ND 176, 755 N.W.2d 900 (N.D. 2008).
Tex.Texas Sanitation Co. v. Marek, 381 S.W.2d 710 (Tex. Civ. App. Corpus Christi 1964).
S.E.2d 163 (2011).
UtahGould v. Mountain States Tel. & Tel. Co., 6 Utah 2d 187, 309 P.2d 802 (1957).
Wash.Wenzler & Ward Plumbing & Heating Co. v. Sellen, 53 Wash. 2d 96, 330 P.2d 1068 (1958).
U.S.Christiansen v. Mechanical Contractors Bid Depository, 230 F. Supp. 186 (D. Utah 1964), judgment aff'd, 352
F.2d 817 (10th Cir. 1965).
IowaShepherd v. McGinnis, 257 Iowa 35, 131 N.W.2d 475 (1964).
U.S.Hartley & Parker, Inc. v. Florida Beverage Corp., 307 F.2d 916 (5th Cir. 1962).
Mo.Harris v. Mound City Yellow Cab Co., 367 S.W.2d 43 (Mo. Ct. App. 1963).
Mont.Hallenberg v. General Mills Operations, Inc., 2006 MT 191, 333 Mont. 143, 141 P.3d 1216 (2006).
Capability of exact computation
To form the basis for the recovery of damages growing from a breach of contract, the damages must be capable of
exact computation.
Ga.Darlington Corp. v. Evans, 88 Ga. App. 84, 76 S.E.2d 72 (1953).
U.S.Bigelow v. RKO Radio Pictures, 327 U.S. 251, 66 S. Ct. 574, 90 L. Ed. 652 (1946).
Tex.Chickasha Cotton Oil Co. v. Holloway, 378 S.W.2d 695 (Tex. Civ. App. Amarillo 1964), writ refused n.r.e.,
(July 22, 1964).
Ill.Van Brocklin v. Gudema, 50 Ill. App. 2d 20, 199 N.E.2d 457 (2d Dist. 1964).
N.Y.Joy Vending Co. v. S. & A. Luncheonette & Restaurant, Inc., 15 Misc. 2d 565, 180 N.Y.S.2d 194 (Mun. Ct.
1958).
La.Goynes v. St. Charles Dairy, 197 So. 819 (La. Ct. App. 1st Cir. 1940).
15
16
17
18
N.M.Industrial Supply Co. v. Goen, 58 N.M. 738, 276 P.2d 509 (1954).
U.S.Lichter v. Mellon-Stuart Co., 193 F. Supp. 216 (W.D. Pa. 1961), judgment aff'd, 305 F.2d 216 (3d Cir. 1962).
IdahoMercer v. Shearer, 84 Idaho 536, 374 P.2d 716 (1962).
N.M.Rix v. Town of Alamogordo, 42 N.M. 325, 77 P.2d 765 (1938).
Vt.Levey v. Hall, 119 Vt. 143, 120 A.2d 568 (1956).
U.S.A. T. Smith and Sons v. N. P. Van Valkenburgh Co., 337 F.2d 702 (9th Cir. 1964).
Tex.Edens-Birch Lumber Co. v. Wood, 139 S.W.2d 881 (Tex. Civ. App. Beaumont 1940), writ dismissed, judgment
correct.
W.Va.Wine v. City Lines of West Virginia, 134 W. Va. 889, 62 S.E.2d 260 (1950).
End of Document
Damages
A. In General
5. Prospective and Anticipated Consequences
40. Generally
Where a cause of action is complete and no subsequent action may be maintained, a recovery may be had
of prospective damages reasonably certain to accrue.
As a general rule, where a cause of action is complete, a recovery may be had of prospective damages that
it is reasonably certain will accrue. 1 Where successive actions may be maintained, future damages are not
recoverable. 2 Conversely, where no subsequent action may be maintained, all damages present and future may
be recovered. 3
Footnotes
Cal.Frustuck v. City of Fairfax, 212 Cal. App. 2d 345, 28 Cal. Rptr. 357 (1st Dist. 1963).
1
2
Tex.Stuart v. Bayless, 964 S.W.2d 920 (Tex. 1998).

Cal.Coughlin v. Blair, 41 Cal. 2d 587, 262 P.2d 305 (1953).
Okla.Fleming v. Perkins, 1949 OK 252, 202 Okla. 217, 212 P.2d 122 (1949).
Successive actions as permitted to be maintained, see C.J.S., Actions 224 to 258.
Kan.Sponable v. Thomas, 139 Kan. 710, 33 P.2d 721 (1934).
End of Document
41.Breach of contract, 25 C.J.S. Damages 41
Damages
A. In General
41. Breach of contract
Generally, on an anticipatory breach of a contract, prospective damages may be recovered.
Generally, under circumstances amounting to an anticipatory breach of a continuing contract, the party aggrieved
may sue at once and recover all damages flowing from the breach whether present or prospective. 1 Furthermore,
the only time that damages for what will accrue upon a breach of a contract can be awarded is in the event of
an anticipatory breach. 2
Where the wrongful act of the defendant is of such a nature as to constitute an entire breach of the contract,
compensation therefor may be recovered at once for the whole loss. 3
If a breach of contract is partial only, the injured party may recover damages for nonperformance only up to the
time of the trial and may not recover damages for an anticipated future nonperformance. 4 If the breach does not
discharge the entire contract, but gives rise to successive actions, future damages must be recovered in subsequent
actions. 5
Installment contracts.
Contracts for installment payments of money are excluded from the general rule that an anticipatory repudiation of
a contract permits the aggrieved party to sue for damages resulting from future, as well as past nonperformance. 6
For a breach of contract for payment of money in installments, where a contract is unilateral or has become
unilateral as a result of performance by the complaining party, the right of recovery is limited to the installments
due at the time of the institution of the suit. 7
Footnotes
U.S.First State Bank of Floodwood v. Jubie, 86 F.3d 755 (8th Cir. 1996).
1
Tex.Continental Cas. Co. v. Boerger, 389 S.W.2d 566 (Tex. Civ. App. Waco 1965), writ dismissed, (July 14, 1965).
2
3
4
5
6
7
Conditional right to promised performance

Cal.Caminetti v. Manierre, 23 Cal. 2d 94, 142 P.2d 741 (1943).
Circumstances amounting to an anticipatory breach of a continuing contract, see C.J.S., Contracts 710 to 718.
Measure of damages, see 122 to 136.
N.Y.Swiss Credit Bank v. International Bank, Limited, 23 Misc. 2d 572, 200 N.Y.S.2d 828 (Sup 1960).
S.E.2d 163 (2011).
Cal.Coughlin v. Blair, 41 Cal. 2d 587, 262 P.2d 305 (1953).
Mass.Vorenberg v. Wm. Filene's Sons Co., 232 Mass. 153, 122 N.E. 287 (1919).
N.Y.W. K. Ewing Co. v. New York State Teachers' Retirement System, 23 Misc. 2d 812, 197 N.Y.S.2d 364 (Sup
1960), judgment rev'd on other grounds, 14 A.D.2d 113, 218 N.Y.S.2d 253 (3d Dep't 1961), judgment aff'd, 11 N.Y.2d
749, 226 N.Y.S.2d 690, 181 N.E.2d 628 (1962).
U.S.First State Bank of Floodwood v. Jubie, 86 F.3d 755 (8th Cir. 1996).
U.S.City of Hampton, Va. v. U.S., 218 F.2d 401 (4th Cir. 1955).
End of Document
42.Torts, 25 C.J.S. Damages 42
Damages
A. In General
42. Torts
Damages in tort actions are not restricted to the period ending with the institution of the suit, and where
it is established that future consequences from an injury to the person will ensue, recovery for such future
effects may be had.
Damages in tort actions are not restricted to the period ending with the institution of the suit. 1 Thus, where it is
established that there will be future effects from an injury to the person, damages therefor may be awarded. 2 A
tort victim may recover future damages caused by the tortfeasor even though it may be difficult to determine the
exact amount of those damages. 3 Future consequences that are reasonably to be expected to follow an injury may
be given in evidence for the purpose of enhancing the damages to be awarded. 4 Conversely, where the possibility
of future effects from an injury, which is the subject of the suit, has been eliminated by matters not caused by the
injury, no recovery for such effects is permitted. 5
Certainty.
The degree of certainty required in determining future damages varies according to jurisdiction, 6 but no recovery
can be allowed for the mere possibility of future consequences of an injury inflicted by a wrongdoer. 7 There is
authority, sometimes as a result of a statutory regulation, that in order for future damages to be includible as an
element of damage, it is necessary that there exist a reasonable certainty that the apprehended future consequences
will ensue from the original injury 8 and that a reasonable certainty is all that is required. 9 However, there is also
authority that it is sufficient that the result shall be likely or reasonably probable. 10
Footnotes
Ala.Birmingham Elec. Co. v. Farmer, 251 Ala. 148, 36 So. 2d 343 (1948).
1
Tenn.Schwab v. International Ass'n of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, Local No. 782,
482 S.W.2d 143 (Tenn. Ct. App. 1972).
4
5
6
7
9
10
UtahRobinson v. Hreinson, 17 Utah 2d 261, 409 P.2d 121 (1965).

Pa.Schwegel v. Goldberg, 209 Pa. Super. 280, 228 A.2d 405 (1967).
UtahMedved v. Glenn, 2005 UT 77, 125 P.3d 913 (Utah 2005).
Not limited to impairment of earning capacity or pain
Cal.Lang v. Barry, 71 Cal. App. 2d 121, 161 P.2d 949 (1st Dist. 1945).
Minn.Ray v. Miller Meester Advertising, Inc., 684 N.W.2d 404 (Minn. 2004).
Permanent injuries
Where the injuries are of a permanent nature, there may be a recovery for consequences that have not yet actually
ensued.
Ind.Southern Ry. Co. v. Jaynes, 86 Ind. App. 451, 140 N.E. 556 (1923).
As to uncertainty regarding measure or extent of damages, see 39.
Or.Barron v. Duke, 120 Or. 181, 250 P. 628 (1926).
Pa.Messer v. Beighley, 409 Pa. 551, 187 A.2d 168 (1963).
Amputation of leg
The amputation of a person's leg due to unrelated causes precluded any recovery for disability, disfigurement, and
future pain and suffering from leg burns.
Ill.Jurney v. Lubeznik, 72 Ill. App. 2d 117, 218 N.E.2d 799 (1st Dist. 1966).
D.C.Green v. Lafoon, 173 A.2d 212 (Mun. Ct. App. D.C. 1961).
La.Collins v. Schulz, 196 So. 2d 303 (La. Ct. App. 4th Cir. 1967).
N.J.Grassi v. Pennsylvania R. Co., 86 N.J. Super. 48, 205 A.2d 895 (App. Div. 1964).
Speculative damages
Damages accruing in the future must not be left to speculation or conjecture.
U.S.Moe Light, Inc. v. Foreman, 238 F.2d 817 (6th Cir. 1956).
U.S.Henderson v. Sheahan, 196 F.3d 839 (7th Cir. 1999).
Ariz.Griffen v. Stevenson, 1 Ariz. App. 311, 402 P.2d 432 (1965).
Cal.Boeken v. Philip Morris USA, Inc., 48 Cal. 4th 788, 108 Cal. Rptr. 3d 806, 230 P.3d 342 (2010).
Certainty, generally, see 36 to 39.
Neb.Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006).
Okla.St. Louis-San Francisco Ry. Co. v. McBride, 1961 OK 222, 376 P.2d 214 (Okla. 1961).
U.S.A. H. Bull S. S. Co. v. Ligon, 285 F.2d 936, 88 A.L.R.2d 479 (5th Cir. 1960).
N.J.Coll v. Sherry, 29 N.J. 166, 148 A.2d 481 (1959).
End of Document
43.TortsInjury to property, 25 C.J.S. Damages 43
Damages
A. In General
43. TortsInjury to property
Prospective damages are recoverable for a permanent, but not for a temporary, injury to real estate.
All damages, past and prospective, are recoverable in one action for a permanent injury to, or trespass on, real
estate. 1 However, where the cause of injury is abatable by expenditure of labor or money, future damages may
not be awarded. 2 Thus, where the injury or trespass is only temporary in character, only such damages are, in
general, recoverable as have accrued up to the date of the institution of the action, 3 or time of the trial, 4 and
such other special damages as may be shown. 5
Where the injury is of such a character as to give rise to successive causes of action, future damages cannot be
recovered. 6 Furthermore, speculative future damages may not be recovered. 7
Footnotes
U.S.Dean Foods Co. v. Albrecht Dairy Co., 396 F.2d 652, 12 Fed. R. Serv. 2d 218 (8th Cir. 1968).
1
2
3
4
5
6
7
W.Va.Severt v. Beckley Coals, Inc., 153 W. Va. 600, 170 S.E.2d 577 (1969).
Okla.City of Enid v. Crow, 1957 OK 211, 316 P.2d 834 (Okla. 1957).
Ala.Ginzler v. City of Birmingham, 6 Ala. App. 666, 60 So. 976 (1913).
Tex.Texas Elec. Service Co. v. Linebery, 333 S.W.2d 596 (Tex. Civ. App. El Paso 1960).
Ky.Toebbe v. City of Covington, 145 Ky. 763, 141 S.W. 421 (1911).
Mich.O'Donnell v. Oliver Iron Min. Co., 273 Mich. 27, 262 N.W. 728 (1935).
Injury of such a character as to give rise to successive causes of action, see C.J.S., Actions 250 to 255.
Wash.Boston Trust Co. v. Evelon Co., 96 Wash. 31, 164 P. 606 (1917).
End of Document
Damages
A. In General
6. Avoidable Consequences
44. Generally
West's Key Number Digest, Damages 62, 62(1)
The rule of "avoidable consequences," which is supplementary to the rule that a wrongdoer is responsible
for the consequences of his or her misconduct, and distinguishable from contributory negligence, imposes
a duty on an injured person to minimize damages.
The rule of "avoidable consequences" is a rule that imposes a duty on an injured person to minimize damages. 1
The rule is applied, in proper circumstances, against the party seeking damages and has no application to the
defendant from whom damages are sought. 2
The rule of avoidable consequences is, in a sense, supplementary to the rule that a wrongdoer is responsible for
the natural and proximate consequences of his or her misconduct 3 and is to be distinguished from contributory
negligence in that contributory negligence is a bar to the action while the rule of avoidable consequences merely
goes to the reduction of damages caused by the defendant. 4
Footnotes
U.S.Lawson v. Trowbridge, 153 F.3d 368, 49 Fed. R. Evid. Serv. 1211 (7th Cir. 1998).
1
2
3
4
Ga.R & R Insulation Services, Inc. v. Royal Indem. Co., 307 Ga. App. 419, 705 S.E.2d 223 (2010).
N.H.RAL Automotive Group, Inc. v. Edwards, 151 N.H. 497, 861 A.2d 795 (2004).
N.J.Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 675 A.2d 1077, 109 Ed. Law Rep. 800 (1996).
N.D.Hanson v. Boeder, 2007 ND 20, 727 N.W.2d 280 (N.D. 2007).
Wash.Labriola v. Pollard Group, Inc., 152 Wash. 2d 828, 100 P.3d 791 (2004).
Mitigation or reduction of damages, see 184 to 191.
Ala.Britton v. Doehring, 286 Ala. 498, 242 So. 2d 666 (1970).
Nev.Young Elec. Sign Co. v. Lynch, 77 Nev. 416, 365 P.2d 648 (1961).
Tex.Reavis v. Taylor, 162 S.W.2d 1030 (Tex. Civ. App. Eastland 1942), writ refused w.o.m., (July 1, 1942).
IdahoCasey v. Nampa and Meridian Irr. Dist., 85 Idaho 299, 379 P.2d 409 (1963).
N.J.Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 675 A.2d 1077, 109 Ed. Law Rep. 800 (1996).
Failure to prevent or reduce damages as contributory negligence, see C.J.S., Negligence 253.
End of Document
45.Duty to prevent or reduce damages, 25 C.J.S. Damages 45
Damages
A. In General
45. Duty to prevent or reduce damages
No recovery may be had for losses that the injured person might have prevented by reasonable efforts and
expenditures.
A plaintiff injured by the negligence of another is under a duty to mitigate his damages as far as is practicable
by the use of ordinary care and diligence. 1
As a general rule, sometimes expressed in statutory enactments, there can be no recovery for losses that might
have been prevented by reasonable efforts on the part of the person injured, 2 especially where the act causing the
loss is not willful, intentional, or continued in bad faith. 3 The rule is a general one, applicable alike to actions
in tort and on contract, 4 and does not, in the absence of a statute, depend on the nature of the action that the
injured party seeks to maintain. 5
The duty to mitigate damages arises after a party has suffered injury, loss, or damage and persists as long as
damages are suffered and may reasonably be mitigated 6 and bars only such damages as could reasonably been
averted. 7
The duty of the injured party to minimize damages presupposes that he or she has been damaged. 8 It is not
arbitrarily imposed in all cases 9 and does not apply in the case of an intentional or willful injury. 10 It is not
imposed where the injured party is not chargeable with notice that damages are likely to ensue. 11 Furthermore,
the rule is inapplicable where the plaintiff could not possibly have avoided any of the loss for which he or she
claims damages. 12 It applies to damages that one can prevent and not to damages already accrued. 13
The efforts that the injured party must make to avoid the consequences of the wrongful act or omission need
only be reasonable 14 under the circumstances of the particular case, 15 his or her duty being limited by the rules
of common sense and fair dealing. 16 He or she should do what reasonable care and business prudence require
to minimize the loss, 17 the test being what an ordinarily prudent person would be expected to do under like
circumstances. 18
The injured party is not required to take such action to minimize damages as might, under the circumstances,
cause himself or herself further detriment 19 or that would be imprudent and impracticable. 20 In order to lessen
the damage that the person injured cannot be required to commit a wrong. 21 Neither is he or she required to
anticipate that a wrong will be committed 22 or to point out to the wrongdoer ways in which the latter may soften
the blow. 23 The law does not require a person to take affirmative legal action, such as instituting or settling a
lawsuit, to prevent or lessen damages. 24
A failure to attempt to mitigate damages will not bar the plaintiff entirely from a recovery 25 but will only prevent
the recovery of such damages as might have been avoided by reasonable efforts on his or her part. 26
Reasonable expenditures.
The efforts that the law requires of a person injured by a tort or a breach of contract to avoid what damages
he or she can include the making of reasonable expenditures to such end. 27 What is reasonably required
depends on the extent of the threatened injury as compared with the expense of remedying the situation and
the practical certainty of success in a preventive effort. 28 The person injured is not required, however, to make
extraordinary expenditures requiring a disproportionate outlay in endeavoring to guard against the consequences
of the wrongdoer's act. 29 Thus, the plaintiff's lack of funds to meet the situation presented may excuse efforts
to lessen the injury. 30
Promise by wrongdoer to avoid or lighten loss.

Where the party primarily liable himself or herself attempts or promises to take proper steps to reduce or prevent
damages when the injury is impending or has actually begun, such fact may be considered in connection with the
failure of the plaintiff to perform the necessary act or to make the requisite effort to limit or avoid the loss. 31
Cases:
A plaintiff may not recover damages for injuries that might reasonably have been avoided. Banning v. Prester,
2012 COA 215, 317 P.3d 1284 (Colo. App. 2012), cert. denied, 2013 WL 4426441 (Colo. 2013).
[END OF SUPPLEMENT]
Footnotes
U.S.Dessert Service, Inc. v. M/V MSC Jamie/Rafaela, 219 F. Supp. 2d 504 (S.D. N.Y. 2002).
1
Ind.Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006).
Miss.Illinois Central R. Co. v. Winters, 863 So. 2d 955 (Miss. 2004).
N.H.Carbone v. Tierney, 151 N.H. 521, 864 A.2d 308 (2004).
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
CalState Dept. of Health Services v. Superior Court, 31 Cal. 4th 1026, 6 Cal. Rptr. 3d 441, 79 P.3d 556 (2003).
D.C.Hinton v. Sealander Brokerage Co., 917 A.2d 95 (D.C. 2007).
IdahoWeinstein v. Prudential Property and Cas. Ins. Co., 149 Idaho 299, 233 P.3d 1221 (2010).
Me.In re Hannaford Bros. Co. Customer Data Security Breach Litigation, 2010 ME 93, 4 A.3d 492 (Me. 2010).
Nev.Sheehan & Sheehan v. Nelson Malley and Co., 121 Nev. 481, 117 P.3d 219 (2005).
N.H.RAL Automotive Group, Inc. v. Edwards, 151 N.H. 497, 861 A.2d 795 (2004).
N.J.Lynch v. Scheininger, 162 N.J. 209, 744 A.2d 113 (2000).
N.D.Coughlin Const. Co., Inc. v. Nu-Tec Industries, Inc., 2008 ND 163, 755 N.W.2d 867 (N.D. 2008).
OhioChicago Title Ins. Co. v. Huntington Natl. Bank, 87 Ohio St. 3d 270, 1999-Ohio-62, 719 N.E.2d 955 (1999).
Tex.Gunn Infiniti, Inc. v. O'Byrne, 996 S.W.2d 854 (Tex. 1999).
Wash.Labriola v. Pollard Group, Inc., 152 Wash. 2d 828, 100 P.3d 791 (2004).
Wyo.Kerbs v. Walck, 2010 WY 53, 229 P.3d 974 (Wyo. 2010).
Plaintiff's acts as intervening causes, see 28.
AlaskaAnchorage Independent School Dist. v. Stephens, 370 P.2d 531 (Alaska 1962).
N.Y.Richmond Hill Realty Co. v. East Richmond Hill Land Co., 246 A.D. 301, 285 N.Y.S. 424 (1st Dep't 1936).
Mich.Morris v. Clawson Tank Co., 459 Mich. 256, 587 N.W.2d 253 (1998).
Wyo.Cordero Mining Co. v. U.S. Fidelity and Guar. Ins. Co., 2003 WY 48, 67 P.3d 616 (Wyo. 2003).
U.S.Southport Transit Co. v. Avondale Marine Ways, Inc., 234 F.2d 947 (5th Cir. 1956).
Ill.Hill v. Bell Discount Corp., 39 Ill. App. 2d 426, 188 N.E.2d 517 (1st Dist. 1963).
Ala.CSX Transp., Inc. v. Miller, 46 So. 3d 434 (Ala. 2010).
Me.Searles v. Fleetwood Homes Of Pennsylvania, Inc., 2005 ME 94, 878 A.2d 509 (Me. 2005).
Neb.Roth v. Wiese, 271 Neb. 750, 716 N.W.2d 419 (2006).
Kan.In re Stannard's Estate, 179 Kan. 394, 295 P.2d 610 (1956).
N.M.Brown v. Newton, 59 N.M. 274, 282 P.2d 1113 (1955).
Mich.Kratze v. Independent Order of Oddfellows, Garden City Lodge No. 11, 442 Mich. 136, 500 N.W.2d 115
(1993).
U.S.James Wood General Trading Establishment v. Coe, 297 F.2d 651 (2d Cir. 1961).
N.Y.Coyle v. Serafini Const. Co., 8 Misc. 2d 807, 167 N.Y.S.2d 680 (Sup 1957).
Ill.Fruehauf Trailer Co. v. Lydick, 325 Ill. App. 28, 59 N.E.2d 551 (1st Dist. 1944).
Kan.In re Stannard's Estate, 179 Kan. 394, 295 P.2d 610 (1956).
Mo.Smith v. Tracy, 372 S.W.2d 925 (Mo. 1963).
U.S.Hale Container Line, Inc. v. Houston Sea Packing Co., Inc., 137 F.3d 1455 (11th Cir. 1998).
Fla.System Components Corp. v. Florida Dept. of Transp., 14 So. 3d 967 (Fla. 2009).
IowaVasconez v. Mills, 651 N.W.2d 48 (Iowa 2002).
N.J.Associated Metals & Minerals Corp. v. Dixon Chemical & Research, Inc., 82 N.J. Super. 281, 197 A.2d 569
(App. Div. 1963).
U.S.Tampa Elec. Co. v. Nashville Coal Co., 214 F. Supp. 647 (M.D. Tenn. 1963).
Minn.State by Lord v. Casey, 263 Minn. 47, 115 N.W.2d 749 (1962).
U.S.Rathborne, Hair & Ridgway Co. v. Williams, 59 F. Supp. 1 (E.D. S.C. 1945).
Okla.Smith-Horton Drilling Co. v. Brooks, 1947 OK 154, 199 Okla. 63, 182 P.2d 499 (1947).
Mont.Summers v. Crestview Apartments, 2010 MT 164, 357 Mont. 123, 236 P.3d 586 (2010).
N.C.Troitino v. Goodman, 225 N.C. 406, 35 S.E.2d 277 (1945).
Or.Enco, Inc. v. F.C. Russell Co., 210 Or. 324, 311 P.2d 737 (1957).
U.S.Hegler v. Board of Ed. of Bearden School Dist., Bearden, Ark., 447 F.2d 1078 (8th Cir. 1971).
19
20
21
22
23
24
25
26
27
28
29
30
31
Mont.Spackman v. Ralph M. Parsons Co., 147 Mont. 500, 414 P.2d 918 (1966).
Lost earnings
Plaintiff's duty to mitigate loss of earnings damages does not extend to accepting a position that entails great hardship
or personal embarrassment.
AlaskaState, Dept. of Transp. and Public Facilities v. Miller, 145 P.3d 521 (Alaska 2006).
Cal.Service v. Trombetta, 212 Cal. App. 2d 313, 28 Cal. Rptr. 68 (5th Dist. 1963).
N.J.Associated Metals & Minerals Corp. v. Dixon Chemical & Research, Inc., 82 N.J. Super. 281, 197 A.2d 569
(App. Div. 1963).
U.S.Christman v. Maristella Compania Naviera, 349 F. Supp. 845 (S.D. N.Y. 1971), judgment aff'd, 468 F.2d 620
(2d Cir. 1972).
U.S.Rathborne, Hair & Ridgway Co. v. Williams, 59 F. Supp. 1 (E.D. S.C. 1945).
S.D.Chicago, B. & Q.R. Co. v. Wheaton, 76 S.D. 467, 80 N.W.2d 868 (1957).
N.Y.Gonzales v. Colonial Trust Co., 7 Misc. 2d 508, 162 N.Y.S.2d 754 (Sup 1957), order aff'd, 6 A.D.2d 679, 174
N.Y.S.2d 444 (1st Dep't 1958).
Settlement of lawsuit
A client's failure to settle can never amount to a failure to mitigate; inherent in settlement is a forfeiture of legal rights
and such a forfeiture is not required by a duty to mitigate.
Colo.Stone v. Satriana, 41 P.3d 705 (Colo. 2002).
Instituting lawsuit
N.Y.Lipshie v. Lazarus, 235 N.Y.S.2d 764 (Sup 1962).
U.S.Koppers Co., Inc. v. Aetna Cas. and Sur. Co., 98 F.3d 1440 (3d Cir. 1996).
Ark.Bill C. Harris Const. Co. Inc. v. Powers, 262 Ark. 96, 554 S.W.2d 332, 14 A.L.R.4th 812 (1977).
Neb.Borley Storage and Transfer Co., Inc. v. Whitted, 271 Neb. 84, 710 N.W.2d 71, 59 U.C.C. Rep. Serv. 2d 174
(2006).
Va.Monahan v. Obici Medical Management Services, Inc., 271 Va. 621, 628 S.E.2d 330 (2006).
Failure to mitigate damages as contributory negligence, see C.J.S., Negligence 272.
U.S.Koppers Co., Inc. v. Aetna Cas. and Sur. Co., 98 F.3d 1440 (3d Cir. 1996).
Colo.Gross v. Knuth, 28 Colo. App. 188, 471 P.2d 648 (App. 1970).
(2006).
Reduction of awardA wronged party's damages award is reduced by that party's failure to mitigate.
AlaskaMaddox v. Hardy, 187 P.3d 486 (Alaska 2008).
N.Y.Balbuena v. IDR Realty LLC, 6 N.Y.3d 338, 812 N.Y.S.2d 416, 845 N.E.2d 1246 (2006).
Miss.Vining v. Smith, 213 Miss. 850, 58 So. 2d 34 (1952).
Wyo.Thayer v. Smith, 380 P.2d 852 (Wyo. 1963).
Cal.Kleinclaus v. Marin Realty Co., 94 Cal. App. 2d 733, 211 P.2d 582 (1st Dist. 1949).
Wash.Lew v. Goodfellow Chrysler-Plymouth, Inc., 6 Wash. App. 226, 492 P.2d 258, 10 U.C.C. Rep. Serv. 509
(Div. 1 1971).
Cal.Service v. Trombetta, 212 Cal. App. 2d 313, 28 Cal. Rptr. 68 (5th Dist. 1963).
Cal.Stiner v. Travelers Indem. Co., 226 Cal. App. 2d 128, 37 Cal. Rptr. 813 (4th Dist. 1964).
Mo.Smith v. Tracy, 372 S.W.2d 925 (Mo. 1963).
Tex.Wilson v. Snider, 274 S.W.2d 569 (Tex. Civ. App. San Antonio 1954), writ refused n.r.e., (May 4, 1955).
End of Document
Damages
A. In General
A person injured by the breach of a contract ordinarily must use reasonable efforts to mitigate the damages.
The doctrine of avoidable consequences, also known as the duty to mitigate damages,requires the parties to a
contract to take reasonable steps to mitigate damages in situations of breach 1 and bars recovery for losses suffered
by a nonbreaching party that could have been avoided by reasonable effort and without the risk of substantial loss
or injury. 2 The injured party is only required to act reasonably under the circumstances to mitigate damages. 3
Thus, where a party is entitled to the benefit of a contract and can save himself or herself from a loss arising from
a breach thereof at a trifling expense or with reasonable exertions, it is his or her duty, and statutes sometimes
so declare, to do so, and he or she can charge the party in default with such damages only as with reasonable
endeavors and expense that he or she could not prevent. 4
This rule is especially applicable where one of the contracting parties has acquired notice of the breach of contract
and makes no reasonable effort to mitigate the damages claimed. 5 The duty comes into existence when the
particular contract is breached, that is when the cause of action arises even though the damages may not then have
been completely ascertained. 6
The rule is applicable to all types of contracts, 7 but it is not in every case that the duty is imposed. 8 The doctrine
has no application in an action on a contract for an agreed compensation as contrasted with an action for damages
for breach of contract. 9
If a contract has been practically broken, the fact that the other party has from time to time made promises leading
to a belief that it would be fulfilled will authorize a full recovery although the plaintiff, relying on such promises,
may have taken no action to prevent the injury. 10
A plaintiff is not bound to accept a method of reducing the loss that would amount to an abandonment of his or
her claim for damages 11 or to sacrifice a substantial right. 12
Where the party whose duty it is primarily to perform a contract has equal opportunity for performance and equal
knowledge of the consequences of nonperformance, he or she cannot, while the contract is subsisting and in force,
be heard to say that the plaintiff might have performed for him or her. 13
Cases:
The law imposes an obligation on injured parties in a breach of contract action to take reasonable steps to limit
their damages if they can do so through reasonable exertion or at a trifling expense. Peterbilt of Fargo, Inc. v. Red
River Trucking, LLC, 2015 ND 140, 864 N.W.2d 276 (N.D. 2015).
[END OF SUPPLEMENT]
Footnotes
AlaskaD.H. Blattner & Sons, Inc. v. N.M. Rothschild & Sons, Ltd., 55 P.3d 37 (Alaska 2002).
1
Mass.Krasne v. Tedeschi and Grasso, 436 Mass. 103, 762 N.E.2d 841 (2002).
OhioState ex rel. Stacy v. Batavia Local School Dist. Bd. of Edn., 105 Ohio St. 3d 476, 2005-Ohio-2974, 829 N.E.2d
298, 198 Ed. Law Rep. 952 (2005).
R.I.Dovenmuehle Mortg., Inc. v. Antonelli, 790 A.2d 1113 (R.I. 2002).
Va.Forbes v. Rapp, 269 Va. 374, 611 S.E.2d 592 (2005).
Mont.Arrowhead School Dist. No. 75, Park County v. Klyap, 2003 MT 294, 318 Mont. 103, 79 P.3d 250, 182 Ed.
Law Rep. 915 (2003).
S.D.Boxa v. Vaughn, 2003 SD 154, 674 N.W.2d 306 (S.D. 2003).
U.S.T. C. Bateson Const. Co. v. U.S., 162 Ct. Cl. 145, 319 F.2d 135 (1963).
Wyo.Asbell Bros., Inc. v. Nash-Davis Machinery Co., 382 P.2d 57 (Wyo. 1963).
Commercially reasonable action
Election between reasonable courses
Where a choice had been required between two reasonable courses in order to mitigate damages after the breach of a
contract, one whose wrong forced the choice cannot complain that one rather than the other choice was made.
U.S.In re Kellett Aircraft Corp., 186 F.2d 197 (3d Cir. 1950).
Knowledge of facts
The duty resting on a promisee to minimize his or her damages would not operate until he or she knew that he or she
was suffering damages by the breach of the contract by the promisor.
U.S.Williams v. McRae, 168 F. Supp. 650 (W.D. S.C. 1958).
U.S.Yang Ming Marine Transport Corp. v. Okamoto Freighters Ltd., 259 F.3d 1086 (9th Cir. 2001).
Mont.Bitterroot Intern. Systems, Ltd. v. Western Star Trucks, Inc., 2007 MT 48, 336 Mont. 145, 153 P.3d 627, 62
U.C.C. Rep. Serv. 2d 330 (2007).
Pa.Delliponti v. DeAngelis, 545 Pa. 434, 681 A.2d 1261 (1996).
Enhancing damages by completion of contract after anticipatory breach, see C.J.S., Contracts 717.
Fla.Winter v. American Auto. Ass'n, 149 So. 2d 386 (Fla. Dist. Ct. App. 3d Dist. 1963).
6
7
Mich.Oakland Metal Stamping Co. v. Forest Industries, Inc., 352 Mich. 119, 89 N.W.2d 503 (1958).
Tex.Morgan v. Young, 203 S.W.2d 837 (Tex. Civ. App. Beaumont 1947), writ refused n.r.e.
Mo.Leonard v. American Walnut Co., Inc., 609 S.W.2d 452, 30 U.C.C. Rep. Serv. 25 (Mo. Ct. App. W.D. 1980).
N.H.Zareas v. Smith, 119 N.H. 534, 404 A.2d 599 (1979).
Construction contracts
Pa.Gaylord Builders, Inc. v. Richmond Metal Mfg. Corp., 186 Pa. Super. 101, 140 A.2d 358 (1958).
Sale of real estate
When a purchaser has breached a contract for the sale of real estate, the seller nonetheless has the duty of making
reasonable efforts to mitigate damages resulting from the breach, and to the extent that the seller fails to do so, he may
not recover the additional damages incurred.
10
11
12
13
Lease agreements
Fla.Young v. Cobbs, 110 So. 2d 651, 71 A.L.R.2d 1100 (Fla. 1959).
N.M.Honaker v. Ralph Pool's Albuquerque Auto Sales, Inc., 74 N.M. 458, 394 P.2d 978 (1964).
OhioLake Ridge Academy v. Carney, 66 Ohio St. 3d 376, 613 N.E.2d 183, 82 Ed. Law Rep. 1181 (1993).
Unjustified interference with property rights
R.I.Rhode Island Dairy Queen, Inc. v. Burke, 95 R.I. 339, 187 A.2d 521 (1963).
U.S.De Pasquale v. Williams-Bauer Corp., 151 F.2d 578 (C.C.A. 2d Cir. 1945).
Wyo.M & M Auto Outlet v. Hill Inv. Corp., 2010 WY 56, 230 P.3d 1099 (Wyo. 2010).
Liquidated damages
Private school had no duty to mitigate damages stemming from student's parents' breach of contract where there was
a valid liquidated damages clause in the contract.
Md.Barrie School v. Patch, 401 Md. 497, 933 A.2d 382, 225 Ed. Law Rep. 973 (2007).
U.S.Wolters Village Management Co. v. Merchants and Planters Nat. Bank of Sherman, 223 F.2d 793 (5th Cir.
1955).
Vt.Vermont Salvage Corp. v. Northern Oil Co., 118 Vt. 337, 109 A.2d 267 (1954).
N.Y.Amtorg Trading Corp. v. U.S. Wallboard Machinery Co., 204 Misc. 479, 120 N.Y.S.2d 19 (Sup 1953), order
aff'd, 282 A.D. 1040, 126 N.Y.S.2d 897 (1st Dep't 1953).
Extension of time for performance
Where an agreement that required the vendor to remove trash from realty by a certain date, and time was of the essence,
the purchaser was not required to mitigate damages by extending the time for performance by the vendor.
Conn.Camp v. Cohn, 151 Conn. 623, 201 A.2d 187 (1964).
U.S.Mallek v. City of San Benito, 121 F.3d 993 (5th Cir. 1997).
Va.Hiss v. Friedberg, 201 Va. 572, 112 S.E.2d 871, 4 A.L.R.3d 261 (1960).
End of Document
47.Breach of contractContracts for services or use of..., 25 C.J.S. Damages 47
Damages
A. In General
47. Breach of contractContracts for services or use of instrumentality
On breach of a contract to furnish personal services or for the use of some specific equipment or
instrumentality, the person agreeing to furnish the same must procure another contract if he or she can
reasonably do so.
On breach of a contract for personal services, 1 or for the use of some specific equipment or instrumentality, 2
it is the duty of the person agreeing to furnish the services or instrumentality to procure another contract for the
employment thereof if he or she can do so by ordinary means and the use of proper opportunity. The defendant
may show in mitigation of damages that the plaintiff has obtained other employment 3 and the amount that he or
she earned 4 or might have earned through the exercise of reasonable care and diligence. 5
This rule does not apply to contracts not requiring all or a great portion of the time of the plaintiff, 6 or that do
not preclude the plaintiff from undertaking and being engaged in the performance contemporaneously of other
contracts, 7 or to contracts for the performance of particular acts. 8 Essentially, the inquiry is whether the plaintiff's
employment or undertaking was of a personal nature. 9 Furthermore, it does not require a person to obtain work
in another locality 10 or to accept employment of a different 11 or inferior 12 kind from that in which he or she
was originally engaged.
Footnotes
U.S.Pasquel v. Owen, 186 F.2d 263 (8th Cir. 1950).
1
Mo.Hoover v. Citizens Home Bank, 245 S.W.2d 154 (Mo. Ct. App. 1951).
Failure to seek work as unskilled laborer
Plaintiff who was discharged from his employment as a tractor operator due to defendant's unlawful use of wage
assignment had a duty to attempt to mitigate his damages and loss, and he could not recover his full loss of earnings
for the period during which he was unemployed as a tractor operator where plaintiff made insufficient efforts to find
employment and did not seek work as an unskilled laborer or work that paid less than what he had been earning as
a tractor operator.
47.Breach of contractContracts for services or use of..., 25 C.J.S. Damages 47
2
3
4
5
6
7
8
9
10
11
12
Ill.Hill v. Bell Discount Corp., 39 Ill. App. 2d 426, 188 N.E.2d 517 (1st Dist. 1963).
Cal.Isbrandtsen Co. v. Producers Cotton Oil Co., 158 Cal. App. 2d 712, 322 P.2d 1005 (4th Dist. 1958).
Ky.Abrams v. Jackson County Board of Education, 230 Ky. 151, 18 S.W.2d 1000 (1929).
Va.American Oil Co. v. Lovelace, 150 Va. 624, 143 S.E. 293 (1928).
N.C.Tillis v. Calvine Cotton Mills, Inc., 251 N.C. 359, 111 S.E.2d 606 (1959).
OhioRowley v. Ferguson, 37 Ohio L. Abs. 531, 48 N.E.2d 243 (Ct. App. 2d Dist. Franklin County 1942).
Gains
Gains that plaintiff could have made by reasonable effort, without the risk of loss or injury, after a breach of contract by
defendant, by reason of opportunities plaintiff would not have had but for the breach, are deductible from the amount
plaintiff is otherwise entitled to recover.
Md.M & R Contractors & Builders, Inc. v. Michael, 215 Md. 340, 138 A.2d 350 (1958).
Cal.Gollaher v. Midwood Const. Co., 194 Cal. App. 2d 640, 15 Cal. Rptr. 292 (2d Dist. 1961).
Ill.Wired Music, Inc. v. Clark, 26 Ill. App. 2d 413, 168 N.E.2d 736 (2d Dist. 1960).
Brokerage contracts
A broker was under no obligation to mitigate his claim for damages for a breach of a contract against a prospective
vendor, who failed to consummate the contract, by seeking to make sales of other properties to the prospective
purchaser.
OhioKunkle v. Jaffe, 47 Ohio L. Abs. 77, 71 N.E.2d 298 (Ct. App. 8th Dist. Cuyahoga County 1946).
Ky.Harrison v. Martin, 272 Ky. 307, 114 S.W.2d 112 (1938).
Md.M & R Contractors & Builders, Inc. v. Michael, 215 Md. 340, 138 A.2d 350 (1958).
Pa.Williams v. National Organization, Masters, Mates & Pilots of America, Local No. 2, 384 Pa. 413, 120 A.2d
896 (1956).
Wis.Mitchell v. Lewensohn, 251 Wis. 424, 29 N.W.2d 748 (1947).
Wis.Mitchell v. Lewensohn, 251 Wis. 424, 29 N.W.2d 748 (1947).
End of Document
48.Injury to property, 25 C.J.S. Damages 48
Damages
A. In General
48. Injury to property
A person whose property is endangered or injured ordinarily must use reasonable care to mitigate the
damages.
As a general rule, sometimes found in the statutory law of particular jurisdictions, one whose property is
endangered or injured by the wrong or negligence of another must exercise reasonable care to limit or mitigate
damages. 1 This rule is especially true where notice of the wrong or injury has been provided to the party seeking
to recover damages, and he or she has taken no steps to protect himself or herself from further loss. 2
The rule only requires a party to protect himself or herself from the injurious consequences of the wrongful act
by the exercise of ordinary effort and care and moderate expense. 3 Such rule has no application where the injury
could be prevented only by extraordinary effort or cost 4 and is inapplicable to injuries for which temporary
damages only are recoverable. 5 Furthermore, the rule is inapplicable in cases of intentional torts 6 or positive
and continuing torts. 7
The efforts to minimize the loss must be reasonable as to time, as well as in all other respects. 8 Where injury to
property prevents the owner from pursuing his or her usual employment, he or she is not entitled to recover for
the loss of time occasioned by the injury where he or she has made no effort to secure other employment, 9 and an
unemployed plaintiff who is able to look for work does not satisfy his or her duty to mitigate damages by merely
waiting passively for employment to be offered. 10
Eminent-domain proceeding.
Neither party in an eminent-domain proceeding has the obligation to cure or mitigate anything. 11
Footnotes
U.S.Toledo Peoria and Western Ry. v. Metro Waste Systems, Inc., 59 F.3d 637 (7th Cir. 1995).
Ark.Arkansas-Missouri Power Co. v. Deal, 263 Ark. 645, 566 S.W.2d 747 (1978).
Mass.Hill v. Metropolitan Dist. Com'n, 439 Mass. 266, 787 N.E.2d 526 (2003).
N.H.Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813, 891 A.2d 477, 58 U.C.C. Rep. Serv. 2d 401 (2005).
Repair or replacement
(1) Where the damages can be entirely or partially repaired, the owner must make such repairs and thus lessen his or
her damage as much as possible.
Kan.Foster v. Humburg, 180 Kan. 64, 299 P.2d 46 (1956).
(2) Where damaged property may be replaced for less money than the cost of repair, plaintiff is under duty to mitigate
damages by replacing it rather than repairing it.
Ill.George F. Conley Co. v. Langhaus, 13 Ill. App. 2d 574, 142 N.E.2d 799 (1st Dist. 1957).
2
3
5
6
7
8
9
10
11
Flow of surface waters

Any person threatened with injury to his or her property by the flow of surface waters has a duty to take reasonable
precautions to avoid or reduce any actual or potential injury.
Cal.Locklin v. City of Lafayette, 7 Cal. 4th 327, 27 Cal. Rptr. 2d 613, 867 P.2d 724 (1994).
U.S.National Steel Corp. v. Great Lakes Towing Co., 574 F.2d 339 (6th Cir. 1978).
Colo.Gross v. Knuth, 28 Colo. App. 188, 471 P.2d 648 (App. 1970).
U.S.Maurer v. U.S., 219 F. Supp. 253 (E.D. Wis. 1963).
N.Y.Coyle v. Serafini Const. Co., 8 Misc. 2d 807, 167 N.Y.S.2d 680 (Sup 1957).
Duty to plant new crop
A landowner who is wrongfully prevented from planting and growing a contemplated crop must minimize his or her
damages as far as reasonably possible by planting another crop if it is possible and practical; and the landowner under
such circumstances who lets his or her fields lie fallow is not entitled to recover the land's full rental value.
Mo.Sullivan v. Winer, 307 S.W.2d 704 (Mo. Ct. App. 1957).
W.Va.Oresta v. Romano Bros., Inc., 137 W. Va. 633, 73 S.E.2d 622 (1952).
Insufficient resources to mitigate damages
Evidence supported trial court's finding that party was unable to mitigate damages in action alleging lessee's intentional
interference with heir's business relations where party did not have sufficient resources to deposit with clerk of court
amount of money claimed in lien.
Lochthowe v. C.F. Peterson Estate, 2005 ND 40, 692 N.W.2d 120 (N.D. 2005).
W.Va.Oresta v. Romano Bros., Inc., 137 W. Va. 633, 73 S.E.2d 622 (1952).
Mich.Allen v. Morris Bldg. Co., 360 Mich. 214, 103 N.W.2d 491 (1960).
Wash.Desimone v. Mutual Materials Co., 23 Wash. 2d 876, 162 P.2d 808 (1945).
Mich.Allen v. Morris Bldg. Co., 360 Mich. 214, 103 N.W.2d 491 (1960).
S.D.Chicago, B. & Q.R. Co. v. Wheaton, 76 S.D. 467, 80 N.W.2d 868 (1957).
U.S.Corvallis & E.R. Co. v. U.S., 191 F. 310 (C.C.A. 9th Cir. 1911).
Making repairs
The owner of a motor vehicle damaged in a collision was under a duty to mitigate damages by having the vehicle
repaired within a reasonable time.
La.Villarrubia v. Roy, 162 So. 2d 86 (La. Ct. App. 4th Cir. 1964).
U.S.Wilson v. Union Pacific R. Co., 56 F.3d 1226 (10th Cir. 1995).
U.S.Wilson v. Union Pacific R. Co., 56 F.3d 1226 (10th Cir. 1995).
Fla.Broward County v. Patel, 641 So. 2d 40 (Fla. 1994).
End of Document
49.Injury to person, 25 C.J.S. Damages 49
Damages
A. In General
49. Injury to person
A person who sustains personal injury must use ordinary diligence to effect a cure and lessen or reduce
the damages as far as practicable.
As a general rule, sometimes as a result of statutory regulation, one who has sustained personal injury through the
fault of another is bound to lessen the damages as far as practicable by the use of ordinary care and diligence. 1
One who has been injured by the negligence of another must use ordinary diligence to effect a cure, and there can
be no recovery for damages that might have been avoided by the exercise of such care. 2
Only ordinary care is required, 3 and where there has been no neglect on the part of the injured party, and his or
her injuries were more serious than it was at first supposed, there can be a full recovery for the entire result. 4
Footnotes
1
N.Y.Kish v. Board of Educ. of City of New York, 76 N.Y.2d 379, 559 N.Y.S.2d 687, 558 N.E.2d 1159, 62 Ed.
Law Rep. 692 (1990).
3
4
Failure of parents of child

The failure of the parents of an eight-year-old child to take proper steps to bring about the child's recovery after his
injury cannot defeat recovery for all the results of defendant's wrongdoing.
Conn.Lange v. Hoyt, 114 Conn. 590, 159 A. 575, 82 A.L.R. 486 (1932).
Ky.Louisville Taxicab & Transfer Co. v. Byrnes, 296 Ky. 560, 178 S.W.2d 4 (1944).
W.Va.State ex rel. Mullins v. McClung, 123 W. Va. 682, 17 S.E.2d 621 (1941).
N.J.Freschi v. Mason, 156 A. 757 (N.J. Sup. Ct. 1930).
N.D.Newton v. Gretter, 60 N.D. 635, 236 N.W. 254 (1931).
49.Injury to person, 25 C.J.S. Damages 49
A.L.R. Library
Recoverability of compensatory damages for mental anguish or emotional distress for breach of service contract, 54
A.L.R.4th 901.
Recoverability of compensatory damages for mental anguish or emotional distress for breach of contract to lend money,
52 A.L.R.4th 826
End of Document
50.Injury to personDuty to procure medical attention, 25 C.J.S. Damages 50
Damages
A. In General
50. Injury to personDuty to procure medical attention
An injured person should procure, and submit to, reasonable medical attention if the nature of his or
her injury reasonably requires it, but he or she is not required to submit to unduly painful treatment, or
treatment that involves substantial hazard of death or injury, or that offers only a possibility of cure.
Under the rule relating to mitigation of damages, it is the duty of a person injured to procure medical attention and
submit to reasonable treatment if the nature of the injury is such as reasonably to require it, 1 but he or she is not
required to submit to unduly painful treatment, or treatment that involves substantial hazard of death or injury,
or that offers only a possibility of cure. 2
The submission to treatment is not a condition precedent to the recovery of damages, 3 but recovery may not be
had for increased damages resulting from the failure to obtain required medical attention, 4 and the person injured
is entitled to recover only such damages as he would have sustained had he or she not failed to obtain the required
medical attention. 5 Computation of damages for pain and suffering is restricted to the period from the date of
injury to the time of the refusal or failure to continue medical treatment that had relieved it. 6
On the other hand, the fact that medical aid and attention were not procured, or were not procured immediately,
will not defeat a recovery where the circumstances were not such as reasonably to indicate their necessity. 7 The
wrongdoer is liable for all the actual consequences of the injury whether the method of treatment adopted by the
injured person was or was not the best possible one. 8
Duty to follow advice of physician.

Generally, an injured person is under no absolute obligation to follow the advice of his or her physician in order to
minimize his or her damages. 9 However, under the circumstances of the particular case, he or she may be under a
duty to do so, 10 his or her duty in this respect being to use ordinary care in the matter of following such advice. 11
Duty to undergo surgical operation.

Where one has been hurt by the wrong of another, he or she is not bound, as a matter of law, to undergo a serious
and critical surgical operation where the benefit to be derived from the operation is problematical 12 and where
the operation would necessarily be attended by some risk of failure 13 or accompanied by a possibility of death. 14
The failure to undergo such an operation does not diminish the damages or reduce the recovery to merely nominal
damages. 15 This rule, however, does not apply to a simple surgical operation that an ordinarily prudent person
would undergo. 16
Duty to undergo blood transfusion.

There is authority that an accident victim's refusal to undergo a blood transfusion on religious grounds limits his
or her recovery of damages to those he or she would have sustained had he or she had such transfusion since
although a person has a First Amendment right to hold religious beliefs and to live by them, it does not mean
that someone who commits a tort against that individual must suffer the consequences of decisions made based
on those religious beliefs. 17
Footnotes
Minn.Adee v. Evanson, 281 N.W.2d 177 (Minn. 1979).
1
Mo.Stipp v. Tsutomi Karasawa, 318 S.W.2d 172 (Mo. 1958).
Va.Sawyer v. Comerci, 264 Va. 68, 563 S.E.2d 748 (2002).
Duty where employer fails to provide treatment

Where an employer withholds from the wages of his or her employees a certain amount to treat injured and sick
employees, it is the duty of an injured employee, if refused medical aid by the employer, to secure same elsewhere and
hold his or her employer liable for the cost thereof.
Mont.Borgeas v. Oregon Short Line R. Co., 73 Mont. 407, 236 P. 1069 (1925).
Neb.Colton v. Benes, 176 Neb. 483, 126 N.W.2d 652 (1964).
Determination of reasonableness
Pain involved in the treatment may be considered in determining whether plaintiff acted as a reasonable person in
failing to submit to medical or surgical treatment designed to minimize damages.
Del.Meding v. Robinson, 52 Del. 299, 157 A.2d 254 (Super. Ct. 1959), judgment aff'd, 52 Del. 578, 163 A.2d 272,
82 A.L.R.2d 1176 (1960).
U.S.Savino v. C.P. Hall Co., 199 F.3d 925 (7th Cir. 1999).
La.Livaccari v. United Jewish Appeal, Inc., 126 So. 2d 67 (La. Ct. App. 4th Cir. 1961).
Resistance to treatment as part of injuries
A tort victim's failure to obtain treatment for his post-traumatic stress disorder, although the disorder could allegedly
have been cured with three to six months of counseling, did not preclude him from recovering for his injuries where
the victim's resistance to treatment was part of his emotional injuries.
Pa.Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 611 A.2d 1174 (1992).
IowaShewry v. Heuer, 255 Iowa 147, 121 N.W.2d 529 (1963).
6
7
8
9
10
11
12
13
14
15
16
17
La.Andrus v. Security Ins. Co. of New Haven, 161 So. 2d 113 (La. Ct. App. 3d Cir. 1964), writ denied, 246 La.
81, 163 So. 2d 358 (1964).
Del.Meding v. Robinson, 52 Del. 299, 157 A.2d 254 (Super. Ct. 1959), judgment aff'd, 52 Del. 578, 163 A.2d 272,
82 A.L.R.2d 1176 (1960).
Cal.Christiansen v. Hollings, 44 Cal. App. 2d 332, 112 P.2d 723 (1st Dist. 1941).
La.Levy v. White, 5 So. 2d 28 (La. Ct. App., Orleans 1941).
Home remedies
(1) Where one has suffered an injury because of the negligence of another, the fact that such injured person did not
consult a physician at once but cared for the wounds himself or herself, does not bar a recovery from such negligent
person.
OhioDevou v. Searles, 12 Ohio App. 329, 1920 WL 704 (1st Dist. Hamilton County 1920).
(2) The failure to secure medical attention for a long period after an injury did not prevent recovery for negligence
where plaintiff adopted the treatment that physicians would have advised.
Cal.Allred v. Orth, 206 Cal. 494, 274 P. 955 (1929).
U.S.Bowers v. Pennsylvania R Co, 182 F. Supp. 756 (D. Del. 1960), judgment aff'd, 281 F.2d 953 (3d Cir. 1960).
Colo.Intermill v. Heumesser, 154 Colo. 496, 391 P.2d 684 (1964).
Wis.Collova v. Mutual Service Cas. Ins. Co. of St. Paul, Minn., 8 Wis. 2d 535, 99 N.W.2d 740 (1959).
Cal.Dodds v. Stellar, 77 Cal. App. 2d 411, 175 P.2d 607 (2d Dist. 1946).
Mass.Baglio v. New York Cent. R. Co., 344 Mass. 14, 180 N.E.2d 798 (1962).
Wis.Powers v. Allstate Ins. Co., 10 Wis. 2d 78, 102 N.W.2d 393 (1960).
Ill.Howard v. Gulf, M. & O.R. Co., 13 Ill. App. 2d 482, 142 N.E.2d 825 (4th Dist. 1957).
Ill.Montgomery v. Terminal R. R. Ass'n of St. Louis, 73 Ill. App. 3d 650, 29 Ill. Dec. 520, 392 N.E.2d 77 (5th
Dist. 1979).
Nev.Automatic Merchandisers, Inc. v. Ward, 98 Nev. 282, 646 P.2d 553 (1982).
U.S.Hayes v. U.S., 367 F.2d 340 (2d Cir. 1966).
Or.Zimmerman v. Ausland, 266 Or. 427, 513 P.2d 1167, 62 A.L.R.3d 1 (1973).
U.S.Munn v. Southern Health Plan, Inc., 719 F. Supp. 525 (N.D. Miss. 1989).
End of Document
Research References, 24 C.J.S. Damages IV B Refs.
24 C.J.S. Damages IV B Refs.

Damages
B. Particular Elements of Compensation
Research References
A.L.R. Library
A.L.R. Index, Future Damages
A.L.R. Index, Hedonic Damages
West's A.L.R. Digest, Damages 30 to 46, 57.1 to 57.60, 66.1 to 69, 70.1 to 73
End of Document
Damages
1. Pecuniary Losses
a. In General
51. Generally
West's Key Number Digest, Damages 30, 35, 36
In general, one injured by another's wrong is entitled to compensation for all pecuniary losses sustained.
One injured by the wrong of another is generally entitled to compensation for all pecuniary losses 1 i.e.,
economic damages 2 sustained, 3 including, for example, injury to the plaintiff's business, 4 loss of business
credit, 5 loss of rental income, 6 or even injury to the development of rare and special talents. 7
The common law traditionally did not compensate purely economic harms, unaccompanied by injury to person
or property, but the courts have occasionally created exceptions to this rule. 8
Footnotes
Ky.Schulz v. Chadwell, 558 S.W.2d 183 (Ky. Ct. App. 1977).
1
2
3
4
5
6
Or.Borton v. Medicine Rock Land Co., 275 Or. 59, 549 P.2d 1122 (1976).
Mo.State ex rel. BP Products North America Inc. v. Ross, 163 S.W.3d 922 (Mo. 2005).
Or.Borton v. Medicine Rock Land Co., 275 Or. 59, 549 P.2d 1122 (1976).
Cal.Ross v. Frank W. Dunne Co., 119 Cal. App. 2d 690, 260 P.2d 104 (3d Dist. 1953).
Loss of business opportunity
Mass.Air Technology Corp. v. General Elec. Co., 347 Mass. 613, 199 N.E.2d 538 (1964).
Cal.Placentia Co-op. Orange Growers' Ass'n v. Henning, 118 Cal. App. 487, 5 P.2d 444 (4th Dist. 1931).
Ky.Tri-State Developers, Inc. v. Moore, 343 S.W.2d 812 (Ky. 1961).
Tex.Publix Theatres Corporation v. Powell, 44 S.W.2d 1053 (Tex. Civ. App. Texarkana 1931), writ granted, (May
16, 1932) and rev'd on other grounds, 123 Tex. 304, 71 S.W.2d 237 (Comm'n App. 1934).
Loss of use of property, see 78, 81.
Opera singer
N.Y.Grayson v. Irvmar Realty Corp., 7 A.D.2d 436, 184 N.Y.S.2d 33 (1st Dep't 1959).
U.S.Exxon Shipping Co. v. Baker, 554 U.S. 471, 128 S. Ct. 2605, 171 L. Ed. 2d 570 (2008).
End of Document
52.Lost time and earnings, 25 C.J.S. Damages 52
Damages
1. Pecuniary Losses
a. In General
52. Lost time and earnings
As a general rule, loss of earnings, wages, or salary is an element of damages that should be considered,
provided that such earnings are not of a speculative or conjectural nature, and that they are proved with
reasonable certainty, though there is also authority that lost wages are not recoverable as such.
The pecuniary injury of time lost by the plaintiff in consequence of an injury is commonly regarded as a proper
element of recovery 1 even though the plaintiff was not working for a fixed salary or certain wages at the time
of injury. 2 However, loss of time, per se, is not compensable unless it is directly connected with some loss of
advantages, benefits, or revenues that might have been produced by the profitable use and employment of such
time. 3
While there is some authority that lost wages are not recoverable as such, 4 and that in cases where it is permitted
to prove the amount of wages lost, such evidence is admissible as a measure of the value of the plaintiff's time of
which he or she has been deprived. 5 As a general rule, loss of earnings, wages, or salary is treated as an element
of damages that should be considered 6 provided that such earnings are not of a speculative or conjectural nature 7
and that they are proved with reasonable certainty. 8 Recovery of this nature is generally limited to earnings that
are the result of personal effort. 9
The element of loss of time properly includes only such loss as has accrued up to the time of trial, and a subsequent
loss of time is to be included in a recovery for decreased earning capacity. 10 Hence, a recovery both for loss of
time and for impairment of earning capacity is not a double recovery, 11 but recovery may not be had for both
loss of earnings and diminished earning capacity covering the same period of time. 12 An award of damages to
compensate for lost wages before trial is sometimes referred to as an award of "back pay." 13
There can be no recovery for loss of time 14 or of wages 15 not occasioned by the injury, or for both loss of
time and loss of wages, 16 or for injury to business and for loss of time that would have been devoted to such
business. 17 Neither can a plaintiff recover for loss of time and capacity to labor or what he or she has had to pay
another to supply such loss of labor. 18 Furthermore, earnings in an unlawful employment or occupation cannot
be made the basis of a recovery. 19
Payment during period of disability.

While there is authority that where wages have been paid as before the injury during the period of disability, the
right to recover for time or wages lost should be denied on the ground that the plaintiff has suffered no loss, 20
there is also authority that a third person cannot take advantage of the fact of such payment. 21
Plaintiff not employed at time of injury.

While there is authority that the fact that the plaintiff was not employed at the time of the injury and was not
earning anything at such time will not preclude a recovery, 22 there is also authority that where the plaintiff is
not employed at the time of his or her injuries, and loses no wages from regular employment, his or her claim for
loss of wages is too speculative and remote. 23
Footnotes
U.S.Copeland v. Smith Dairy Products Co., 288 F. Supp. 904, 15 Ohio Misc. 43, 44 Ohio Op. 2d 242 (N.D. Ohio
1
1968).
Colo.Franklin v. Templeton, 163 Colo. 48, 428 P.2d 361 (1967).
Measure of compensation for loss of time and earnings, see 156, 157.
2
3
4
5
Item included in general damages

Cal.Wilcox v. Sway, 69 Cal. App. 2d 560, 160 P.2d 154 (2d Dist. 1945).
La.Legrone v. New Orleans Public Service, Inc., 415 So. 2d 997 (La. Ct. App. 4th Cir. 1982).
Minn.Josephson v. Fremont Industries, Inc., 282 Minn. 51, 163 N.W.2d 297 (1968).
La.Davis v. Midwest Dairy Products Corp., 58 So. 2d 741 (La. Ct. App. 2d Cir. 1952).
Mass.Mitchell v. Walton Lunch Co., 305 Mass. 76, 25 N.E.2d 151 (1939).
Mass.Chelsea Moving & Trucking Co. v. Ross Towboat Co., 280 Mass. 282, 182 N.E. 477 (1932).
Mo.Hicks v. Shanabarger, 241 Mo. App. 476, 236 S.W.2d 49 (1951).
U.S.Fitzgerald v. U.S. Lines Co., 374 U.S. 16, 83 S. Ct. 1646, 10 L. Ed. 2d 720, 7 Fed. R. Serv. 2d 774 (1963); Reed
v. Union Pacific R. Co., 185 F.3d 712 (7th Cir. 1999).
Ill.LaFever v. Kemlite Co., a Div. of Dyrotech Industries, Inc., 185 Ill. 2d 380, 235 Ill. Dec. 886, 706 N.E.2d 441
(1998).
Inability to perform usual work
Wis.Girtz v. Oman, 21 Wis. 2d 504, 124 N.W.2d 586 (1963).
Overtime work declined because of physical condition
Tex.Mikell v. La Beth, 344 S.W.2d 702 (Tex. Civ. App. Houston 1961), writ refused n.r.e., (June 21, 1961).
Personal injury or property damage must be established
Psychological pain and suffering and physical illness not required

Tex.Western Guaranty Loan Co. v. Dean, 309 S.W.2d 857 (Tex. Civ. App. Dallas 1957), writ refused n.r.e.
As measure of damages, not basis for independent cause of action

N.Y.Burton v. Matteliano, 81 A.D.3d 1272, 916 N.Y.S.2d 438 (4th Dep't 2011), leave to appeal denied, 17 N.Y.3d
703, 929 N.Y.S.2d 93, 952 N.E.2d 1088 (2011).
U.S.Evans v. Atlantic Refining Co., 150 F. Supp. 606 (E.D. La. 1957), judgment aff'd, 251 F.2d 277 (5th Cir. 1958).
Performance of duties under contract not begun
N.Y.Brown v. Babcock, 265 A.D. 596, 40 N.Y.S.2d 428 (4th Dep't 1943).
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
Positive proof that wages would have been earned

La.Starr v. State ex rel. Dept. of Transp. and Development, 70 So. 3d 128 (La. Ct. App. 2d Cir. 2011), writ denied,
73 So. 3d 386 (La. 2011) and writ denied, 73 So. 3d 387 (La. 2011) and writ denied, 73 So. 3d 388 (La. 2011).
U.S.Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927 (5th Cir. 1996).
Ga.Dossie v. Sherwood, 308 Ga. App. 185, 707 S.E.2d 131 (2011).
Ala.Wilson & Co. v. Sims, 250 Ala. 414, 34 So. 2d 689 (1948).
Mo.Seymour v. House, 305 S.W.2d 1 (Mo. 1957).
N.C.Dickson v. Queen City Coach Co., 233 N.C. 167, 63 S.E.2d 297 (1951).
Loss or decrease of earning capacity, generally, see 55, 56.
Kan.Dyer v. Keith, 136 Kan. 216, 14 P.2d 644 (1932).
Or.Fields v. Fields, 213 Or. 522, 326 P.2d 451 (1958) (overruled on other grounds by, Conachan v. Williams, 266
Or. 45, 511 P.2d 392 (1973)).
U.S.McCoy v. Department of Army, 789 F. Supp. 2d 1221 (E.D. Cal. 2011); Dollar v. Smithway Motor Xpress,
Inc., 787 F. Supp. 2d 896 (N.D. Iowa 2011).
Cal.Vaden v. Holmes, 39 Cal. App. 2d 580, 103 P.2d 1002 (1st Dist. 1940).
Mo.Hall v. St. Louis Public Service Co., 266 S.W.2d 597 (Mo. 1954).
Tex.Gulf, C. & S.F. Ry. Co. v. Wilson, 79 Tex. 371, 15 S.W. 280 (1891).
Tex.Texas Power & Light Co. v. Roberts, 187 S.W. 225 (Tex. Civ. App. Austin 1916).
Action by individual partner
La.Malloy v. Southern Cities Distributing Co., 142 So. 718 (La. Ct. App. 2d Cir. 1932).
Kan.Chicago, R. I. & P. Ry. Co. v. Sheldon, 6 Kan. App. 347, 51 P. 808 (1897).
Substitute help
U.S.Chavez v. U.S., 192 F. Supp. 263 (D. Mont. 1961).
IowaJurgens v. Davenport, R.I. & N. Ry. Co., 249 Iowa 711, 88 N.W.2d 797 (1958).
La.Soldano v. New York Life Ins. Co., 196 So. 521 (La. Ct. App., Orleans 1940).
U.S.Leon v. U.S., 193 F. Supp. 8 (E.D. N.Y. 1961).
La.Fort v. Northern Ins. Co. of N. Y., 111 So. 2d 874 (La. Ct. App. 2d Cir. 1959).
U.S.Phillips v. U.S., 182 F. Supp. 312 (E.D. Va. 1960).
Fla.Greyhound Corp. v. Ford, 157 So. 2d 427 (Fla. Dist. Ct. App. 2d Dist. 1963).
Ala.Southern Ry. Co. v. Smith, 268 Ala. 235, 105 So. 2d 705 (1958).
Colo.Nemer v. Anderson, 151 Colo. 411, 378 P.2d 841 (1963).
Tex.Missouri, K. & T. Ry. Co. of Texas v. Flood, 35 Tex. Civ. App. 197, 79 S.W. 1106 (1904), writ refused.
No employment history
Offer of possible employment speculative
R.I.Jackson v. Choquette & Co., Inc., 78 R.I. 164, 80 A.2d 172 (1951).
End of Document
53.Lost time and earningsFuture earnings, 25 C.J.S. Damages 53
Damages
1. Pecuniary Losses
a. In General
53. Lost time and earningsFuture earnings
If shown with reasonable certainty and not merely speculative in character, future earnings, or probable
loss of earnings in the future, are recoverable.
In awarding damages for personal injuries, future earnings, or probable loss of earnings in the future, may be
recovered 1 if shown with reasonable certainty and not merely speculative in character. 2 An award of damages
to compensate for lost wages after trial is sometimes referred to as an award of "front pay." 3
Permanent injuries are not prerequisite to an award for loss of future earnings, 4 but future loss of earnings is a
proper item for consideration in making an award for a permanent disability, 5 and the incurring by the plaintiff
of a permanent injury as the direct result of the defendant's negligence is sufficient to recover for the loss of future
earnings. 6
The receipt of the same or greater wages after an accident does not negate or control an award for loss of future
earnings. 7
Footnotes
Ariz.Felder v. Physiotherapy Associates, 215 Ariz. 154, 158 P.3d 877 (Ct. App. Div. 1 2007).
1
2
3
4
5
6
La.Johnson v. St. Romain, 74 So. 3d 836 (La. Ct. App. 3d Cir.2011).

N.Y.Janda v. Michael Rienzi Trust, 78 A.D.3d 899, 912 N.Y.S.2d 237 (2d Dep't 2010).
U.S.Imperial Oil, Limited v. Drlik, 234 F.2d 4 (6th Cir. 1956).
U.S.McCoy v. Department of Army, 789 F. Supp. 2d 1221 (E.D. Cal. 2011); Dollar v. Smithway Motor Xpress,
Inc., 787 F. Supp. 2d 896 (N.D. Iowa 2011).
Mo.Gooch v. Lake, 327 S.W.2d 132 (Mo. 1959).
U.S.U.S. v. Horsfall, 270 F.2d 107 (10th Cir. 1959).
Mo.Belisle v. Wilson, 313 S.W.2d 11 (Mo. 1958).
53.Lost time and earningsFuture earnings, 25 C.J.S. Damages 53
U.S.Elliott v. U.S. Steel Corp., 194 F. Supp. 936 (W.D. Pa. 1961), judgment aff'd, 303 F.2d 444 (3d Cir. 1962).
End of Document
54.Loss of third person's services, 25 C.J.S. Damages 54
Damages
1. Pecuniary Losses
a. In General
54. Loss of third person's services
Loss of services of a third person to which the plaintiff is entitled may be a proper element of damage.
Loss of the services of a third person, to which the plaintiff is entitled, is a proper element of damage when it is
due to the defendant's wrong, 1 and the amount is susceptible of ascertainment with reasonable certainty. 2
Gratuitous assistance of relatives and friends.

A personal injury plaintiff is not entitled to a damage award for a loss of household services where the plaintiff did
not incur any actual expenditures on household services between the accident and the date of the verdict, having
relied on the gratuitous assistance of relatives and friends. 3
Future damages.
An award of future damages for a loss of household services should be awarded only for those services that are
reasonably certain to be incurred and necessitated by the plaintiff's injuries. 4
Footnotes
Fla.Janes v. Baptist Hospital of Miami, Inc., 349 So. 2d 672 (Fla. Dist. Ct. App. 3d Dist. 1977).
1
2
3
Loss of household services considered quantitative economic loss

N.Y.Presler v. Compson Tennis Club Associates, 27 A.D.3d 1096, 815 N.Y.S.2d 367 (4th Dep't 2006).
Neb.Glandt v. Ricceri, 123 Neb. 126, 242 N.W. 363 (1932).
Wash.Torgeson v. Hanford, 79 Wash. 56, 139 P. 648 (1914).
N.Y.Schultz v. Harrison Radiator Div. General Motors Corp., 90 N.Y.2d 311, 660 N.Y.S.2d 685, 683 N.E.2d 307
(1997).
Recovery by one spouse for the loss of services of the other spouse, see C.J.S., Husband and Wife 230.
54.Loss of third person's services, 25 C.J.S. Damages 54
Recovery by a parent for the loss of services of a child, see C.J.S., Parent and Child 344.
N.Y.Presler v. Compson Tennis Club Associates, 27 A.D.3d 1096, 815 N.Y.S.2d 367 (4th Dep't 2006).
End of Document
55.Loss of earning capacity, 25 C.J.S. Damages 55
Damages
1. Pecuniary Losses
a. In General
55. Loss of earning capacity
A loss or impairment of earning capacity may be a proper element of damages.
When proved with reasonable certainty, 1 a loss, decrease, or impairment of earning capacity or power, consequent
to an injury to the person, is a proper element of damages or compensation. 2 A distinction is made between a
loss of earnings and impairment of earning capacity in that the former relates to the loss of wages that might have
been earned had the plaintiff not been injured while the latter relates to the diminution of earning capacity. 3
A recovery for future loss of earning capacity must be limited to such loss as is reasonably certain to occur, or
is reasonably probable, 4 and proximately results from the injury. 5 Thus, there can be no recovery for a mere
inability to find work after the injury as distinguished from an inability occasioned by the plaintiff's incapacitation
from labor because of the injury. 6 However, the injury need not have resulted in an immediate, or actual,
diminution of earnings, or income, 7 as where the person injured was performing services without compensation 8
or was not receiving wages as such. 9 The essence of the injury is a diminution in the plaintiff's ability to earn a
living, including a decreased ability to weather adverse economic circumstances, such as a discharge or layoff, or
to voluntarily leave his or her employer for other employment. 10
While there is authority that the impairment of earning capacity is the permanent diminution of the ability to earn
money, 11 there is also authority that a loss of earning capacity, to be compensable, need not be permanent. 12
However, where allowed, the right to recover for a temporary impairment ceases when a complete cure is
effected. 13
A postaccident injury that completely disables an already partially disabled plaintiff does not preclude his or her
recovery from the first tortfeasor for already foreclosed future earnings. 14
Person without employment.

A person is not deprived of the right to recover damages for loss of earning capacity, or because of inability to
labor or transact business in the future, by the fact that at the time of the injury, he or she is not engaged in any
particular employment, 15 or has permanently retired from business, 16 or was too immature in years to have
acquired an earning capacity. 17 The fact that the plaintiff attends merely to household duties will not deprive him
or her of a right to recover for a loss of earning capacity. 18
Effect of working after injury.

The plaintiff is not precluded from recovery for impairment of his or her earning power by reason of injuries
sustained by him or her because he or she returned to work after the injury and worked up until the time of the
trial. 19
Footnotes
U.S.Evans v. Atlantic Refining Co., 150 F. Supp. 606 (E.D. La. 1957), judgment aff'd, 251 F.2d 277 (5th Cir. 1958).
1
2
Mass.Williamson v. Feinstein, 311 Mass. 322, 41 N.E.2d 185 (1942).

(1998).
Self-employed person entitled to recover
Conn.Moiger v. Connecticut Ice Cream Co., 146 Conn. 551, 152 A.2d 925 (1959).
"Earning capacity" defined
"Earning capacity" does not necessarily mean actual earnings; it refers to that which, by virtue of the training, the
experience, and the business acumen possessed, an individual is capable of earning.
Tex.Texas Electric Ry. v. Worthy, 250 S.W. 710 (Tex. Civ. App. Dallas 1923), writ dismissed w.o.j., (May 30, 1923).
3
4
5
6
7
8
9
10
11
12
Test of impairment
Where a permanent injury is involved, the test of impairment of earning power is whether the disabled person's
economic horizon has been shortened because of the injuries sustained as a result of the tortfeasor's negligence.
U.S.Yates v. Dann, 167 F. Supp. 174, 1 Fed. R. Serv. 2d 569 (D. Del. 1958).
Wash.Murray v. Mossman, 52 Wash. 2d 885, 329 P.2d 1089 (1958).
W.Va.Bailey v. DeBoyd, 135 W. Va. 730, 65 S.E.2d 82 (1951).
Wash.Shanks v. Oregon-Washington R. & Nav. Co., 98 Wash. 509, 167 P. 1074 (1917).
Ill.Weber Wagon Co. v. Kehl, 139 Ill. 644, 29 N.E. 714 (1892).
U.S.Wiles v. New York, C. & St. L.R. Co., 283 F.2d 328 (3d Cir. 1960).
Increase in earnings
U.S.U.S. v. Jacobs, 308 F.2d 906 (5th Cir. 1962).
Conn.Dowling v. Hebert, 146 Conn. 516, 152 A.2d 642 (1959).
Conn.Lashin v. Corcoran, 146 Conn. 512, 152 A.2d 639 (1959).
U.S.Wilburn v. Maritrans GP Inc., 139 F.3d 350, 48 Fed. R. Evid. Serv. 1415 (3d Cir. 1998).
Wash.Murray v. Mossman, 52 Wash. 2d 885, 329 P.2d 1089 (1958).
Permanent or total
Ga.Jones v. O'Day, 303 Ga. App. 159, 692 S.E.2d 774 (2010).
Miss.Walters v. Gilbert, 248 Miss. 77, 158 So. 2d 43 (1963).
13
14
15
16
17
18
19
Mo.Gooch v. Lake, 327 S.W.2d 132 (Mo. 1959).

Ky.Augustus v. Goodrum, 224 Ky. 558, 6 S.W.2d 703 (1928).
N.Y.Spose v. Ragu Foods, Inc., 142 Misc. 2d 366, 537 N.Y.S.2d 739 (Sup 1989).
S.C.Doremus v. Atlantic Coast Line R. Co., 242 S.C. 123, 130 S.E.2d 370 (1963).
U.S.Gray v. Dieckmann, 109 F.2d 382 (C.C.A. 1st Cir. 1940).
Tex.El Paso Electric Ry. Co. v. Murphy, 49 Tex. Civ. App. 586, 109 S.W. 489 (1908), writ refused.
Okla.City of Miami v. Finley, 1925 OK 770, 112 Okla. 97, 240 P. 317 (1925).
Pa.Fedorawicz v. Citizens' Electric Illuminating Co., 246 Pa. 141, 92 A. 124 (1914).
Cal.McCormack v. City and County of San Francisco, 193 Cal. App. 2d 96, 14 Cal. Rptr. 79 (1st Dist. 1961).
Mo.Collier v. Simms, 366 S.W.2d 499 (Mo. Ct. App. 1963).
Fact of working as mere evidence
Ala.Louisville & N.R. Co. v. Steel, 257 Ala. 474, 59 So. 2d 664 (1952).
End of Document
56.Loss of earning capacityRelationship to other forms..., 25 C.J.S. Damages 56
Damages
1. Pecuniary Losses
a. In General
56. Loss of earning capacityRelationship to other forms of loss
Loss of earning capacity is distinct from certain other related forms of loss, such as physical impairment.
While diminished capacity to work and earn money may, and ordinarily does, result from physical impairment,
physical impairment does not necessarily result in diminished capacity to work and earn money, and it depends
on the nature of the impairment and the nature of the work. 1
Disability to pursue vocation.

One who has been incapacitated by an injury from pursuing his or her usual calling may recover damages for
such disability 2 even though by reason of his or her injury, he or she is compelled to engage in other pursuits that
ultimately prove more remunerative. 3 The loss of earning capacity is regarded as an element of damage distinct
from disability to pursue a usual vocation, and a recovery may be had for both. 4 Thus, it is not essential to show
a loss of earning capacity in the plaintiff's particular business or profession but only to show a diminished earning
capacity generally, that is, in any business or profession. 5
Loss of capacity to labor.

There is authority that a loss of capacity or ability to labor occasioned by physical injury is a species of pain and
suffering, 6 and a proper element of compensation, 7 and that an award therefor is to be distinguished from an
award of actual damages as compensation for loss or impairment of earning capacity 8 and may be sustained even
though there is no evidence as to the pecuniary value of the lessened capacity to labor. 9 However, there is also
authority that future damages arising from a future inability to work and earn means a loss of earning power. 10 A
person is not deprived of the right to recover damages because of an inability to labor in the future because prior
to the injury, he or she may or may not have been inclined to labor. 11
56.Loss of earning capacityRelationship to other forms..., 25 C.J.S. Damages 56
Footnotes
Tex.Riley v. Norman, 275 S.W.2d 208 (Tex. Civ. App. El Paso 1954), writ refused n.r.e., (Apr. 27, 1955).
1
2
3
4
5
6
9
10
11
Chosen and intended occupation

Md.McAlister v. Carl, 233 Md. 446, 197 A.2d 140, 15 A.L.R.3d 496 (1964).
Mich.Ostrander v. City of Lansing, 115 Mich. 224, 73 N.W. 110 (1897).
Tex.Southwestern Freight Lines v. McConnell, 254 S.W.2d 422 (Tex. Civ. App. El Paso 1952), writ refused.
Ga.Lail v. Wright, 108 Ga. App. 223, 132 S.E.2d 519 (1963), judgment rev'd on other grounds, 219 Ga. 607, 135
S.E.2d 418 (1964).
Or.Alt v. Krebs, 161 Or. 256, 88 P.2d 804 (1939).
U.S.Arthur v. Archbell, 235 F. Supp. 123 (E.D. N.C. 1964).
Ga.Lail v. Wright, 108 Ga. App. 223, 132 S.E.2d 519 (1963), judgment rev'd on other grounds, 219 Ga. 607, 135
S.E.2d 418 (1964).
Not dependent on pecuniary loss
Ga.Jones v. Hutchins, 101 Ga. App. 141, 113 S.E.2d 475 (1960).
Tex.Texas & P. Ry. Co. v. Perkins, 284 S.W. 683 (Tex. Civ. App. Waco 1926), writ dismissed w.o.j., (Oct. 20, 1926).
Recovery for both
Ga.Hunt v. Williams, 104 Ga. App. 442, 122 S.E.2d 149 (1961).
Ga.Langran v. Hodges, 60 Ga. App. 567, 4 S.E.2d 489 (1939).
Tex.Texas & P. Ry. Co. v. Perkins, 284 S.W. 683 (Tex. Civ. App. Waco 1926), writ dismissed w.o.j., (Oct. 20, 1926).
Pa.Sherin v. Dushac, 404 Pa. 496, 172 A.2d 577 (1961).
Ga.American Fidelity & Cas. Co. v. Farmer, 77 Ga. App. 187, 48 S.E.2d 137 (1948).
End of Document
Damages
1. Pecuniary Losses
b. Loss of Profits
57. Generally
West's Key Number Digest, Damages 40(1)
There may be a recovery for loss of profits shown to be the natural and probable consequence of the act or
omission complained of provided that the amount thereof is shown with sufficient certainty.
"Lost profits" may be in the form of direct damages, that is, profits lost on the contract itself, or in the form of
consequential damages, such as profits lost on other contracts or relationships resulting from the breach. 1
The right to recover profits is generally determined by the same rules as govern the recovery of other damages. 2
Where it is shown that a loss of profits is the natural and probable consequence of the act or omission complained
of, and their amount is shown with reasonable or sufficient certainty, there may be a recovery therefor. 3 However,
a recovery is denied where the profits are speculative, contingent, conjectural, remote, or uncertain. 4
The rule as to certainty of the required showing does not apply to uncertainty as to the amount of the profits that
would have been derived but to uncertainties or speculation as to whether the loss of profits was the result of
the wrong and whether any such profits would have been derived at all. 5 There is no hard-and-fast rule with
respect to the recovery of lost profits, 6 and each case depends on its facts and circumstances. 7 Therefore, each
case must be examined to see whether, under its particular facts, the profits involved are capable of reasonable
ascertainment. 8 It is not necessary that profits should be susceptible of mathematical precision. 9 It is sufficient
that there is data from which they may be ascertained with a reasonable degree of certainty and exactness. 10
Anticipated profits cannot be recovered where they are dependent on uncertain and changing conditions, such as
market fluctuations, 11 or the chances or changes of business, 12 or where there is no evidence from which they
may be intelligently estimated. 13 However, although generally objectionable for the reason that their estimation
is conjectural and speculative, anticipated profits dependent on future events are allowed where their nature and
occurrence can be shown by evidence of reasonable reliability. 14
Cases:
The "new-business rule" prohibits a new, never before operational business from recovering anticipated profits,
as such damages are too remote, speculative, and uncertain to support a judgment for their loss. Arloe Designs,
LLC v. Arkansas Capital Corp., 2014 Ark. 21, 431 S.W.3d 277 (2014).
[END OF SUPPLEMENT]
Footnotes
Tex.Hoppenstein Properties, Inc. v. McLennan County Appraisal Dist., 341 S.W.3d 16 (Tex. App. Waco 2010),
1
review denied, (Apr. 29, 2011).
Loss of clients
Mo.Ameristar Jet Charter, Inc. v. Dodson Intern. Parts, Inc., 155 S.W.3d 50 (Mo. 2005).
2
3
4
A.L.R. Library
Consequential loss of profits from injury to property as element of damages in products liability, 89 A.L.R.4th 11.
N.Y.Goldstein v. 104 Second Ave. Realty Corp., 194 Misc. 1, 88 N.Y.S.2d 125 (City Ct. 1949).
U.S.Burkhart Grob Luft und Raumfahrt GmbH & Co. KG v. E-Systems, Inc., 257 F.3d 461 (5th Cir. 2001).
Kan.Bradley v. Aid Ins. Co., 6 Kan. App. 2d 367, 629 P.2d 720 (1981).
Tex.General Supply & Equipment Co., Inc. v. Phillips, 490 S.W.2d 913, 12 U.C.C. Rep. Serv. 35 (Tex. Civ. App.
Tyler 1972), writ refused n.r.e., (June 13, 1973).
Mere speculation
Miss.Cain v. Cain, 967 So. 2d 654 (Miss. Ct. App. 2007).
Mont.Delaney & Co. v. City of Bozeman, 2009 MT 441, 354 Mont. 181, 222 P.3d 618 (2009).
S.C.Vortex Sports & Entertainment, Inc. v. Ware, 378 S.C. 197, 662 S.E.2d 444 (Ct. App. 2008).
6
7
8
10
11
Uncertain whether any profits would have been made

U.S.Metropolitan Exp. Services, Inc. v. City of Kansas City, Mo., 71 F.3d 273 (8th Cir. 1995).
Ky.Roadway Exp., Inc. v. Don Stohlman & Associates, Inc., 436 S.W.2d 63 (Ky. 1968).
Uncertainty as to measure or extent of damages, generally, see 39.
Ga.Gary's Implement, Inc. v. Bridgeport Tractor Parts, Inc., 281 Neb. 281, 799 N.W.2d 249 (2011).
Tex.Pace Corp. v. Jackson, 275 S.W.2d 849 (Tex. Civ. App. Austin 1955), judgment aff'd, 155 Tex. 179, 284 S.W.2d
340 (1955).
Ga.Atlanta Gas Light Co. v. Newman, 88 Ga. App. 252, 76 S.E.2d 536 (1953).
Loss and extent thereof shown with reasonable certainty
Ga.Gary's Implement, Inc. v. Bridgeport Tractor Parts, Inc., 281 Neb. 281, 799 N.W.2d 249 (2011).
U.S.TAS Distributing Co., Inc. v. Cummins Engine Co., Inc., 491 F.3d 625 (7th Cir. 2007).
102 P.3d 257 (2004).
Ga.Building Materials Wholesale, Inc. v. Triad Drywall, LLC, 287 Ga. App. 772, 653 S.E.2d 115 (2007).
Ind.Indianapolis City Market Corp. v. MAV, Inc., 915 N.E.2d 1013 (Ind. Ct. App. 2009).
Tex.Humble Oil & Refining Co. v. Luckel, 171 S.W.2d 902 (Tex. Civ. App. Galveston 1943), writ refused w.o.m.,
(Oct. 6, 1943).
12
13
14
Mo.Gray v. Wabash Ry. Co., 220 Mo. App. 773, 277 S.W. 64 (1925).
(Oct. 6, 1943).
U.S.Boston & A. R. Co. v. O'Reilly, 158 U.S. 334, 15 S. Ct. 830, 39 L. Ed. 1006 (1895).
(Oct. 6, 1943).
Cal.Grupe v. Glick, 26 Cal. 2d 680, 160 P.2d 832 (1945).
End of Document
58.Interruption or destruction of business, 25 C.J.S. Damages 58
Damages
1. Pecuniary Losses
b. Loss of Profits
58. Interruption or destruction of business
Loss of profits from the destruction or interruption of an established business may be recovered if the
amount thereof is reasonably certain, but this rule does not apply to a new, contemplated, or illegal business.
As a general rule, the expected profits of a commercial business are too uncertain, speculative, and remote to
permit a recovery for their loss. 1 However, the rule is not an inflexible one, 2 and recovery may be had for the
loss of profits from the destruction or interruption of an established business, or injury thereto, or interference
therewith if the amount of actual loss is rendered reasonably certain by competent proof. 3 In all such cases, it
must be made to appear that the business that is claimed to have been interrupted was an established one and
that it had been successfully conducted for such a length of time and had such a trade established that the profits
thereof are reasonably ascertainable. 4
New or contemplated business.

In the case of a new business, there generally does not exist a reasonable basis of experience upon which to
estimate lost profits with the requisite degree of reasonable certainty in a breach-of-contract action; 5 however,
there is no per se rule barring new enterprises from recovering lost profits so long as lost profits may be established
with reasonable certainty. 6 Thus, lost profits will not be denied merely because a business is new if factual data is
available to furnish a basis for computation of probable loss of profits. 7 For a new business to establish lost profits
with certainty, it must show that the parties contemplated profits at the time when the contract was made, the lost
profits were the probable result of the breach of contract, and that the profits were not too remote or speculative. 8
Illegal business.
Loss of profits may not be considered as an element of damages where the business from which they would have
resulted was, or would have been, conducted in violation of the law. 9
58.Interruption or destruction of business, 25 C.J.S. Damages 58
Cases:
When a profitable business enterprise is rendered unable to earn profits for a time by the tort of another, it may
be entitled to recover its lost profits. French v. Dilleshaw, 313 Ga. App. 834, 723 S.E.2d 64 (2012).
[END OF SUPPLEMENT]
Footnotes
Fla.Devon Medical, Inc. v. Ryvmed Medical, Inc., 60 So. 3d 1125 (Fla. Dist. Ct. App. 4th Dist. 2011), review denied,
1
2011 WL 6046244 (Fla. 2011).
Wyo.Wyoming Bancorporation v. Bonham, 563 P.2d 1382 (Wyo. 1977).
2
3
6
7
8
9
Too dependent upon changing circumstances

Fla.Levitt-ANSCA Towne Park Partnership v. Smith & Co., Inc., 873 So. 2d 392 (Fla. Dist. Ct. App. 4th Dist. 2004).
Mo.Rissler v. Heinzler, 316 S.W.3d 533 (Mo. Ct. App. W.D. 2010).
2011 WL 6046244 (Fla. 2011).
Ariz.L. H. Bell & Associates, Inc. v. Granger, 112 Ariz. 440, 543 P.2d 428 (1975).
Wash.Berg v. General Motors Corp., 87 Wash. 2d 584, 555 P.2d 818 (1976).
Proof required
To warrant such a recovery, proof must consist of actual facts from which a reasonably accurate conclusion with respect
to the cause and amount of the loss can be logically and rationally drawn.
U.S.Fireside Marshmallow Co. v. Frank Quinlan Const. Co., 213 F.2d 16 (8th Cir. 1954).
U.S.Norris v. Bovina Feeders, Inc., 492 F.2d 502 (5th Cir. 1974).
Ill.Rhodes v. Sigler, 44 Ill. App. 3d 375, 2 Ill. Dec. 626, 357 N.E.2d 846 (3d Dist. 1976).
Exact determination not required
Colo.City and County of Denver v. Bowen, 67 Colo. 315, 184 P. 357 (1919).
N.Y.Blinds to Go (U.S.), Inc. v. Times Plaza Development, L.P., 88 A.D.3d 838, 931 N.Y.S.2d 105 (2d Dep't 2011).
Lost profits from new business generally too speculative
U.S.Vienna Metro LLC v. Pulte Home Corp., 786 F. Supp. 2d 1076 (E.D. Va. 2011).
Wash.Columbia Park Golf Course, Inc. v. City of Kennewick, 160 Wash. App. 66, 248 P.3d 1067 (Div. 3 2011).
Cal.Linder v. Cooley, 216 Cal. App. 2d 390, 31 Cal. Rptr. 271 (5th Dist. 1963).
OhioAGF, Inc. v. Great Lakes Heat Treating Co., 51 Ohio St. 3d 177, 555 N.E.2d 634, 11 U.C.C. Rep. Serv. 2d
859 (1990).
859 (1990).
IowaJurgens v. Davenport, R.I. & N. Ry. Co., 249 Iowa 711, 88 N.W.2d 797 (1958).
End of Document
Damages
1. Pecuniary Losses
b. Loss of Profits
On the breach of a contract, the party not in default may generally recover the profits that would have
resulted to him or her from the contract's performance provided that the loss is not speculative or
conjectural, is ascertainable with reasonable certainty, naturally and proximately results from the breach,
and was within the contemplation of the parties when the contract was made.
Provided that certain conditions are met, consequential damages include such damages as lost profits that the
nondefaulting party would have earned after performance had the defaulting party performed; 1 in other words,
the party not in default is, in a case of a breach of contract due to the fault or omission of the other party, entitled
to recover profits that would have resulted to him or her from the contract's performance. 2
In order that it may be a recoverable element of damages, the loss of profits must not be speculative or
conjectural; 3 must be ascertainable with reasonable certainty; 4 must be the natural and proximate, or direct,
result of the breach complained of; 5 and must have been within the contemplation of the parties when the contract
was made. 6
Profits cannot be recovered as a distinct element where the plaintiff sues on a completed contract and recovers
the contract price, 7 nor can they be recovered where the defendant exercises a contractual right to suspend the
work contracted for. 8
Prevention of performance.
A party to a contract who is wrongfully prevented by the other party from performing may recover the profits that
he or she would have gained by performance. 9 The fact that such profits might have been prevented or reduced by
weather conditions does not render them so speculative that they may not be allowed, and this may be particularly
true when the contract period is passed when the suit is brought. 10
Collateral contracts.
The gains or profits of collateral enterprises or subcontracts are, as a rule, too speculative and contingent to afford
an element of recovery in the case of a breach of the primary contract. 11 Furthermore, they are ordinarily not
the natural and probable consequence of such breach. 12 Where, however, a collateral or subcontract is within the
knowledge and contemplation of the parties when the original contract is made, and is known to have been made
with reference thereto, the anticipated gains or profits may be recovered. 13
Cases:
Profits that property developer may have made under the prospective contracts contemplated by memorandum
of understanding (MOU) providing for development of 72,000 square foot condominium building on property
owned by church could not properly be awarded as damages, since MOU was merely a preliminary agreement by
which the parties planned to proceed with their initial efforts on the construction project. MG West 100 LLC v.
St. Michael's Protestant Episcopal Church, 127 A.D.3d 624, 2015 WL 1897072 (1st Dep't 2015).
[END OF SUPPLEMENT]
Footnotes
U.S.In re Ardent, Inc., 305 B.R. 133 (Bankr. D. D.C. 2003).
1
U.S.California Federal Bank, FSB v. U.S., 245 F.3d 1342 (Fed. Cir. 2001).
2
3
4
5
Mass.Situation Management Systems, Inc. v. Malouf, Inc., 430 Mass. 875, 724 N.E.2d 699 (2000).
60.
60.
U.S.Coghlan v. Wellcraft Marine Corp., 240 F.3d 449 (5th Cir. 2001).
Okla.Ferrell Const. Co., Inc. v. Russell Creek Coal Co., 1982 OK 24, 645 P.2d 1005 (Okla. 1982).
Natural and proximate result
Mo.Asamoah-Boadu v. State, 328 S.W.3d 790 (Mo. Ct. App. W.D. 2010), reh'g and/or transfer denied, (Mar. 1,
2011).
Proximate consequence
Pa.Company Image Knitware, Ltd. v. Mothers Work, Inc., 2006 PA Super 272, 909 A.2d 324 (2006).
6
7
8
9
Immediate and proximate result

U.S.Chain Belt Co. v. U.S., 127 Ct. Cl. 38, 115 F. Supp. 701 (1953).
61.
U.S.Wyant v. U.S., 46 Ct. Cl. 205, 1910 WL 926 (1911).
Ala.Southern Bitulithic Co. v. Hughston, 177 Ala. 559, 58 So. 450 (1912).
Effect of rescission
N.Y.Ryan v. Rodgers & Hagerty, 197 A.D. 662, 189 N.Y.S. 269 (1st Dep't 1921).
U.S.Warren-Scharf Asphalt Paving Co. v. Laclede Const. Co., 111 F. 695 (C.C.A. 8th Cir. 1901).
Minn.Dick Weatherston's Associated Mechanical Services, Inc. v. Minnesota Mut. Life Ins. Co., 257 Minn. 184,
100 N.W.2d 819, 82 A.L.R.2d 1004 (1960).
10
11
12
13
Delay
U.S.Hart v. American Concrete Steel Co., 278 F. 541 (E.D. N.Y. 1921), aff'd, 285 F. 322 (C.C.A. 2d Cir. 1922).
U.S.City of Ironton v. Harrison Const. Co., 212 F. 353 (C.C.A. 6th Cir. 1914).
U.S.National Laundry Co. v. U.S., 63 Ct. Cl. 626, 1927 WL 2866 (1927).
Ala.Blankenship v. Lanier, 212 Ala. 60, 101 So. 763 (1924).
Ky.Natural Rock Asphalt Corporation v. Carter, 221 Ky. 131, 297 S.W. 1114 (1927).
U.S.Childress v. Cook, 245 F.2d 798 (5th Cir. 1957).
S.C.Arkwright Mills v. Clearwater Mfg. Co., 217 S.C. 530, 61 S.E.2d 165 (1950).
End of Document
60.Breach of contractRequirement of certainty and..., 25 C.J.S. Damages 60
Damages
1. Pecuniary Losses
b. Loss of Profits
60. Breach of contractRequirement of certainty and definiteness
A recovery of speculative, conjectural, remote, or contingent profits will be denied.
Lost profits are recoverable only when it reasonably or definitely appears that they would have been made if the
contract had been performed 1 and where it reasonably and definitely appears that their loss necessarily followed
the breach. 2 A recovery of speculative, conjectural, remote, or contingent profits will be denied. 3 On the other
hand, the fact that lost profits are difficult to measure and by their nature are uncertain in amount does not
render such damages unrecoverable. 4 The amount of the lost profits need only be capable of ascertainment with
reasonable, or sufficient, certainty, 5 or there must be some basis on which a reasonable estimate of the amount
of the profit can be made. 6
Doubts as to profits as an element of damage are generally resolved against the party committing the breach of
contract. 7
Footnotes
U.S.Handi Caddy, Inc. v. American Home Products Corp., 557 F.2d 136 (8th Cir. 1977).
1
2
3
N.C.Meares v. Nixon Const. Co., 7 N.C. App. 614, 173 S.E.2d 593 (1970).
U.S.Huffman v. Saul Holdings Ltd. Partnership, 194 F.3d 1072 (10th Cir. 1999).
OhioDwyer v. Wiley Hotel Co., 91 Ohio App. 525, 49 Ohio Op. 113, 108 N.E.2d 859 (2d Dist. Darke County 1952).
IdahoPollard Oil Co. v. Christensen, 103 Idaho 110, 645 P.2d 344 (1982).
Mont.Stensvad v. Miners and Merchants Bank of Roundup, 196 Mont. 193, 640 P.2d 1303 (1982).
Speculative
Speculative or conjectural
60.Breach of contractRequirement of certainty and..., 25 C.J.S. Damages 60
Mo.Asamoah-Boadu v. State, 328 S.W.3d 790 (Mo. Ct. App. W.D. 2010), reh'g and/or transfer denied, (Mar. 1,
2011).
4
5
6
7
Profits contingent on uncertain happenings

Mich.Stevenson v. Brotherhoods Mut. Ben., 312 Mich. 81, 19 N.W.2d 494 (1945).
U.S.Natco, Inc. v. Williams Bros. Engineering Co., 489 F.2d 639 (5th Cir. 1974).
U.S.Huffman v. Saul Holdings Ltd. Partnership, 194 F.3d 1072 (10th Cir. 1999).
N.Y.Ashland Management Inc. v. Janien, 82 N.Y.2d 395, 604 N.Y.S.2d 912, 624 N.E.2d 1007 (1993).
Mo.Red-E-Gas Co. v. Meadows, 360 S.W.2d 236 (Mo. Ct. App. 1962).
N.Y.Frenchman & Sweet, Inc. v. Philco Discount Corp., 21 A.D.2d 180, 249 N.Y.S.2d 611 (4th Dep't 1964).
U.S.Haddad v. Western Contracting Co., 76 F. Supp. 987 (N.D. W. Va. 1948).
End of Document
61.Breach of contractProfits within contemplation of..., 25 C.J.S. Damages 61
Damages
1. Pecuniary Losses
b. Loss of Profits
61. Breach of contractProfits within contemplation of parties when contract was made
In order that there may be a recovery of profits lost by reason of a breach of contract, the profits must be
such as were within the contemplation of the parties at the time when the contract was made.
In order that there may be a recovery of profits lost by reason of a breach of contract, the profits must be such as
were within the contemplation of the parties at the time when the contract was made. 1 Furthermore, it is required
that the consequences of the wrongful act must have been reasonably foreseeable by the parties at that time. 2 In
determining the contemplation of the parties at the time of entering into the agreement, the nature, purpose, and
circumstances of the contract known by the parties should be considered. 3 Where profits are expressly stipulated
for in the contract, and are the real purpose and direct and immediate fruit of the contract, they are part and parcel
of it and must be considered as entering into, and constituting a portion of, its very elements. 4
Cases:
Under New Hampshire law, distributor seeking lost profits from a supplier for breach of contract need only prove
that it would have made the profits but for the breach. Contour Design, Inc. v. Chance Mold Steel Co., Ltd., 693
F.3d 102 (1st Cir. 2012).
If it is reasonably certain that profits would have resulted had the contract been carried out, then the complaining
party is entitled to recover damages for lost profits. Boellner v. Clinical Study Centers, LLC, 2011 Ark. 83, 378
S.W.3d 745 (2011).
Plaintiff was not entitled to damages for lost profits from breach of contract; contract did not contemplate, in the
event of defendants' breach, that defendants would be liable for plaintiff's failure to realize profits from her new
veterinary practice. Kantor v. 75 Worth Street, LLC, 95 A.D.3d 718, 945 N.Y.S.2d 245 (1st Dep't 2012).
61.Breach of contractProfits within contemplation of..., 25 C.J.S. Damages 61
[END OF SUPPLEMENT]
Footnotes
1
3
4
Ill.Mandel v. Hernandez, 404 Ill. App. 3d 701, 344 Ill. Dec. 322, 936 N.E.2d 1079 (1st Dist. 2010).
S.C.Manios v. Nelson, Mullins, Riley & Scarborough, LLP, 389 S.C. 126, 697 S.E.2d 644 (Ct. App. 2010).
U.S.Anchor Sav. Bank, FSB v. U.S., 597 F.3d 1356 (Fed. Cir. 2010); Sterling Savings Ass'n v. U.S., 80 Fed. Cl.
497 (2008).
Md.CR-RSC Tower I, LLC v. RSC Tower I, LLC, 2011 WL 5428785 (Md. Ct. Spec. App. 2011).
N.Y.MBIA Ins. Corp. v. Credit Suisse Securities (USA) LLC, 32 Misc. 3d 758, 927 N.Y.S.2d 517 (Sup 2011), on
reconsideration, 33 Misc. 3d 1208(A), 2011 WL 4865133 (N.Y. Sup 2011).
Cal.Walpole v. Prefab Mfg. Co., 103 Cal. App. 2d 472, 230 P.2d 36 (2d Dist. 1951).
End of Document
Damages
1. Pecuniary Losses
b. Loss of Profits
62. Torts
West's Key Number Digest, Damages 40(1), 40(4)
There may be a recovery for loss of profits consequent upon torts if the loss is such as may naturally be
expected to follow from the wrongful act and if the profits are certain, but recovery is denied where the
profits are uncertain, speculative, or remote.
While lost profits are recoverable upon proper proof in tort cases, 1 the rule denying recovery of profits where
they are uncertain, speculative, conjectural, or remote is applicable in actions of tort. 2 However, the law does not
require that those damages be ascertainable with absolute certainty, 3 and recovery may be had if, as variously
stated, the profits are ascertainable with a fair degree of certainty 4 or can be established with reasonable
certainty. 5 Nevertheless, the profits recoverable are limited to probable, as distinguished from possible, profits, 6
and there must be a satisfactory basis for estimating what the probable earnings would have been had there been
no tort. 7
Damages contemplated by parties; natural causation.

The rule limiting damages to those contemplated or reasonably supposed to have been contemplated by the parties,
applicable in breach-of-contract cases, 8 is not followed in tort cases, 9 and there may be a recovery for loss of
profits consequent on torts if the loss is such as may naturally be expected to follow from the wrongful act. 10
Action for personal injuries.

There is authority that in an action for personal injuries, the loss of profits of the business in which the plaintiff is
engaged cannot be recovered, 11 such profits being too speculative. 12 Accordingly, profits based on an estimate
of what might have been earned had the plaintiff been in good health cannot be recovered 13 although there may
be cases in which profits may be recovered where, by reason of some definite contract, they may be definitely
ascertained. 14 However, under other authority, any loss of profits from the plaintiff's business occasioned by
his or her injuries resulting from an accident may be recovered, if proved with sufficient certainty, 15 and loss
of profits, when clearly and fairly shown, is a form of loss of earnings that may be recovered. 16 While future
business profits may not be recovered as such, being too remote and uncertain to sustain a judgment for their
loss, 17 lost profits are recoverable as special damages if properly pleaded as such, if they arise naturally and
proximately from the injury, and if they are reasonably definite and certain. 18
Tortious interference with contract between plaintiff and third party.

A party may recover lost profits for the defendant's tortious interference with a contract between the plaintiff and
a third party 19 where such lost profits are proved with reasonable certainty. 20
Footnotes
U.S.In re Janssens, 449 B.R. 42 (Bankr. D. Md. 2010), judgment aff'd, 2011 WL 1642575 (D. Md. 2011).
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
Ind.Columbus Medical Services Organization, LLC v. Liberty Healthcare Corp., 911 N.E.2d 85 (Ind. Ct. App. 2009).
U.S.Rea v. Ford Motor Co., 560 F.2d 554 (3d Cir. 1977).
N.Y.Dunlop Tire & Rubber Corp. v. FMC Corp., 53 A.D.2d 150, 385 N.Y.S.2d 971 (4th Dep't 1976).
Ind.Columbus Medical Services Organization, LLC v. Liberty Healthcare Corp., 911 N.E.2d 85 (Ind. Ct. App. 2009).
N.Y.Sellari v. Palermo, 188 Misc. 1057, 70 N.Y.S.2d 554 (County Ct. 1947).
N.C.Steffan v. Meiselman, 223 N.C. 154, 25 S.E.2d 626 (1943).
U.S.Rich v. Eastman Kodak Co., 583 F.2d 435 (8th Cir. 1978).
Pa.Company Image Knitware, Ltd. v. Mothers Work, Inc., 2006 PA Super 272, 909 A.2d 324 (2006).
Ga.Georgia Grain Growers Ass'n v. Craven, 95 Ga. App. 741, 98 S.E.2d 633 (1957).
Miss.Mississippi Power Co. v. Harrison, 247 Miss. 400, 152 So. 2d 892 (1963).
Cal.Jegen v. Berger, 77 Cal. App. 2d 1, 174 P.2d 489 (1st Dist. 1946).
N.Y.Nodine v. State, 192 Misc. 572, 79 N.Y.S.2d 834 (Ct. Cl. 1948).
61.
N.Y.Delehanty v. Walzer, 59 N.Y.S.2d 777 (Sup 1945), judgment rev'd on other grounds, 271 A.D. 886, 67 N.Y.S.2d
25 (2d Dep't 1946), judgment aff'd, 298 N.Y. 820, 83 N.E.2d 863 (1949).
Ark.Stevens v. Mid-Continent Investments, Inc., 257 Ark. 439, 517 S.W.2d 208 (1974).
Tex.Beam v. Voss, 568 S.W.2d 413 (Tex. Civ. App. San Antonio 1978).
Wash.Berg v. General Motors Corp., 87 Wash. 2d 584, 555 P.2d 818 (1976).
Tex.Kothmann v. Lett, 248 S.W.2d 302 (Tex. Civ. App. Austin 1952), writ refused n.r.e.
Wash.Kirk v. Seattle Elec. Co., 58 Wash. 283, 108 P. 604 (1910).
Ill.Steele v. Brown, 43 Ill. App. 2d 293, 193 N.E.2d 352 (2d Dist. 1963).
N.C.Smith v. Corsat, 260 N.C. 92, 131 S.E.2d 894 (1963).
La.Jenkins v. Audubon Ins. Co., 110 So. 2d 221 (La. Ct. App. 1st Cir. 1959).
Mo.Stewart v. St. Louis Public Service Co., 233 S.W.2d 759 (Mo. Ct. App. 1950).
Ga.Globe Motors, Inc. v. Noonan, 106 Ga. App. 486, 127 S.E.2d 320 (1962).
U.S.In re Bolin & Co., LLC, 437 B.R. 731, 72 U.C.C. Rep. Serv. 2d 1096 (D. Conn. 2010).
U.S.International Minerals and Resources, S.A. v. Pappas, 96 F.3d 586 (2d Cir. 1996).
Contingent or uncertain profits not recoverable
U.S.Muir v. Navy Federal Credit Union, 744 F. Supp. 2d 145 (D.D.C. 2010).
End of Document
Damages
1. Pecuniary Losses
c. Expenses
(1) In General
63. Generally
All reasonable and necessary expenses, including future expenses, consequent on the wrong or injury may
be recovered.
As a general rule, a person is entitled to recover as damages all reasonable and necessary expenses to which he
or she may have been put in consequence of the wrong or injury inflicted. 1 However, only reasonable 2 and
necessary 3 expenses, which were incurred as a proximate result of the wrong or injury, 4 are recoverable.
Future expenses.
Future expenses reasonably necessary to be incurred may be recovered where the cause of action is complete. 5
Footnotes
U.S.BellSouth Telecommunications, Inc. v. Johnson Bros. Corp. of Louisiana, 106 F.3d 119 (5th Cir. 1997).
1
2
3
4
5
Mich.Cooper v. Christensen, 29 Mich. App. 181, 185 N.W.2d 97 (1970).

S.D.Smith v. Weber, 70 S.D. 232, 16 N.W.2d 537 (1944).
Tex.Texas & N. O. R. Co. v. Barham, 204 S.W.2d 205 (Tex. Civ. App. Waco 1947).
Tex.Texas & N. O. R. Co. v. Barham, 204 S.W.2d 205 (Tex. Civ. App. Waco 1947).
N.Y.Silvernail v. Hallenback, 33 Misc. 2d 83, 226 N.Y.S.2d 48 (Sup 1962).
S.D.Smith v. Weber, 70 S.D. 232, 16 N.W.2d 537 (1944).
IowaSalinger v. W.U. Tel. Co., 147 Iowa 484, 126 N.W. 362 (1910).
End of Document
64.Expenses incurred in reducing damages or preventing..., 25 C.J.S. Damages 64
Damages
1. Pecuniary Losses
c. Expenses
(1) In General
64. Expenses incurred in reducing damages or preventing future injury
Legitimate expenses incurred in a prudent endeavor to reduce damages, even though the intended object
was not accomplished, may be recovered.
As a general rule, a party is entitled to all legitimate and reasonable expenses necessarily incurred by him or her
in an honest endeavor to reduce the damages flowing from or following the wrongful act. 1 Thus, a party may
recover, as an element of his or her damages, 2 expenses legitimately incurred in attempting to prevent loss and
damage to property 3 or expenses incurred in following up property that has been wrongfully taken. 4
A recovery for expenses that reasonably and prudently incurred in a proper attempt to mitigate or avoid damages is
not precluded by the fact that the effort was an unsuccessful one so that the object intended was not accomplished. 5
The effort to minimize damages must have been made in good faith, 6 under a reasonably justified belief that
it would serve to avoid or reduce damages otherwise to be apprehended in consequence of the wrongful act or
conduct. 7
Expenses incurred in mitigating damages are recoverable only where they were prudently incurred, 8 as a result
of a fair exercise of judgment to make the damages less, 9 and only where they were reasonably warranted by,
and proportioned to, the injury and consequence to be avoided. 10 Not every effort to minimize damages will
serve, particularly where it results in enhancing them. 11 However, the mere fact that an attempt to minimize
damage increases or aggravates the loss does not prevent a recovery for the expenses incurred in making the effort
provided that the effort was prudently made, and the expenses incurred were reasonable. 12
Preventing future injury.
64.Expenses incurred in reducing damages or preventing..., 25 C.J.S. Damages 64
In a conventional tort action, once some injury has been proved, the plaintiff's damages may include the cost of
measures intended to prevent future injury. 13
Footnotes
1
2
3
4
5
6
7
8
9
10
11
12
13
Wash.Kubista v. Romaine, 14 Wash. App. 58, 538 P.2d 812 (Div. 2 1975), decision aff'd, 87 Wash. 2d 62, 549
P.2d 491 (1976).
Va.National Housing Bldg. Corp. v. Acordia of Virginia Ins. Agency, Inc., 267 Va. 247, 591 S.E.2d 88 (2004).
U.S.Signal Oil & Gas Co. v. Barge W-701, 468 F. Supp. 802 (E.D. La. 1979), judgment aff'd in part, rev'd in part
on other grounds, 654 F.2d 1164 (5th Cir. 1981).
Okla.Smith v. Johnston, 1978 OK 142, 591 P.2d 1260 (Okla. 1978).
Reasonable expenses incurred in mitigation of a loss
Ill.Jones v. William Buick, Inc., 337 Ill. App. 3d 339, 271 Ill. Dec. 716, 785 N.E.2d 910 (1st Dist. 2003).
U.S.Transport Mfg. & Equipment Co. v. Fruehauf Trailer Co., 295 F.2d 223 (8th Cir. 1961).
U.S.Macy's, Inc. v. Johnson Controls World Services, Inc., 670 F. Supp. 2d 790 (N.D. Ill. 2009); Smith v. Positive
Productions, 419 F. Supp. 2d 437 (S.D. N.Y. 2005).
N.Y.Transamerican Mercantile Corp. v. W.U. Tel. Co., 156 N.Y.S.2d 201 (City Ct. 1955), judgment modified on
other grounds, 153 N.Y.S.2d 771 (App. Term 1956).
N.Y.Zidel v. State, 198 Misc. 91, 96 N.Y.S.2d 330 (Ct. Cl. 1949).
N.J.Smith v. Okerson, 8 N.J. Super. 560, 73 A.2d 857 (Ch. Div. 1950).
Reasonable prudence, skill, and efficiency
N.Y.Zidel v. State, 198 Misc. 91, 96 N.Y.S.2d 330 (Ct. Cl. 1949).
Del.Wise v. Western Union Telegraph Co., 37 Del. 209, 181 A. 302 (Super. Ct. 1935).
N.Y.Ninth Ave. & Forty-Second St. Corporation v. Zimmerman, 217 A.D. 498, 217 N.Y.S. 123 (1st Dep't 1926).
Del.Wise v. Western Union Telegraph Co., 37 Del. 209, 181 A. 302 (Super. Ct. 1935).
Reasonably anticipated damages
Cal.Kleinclaus v. Marin Realty Co., 94 Cal. App. 2d 733, 211 P.2d 582 (1st Dist. 1949).
U.S.The Ada, 239 F. 363 (S.D. N.Y. 1916), rev'd on other grounds, 250 F. 194 (C.C.A. 2d Cir. 1918).
Mo.Dietrich v. Hannibal & St. J.R. Co., 89 Mo. App. 36, 1901 WL 1691 (1901).
N.J.State v. Signo Trading Intern., Inc., 130 N.J. 51, 612 A.2d 932 (1992).
End of Document
Damages
1. Pecuniary Losses
c. Expenses
(2) Breach of Contract
65. Generally
Reasonable and necessary expenses imposed on the injured party by reason of a breach of contract
ordinarily form a recoverable element of damages.
Expenses imposed on the injured party by reason of a breach of contract ordinarily form a recoverable element
of damages. 1 The expenses that may be recovered are those that are the natural and proximate consequence of
the breach 2 and that are, under all the facts and circumstances, reasonable, 3 necessary, 4 and fairly and in good
faith laid out. 5
The injured party is not entitled to a recovery for expenditures voluntarily incurred in attempting to reinstate
the contract after its breach 6 or for an item that, under the circumstances, does not represent an actual loss or
expense. 7 Moreover, a party is not entitled to recover for an expenditure made by a third person where it does
not appear that he or she has any obligation to reimburse such person therefor or that he or she will ever be called
on to do so. 8
The injured party cannot recover for expenditures that were not occasioned by the improper performance of the
work or by the furnishing or delivery of defective materials or goods, 9 nor can he or she recover for the cost
of replacements where repairs would have sufficed 10 or for the cost of work not called for by the contract. 11
Likewise, the injured party is not entitled to recover for expenses incurred in removing improperly installed
fixtures where he or she has failed to give the opposite party an opportunity to remove the fixtures. 12 Also, a
party is not entitled to recover for the cost of repairs necessitated by the defective materials furnished by him or
her rather than by the other party's defective workmanship. 13
In case the expenses are disconnected with the original contract or form no integral part within the contemplation
of the parties at the time that the contract was made, there can be no recovery. 14 However, damages may include
a reasonable sum paid out by the injured person as a result of the breach notwithstanding that it constitutes a loss
on a collateral contract provided that such expense may reasonably be supposed to have been within the parties'
contemplation at the time when the contract was made as a probable result of a breach thereof. 15
The injured party may be entitled to recover from the defaulting party the amount of damages or the amount of a
penalty, which he or she must pay to a third person as a result of the breach, 16 but only if the circumstances are
such that the parties might reasonably be supposed to have contemplated, at the time of making the contract, that
a breach thereof would give rise to such liability. 17 Also, he or she has no right to be reimbursed for making good
damages to third persons unless it sufficiently appears that such damages proximately resulted from the breach. 18
The plaintiff may not recover for sums paid to third persons that he or she was not under a legal duty to pay, 19
and he or she may not recover for sums paid by him or her under a sense of moral obligation where he or she
was not legally liable therefor. 20
Contractual provision precluding recovery for consequential damages.

Expenses imposed on the injured party as a result of a breach of contract are not recoverable where they amount
to consequential damages, and the contract contains a valid provision precluding a recovery for consequential
damages. 21
Footnotes
U.S.Hollywood Fantasy Corp. v. Gabor, 151 F.3d 203, 49 Fed. R. Evid. Serv. 1612 (5th Cir. 1998).
1
Tex.Medallion Intern. Corp. v. Sylva, 2004 WL 1211613 (Tex. App. Waco 2004).
Breach consisting of delay in performance
U.S.Willred Co. v. Westmoreland Metal Mfg. Co., 200 F. Supp. 59, 1 U.C.C. Rep. Serv. 181 (E.D. Pa. 1961).
Mo.Kansas City Bridge Co. v. Kansas City Structural Steel Co., 317 S.W.2d 370, 85 A.L.R.2d 1252 (Mo. 1958).
Overhead expenses
U.S.Designer Direct, Inc. v. DeForest Redevelopment Authority, 368 F.3d 751 (7th Cir. 2004).
A.L.R. Library
Measure and elements of damages for breach of contract to lend money, 4 A.L.R.4th 682.
U.S.Luria Bros. & Co. v. U.S., 177 Ct. Cl. 676, 369 F.2d 701 (1966).
Fla.MacDonald v. Penn Mut. Life Ins. Co., 276 So. 2d 232 (Fla. Dist. Ct. App. 2d Dist. 1973).
Expense of own failure not recoverable
Miss.Mariani v. Hennington, 229 Miss. 212, 92 So. 2d 202 (1957).
3
4
5
6
Indirect results
Wash.Park Avenue Condominium Owners Ass'n v. Buchan Developments, L.L.C., 117 Wash. App. 369, 71 P.3d
692 (Div. 1 2003), on reconsideration in part, 75 P.3d 974 (Wash. Ct. App. Div. 1 2003).
U.S.Matter of Parkview-Gem, Inc., 465 F. Supp. 629 (W.D. Mo. 1979).
IdahoKing v. Beatrice Foods Co., 89 Idaho 52, 402 P.2d 966 (1965).
U.S.Saddler v. U.S., 152 Ct. Cl. 557, 287 F.2d 411 (1961).
Cal.Walpole v. Prefab Mfg. Co., 103 Cal. App. 2d 472, 230 P.2d 36 (2d Dist. 1951).
Ark.O'Bier v. Safe-Buy Estate Agency, Inc., 256 Ark. 574, 509 S.W.2d 292 (1974).
Wash.Liner v. Armstrong Homes of Bremerton, Inc., 19 Wash. App. 921, 579 P.2d 367 (Div. 2 1978).
U.S.Miller v. U.S., 135 Ct. Cl. 1, 140 F. Supp. 789 (1956).
7
8
9
10
11
12
13
14
15
16

Mass.Dahlstrom Metallic Door Co. v. Evatt Const. Co., 256 Mass. 404, 152 N.E. 715 (1926).
Cal.Roberts v. Karr, 178 Cal. App. 2d 535, 3 Cal. Rptr. 98 (4th Dist. 1960).
La.Bart Const. Co. v. Bailey, 125 So. 2d 51 (La. Ct. App. 1st Cir. 1960).
La.Svendson v. American Indem. Co. of Galveston, Tex., 76 So. 2d 737 (La. Ct. App., Orleans 1955).
La.Gibert v. Cook, 144 So. 2d 683 (La. Ct. App. 4th Cir. 1962).
La.Bart Const. Co. v. Bailey, 125 So. 2d 51 (La. Ct. App. 1st Cir. 1960).
U.S.Fruin-Colnon Intern., S. A. v. Concreto, S. A., 231 F. Supp. 14 (D. C.Z. 1964).
N.Y.J.R. Loftus, Inc. v. White, 85 N.Y.2d 874, 626 N.Y.S.2d 52, 649 N.E.2d 1196 (1995).
Or.Gordon v. Curtis Bros. A.D. Moodie House-Moving Co., 119 Or. 55, 248 P. 158 (1926).
Cal.City of Los Angeles v. Anchor Cas. Co., 204 Cal. App. 2d 175, 22 Cal. Rptr. 278 (2d Dist. 1962).
Damages for defective materials
UtahBoard of Education of Salt Lake City v. West, 55 Utah 357, 186 P. 114 (1919).
17
18
19
20
21
Damages not actually paid by contractor

N.Y.J. Harry McNally, Inc., v. State, 170 Misc. 914, 11 N.Y.S.2d 577 (Ct. Cl. 1939).
N.M.Price v. Van Lint, 46 N.M. 58, 120 P.2d 611 (1941).
Tex.Super-Cold Southwest Co. v. Green & Romans, 196 S.W.2d 340 (Tex. Civ. App. Fort Worth 1946).
U.S.In re California Eastern Airways, 95 F. Supp. 348 (D. Del. 1951).
Ind.Orr v. Dayton & Muncie Traction Co., 178 Ind. 40, 96 N.E. 462 (1911).
End of Document
66.Expenses incurred in reliance on contract, 25 C.J.S. Damages 66
Damages
1. Pecuniary Losses
c. Expenses
66. Expenses incurred in reliance on contract
Generally, where a contract has been breached, the injured party is entitled to recover as damages all
reasonable and proper expenditures made or incurred by him or her in reliance on, or on the faith of, the
contract.
Where a contract has been breached, the injured party is usually entitled to recover as damages all reasonable and
proper expenditures made or incurred by him or her in reliance on, or on the faith of, the contract. 1 However,
he or she is not entitled to be reimbursed for expenditures that are not reasonable, 2 that are not strictly relevant
to the subject matter of the contract, 3 or that were made before the contract was entered into. 4 Moreover, there
is authority that reliance damages for breach of contract are awarded only when future gain cannot be measured
with any reasonable degree of reliability. 5
All necessary and reasonable expenses incurred by a party in complying with the terms of the contract may
be recovered as damages in an action for the breach thereof. 6 However, expenditures made in procuring the
contract, 7 such as, for example, moneys paid as commissions to a salesperson, 8 are not recoverable as an expense
incurred in performing the contract.
Generally, the injured party is entitled to recover for the reasonable and proper expenditures made by him or her in
anticipation of, or preparation for, performance, 9 at least where the expenditures are for items that are peculiarly
suited for the performance of the contract. 10 It is immaterial whether or not expenses so incurred were actually
paid before the action was brought. 11 However, reimbursement for expenses incurred for outside financing has
been denied notwithstanding that the plaintiff was compelled to avail himself or herself of such financing in order
to perform his or her part of the contract. 12
66.Expenses incurred in reliance on contract, 25 C.J.S. Damages 66
Where the injured party recovers the amount of profit that he or she would have made had the contract been
performed by the opposite party, he or she cannot also recover the expenses incurred by him or her in preparing
to perform, or in performing, his or her part of the contract since he or she cannot have both the profit and the
expense to which he or she was put in making the profit. 13
Promotional expenditures.
While promotional expenditures made by the injured party pursuant to the contract may be recoverable by him
or her where they are wasted and rendered of no value by reason of the breach, 14 such expenditures are not
recoverable where the injured party has realized a profit therefrom, particularly where he or she agreed to bear
the cost of promotion as part of the consideration for the contract. 15
Awareness of breach.
Generally, reliance damages cannot be recovered for expenditures made after a nondefaulting party's awareness
of a contract breach. 16
Footnotes
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
UtahRanch Homes, Inc. v. Greater Park City Corp., 592 P.2d 620 (Utah 1979).
U.S.Gruber v. S-M News Co., 126 F. Supp. 442 (S.D. N.Y. 1954).
U.S.In re Yeager Co., 227 F. Supp. 92, 27 Ohio Op. 2d 215 (N.D. Ohio 1963).
Minn.Indianhead Truck Line, Inc. v. Hvidsten Transport, Inc., 268 Minn. 176, 128 N.W.2d 334 (1964).
Out-of-pocket expenses
U.S.Rumsey Mfg. Corp. v. U.S. Hoffman Machinery Corp., 187 F.2d 927 (2d Cir. 1951).
Ky.Linde v. Ellis, 224 Ky. 649, 6 S.W.2d 1089 (1928).
Minn.Dick Weatherston's Associated Mechanical Services, Inc. v. Minnesota Mut. Life Ins. Co., 257 Minn. 184,
100 N.W.2d 819, 82 A.L.R.2d 1004 (1960).
U.S.Burks v. Sinclair Refining Co., 183 F.2d 239 (3d Cir. 1950).
Miss.Carter v. Witherspoon, 156 Miss. 597, 126 So. 388 (1930).
Tex.Taylor v. Mark, 376 S.W.2d 927 (Tex. Civ. App. Waco 1964), writ refused n.r.e., (June 17, 1964).
U.S.Pat J. Murphy, Inc. v. Drummond Dolomite, Inc., 232 F. Supp. 509 (E.D. Wis. 1964), judgment aff'd, 346 F.2d
382 (7th Cir. 1965).
Fla.Sundie v. Lindsay, 166 So. 2d 152 (Fla. Dist. Ct. App. 3d Dist. 1964).
Wash.Platts v. Arney, 50 Wash. 2d 42, 309 P.2d 372 (1957).
U.S.International Brands USA, Inc. v. Old St. Andrews Ltd., 349 F. Supp. 2d 256 (D. Conn. 2004).
Ariz.A.R.A. Mfg. Co. v. Pierce, 86 Ariz. 136, 341 P.2d 928 (1959).
N.C.General Tire & Rubber Co. v. Distributors, Inc., 253 N.C. 459, 117 S.E.2d 479 (1960).
End of Document
Damages
1. Pecuniary Losses
c. Expenses
(3) Injuries to Person
(a) In General
67. Generally
Expenses necessarily incurred as a result of a wrong occasioning a personal injury may generally be
recovered.
Under the general rule, a recovery may be had for the reasonable amount of expenses necessarily incurred by
the plaintiff as a result of a wrong occasioning a personal injury, 1 but expenses that have no reasonable relation
to, or are not the result of, the wrong or injury sued for are not recoverable. 2 Thus, the plaintiff is entitled to
expenses incurred by him or her in the employment of assistance in his or her ordinary duties or business 3 provided
that it appears that such expenses were both necessary and reasonable 4 and resulted from the wrong sued for. 5
However, the plaintiff is not entitled to recover expenses incurred by the corporation that employed him or her in
hiring persons to assist him or her in performing his or her duties. 6
While the reasonable cost of providing help to care for the plaintiff's children during the period of his or
her disability may constitute a proper element of his or her damages, 7 even though such care was provided
gratuitously, 8 the plaintiff is not entitled to recover for the cost of providing care for his or her children in addition
to an award of damages for his or her inability to work during the period of his or her disability. 9
Preexisting illness.
Although a person sustaining an injury is already ill, there may be a recovery for additional expenses occasioned
by the injury. 10
Board and lodging.
The plaintiff may recover the expense of his or her board and lodging in a hospital when those items were
inseparably tied up with his or her treatment. 11 Board and lodging have been considered proper items of damages
even when furnished gratuitously to the plaintiff while convalescing in the home of a relative. 12
Footnotes
1
La.Clements v. Continental Ins. Co., 277 So. 2d 714 (La. Ct. App. 2d Cir. 1973).
2
3
4
5
6
7
8
9
10
11
12
Funeral or burial expenses

Wis.Nelson v. Milwaukee Electric Railway & Light Co., 197 Wis. 513, 222 N.W. 792 (1929).
U.S.Evans v. Pennsylvania R Co, 154 F. Supp. 14 (D. Del. 1957).
La.Leon v. Jackson, 122 So. 2d 102 (La. Ct. App. 2d Cir. 1960).
N.J.Bandel v. Friedrich, 122 N.J. 235, 584 A.2d 800 (1991).
IowaSexton v. Lauman, 244 Iowa 570, 57 N.W.2d 200, 37 A.L.R.2d 353 (1953).
La.Pendola v. State, 4 So. 2d 28 (La. Ct. App. 1st Cir. 1941).
N.Y.Aberson v. City of New York, 205 Misc. 727, 132 N.Y.S.2d 357 (City Ct. 1954).
R.I.Krawczuk v. Cahoon, 175 A. 655 (R.I. 1934).
N.H.Emery v. Boston & M. R. R., 67 N.H. 434, 36 A. 367 (1893).
IowaJakeway v. Allen, 227 Iowa 1182, 290 N.W. 507 (1940).
Ga.Southeastern Greyhound Lines v. Fisher, 72 Ga. App. 717, 34 S.E.2d 906 (1945).
End of Document
68.Living expenses, 25 C.J.S. Damages 68
Damages
1. Pecuniary Losses
c. Expenses
(a) In General
68. Living expenses
While there is authority that the plaintiff's living expenses during the time when he or she was unable to
work because of an injury constitute a proper element of damages, there is also authority that he or she is
not entitled to recover for such expenses where it does not appear that they were increased by the injury.
While there is authority that the plaintiff's living expenses during the time when he or she was unable to work
because of his or her injury constitute a proper element of his or her damages, 1 there is also authority that he or
she is not entitled to recover for such expenses where it does not appear that they were increased by the injury
although he or she is entitled to compensation for an increase in such expenses occasioned by the injury. 2
Footnotes
La.York v. Starns, 14 La. App. 548, 129 So. 226 (1st Cir. 1930).
1
U.S.Alexandervich v. Gallagher Bros. Sand & Gravel Corp., 298 F.2d 918 (2d Cir. 1961).
2
N.C.Mintz v. Atlantic Coast Line R. Co., 233 N.C. 607, 65 S.E.2d 120 (1951).
End of Document
69.Necessary and reasonable expenses, generally, 25 C.J.S. Damages 69
Damages
1. Pecuniary Losses
c. Expenses
(b) Medical Attention, Medicine, and Nursing
69. Necessary and reasonable expenses, generally
Necessary and reasonable expenses for medical attention, medicine, and nursing ordinarily constitute a
proper element of recovery.
In actions for injury to the person, necessary and reasonable expenses for medical attention, medicine, and nursing
may be recovered, 1 and this rule applies to expenses that may have been incurred because of injuries to a person
for whom the plaintiff is legally responsible 2 although the right to recover vests in the person injured and no
one else. 3
To constitute a recoverable element of damages, the expense must have been reasonable and necessary; 4 however,
in some cases, the cost of "elective" medical treatment is recoverable. 5 The expense must also have been incurred
as a result of the injury sued for, 6 and expenses incurred in the treatment of ailments not attributable to the
defendant's fault are not recoverable. 7 However, a recovery may be had for services or attention necessitated by
the injury notwithstanding the previously impaired physical condition of the plaintiff or the injured person. 8
Medical and nursing expenses that may be recoverable.

Among the medical and nursing expenses that may be recoverable in an action for injury to the person are the
reasonable and necessary expense or cost of maintenance in a convalescent home or convalescent care, 9 medical
examinations, 10 special equipment, 11 and trained nurses. 12 While the reasonable and necessary expense or
cost of a physician, in addition to the attending physician, called in to help in treating the injured person may
be recovered, 13 expenses incurred for the transportation of a physician in order that he or she might witness an
operation performed on the injured person are not recoverable where it does not appear that his or her presence at
the operation was necessary or that he or she performed any function while he or she was there. 14
Plastic surgery.
A recovery may properly be allowed for the necessary and reasonable expense of plastic or restorative surgery; 15
however, an expenditure for plastic or restorative surgery is not recoverable unless the surgery was reasonably
necessary either for the plaintiff's complete recovery or for cosmetic reasons. 16
Services rendered in another locality.

A person injured by the negligence of another is not restricted in his or her recovery to proof of the value of
services in the neighborhood where the injury occurred if in fact they are rendered elsewhere. 17
Services rendered by unlicensed physician.

While there is authority that there can be no recovery where services have been rendered by an unlicensed
physician, 18 there is also authority that the plaintiff is entitled to be remunerated for fees paid by him or her to
a physician even though the physician failed to register his or her certificate in the county in which the services
were performed. 19
Cases:
The cost of a diagnostic procedure is recoverable, regardless of its results, so long as it is found to be a necessary
and reasonable expense related to a defendant's negligence. Estate of Miles v. Burcham, 127 So. 3d 213 (Miss.
2013).
Even if medical bills are necessarily and reasonably incurred for a particular condition, that fact does not mandate
a finding that those medical bills were incurred as a result of the accident in question. Downs v. Ackerman, 115
So. 3d 785 (Miss. 2013).
[END OF SUPPLEMENT]
Footnotes
U.S.Fitzgerald v. U. S. Lines Co., 374 U.S. 16, 83 S. Ct. 1646, 10 L. Ed. 2d 720, 7 Fed. R. Serv. 2d 774 (1963);
1
3
4
Tyminski v. U.S., 481 F.2d 257 (3d Cir. 1973).

Nev.Shere v. Davis, 95 Nev. 491, 596 P.2d 499 (1979).
U.S.Tinnerholm v. Parke, Davis & Co., 411 F.2d 48 (2d Cir. 1969).
N.J.Tullis v. Teial, 182 N.J. Super. 553, 442 A.2d 1039 (App. Div. 1982).
Recovery by one spouse for expenses in connection with an injury to the other spouse, see C.J.S., Husband and Wife
227.
Recovery by a parent for expenses in connection with an injury to a child, see C.J.S., Parent and Child 344.
Conn.Beckert v. Doble, 105 Conn. 88, 134 A. 154 (1926).
N.Y.City of New York v. Barbato, 5 N.Y.S.2d 125 (Mun. Ct. 1938).
Ark.Volunteer Transport, Inc. v. House, 357 Ark. 95, 162 S.W.3d 456 (2004).
Cal.Howell v. Hamilton Meats & Provisions, Inc., 52 Cal. 4th 541, 129 Cal. Rptr. 3d 325, 257 P.3d 1130 (2011).
Ind.Sibbing v. Cave, 922 N.E.2d 594 (Ind. 2010).

Tex.Ibrahim v. Young, 253 S.W.3d 790 (Tex. App. Eastland 2008).
6
7
9
10
11
12
13
14
15
16
17
18
19
In vitro fertilization procedure

U.S.Hoppe v. G.D. Searle & Co., 779 F. Supp. 1413, 35 Fed. R. Evid. Serv. 710 (S.D. N.Y. 1991).
Cal.Dimmick v. Alvarez, 196 Cal. App. 2d 211, 16 Cal. Rptr. 308 (1st Dist. 1961).
Fla.Wise v. Carter, 119 So. 2d 40 (Fla. Dist. Ct. App. 1st Dist. 1960).
Tex.Texas & P. Ry. Co. v. Leatherman, 351 S.W.2d 633 (Tex. Civ. App. Eastland 1961), writ refused n.r.e., (Feb.
21, 1962).
N.H.Emery v. Boston & M. R. R., 67 N.H. 434, 36 A. 367 (1893).
Pa.Baker v. Hagey, 177 Pa. 128, 35 A. 705 (1896).
Apportionment of expenses
Cal.Tomey v. Dyson, 76 Cal. App. 2d 212, 172 P.2d 739 (3d Dist. 1946).
Fla.Plana v. Sainz, 990 So. 2d 554 (Fla. Dist. Ct. App. 3d Dist. 2008).
Special mattress
La.Johnson v. Delta Fire & Cas. Co., 110 So. 2d 215 (La. Ct. App. 1st Cir. 1959) (disapproved of on other grounds
by, Martin v. Brown, 240 La. 674, 124 So. 2d 904 (1960)).
Special shoes
La.Talbot v. Eusea, 151 So. 2d 531 (La. Ct. App. 4th Cir. 1963).
Cal.Tomey v. Dyson, 76 Cal. App. 2d 212, 172 P.2d 739 (3d Dist. 1946).
Consulting physician
Wash.Shipman v. Foisy, 49 Wash. 2d 406, 302 P.2d 480 (1956).
Specialist
Wis.Seifert v. Milwaukee & Suburban Transport Corp., 4 Wis. 2d 623, 91 N.W.2d 236 (1958).
La.Baird v. Employers' Liability Assur. Corp., 38 So. 2d 669 (La. Ct. App., Orleans 1949), amended on other grounds
on denial of reh'g, 39 So. 2d 374 (La. Ct. App., Orleans 1949).
Cal.Johnston v. Long, 30 Cal. 2d 54, 181 P.2d 645 (1947).
Ky.Roland v. Murray, 239 S.W.2d 967 (Ky. 1951).
Conn.Adams v. City of New Haven, 131 Conn. 552, 41 A.2d 111 (1945).
Mich.Grinnell v. Carbide & Carbon Chemicals Corporation, 282 Mich. 509, 276 N.W. 535 (1937).
Tex.Sherwood v. Murray, 233 S.W.2d 879 (Tex. Civ. App. El Paso 1950).
Expenses of transportation of plaintiff for treatment, see 70.
Tex.Dallas Railway & Terminal Co. v. Brown, 97 S.W.2d 335 (Tex. Civ. App. El Paso 1936), writ refused.
Cal.Gastine v. Ewing, 65 Cal. App. 2d 131, 150 P.2d 266 (4th Dist. 1944).
End of Document
70.Transportation of plaintiff for treatment, 25 C.J.S. Damages 70
Damages
1. Pecuniary Losses
c. Expenses
70. Transportation of plaintiff for treatment
If necessitated by the injury, reasonable expenses incurred in transporting the plaintiff or the injured
person to a hospital, or to and from a physician's office, are recoverable.
Reasonable expenses incurred in transporting the plaintiff or the injured person to a hospital, 1 or to and from a
physician's office, 2 are recoverable where such expenses were necessitated by the injury. While there may be a
recovery of traveling expenses on trips undertaken for the benefit of the plaintiff's health, 3 or to secure special
medical or surgical treatment, 4 such a recovery may be properly denied where there does not appear to have been
any necessity for the plaintiff to leave his or her home community in order to obtain proper medical attention. 5
Footnotes
U.S.Trotter v. U.S., 95 F. Supp. 645 (W.D. La. 1951).
1
2
3
4
5
Nonprofessional services
OhioDibert v. Ross Pattern & Foundry Development Co., 105 Ohio App. 264, 6 Ohio Op. 2d 73, 152 N.E.2d 369
(2d Dist. Champaign County 1957).
La.Ledbetter v. Hammond Milk Corp., 126 So. 2d 658 (La. Ct. App. 1st Cir. 1961).
Mich.Sherwood v. Chicago & W.M. Ry. Co., 82 Mich. 374, 46 N.W. 773 (1890).
S.C.Hart v. Charlotte, C. & A.R. Co., 33 S.C. 427, 12 S.E. 9 (1890).
Ga.Southern Bell Tel. & Tel. Co. v. Whiddon, 108 Ga. App. 106, 132 S.E.2d 237 (1963).
La.Eubanks v. Wilson, 162 So. 2d 842 (La. Ct. App. 3d Cir. 1964).
La.Baird v. Employers' Liability Assur. Corp., 38 So. 2d 669 (La. Ct. App., Orleans 1949), amended on other grounds
on denial of reh'g, 39 So. 2d 374 (La. Ct. App., Orleans 1949).
Wash.Shipman v. Foisy, 49 Wash. 2d 406, 302 P.2d 480 (1956).
70.Transportation of plaintiff for treatment, 25 C.J.S. Damages 70
End of Document
71.Services in furtherance of lawsuit, 25 C.J.S. Damages 71
Damages
1. Pecuniary Losses
c. Expenses
71. Services in furtherance of lawsuit
Recovery may not be had for expenses incurred for the services of a physician for the purposes of litigation
or in furtherance of a lawsuit rather than for the purpose of treating the injured person.
Expenses incurred for the services of a physician for the purposes of litigation or in furtherance of a lawsuit, rather
than for the purpose of treating the injured person, do not constitute medical expenses for which recovery may
be had. 1 Accordingly, sums paid to a physician for a medical consultation, 2 examination, 3 or report 4 are not
recoverable as medical expenses where the services were obtained for the purpose of furthering a lawsuit rather
than for the purpose of treatment. Likewise, the cost of a physician's deposition, 5 or of X-ray pictures obtained
only for the purpose of litigation, 6 does not constitute a medical expense for which a recovery may be had.
Footnotes
La.Lambert v. Faucheux Chevrolet Co., 161 So. 2d 344 (La. Ct. App. 4th Cir. 1964).
1
2
3
4
5
6
Pa.Piwoz v. Iannacone, 406 Pa. 588, 178 A.2d 707 (1962).

La.McDaniel v. Audubon Ins. Co., 121 So. 2d 531 (La. Ct. App. 1st Cir. 1960).
Kan.Packer v. Fairmont Creamery Co., 158 Kan. 580, 149 P.2d 629 (1944).
La.Warren v. Yellow Cab Co. of Shreveport, 136 So. 2d 319 (La. Ct. App. 2d Cir. 1961).
La.Ulmer v. Travelers Ins. Co., 156 So. 2d 98 (La. Ct. App. 1st Cir. 1963).
La.Soileau v. U.S. Fidelity & Guaranty Co., 158 So. 2d 397 (La. Ct. App. 3d Cir. 1963).
N.Y.Reynolds v. State, 35 Misc. 2d 757, 231 N.Y.S.2d 681 (Ct. Cl. 1962).
Kan.Packer v. Fairmont Creamery Co., 158 Kan. 580, 149 P.2d 629 (1944).
La.Lambert v. Faucheux Chevrolet Co., 161 So. 2d 344 (La. Ct. App. 4th Cir. 1964).
End of Document
72.Necessity of payment or liability therefor, 25 C.J.S. Damages 72
Damages
1. Pecuniary Losses
c. Expenses
72. Necessity of payment or liability therefor
Under some authorities, but not others, the cost of medical attention, medicine, and nursing is not
recoverable unless the plaintiff has paid for such services or has incurred a legal liability therefor.
Although there is some authority to the contrary, 1 it is generally essential to a recovery that the plaintiff have
paid for medical services rendered, 2 or have incurred a legal liability therefor, 3 even though at the time of the
trial no charge has been made, 4 or the obligation may have been barred by the statute of limitations 5 or by a
discharge in bankruptcy. 6
Footnotes
U.S.Burke v. Byrd, 188 F. Supp. 384 (N.D. Fla. 1960).
1
U.S.Evans v. Pennsylvania R Co, 255 F.2d 205, 70 A.L.R.2d 158 (3d Cir. 1958).
2
4
5
6
Ill.American Nat. Bank & Trust Co. v. Peoples Gas Light & Coke Co., 42 Ill. App. 2d 163, 191 N.E.2d 628 (1st
Dist. 1963).
Ill.American Nat. Bank & Trust Co. v. Peoples Gas Light & Coke Co., 42 Ill. App. 2d 163, 191 N.E.2d 628 (1st
Dist. 1963).
Liability under implied agreement
Cal.Reichle v. Hazie, 22 Cal. App. 2d 543, 71 P.2d 849 (4th Dist. 1937).
Ill.Floyd v. Galva Elec. Light Co., 227 Ill. App. 541, 1923 WL 3140 (2d Dist. 1923), cert. denied.
Neb.Anderson v. Evans, 168 Neb. 373, 96 N.W.2d 44 (1959).
Mass.Sibley v. Nason, 196 Mass. 125, 81 N.E. 887 (1907).
72.Necessity of payment or liability therefor, 25 C.J.S. Damages 72
End of Document
73.Necessity of payment or liability thereforMedical..., 25 C.J.S. Damages 73
Damages
1. Pecuniary Losses
c. Expenses
73. Necessity of payment or liability thereforMedical
services provided gratuitously; care by family members
The courts are not in agreement as to whether there may be a recovery for medical attention or similar
services that have been furnished gratuitously.
According to some authority, there may be a recovery although the medical attention or similar services have been
furnished gratuitously. 1 However, it has also been held that there is no right to recover for medical or similar
services that have been furnished at a charity hospital, 2 or at public expense, 3 or gratuitously 4 even though the
plaintiff has a moral obligation to render gratuitous services in return therefor if called on to do so. 5
Nursing and attendance by member of plaintiff's family.

According to some authority, a tortfeasor can be required to compensate the injured party for the value of nursing
services provided by family members without charge, 6 and the value of nursing services rendered to one spouse
by the other spouse may be recoverable. 7 However, it has also been held that gratuitous care services rendered
by friends and relations to an injured party are not recoverable. 8
Footnotes
U.S.Lawson v. U.S., 454 F. Supp. 2d 373 (D. Md. 2006).
1
2
3
4
Fla.Paradis v. Thomas, 150 So. 2d 457 (Fla. Dist. Ct. App. 2d Dist. 1963).
Ind.Butler v. Indiana Dept. of Ins., 904 N.E.2d 198 (Ind. 2009).
Mo.Baldwin v. Kansas City Rys. Co., 218 S.W. 955 (Mo. Ct. App. 1920).
Mo.Baldwin v. Kansas City Rys. Co., 218 S.W. 955 (Mo. Ct. App. 1920).
73.Necessity of payment or liability thereforMedical..., 25 C.J.S. Damages 73
5
6
7
8
N.Y.Coyne v. Campbell, 11 N.Y.2d 372, 230 N.Y.S.2d 1, 183 N.E.2d 891 (1962).
OhioDepouw v. Bichette, 162 Ohio App. 3d 336, 2005-Ohio-3695, 833 N.E.2d 744 (2d Dist. Montgomery County
2005).
Cal.Rodriguez v. McDonnell Douglas Corp., 87 Cal. App. 3d 626, 151 Cal. Rptr. 399 (2d Dist. 1978).
Wis.Redepenning v. Dore, 56 Wis. 2d 129, 201 N.W.2d 580 (1972).
N.Y.Zavaglia v. Sarah Neuman Center for Healthcare and Rehabilitation, 25 Misc. 3d 590, 883 N.Y.S.2d 889 (Sup
2009).
End of Document
74.Necessity of payment or liability thereforCharges..., 25 C.J.S. Damages 74
Damages
1. Pecuniary Losses
c. Expenses
74. Necessity of payment or liability thereforCharges paid
or reimbursed by defendant or by other individual or entity
There can be no recovery for medical and similar services where the bill for the services was paid by the
defendant. While the courts are not in agreement as to the effect of payment of medical expenses by a third
person, generally, the fact that the plaintiff's medical or hospital expenses have been paid or that he or she
has been reimbursed for such expenses under the terms of an insurance policy or of a welfare fund does
not preclude him or her from recovering for such expenses.
There can be no recovery for medical and similar services where the bill for the services was paid by the
defendant 1 even though this was done without the knowledge, consent, or approval of the plaintiff 2 or where
the doctor employed by the defendant to care for the plaintiff had filed direct suit against the defendant to recover
for his or her services. 3
While there is authority that a recovery may be had for medical and similar services necessitated by the injury
sued for even though the charges have been paid by a third person, 4 there is also authority that a recovery cannot
be had for services where the charges therefor were voluntarily paid by a third person. 5
Payment by insurance company, welfare fund, or medical or hospital association.

The fact that the plaintiff's medical or hospital expenses have been paid, 6 or that he or she has been reimbursed
for such expenses, 7 under the terms of an insurance policy or of a welfare fund does not preclude him or her
from recovering for such expenses. The plaintiff is entitled to recover the charges of special nurses even though
such charges were paid by a hospital association to which the plaintiff made regular contributions. 8 The fact that
the plaintiff belongs to an association that provides in its contract with its members that they are not liable for
74.Necessity of payment or liability thereforCharges..., 25 C.J.S. Damages 74
medical services rendered to them by a member physician unless they recover damages for such services does not
preclude the plaintiff, as a matter of law, from recovering for such services. 9
When a tortiously injured person receives medical care for his or her injuries and the provider of that care accepts
as full payment, pursuant to a preexisting contract with the injured person's health insurer, an amount less than
that stated in the provider's bill, the injured person may not recover from the tortfeasor, as economic damages for
past medical expenses, the undiscounted sum stated in the provider's bill but never paid by or on behalf of the
injured person because the injured person does not suffer any economic loss in that amount. 10
Footnotes
La.Hanley v. Checker Cab Co., 12 La. App. 562, 126 So. 274 (Orleans 1930).
1
Conn.Goodwin v. Giovenelli, 117 Conn. 103, 167 A. 87 (1933).
2
La.Fowler v. Monteleone, 153 So. 490 (La. Ct. App., Orleans 1934).
3
Conn.Carangelo v. Nutmeg Farm, 115 Conn. 457, 162 A. 4, 82 A.L.R. 1320 (1932) (disapproved of on other grounds
4
5
6
7
8
9
10
by, St. Onge, Stewart, Johnson and Reens, LLC v. Media Group, Inc., 84 Conn. App. 88, 851 A.2d 1242 (2004)).
Minn.Dahlin v. Kron, 232 Minn. 312, 45 N.W.2d 833 (1950).
La.Lambert v. Cire, 179 So. 112 (La. Ct. App., Orleans 1938).
Va.Sykes v. Brown, 156 Va. 881, 159 S.E. 202 (1931).
Mo.Kickham v. Carter, 335 S.W.2d 83 (Mo. 1960).
Tex.Tate v. Hernandez, 280 S.W.3d 534 (Tex. App. Amarillo 2009).
Ky.Conley v. Foster, 335 S.W.2d 904 (Ky. 1960).
U.S.Grayson v. Williams, 256 F.2d 61 (10th Cir. 1958).
For discussion of the reduction of damages for payments received from collateral sources, see 189 to 191.
Cal.Purcell v. Goldberg, 34 Cal. App. 2d 344, 93 P.2d 578 (1st Dist. 1939).
End of Document
75.Future expenditures, 25 C.J.S. Damages 75
Damages
1. Pecuniary Losses
c. Expenses
75. Future expenditures
If the injured person's condition is such that further outlays for medical or surgical treatment or nursing
and attendance will be required, damages for such prospective expenses may be awarded.
The jury may, in assessing damages, consider the circumstance that in the future, the plaintiff will be subjected
to expenses for doctor's bills, nursing, and attendance. 1 If the condition of the person is such that further outlays
for medical or surgical treatment or nursing and attendance will be required, the jury may award damages for
such prospective expenses. 2 Thus, medical and similar expenses that are reasonably certain to be incurred, 3 or
that will probably be incurred, 4 in the future as a result of the injury sued for are recoverable provided that the
requisite causal connection is established 5 and that an evidentiary basis exists upon which the jury can, with
reasonable certainty, determine the amount of those expenses. 6
Surgery.
Since there is no legal basis for assessing against the defendant the cost of a hypothetical operation that may never
be performed, 7 the cost of surgery to be performed in the future is not recoverable where it is not certain that the
operation will be required 8 or where it does not appear that the injured person intends to submit to the operation 9
or that he or she has demanded that the operation be performed. 10 However, under some circumstances, a recovery
for the cost of recommended surgery may be warranted regardless of whether or not the injured person actually
undergoes the operation. 11
A recovery may properly be had for the cost of plastic surgery to be performed in the future even though such
surgery will be performed for the purpose of benefiting the plaintiff's nervous condition arising out of the injury
sued for rather than as a matter of medical necessity, 12 but the cost of plastic surgery to be performed in the future
is not recoverable where there is nothing to show that the plaintiff contemplates undergoing such an operation. 13
Services of spouse.
Compensation for future nursing services to be rendered by the injured person's spouse is not recoverable since
such services are part of the uninjured spouse's duty to assist the injured spouse. 14
Cases:
Jury's award of damages for future medical expenses in the amount of $24,000 in action stemming from motor
vehicle accident was not supported by the evidence; jury awarded injured motorist $24,000 in future medical
expenses even though the only testimony presented to prove or disprove the value of that award stated that lowest
value of future medical expenses motorist was likely to incur was $106,515.65. Buckheister v. U.S. Environmental
Services, L.L.C., 97 So. 3d 414 (La. Ct. App. 5th Cir. 2012), writ denied, 2012-1462 La. 10/8/12, 2012 WL
4951164 (La. 2012).
Because an award of future medical expenses lies largely within the factfinder's discretion, appellate courts are
especially hesitant to disturb a fact-finder's conclusion in this regard. Finley v. P.G., 428 S.W.3d 229 (Tex. App.
Houston 1st Dist. 2014).
[END OF SUPPLEMENT]
Footnotes
La.Cushman v. Fireman's Fund Ins. Co., 401 So. 2d 477 (La. Ct. App. 2d Cir. 1981).
1
2
3
Okla.M. K. & O. Airline Transit Co. v. Deckard, 1964 OK 262, 397 P.2d 888 (Okla. 1964).
Ariz.Allen v. Devereaux, 5 Ariz. App. 323, 426 P.2d 659 (1967).
Wash.Leak v. U.S. Rubber Co., 9 Wash. App. 98, 511 P.2d 88, 89 A.L.R.3d 78 (Div. 2 1973).
U.S.Lesch v. U.S., 612 F.3d 975 (8th Cir. 2010).
Reasonable degree of medical certainty
Nev.York v. Smith, 2010 WL 3270228 (Nev. 2010).
Fla.Montesinos v. Zapata, 43 So. 3d 97 (Fla. Dist. Ct. App. 3d Dist. 2010), review dismissed, 55 So. 3d 1288 (Fla.
2011).
Prenatal injuries
U.S.Sox v. U.S., 187 F. Supp. 465 (E.D. S.C. 1960).
5
6
More probable than not

La.Hoagboon v. Cannon, 54 So. 3d 802 (La. Ct. App. 1st Cir.2010).
La.McDonald v. AIG Nat. Ins. Co., Inc., 63 So. 3d 240 (La. Ct. App. 5th Cir. 2011).
Fla.Pruitt v. Perez-Gervert, 41 So. 3d 286 (Fla. Dist. Ct. App. 2d Dist. 2010), review dismissed, 47 So. 3d 1290
(Fla. 2010).
Sufficient evidence of future costs
La.Simon v. State Farm Mut. Auto. Ins. Co., 43 So. 3d 990 (La. Ct. App. 3d Cir. 2010), writ denied, 48 So. 3d
1094 (La. 2010).
7
8
9
10
11
12
13
14
Insufficient evidence of future costs

N.Y.Leto v. Amrex Chemical Co., Inc., 85 A.D.3d 1509, 926 N.Y.S.2d 697 (3d Dep't 2011).
U.S.Rodriguez v. Gerontas Compania De Navegacion, S a, 150 F. Supp. 715 (S.D. N.Y. 1957), decree aff'd by, 256
F.2d 582 (2d Cir. 1958).
La.Carhee v. Scott, 104 So. 2d 236 (La. Ct. App. 2d Cir. 1958).
Nev.York v. Smith, 2010 WL 3270228 (Nev. 2010).
U.S.Rodriguez v. Gerontas Compania De Navegacion, S a, 150 F. Supp. 715 (S.D. N.Y. 1957), decree aff'd by, 256
F.2d 582 (2d Cir. 1958).
Continued disability
Plaintiff was entitled to an award for surgical expense whether or not he subsequently underwent the recommended
surgery where the basis of the award was not to compensate him for the intended surgery but as a substitute for a greater
award for the continued disability that would otherwise result.
La.Dark v. Brinkman, 136 So. 2d 463 (La. Ct. App. 3d Cir. 1962).
La.Burley v. Chase, 76 So. 2d 593 (La. Ct. App. 2d Cir. 1954).
La.Davis v. Midwest Dairy Products Corp., 58 So. 2d 741 (La. Ct. App. 2d Cir. 1952).
Permanent confinement to wheelchair
La.James v. State Through Bd. of Adm'rs of Charity Hospital of La. at New Orleans, 154 So. 2d 497 (La. Ct. App.
4th Cir. 1963).
End of Document
76.Future expendituresMedical monitoring, 25 C.J.S. Damages 76
Damages
1. Pecuniary Losses
c. Expenses
76. Future expendituresMedical monitoring
Where the cause of action is recognized, a claim for medical monitoring permits a plaintiff to recover the
costs of diagnostic testing for diseases that may develop in the future as a result of a defendant's conduct.
Under some authority, the need to undergo medical monitoring examinations in the future due to exposure to a
dangerous substance is not an actual injury giving rise to a tort claim. 1 However, recovery for future medical
monitoring is allowed in some jurisdictions. 2 A claim for medical monitoring permits a plaintiff to recover the
costs of diagnostic testing for diseases that may develop in the future as a result of a defendant's conduct. 3 To
prevail on a medical monitoring claim, the plaintiffs must prove: (1) exposure greater than normal background
levels; (2) to a proven hazardous substance; (3) caused by the defendant's negligence; (4) as a proximate result of
the exposure, the plaintiff has a significantly increased risk of contracting a serious latent disease; (5) a monitoring
procedure exists that makes the early detection of the disease possible; (6) the prescribed monitoring regime is
different from that normally recommended in the absence of the exposure; and (7) the prescribed monitoring
regime is reasonably necessary according to contemporary scientific principles. 4
Cases:
Under New York law, a plaintiff may obtain the remedy of medical monitoring as consequential damages, so long
as the remedy is premised on the plaintiff establishing entitlement to damages on an already existing tort cause of
action. In re World Trade Center Lower Manhattan Disaster Site Litigation, 758 F.3d 202 (2d Cir. 2014).
[END OF SUPPLEMENT]
76.Future expendituresMedical monitoring, 25 C.J.S. Damages 76
Footnotes
Wis.Alsteen v. Wauleco, Inc., 335 Wis. 2d 473, 2011 WI App 105, 802 N.W.2d 212 (Ct. App. 2011).
1
U.S.Gates v. Rohm and Haas Co., 655 F.3d 255, 80 Fed. R. Serv. 3d 604 (3d Cir. 2011); Rhodes v. E.I. du Pont de
2
Nemours and Co., 636 F.3d 88 (4th Cir. 2011), cert. denied, 132 S. Ct. 499 (2011); In re Mattel, Inc., 588 F. Supp.
2d 1111 (C.D. Cal. 2008).
Exposure to toxins
Cal.Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 25 Cal. Rptr. 2d 550, 863 P.2d 795 (1993).
Damage to lungs from smoking
3
4
A.L.R. Library
Future disease or condition, or anxiety relating thereto, as element of recovery, 50 A.L.R.4th 13.
U.S.Rhodes v. E.I. du Pont de Nemours and Co., 636 F.3d 88 (4th Cir. 2011), cert. denied, 132 S. Ct. 499 (2011).
U.S.Gates v. Rohm and Haas Co., 655 F.3d 255, 80 Fed. R. Serv. 3d 604 (3d Cir. 2011).
Pa.Pohl v. NGK Metals Corp., 2007 PA Super 306, 936 A.2d 43 (2007).
End of Document
Damages
1. Pecuniary Losses
c. Expenses
(4) Damage to Property
(a) In General
77. Generally
Any reasonable expense naturally and proximately resulting from loss of, or damage to, property, even
though not actually paid out, usually is a proper element of recovery.
Any expense incurred by the loss of, or damage to, property is usually compensated in damages. 1 Where the
property is susceptible of being repaired, the cost of such repairs and replacements as are necessary to restore
the property to the condition in which it was immediately prior to the damage, or as nearly as possible to such
condition, is recoverable, 2 in addition to the necessary charges incurred in transporting the property for the
purpose of having it repaired. 3
The rule permitting compensation in damages for expenses incurred by the loss of, or damage to, property is
subject to the qualification that a property owner has no right to recover for an expense caused by another's proper
use of his or her own property even though his or her property is injuriously affected thereby. 4 The rule is also
subject to the further qualification that an expense is not recoverable unless it is the natural and proximate result
of the injury. 5 There is no right to recover for the expense of repairs that were not necessitated by the injury 6 or
that serve to make the property more valuable or put it in a condition that is better than it was immediately prior
to the injury. 7 There also is no right to recover for living expenses incurred while damaged living quarters were
being repaired unless it appears that such expenses were in excess of what they would have been if the injury
had not occurred. 8
In order to be recoverable as an expense incurred by reason of the loss of, or damage to, property, the expense must
be reasonable, 9 and this rule applies to the expense of repairs and replacements, as well as to other expenses. 10
Temporary substitute.
The expense of hiring a substitute for use pending the repair or replacement of the property may be a proper
element of damage 11 but not where there is no right to recover for the loss of use of the damaged property. 12
There cannot be a recovery of the entire value of the property damaged or destroyed and also of the expense of
hiring a substitute. 13 Also, one damaged by an injury to a building is not entitled to recover for the upkeep of a
new building erected by him or her to replace the injured structure. 14
Fees of experts.
Expert fees involved in repairing damaged property may be recovered as tort damages, not costs, resulting from
defective construction. 15
Veterinary costs.
Although veterinary expenses are not directly recoverable by analogy to a claim for medical expenses in a personal
injury action, veterinary expenses may be relevant in pet-injury cases as a form of "repair" cost offering a measure
of the pet owner's property damages. 16
Liability for payment as sufficient.

Where personal property has been damaged, it is not necessary that money should have been actually paid out for
expenses in order that it may be recovered, and it is sufficient that it is liable to be paid. 17
Crops.
While losses resulting from the destruction of, or injury to, unmatured crops may form a proper element of
damages, 18 damages based on the value of unmatured crops are analogous to lost profits and are governed by
the same rule precluding recovery in cases of either uncertainty, speculativeness, or remoteness. 19 The question
whether damages based on the result of an unmatured crop are speculative must be determined by whether there
is sufficient data to determine with reasonable certainty the probable value that it would have had if matured. 20
Footnotes
U.S.Canal Barge Co., Inc. v. Torco Oil Co., 220 F.3d 370 (5th Cir. 2000).
1
2
Mo.City of Kennett v. Akers, 564 S.W.2d 41 (Mo. 1978).

IdahoSalmon Rivers Sportsman Camps, Inc. v. Cessna Aircraft Co., 97 Idaho 348, 544 P.2d 306 (1975).
Tex.McCullough-Baroid Petroleum Service NL Industries v. Sexton, 618 S.W.2d 119 (Tex. Civ. App. Corpus Christi
1981), writ refused n.r.e., (Oct. 28, 1981).
Entirely or partially reparable damage
Kan.Foster v. Humburg, 180 Kan. 64, 299 P.2d 46 (1956).
Ala.Hunt v. Ward, 262 Ala. 379, 79 So. 2d 20 (1955).
Tex.Pasadena State Bank v. Isaac, 222 S.W.2d 181 (Tex. Civ. App. Galveston 1948), judgment rev'd on other
grounds, 149 Tex. 47, 228 S.W.2d 127 (1950).
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
Mont.Goetschius v. Lasich, 137 Mont. 465, 353 P.2d 87 (1960).

Conn.Hedderman v. Robert Hall of Waterbury, Inc., 145 Conn. 410, 144 A.2d 60 (1958).
N.J.Stanley Co. of America v. Hercules Powder Co., 16 N.J. 295, 108 A.2d 616, 45 A.L.R.2d 1106 (1954).
N.J.Stanley Co. of America v. Hercules Powder Co., 16 N.J. 295, 108 A.2d 616, 45 A.L.R.2d 1106 (1954).
La.Letts v. Krause & Managan, 26 So. 2d 838 (La. Ct. App. 1st Cir. 1946).
Mass.Childs v. O'Leary, 174 Mass. 111, 54 N.E. 490 (1899).
Tex.Tinney v. Williams, 144 S.W.2d 344 (Tex. Civ. App. Amarillo 1940).
Tex.O'Donell v. Preston, 301 S.W.2d 288 (Tex. Civ. App. Fort Worth 1957), writ refused n.r.e.
N.Y.Rogers v. Interurban St. Ry. Co., 84 N.Y.S. 974 (App. Term 1903).
As to car rental, see 82.
U.S.Insurance Co. of North America v. Saltzman, 111 F. Supp. 694 (W.D. Ark. 1953).
Loss of use of property as element of damages, see 78, 81.
N.Y.Viane v. Central Brewing Co., 174 N.Y.S. 669 (App. Term 1919).
N.D.Truscott v. Peterson, 78 N.D. 498, 50 N.W.2d 245 (1951).
Cal.Gorman v. Tassajara Development Corp., 178 Cal. App. 4th 44, 100 Cal. Rptr. 3d 152 (6th Dist. 2009), as
modified on denial of reh'g, (Nov. 4, 2009).
Del.Naples v. Miller, 2009 WL 1163504 (Del. Super. Ct. 2009).
La.Camp v. National Cas. Co., 1 So. 2d 118 (La. Ct. App., Orleans 1941).
Okla.Coe v. Esau, 1963 OK 1, 377 P.2d 815 (Okla. 1963).
Cal.Zvolanek v. Bodger Seeds, 5 Cal. App. 2d 106, 42 P.2d 92 (2d Dist. 1935).
Neb.Turnell v. Mahlin, 171 Neb. 513, 106 N.W.2d 693 (1960).
Mo.Blackburn v. Carlson Seed Co., 321 S.W.2d 520 (Mo. Ct. App. 1959).
Neb.Patrick v. City of Bellevue, 164 Neb. 196, 82 N.W.2d 274 (1957).
End of Document
78.Deprivation, or loss of use of property, 25 C.J.S. Damages 78
Damages
1. Pecuniary Losses
c. Expenses
(a) In General
78. Deprivation, or loss of use of property
Losses from the deprivation or loss of use of property may be a proper element of damages.
Losses from the destruction of real 1 or personal 2 property, or from injury to, or depreciation in the value of,
real 3 or personal 4 property may form a proper element of damages.
There may be a recovery for the loss of the use of property 5 provided that the use was a lawful one, 6 the deprived
person is in a position to use the property, 7 and the damages are established with reasonable certainty 8 and are
not speculative and problematical. 9 While there is authority that in order for a recovery for the loss of the use
of property to be proper, the property must be repairable and must not have been totally destroyed or damaged
beyond repair, 10 there is also authority that a recovery for the loss of the use of property is allowable even where
the property has been totally destroyed or damaged beyond repair. 11
Lost-use damages are frequently, but not categorically, consequential in nature. 12
Income-producing asset.
The plaintiff seeking damages for the loss of an income-producing asset must prove that liability for loss of the
asset was within the contemplation of the parties at the time when the contract was made, and the asset's value
should be proven with reasonable certainty. 13
Articles of luxury or personal pleasure.
While there is also authority to the contrary, 14 there is authority that one who has been wrongfully deprived of
the use of an article may recover substantial damages for such deprivation notwithstanding that it is an article of
luxury and devoted by him or her solely to personal pleasure and gratification. 15
Cases:
Colorado law permits recovery of damages when a plaintiff is wrongfully deprived of the ability to use a chattel.
Koenig v. PurCo Fleet Services, Inc., 2012 CO 56, 285 P.3d 979 (Colo. 2012).
[END OF SUPPLEMENT]
Footnotes
U.S.A.M.R. Enterprises, Inc. v. United Postal Sav. Ass'n, 567 F.2d 1277 (5th Cir. 1978).
1
N.H.Win-Tasch Corp. v. Town of Merrimack, 120 N.H. 6, 411 A.2d 144 (1980).
Measure of damages for injuries to real property, see 150 to 155.
U.S.Standard Oil Co. of New Jersey v. Southern Pac. Co., 268 U.S. 146, 45 S. Ct. 465, 69 L. Ed. 890 (1925); Sprint
Communications Co., L.P. v. Western Innovations, Inc., 618 F. Supp. 2d 1101 (D. Ariz. 2009), on reconsideration in
part, 2009 WL 1458467 (D. Ariz. 2009) and opinion supplemented, 618 F. Supp. 2d 1124 (D. Ariz. 2009).
Ill.United Airlines, Inc. v. City of Chicago, 2011 IL App (1st) 102299, 352 Ill. Dec. 627, 954 N.E.2d 710 (App.
Ct. 1st Dist. 2011).
U.S.Scribner v. Summers, 138 F.3d 471 (2d Cir. 1998).
Diminution in rental value
Mass.Rattigan v. Wile, 445 Mass. 850, 841 N.E.2d 680 (2006).
4
5
6
7
8
Unmarketability of property for period of time

U.S.Trident Inv. Management, Inc. v. Amoco Oil Co., 194 F.3d 772 (7th Cir. 1999).
U.S.Platis v. U.S., 288 F. Supp. 254 (D. Utah 1968), judgment aff'd, 409 F.2d 1009 (10th Cir. 1969).
IdahoJust's, Inc. v. Arrington Const. Co., 99 Idaho 462, 583 P.2d 997 (1978).
U.S.Day & Zimmerman, Inc. v. Blocked Iron Corp. of America, 200 F. Supp. 132 (E.D. Pa. 1961).
Time required to procure repair
Tex.O'Donell v. Preston, 301 S.W.2d 288 (Tex. Civ. App. Fort Worth 1957), writ refused n.r.e.
Kan.Anderson v. Rexroad, 180 Kan. 505, 306 P.2d 137 (1957).
N.D.Mahanna v. Westland Oil Co., 107 N.W.2d 353 (N.D. 1960).
N.D.Mahanna v. Westland Oil Co., 107 N.W.2d 353 (N.D. 1960).
Del.Adams v. Hazel, 48 Del. 301, 102 A.2d 919 (Super. Ct. 1954).
Commissions not recoverable

La.Guillot v. Jones, 67 So. 2d 501 (La. Ct. App., Orleans 1953).
Kan.Peterson v. Bachar, 193 Kan. 161, 392 P.2d 853 (1964).
10
Actual, economic loss rather than mere assumed intrinsic loss

Colo.PurCo Fleet Services, Inc. v. Koenig, 240 P.3d 435 (Colo. App. 2010), certiorari granted in part, 2010 WL
3389333 (Colo. 2010).
Tex.Cogbill v. Martin, 308 S.W.2d 269 (Tex. Civ. App. Waco 1957).
11
General maritime law

U.S.Rev-Lyn Contracting Co. v. Patriot Marine, LLC, 760 F. Supp. 2d 162 (D. Mass. 2010).
Ky.Louisville & N.R. Co. v. Blanton, 304 Ky. 127, 200 S.W.2d 133 (1947).
12
13
14
15
Tex.Powell Elec. Systems, Inc. v. Hewlett Packard Co., 2011 WL 1598758 (Tex. App. Houston 1st Dist. 2011).
Colo.Hunter v. Quaintance, 69 Colo. 28, 168 P. 918 (1917).
OhioHarris v. Keller, 84 Ohio L. Abs. 45, 170 N.E.2d 305 (Mun. Ct. 1960).
Wash.Holmes v. Raffo, 60 Wash. 2d 421, 374 P.2d 536 (1962).
End of Document
79.Amounts paid out to third persons, 25 C.J.S. Damages 79
Damages
1. Pecuniary Losses
c. Expenses
(a) In General
79. Amounts paid out to third persons
Under some circumstances, one damaged by an injury to property may be entitled to recover the amount
of damages that he or she is required to pay to a third person as a result of the injury.
Under some circumstances, one damaged by an injury to property may be entitled to recover the amount of
damages that he or she is required to pay to a third person as a result of the injury. 1 However, there is no right to
recover sums paid to third persons voluntarily and without legal obligation 2 or amounts paid out to third persons
that have no relation to the injury inflicted on the property. 3
Footnotes
Tenn.Wilson v. Page, 45 Tenn. App. 475, 325 S.W.2d 294 (1958).
1
2
3
Donations to charity
End of Document
Damages
1. Pecuniary Losses
c. Expenses
(b) Motor Vehicles
80. Generally
The reasonable cost of preserving and repairing damaged motor vehicles may be recovered as damages.
The amount recoverable for damage to a motor vehicle ordinarily includes the reasonable expenses necessarily
incurred as a direct or proximate result of the injury, 1 but expenses that are unnecessary, 2 or that are not the
proximate result of the wrong or injury, 3 are not recoverable. When the motor vehicle is susceptible of restoration,
the reasonable cost of restoring it to its original condition is ordinarily one of the elements of damage, 4 whether
or not such sum has actually been expended 5 or the automobile actually repaired. 6
While the expense of picking up the damaged vehicle may not, under some circumstances, be recoverable, 7
generally, towage charges that are necessarily incurred as a result of the injury are recoverable provided that they
are reasonable in view of the circumstances. 8 Likewise, an allowance may properly be made for the cost of storing
the automobile pending repair, 9 as well as for the cost of preserving it. 10
In the case of a very seriously damaged vehicle, the owner may be entitled to recover the reasonable expense of
storing the vehicle for a reasonable time while he or she determines whether to abandon it or have it repaired,
and what constitutes a reasonable time for such purpose depends on the facts and circumstances of the particular
case. 11
On the other hand, expenditures for repairs or for incidental services in connection therewith that are not shown
to be necessary for the purpose of restoring the vehicle to the condition in which it was immediately before the
accident usually are not recoverable. 12 Thus, there is no right to recover the cost of repairs that restore the vehicle
to a better condition than it was in immediately before the accident. 13 Also, the expense of a trip made to ascertain
who ran into the plaintiff's automobile is not a proper item of damages. 14
Footnotes
AlaskaCurt's Trucking Co. v. City of Anchorage, 578 P.2d 975 (Alaska 1978).
1
2
3
4
5
6
7
8
9
10
11
12
13
14
Tenn.Chattanooga Ice Delivery Co. v. George F. Burnett Co., 24 Tenn. App. 535, 147 S.W.2d 750 (1940).
U.S.Maurer v. U.S., 219 F. Supp. 253 (E.D. Wis. 1963).
OhioBingham v. Slabach, 2008-Ohio-5555, 2008 WL 4712593 (OhioCt. App. 5th Dist. Stark County 2008).
Increased cost of insurance
N.Y.Silvernail v. Hallenback, 33 Misc. 2d 83, 226 N.Y.S.2d 48 (Sup 1962).
La.Eubanks v. Wilson, 162 So. 2d 842 (La. Ct. App. 3d Cir. 1964).
S.C.Barnett v. Charleston & W. C. Ry. Co., 230 S.C. 525, 96 S.E.2d 555 (1957).
Mont.Hoenstine v. Rose, 131 Mont. 557, 312 P.2d 514 (1957).
Okla.Coe v. Esau, 1963 OK 1, 377 P.2d 815 (Okla. 1963).
La.Allen v. State Farm Mut. Auto. Ins. Co., 120 So. 2d 372 (La. Ct. App. 2d Cir. 1960).
S.C.Newman v. Brown, 228 S.C. 472, 90 S.E.2d 649, 55 A.L.R.2d 929 (1955).
Tex.Robert R. Walker, Inc. v. Burgdorf, 150 Tex. 603, 244 S.W.2d 506 (1951).
U.S.McDonald v. Patton, 240 F.2d 424 (4th Cir. 1957).
OhioBingham v. Slabach, 2008-Ohio-5555, 2008 WL 4712593 (Ohio Ct. App. 5th Dist. Stark County 2008).
OhioBingham v. Slabach, 2008-Ohio-5555, 2008 WL 4712593 (OhioCt. App. 5th Dist. Stark County 2008).
UtahMetcalf v. Mellen, 57 Utah 44, 192 P. 676 (1920).
La.White v. Trahan, 111 So. 2d 561 (La. Ct. App. 1st Cir. 1959).
Ark.Jeter v. Everette, 173 Ark. 25, 291 S.W. 813 (1927).
IowaFischer v. Hawkeye Stages, 240 Iowa 1203, 37 N.W.2d 284 (1949).
Mont.McDonough v. Smith, 86 Mont. 545, 284 P. 542 (1930).
End of Document
81.Deprivation or loss of use of vehicle, 25 C.J.S. Damages 81
Damages
1. Pecuniary Losses
c. Expenses
(b) Motor Vehicles
81. Deprivation or loss of use of vehicle
The authorities disagree as to whether losses from the deprivation or loss of use of a vehicle may be a proper
element of damages.
While there is also authority to the contrary, 1 there is authority that the principle of allowing damages for the
loss of use of property is applicable to vehicles 2 as long as there is evidence that the car was actually used before
it was damaged. 3 Under some authority, damages for the loss of use of a vehicle is allowable even where the
vehicle is totally destroyed, 4 damages being allowed for loss of use during the period required for replacement
thereof, 5 but under other authority, damages for loss of use of a vehicle may be allowed only when the vehicle
is repairable 6 and not when it has been totally destroyed or has been damaged beyond repair. 7
Footnotes
1
Mich.Holcomb v. Bullock, 353 Mich. 514, 91 N.W.2d 869 (1958).
Neb.Neill v. McGinn, 175 Neb. 369, 122 N.W.2d 65 (1963) (holding modified on other grounds by, Chlopek v.
Schmall, 224 Neb. 78, 396 N.W.2d 103 (1986)).
Failure to have automobile repaired
La.Pellegrin v. Hebert, 107 So. 2d 853 (La. Ct. App. 1st Cir. 1959).
Business abandoned before damage

UtahGardner v. Airway Motor Coach Lines, 109 Utah 128, 166 P.2d 196 (1946).
La.Ashley v. Strong, 19 So. 3d 1260 (La. Ct. App. 3d Cir. 2009).
Wis.Hellenbrand v. Hilliard, 275 Wis. 2d 741, 2004 WI App 151, 687 N.W.2d 37 (Ct. App. 2004).
81.Deprivation or loss of use of vehicle, 25 C.J.S. Damages 81
Vehicle used for livelihood

La.Alderman v. Henderson, 130 So. 2d 157 (La. Ct. App. 2d Cir. 1961).
Pleasure vehicles
N.C.Sprinkle v. N.C. Wildlife Resources Com'n, 165 N.C. App. 721, 600 S.E.2d 473 (2004).
Use for business or pleasure
5
6
7
Classic car
Cal.Metz v. Soares, 142 Cal. App. 4th 1250, 48 Cal. Rptr. 3d 743 (3d Dist. 2006).
U.S.Guido v. Hudson Transit Lines, 178 F.2d 740 (3d Cir. 1950).
Cal.Reynolds v. Bank of America National T. & S. Ass'n, 53 Cal. 2d 49, 345 P.2d 926, 73 A.L.R.2d 716 (1959).
Vehicle specially constructed for particular use; substitute unavailable
Cal.Reynolds v. Bank of America National T. & S. Ass'n, 53 Cal. 2d 49, 345 P.2d 926, 73 A.L.R.2d 716 (1959).
OhioHayes Freight Lines v. Tarver, 148 Ohio St. 82, 35 Ohio Op. 60, 73 N.E.2d 192 (1947).
La.Le Blanc v. Southern Farm Bureau Cas. Ins. Co., 104 So. 2d 279 (La. Ct. App. 1st Cir. 1958).
End of Document
82.Cost of hiring another vehicle and paying wages of driver, 25 C.J.S. Damages 82
Damages
1. Pecuniary Losses
c. Expenses
(b) Motor Vehicles
82. Cost of hiring another vehicle and paying wages of driver
Where the circumstances are such that the loss of the use of a motor vehicle is an element of the damage, the
plaintiff may recover an amount necessarily expended for the rent or hire of a similar vehicle with which
to perform the services usually performed by the damaged car, or for substitute transportation, during the
period of repairs, along with the cost of hiring a driver to operate it.
Where the circumstances are such that the loss of the use of a motor vehicle is an element of the damage, the
plaintiff may recover an amount necessarily expended for the rent or hire of a similar vehicle with which to perform
the services usually performed by the damaged car, or for substitute transportation, during the period of repairs. 1
On the other hand, the plaintiff is not entitled to be reimbursed for the expense of hiring a substitute vehicle or
for the cost of substitute transportation unless the loss of use of the vehicle constitutes an element of the damages
recoverable by him or her. 2
Where the vehicle was in such a condition that the owner could not immediately decide whether to abandon
it or have it repaired, he or she may be entitled to recover the amount spent by him or her in hiring substitute
transportation for a reasonable period of time during which he or she made up his or her mind. 3 In the case of a
wrecked vehicle, the plaintiff may be entitled to be reimbursed for reasonable expenditures necessarily made by
him or her for renting a substitute vehicle for use during the time when it takes him or her to purchase a suitable
replacement 4 provided that the time spent by him or her in making the purchase is reasonable under the facts
and circumstances of the particular case. 5
Provided that the price paid by the plaintiff for the use of a substitute vehicle while the damaged vehicle was being
repaired was not in excess of the reasonable rental value of the substitute vehicle, the plaintiff may be entitled to
recover such amount even though it includes a sum covering depreciation of the substitute vehicle and a profit
to the owner. 6 However, the plaintiff is not entitled to recover the cost of the gasoline used by him or her in the
operation of a hired car 7 or for the repairs thereon. 8
While the plaintiff is not entitled to recover the cost of the upkeep of a hired or rented vehicle, 9 he or she is
entitled to recover the cost of insuring such a vehicle unless it appears that the insurance on the damaged vehicle
covers the hired or rented vehicle. 10
Under some authorities, the expense of a driver or of hiring a substitute vehicle during the period of repairs is in
the nature of a special damage that is recoverable only because it is actually expended so that no recovery can
be had therefor in the absence of a showing that the payment has actually been made. 11 However, there is also
authority that the fact that the plaintiff did not actually expend money in hiring a substitute car while his or her
own was being repaired does not prevent him or her from recovering for the loss of its use. 12 Furthermore, the
cost of hiring a substitute vehicle during the period of repairs may be recovered not only where the plaintiff has
actually paid therefor but also where he or she has contracted to pay. 13
There is authority for the view that the plaintiff is entitled to recover the reasonable rental value of a suitable
substitute vehicle during the period of repairs even where he or she was given the use of such vehicle gratuitously
by a third person 14 or even though he or she did not, in fact, procure or rent such a vehicle. 15 In the case of a
wrecked vehicle, the plaintiff's right to recover the reasonable rental value of a substitute vehicle for use during
the time when it took him or her to purchase a suitable replacement does not depend on whether or not he or she
actually rented such a vehicle. 16
Under some circumstances, the plaintiff may be entitled to recover the cost of transporting himself or herself and
his or her passengers to their point of destination. 17
Driver's wages.
Where the only car available for hire is one that the plaintiff is unable to drive, the cost of hiring a driver to operate
it is a proper element of his or her damage. 18 The award may also properly include an allowance for the wages
of a driver whom the defendant was obliged to pay during the time when the vehicle was out of service because
of the accident where such item is shown to be the direct and immediate result thereof. 19 However, the wages
of a driver for the substitute vehicle are not recoverable where the plaintiff's regular driver was available and was
paid during the time that the damaged vehicle was being repaired. 20
Footnotes
1
2
3
4
5
6
7
8
OhioBingham v. Slabach, 2008-Ohio-5555, 2008 WL 4712593 (Ohio Ct. App. 5th Dist. Stark County 2008).
La.Adam v. English, 21 So. 2d 633 (La. Ct. App., Orleans 1945).
U.S.Buchanan v. Leonard, 127 F. Supp. 120 (D. Colo. 1954).
La.Terrebonne v. Toye Bros. Yellow Cab Co., 64 So. 2d 868 (La. Ct. App., Orleans 1953).
Pa.Holt v. Pariser, 161 Pa. Super. 315, 54 A.2d 89 (1947).
N.Y.Goldshear v. Blank, 168 N.Y.S. 628 (App. Term 1918).
N.Y.Page v. Schaffer Tinware Mfg. Co., 173 N.Y.S. 374 (App. Term 1919).
9
10
11
12
13
14
15
16
17
18
19
20
N.Y.Page v. Schaffer Tinware Mfg. Co., 173 N.Y.S. 374 (App. Term 1919).
La.Loret v. Armour & Co., 32 So. 2d 55 (La. Ct. App. 1st Cir. 1947).
Ala.Bates v. General Steel Tank Co., 36 Ala. App. 261, 55 So. 2d 213 (1951).
Cal.Lyle v. Seller, 70 Cal. App. 300, 233 P. 345 (1st Dist. 1924).
Tenn.Perkins v. Brown, 132 Tenn. 294, 177 S.W. 1158 (1915).
La.Fruit Exchange v. Simmons, 71 So. 2d 622 (La. Ct. App. 1st Cir. 1954).
S.C.Scott v. Southern Ry. Co., 231 S.C. 28, 97 S.E.2d 73 (1957).
Miss.National Dairy Products Corp. v. Jumper, 241 Miss. 339, 130 So. 2d 922 (1961).
U.S.McDonald v. Patton, 240 F.2d 424 (4th Cir. 1957).
Conn.Cook v. Packard Motor Car Co. of New York, 88 Conn. 590, 92 A. 413 (1914).
La.Madden v. Mill Engineers, Inc., 236 So. 2d 552 (La. Ct. App. 2d Cir. 1970).
End of Document
Damages
1. Pecuniary Losses
c. Expenses
(5) Expenses of Litigation and Attorney's Fees
83. Generally
West's Key Number Digest, Damages 70.1, 71, 72
Generally, there can be no recovery as damages of the expenses of litigation and attorney's fees unless
authorized by a statute or contract.
As a general rule, in the absence of statutory or contractual authorization, there can be no recovery as damages
of the costs and expenses of litigation, 1 or expenditures for counsel fees, 2 regardless of whether the successful
litigant is the plaintiff or the defendant 3 even though the necessity of engaging in the litigation was caused by
the wrongful act of the opposing party. 4 Such expenses or expenditures are not recoverable as general or special
damages 5 either in the action in which they were incurred or in a subsequent action between the parties. 6
In cases of civil injury or breach of contract, in which there is no fraud, willful negligence, or malice, the courts
have considered that an award of the costs in the action is sufficient to cover the expenses of litigation and make
no allowance for time, indirect loss, and annoyance. 7 Accordingly, litigation expenses and attorney's fees are
not ordinarily recoverable as damages either in tort actions 8 or in actions for breach of contract, 9 and they
are precluded as damages in actions for accounting, 10 actions to recover real 11 or personal 12 property, or
mandamus 13 or injunction 14 proceedings. Furthermore, the plaintiff is not entitled to attorney's fees as an element
of damages in an action for fraud in which the defendant is a fiduciary. 15
There are, however, various exceptions to, or modifications of, the general rule, 16 and under some circumstances
where the wrong is of such character that the proper protection of his or her rights requires the plaintiff to employ
counsel to gain redress, the plaintiff may recover reasonable counsel fees as an element of damages. 17 A court
of equity may allow attorney's fees when it finds this to be necessary in order to balance benefits. 18 Moreover,
there is authority that attorney's fees may be awarded even in the absence of statutory or contractual authorization
when the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. 19
Losing party.
A losing party is not entitled to attorney's fees. 20
Cases:
Attorneys' fees are not recoverable as actual damages in fraud cases. Woodhaven Partners, Ltd. v. Shamoun &
Norman, L.L.P., 422 S.W.3d 821 (Tex. App. Dallas 2014).
[END OF SUPPLEMENT]
Footnotes
U.S.Amusement Industry, Inc. v. Stern, 786 F. Supp. 2d 741 (S.D. N.Y. 2011).
1
Ky.Fields v. Womack, 294 S.W.3d 470 (Ky. Ct. App. 2009).
4
5
6
7
Costs of preparation for trial

Wis.Cordes v. Hoffman, 19 Wis. 2d 236, 120 N.W.2d 137 (1963).
Fla.Florida Hurricane Protection and Awning, Inc. v. Pastina, 43 So. 3d 893 (Fla. Dist. Ct. App. 4th Dist. 2010),
review denied, 69 So. 3d 278 (Fla. 2011).
Defending appeal
Generally, damages may not be awarded to attorneys for defending an appeal unless the appeal was taken for purposes
of delay and not in good faith.
Ill.Rosinia v. Brown, 42 Ill. App. 2d 424, 192 N.E.2d 443 (1st Dist. 1963).
U.S.Luckett v. Cohen, 169 F. Supp. 808 (S.D. N.Y. 1956).
N.Y.Idyll v. Kohn, 199 N.Y.S.2d 165 (Sup 1960).
Preparation for defense
La.Universal C.I.T. Credit Corp. v. Jones, 47 So. 2d 359 (La. Ct. App. 2d Cir. 1950).
Ill.Ritter v. Ritter, 381 Ill. 549, 46 N.E.2d 41 (1943).
N.Y.Davis Acoustical Corp. v. Hanover Ins. Co., 22 A.D.2d 843, 254 N.Y.S.2d 14 (3d Dep't 1964).
U.S.Artvale, Inc. v. Rugby Fabrics Corp., 232 F. Supp. 814, 8 Fed. R. Serv. 2d 13A.11, Case 1 (S.D. N.Y. 1964),
judgment aff'd, 363 F.2d 1002, 30 A.L.R.3d 1421 (2d Cir. 1966) (rejected on other grounds by, Bunnett v. Smallwood,
793 P.2d 157, 9 A.L.R.5th 1191 (Colo. 1990)).
N.Y.Gorman v. Kings Mercantile Co., 36 Misc. 2d 38, 231 N.Y.S.2d 642 (Sup 1962).
Kan.Ablah v. Eyman, 188 Kan. 665, 365 P.2d 181, 90 A.L.R.2d 766 (1961).
N.Y.Kessler v. Austin, 234 N.Y.S.2d 857 (Sup 1962).
Ala.Moss v. Winston, 223 Ala. 515, 137 So. 303 (1931).
Mass.Malloy v. Carroll, 287 Mass. 376, 191 N.E. 661 (1934) (disapproved of on other grounds by, Chartrand v.
Riley, 354 Mass. 242, 237 N.E.2d 10 (1968)).
Colo.Lawry v. Palm, 192 P.3d 550 (Colo. App. 2008).
N.D.Danzl v. Heidinger, 2004 ND 74, 677 N.W.2d 924 (N.D. 2004).
Negligence action for personal injuries
Mo.Watkins v. West, 297 S.W.2d 568 (Mo. Ct. App. 1957).
Inducing breach of contract
U.S.Blum v. William Goldman Theatres, 164 F.2d 192 (C.C.A. 3d Cir. 1947).
10
11
12
13
14
15
16
17
18
19
20
U.S.Beasley v. State Farm Fire & Cas. Co., 2009 WL 499167 (E.D. Mich. 2009).
Colo.Lawry v. Palm, 192 P.3d 550 (Colo. App. 2008).
N.D.Danzl v. Heidinger, 2004 ND 74, 677 N.W.2d 924 (N.D. 2004).
Fla.Hoffman v. Barlly, 97 So. 2d 355 (Fla. Dist. Ct. App. 3d Dist. 1957).
Ky.Lyon v. Whitsell, 245 S.W.2d 926 (Ky. 1951).
Ky.Lyon v. Whitsell, 245 S.W.2d 926 (Ky. 1951).
La.Pisciotta v. Du Saules, 125 So. 2d 181 (La. Ct. App. 4th Cir. 1960).
S.D.Hillcrest Terrace Corp. v. Rapid City, 71 S.D. 291, 23 N.W.2d 793 (1946).
Cal.American Fire Protection Service v. Williams, 171 Cal. App. 2d 397, 340 P.2d 644 (1st Dist. 1959).
Kan.Myers v. Strauss, 171 Kan. 91, 229 P.2d 774 (1951).
Counsel fees as damages for wrongful issuance of injunction, see C.J.S., Injunctions 464 to 466.
Cal.Alliance Mortgage Co. v. Rothwell, 10 Cal. 4th 1226, 44 Cal. Rptr. 2d 352, 900 P.2d 601 (1995).
IowaTurner v. Zip Motors, 245 Iowa 1091, 65 N.W.2d 427, 45 A.L.R.2d 1174 (1954).
U.S.Vaughan v. Atkinson, 369 U.S. 527, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962).
UtahSproul v. Parks, 116 Utah 368, 210 P.2d 436 (1949).
Mo.Duncan v. Townsend, 325 S.W.2d 67 (Mo. Ct. App. 1959).
U.S.Holliday v. DeBruce Grain, Inc., 650 F. Supp. 2d 877 (S.D. Iowa 2009).
As to recovery in connection with exemplary damages, see 86.
Fraud
OhioIn re Bennett, 430 B.R. 463 (Bankr. N.D. Ohio 2010).
Ind.State ex rel. Reilly v. U.S. Fidelity & Guaranty Co. of Baltimore, Md., 218 Ind. 89, 31 N.E.2d 58 (1941).
End of Document
84.Statutory authorization, 25 C.J.S. Damages 84
Damages
1. Pecuniary Losses
c. Expenses
84. Statutory authorization
West's Key Number Digest, Damages 71.5
Expenses of litigation or attorney's fees may be allowed as damages where statutory provision is made
therefor.
As recognized by the rule that attorney's fees are not generally allowed as damages or costs absent, among other
things, a statutory provision therefor, 1 the expenses of litigation or attorney's fees may be allowed as damages
where statutory provision is made therefor. 2 A statute may, for instance, authorize such an allowance where the
defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and
expense; 3 or where the defendant's failure to pay has been arbitrary, capricious, and without probable cause; 4 or
where the defendant has acted in an unconscionable or fraudulent manner; 5 or where the defendant has failed to
pay or satisfy a claim of a particular kind within a specified period of time after presentation of the claim. 6 Such
an allowance constitutes compensatory, rather than punitive, damages. 7
An award for legal expenses or attorney's fees may be made when any one of the conditions, set forth in the
alternative by the statute, exists. 8 Conversely, an award therefor may not be made where requisite statutory
conditions do not exist. 9 Under the express provisions of some statutes, where the statutory conditions exist, the
allowance of litigation expenses and attorney's fees is a matter for the determination of the jury. 10
A mere breach of contract, or a mere refusal to pay a disputed claim, is not the equivalent of "bad faith" or
"stubborn litigiousness" within the meaning of some statutes allowing recovery of attorney's fees; the "bad faith"
referred to in such statutes means bad faith in the transaction out of which the cause of action arose and does not
refer to the motive with which the particular action is being defended. 11
A litigant is not entitled to an award for legal expenses if no other damages are recoverable by him or her. 12 Under
some statutes, an award of attorney's fees to the plaintiff is not authorized where the amount of the defendant's
84.Statutory authorization, 25 C.J.S. Damages 84
adjudicated liability is substantially less than the amount claimed, 13 but under other statutes, attorney's fees are
recoverable if the plaintiff obtains a judgment for any amount of his or her claim. 14
Construction.
Statutes providing for an award for legal expenses or attorney's fees are to be given effect in accordance with their
plain and unambiguous language, 15 but, being penal in nature, they are to be strictly construed. 16
Footnotes
1
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Ky.Fields v. Womack, 294 S.W.3d 470 (Ky. Ct. App. 2009).

Miss.Mark S. Bounds Realty Partners, Inc. v. Lawrence, 34 So. 3d 1224 (Miss. Ct. App. 2010).
Mo.Lorenzini v. Short, 312 S.W.3d 467 (Mo. Ct. App. E.D. 2010).
U.S.Nat Harrison Associates, Inc. v. Gulf States Utilities Co., 491 F.2d 578 (5th Cir. 1974).
Kan.Newton v. Hornblower, Inc., 224 Kan. 506, 582 P.2d 1136 (1978).
Court rule
Mich.Marilyn Froling Revocable Living Trust v. Bloomfield Hills Country Club, 283 Mich. App. 264, 769 N.W.2d
234 (2009).
U.S.U.S. for Use of Dixie Plumbing Supply Co. v. Taylor, 293 F.2d 717 (5th Cir. 1961).
Ga.Bankers Fidelity Life Ins. Co. v. Oliver, 106 Ga. App. 305, 126 S.E.2d 887 (1962).
U.S.Autrey v. Williams & Dunlap, 210 F. Supp. 491 (W.D. La. 1962), aff'd in part, rev'd in part on other grounds,
343 F.2d 730 (5th Cir. 1965).
Misappropriation of trade secrets
U.S.Carter Products, Inc. v. Colgate-Palmolive Co., 214 F. Supp. 383 (D. Md. 1963), opinion adhered to on denial
of reh'g, 136 U.S.P.Q. 577, 1963 WL 105143 (D. Md. 1963).
Repudiation of agreement
La.Raney v. Gillen, 31 So. 2d 495 (La. Ct. App. 2d Cir. 1947) (overruled in part on other grounds by, Chauvin v.
La Hitte, 229 La. 94, 85 So. 2d 43 (1956)) and (overruled in part on other grounds by, Lloyd v. Merit Loan Co. of
Shreveport, 253 So. 2d 117 (La. Ct. App. 2d Cir. 1971)).
Tex.Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex. 1962).
Ga.Bankers Fidelity Life Ins. Co. v. Oliver, 106 Ga. App. 305, 126 S.E.2d 887 (1962).
Ga.Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 60 S.E.2d 802 (1950).
Ga.Wallace v. Jones, 101 Ga. App. 563, 114 S.E.2d 436 (1960).
IdahoJaquith v. Stanger, 79 Idaho 49, 310 P.2d 805 (1957).
Ga.Murphy v. Morse, 96 Ga. App. 513, 100 S.E.2d 623 (1957).
Ga.Edwards-Warren Tire Co. v. Coble, 102 Ga. App. 106, 115 S.E.2d 852 (1960).
Ga.Smith v. A. A. Wood & Son Co., 103 Ga. App. 802, 120 S.E.2d 800 (1961).
Ga.Broyles v. Johnson, 103 Ga. App. 102, 118 S.E.2d 734 (1961) (overruled on other grounds by, Georgia-Carolina
Brick & Tile Co. v. Brown, 153 Ga. App. 747, 266 S.E.2d 531 (1980)).
Tex.Bellinger v. Schutte, 244 S.W.2d 261 (Tex. Civ. App. San Antonio 1951), writ refused.
Tex.Gateley v. Humphrey, 151 Tex. 588, 254 S.W.2d 98 (1952).
Tex.Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex. 1962).
Refusal to pay on demand
Tex.First Texas Prudential Ins. Co. v. Smallwood, 242 S.W. 498 (Tex. Civ. App. Beaumont 1922).
End of Document
85.Contractual authorization, 25 C.J.S. Damages 85
Damages
1. Pecuniary Losses
c. Expenses
85. Contractual authorization
West's Key Number Digest, Damages 70.1, 71
Contracts for payment of attorney's fees are enforceable in accordance with their terms.
As recognized by the rule that attorney's fees are not generally allowed as damages or costs absent, among other
things, a contractual provision therefor, 1 contracts for payment of attorney's fees are enforceable; 2 however,
such fees are allowed only in accordance with the terms of the contract, 3 and the intent to provide for counsel
fees as damages for a breach of the contract must be "unmistakably clear" in the language of the contract. 4 Where
the contract provides for the allowance of attorney's fees if an action is brought to enforce the provisions of the
contract, an allowance of attorney's fees may properly be made only where it was necessary to institute the action
to enforce the contract. 5
As a general rule, contract provisions for allowance of attorney's fees are construed to include both trial and
appellate fees. 6
Contractual attorney's fees are recoverable only in a suit brought directly on the contract. 7 Unlike statutorily
permitted or rules-based attorney's fees, contractually based attorney's fees form part of the damages claim. 8
Footnotes
1
Mo.Lorenzini v. Short, 312 S.W.3d 467 (Mo. Ct. App. E.D. 2010).
N.M.Dean v. Brizuela, 148 N.M. 548, 2010-NMCA-076, 238 P.3d 917 (Ct. App. 2010).
UtahNeff v. Neff, 2011 UT 6, 247 P.3d 380 (Utah 2011).
Ariz.First Federal Sav. and Loan Ass'n of Phoenix v. Ram, 135 Ariz. 178, 659 P.2d 1323 (Ct. App. Div. 2 1982).
Or.Miller v. Fernley, 280 Or. 333, 570 P.2d 1178 (1977).
Implied contract, as in certain indemnity cases
85.Contractual authorization, 25 C.J.S. Damages 85
4
5
6
N.H.Guay v. Brotherhood Bldg. Ass'n, 87 N.H. 216, 177 A. 409, 97 A.L.R. 1053 (1935).
La.Ever-Tite Roofing Corp. v. Green, 83 So. 2d 449 (La. Ct. App. 2d Cir. 1955).
Contract to purchase or sell realty
La.Stack v. Irwin, 158 So. 2d 853 (La. Ct. App. 4th Cir. 1963), writ issued, 245 La. 646, 160 So. 2d 230 (1964) and
judgment rev'd in part on other grounds, 246 La. 777, 167 So. 2d 363 (1964).
U.S.Bridgestone/Firestone, Inc. v. Recovery Credit Services, Inc., 98 F.3d 13 (2d Cir. 1996).
N.Y.GEM Advisors, Inc. v. Corporacion Sidenor, S.A., 667 F. Supp. 2d 308 (S.D. N.Y. 2009).
Cal.Walsh v. Walsh, 42 Cal. App. 2d 293, 108 P.2d 768 (2d Dist. 1940).
Cal.Berven Carpets Corp. v. Davis, 210 Cal. App. 2d 206, 26 Cal. Rptr. 513 (1st Dist. 1962).
La.Svendson v. American Indem. Co. of Galveston, Tex., 76 So. 2d 737 (La. Ct. App., Orleans 1955).
La.Jung v. Gwin, 176 La. 962, 147 So. 47 (1933).
Breach of contract
Where an action was not an action on a contract or to collect under the contract but was an action for damages for
breach of the contract, the successful plaintiff was not entitled to attorney's fees in accordance with the provision of
the contract.
La.Ever-Tite Roofing Corp. v. Green, 83 So. 2d 449 (La. Ct. App. 2d Cir. 1955).
Md.Monarc Const., Inc. v. Aris Corp., 188 Md. App. 377, 981 A.2d 822 (2009).
End of Document
86.In connection with exemplary damages, 25 C.J.S. Damages 86
Damages
1. Pecuniary Losses
c. Expenses
86. In connection with exemplary damages
In some, but not other, jurisdictions, expenses of litigation and attorney's fees may be considered in
estimating the amount of damages where an award of exemplary damages is authorized.
Under some authority, the American rule that when there is no contractual provision or statutory authority
providing for attorney's fees they may not be awarded as damages is subject to an exception where punitive
damages are proper as well. 1 Where the facts are such that an award of exemplary damages may be made, the
probable counsel fees may be considered by the jury in estimating the amount of the damages, 2 and punitive
or exemplary damages may be awarded in the form of attorney's fees. 3 Thus, in cases of wanton or malicious
injury, 4 or of gross negligence, 5 or fraud, 6 there may be a recovery for the expenses of litigation. Under this rule,
it has been held that attorney's fees are not allowed as compensation but rather as punishment for the defendant's
wrongful and malicious act; 7 however, other authority states that the court may award attorney's fees as an element
of compensatory damages where punitive damages are warranted. 8
According to other authorities, even in cases where punitive damages may be awarded, there can be no allowance
for counsel fees 9 or expenses of litigation. 10 Under such authority, while the sum awarded may indirectly
compensate the plaintiff for such expenses, their amount cannot be taken as a measure or as a necessary element
of damages. 11 It has been similarly stated that although an award of attorney's fees may stem from an award of
punitive damages, the attorney's fees award itself is not an element of the punitive damages award. 12
Footnotes
Miss.Mark S. Bounds Realty Partners, Inc. v. Lawrence, 34 So. 3d 1224 (Miss. Ct. App. 2010).
1
U.S.Burgess v. Williamson, 506 F.2d 870 (5th Cir. 1975).
2
OhioGalmish v. Cicchini, 90 Ohio St. 3d 22, 2000-Ohio-7, 734 N.E.2d 782 (2000).
86.In connection with exemplary damages, 25 C.J.S. Damages 86
3
4
5
6
8
9
10
11
12
Conn.Bhatia v. Debek, 287 Conn. 397, 948 A.2d 1009 (2008).

La.Givens v. Chandler, 143 So. 79 (La. Ct. App. 1st Cir. 1932).
N.Y.Agostini v. State, 255 A.D. 264, 5 N.Y.S.2d 732 (3d Dep't 1938).
Mo.Koplar v. Rosset, 360 Mo. 1201, 233 S.W.2d 1 (1950).
Gross fraud
U.S.Schlein v. Smith, 160 F.2d 22 (App. D.C. 1947).
IowaDorris v. Miller, 105 Iowa 564, 75 N.W. 482 (1898).
Malicious act or willful fraud
Tex.Larson v. Sterling Mut. Life Ins. Co., 153 S.W.2d 177 (Tex. Civ. App. Galveston 1941), writ dismissed.
OhioEstate of Beavers v. Knapp, 175 Ohio App. 3d 758, 2008-Ohio-2023, 889 N.E.2d 181 (10th Dist. Franklin
County 2008).
Cal.Viner v. Untrecht, 26 Cal. 2d 261, 158 P.2d 3 (1945).
N.J.Kinane v. Fay, 111 N.J.L. 553, 168 A. 724 (N.J. Sup. Ct. 1933).
Cal.Falk v. Waterman, 49 Cal. 224, 1874 WL 1489 (1874).
U.S.Oelrichs v. Spain, 82 U.S. 211, 21 L. Ed. 43, 1872 WL 15388 (1872).
OhioNeal-Pettit v. Lahman, 125 Ohio St. 3d 327, 2010-Ohio-1829, 928 N.E.2d 421 (2010).
End of Document
87.Expenses in collateral proceedings, 24 C.J.S. Damages 87
Damages
1. Pecuniary Losses
c. Expenses
87. Expenses in collateral proceedings
Reasonable and necessary expenses of, and attorney's fees in, collateral proceedings that are the natural
and proximate consequences of a wrongful act may generally be recovered from the party who committed
the wrongful act.
Under some circumstances, attorney's fees and expenses of litigation in other actions may constitute proper
elements of damage in the action in chief. 1 Where the natural and proximate consequence of a wrongful act has
been to involve the plaintiff in litigation with others, there may, as a general rule, be a recovery in damages against
the party who committed the wrongful act of the reasonable expenses incurred in such litigation, 2 including
compensation for attorney's fees, 3 and such costs as may have been awarded against the plaintiff. 4 As similarly
stated, where a person through the tort of another has been required to act in protection of his or her interests
by bringing or defending an action against a third person, he or she is entitled to recover from the wrongdoer
attorney's fees and other expenses incurred in the prior litigation, 5 or where the breach of a contract has forced
one of the contracting parties to maintain or defend an action against a third person, he or she is entitled to recover
from the party breaching the contract attorney's fees and other expenses incurred in the prior litigation. 6 This
doctrine, sometimes referred to in terms of the "wrong of another" 7 or "tort of another," 8 has been treated as an
exception to the American rule that the party employing an attorney pays the attorney's fees; 9 however, there is
also authority that the doctrine is not an exception to the American rule but rather an item of damages recoverable
for another's wrongful conduct. 10
To be recoverable, the expenses in question must be the natural and proximate consequence of the injury
complained of, 11 and must have been incurred necessarily 12 and in good faith, 13 and the amount thereof must
be reasonable. 14 Moreover, the wrong-of-another doctrine does not allow litigants to sift through past litigations
and abstract small components from what should be understood as singular disputes in an attempt to recoup their
litigation costs. 15 However, it is immaterial whether the wrongful act was committed by the defendant personally
or through an agent for whom the defendant is responsible 16 and whether the prior litigation was prosecuted or
defended by the plaintiff in the present action. 17
In some instances, the plaintiff has been permitted to recover from the wrongdoer expenses of prior litigation
with him or her; 18 however, the rule permitting recovery for attorney's fees and other expenses of prior litigation
caused by the wrongdoer generally has no application where the prior litigation was between the parties to the
present suit. 19 Where an action based on the same wrongful act has been prosecuted by the plaintiff against the
defendant to a successful issue, he or she cannot in a subsequent action recover his or her costs and expenses in
the former action as damages. 20 However, recovery of attorney's fees should not be denied simply because the
action against the third person is tried in the same court at the same time as the action against the wrongdoer who
made the litigation with the third person necessary. 21
Where expenses of this character are a lawful element of damages, it is sufficient that a legal liability has been
incurred, although actual payment has not been made, 22 but there can be no recovery in the absence of a showing
that any obligation was incurred. 23
A statute authorizing allowance of expenses of the litigation as part of the damages does not apply where the fees
sought do not arise out of the present suit but are part of another legal proceeding. 24
Defense for protection of person ultimately liable.

Where defense of an action by a party is undertaken for the protection of the person ultimately liable after he
or she has had notice to undertake the defense but fails to do so, the reasonable costs of that defense should fall
on him or her. 25
Cases:
Under Texas law, attorney's fees are considered damages if the fees are incurred in litigation with a third party, or
if the fees are unpaid legal bills sought in a breach of contract action against a client, or if the fees are expended
before litigation to obtain title from a third party to whom defendants had wrongfully transferred title; in these
cases, the legal fees constitute an independent ground of recovery, and are therefore distinguishable from the
collateral legal costs associated with collecting a debt or prosecuting or defending against a pending lawsuit.
Richardson v. Wells Fargo Bank, N.A., 740 F.3d 1035 (5th Cir. 2014).
New York law deems litigation expenses incurred defending against actions brought in breach of a covenant to
not sue to be actual damages. Dallas Gas Partners, L.P. v. Prospect Energy Corp., 733 F.3d 148 (5th Cir. 2013).
Pharmaceutical company's litigation expenses incurred in lawsuit initiated against competitor, after competitor
had first sued company for false advertising regarding drug used to treat cold sores, were not recoverable, under
Illinois law, as consequential damages allegedly resulting from breach of contract by provider of drug packaging
and labeling for company's clinical trial conducted to disprove competitor's false advertising allegations, since
litigation expenses from another lawsuit were not reasonably foreseeable from provider's alleged breach of
contract by invalidating clinical trial. Merix Pharmaceutical Corporation v. Clinical Supplies Management, Inc.,
59 F. Supp. 3d 865 (N.D. Ill. 2014).
Attorney fees incurred in one action may be considered necessary litigation costs in another. In re Conservatorship
of McQueen, 59 Cal. 4th 602, 174 Cal. Rptr. 3d 55, 328 P.3d 46 (2014).
The "tort of another doctrine" holds that a person who through the tort of another has been required to act in
the protection of his interests by bringing or defending an action against a third person is entitled to recover
compensation for the reasonably necessary loss of time, attorney fees, and other expenditures thereby suffered or
incurred. Mega RV Corporation v. HWH Corporation, 225 Cal. App. 4th 1318, 170 Cal. Rptr. 3d 861 (4th Dist.
2014), as modified on ohter grounds on denial of reh'g, (May 20, 2014).
Subcontractor was not entitled to an award against insurance agent for attorney fees that subcontractor incurred
in defending itself against contractor's breach of contract action under the equitable exception to the general
rule requiring contractual or statutory basis for recovery of attorney fees in the absence of a finding that agent
committed any tort against subcontractor. Brannan Paving GP, LLC v. Pavement Markings, Inc., 446 S.W.3d 14
(Tex. App. Corpus Christi 2013), review denied, (2 pets.)(Oct. 3, 2014).
[END OF SUPPLEMENT]
Footnotes
U.S.Shen v. Leo A. Daly Co., 222 F.3d 472 (8th Cir. 2000).
1
N.J.In re Estate of Lash, 169 N.J. 20, 776 A.2d 765 (2001).
3
4
5
6
7
8
9
10
11
A.L.R. Library
Right of injured party to award of compensatory damages or fine in contempt proceedings, 85 A.L.R.3d 895.
Colo.Elijah v. Fender, 674 P.2d 946 (Colo. 1984).
Mo.Essex Contracting, Inc. v. Jefferson County, 277 S.W.3d 647 (Mo. 2009).
Litigation with third party resulting from present defendant's tortious act
N.J.In re Niles, 176 N.J. 282, 823 A.2d 1 (2003).
Tex.RAS Group, Inc. v. Rent-A-Center East, Inc., 335 S.W.3d 630 (Tex. App. Dallas 2010), reh'g overruled, (Apr.
15, 2011).
Mass.O'Brien v. New England Tel. & Tel. Co., 422 Mass. 686, 664 N.E.2d 843 (1996).
Wash.Armstrong Const. Co. v. Thomson, 64 Wash. 2d 191, 390 P.2d 976 (1964).
Nev.Peterson v. Wiesner, 62 Nev. 184, 146 P.2d 789 (1944) (disapproved of on other grounds by, Sandy Valley
Associates v. Sky Ranch Estates Owners Ass'n, 117 Nev. 948, 35 P.3d 964 (2001)).
N.Y.Shindler v. Lamb, 25 Misc. 2d 810, 211 N.Y.S.2d 762 (Sup 1959), aff'd, 10 A.D.2d 826, 200 N.Y.S.2d 346 (1st
Dep't 1960), aff'd, 9 N.Y.2d 621, 210 N.Y.S.2d 226, 172 N.E.2d 79 (1961).
Mass.O'Brien v. New England Tel. & Tel. Co., 422 Mass. 686, 664 N.E.2d 843 (1996).
N.J.In re Estate of Lash, 169 N.J. 20, 776 A.2d 765 (2001).
Colo.Rocky Mountain Festivals, Inc. v. Parsons Corp., 242 P.3d 1067 (Colo. 2010), as modified, (Dec. 13, 2010).
U.S.Santa Clara Valley Water Dist. v. Olin Corp., 655 F. Supp. 2d 1048 (N.D. Cal. 2009); In re Bertola, 317 B.R.
95 (B.A.P. 9th Cir. 2004).
Cal.PacifiCare of Cal. v. Bright Medical Associates, Inc., 198 Cal. App. 4th 1451, 130 Cal. Rptr. 3d 756 (4th Dist.
2011).
U.S.Fednav Intern. Ltd. v. Continental Ins. Co., 624 F.3d 834 (7th Cir. 2010); In re Bertola, 317 B.R. 95 (B.A.P.
9th Cir. 2004).
Cal.PacifiCare of Cal. v. Bright Medical Associates, Inc., 198 Cal. App. 4th 1451, 130 Cal. Rptr. 3d 756 (4th Dist.
2011).
U.S.Hitachi Credit America Corp. v. Signet Bank, 166 F.3d 614 (4th Cir. 1999).
N.J.Kinane v. Fay, 111 N.J.L. 553, 168 A. 724 (N.J. Sup. Ct. 1933).
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Ill.Standard Oil Co. of Ind. v. Daniel Burkhartsmeier Cooperage Co., 333 Ill. App. 338, 77 N.E.2d 526 (1st Dist.
1948).
Colo.Rocky Mountain Festivals, Inc. v. Parsons Corp., 242 P.3d 1067 (Colo. 2010), as modified, (Dec. 13, 2010).
IowaKuiken v. Garrett, 243 Iowa 785, 51 N.W.2d 149, 41 A.L.R.2d 1397 (1952).
D.C.Murphy v. O'Donnell, 63 A.2d 340 (Mun. Ct. App. D.C. 1948).
Okla.Hertzel v. Weber, 1926 OK 318, 118 Okla. 82, 246 P. 839 (1926).
Cal.Prentice v. North Am. Title Guaranty Corp., Alameda Division, 59 Cal. 2d 618, 30 Cal. Rptr. 821, 381 P.2d
645 (1963).
Cal.Nelson v. Kellogg, 162 Cal. 621, 123 P. 1115 (1912).
Conn.State v. Bloomfield Const. Co., 126 Conn. 349, 11 A.2d 382 (1940).
Ga.State Mut. Ins. Co. v. McJenkin Ins. & Realty Co., 86 Ga. App. 442, 71 S.E.2d 670 (1952) (disapproved of on
other grounds by, Teems v. City of Forest Park, 137 Ga. App. 733, 225 S.E.2d 87 (1976)).
U.S.Robert A. Reichard, Inc. v. Ezl. Dunwoody Co., 45 F. Supp. 153 (E.D. Pa. 1942).
Judgment by third person against party to contract
N.Y.Madison County Const. Co. v. State, 177 Misc. 777, 31 N.Y.S.2d 883 (Ct. Cl. 1941).
End of Document
Damages
1. Pecuniary Losses
d. Interest
(1) In General
88. Generally
West's Key Number Digest, Damages 66, 66.1, 67
Where the right of interest is not established by a contract, statute, or judgment, it ordinarily comes as an
allowance in the nature of damages, based on wrongful detention.
While interest is not given as damages where it is expressly reserved in the contract, or implied by the nature of a
promise, 1 where the right of interest is not established by a contract, statute, or judgment, it ordinarily comes as
an allowance in the nature of damages, based on wrongful detention. 2 The word "damages" expresses in dollars
and cents the injury sustained by a plaintiff; it includes both the original debt or damage and whatever interest
ought to be added to make a just verdict. 3 The purpose of awarding interest as damages is to compensate an
aggrieved party for detention of money rightfully due him or her 4 and to afford such party full indemnification
or compensation for the wrongful interference with his or her property rights. 5 The allowance of interest as an
element of damages is not punitive 6 but is based on the general assumption that retention of the money benefits
the debtor and injures the creditor. 7
Interest prior to a verdict as an element of damages is not allowed as a matter of right in all cases 8 and is primarily
an equitable determination 9 and a matter lying within the discretion of the trial court. 10 Thus, the determination
of whether interest is to be recognized as a proper element of damage is one to be made in view of the demands
of justice rather than through the application of any arbitrary rule; 11 the real question in each case involving the
issue of whether or not interest is to be recognized as a proper element of damage being whether the detention of
the money is or is not wrongful under the circumstances. 12 To permit an award of interest, it is necessary that the
claim for damages represent a pecuniary loss that is susceptible of computation with reasonable certainty or by
means of established market values or other generally recognized standards. 13 Because interest is as much a part
of a substantive debt as principal, it can be imposed as a form of damages even in the absence of any contractual
obligation. 14
Statutory provisions for interest on money judgments have no bearing on the problem whether prejudgment interest
is allowable as an item of damages on a particular claim. 15
Footnotes
N.D.Travitzky v. Knutson, 84 N.W.2d 579 (N.D. 1957).
1
Okla.Ray F. Fischer Co. v. Loeffler-Green Supply Co., 1955 OK 234, 289 P.2d 139 (Okla. 1955).
2
3
4
5
6
7
8
9
10
11
12
13
14
15
A.L.R. Library
Mo.Johnson v. Mercantile Trust Co. Nat. Ass'n, 510 S.W.2d 33 (Mo. 1974).
Tex.Horizon/CMS Healthcare Corporation v. Auld, 34 S.W.3d 887 (Tex. 2000).
Mass. 1104, 942 N.E.2d 968 (2011).
Mich.Gordon Sel-Way, Inc. v. Spence Bros., Inc., 438 Mich. 488, 475 N.W.2d 704 (1991).
Tex.Simmons v. Wilson, 216 S.W.2d 847 (Tex. Civ. App. Waco 1949).
U.S.Lincoln Elec. Co. v. St. Paul Fire and Marine Ins. Co., 210 F.3d 672, 41 U.C.C. Rep. Serv. 2d 753, 2000 FED
App. 0152P (6th Cir. 2000).
Mich.Gordon Sel-Way, Inc. v. Spence Bros., Inc., 438 Mich. 488, 475 N.W.2d 704 (1991).
Lost use of funds
U.S.R.D. Management Corp. v. Philadelphia Indem. Ins., 302 F. Supp. 2d 728 (E.D. Mich. 2004).
U.S.Lincoln Elec. Co. v. St. Paul Fire and Marine Ins. Co., 210 F.3d 672, 41 U.C.C. Rep. Serv. 2d 753, 2000 FED
App. 0152P (6th Cir. 2000).
N.H.Damasiotes v. Dumas, 97 N.H. 402, 89 A.2d 756 (1952).
Conn.McCullough v. Waterside Associates, 102 Conn. App. 23, 925 A.2d 352 (2007).
Allowance of interest in equity, generally, see 89.
U.S.Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485 (4th Cir. 2005).
Conn.Behrns v. Behrns, 124 Conn. App. 794, 6 A.3d 184 (2010).
Conn.Dowd v. Dowd, 96 Conn. App. 75, 899 A.2d 76 (2006).
N.Y.Lesjac Realty Corp. v. Mulhauser, 43 Misc. 2d 439, 251 N.Y.S.2d 62 (Sup 1964).
Pa.Centennial School Dist. v. Kerins, 840 A.2d 377 (Pa. Commw. Ct. 2003).
U.S.Moore-McCormack Lines, Inc. v. Amirault, 202 F.2d 893 (1st Cir. 1953).
End of Document
89.In equity, 25 C.J.S. Damages 89
Damages
1. Pecuniary Losses
d. Interest
(1) In General
89. In equity
The allowance or refusal of interest in equity generally rests in the sound discretion of the court.
Where interest is sought by way of damages for delay, courts of equity exercise a certain discretion as to its
allowance. 1 Interest is allowed in some cases by courts of equity when it would not be recoverable by law, 2
and in such cases, it is allowed or refused by the court in the exercise of a sound discretion. 3 Interest is seldom
allowed as a penalty in a suit in equity. 4
Where, although a suit is brought in equity, the claim does not depend on a principle of equity jurisdiction, the
court has no discretion to allow interest as a matter of equity. 5 An equitable approach to determining interest as
an element of damages is necessary only when the parties have not agreed by contract on the amount of interest
to be paid; if the parties have agreed on the payment of interest, it is payable not as damages but pursuant to a
contract duty that is enforceable. 6
Unliquidated demand.
The allowance of interest on an unliquidated demand is a matter of discretion, 7 especially in a case of a wrongful
diversion of funds. 8
Simple or compound interest.

Although the general rule is to allow simple interest by way of damages, compound interest is sometimes allowed
to prevent a fiduciary who acted dishonestly from acquiring unjust profit and to afford an equitable settlement. 9
89.In equity, 25 C.J.S. Damages 89
Footnotes
U.S.Walker v. Continental Life & Acc. Co., 445 F.2d 1072 (9th Cir. 1971).
1
2
3
4
5
6
7
8
9
Fla.City of Miami v. Carter, 105 So. 2d 5 (Fla. 1958).

N.Y.Woerz v. Schumacher, 161 N.Y. 530, 56 N.E. 72 (1900).
Md.Carrington v. Thomas C. Basshor Co., 119 Md. 378, 86 A. 1030 (1913).
Mich.L. A. Young Spring & Wire Corp. v. Falls, 307 Mich. 69, 11 N.W.2d 329 (1943).
Or.Lane v. First Nat. Bank of Vale, 131 Or. 350, 283 P. 17 (1929).
U.S.Great Northern Ry. Co. v. Philadelphia & Reading Coal & Iron Co., 242 F. 799 (C.C.A. 8th Cir. 1917).
U.S.Philadelphia Housing Authority v. CedarCrestone, Inc., 562 F. Supp. 2d 653 (E.D. Pa. 2008).
Interest and damages distinguished, generally, see 92.
U.S.Barrett Co. v. Panther Rubber Mfg. Co., 24 F.2d 329 (C.C.A. 1st Cir. 1928).
U.S.Pennsylvania Steel Co. v. New York City Ry. Co., 198 F. 778 (C.C.A. 2d Cir. 1912).
Wash.Gray v. Reeves, 69 Wash. 374, 125 P. 162 (1912).
Mass.Arnold v. Maxwell, 230 Mass. 441, 119 N.E. 776 (1918).
End of Document
Damages
1. Pecuniary Losses
d. Interest
90. Generally
Where money is withheld after its payment under a contract is due, interest thereon is usually allowable as
damages, particularly where the money is wrongfully and vexatiously withheld.
Interest is allowed to be recovered as an element of damages for breach of contract. 1 More specifically, where
money is withheld after payment is due, interest at the legal rate 2 is allowable as damages in actions based on
either express or implied contracts, 3 and such an allowance may be made as a matter of law where the damages
are liquidated. 4 The rule permitting a recovery of interest as damages for the detention of money is peculiarly
applicable where payment has been wrongfully or vexatiously withheld. 5
Where money belonging to another is not paid over to the person entitled to receive it at the time when it should
be paid over, interest will be allowed for the detention, 6 and interest will, likewise, be allowed where a person
conceals the receipt of money from the person to whom he or she should pay it, 7 or fails promptly to apply such
money in accordance with his or her duty, 8 or where he or she makes use of it for his or her own profit. 9 Interest
will be denied where there are reasons founded on the conduct of the plaintiff or other special circumstances
existing in the case, and the justice of the situation requires it. 10 A person will not be allowed interest for a delay
due to his or her own acts. 11
Statutory provisions for interest as damages have been enacted in some jurisdictions and applied by the courts, 12
and interest must be awarded where required by such statutes. 13 In the absence of a contract, interest may be
recoverable only in the cases specified in the statute. 14
Compound interest.
As a general rule, compound interest or interest on interest is not allowable as damages and is not recoverable in
the absence of any agreement to pay it. 15
Footnotes
Wis.Staver v. Milwaukee County, 289 Wis. 2d 675, 2006 WI App 33, 712 N.W.2d 387 (Ct. App. 2006).
1
U.S.In re Wilbar Realty, Inc., 325 B.R. 354 (Bankr. M.D. Pa. 2005).
2
U.S.F.D.I.C. v. Prince George Corp., 58 F.3d 1041 (4th Cir. 1995).
3
Ariz.All American School Supply Co. v. Slavens, 125 Ariz. 231, 609 P.2d 46 (1980).
Implied contract to pay interest, see C.J.S., Interest and Usury; Consumer Credit 30.
Express provision for interest not required
Mass.C & R Const. Co. v. Com., 334 Mass. 232, 135 N.E.2d 539 (1956).
4
5
6
7
8
9
10
11
12
13
14
15
A.L.R. Library
Md.Lichtenberg v. Joyce, 183 Md. 689, 39 A.2d 789 (1944).
Tex.Routon v. Phillips, 246 S.W.2d 223 (Tex. Civ. App. Fort Worth 1952), writ refused n.r.e.
Conn.Venezia v. Town of Fairfield, 118 Conn. 325, 172 A. 90 (1934).
Statutory provisions for interest in case of vexatious delay in payment, see C.J.S., Interest and Usury; Consumer Credit
70.
U.S.In re Wilbar Realty, Inc., 325 B.R. 354 (Bankr. M.D. Pa. 2005).
Cal.Ghirardelli v. Peninsula Properties Co., 16 Cal. 2d 494, 107 P.2d 41 (1940).
Ill.Currier v. Kretzinger, 58 Ill. App. 288, 1895 WL 2137 (1st Dist. 1895), aff'd, 162 Ill. 511, 44 N.E. 882 (1896).
Tex.Grayson v. City of Marshall, 145 S.W. 1034 (Tex. Civ. App. Texarkana 1912), writ refused.
Ill.Eldred v. Colvin, 206 Ill. App. 2, 1917 WL 2406 (1st Dist. 1917).
Md.State v. Fahey, 108 Md. 533, 70 A. 218 (1908).
Or.Looney v. Sears, 94 Or. 690, 186 P. 548 (1920).
Pa.In re Kenin's Trust Estate, 343 Pa. 549, 23 A.2d 837 (1942).
U.S.Andrus v. Berkshire Power Co., 197 F. 1016 (D. Conn. 1912).
U.S.The Limited Stores, Inc. v. Pan American World Airways, Inc., 65 Ohio St. 3d 66, 1992-Ohio-116, 600 N.E.2d
1027 (1992).
Cal.Schiffner v. Pappas, 223 Cal. App. 2d 526, 35 Cal. Rptr. 817 (3d Dist. 1963).
U.S.Rigopoulos v. Kervan, 53 F. Supp. 829 (S.D. N.Y. 1943), aff'd in part, rev'd in part on other grounds, 140 F.2d
506, 151 A.L.R. 1126 (C.C.A. 2d Cir. 1943).
N.Y.Employers' Liability Assur. Corp. v. Empire City Iron Works, Inc., 19 Misc. 2d 963, 187 N.Y.S.2d 425 (Sup
1959).
Or.Sargent v. American Bank & Trust Co. of Portland, 80 Or. 16, 156 P. 431 (1916).
U.S.Speed v. Transamerica Corp., 135 F. Supp. 176 (D. Del. 1955), judgment modified on other grounds, 235 F.2d
369 (3d Cir. 1956).
End of Document
91.Time at which right to interest accrues, 25 C.J.S. Damages 91
Damages
1. Pecuniary Losses
d. Interest
91. Time at which right to interest accrues
Interest for breach of contract to pay a certain sum is recoverable, as consequential or general damages,
from the time when the amount is due.
Interest for breach of contract to pay a certain sum is recoverable, as consequential or general damages, from the
time when the amount is due. 1 More specifically, interest as an element of damage for a breach of a contract
to pay money is awarded from the time of default, which may be fixed by the time specified in the contract for
payment 2 or, where no time is so specified, by the making of a demand 3 or by the commencement of a suit. 4
One cannot be in default in the payment of a debt until the amount is ascertained, or capable of ascertainment;
hence, default, so as to render a party liable for interest, cannot occur unless the sum due is certain. 5 There must
also be certainty as to the time of payment, before there can be a default in payment for which interest as damages
will be allowed, 6 but the time of payment is sufficiently certain if it is capable of being fixed by implication or
by the nature of the transaction. 7
Footnotes
Ky.University of Louisville v. RAM Engineering & Const., Inc., 199 S.W.3d 746, 212 Ed. Law Rep. 937 (Ky. Ct.
1
App. 2005).
2
3
4
A.L.R. Library
U.S.Royal Indemnity Co. v. U.S., 313 U.S. 289, 61 S. Ct. 995, 85 L. Ed. 1361 (1941).
Minn.Lund v. Larsen, 222 Minn. 438, 24 N.W.2d 827 (1946).
Fla.Brite v. Orange Belt Securities Co., 133 Fla. 266, 182 So. 892 (1938).
Mass.Cochrane v. Forbes, 267 Mass. 417, 166 N.E. 752 (1929).
U.S.Dwyer v. U.S., 93 F. 616 (C.C.A. 2d Cir. 1899).
N.Y.Roussel v. Mathews, 62 A.D. 1, 70 N.Y.S. 886 (1st Dep't 1901), aff'd, 171 N.Y. 634, 63 N.E. 1122 (1902).
91.Time at which right to interest accrues, 25 C.J.S. Damages 91
5
6
7
Wash.Ferber v. Wisen, 195 Wash. 603, 82 P.2d 139 (1938).

R.I.Bright v. James, 35 R.I. 492, 87 A. 316 (1913).
IowaSieberts v. Spangler, 140 Iowa 236, 118 N.W. 292 (1908).
Okla.Fidelity-Phenix Fire Ins. Co. of N.Y. v. Board of Ed. of Town of Rosedale, 1948 OK 223, 201 Okla. 250, 204
P.2d 982 (1948).
End of Document
92.Interest and damages distinguished, 25 C.J.S. Damages 92
Damages
1. Pecuniary Losses
d. Interest
92. Interest and damages distinguished
Although a contract provides for the payment of interest, where no provision is made for payment of
interest after maturity, an award of interest for detention of payment is made by way of damages, but where
provision is made for the payment of interest until the debt is fully paid, interest after maturity is not to
be regarded as damages.
There is a distinction between interest awarded by virtue of the terms of a contract and interest awarded by way
of damages for a breach of the contract although the recovery in both cases is frequently spoken of as a recovery
of interest. 1 "Interest as interest" is compensation for the use or detention of money while "interest as damages"
is compensation allowed by law as additional damages for lost use of the money during the lapse of time between
the accrual of the claim and the date of the judgment, i.e., prejudgment interest. 2 Although a contract provides
for the payment of interest, where no provision is made for payment of interest after maturity, an award of interest
for detention of payment is made by way of damages, 3 but where provision is made for the payment of interest
until the debt is fully paid, interest after maturity is not to be regarded as damages. 4
Where interest is recoverable as damages, it does not constitute a distinct claim and can only be recovered with
the principal by an action. 5 Thus, ordinarily, when payment of the principal as such is made and accepted, no
interest can be recovered, the payment of the debt extinguishing the right to recover interest thereon, 6 but this
rule is not without exceptions. 7 The payment of the principal debt will defeat the recovery of interest thereon
even though such payment is made pending a suit for such principal and interest. 8
Interest in the case of a breach of contract to pay money is the measure of the damages to be allowed, 9 which
will not be varied because of peculiar or unusual damages sustained in any particular case. 10
92.Interest and damages distinguished, 25 C.J.S. Damages 92
Footnotes
Tex.Rotan Grocery Co. v. Missouri, K. & T. Ry. Co. of Texas, 142 S.W. 623 (Tex. Civ. App. Austin 1911), writ
1
dismissed.
Wyo.In re Johnson's Estate and Guardianship, 78 Wyo. 173, 320 P.2d 429, 72 A.L.R.2d 745 (1958).
2
3
4
5
6
7
8
9
10
A.L.R. Library
Tex.Marrs and Smith Partnership v. D.K. Boyd Oil and Gas Co., Inc., 223 S.W.3d 1 (Tex. App. El Paso 2005).
Mich.Amluxen v. Eugene J. Stephenson, Inc., 340 Mich. 273, 65 N.W.2d 807 (1954).
P.2d 982 (1948).
N.D.Travitzky v. Knutson, 84 N.W.2d 579 (N.D. 1957).
Okla.Dobry v. Dobry, 1958 OK 8, 324 P.2d 534 (Okla. 1958).
W.Va.Morton v. Godfrey L. Cabot, Inc., 134 W. Va. 55, 63 S.E.2d 861 (1949).
Okla.Dobry v. Dobry, 1958 OK 8, 324 P.2d 534 (Okla. 1958).
W.Va.Morton v. Godfrey L. Cabot, Inc., 134 W. Va. 55, 63 S.E.2d 861 (1949).
N.Y.Shindler v. Lamb, 25 Misc. 2d 810, 211 N.Y.S.2d 762 (Sup 1959), aff'd, 10 A.D.2d 826, 200 N.Y.S.2d 346 (1st
Dep't 1960), aff'd, 9 N.Y.2d 621, 210 N.Y.S.2d 226, 172 N.E.2d 79 (1961).
Mass.Davis v. Harrington, 160 Mass. 278, 35 N.E. 771 (1894).
U.S.Marshall v. U.S., 143 Ct. Cl. 51, 164 F. Supp. 221 (1958).
La.Carbo v. Maison Jolie, Inc., 155 So. 2d 238 (La. Ct. App. 4th Cir. 1963).
Va.Bethel v. Salem Imp. Co., 93 Va. 354, 25 S.E. 304 (1896).
End of Document
93.Unliquidated claims, 25 C.J.S. Damages 93
Damages
1. Pecuniary Losses
d. Interest
93. Unliquidated claims
While there is authority that, in the absence of a statute providing otherwise, interest cannot be recovered
as of right in an action on an unliquidated or disputed claim based on a breach of contract, there is also
authority that an allowance in such cases is discretionary with the fact-finding tribunal.
A claim for damages is defined as being "liquidated," for purposes of determining whether to include interest as
an element of damages, where the amount thereof is fixed, has been agreed upon, or is capable of ascertainment
by mathematical computation or operation of law. 1
The allowance of interest on unliquidated damages for a breach of contract may be provided for by a statute. 2
There is authority that, in the absence of a statute providing otherwise, interest on an unliquidated or disputed
claim based on a breach of contract cannot be recovered as a matter of right 3 and that it is not allowed where
the damages are not capable of ascertainment by mere computation. 4 However, there is also authority that the
allowance of interest on unliquidated claims is discretionary with the jury or with the court in the case of a trial to
the court 5 and that interest or its equivalent may properly be allowed 6 when necessary for a fair compensation. 7
Also, there is authority to the effect that, where the measure of recovery is fixed by the conditions existing at the
time of the breach, the party entitled to recover is entitled to compensation for the detention of the money to which
he or she is entitled by reason of such breach and that such recovery may be had as a matter of law. 8
While there is authority that the recovery of prejudgment interest in the form of damages in an action based on
quantum meruit may be permitted, 9 there is also authority that such a recovery is properly refused. 10
Demand ascertainable.
Interest will not be denied, although the sum due is unliquidated, where the amount is capable of ascertainment
by mere computation 11 or is subject to reasonably certain calculation by reference to existing market values. 12
However, where the computation is based on market values, such values must be well established and knowledge
thereof must be accessible to the debtor, 13 and the proof of such values must be clear and certain. 14
Existence of setoff or counterclaim.

Where the amount of the demand is sufficiently certain to justify the allowance of interest thereon, the existence
of a setoff or counterclaim that is itself unliquidated will not prevent the recovery of interest on the balance of the
demand found due from the time when it became due. 15
Right to recover or amount of debt disputed.

There is authority that where the amount of the demand is disputed on reasonable grounds and in good faith, or
the right to recover is in good faith denied, interest will not be allowed on the demand prior to its liquidation
by verdict or otherwise. 16 However, there is also authority to the contrary. 17 A party will not be charged with
interest where it appears that he or she has been at all times ready to make payment when it should be ascertained
to whom payment should be made. 18
Footnotes
U.S.RSM Richter, Inc. v. Behr America, Inc., 781 F. Supp. 2d 511 (E.D. Mich. 2011).
1
N.Y.Employers' Liability Assur. Corp. v. Empire City Iron Works, Inc., 19 Misc. 2d 963, 187 N.Y.S.2d 425 (Sup
2
4
5
6
7
8
9
10
11
1959).
Tex.McDaniel v. Tucker, 520 S.W.2d 543 (Tex. Civ. App. Corpus Christi 1975).
U.S.Calumet Federal Sav. and Loan Ass'n of Chicago v. Lake County Trust Co., 509 F.2d 913 (7th Cir. 1975).
Ill.Plepel v. Nied, 106 Ill. App. 3d 282, 62 Ill. Dec. 197, 435 N.E.2d 1169 (1st Dist. 1982).
Recovery of interest on unliquidated demand, generally, see C.J.S., Interest and Usury; Consumer Credit 44.
U.S.Tampa Elec. Co. v. Nashville Coal Co., 214 F. Supp. 647 (M.D. Tenn. 1963).
N.J.Deerhurst Estates v. Meadow Homes, Inc., 64 N.J. Super. 134, 165 A.2d 543 (App. Div. 1960).
Tex.Maizel v. Bush, 337 S.W.2d 337 (Tex. Civ. App. Dallas 1960), writ refused n.r.e., (Nov. 2, 1960).
Test
The test to determine whether interest is payable before a verdict is not to inquire whether the debt is liquidated but
whether it is due since interest is given as damages for the failure to pay money at the time it is due.
N.H.McLaughlin v. Union-Leader Corp., 100 N.H. 367, 127 A.2d 269, 63 A.L.R.2d 1425 (1956).
Tex.Chandler v. Warlick, 321 S.W.2d 897 (Tex. Civ. App. Eastland 1958), writ refused n.r.e.
U.S.St. Paul Mercury Indem. Co. v. U.S., 201 F.2d 57 (10th Cir. 1952).
IowaOlson v. Shuler, 203 Iowa 518, 210 N.W. 453 (1926).
Tex.Orkin Exterminating Co. v. Gulf Coast Rice Mills, 362 S.W.2d 159 (Tex. Civ. App. Houston 1962), writ refused
n.r.e., (Mar. 6, 1963).
Tex.City of Corpus Christi v. Drought, 380 S.W.2d 645 (Tex. Civ. App. San Antonio 1964), writ refused n.r.e.,
(Jan. 13, 1965).
Cal.Garrie v. McCauley, 163 Cal. App. 2d 273, 328 P.2d 1013 (2d Dist. 1958).
OhioMcKinney v. White Sewing Mach. Corp., 32 Ohio Op. 2d 306, 95 Ohio L. Abs. 368, 200 N.E.2d 596 (Ct. App.
8th Dist. Cuyahoga County 1964).
Pa.Penneys v. Pennsylvania R. Co., 408 Pa. 276, 183 A.2d 544 (1962).
Reference to fixed standard

Wash.Mall Tool Co. v. Far West Equipment Co., 45 Wash. 2d 158, 273 P.2d 652 (1954).
12
13
14
15
16
17
18
A.L.R. Library
U.S.Oliver-Electrical Mfg. Co. v. I. O. Teigen Const. Co., 183 F. Supp. 768 (D. Minn. 1960).
Cal.Ansco Const. Co. v. Ocean View Estates, Inc., 169 Cal. App. 2d 235, 337 P.2d 146 (2d Dist. 1959).
Difference between contract price and market price
U.S.National Dairymen Ass'n v. Dean Milk Co., 183 F.2d 349 (7th Cir. 1950).
N.Y.Dorr v. Epstein, 188 N.Y.S. 391 (City Ct. 1921).
OhioMcKinney v. White Sewing Mach. Corp., 32 Ohio Op. 2d 306, 95 Ohio L. Abs. 368, 200 N.E.2d 596 (Ct. App.
8th Dist. Cuyahoga County 1964).
Wyo.Yellowstone Sheep Co. v. Diamond Dot Live Stock Co., 43 Wyo. 15, 297 P. 1107, 75 A.L.R. 1151 (1931).
U.S.Sawyer v. E.F. Drew & Co., 113 F. Supp. 527 (D.N.J. 1953).
IdahoWilliams v. Idaho Potato Starch Co., 73 Idaho 13, 245 P.2d 1045 (1952).
Wyo.In re Johnson's Estate and Guardianship, 78 Wyo. 173, 320 P.2d 429, 72 A.L.R.2d 745 (1958).
U.S.Anderson-Prichard Oil Corporation v. Parker, 245 F.2d 831 (10th Cir. 1957).
Mo.Schmidt v. Morival Farms, 240 S.W.2d 952 (Mo. 1951).
U.S.American Surety Co. of New York v. Lawrenceville Cement Co., 110 F. 717 (C.C.D. Me. 1901).
End of Document
94.Building and construction contracts, 25 C.J.S. Damages 94
Damages
1. Pecuniary Losses
d. Interest
94. Building and construction contracts
In an action for damages for breach of a building and construction contract, interest on capital invested
by the builder for material and on money due should be allowed; however, interest should not be allowed
on profits until they are determined by the verdict.
In an action for damages for breach of a building and construction contract, interest on capital invested by the
builder for material, 1 and on money due, 2 should be allowed in estimating damages notwithstanding that the
amount that he or she seeks to recover may be reduced because he or she has deviated from the terms of his or her
contract. 3 However, interest should not be allowed on profits until they are determined by the verdict. 4 If the
contractor is entitled to payment only on completion of the work, he or she is not entitled to interest on percentages
that have been retained until that time. 5
Where a contractor refuses to perform a building contract, the owner may recover interest on the damages that
he or she has sustained, 6 including additional interest accruing on the construction loan while the work was
delayed. 7 However, he or she is not entitled to interest on the down payment to the contractor if he or she has
been fully compensated for all detriment caused by the breach, including loss of the use of the building. 8
Where a delay in payment by a general contractor to a subcontractor is not justified, the subcontractor may recover
interest in an action against the general contractor, 9 and likewise, where a subcontractor has unreasonably delayed
or failed in the performance of his or her contract, the general contractor may recover interest as damages in an
action against the subcontractor. 10
Interest that a project owner pays on funds borrowed to make repairs to its property during the pendency of
litigation against a general contractor is not recoverable as an element of damages where the governing statute
provides for prejudgment interest. 11
94.Building and construction contracts, 25 C.J.S. Damages 94
Footnotes
U.S.Kellogg Bridge Co. v. U.S., 15 Ct. Cl. 206, 1800 WL 1058 (1879).
1
2
3
4
5
6
7
8
9
10
11
N.Y.Kinzer Const. Co. v. State, 125 N.Y.S. 46 (Ct. Cl. 1910), aff'd, 145 A.D. 41, 129 N.Y.S. 567 (3d Dep't 1911),
aff'd, 204 N.Y. 381, 97 N.E. 871 (1912).
Ala.Danforth v. Tennessee & C.R. Co., 93 Ala. 614, 11 So. 60 (1891).
Conn.Healy v. Fallon, 69 Conn. 228, 37 A. 495 (1897).
Minn.Swanson v. Andrus, 83 Minn. 505, 86 N.W. 465 (1901).
N.Y.O'Rourke v. City of New York, 130 A.D. 673, 115 N.Y.S. 398 (1st Dep't 1909).
N.Y.O'Rourke v. City of New York, 130 A.D. 673, 115 N.Y.S. 398 (1st Dep't 1909).
Excess contract price
Mass.Carrig v. Gilbert-Varker Corp., 314 Mass. 351, 50 N.E.2d 59, 147 A.L.R. 927 (1943).
U.S.New Amsterdam Cas. Co. v. Mitchell, 325 F.2d 474 (5th Cir. 1963).
Ga.Esprit Log and Timber Frame Homes, Inc. v. Wilcox, 302 Ga. App. 550, 691 S.E.2d 344 (2010).
Cal.Henderson v. Oakes-Waterman Builders, 44 Cal. App. 2d 615, 112 P.2d 662 (2d Dist. 1941).
U.S.Clarke Baridon, Inc. v. Merritt-Chapman & Scott Corp., 311 F.2d 389 (4th Cir. 1962).
Md.L & S Const. Co. v. Bradbury Homes, 208 Md. 476, 118 A.2d 681 (1955).
R & D Properties, LLC v. Altech Const. Co., 279 Neb. 74, 776 N.W.2d 493 (2009).
End of Document
Damages
1. Pecuniary Losses
d. Interest
(3) Torts
95. Generally
Generally, dependent on the nature of the tort, interest may be allowed as an element of damages in tort
actions in order to secure full compensation for the injury sustained.
Generally, an allowance of interest as an element of damages in tort actions may be allowed in order to secure
full compensation for the injury sustained. 1 The allowance of interest in tort actions, whether as of right or at the
discretion of the fact-finding body, depends on the nature of the tort. 2 Interest cannot be allowed as damages in
actions based on the simple negligence of a party to whom no benefit can accrue by reason of the injury inflicted. 3
Interest may be allowed on unliquidated claims arising out of tort whenever it appears that the damage was
complete at a particular time and is to be determined as of such time in accordance with fixed rules of evidence and
known standards of value. 4 However, under some authority, where the demand is unliquidated and the amount
cannot be determined except by evidence, interest as damages in ordinary tort actions will not be allowed, 5 and
where the amount of damages is entirely discretionary and cannot be measured with reference to standards of
value, interest cannot be awarded. 6
The lapse of time from the commission of the wrong to the time of recovery may be considered in determining
what sum will fairly compensate the injured party. 7 However, the right to interest does not strictly depend on
the cause of delay in payment. 8
Where delay in receiving compensation for an injury is due to the fault of the plaintiff himself or herself, interest
will not be allowed. 9 Moreover, the rule that compensation not exceeding the legal rate of interest may be given
for undue detention of the recoverable sum cannot be invoked where the defendant affirmatively makes it appear
that the demand made was unreasonable. 10
When exemplary damages recoverable.

Interest is not allowable as part of exemplary damages except as additional punishment, 11 and in the case of a
tort when a recovery of exemplary damages may be had, interest prior to judgment cannot be allowed on the sum
awarded by the jury. 12
Footnotes
1
2
3
4
5
6
7
8
9
10
11
12
N.Y.Rochester Carting Co. v. Levitt, 36 N.Y.2d 264, 367 N.Y.S.2d 242, 326 N.E.2d 808 (1975).
U.S.E.M. Fleischmann Lumber Corp. v. Resources Corp. Intern., 114 F. Supp. 843 (D. Del. 1953), judgment aff'd,
211 F.2d 204 (3d Cir. 1954).
Kan.Latham Mercantile & Commercial Co. v. Harrod, 83 Kan. 323, 111 P. 432 (1910).
Mo.Lober v. Kansas City, 339 Mo. 1087, 100 S.W.2d 267 (1936).
Pa.Waugh v. Com., 394 Pa. 166, 146 A.2d 297 (1958).
Tex.Marion v. Layton, 373 S.W.2d 122 (Tex. Civ. App. Amarillo 1963).
Cal.Zinn v. Ex-Cell-O Corp., 148 Cal. App. 2d 56, 306 P.2d 1017 (1st Dist. 1957).
Colo.Moreland v. Austin, 138 Colo. 78, 330 P.2d 136 (1958).
N.J.Linden Silk Co. v. Paterson Silk Throwing Co., 119 N.J.L. 482, 197 A. 57 (N.J. Ct. Err. & App. 1938).
U.S.U.S. v. Bethlehem Steel Corp., 23 F. Supp. 676 (E.D. Pa. 1938), judgment aff'd, 113 F.2d 301 (C.C.A. 3d Cir.
1940), judgment aff'd, 315 U.S. 289, 62 S. Ct. 581, 86 L. Ed. 855 (1942).
N.H.Emery v. Tilo Roofing Co., 89 N.H. 165, 195 A. 409 (1937).
Delay in prosecuting claim
N.Y.Van Alstyne v. City of Amsterdam, 119 Misc. 817, 197 N.Y.S. 570 (Sup 1922), aff'd, 206 A.D. 805, 201 N.Y.S.
954 (3d Dep't 1923).
Pa.Conover v. Bloom., 269 Pa. 548, 112 A. 752 (1921).
D.C.Riss & Co. v. Feldman, 79 A.2d 566 (Mun. Ct. App. D.C. 1951).
U.S.Amos v. Prom, Inc., 115 F. Supp. 127 (N.D. Iowa 1953).
Ala.Mutual Sav. Life Ins. Co. v. Osborne, 247 Ala. 252, 23 So. 2d 867 (1945).
End of Document
96.Recovery as matter of right or discretion, 25 C.J.S. Damages 96
Damages
1. Pecuniary Losses
d. Interest
(3) Torts
96. Recovery as matter of right or discretion
In the absence of a statute authorizing recovery of interest as a matter of right, the allowance of interest is
a matter of discretion with the jury or other trier of the facts.
Interest may be recoverable as damages as a matter of right in tort actions when it is accorded by a statute. 1
However, in the absence of such a statute, an award of interest, or, more accurately, of damages for the detention
of compensation, is not a matter of right in actions of tort for unliquidated damages 2 but is discretionary with
the jury 3 or with the court where the trial is to the court 4 except in certain well-defined classes of cases wherein
the recovery is measured by the value or difference in value of the property destroyed or injured and the plaintiff
is regarded as entitled, as a matter of law, to interest on the amount found if entitled to a recovery. 5 Where the
matter is within the discretion of the jury, the court may not allow interest if the jury has failed to do so. 6 Interest
may not be awarded as a matter of law where the statute makes the award discretionary. 7
Allowance limited or not permitted by statute.

Where a statute specifies the cases in which interest may be recovered, a recovery cannot be had in other cases. 8
Where the right of action is given by a statute and the measure of damages is fixed, interest cannot be allowed
unless provided for by the statute. 9 Thus, where the damages are in the nature of a penalty fixed by a statute
without any reference to the fault or neglect on the part of the defendant, interest should not be allowed. 10
Footnotes
N.H.Pepin v. Beaulieu, 102 N.H. 84, 151 A.2d 230 (1959).
1
2
N.Y.Flamm v. Noble, 296 N.Y. 262, 72 N.E.2d 886, 171 A.L.R. 812 (1947).
U.S.Ford Motor Co. v. Bradley Transp. Co., 174 F.2d 192 (6th Cir. 1949).
96.Recovery as matter of right or discretion, 25 C.J.S. Damages 96
3
4
5
7
8
9
10
OhioRowley v. Ferguson, 37 Ohio L. Abs. 531, 48 N.E.2d 243 (Ct. App. 2d Dist. Franklin County 1942).
U.S.Jones v. U.S., 258 U.S. 40, 42 S. Ct. 218, 66 L. Ed. 453 (1922).
Mass.McCarthy v. Brockton Nat. Bank, 314 Mass. 318, 50 N.E.2d 196 (1943).
Mo.Amber v. Davis, 221 Mo. App. 448, 282 S.W. 459 (1926).
U.S.Michelsen v. Penney, 135 F.2d 409 (C.C.A. 2d Cir. 1943).
Tex.Wiess v. Gordon, 209 S.W. 486 (Tex. Civ. App. Beaumont 1919).
Principal damages fixed by conditions existing when injury inflicted
Tex.Texas Co. v. State, 154 Tex. 494, 281 S.W.2d 83 (1955).
U.S.United Mine Workers of America v. Coronado Coal Co., 258 F. 829 (C.C.A. 8th Cir. 1919), rev'd on other
grounds, 259 U.S. 344, 42 S. Ct. 570, 66 L. Ed. 975, 27 A.L.R. 762 (1922).
Okla.Manglesdorf Seed Co. v. Pauls Valley Grain & Seed Co., 1932 OK 191, 155 Okla. 270, 8 P.2d 1100 (1932).
U.S.Storley v. Armour & Co., 107 F.2d 499 (C.C.A. 8th Cir. 1939).
Colo.Moreland v. Austin, 138 Colo. 78, 330 P.2d 136 (1958).
N.Y.Flamm v. Noble, 296 N.Y. 262, 72 N.E.2d 886, 171 A.L.R. 812 (1947).
Ind.Chicago & E.R. Co. v. Schipper, 75 Ind. App. 669, 131 N.E. 232 (1921).
Tex.St. Louis Southwestern Ry. Co. of Texas v. Post, 220 S.W. 129 (Tex. Civ. App. Texarkana 1920).
Interest not recoverable in statutory actions for multiple damages
U.S.U.S. v. Globe Remodeling Co., 196 F. Supp. 652 (D. Vt. 1960).
Ala.Mobile & O.R. Co. v. Williams, 219 Ala. 238, 121 So. 722 (1929).
End of Document
97.Wrongs to person, 25 C.J.S. Damages 97
Damages
1. Pecuniary Losses
d. Interest
(3) Torts
97. Wrongs to person
While there is authority that, in the absence of a statute, interest cannot be awarded as damages in actions
for personal injuries, there is also authority to the contrary, and by statute in some jurisdictions, interest
may be given.
While there is authority that, in the absence of a statute, interest cannot be awarded as damages in actions for
personal injuries, 1 and damages cannot be awarded for detention of the supposed amount due, 2 there is also
authority to the contrary, 3 and by statute in some jurisdictions, interest may be given. 4
Unliquidated claims.
While there is authority that where money has been expended because of a personal injury, the jury may in its
discretion allow interest thereon, 5 there is also other authority that holds that interest is not recoverable thereon
where the claim is considered unliquidated until the amount thereof is fixed by the jury. 6
Footnotes
U.S.Delaney v. C.I.R., 99 F.3d 20 (1st Cir. 1996).
1
N.Y.Raman v. Carborundum Co., 31 A.D.2d 552, 295 N.Y.S.2d 534 (2d Dep't 1968).
2
3
4
Lump-sum award
IowaLawson v. Fordyce, 237 Iowa 28, 21 N.W.2d 69 (1945).
Pa.Rice v. Hill, 315 Pa. 166, 172 A. 289 (1934).
Vt.Blunt v. Montpelier & W.R.R.R., 89 Vt. 152, 94 A. 106 (1915).
Medical malpractice
Colo.Wallbank v. Rothenberg, 74 P.3d 413 (Colo. App. 2003).
97.Wrongs to person, 25 C.J.S. Damages 97
5
6
D.C.Washington & G.R. Co. v. Hickey, 12 App. D.C. 269, 1898 WL 15576 (App. D.C. 1898).
Mich.Fitzpatrick v. Ritzenhein, 367 Mich. 326, 116 N.W.2d 894 (1962).
End of Document
98.Wrongs to personal property, 25 C.J.S. Damages 98
Damages
1. Pecuniary Losses
d. Interest
(3) Torts
98. Wrongs to personal property
While there is authority that in the event of a wrong resulting in the depreciation or destruction of personal
property, interest on the damages sustained may be allowed, there is also authority to the contrary.
There is authority that in an action for an injury to personal property, the plaintiff is not entitled to interest as such, 1
but the jury in its discretion may consider the delay caused by the defendant as incident to a determination of the
amount of the loss. 2 However, there is also authority, sometimes provided for or affirmed by a statute, that in the
event of a wrong resulting in the depreciation or destruction of personal property, interest on the damages sustained
may be allowed 3 as a matter of discretion 4 or, that where the amount of the loss is definitely ascertainable, as
a matter of law or of right, 5 and that the interest may be recovered by that name. 6 Interest may be allowable as
of right in trover and other like actions. 7
A right to recover interest in the case of unliquidated damages to personal property is properly denied, 8 and this
rule is followed under statutes providing for interest only where the damages are certain or capable of being made
certain by calculation. 9
Loss of use.
Where damages are sought for an injury to property and also damages for the deprivation of its use, interest is
not allowable, since the recovery for the use takes the place of interest, 10 but interest for delay in paying for loss
of use may be recoverable. 11
98.Wrongs to personal property, 25 C.J.S. Damages 98
Footnotes
Ga.Louisville & N.R. Co. v. Faust, 30 Ga. App. 310, 117 S.E. 761 (1923).
1
Ga.Louisville & N.R. Co. v. Faust, 30 Ga. App. 310, 117 S.E. 761 (1923).
2
3
6
7
8
9
10
11

N.Y.Buffalo Oil Terminal, Inc. v. William B. Kimmins & Sons, Inc., 42 Misc. 2d 499, 248 N.Y.S.2d 499 (Sup 1964),
judgment aff'd, 23 A.D.2d 970, 260 N.Y.S.2d 621 (4th Dep't 1965).
Withholding money due for damage
Conn.Wells Laundry & Linen Supply Co. v. ACME Fast Freight, 138 Conn. 458, 85 A.2d 907 (1952).
Ky.Swiss Oil Corp. v. Hupp, 253 Ky. 552, 69 S.W.2d 1037 (1934).
N.D.Braaten v. Grabinski, 77 N.D. 422, 43 N.W.2d 381 (1950).
Demands of justice
Conn.Ek v. Bowen, 2 Conn. Cir. Ct. 105, 195 A.2d 574 (App. Div. 1963).
U.S.Chesapeake & O. Ry. Co. v. Elk Refining Co., 186 F.2d 30, 36 A.L.R.2d 329 (4th Cir. 1950).
N.Y.Sandak v. Combs, 26 Misc. 2d 478, 213 N.Y.S.2d 542 (App. Term 1961).
Ascertainment by court or jury
Tex.Chicago, R.I. & G. Ry. Co. v. Trinity Valley Produce Co., 269 S.W. 1109 (Tex. Civ. App. Waco 1925).
U.S.Chattanooga Discount Corp. v. West, 219 F. Supp. 140 (N.D. Ala. 1963).
N.Y.Grobe v. Kramer, 178 Misc. 247, 33 N.Y.S.2d 901 (Sup 1942), order aff'd, 266 A.D. 768, 42 N.Y.S.2d 424
(1st Dep't 1943).
U.S.Vietzke v. Austin Co., 54 F. Supp. 265 (E.D. Wash. 1944).
Okla.Schaff v. Hudgins, 1924 OK 42, 98 Okla. 219, 225 P. 913 (1924).
N.D.Braaten v. Grabinski, 77 N.D. 422, 43 N.W.2d 381 (1950).
U.S.Chesapeake & O. Ry. Co. v. Elk Refining Co., 186 F.2d 30, 36 A.L.R.2d 329 (4th Cir. 1950).
Tex.Ancira-Winton Chevrolet, Inc. v. Wilkerson, 507 S.W.2d 854 (Tex. Civ. App. San Antonio 1973), writ refused
n.r.e., (June 5, 1974).
N.Y.Johnson v. Scholz, 276 A.D. 163, 93 N.Y.S.2d 334 (2d Dep't 1949).
End of Document
99.Wrongs to real property, 25 C.J.S. Damages 99
Damages
1. Pecuniary Losses
d. Interest
(3) Torts
99. Wrongs to real property
While there is authority that, in an action for damages for injuries to real property, the owner may recover
interest on the damages, at least where the amount of damages is determinable by fixed rules of evidence
and known standards of value, there is also authority to the contrary.
There is authority that, in actions for injuries to real property, interest as such cannot be awarded as damages 1
although the jury may consider the time that has elapsed since the injury in making up the amount of its verdict. 2
However, there is also authority that, in an action for damages for injuries to real property, the owner may recover
interest on the damages, 3 at least where the amount of damages is determinable by fixed rules of evidence and
known standards of value. 4
While there is authority that an allowance of interest on the amount of the loss by way of damages is within the
discretion of the jury 5 and cannot be claimed as of right, 6 there is also authority that, where the amount of the
injury is definitely ascertainable as of a fixed time, interest by way of damages for withholding compensation
may be allowed as of right. 7
In determining whether interest should be allowed, much depends on the nature of the liability and of the
defendant's duty in the premises. 8 There can be no recovery of interest in an action to recover damages for
an injury to realty in cases of injury through simple negligence where no pecuniary benefit can accrue to the
wrongdoer by reason of the injury. 9
99.Wrongs to real property, 25 C.J.S. Damages 99
While there is authority that there can be no recovery of interest in an action to recover unliquidated damages for
an injury to realty, 10 in accordance with a statutory provision, damages to real property may be recoverable even
though the damages are unliquidated. 11
Footnotes
S.C.Knight v. Sullivan Power Co., 140 S.C. 296, 138 S.E. 818 (1927).
1
2
N.Y.Leibowitz v. City of Mt. Vernon, 253 A.D. 758, 300 N.Y.S. 1167 (2d Dep't 1937).
3
Tex.State v. Hale, 136 Tex. 29, 146 S.W.2d 731 (1941).
4
5
6
7
8
9
10
11
Temporary injury
Tex.Bradley v. McIntyre, 373 S.W.2d 389 (Tex. Civ. App. Houston 1963), writ refused n.r.e., (Apr. 1, 1964).
Tex.Torrans v. Tri-State Iron & Metal Co., 381 S.W.2d 668 (Tex. Civ. App. Texarkana 1964).
Mass.Young v. New York, N.H. & H.R. Co., 273 Mass. 567, 174 N.E. 318 (1931).
N.Y.Harmon & Regalia, Inc. v. City of New York, 286 A.D. 825, 141 N.Y.S.2d 877 (1st Dep't 1955).
Tex.Torrans v. Tri-State Iron & Metal Co., 381 S.W.2d 668 (Tex. Civ. App. Texarkana 1964).
IowaChamberlain v. City of Des Moines, 172 Iowa 500, 154 N.W. 766 (1915).
Mo.Gerst v. City of St. Louis, 185 Mo. 191, 84 S.W. 34 (1904).
Ill.Geohegan v. Union Elevated R. Co., 266 Ill. 482, 107 N.E. 786 (1915).
N.Y.E.R. Squibb & Sons Inter-American Corp. v. Springmeier Shipping Co., 194 Misc. 813, 87 N.Y.S.2d 876 (Sup
1949).
End of Document
100.Disease and physical impairment, 25 C.J.S. Damages 100

Damages
2. Physical and Mental Impairment; Exposure to Danger
100. Disease and physical impairment
Recovery may be awarded for a disease or physical impairment directly resulting from an injury, but
damages may not be recovered for unforeseeable consequences of the injury or inconsequential injuries.
Where a disease is the direct result of an injury, a recovery may be awarded therefor. 1 Likewise, apart from any
pecuniary loss, there may be a recovery for a permanent physical impairment resulting from the injury 2 and also
for a disability that is not permanent. 3
In estimating the damages, the jury may take into consideration the effect on the health of the person injured 4 and
may consider not only the present but also the future effect on the health of such person, 5 that is, such impairment
or disability as the evidence shows with reasonable certainty that the plaintiff will suffer in the future. 6 The jury
may also consider the resulting inconvenience. 7 Damages for disability and impairment may be recovered where
the injured person is not conscious. 8
On the other hand, there can be no recovery for physical conditions that are not foreseeable as consequences of
the negligence. 9 Moreover, there can be no recovery for inconsequential injuries. 10
Effect on earning capacity.

While there is authority that the plaintiff is permitted to recover damages for a physical impairment regardless
of the effect on his or her earning capacity, 11 and to recover such damages in addition to those for diminution
in earning capacity, 12 there is also authority that to permit a recovery for diminished earning power and for
impairment of health would be to permit a double recovery. 13
Effect on life expectancy.
100.Disease and physical impairment, 25 C.J.S. Damages 100
While there is authority that the fact that the plaintiff's life has been shortened by the injuries cannot be considered
in assessing damages, 14 there is also authority to the contrary. 15 Furthermore, there is authority that the jury may
consider the fact that the plaintiff's life is shortened, not for the purpose of determining the amount of damages
but for the purpose of determining the extent of the injury. 16
Footnotes
U.S.Texas & P.R. Co. v. Howell, 224 U.S. 577, 32 S. Ct. 601, 56 L. Ed. 892 (1912).
1
2
3
4
5
6
7
8
9
10
11
12
Ill.Messina v. City of Chicago, 64 Ill. App. 2d 171, 212 N.E.2d 320 (1st Dist. 1965).
Tenn.Palanki ex rel. Palanki v. Vanderbilt University, 215 S.W.3d 380 (Tenn. Ct. App. 2006).
Loss of former lifestyle
Tex.Enright v. Goodman Distribution, Inc., 330 S.W.3d 392 (Tex. App. Houston 14th Dist. 2010).
Okla.Wilson & Co. v. Campbell, 1945 OK 116, 195 Okla. 323, 157 P.2d 465 (1945).
Me.Davis v. Tobin, 131 Me. 426, 163 A. 780 (1933).
Pa.Summers v. Certainteed Corp., 606 Pa. 294, 997 A.2d 1152 (2010).
Miss.Grenada Dam Constructors v. Patterson, 48 So. 2d 480 (Miss. 1950).
S.C.Oliver v. Blakeney, 244 S.C. 565, 137 S.E.2d 772 (1964).
Neb.Eden v. Klaas, 166 Neb. 354, 89 N.W.2d 74 (1958).
Cal.Purdy v. Swift & Co., Industrial Indem. Exchange, Intervenor, 34 Cal. App. 2d 656, 94 P.2d 389 (1st Dist. 1939).
Mo.Burr v. Kansas City Public Service Co., 365 Mo. 115, 276 S.W.2d 120 (1955).
N.J.Lanzet v. Greenberg, 222 N.J. Super. 540, 537 A.2d 742 (App. Div. 1988).
Tex.Dallas Ry. & Terminal Co. v. Hendrix, 261 S.W.2d 610 (Tex. Civ. App. Dallas 1953).
Tex.Riley v. Norman, 275 S.W.2d 208 (Tex. Civ. App. El Paso 1954), writ refused n.r.e., (Apr. 27, 1955).
U.S.Shaver v. U.S., 319 F. Supp. 2d 649 (M.D. N.C. 2004).
Okla.Lamfu v. GuideOne Ins. Co., 2006 OK CIV APP 19, 131 P.3d 712 (Div. 3 2005).
Loss of function
IowaGreenfield v. Cincinnati Ins. Co., 737 N.W.2d 112 (Iowa 2007).
13
14
15
16
All damages naturally flowing from defendant's conduct

U.S.Dammarell v. Islamic Republic of Iran, 404 F. Supp. 2d 261 (D.D.C. 2005).
Ky.City of Georgetown v. Groff, 136 Ky. 662, 124 S.W. 888 (1910).
U.S.Downie v. U.S. Lines Co., 231 F. Supp. 192 (E.D. Pa. 1964), judgment rev'd on other grounds, 359 F.2d 344
(3d Cir. 1966).
Md.Rhone v. Fisher, 224 Md. 223, 167 A.2d 773 (1961).
Bauer ex rel. Bauer v. Memorial Hosp., 377 Ill. App. 3d 895, 316 Ill. Dec. 411, 879 N.E.2d 478 (5th Dist. 2007).
Premature aging caused by injuries
Pa.Corcoran v. McNeal, 400 Pa. 14, 161 A.2d 367 (1960).
U.S.Downie v. U.S. Lines Co., 231 F. Supp. 192 (E.D. Pa. 1964), judgment rev'd on other grounds, 359 F.2d 344
(3d Cir. 1966).
Ind.Muncie Pulp Co. v. Hacker, 37 Ind. App. 194, 76 N.E. 770 (1906).
End of Document
101.Disease and physical impairmentDisfigurement, 25 C.J.S. Damages 101

Damages
101. Disease and physical impairmentDisfigurement
Disfigurement or mutilation of the body as a result of an injury to the person may be considered as a proper
element of damage.
Disfigurement or mutilation of the body as a result of an injury to the person may be considered as a proper element
of damage. 1 However, the plaintiff cannot recover for permanent disfigurement and also for the expense of an
operation to remove the disfigurement. 2 Permanent disfigurement need not be shown to a reasonable certainty,
but only by a preponderance of evidence, to authorize recovery therefor. 3
Definition.
For purposes of assessing damages, "disfigurement" is a specific type of permanent injury that impairs a person's
beauty, symmetry, or appearance 4 or that renders the person unsightly, misshapen, or imperfect or in some manner
deforms him or her. 5
Footnotes
Pa.Rogers v. Moody, 430 Pa. 121, 242 A.2d 276 (1968).
1
2
3
4
5
Disfigurement reasonably connected with evidence of pecuniary loss

R.I.Halladay v. Ingram, 78 R.I. 464, 82 A.2d 875 (1951) (overruled on other grounds by, Arlan v. Cervini, 478 A.2d
976 (R.I. 1984)).
La.Wilson v. Yellow Cab Co. of Shreveport, 64 So. 2d 463 (La. Ct. App. 2d Cir. 1953).
IowaWitt v. Town of Latimer, 139 Iowa 273, 117 N.W. 680 (1908).
Miss.Vascoe v. Ford, 212 Miss. 370, 54 So. 2d 541 (1951).
Tex.Figueroa v. Davis, 318 S.W.3d 53 (Tex. App. Houston 1st Dist. 2010).
End of Document
102.Impairment of mental faculties, 25 C.J.S. Damages 102

Damages
102. Impairment of mental faculties
The impairment of mental faculties may constitute an element of damages.
The loss of intellectual capacity and mental vigor may afford an element of the damages occasioned by a personal
injury. 1 However, no recovery can be had for incurable insanity as such beyond the amount proper for necessary
maintenance. 2
Footnotes
U.S.Tinnerholm v. Parke Davis & Co., 285 F. Supp. 432 (S.D. N.Y. 1968), judgment aff'd, 411 F.2d 48 (2d Cir.
1
1969).
Okla.Shebester, Inc. v. Ford, 1961 OK 67, 361 P.2d 200 (Okla. 1961).
OhioDernham v. Cincinnati Traction Co., 21 Ohio N.P. (n.s.) 418, 29 Ohio Dec. 454, 1919 WL 1233 (Super. Ct.
1919).
End of Document
103.Exposure to danger, 25 C.J.S. Damages 103

Damages
103. Exposure to danger
Exposure to danger is not an element of recovery unless an injury results therefrom.
A simple exposure to an averted danger is not an element of recovery 1 although a plaintiff who has been placed
in a perilous position by the defendant's wrongful act is entitled to recover for such injuries that have resulted
therefrom. 2 Hence, the jury may, in assessing damages, consider the peril and danger to which the plaintiff was
exposed by the circumstances producing the injury complained of. 3 However, damages are not allowed for a risk
to one who is not conscious of the impending danger when no physical injury is sustained. 4
Under some authority, recovery for emotional damages is allowed when they are accompanied by exposure to
physical harm. 5
Footnotes
Kan.Atchison, T. & S. F. R. Co. v. McGinnis, 46 Kan. 109, 26 P. 453 (1891).
1
Ind.Terre Haute & I.R. Co. v. Brunker, 128 Ind. 542, 26 N.E. 178 (1890).
2
3
4
5
Worry or apprehension about future consequences, see 117.

Conn.Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A.L.R. 785 (1925).
IowaHall v. Incorporated Town of Manson, 90 Iowa 585, 58 N.W. 881 (1894).
Kan.Atchison, T. & S. F. R. Co. v. McGinnis, 46 Kan. 109, 26 P. 453 (1891).
Wyo.Hendricks v. Hurley, 2008 WY 57, 184 P.3d 680 (Wyo. 2008).
Mental and emotional damages, generally, see 106 to 117.
End of Document

Damages
3. Physical and Mental Pain and Suffering
a. Physical Pain and Suffering
104. Generally
In an action by the injured party or his or her personal representative, physical pain and suffering is an
element of damages.
Physical or bodily pain and suffering in consequence of a wrong occasioning an injury to the person is a proper
element of damages. 1 However, an allowance can be made only for pain and suffering of which the injured person
is conscious, and damages for pain during the time that the injured person is unconscious are not allowable. 2
The existence of compensable physical pain is an issue of credibility, and the jury must believe that the plaintiff
suffered physical pain before it compensates him or her for such pain. 3 While there is authority that it is not
necessary, in order to recover damages for physical pain and suffering, that the injury be permanent, 4 some
statutes require that in order for the plaintiff to be entitled to recover for pain and suffering, he or she must sustain
the permanent loss of a bodily function. 5
For purposes of awarding damages for pain and suffering, physical pain and suffering includes bodily suffering,
sensation, or discomfort. 6 Inconvenience, even though resulting naturally from physical pain, does not constitute
a distinct and separate element of recovery. 7 Moreover, recovery cannot be had for pain and suffering, the right
of action for which is in one other than the plaintiff. 8 Furthermore, occasional, slight, intermittent pains suffered
several years after the injury was received are beyond the scope of legitimate compensation. 9 Where pain is
claimed as an element of damages, the impossibility of definitely measuring the damages by a monetary standard
is no ground for denying pecuniary relief. 10
While pain and suffering that are due to physiological conditions not related to the injuries sustained in an accident
are not compensable as an element of damages, 11 pain clearly shown to be such as would naturally come from the
injuries received, and the shock resultant therefrom is not to be excluded from consideration or unduly minimized
merely because it is also symptomatical of physical changes that the injured person is then undergoing. 12
Medical treatment.
Pain and suffering incident to the medical treatment that the injured party is receiving constitutes a proper element
of damages to be considered by the jury. 13
Imaginary or deceptive location.

There may be a recovery for physical pain, even though the location thereof is deceptive, if the sensation of
suffering actually exists. 14
Footnotes
Colo.Bushnell v. Sapp, 194 Colo. 273, 571 P.2d 1100 (1977).
1
Mo.Jurcich v. General Motors Corp., 539 S.W.2d 595 (Mo. Ct. App. 1976).
3
4
5
6
7
8
9
10
11
12
13
14
A.L.R. Library
Propriety of awarding compensatory damages for pain and suffering in action under sec. 7 of Age Discrimination in
Employment Act of 1967 (29 U.S.C.A. sec. 626), 52 A.L.R. Fed. 837.
U.S.Dillingham v. IBP, Inc., 219 F.3d 797 (8th Cir. 2000).
Tex.Casas v. Paradez, 267 S.W.3d 170 (Tex. App. San Antonio 2008).
Consciousness as not necessary for recovery of damages for physical impairment, see 100, 101.
Pa.Davis v. Mullen, 565 Pa. 386, 773 A.2d 764 (2001).
Ga.Sam Finley, Inc. v. Russell, 75 Ga. App. 112, 42 S.E.2d 452 (1947).
Tort Claims Act
N.J.Toto v. Ensuar, 196 N.J. 134, 952 A.2d 463 (2008).
IowaEstate of Pearson ex rel. Latta v. Interstate Power and Light Co., 700 N.W.2d 333 (Iowa 2005).
U.S.Campbell v. Pittsburgh & W. Va. R. Co., 122 F. Supp. 749 (W.D. Pa. 1954).
Tex.Texas Traction Co. v. Hanson, 124 S.W. 494 (Tex. Civ. App. 1910).
N.H.Prescott v. Robinson, 74 N.H. 460, 69 A. 522 (1908).
R.I.Peters v. United Elec. Rys. Co., 57 R.I. 311, 189 A. 901 (1937).
Ky.Warfield Natural Gas Co. v. Wright, 246 Ky. 208, 54 S.W.2d 666 (1932).
Mo.Hall v. St. Louis Public Service Co., 266 S.W.2d 597 (Mo. 1954).
U.S.The Little Silver, 189 F. 980 (D.N.J. 1911), aff'd, 195 F. 740 (C.C.A. 3d Cir. 1912).
Colo.Intermill v. Heumesser, 154 Colo. 496, 391 P.2d 684 (1964).
Mich.Wickens v. Oakwood Healthcare System, 465 Mich. 53, 631 N.W.2d 686 (2001).
N.Y.Hickenbottom v. Delaware, L. & W.R. Co., 122 N.Y. 91, 25 N.E. 279 (1890).
End of Document
105.Future pain, 25 C.J.S. Damages 105

Damages
a. Physical Pain and Suffering
105. Future pain
While the plaintiff is entitled to recover for future pain, a recovery is not permitted for future pain and
suffering that are merely likely to occur or that are speculative.
The plaintiff is entitled to recover for future pain and suffering, 1 that is, pain and suffering that is reasonably
certain to occur in the future 2 or, in some jurisdictions, that is reasonably probable. 3 In order for pain and
suffering to be compensable, it is not required that the injury be permanent. 4 However, a recovery is not permitted
for future pain and suffering that are merely likely to occur 5 or that are speculative. 6
Footnotes
Ky.May v. Holzknecht, 320 S.W.3d 123 (Ky. Ct. App. 2010).
1
2
3
4
5
6
Mo.McCormack v. Capital Elec. Const. Co., Inc., 159 S.W.3d 387 (Mo. Ct. App. W.D. 2004).
N.Y.Pouso v. City of New York, 22 A.D.3d 395, 804 N.Y.S.2d 24 (1st Dep't 2005).
Ky.May v. Holzknecht, 320 S.W.3d 123 (Ky. Ct. App. 2010).
U.S.A. H. Bull S. S. Co. v. Ligon, 285 F.2d 936, 88 A.L.R.2d 479 (5th Cir. 1960).
Del.Kane v. Reed, 48 Del. 266, 101 A.2d 800 (Super. Ct. 1954).
U.S.Furey v. U.S., 458 F. Supp. 2d 48 (N.D. N.Y. 2006).
N.H.Dunham v. Stone, 96 N.H. 138, 71 A.2d 412 (1950).
OhioHaase v. Ryan, 100 Ohio App. 285, 60 Ohio Op. 251, 136 N.E.2d 406 (6th Dist. Lucas County 1955).
Wis.Peterson v. Western Cas. & Sur. Co., 5 Wis. 2d 535, 93 N.W.2d 433 (1958).
End of Document

Damages
b. Mental Pain and Suffering
(1) In General
106. Generally
Mental pain and suffering proximately resulting from a wrong that in itself constitutes a cause of action is
a proper element of compensatory damages.
Mental pain and suffering in connection with a wrong that, apart from such pain and suffering, constitutes a cause
of action is a proper element of damages 1 where it is the natural and proximate consequence of the wrong, 2 or
is fairly inferred from injuries sustained, is an element of damages. 3
Where an allowance is made for mental pain and suffering, it is an element of actual or compensatory, as
distinguished from exemplary or punitive, damages. 4 Mental pain and suffering includes mental anguish, anxiety,
embarrassment, a feeling of uselessness, or other emotional distress. 5 It has been said in this regard that "general
damages" encompass all the damages that naturally and necessarily result from a legal wrong done and include
such items as pain and suffering, inconvenience, and loss of enjoyment that cannot be measured definitively in
monetary terms. 6 Thus, in a case where it is proper to award damages for mental anguish, the fact that it is not
susceptible of accurate computation will not constitute a bar to the award. 7 The award is made as a matter of
right and not of discretion. 8
Disappointment or regret.
"Mental anguish," as the term is employed to designate a recoverable element of damages, means something
more than mere disappointment or regret. 9 However, recovery may in some instances be allowed for extreme 10
disappointment or frustration. 11
Loss of enjoyment of life.
Under some authority, loss of enjoyment of life included in mental pain and suffering 12 as a compensable element
of general damages 13 or a noneconomic element of compensatory damages. 14 However, it has also been held
that loss of enjoyment of life is not a separate element of damages deserving a distinct award but is only a factor to
be considered by the jury in assessing damages for conscious pain and suffering, thereby requiring a demonstration
that the plaintiffs have suffered some physical injury or pain. 15
Cases:
Under New York law, a plaintiff generally may recover for past and future loss of earnings, medical expenses,
and mental and physical pain and suffering attributable to a defendant's negligence. Delano v. U.S., 859 F. Supp.
2d 487 (W.D. N.Y. 2012).
When determining whether emotional distress damages are available, the critical inquiry becomes whether the
kind of interest invaded is of sufficient importance as a matter of policy to merit protection from emotional impact.
Miranda v. Said, 836 N.W.2d 8 (Iowa 2013).
Distress that does not significantly affect the plaintiff's everyday life or require significant treatment will not
suffice to show serious or severe emotional injury, as required in order to recover emotional-distress damages.
Osborne v. Keeney, 399 S.W.3d 1 (Ky. 2012).
For purposes of damages award for loss of enjoyment of life, "loss of enjoyment of life" refers to the detrimental
alterations of a person's life or lifestyle or a person's inability to participate in the activities or pleasures of life
that were formerly enjoyed. Clement v. Citron, 115 So. 3d 1260 (La. Ct. App. 3d Cir. 2013).
As a general rule, noneconomic damages are recoverable in tort claims, and emotional damages include both
emotional distress and mental anguish. Price v. High Pointe Oil Co., Inc., 294 Mich. App. 42, 817 N.W.2d 583
(2011), appeal granted, 491 Mich. 870, 809 N.W.2d 566 (2012).
In Nebraska, "hedonic damages," which are damages to compensate a plaintiff for the loss of enjoyment of life
resulting from his or her physical injuries, are subsumed within a plaintiff's damages for pain and suffering; they
are not a separate category of damages. Neb. Rev. Stat. 25-21,185.08. Golnick v. Callender, 290 Neb. 395, 860
N.W.2d 180 (2015).
[END OF SUPPLEMENT]
Footnotes
U.S.Allen v. Wal-Mart Stores, Inc., 241 F.3d 1293 (10th Cir. 2001).
1
A.L.R. Library
Recoverability of compensatory damages for mental anguish or emotional distress for tortiously causing another's birth,
74 A.L.R.4th 798.
Cal.Crisci v. Security Ins. Co. of New Haven, Conn., 66 Cal. 2d 425, 58 Cal. Rptr. 13, 426 P.2d 173 (1967).
Del.Guthridge v. Pen-Mod, Inc., 239 A.2d 709 (Del. Super. Ct. 1967).
"Direct result"
N.Y.Dombrowski v. Bulson, 79 A.D.3d 1587, 915 N.Y.S.2d 778 (4th Dep't 2010), appeal granted, reargument
denied, 83 A.D.3d 1602, 922 N.Y.S.2d 219 (4th Dep't 2011).
3
4
Showing of causation required

U.S.Matarese v. Archstone Pentagon City, 795 F. Supp. 2d 402 (E.D. Va. 2011).
Va.Kondaurov v. Kerdasha, 271 Va. 646, 629 S.E.2d 181 (2006).
La.Gremillion v. C. & L. Const. Co., 125 So. 2d 198 (La. Ct. App. 3d Cir. 1960).
S.C.Lanford v. West Oakwood Cemetery Addition, Inc., 223 S.C. 350, 75 S.E.2d 865 (1953).
Exemplary or punitive damages, generally, see 221 to 235.
A.L.R. Library
Loss of enjoyment of life as a distinct element or factor in awarding damages for bodily injury, 34 A.L.R.4th 293.
Hawai'iKanahele v. Han, 125 Haw. 446, 263 P.3d 726 (2011).
7
8
9
10
11
12
13
14
15
Similar definition
La.Thibodeaux v. Trahan, 74 So. 3d 850 (La. Ct. App. 3d Cir.2011).
Ky.Warfield Natural Gas Co. v. Wright, 246 Ky. 208, 54 S.W.2d 666 (1932).
Uncertainty as to measure or extent of damages, generally, see 39.
Ala.Birmingham Ry., Light & Power Co. v. Coleman, 181 Ala. 478, 61 So. 890 (1913).
Wis.Gatzow v. Buening, 106 Wis. 1, 81 N.W. 1003 (1900).
N.C.Gerock v. Western Union Telegraph Co., 147 N.C. 1, 60 S.E. 637 (1908).
U.S.Peschel v. City Of Missoula, 664 F. Supp. 2d 1149 (D. Mont. 2009).
Foreseeability
La.Bruce v. State Farm Ins. Co., 859 So. 2d 296 (La. Ct. App. 2d Cir. 2003).
Impairment of the capacity to enjoy the normal pleasures of living
Tenn.Lang v. Nissan North America, Inc., 170 S.W.3d 564 (Tenn. 2005).
N.Y.Golden v. Manhasset Condominium, 2 A.D.3d 345, 770 N.Y.S.2d 55 (1st Dep't 2003).
End of Document
107.As independent ground of recovery, 25 C.J.S. Damages 107

Damages
(1) In General
107. As independent ground of recovery
West's Key Number Digest, Damages 57.1, 57.9, 57.14, 57.20
While there is authority that ordinarily mental pain and suffering will not alone constitute a sufficient basis
for the recovery of substantial damages, there is also authority that allows a recovery for mental pain or
emotional damage.
There is authority that allows independent recovery for mental pain or emotional damage, 1 at least where it is
serious or severe, 2 to the point that no reasonable person could be expected to endure it. 3 There is also authority
that ordinarily mental pain and suffering will not alone constitute a sufficient basis for the recovery of substantial
damages. 4 It has been held in this regard that independent recovery for emotional distress is permitted only in
limited circumstances, including intentional infliction of emotional distress, in connection with certain intentional
economic torts, and in contractual situations where the specialized nature of the contract naturally contemplated
that reasonable care would be taken to avoid the infliction of severe emotional distress. 5 It has also been held
that recovery for emotional damages is allowed only when they are accompanied by physical injury, exposure to
physical harm, or willful, wanton, or malicious conduct. 6
Damages may be recovered for emotional anguish and suffering, and emotional distress, where the act causing
such condition is intentional or willful, unreasonable, and can reasonably be expected to cause such result, 7
especially in cases affecting the liberty or personal security, 8 or character or reputation, 9 of the injured person,
in which cases mental suffering is recognized as the ordinary, natural, and proximate consequence of the wrong
complained of. 10 The intent need not be specifically directed at the person distressed, but it is sufficient if the
act itself is intentional, and the actor can reasonably expect emotional distress to result. 11 Likewise, damages for
mental anguish and suffering are recoverable where the act complained of was done with such gross carelessness
or recklessness as to show an utter indifference to the consequences. 12 However, no recovery may be had for
emotional distress arising from the common vicissitudes of ordinary life; 13 the courts do not reward litigation in
situations where only bad manners and mere hurt feelings are involved. 14
Cases:
In deciding whether to allow damages for emotional distress in the absence of physical injury, Washington courts
balance the right to compensation for emotional distress against competing interests in preventing fraudulent
claims and ensuring that tortfeasors are held responsible only insofar as is commensurate with their degree of
culpability. Bylsma v. Burger King Corp., 293 P.3d 1168 (Wash. 2013).
[END OF SUPPLEMENT]
Footnotes
U.S.Smith v. The Berry Co., 198 F.3d 150 (5th Cir. 1999).
1
3
4
5
6
7
Mich.Stewart v. Rudner, 349 Mich. 459, 84 N.W.2d 816 (1957).

Relationship of mental or emotional suffering to other injuries or wrongs, generally, see 110 to 113.
U.S.In re Prince, 414 B.R. 285 (Bankr. M.D. Tenn. 2009), aff'd, 2010 WL 841273 (M.D. Tenn. 2010).
Severe and debilitating distress
OhioBaghani v. Charter One Bank F.S.B., 2009-Ohio-490, 2009 WL 280399 (Ohio Ct. App. 8th Dist. Cuyahoga
County 2009).
U.S.Lynch v. Christie, 2011 WL 3920154 (D. Me. 2011).
Cal.Christensen v. Superior Court, 54 Cal. 3d 868, 2 Cal. Rptr. 2d 79, 820 P.2d 181 (1991).
Mass.Sullivan v. H. P. Hood & Sons, Inc., 341 Mass. 216, 168 N.E.2d 80 (1960).
Minn.State Farm Mut. Auto. Ins. Co. v. Village of Isle, 265 Minn. 360, 122 N.W.2d 36 (1963).
Tex.Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993).
Abusive language
U.S.Wiggins v. Moskins Credit Clothing Store, 137 F. Supp. 764 (E.D. S.C. 1956).
N.M.Akutagawa v. Laflin, Pick & Heer, P.A., 138 N.M. 774, 2005-NMCA-132, 126 P.3d 1138 (Ct. App. 2005).
Emotional distress in connection with breach of contract, generally, see 113.
Wyo.Hendricks v. Hurley, 2008 WY 57, 184 P.3d 680 (Wyo. 2008).
Ariz.Skousen v. Nidy, 90 Ariz. 215, 367 P.2d 248 (1961).
Fla.Slocum v. Food Fair Stores of Fla., Inc., 100 So. 2d 396 (Fla. 1958).
Ill.Zepeda v. Zepeda, 41 Ill. App. 2d 240, 190 N.E.2d 849 (1st Dist. 1963).
Outrageous or beyond reasonable bounds of decency
Cal.Perati v. Atkinson, 213 Cal. App. 2d 472, 28 Cal. Rptr. 898 (1st Dist. 1963).
8
9
10
11
12
13
Necessary and natural consequence of tortious conduct

Mo.A.R.B. v. Elkin, 98 S.W.3d 99 (Mo. Ct. App. W.D. 2003).
Ark.Wilson v. Wilkins, 181 Ark. 137, 25 S.W.2d 428 (1930).
Neb.Kurpgeweit v. Kirby, 88 Neb. 72, 129 N.W. 177 (1910).
Minn.Johnson v. Sampson, 167 Minn. 203, 208 N.W. 814, 46 A.L.R. 772 (1926).
Ark.Wilson v. Wilkins, 181 Ark. 137, 25 S.W.2d 428 (1930).
Okla.Mashunkashey v. Mashunkashey, 1941 OK 113, 189 Okla. 60, 113 P.2d 190 (1941).
Miss.Lyons v. Zale Jewelry Co., 246 Miss. 139, 150 So. 2d 154 (1963).
Tex.Standard Fruit and Vegetable Co., Inc. v. Johnson, 985 S.W.2d 62 (Tex. 1998).
Ga.Southland Propane, Inc. v. McWhorter, 11 Fulton County D. Rep. 3925, 2011 WL 5842761 (Ga. Ct. App. 2011).
Hypersensitive mental disturbance, see 108.
14
Va.Harris v. Kreutzer, 271 Va. 188, 624 S.E.2d 24 (2006).
End of Document
108.Persons of unsound mind; imaginary suffering or..., 25 C.J.S. Damages ...

Damages
(1) In General
108. Persons of unsound mind; imaginary suffering or hypersensitive mental disturbance
West's Key Number Digest, Damages 57.1, 57.9, 57.11
The authorities disagree as to whether a plaintiff who is of unsound mind may recover for mental suffering.
While recovery may be had for imaginary suffering produced by shock, there may generally be no recovery
for a hypersensitive mental disturbance.
While there is authority that a recovery may be had for mental suffering, although the person injured is of unsound
mind, 1 unless it is established that his or her mental condition is such as to prevent him or her from experiencing
mental suffering, 2 there is also authority that where the plaintiff has been rendered insane by his or her injuries,
he or she is not entitled to recover for mental suffering. 3
Where a neurotic condition produced by shock results in imaginary mental suffering, such suffering may be an
element of recovery. 4 However, in the absence of specific knowledge of the plaintiff's unusual sensitivity, there
may be no recovery for a hypersensitive mental disturbance where a normal individual would not be affected
under the circumstances. 5
Footnotes
Tex.Gulf, W.T. & P. Ry. Co. v. Holzheuser, 45 S.W. 188 (Tex. Civ. App. 1898).
1
Tex.Tweed v. Western Union Telegraph Co., 107 Tex. 247, 166 S.W. 696 (1914).
2
Tex.Western Union Telegraph Co. v. Tweed, 138 S.W. 1155 (Tex. Civ. App. Dallas 1911), aff'd, 107 Tex. 247,
3
4
166 S.W. 696 (1914).

Tex.Chicago, R.I. & G. Ry. Co. v. Barnes, 50 Tex. Civ. App. 46, 111 S.W. 447 (1908), writ refused.
Functional disturbance of the nervous system
Ind.Dimmick v. Follis, 123 Ind. App. 701, 111 N.E.2d 486 (1953).
Miss.Aldridge v. Johnson, 318 So. 2d 870 (Miss. 1975).
Va.Hughes v. Moore, 214 Va. 27, 197 S.E.2d 214 (1973).
108.Persons of unsound mind; imaginary suffering or..., 25 C.J.S. Damages ...
End of Document
109.Disfigurement, 25 C.J.S. Damages 109

Damages
(1) In General
109. Disfigurement
West's Key Number Digest, Damages 57.11, 57.24
While there is authority that mental pain in contemplation of a permanent disfigurement is an element of
damage, there is also authority to the contrary.
While there is authority that mental pain in contemplation of a permanent mutilation or disfigurement of the
person may be considered as an element of damage, 1 there is also authority that, while there can be a recovery
for disfigurement, an injury growing out of the contemplation of disfigurement is too remote to be considered
as an element of damage. 2 Furthermore, disfigurement in and of itself is not necessarily an element of damage
except for its effect on the mind. 3
Definition.
"Disfigurement," as a basis for an award of damages, is a specific type of permanent injury that impairs a person's
beauty, symmetry, or appearance 4 or that renders the person unsightly, misshapen, or imperfect or in some manner
deforms him or her. 5
Footnotes
U.S.Rapisardi v. United Fruit Co., 441 F.2d 1308 (2d Cir. 1971).
1
Okla.John A. Brown Co. v. Shelton, 1963 OK 239, 391 P.2d 259 (Okla. 1963).
R.I.Arlan v. Cervini, 478 A.2d 976 (R.I. 1984).
Shame resulting from tortious disfigurement or mutilation
Ga.Fields v. Jackson, 102 Ga. App. 117, 115 S.E.2d 877 (1960).
Mental pain accompanying injury distinguished
109.Disfigurement, 25 C.J.S. Damages 109
2
3
4
5
The mental anguish of physical disfigurement differs in degree and is not identical with the mental pain accompanying
a serious personal injury in general and so considered the two are not double damages in the sense of an allowance
of double compensation for the same loss.
Mo.Wilson v. Kurn, 183 S.W.2d 553 (Mo. 1944).
IdahoGiffen v. City of Lewiston, 6 Idaho 231, 55 P. 545 (1898).
Ind.Harrod v. Bisson, 48 Ind. App. 549, 93 N.E. 1093 (1911).
Mo.Wilson v. Kurn, 183 S.W.2d 553 (Mo. 1944).
End of Document
110.Physical injury to plaintiff, 25 C.J.S. Damages 110

Damages
(2) Relationship to Other Injuries or Wrongs
110. Physical injury to plaintiff
West's Key Number Digest, Damages 57.10, 57.16(2), 57.23(2)
Mental pain and suffering directly and necessarily consequent of a physical injury is a proper element of
damages.
Mental pain and suffering as a direct and necessary consequence of a physical injury is a distinct element of
damages, 1 and the person injured is entitled to compensation therefor 2 even where no recovery is sought for the
physical injury. 3 The physical injury and mental suffering must result from breach of a duty owed to the particular
plaintiff. 4 Moreover, the mental pain for which compensation may be had must be such as accompanies the
physical injury and is fairly and reasonably the natural consequence that flows from it. 5 A statute may condition
the recovery of noneconomic damages related to pain, suffering, mental anguish, and inconvenience for all of the
injuries related to an accident on proof that part of the bodily injury arising out of the accident is permanent within
a reasonable degree of medical probability. 6
Necessity for physical injury.

There is authority that a mere physical impact without any actual physical injury is insufficient to warrant a
recovery for mental or emotional damage 7 and that sickness or other physical injury resulting from mental
suffering or anguish will not afford an element of damage where there is no actual injury to a person or property, 8
particularly where it is not the natural or reasonable consequence of the defendant's alleged tort. 9 Thus, it has
been said that a plaintiff must prove emotional distress so severe as to have manifested objective symptoms
demonstrating shock, illness, or other bodily harm 10 and that a plaintiff must prove physical manifestations of the
distress. 11 However, there is also authority that mental pain and suffering, without more, may constitute ground
for a recovery of substantial damages, 12 at least where the mental pain and suffering, or worry and anguish, for
which damages are sought were occasioned by breach of a duty owed the plaintiff by the defendant and are not
predicated solely on breach of duty owed a party other than the plaintiff. 13
Future mental suffering resulting from present physical injury.

Future mental suffering that is a necessary consequence of the physical injury is a proper element of damages 14
provided that it is reasonably certain to occur. 15
"Stand-alone" claims.
Claims for emotional injuries unrelated to any physical injuries that the plaintiff might have sustained are
sometimes referred to as "stand-alone" claims. 16
Footnotes
U.S.Maldonado v. National Acme Co., 73 F.3d 642, 1996 FED App. 0019P (6th Cir. 1996).
1
2
3
4
5
6
7
8
9
10
11
12
Inference of mental anguish

N.Y.Hahn v. Taefi, 115 A.D.2d 946, 497 N.Y.S.2d 522 (4th Dep't 1985).
Pa.Reist v. Manwiller, 231 Pa. Super. 444, 332 A.2d 518 (1974).
U.S.McCulloch v. Glasgow, 620 F.2d 47 (5th Cir. 1980).
Me.Culbert v. Sampson's Supermarkets Inc., 444 A.2d 433 (Me. 1982).
Conn.Lessard v. Tarca, 20 Conn. Supp. 295, 133 A.2d 625 (Super. Ct. 1957).
Fla.R.J. v. Humana of Florida, Inc., 652 So. 2d 360 (Fla. 1995).
Fla.Wald v. Grainger, 64 So. 3d 1201 (Fla. 2011).
U.S.Herman v. Eastern Airlines, Inc, 149 F. Supp. 417 (E.D. N.Y. 1957).
Fla.Tanner v. Hartog, 696 So. 2d 705 (Fla. 1997).
Ill.Wilson v. Norfolk & Western Ry. Co., 187 Ill. 2d 369, 240 Ill. Dec. 691, 718 N.E.2d 172 (1999).
Mass.Sullivan v. Boston Gas Co., 414 Mass. 129, 605 N.E.2d 805 (1993).
Pa.Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996).
Prior showing of physical injury required by statute
U.SWilliams v. Hobbs, 662 F.3d 994 (8th Cir. 2011).
U.S.Mees v. Western Union Telegraph Co., 55 F.2d 691 (S.D. Fla. 1932).
Mass.Sullivan v. Boston Gas Co., 414 Mass. 129, 605 N.E.2d 805 (1993).
Ga.Charleston & W. C. Ry. Co. v. Hart, 23 Ga. App. 161, 97 S.E. 866 (1919).
Me.Lyman v. Huber, 2010 ME 139, 10 A.3d 707 (Me. 2010).
U.S.Hudson v. Dr. Michael J. O'Connell's Pain Care Center, Inc., 2011 DNH 160, 2011 WL 4704198 (D.N.H. 2011).
Cal.Burgess v. Superior Court, 2 Cal. 4th 1064, 9 Cal. Rptr. 2d 615, 831 P.2d 1197 (1992).
La.Pack v. Wise, 155 So. 2d 909 (La. Ct. App. 3d Cir. 1963), writ refused, 245 La. 84, 157 So. 2d 231 (1963).
No physical manifestation of mental anguish required
U.SWackman v. Rubsamen, 602 F.3d 391 (5th Cir. 2010).
13
14
No showing of contemporaneous traumatic physical injury required

Mo.Biersmith v. Curry Ass'n Management, Inc., 2011 WL 5041200 (Mo. Ct. App. W.D. 2011).
La.Holland v. St. Paul Mercury Ins. Co., 135 So. 2d 145 (La. Ct. App. 1st Cir. 1961).
Colo.Gerick v. Brock, 120 Colo. 394, 210 P.2d 214 (1949).
15
16
Worry or apprehension about future consequences, see 117.

Cal.Bellman v. San Francisco High School Dist., 11 Cal. 2d 576, 81 P.2d 894 (1938).
Mont.Lorang v. Fortis Ins. Co., 2008 MT 252, 345 Mont. 12, 192 P.3d 186 (2008).
Tenn.Flax v. DaimlerChrysler Corp., 272 S.W.3d 521 (Tenn. 2008).
End of Document
111.Mental pain and suffering of third party, 25 C.J.S. Damages 111

Damages
111. Mental pain and suffering of third party
West's Key Number Digest, Damages 57.27 to 57.29
As a general rule, emotional distress caused by sympathy for another's suffering and fright due to a wrong
against a third person are not compensable.
As a general rule, the right of recovery for mental suffering resulting from bodily injuries is restricted to the person
who has suffered the bodily hurt, 1 and there can be no recovery for emotional anguish or distress caused by
sympathy for another's suffering 2 or for fright due to a wrong against a third person. 3 Likewise, the anguish of
mind arising as to the safety of others who may be in personal peril from the same cause cannot be taken into
consideration. 4
The general rule of nonrecovery is subject to some exceptions, 5 as where the injury is a willful or malicious one, 6
although even as to this exception, there is some authority to the contrary. 7 Also, damages may be recovered
by the plaintiff suing for mental pain and anguish occasioned by physical injury to another where the action is
based on a breach of a primary legal duty and obligation owed by the defendant directly to the plaintiff seeking
such damages. 8 Under some authority, a plaintiff may recover for emotional distress caused by observing the
negligent infliction of harm on a third person only if the plaintiff: (1) is closely related to the injury victim; (2) is
present at the scene of the injury-producing event at the time when it occurs and is then aware that it is causing
injury to the victim; and (3) as a result suffers serious emotional distress. 9 It has also been held that in order for a
bystander to recover for negligent infliction of emotional distress, he or she must show: (1) causal negligence of
the defendant; (2) foreseeability; and (3) serious mental and emotional harm accompanied by objective physical
symptoms. 10 Under still another formulation of the rule, the three prerequisites to a bystander claim for negligent
infliction of emotional distress are: (1) the injury suffered by the victim must have been fatal or severe; (2) the
claimant must be related to the victim as a spouse, parent, child, grandparent, grandchild, or sibling; and (3) the
claimant must have witnessed the incident causing death or serious injury or "the gruesome aftermath of such an
event minutes after it occurs." 11
111.Mental pain and suffering of third party, 25 C.J.S. Damages 111
Harm to child.
A parent may maintain a cause of action for mental anguish resulting in a definite and objective physical injury
generated by witnessing the negligent infliction of injuries upon its child. 12 However, recovery will be denied
for the alleged emotional distress of a sibling when he or she has not reached the age at which cognizance of
emotional distress is possible. 13
Footnotes
Fla.City Stores Co. v. Langer, 308 So. 2d 621 (Fla. Dist. Ct. App. 3d Dist. 1975), cause dismissed, 312 So. 2d 758
1
3
4
5
6
7
8
9
10
11
12
13
(Fla. 1975).
La.Reid v. Clearfield Cheese Co., Inc., 307 So. 2d 115 (La. Ct. App. 1st Cir. 1974).
Wash.Smith v. Rodene, 69 Wash. 2d 482, 418 P.2d 741 (1966), opinion amended on other grounds, 423 P.2d 934
(Wash. 1967).
Spouse's recovery for mental suffering caused by other spouse's condition, see C.J.S., Husband and Wife 227.
N.J.Ahn v. Kim, 145 N.J. 423, 678 A.2d 1073 (1996).
N.Y.Cohen v. Cabrini Medical Center, 94 N.Y.2d 639, 709 N.Y.S.2d 151, 730 N.E.2d 949 (2000).
Witness to scene of accident
A witness to the scene of an accident, who voluntarily renders aid to the accident victim, does not have a claim for the
negligent infliction of emotional distress if the rescue attempt fails, and as a result, the rescuer suffers severe emotional
distress.
Mass.Migliori v. Airborne Freight Corp., 426 Mass. 629, 690 N.E.2d 413 (1998).
Conn.Anonymous v. Hospital, 35 Conn. Supp. 112, 398 A.2d 312 (Super. Ct. 1979).
Pa.Bowman v. Sears, Roebuck & Co., 245 Pa. Super. 530, 369 A.2d 754 (1976).
Minn.Keyes v. Minneapolis & St. L. Ry. Co., 36 Minn. 290, 30 N.W. 888 (1886).
La.Valence v. Louisiana Power & Light Co., 50 So. 2d 847 (La. Ct. App., Orleans 1951).
R.I.Bedard v. Notre Dame Hospital, 89 R.I. 195, 151 A.2d 690 (1959).
OhioKoontz v. Keller, 52 Ohio App. 265, 6 Ohio Op. 334, 21 Ohio L. Abs. 544, 3 N.E.2d 694 (5th Dist. Licking
County 1936).
La.Holland v. St. Paul Mercury Ins. Co., 135 So. 2d 145 (La. Ct. App. 1st Cir. 1961).
U.S.Walsh v. Tehachapi Unified School Dist., 2011 WL 5156791 (E.D. Cal. 2011).
Lack of close relationship to victim of beating as precluding recovery
Miss.Smith v. Harrison County, 67 So. 3d 815 (Miss. Ct. App. 2011).
N.H.St. Onge v. MacDonald, 154 N.H. 768, 917 A.2d 233 (2007).
Independent, nonderivative claim
Wis.Finnegan ex rel. Skoglind v. Wisconsin Patients Compensation Fund, 2003 WI 98, 263 Wis. 2d 574, 666 N.W.2d
797 (2003).
C.J.S., Parent and Child 344.
Two-year-old child
U.S.Kane v. Autogermana, Inc., 620 F. Supp. 2d 271 (D.P.R. 2009).
End of Document

Damages
112. Injury to property
Subject to some exceptions, as where there was fraud, malice, or the like, or a trespass or nuisance, mental
anguish suffered in connection with an injury to property is not an element of damages.
Although there is authority to the contrary, 1 there is ordinarily no recovery for mental anguish suffered by the
plaintiff in connection with an injury to his or her property. 2 Some identified exceptions to the general rule of
nonrecovery include: (1) property damaged by an intentional or illegal act; (2) property damaged by acts for
which the tortfeasor will be strictly or absolutely liable; and (3) property damaged at a time that the owner thereof
is present or situated nearby and the owner experiences trauma as a result. 3 Also, where the act occasioning
the injury to the property is inspired by fraud, malice, or like motives, mental suffering is a proper element of
damage. 4
Trespass or nuisance.
Damages may be recovered for mental suffering proximately caused by a trespass 5 or a nuisance 6 although some
authority requires wanton behavior on the defendant's part. 7
Fright.
An injury to property alone will not support a recovery for fright occasioned by such injury. 8
Cases:
Recovery for emotional distress caused by injury to property is permitted only where there is a preexisting
relationship between the parties or an intentional tort. Ragland v. U.S. Bank Nat. Assn., 209 Cal. App. 4th 182,
147 Cal. Rptr. 3d 41 (4th Dist. 2012).
An award for mental anguish, allegedly resulting from property damage, is permissible only when the property is
damaged: (1) by an intentional or illegal act, (2) by an act for which the tortfeasor will be strictly or absolutely
liable, (3) by acts constituting a continuing nuisance, or (4) when owner is present or nearby and suffers psychic
trauma as a result. Barrios v. Safeway Ins. Co., 97 So. 3d 1019 (La. Ct. App. 4th Cir. 2012).
[END OF SUPPLEMENT]
Footnotes
Or.Fredeen v. Stride, 269 Or. 369, 525 P.2d 166 (1974).
1
Contamination of wells
U.S.Bernbach v. Timex Corp., 989 F. Supp. 403 (D. Conn. 1996).
Damages for wrongful seizure
La.Bank of New York Mellon v. Smith, 71 So. 3d 1034 (La. Ct. App. 3d Cir. 2011), writ denied, 2011-2080 La.
11/18/11, 2011 WL 6311100 (La. 2011).
Natural consequence of forcible detainer
Mont.Harding v. Savoy, 2004 MT 280, 323 Mont. 261, 100 P.3d 976 (2004).
3
4
5
6
Actual or compensatory damages

La.Belgarde v. City of Natchitoches, 156 So. 2d 132 (La. Ct. App. 3d Cir. 1963).
Ariz.Roman v. Carroll, 127 Ariz. 398, 621 P.2d 307 (Ct. App. Div. 2 1980).
Nev.Smith v. Clough, 106 Nev. 568, 796 P.2d 592 (1990).
Tex.City of Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997).
Watching dog be attacked and killed by much larger dog
N.J.McDougall v. Lamm, 2010 WL 5018258 (N.J. Super. Ct. App. Div. 2010), certification granted, 205 N.J. 520,
16 A.3d 385 (2011).
La.Nikolaus v. City of Baton Rouge/Parish of East Baton Rouge, 40 So. 3d 1244 (La. Ct. App. 1st Cir. 2010), writ
not considered, 46 So. 3d 1256 (La. 2010).
Cal.Acadia, California, Limited v. Herbert, 54 Cal. 2d 328, 5 Cal. Rptr. 686, 353 P.2d 294 (1960).
Wash.Murphy v. City of Tacoma, 60 Wash. 2d 603, 374 P.2d 976 (1962).
U.S.Louisiana v. Rowan Companies Inc., 728 F. Supp. 2d 896 (S.D. Tex. 2010).
Wash.Maier v. Giske, 154 Wash. App. 6, 223 P.3d 1265 (Div. 1 2010).
Cal.Mack v. Hugh W. Comstock Associates, Inc., 225 Cal. App. 2d 583, 37 Cal. Rptr. 466 (1st Dist. 1964).
Continuing nuisance
La.Nikolaus v. City of Baton Rouge/Parish of East Baton Rouge, 40 So. 3d 1244 (La. Ct. App. 1st Cir. 2010), writ
not considered, 46 So. 3d 1256 (La. 2010).
"Insult and contumely"

Ala.Chestang v. IPSCO Steel (Alabama), Inc., 50 So. 3d 418 (Ala. 2010).
Outrage
No action may be brought for mental distress damages due to grave desecration, or destruction of burial grounds or
unmarked graves without a permit, if there is no defacement, damage, or other mistreatment of the physical area of
the decedent's grave site or common areas of the cemetery in a manner that a reasonable person knows will outrage
the sensibilities of others.
W.Va.Hairston v. General Pipeline Const., Inc., 226 W. Va. 663, 704 S.E.2d 663 (2010).
Md.State, for Use of Aronoff v. Baltimore Transit Co., 197 Md. 528, 80 A.2d 13, 28 A.L.R.2d 1062 (1951).
Tex.Gulf, C. & S.F. Ry. Co. v. Trott, 86 Tex. 412, 25 S.W. 419 (1894).
End of Document

Damages
In an action for a breach of contract, damages cannot ordinarily be recovered for mental suffering alone.
Damages for emotional distress are not generally available in a contract case. 1 In an action for a breach of
contract, damages cannot ordinarily be recovered for mental suffering alone, there being no allegation of any other
damage, 2 or for mental or emotional distress suffered solely as the result of the breach even if foreseeable. 3 While
there is authority that damages are recoverable for mental anguish where the breach of a contract is accompanied
by knowing, willful, insulting, or wanton conduct, 4 and that recovery for emotional distress will be allowed if the
breach also caused bodily harm or the contract or the breach is of such a kind that serious emotional disturbance
was a particularly likely result, 5 there is also authority that where the gravamen of the proceeding is a breach of
contract, there may be no recovery for mental suffering despite the fact that the breach is willful and flagrant. 6
The general rule against recovery applies in the case of an ordinary commercial contract, in which pecuniary
interests are paramount. 7 While some type of mental anguish, anxiety, or distress is apt to result from the breach
of any contract that causes pecuniary loss, damages therefor are deemed to be too remote to have been in the
contemplation of the parties at the time when the contract was entered into to be considered as an element of
compensatory damages. 8 However, where the character of the contract is of such a nature that a natural and
probable consequence of the breach will be to inflict mental pain or anguish on the person to whom performance is
due, the parties may be presumed to have contracted with respect to mental anguish as an element of damages, and
a recovery may be had therefor. 9 Damages for mental suffering arising from a breach of contract are recoverable
in the case of noncommercial contracts, 10 such as a contract that has for its object the gratification of some
intellectual enjoyment, 11 or contracts involving rights cherished, dignities respected, and emotions recognized
by all as both sacred and personal. 12 Furthermore, where the circumstances attending the breach of a contract
are of such a character as in themselves to constitute a tort, there may be a recovery for an injury to feelings and
mental suffering. 13
Lack of privity.
Damages for mental suffering in actions for breach of contract cannot, in any case, be recovered by one with
whom there is no privity, such damages being deemed too remote, and not a natural and probable consequence
of the breach. 14
Corporation.
A corporation is incapable of suffering any emotional distress resulting from allegedly outrageous conduct. 15
Cases:
When the express object of the contract is the mental and emotional well-being of one of the contracting
parties, the breach of the contract may give rise to damages for mental suffering or emotional distress. West's
Ann.Cal.Civ.Code 3300. Plotnik v. Meihaus, 208 Cal. App. 4th 1590, 146 Cal. Rptr. 3d 585 (4th Dist. 2012).
Parties to a contract may recover damages for mental anguish, distress, inconvenience, and aggravation if they
prove that the contract was intended to gratify a significant non-pecuniary interest and that party which breached
contract should have known his failure to perform would cause the non-breaching party those types of damages.
LSAC.C. art. 1998. Matherne v. Barnum, 94 So. 3d 782 (La. Ct. App. 1st Cir. 2012), writ denied, 90 So. 3d
442 (La. 2012).
Generalizations by owner of fishing camp that she was "just up and down every day every moment," and that she
was "depressed," were insufficient to establish damages for emotional distress in her breach of contract action
against construction company and its owner, absent a showing of any specific instances of suffering. Montgomery
v. Stribling, 115 So. 3d 823 (Miss. Ct. App. 2012), cert. denied, 115 So. 3d 804 (Miss. 2013).
[END OF SUPPLEMENT]
Footnotes
U.S.Bell v. Board of Educ. of Albuquerque Public Schools, 652 F. Supp. 2d 1211, 250 Ed. Law Rep. 1064 (D.N.M.
1
2008).
3
4
Mental anguish damages generally not recoverable for breach

Tex.City of Houston v. Rhule, 2011 WL 2936351 (Tex. App. Houston 1st Dist. 2011).
Cal.Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503, 28 Cal. Rptr. 2d 475, 869 P.2d 454 (1994).
Kan.Schmeck v. City of Shawnee, 231 Kan. 588, 647 P.2d 1263 (1982).
Tex.Latham v. Castillo, 972 S.W.2d 66 (Tex. 1998).
U.S.Anderson v. Hannaford Bros. Co., 659 F.3d 151 (1st Cir. 2011).
N.J.Picogna v. Board of Educ. of Tp. of Cherry Hill, 143 N.J. 391, 671 A.2d 1035, 107 Ed. Law Rep. 859 (1996).
Pa.Emerman v. Baldwin, 186 Pa. Super. 561, 142 A.2d 440 (1958).
Recovery for mental suffering in cases of willful wrong, generally, see 107, 108.
Insurance contract; knowing conduct required
Tex.State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430 (Tex. 1995).
5
6
7
8
9
10
11
Airline's cancellation of flight not sufficiently outrageous

U.S.Onyiuke v. Cheap Tickets, Inc., 435 Fed. Appx. 137 (3d Cir. 2011).
U.S.Terry v. U.S., 99 Fed. Cl. 384 (2011).
U.S.Tacket v. General Motors Corp., Delco Remy Div., 830 F. Supp. 468 (S.D. Ind. 1993).
Ariz.Fogleman v. Peruvian Associates, 127 Ariz. 504, 622 P.2d 63 (Ct. App. Div. 2 1980) (disapproved of on other
grounds by, Fleming v. Pima County, 141 Ariz. 149, 685 P.2d 1301 (1984)).
Fla.Henry Morrison Flagler Museum v. Lee, 268 So. 2d 434 (Fla. Dist. Ct. App. 4th Dist. 1972).
N.C.Lamm v. Shingleton, 231 N.C. 10, 55 S.E.2d 810 (1949).
Cabaness v. Thomas, 2010 UT 23, 232 P.3d 486 (Utah 2010).
OhioKishmarton v. William Bailey Constr., Inc., 93 Ohio St. 3d 226, 2001-Ohio-1334, 754 N.E.2d 785 (2001).
A.L.R. Library
Recoverability of compensatory damages for mental anguish or emotional distress for breach of service contract, 54
A.L.R.4th 901.
Recoverability of compensatory damages for mental anguish or emotional distress for breach of contract to lend money,
52 A.L.R.4th 826.
14
U.S.Sahuc v. U.S. Fidelity & Guaranty Co., 320 F.2d 18 (5th Cir. 1963).
Cal.Chelini v. Nieri, 32 Cal. 2d 480, 196 P.2d 915 (1948).
Ala.F. Becker Asphaltum Roofing Co. v. Murphy, 224 Ala. 655, 141 So. 630 (1932).
Colo.Fitzsimmons v. Olinger Mortuary Ass'n, 91 Colo. 544, 17 P.2d 535 (1932).
Tex.Gulf, C. & S.F. Ry. Co. v. Overton, 101 Tex. 583, 110 S.W. 736 (1908).
15
Employment contract
Mass.Monahan v. Town of Methuen, 408 Mass. 381, 558 N.E.2d 951 (1990).
U.S.Nicor Intern. Corp. v. El Paso Corp., 292 F. Supp. 2d 1357 (S.D. Fla. 2003).
12
13
End of Document
114.Fright or shock, 25 C.J.S. Damages 114

Damages
(3) Particular Forms of Mental Suffering
114. Fright or shock
West's Key Number Digest, Damages 57.9, 57.10, 57.16(2), 57.23(2), 57.60
Fright or mental shock constitutes an element of damages although some authorities permit recover for
fright or shock only if accompanied by another element of actual damage.
Damages may be awarded as compensation for fright and shock. 1 While there is authority that a recovery may be
had for fright or nervous shock unaccompanied by physical injury evidenced by objective symptoms, 2 there is
also authority that mental suffering due to fright or shock unaccompanied by any other element of actual damage
cannot ordinarily be made the basis of a recovery. 3
There is authority that there can ordinarily be no recovery for physical results consequent on such mere fright
or shock 4 unless the act causing the mental fright or emotional distress also threatened immediate bodily harm
to the plaintiff. 5 However, there is also authority that a recovery may be had for the physical consequences of
the shock, fright, or similar mental disturbance proximately resulting from the defendant's original wrongful act 6
although not for fright or shock that is not the natural and proximate consequence of the defendant's act 7 and of
a legal wrong against the plaintiff. 8
A recovery for an injury flowing from fright alone caused by the wanton or willful acts of the defendant may be
had, 9 and a similar rule has been applied where the fright was occasioned by the defendant when in the act of
committing a trespass or nuisance. 10
Intensity of fright and shock; extent and permanence of physical injuries.

While it is only when fright and shock are extreme that liability arises, 11 the rule permitting recovery for fright
does not require that the direct physical injuries be permanent or severe. 12
114.Fright or shock, 25 C.J.S. Damages 114
Footnotes
U.S.Sanchez v. U.S., 2011 WL 1155481 (C.D. Cal. 2011).
1
U.S.Owens v. Childrens Memorial Hospital, Omaha, Neb., 347 F. Supp. 663 (D. Neb. 1972), judgment aff'd, 480
2
5
6
8
9
10
11
12
F.2d 465 (8th Cir. 1973).

N.Y.Herman v. State, 78 Misc. 2d 1025, 357 N.Y.S.2d 811 (Ct. Cl. 1974).
OhioSchultz v. Barberton Glass Co., 4 Ohio St. 3d 131, 447 N.E.2d 109 (1983).
Ky.Hetrick v. Willis, 439 S.W.2d 942 (Ky. 1969).
OhioHeid v. Red Malcuit, Inc., 12 Ohio Misc. 158, 41 Ohio Op. 2d 210, 231 N.E.2d 356 (C.P. 1967).
Wis.Laska v. Steinpreis, 69 Wis. 2d 307, 231 N.W.2d 196 (1975).
Too remote and speculative, easily simulated and difficult to disprove
Ky.Morgan v. Hightower's Adm'r, 291 Ky. 58, 163 S.W.2d 21 (1942).
U.S.U.S. v. Hambleton, 185 F.2d 564, 23 A.L.R.2d 568 (9th Cir. 1950).
Ky.Kentucky Traction & Terminal Co. v. Roman's Guardian, 232 Ky. 285, 23 S.W.2d 272 (1929).
OhioBarnett v. Sun Oil Co., 113 Ohio App. 449, 18 Ohio Op. 2d 12, 172 N.E.2d 734 (1st Dist. Hamilton County
1961).
U.S.U.S. v. Hambleton, 185 F.2d 564, 23 A.L.R.2d 568 (9th Cir. 1950).
U.S.State of Md. to Use and Benefit of Gaegler v. Thomas, 173 F. Supp. 568 (D. Md. 1959).
Cal.Vargas v. Ruggiero, 197 Cal. App. 2d 709, 17 Cal. Rptr. 568 (5th Dist. 1961).
Tex.Sutton Motor Co. v. Crysel, 289 S.W.2d 631 (Tex. Civ. App. Beaumont 1956).
Wis.Colla v. Mandella, 1 Wis. 2d 594, 85 N.W.2d 345, 64 A.L.R.2d 95 (1957).
Natural result of fright or shock proximately caused by defendant's negligence
U.S.Ghawanmeh v. Islamic Saudi Academy, 672 F. Supp. 2d 3, 253 Ed. Law Rep. 617 (D.D.C. 2009); Earley v.
Marion, 540 F. Supp. 2d 680, 231 Ed. Law Rep. 224 (W.D. Va. 2008), aff'd, 340 Fed. Appx. 169 (4th Cir. 2009).
U.S.Lucas v. Henrico County School Bd., 2011 WL 4590000 (E.D. Va. 2011).
N.Y.Robbins v. Castellani, 37 Misc. 2d 1046, 239 N.Y.S.2d 53 (Sup 1962).
Unknown preexisting susceptibility
Wis.McMahon v. Bergeson, 9 Wis. 2d 256, 101 N.W.2d 63 (1960).
Ga.Delta Finance Co. v. Ganakas, 93 Ga. App. 297, 91 S.E.2d 383 (1956).
Minn.Sanderson v. Northern Pac. R. Co., 88 Minn. 162, 92 N.W. 542 (1902).
Miss.Lyons v. Zale Jewelry Co., 246 Miss. 139, 150 So. 2d 154 (1963).
OhioBarnett v. Sun Oil Co., 113 Ohio App. 449, 18 Ohio Op. 2d 12, 172 N.E.2d 734 (1st Dist. Hamilton County
1961).
Mo.Mollman v. Union Electric Light & Power Co., 206 Mo. App. 253, 227 S.W. 264 (1921).
U.S.Peschel v. City Of Missoula, 664 F. Supp. 2d 1149 (D. Mont. 2009).
Conn.Israel v. Ulrich, 114 Conn. 599, 159 A. 634 (1932).
Mass.Kisiel v. Holyoke St. Ry. Co., 240 Mass. 29, 132 N.E. 622 (1921).
End of Document
115.Humiliation, indignity, or insult, 25 C.J.S. Damages 115

Damages
115. Humiliation, indignity, or insult
West's Key Number Digest, Damages 57.11, 57.17, 57.24
A recovery may be had for mental pain caused by humiliation, indignity, or insult proximately resulting
from the injury complained of.
A recovery may be had for such mental pain and injury to the feelings as humiliation, indignity, embarrassment,
or insult 1 provided that the conduct of the defendant was such as would likely cause humiliation and insult to any
person in like circumstances 2 and unless the claim is too remotely connected with the injury complained of. 3
In cases in which there is evidence of willful, wanton, malicious, outrageous, or intentional wrongs, and where
mental or emotional stress is a foreseeable result of the conduct of the defendant, a court can assess damages
for mental and emotional distress. 4 In this regard, "mental anguish," as a type of damages, has been defined
as the pain resulting from grief, severe disappointment, indignation, wounded pride, shame, despair, or public
humiliation. 5 Liability for mental distress injuries does not extend to mere insults, indignities, threats, annoyances,
petty oppression, or other trivialities. 6
Cases:
Under Massachusetts law, liability for intentional infliction of emotional distress cannot be founded upon mere
insults, threats, or annoyances; there cannot be recovery for mere hurt feelings or bad manners. Tomaselli v.
Beaulieu, 967 F. Supp. 2d 423 (D. Mass. 2013).
[END OF SUPPLEMENT]
Footnotes
115.Humiliation, indignity, or insult, 25 C.J.S. Damages 115
1
2
3
4
5
6
U.S.Singleton v. Foreman, 435 F.2d 962 (5th Cir. 1970).

N.J.Endress v. Brookdale Community College, 144 N.J. Super. 109, 364 A.2d 1080 (App. Div. 1976).
Ga.Anderson v. Atlanta Newspapers, Inc., 212 Ga. 776, 95 S.E.2d 847 (1956).
IowaManning v. Spees, 216 Iowa 670, 246 N.W. 603 (1933).
Mass.Stratton v. Posse Normal School of Gymnastics, 265 Mass. 223, 163 N.E. 905 (1928).
Miss.Gamble ex rel. Gamble v. Dollar General Corp., 852 So. 2d 5 (Miss. 2003).
NETCO, Inc. v. Montemayor, 352 S.W.3d 733 (Tex. App. Houston 1st Dist. 2011).
116.
End of Document
116.Vexation or inconvenience, 25 C.J.S. Damages 116

Damages
116. Vexation or inconvenience
West's Key Number Digest, Damages 32, 57.10, 57.11, 57.17, 57.24
While physical inconvenience or discomfort to which the plaintiff has been subjected may constitute an
element of damages, there can be no recovery for mere vexation or annoyance.
While physical inconvenience or discomfort to which the plaintiff has been subjected may constitute an element
of damages, 1 there can be no recovery for mere vexation or annoyance, 2 and so, liability for mental distress
injuries does not extend to mere insults, indignities, threats, annoyances, petty oppression, or other trivialities. 3
Thus, a mental anguish award must be supported by evidence of the nature, duration, or severity of the anguish,
establishing a substantial disruption in the plaintiff's daily routine, or other evidence of a high degree of mental
pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger. 4 Mere aggravation,
embarrassment, an unspecified number of headaches, loss of sleep, and lack of interference with the everyday
routine do not, as a matter of law, constitute severe emotional distress. 5 In a similar vein, one statute provides
that minor emotional injuries, such as hurt feelings, are not compensable and that emotional distress alone is not
compensable unless it is so severe that no reasonable person could be expected to endure it; under the statute,
stress, humiliation, loss of sleep, and anxiety occasioned by the events of everyday life are endurable, and serious
mental distress amounting to actual injury that is compensable occurs only where a reasonable person, normally
constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the
event. 6
Lack of personal enjoyment.

While there is authority that a lack of personal enjoyment occasioned by an injury is too uncertain as to the means
of ascertainment to permit it being an element of damages, 7 there is also authority that compensation therefor
may be allowed. 8
116.Vexation or inconvenience, 25 C.J.S. Damages 116
Footnotes
Kan.Roberts v. Saylor, 230 Kan. 289, 637 P.2d 1175 (1981).
1
Tex.McAllen Coca Cola Bottling Co., Inc. v. Alvarez, 581 S.W.2d 201 (Tex. Civ. App. Corpus Christi 1979).
3
4
5
6
7
Consequence of permanent bodily injury

Miss.Day v. Hamilton, 237 Miss. 472, 115 So. 2d 300 (1959).
Damaged automobile
La.Gremillion v. C. & L. Const. Co., 125 So. 2d 198 (La. Ct. App. 3d Cir. 1960).
Tenn.Arnett v. Domino's Pizza I, L.L.C., 124 S.W.3d 529 (Tenn. Ct. App. 2003).
Tex.Capps v. Nexion Health at Southwood, Inc., 349 S.W.3d 849 (Tex. App. Tyler 2011).
N.J.Maldonado v. Leeds, 374 N.J. Super. 523, 865 A.2d 741 (App. Div. 2005).
U.S.Lynch v. Christie, 2011 WL 3920154 (D. Me. 2011).
Ind.City of Columbus v. Strassner, 124 Ind. 482, 25 N.E. 65 (1890).
Loss of pleasure of vacation
La.O'Conner v. Massachusetts Bonding & Ins. Co., 2 So. 2d 234 (La. Ct. App. 1st Cir. 1941).
End of Document
117.Worry or apprehension about future consequences, 25 C.J.S. Damages 117

Damages
117. Worry or apprehension about future consequences
West's Key Number Digest, Damages 57.9, 57.31 to 57.35
While there is authority that mental suffering occasioned by the apprehension of future consequences of a
physical injury is allowed, there is also authority to the contrary.
Mental anguish to be an element of recovery must be actual and not the result of speculation, 1 Imagination, or
unfounded apprehension. 2 There is authority that there may be a recovery for mental suffering occasioned by
the reasonable 3 apprehension of future consequences of a physical injury 4 as, for example, where the jury has
been permitted to consider the plaintiff's anxiety and apprehension as to the effect of the injury on his or her
future ability to earn a livelihood 5 or as affecting his or her future sanity. 6 However, in other cases, a recovery
has been denied, 7 particularly where the worry or apprehension was because of the circumstances or conditions
of others. 8 Similarly, while some authority recognizes a cause of action for a rationally based fear of possibly
contracting a disease at some point in the future, 9 conditioned, in some jurisdictions, on a physical manifestation
of an injury, 10 other authority specifically rejects such a cause of action. 11 It has been said in this regard that
mere anxiety of mind, unconnected with bodily injury, cannot as a general rule be included in the assessment of
damages unless the injury complained of is accompanied by circumstances of malice or wanton disregard of the
rights of others. 12
Future mental anguish.

It has been held that future mental anguish that may be suffered by the plaintiff from a contemplation of what may
occur as a result of the injury cannot be considered. 13 However, there is authority that a plaintiff may support an
award for future mental anguish by demonstrating a reasonable probability that he or she will suffer compensable
mental anguish in the future; 14 this typically requires a showing that in the future, the plaintiff will suffer a high
degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger. 15
117.Worry or apprehension about future consequences, 25 C.J.S. Damages 117
Footnotes
1
3
4
6
7
8
Possible future invasion of privacy

U.S.Steinbuch v. Cutler, 518 F.3d 580, 230 Ed. Law Rep. 533 (8th Cir. 2008).
U.S.Burris v. South Central Bell Telephone Co., 540 F. Supp. 905 (S.D. Miss. 1982).
N.C.Williamson v. Bennett, 251 N.C. 498, 112 S.E.2d 48 (1960) (disapproved of on other grounds by, Johnson v.
Ruark Obstetrics and Gynecology Associates, P.A., 327 N.C. 283, 395 S.E.2d 85 (1990)).
A.L.R. Library
Future disease or condition, or anxiety relating thereto, as element of recovery, 50 A.L.R.4th 13.
U.S.Michel v. Levinson, 437 Fed. Appx. 160 (3d Cir. 2011).
IowaHolmquist v. Volkswagen of America, Inc., 261 N.W.2d 516, 100 A.L.R.3d 143 (Iowa Ct. App. 1977).
N.Y.Howard v. Lecher, 42 N.Y.2d 109, 397 N.Y.S.2d 363, 366 N.E.2d 64 (1977).
Okla.Oklahoma Ry. Co. v. Strong, 1951 OK 6, 204 Okla. 42, 226 P.2d 950 (1951).
Pa.Walsh v. Brody, 220 Pa. Super. 293, 286 A.2d 666 (1971).
Ala.Atlantic Coast Line R. Co. v. Russell, 215 Ala. 600, 111 So. 753 (1927).
Cal.May v. Farrell, 94 Cal. App. 703, 271 P. 789 (1st Dist. 1928).
Ga.Rome Ry. & Light Co. v. Duke, 26 Ga. App. 52, 105 S.E. 386 (1920).
N.H.Walker v. Boston & M.R.R., 71 N.H. 271, 51 A. 918 (1902).
La.Hunt v. Rundle, 10 La. App. 604, 120 So. 696 (2d Cir. 1929).
Mo.Pandjiris v. Oliver Cadillac Co., 339 Mo. 711, 98 S.W.2d 969 (1936).
N.C.Williamson v. Bennett, 251 N.C. 498, 112 S.E.2d 48 (1960) (disapproved of on other grounds by, Johnson v.
Ruark Obstetrics and Gynecology Associates, P.A., 327 N.C. 283, 395 S.E.2d 85 (1990)).
Or.Maynard v. Oregon R. & Nav. Co., 46 Or. 15, 78 P. 983 (1904) (overruled in part on other grounds by, Fehely
v. Senders, 170 Or. 457, 135 P.2d 283, 145 A.L.R. 1092 (1943)).
N.Y.Cleary v. Wallace Oil Co., Inc., 55 A.D.3d 773, 865 N.Y.S.2d 663 (2d Dep't 2008).
Fear of developing cancer from asbestosis
U.S.Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 123 S. Ct. 1210, 155 L. Ed. 2d 261 (2003).
10
11
12
13
14
15
Reasonable dread of future illness or death as the result of an injury

Conn.Orlo v. Connecticut Co., 128 Conn. 231, 21 A.2d 402 (1941).
U.S.Golden v. CH2M Hill Hanford Group, Inc., 528 F.3d 681 (9th Cir. 2008); Barlow v. General Motors Corp., 595
F. Supp. 2d 929 (S.D. Ind. 2009); Fiorentino v. Cabot Oil & Gas Corp., 750 F. Supp. 2d 506 (M.D. Pa. 2010).
Reasonable dread of future illness or death as the result of an injury
Conn.Orlo v. Connecticut Co., 128 Conn. 231, 21 A.2d 402 (1941).
U.S.Paz v. Brush Engineered Materials, Inc., 555 F.3d 383 (5th Cir. 2009).
Tex.Kane v. Cameron Intern. Corp., 331 S.W.3d 145 (Tex. App. Houston 14th Dist. 2011).
U.S.The Black Gull, 82 F.2d 758 (C.C.A. 2d Cir. 1936).
Ill.Illinois Cent. R. Co. v. Cole, 165 Ill. 334, 46 N.E. 275 (1896).
Tex.Centocor, Inc. v. Hamilton, 310 S.W.3d 476 (Tex. App. Corpus Christi 2010), review granted, (Aug. 26, 2011).
U.S.Wackman v. Rubsamen, 602 F.3d 391 (5th Cir. 2010).
Tex.Wackenhut Corrections Corporation v. de la Rosa, 305 S.W.3d 594 (Tex. App. Corpus Christi 2009).
End of Document

Damages
Correlation Table
Summary
Scope:
Treated Elsewhere:
1 et seq.
97 to 133
Westlaw Databases
End of Document
Research References, 24 C.J.S. Damages IV C Refs.
24 C.J.S. Damages IV C Refs.

Damages
C. Measure and Amount
Research References
A.L.R. Library
West's A.L.R. Digest, Damages 66, 66.1, 67, 68, 69, 70 to 73, 95, 96, 97, 99, 100 to 113, 116, 117, 118, 120
to 126, 127.1 to 127.3
End of Document

Damages
1. In General
118. Generally
The measure of compensatory damages is such sum as will compensate the person injured for the loss
sustained, with the least burden to the wrongdoer consistent with the idea of fair compensation.
There is no certain or definite rule by which an amount of damages can be measured, and each case must be
determined on its merits. 1 Although the measure of damages is what a reasonable person would consider to be
adequate and just under all the circumstances, reasonable people may differ on what is fair compensation in any
particular case. 2 Damages are awarded to compensate an injured party fairly and adequately for loss, and the
proper measure of damages must be flexible enough to fit the circumstances. 3 Stated in broad terms, then, the
underlying principle of a damages award is to make the injured party whole. 4 Damages are intended to place an
injured party, as nearly as possible, in the same position they would have been if the injury had never occurred. 5
Generally, a person or entity injured by either a breach of contract or by a wrongful or negligent act or omission
of another is entitled to recover a fair and just compensation that is commensurate with the resulting injury or
damage. 6
The level of compensatory damages is determined with reference to the plaintiff's loss, 7 and damages should
compensate for an individual's loss and no more. 8 The law will not put the injured party in a better position than
he or she would be in had the wrong not been done. 9 Thus, an injured party is to be made as nearly whole as
possible but not to realize a profit. 10
While the fundamental rule of the law is to award compensation, rules for ascertaining the amount of compensation
to be awarded are formed with reference to the just rights of both parties, and the standard fixed for estimating
damages ought to be determined, not only by what might be right for the plaintiff to receive in order to afford just
compensation but also by what is just to compel the defendant to pay. 11 The ordinary rules for measuring damages
are subordinate to the ultimate aim of making good the injury done or loss suffered, 12 and the determination of
the amount of damages to be awarded rests in good sense rather than in a mechanical application of a singular
formula. 13
Purchasing power of dollar.

The increased cost of living and the diminished purchasing power of the dollar are proper matters to be taken into
consideration by the trier of facts in assessing damages. 14 Damages that might be fair compensation in value for
a given wrong when money is dear and its purchasing power is great will not suffice when money is cheap and
its purchasing power is small. 15
Motive of the defendant; degree of negligence.

The motive of the defendant is not, as a general rule, an element to be considered in estimating compensatory
damages, 16 and such damages are not dependent on, or graded by, the intent with which the wrongful act out of
which they arise was committed. 17 Hence, the motive or intent of the defaulting party will not, as a general rule,
be considered in actions for breach of contract. 18 The injured person is entitled to be made whole and no more
even though the willful breach by the defaulting party might bar him or her in an action on the same contract. 19
The measure of compensatory damages is the same whether the defendant's negligence was gross or simple. 20
Financial condition of parties.

Except where position or wealth is necessarily involved in determining the damages sustained, 21 the financial
condition of the parties involved has ordinarily no bearing on the amount to be awarded as compensatory damages
and evidence thereof is inadmissible. 22 The underlying reason for the rule is that such evidence tends to inject
into the case a foreign, diverting, and distracting issue that may effectuate prejudicial results. 23 Hence, as a
general rule, admission of evidence as to the pecuniary condition or financial circumstances of the defendant is
error where only compensatory damages may be awarded. 24 However, evidence of the financial standing of the
defendant is admissible where the case is of such a nature that the wealth of the defendant increases the wrong
inflicted. 25 Where the damage claimed is to reputation, the injured party may establish the general reputation of
the defendant's financial circumstances and standing on the question of compensatory damages. 26
Statutory limits of amount of damages.

Some states impose caps on noneconomic damages for particular claims or causes of action. 27 Establishing the
amount of damages recoverable in a civil action is within a state legislature's authority to abrogate the common
law. 28 Regardless of whether an appellate court judgment expressly commands it, trial courts must give effect
to statutory caps on damages when the parties raise the issue. 29
A statute placing a cap on noneconomic damages is not unconstitutional on its face as a denial of the right to trial
by jury as a damages cap does not intrude on the jury's fact-finding function because the cap represents a policy
decision that is applied after the jury's determination. 30 Likewise, a statute limiting noneconomic damages, in
certain tort actions, for all but the most serious injuries, does not infringe on the judicial power to decide damages
under constitutional separation of powers. 31 A rational basis exists for a statutory cap on noneconomic damages,
such that the cap does not violate equal-protection guarantees. 32
Cases:
Proper apportionment of damages award of $1,663,550.32 to parents in their tort suit against city arising from
accident in which child was permanently injured when her sled struck a tree, in which father had been determined
to be 25 percent at fault, was to divide amount of damages in half, reduce father's half by 25 percent, and then
combine these two amounts and reduce total to statutory damages cap of one million dollars, payable to parents
jointly. West's Neb.Rev.St. 13926(1). Connelly v. City of Omaha, 284 Neb. 131, 816 N.W.2d 742 (2012).
[END OF SUPPLEMENT]
Footnotes
N.D.Carpenter v. Rohrer, 2006 ND 111, 714 N.W.2d 804 (N.D. 2006).
1
N.J.Johnson v. Scaccetti, 192 N.J. 256, 927 A.2d 1269 (2007).
2
Ind.Bolin v. Wingert, 764 N.E.2d 201 (Ind. 2002).
3
Ark.Young v. Barbera, 366 Ark. 120, 233 S.W.3d 651 (2006).
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
Kan.Rose v. Via Christi Health System, Inc./St. Francis Campus, 279 Kan. 523, 113 P.3d 241 (2005).
Ga.John Thurmond & Associates, Inc. v. Kennedy, 284 Ga. 469, 668 S.E.2d 666 (2008).
IowaAg Partners, L.L.C. v. Chicago Cent. & Pacific R. Co., 726 N.W.2d 711 (Iowa 2007).
Kan.Rose v. Via Christi Health System, Inc./St. Francis Campus, 279 Kan. 523, 113 P.3d 241 (2005).
Compensatory damages
Purpose of compensatory damages is to restore an injured party to the position he or she would have been in if the
wrong had not been committed.
Conn.Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 905 A.2d 1165 (2006).
Fla.MCI Worldcom Network Services, Inc. v. Mastec, Inc., 995 So. 2d 221 (Fla. 2008).
UtahDiversified Holdings, L.C. v. Turner, 2002 UT 129, 63 P.3d 686 (Utah 2002).
Wyo.WSP, Inc. v. Wyoming Steel Fabricators and Erectors, Inc., 2007 WY 80, 158 P.3d 651 (Wyo. 2007).
Wyo.Alcaraz v. State, 2002 WY 57, 44 P.3d 68 (Wyo. 2002).
Mont.Sunburst School Dist. No. 2 v. Texaco, Inc., 2007 MT 183, 338 Mont. 259, 165 P.3d 1079, 223 Ed. Law Rep.
368 (2007).
U.S.Van Gordon v. U.S., 91 F. Supp. 834 (W.D. Mo. 1950).
Neb.Colvin v. John Powell & Co., 163 Neb. 112, 77 N.W.2d 900 (1956).
Tex.Holloway v. International Bankers Life Ins. Co., 354 S.W.2d 198 (Tex. Civ. App. Fort Worth 1962), writ granted,
(July 25, 1962) and judgment rev'd on other grounds, 368 S.W.2d 567 (Tex. 1963).
N.J.525 Main St. Corp. v. Eagle Roofing Co., 34 N.J. 251, 168 A.2d 33 (1961).
N.J.New Jersey Power & Light Co. v. Mabee, 41 N.J. 439, 197 A.2d 194 (1964).
U.S.Sanders v. Green, 208 F. Supp. 873 (E.D. S.C. 1962).
Mich.Normand v. Thomas Theatre Corp., 349 Mich. 50, 84 N.W.2d 451 (1957).
Neb.Segebart v. Gregory, 160 Neb. 64, 69 N.W.2d 315 (1955).
U.S.Sanders v. Green, 208 F. Supp. 873 (E.D. S.C. 1962).
S.C.Rogers v. Atlantic Coast Line R. Co., 222 S.C. 66, 71 S.E.2d 585 (1952).
Wis.Blahnik v. Dax, 22 Wis. 2d 67, 125 N.W.2d 364 (1963).
Mich.Angell v. Loomis, 97 Mich. 5, 55 N.W. 1008 (1893).
Ind.Pirchio v. Noecker, 226 Ind. 622, 82 N.E.2d 838, 7 A.L.R.2d 1198 (1948).
19
20
21
22
23
24
25
26
27
28
29
30
31
32
N.Y.Avery v. Shields, 50 N.Y.S.2d 939 (Sup 1944).

S.C.Monroe v. Bankers Life & Cas. Co., 232 S.C. 363, 102 S.E.2d 207 (1958).
Mass.Ficara v. Belleau, 331 Mass. 80, 117 N.E.2d 287 (1954).
Mass.Semons v. Towne, 285 Mass. 96, 188 N.E. 605 (1934).
U.S.Blankenship v. Rowntree, 219 F.2d 597 (10th Cir. 1955).
Ala.Barnes v. Sand Mountain Elec. Co-op., 40 Ala. App. 88, 108 So. 2d 378 (1958).
Cal.Love v. Wolf, 226 Cal. App. 2d 378, 38 Cal. Rptr. 183 (3d Dist. 1964).
Mo.Pyles v. St. Louis Public Service Co., 372 S.W.2d 114 (Mo. 1963).
Neb.Singles v. Union Pac. R. Co., 174 Neb. 816, 119 N.W.2d 680 (1963).
U.S.Blankenship v. Rowntree, 219 F.2d 597 (10th Cir. 1955).
Cal.Love v. Wolf, 226 Cal. App. 2d 378, 38 Cal. Rptr. 183 (3d Dist. 1964).
Mo.Bush v. Anderson, 360 S.W.2d 251 (Mo. Ct. App. 1962).
Me.Allard v. La Plain, 125 Me. 44, 130 A. 737 (1925).
N.J.Gierman v. Toman, 77 N.J. Super. 18, 185 A.2d 241 (Law Div. 1962).
AlaskaC.J. v. State, Dept. of Corrections, 151 P.3d 373 (Alaska 2006).
Ill.Townsend v. Sears, Roebuck and Co., 227 Ill. 2d 147, 316 Ill. Dec. 505, 879 N.E.2d 893 (2007) (stating Michigan
law).
Md.DRD Pool Service, Inc. v. Freed, 416 Md. 46, 5 A.3d 45 (2010).
W.Va.MacDonald v. City Hosp., Inc., 227 W. Va. 707, 715 S.E.2d 405 (2011).
Tex.In re Columbia Medical Center of Las Colinas, 306 S.W.3d 246 (Tex. 2010).
AlaskaL.D.G., Inc. v. Brown, 211 P.3d 1110 (Alaska 2009).
OhioArbino v. Johnson & Johnson, 116 Ohio St. 3d 468, 2007-Ohio-6948, 880 N.E.2d 420 (2007).
End of Document
119.Discretion as to amount of damages, 25 C.J.S. Damages 119

Damages
1. In General
119. Discretion as to amount of damages
In many cases, the amount of damages is not susceptible of an exact pecuniary measurement but must rest
largely in the discretion of the jury or the trial court sitting without a jury.
The amount of damages awarded is ultimately dependent on the facts of each case, 1 and the amount of a damages
award is a matter peculiarly within the province of the trier of fact. 2 The amount of damages is within the sound
discretion of the jury. 3 Juries are given wide latitude in determining the amount of damages to be awarded based
on the unique facts of each case. 4 Also, a trial judge sitting without a jury has a broad legal discretion regarding
the amount of damages awarded. 5 Jurors are allowed to use their own observation and experience in assessing
damages. 6 The fixing of the amount of damages by the court or jury calls for the exercise of good judgment,
application of experience in the affairs of life, and knowledge of social and economic conditions. 7
Where the law furnishes no legal rule for measuring damages, the amount rests largely within the discretion of the
jury. 8 However, the discretion of the jury is not an arbitrary, unbridled, or unlimited one. 9 Where there is a legal
measure of damages, the jury must determine the amount as a fact according to that measure, 10 and whether or
not it has done so in a given case may be proximately seen by a comparison of the verdict with the evidence. 11
Footnotes
Mont.Beaver v. Montana Dept. of Natural Resources and Conservation, 2003 MT 287, 318 Mont. 35, 78 P.3d 857
1
2
(2003).
Conn.Margolin v. Kleban and Samor, P.C., 275 Conn. 765, 882 A.2d 653 (2005).
Me.Rutland v. Mullen, 2002 ME 98, 798 A.2d 1104 (Me. 2002).
(2003).
Ky.Emberton v. GMRI, Inc., 299 S.W.3d 565 (Ky. 2009).
N.D.Westby v. Schmidt, 2010 ND 44, 779 N.W.2d 681 (N.D. 2010).
N.J.Jastram ex rel. Jastram v. Kruse, 197 N.J. 216, 962 A.2d 503 (2008).
119.Discretion as to amount of damages, 25 C.J.S. Damages 119
4
5
6
7
8
9
10
11
R.I.Perry v. Alessi, 890 A.2d 463 (R.I. 2006).
Conn.Commission on Human Rights and Opportunities ex rel. Arnold v. Forvil, 302 Conn. 263, 25 A.3d 632 (2011).
Ill.Snelson v. Kamm, 204 Ill. 2d 1, 272 Ill. Dec. 610, 787 N.E.2d 796 (2003).
R.I.Quince v. State, 94 R.I. 200, 179 A.2d 485 (1962).
Neb.Husak v. Omaha Nat. Bank, 165 Neb. 537, 86 N.W.2d 604 (1957).
Wis.Sennott v. Seeber, 6 Wis. 2d 590, 95 N.W.2d 269 (1959).
Ind.Bangert v. Hubbard, 127 Ind. App. 579, 126 N.E.2d 778, 67 A.L.R.2d 395 (1955).
IowaWoode v. Kabela, 256 Iowa 622, 128 N.W.2d 241 (1964).
Rational basis for calculation
A jury has discretion to award damages within the range permitted by the evidence as long as a rational basis exists
for the jury's damages calculation.
Wis.Tetzlaff v. Pilot Press, Inc., 270 Wis. 214, 70 N.W.2d 678 (1955).
Wis.Bell v. Gray-Robinson Const. Co., 265 Wis. 652, 62 N.W.2d 390 (1954).
End of Document
120.Choice as to method of determination, 25 C.J.S. Damages 120

Damages
1. In General
120. Choice as to method of determination
Where there is more than one method of estimating damages, that method that is most definite and certain
should be adopted, and, if either of two measures will fully compensate the injured party for loss, that
measure that is less expensive to the wrongdoer must be adopted.
In computing damages, the primary objective is to determine the amount of loss, applying whatever rule is best
situated to that purpose. 1 Where there is more than one method of estimating damages, that method that is most
definite and certain should be adopted. 2 No one method is exclusive where several exist but that one should be
chosen that best achieves the fundamental purpose of compensation to the injured person for loss, 3 and, if the
facts show that either of two measures of damages will fully compensate the plaintiff for loss, that measure must
be adopted that is less expensive to the defendant. 4
Alternative contracts.
Where a contract is broken by a party having an election as to the manner of performance, the alternative will be
adopted in measuring damages that is least injurious to the party having the right to exercise the choice. 5
Footnotes
Wyo.Lieberman v. Mossbrook, 2009 WY 65, 208 P.3d 1296 (Wyo. 2009).
1
U.S.Big Rock Mountain Corp. v. Stearns-Roger Corp., 388 F.2d 165 (8th Cir. 1968).
2
Cal.A. A. Baxter Corp. v. Colt Industries, Inc., 10 Cal. App. 3d 144, 88 Cal. Rptr. 842, 7 U.C.C. Rep. Serv. 1312
(4th Dist. 1970).
Colo.Colorado Bridge & Const. Co. v. Preuit, 75 Colo. 107, 224 P. 222 (1924).
Tex.John Hancock Mut. Life Ins. Co. v. Howard, 85 S.W.2d 986 (Tex. Civ. App. Waco 1935), writ refused.
120.Choice as to method of determination, 25 C.J.S. Damages 120
N.Y.Camarco Contractors, Inc. v. State, 40 Misc. 2d 486, 243 N.Y.S.2d 240 (Ct. Cl. 1963), order modified on other
grounds, 22 A.D.2d 833, 253 N.Y.S.2d 827 (3d Dep't 1964).
U.S.Western Oil & Fuel Co. v. Kemp, 245 F.2d 633 (8th Cir. 1957).
N.H.Walker v. Hayes, 100 N.H. 90, 120 A.2d 140 (1956).
End of Document
121.Adequacy of award, 25 C.J.S. Damages 121

Damages
1. In General
121. Adequacy of award
Damages must be logically and reasonably related to the harm or injury for which compensation is being
awarded and must not shock the sense of justice.
The law requires an indication that an award of damages is reasonable. 1 Damages must be logically and
reasonably related to the harm or injury for which compensation is being awarded. 2 When a damages award
falls within a range reasonably supported by the evidence, it is not the court's role to interfere with what is
primarily a jury question. 3 However, if the uncontroverted facts show the amount of the award bears no reasonable
relationship to the loss suffered, the award is inadequate. 4
An award of damages must strike a balance between ensuring that important personal rights are not lightly
disregarded and avoiding extravagant awards that bear little or no relation to the actual injury involved. 5 The
adequacy of a damages award should be determined by the acts or circumstances particular to the case under
consideration. 6
The ultimate test of damages is whether the award falls somewhere within the necessarily uncertain limits of just
damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury
was influenced by partiality, prejudice, mistake, or corruption. 7 A jury's determination of the amount of damages
is inviolate absent an award either so excessive or inadequate as to shock the judicial conscience and raise an
inference that passion, prejudice, or other improper cause had invaded the trial. 8 If an award of damages shocks
the conscience, it necessarily follows that the award was the result of passion, prejudice, mistake, or some other
means not apparent in the record. 9
It should be noted that the size of a verdict alone does not determine whether it is excessive. 10 Excessiveness
of a damages award refers not only to the amount of the verdict but also to whether, in light of all the facts
and circumstances, the award of damages appears to have been the product of passion, prejudice, mistake, or
121.Adequacy of award, 25 C.J.S. Damages 121
consideration of improper factors rather than a measured assessment of the degree of injury suffered by the
plaintiff. 11
When ruling on a motion premised upon inadequate or excessive damages, the trial court compares the jury's
award to what the court would have given, based upon its weighing of the evidence, and unless the disparity is
so great that it appears to the trial court that the award was given under the influence of passion or prejudice,
the award must stand. 12
Footnotes
N.H.T and M Associates, Inc. v. Goodrich, 150 N.H. 161, 834 A.2d 369 (2003).
1
Del.In re J.P. Morgan Chase & Co. Shareholder Litigation, 906 A.2d 766 (Del. 2006).
2
D.C.Scott v. Crestar Financial Corp., 928 A.2d 680 (D.C. 2007).
Pa.Paves v. Corson, 569 Pa. 171, 801 A.2d 546 (2002).
3
4
5
6
7
8
9
10
11
12
Two primary factors

A plaintiff must prove two primary factors relating to damages: first, a plaintiff must show a causal connection between
the defendant's wrongful conduct and the damages asserted; second, a plaintiff must prove the amount of those damages
by using a proper method and factual foundation for calculating damages.
Va.Saks Fifth Avenue, Inc. v. James, Ltd., 272 Va. 177, 630 S.E.2d 304 (2006).
IowaHorak v. Argosy Gaming Co., 648 N.W.2d 137 (Iowa 2002).
IowaPexa v. Auto Owners Ins. Co., 686 N.W.2d 150 (Iowa 2004).
La.Corbello v. Iowa Production, 850 So. 2d 686 (La. 2003), as clarified on reh'g, (June 20, 2003).
Conn.Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 935 A.2d 1004 (2007).
Wyo.Alexander v. Meduna, 2002 WY 83, 47 P.3d 206 (Wyo. 2002).
Neb.Brandon v. County of Richardson, 264 Neb. 1020, 653 N.W.2d 829 (2002).
Conn.Margolin v. Kleban and Samor, P.C., 275 Conn. 765, 882 A.2d 653 (2005).
End of Document
122.Failure to perform, 25 C.J.S. Damages 122

Damages
2. Measure of Entire Award
a. Breach of Contract
(1) In General
122. Failure to perform
West's Key Number Digest, Damages 117, 120, 120(1) to 120(7)
In case of a breach of contract, the measure of damages is the amount that will compensate the injured
person for the loss that a fulfillment of the contract would have prevented or the breach of it has entailed.
The nature and terms of a contract necessarily dictate the damages recoverable upon breach 1 as the measure of
damages in breach of contract cases is generally governed by the four corners of the contract. 2 In an ordinary
breach-of-contract case, the function of damages is simply to make the injured party whole. 3 As a general matter,
the desired objective in a damages action is to evaluate any loss suffered by the most direct, practical, and accurate
method that can be employed. 4 The determination of damages for a breach of contract will always be fact specific,
and no single method exists for calculating the amount necessary to place the plaintiff in the position he or she
would have occupied had the breach not occurred. 5 The measure of damages for a breach of contract is substantive
law. 6
Compensation is the value of the performance of the contract. 7 The person injured is, as far as it is possible to do so
by a monetary award, to be placed in the position he or she would have been in had the contract been performed, or
stated conversely, not been breached. 8 This measure is commonly referred to as a party's "expectation interest." 9
The injured person is entitled to the benefit of the bargain, 10 measured as of the time of the breach. 11 The
damages awarded must fully compensate the injured party. 12 Other statements are that, where one party to a
contract repudiates it, the other party is entitled to recover the value of the contract to him or her at the time of
its breach 13 or the value of the promised performance, 14 or the value of the benefit contracted for. 15 A party's
"reliance interest" is also a measure of damages in a contract action. 16 Reliance damages attempt to restore the
plaintiff to the position he or she would have occupied if the breached contract or promise had never been made. 17
On the other hand, the law of contract damages limits the injured party to damages based on actual loss caused
by the breach, 18 and such damages must relate to the nature and purpose of the contract. 19 The concept of
actual loss accounts for the possibility that the breach itself may result in a saving of some cost that the injured
party would have incurred if he or she had had to perform, and in such circumstances, the amount of the cost
saved will be credited in favor of the wrongdoer, that is, subtracted from the loss caused by the breach, in
calculating the injured party's damages. 20 No person may recover a greater amount in damages for the breach of
an obligation than he or she could have gained by full performance on both sides 21 absent statutory exemplary
or penal damages. 22 Further, damages are not recoverable for losses beyond an amount that can be established
with reasonable certainty. 23
The measure of damages for breach of a contract may be controlled by the theory on which the plaintiff sues, and
if a choice has been made, the plaintiff's recovery will not be measured by rules that might have been applicable
in an action on another theory. 24
Consideration as measure of damages.

Damages for breach of contract cannot as a general rule be measured by the consideration for the contract but
are to be determined by the value of the thing contracted for. 25 However, where the character of the contract
is such that it admits of no other method of measurement, the price that is agreed to be paid may be adopted as
the measure of damages. 26
Actual cost or total cost method.

The total cost method for calculating damages for breach of contract is disfavored. 27 The preferred method of
calculating damages is the actual cost method, 28 in which each element of extra expense incurred because of the
alleged breach is added up for a total claimed amount. 29 Under the "total cost method," damages for breach of
contract are determined by subtracting the contract amount from the total cost of performance. 30 A contractor
seeking damages based on a total cost theory must demonstrate the defendant, and not anyone else, is responsible
for the additional cost. 31 Before the total cost method may be used to determine damages for breach of contract,
the trial court bears the initial responsibility of determining that the plaintiff can show (1) the impracticality of
proving actual losses directly; (2) a reasonable bid; (3) reasonable actual costs; and (4) lack of responsibility for
the added costs. 32 The threshold question for use of the total cost method is whether the contract breach pervaded
substantial areas of performance. 33
Quasi-contract.
The measure of damages is not the same in an action for a breach of an express contract and in an action on a
quantum meruit in that in the former the measure is fixed by the parties while in the latter it is fixed by law. 34
In an action depending on the obligation or duty called a quasi-contract, the measure of the recovery is the extent
of the duty or obligation imposed by law and is expressed by the amount that the court considers the defendant
has been unjustly enriched at the expense of the plaintiff. 35 If there is a valid express contract, recovery must
be measured by its terms. 36
Promissory estoppel.
A single measure of damages is not applicable to every promissory estoppel claim 37 as the appropriate measure
will vary with the facts and equities of the case at hand. 38 To determine the appropriate measure of damages
for promissory estoppel claims, the court should consider the measure of damages that justice requires and that
comports with the general requirements that damages be foreseeable and reasonably certain. 39 The value of
the promise is the presumptive measure of damages for promissory estoppel, to be rejected only if awarding so
much would be inequitable. 40 A court may award expectation, reliance, or restitutionary damages for promissory
estoppel claims as although the doctrine of promissory estoppel is conceptually distinct from traditional contract
principles, there is no rational reason for distinguishing the two situations in terms of the damages that may be
recovered. 41
Statutory measure of damages.

Damages for breach of contract must be measured in accordance with the governing statutes. 42 By statute, in
some jurisdictions, the measure of damages for breach of an obligation arising from a contract is the amount that
will compensate the party aggrieved for all the detriment proximately caused thereby or which in the ordinary
course of things would be likely to result therefrom. 43 This is in effect a statutory enactment of the common-law
rule that the natural and probable consequences of a breach of contract form recoverable elements of damage. 44
Under some statutes, no person may recover a greater amount in damages for the breach of an obligation than
he or she could have gained by full performance thereof on both sides except in cases where a recovery may be
had for exemplary and punitive damages. 45
Restitutionary damages.
"Restitution" returns an innocent party to the condition he or she occupied before the contract was executed. 46
Restitutionary damages attempt to return the defendant to the position he or she would have occupied if the contract
or promise had never been made. 47
Law and equity distinguished.

In a law action based on breach of contract, the measure of damages is determined by the parties' agreement, while
in equity, the measure of the recovery is the extent of the duty or obligation imposed by law and is expressed by
the amount that the court considers the defendant has been unjustly enriched at the expense of the plaintiff. 48
Cases:
As a general rule, a non-breaching party is not entitled, through the award of damages, to achieve a position
superior to the one it would reasonably have occupied had the breach not occurred. Kansas Gas and Elec. Co. v.
U.S., 685 F.3d 1361 (Fed. Cir. 2012).
Damages for breach of contract seek to put the plaintiff in the position that he would have been in but for the
breach. Hughes v. Hughes, 2013 MT 176, 370 Mont. 499, 305 P.3d 772, 81 U.C.C. Rep. Serv. 2d 1 (2013).
Customary means of calculating damages on a quantum meruit basis in a construction case is actual job costs plus
profit minus amount paid. S.J. Kula, Inc. v. Carrier, 107 A.D.3d 1541, 967 N.Y.S.2d 804 (4th Dep't 2013).
In order to survive summary judgment, a complaint sounding in contract must allege damages; such allegations
must reflect the fundamental idea in allowing damages for breach of contract, that is, to put the plaintiff in as
good a position financially as he would have been in but for the breach by giving the aggrieved party what he
contracts for or its equivalent. United Concrete & Const., Inc. v. Red-D-Mix Concrete, Inc., 2013 WI 72, 836
N.W.2d 807 (Wis. 2013).
[END OF SUPPLEMENT]
Footnotes
1
2
3
4
5
6
7
Rights and liabilities on breach of contract, see C.J.S., Contracts 754 to 756.
N.J.Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 860 A.2d 435 (2004).
UtahTraco Steel Erectors, Inc. v. Comtrol, Inc., 2009 UT 81, 222 P.3d 1164 (Utah 2009).
U.S.Henderson v. National Fidelity Life Ins. Co., 257 F.2d 917 (10th Cir. 1958).
Mass.Ficara v. Belleau, 331 Mass. 80, 117 N.E.2d 287 (1954).
Value of the performance itself
General damages for breach of a contract are based on the value of the performance itself, not on the value of some
consequence that performance may produce.
102 P.3d 257 (2004).
Colo.Acoustic Marketing Research, Inc. v. Technics, LLC, 198 P.3d 96 (Colo. 2008).
Conn.FCM Group, Inc. v. Miller, 300 Conn. 774, 17 A.3d 40 (2011).
Nev.Dynalectric Co. of Nevada, Inc. v. Clark & Sullivan Constructors, Inc., 255 P.3d 286, 127 Nev. Adv. Op. No.
41 (Nev. 2011).
S.D.Lamar Advertising of South Dakota, Inc. v. Heavy Constructors, Inc., 2008 SD 10, 745 N.W.2d 371 (S.D. 2008).
UtahChristensen & Jensen, P.C. v. Barrett & Daines, 2008 UT 64, 194 P.3d 931 (Utah 2008).
Wyo.Knight v. TCB Const. and Design, LLC, 2011 WY 27, 248 P.3d 178 (Wyo. 2011).
Purpose of damages measure
Limitation on damages for breach of a contract to what injured party would have received if the contract had been
fully performed on both sides serves to encourage contractual relations and commercial activity by enabling parties to
estimate in advance the financial risks of their enterprise.
102 P.3d 257 (2004).
Measure of expectation damages
In an action for breach of contract, expectation damages are measured by the losses caused and gains prevented by
defendant's breach.
10
Del.Paul v. Deloitte & Touche, LLP, 974 A.2d 140 (Del. 2009).
102 P.3d 257 (2004).
Colo.Goodyear Tire & Rubber Co. v. Holmes, 193 P.3d 821 (Colo. 2008).
Being made whole
Where the parties have entered into a contract, being made whole means realizing the benefit of the bargain that they
struck.
D.C.Allen v. Yates, 870 A.2d 39 (D.C. 2005).
11
12
13
14
15
16
17
18
Benefit of the bargain rule

The benefit of the bargain rule in a breach-of-contract action places the injured party in as good a position as if the
contract had been performed, less any costs or other loss that the injured party has avoided by not having to perform.
Mont.Textana, Inc. v. Klabzuba Oil & Gas, 2009 MT 401, 353 Mont. 442, 222 P.3d 580 (2009).
U.S.John E. Smith's Sons Co. v. Lattimer Foundry & Mach. Co., 19 F.R.D. 379 (M.D. Pa. 1956), order aff'd, 239
F.2d 815 (3d Cir. 1956).
Pa.Siegel v. Struble Bros., 150 Pa. Super. 343, 28 A.2d 352 (1942).
Conn.Talbot v. Waterbury Hospital Corp., 22 Conn. Supp. 149, 164 A.2d 162 (Super. Ct. 1960).
Nev.Cladianos v. Friedhoff, 69 Nev. 41, 240 P.2d 208 (1952).
N.C.Perkins v. Langdon, 237 N.C. 159, 74 S.E.2d 634 (1953).
Tex.Dalton S.S. Corp. v. W. R. Zanes & Co., 354 S.W.2d 621 (Tex. Civ. App. Fort Worth 1962).
Tenn.Allen v. Elliott Reynolds Motor Co., 33 Tenn. App. 179, 230 S.W.2d 418 (1950).
Tex.Stanley v. Lieb, 243 S.W.2d 227 (Tex. Civ. App. Eastland 1951).
D.C.Logan Motor Co. v. Lenders, Inc., 125 A.2d 511 (Mun. Ct. App. D.C. 1956).
Neb.Anderson Excavating & Wrecking Co. v. Sanitary Imp. Dist. No. 177, 265 Neb. 61, 654 N.W.2d 376 (2002).
41 (Nev. 2011).
IowaScott v. Grinnell Mut. Reinsurance Co., 653 N.W.2d 556 (Iowa 2002).
S.C.Collins Holding Corp. v. Landrum, 360 S.C. 346, 601 S.E.2d 332 (2004).
Limited to pecuniary loss sustained
Va.Sunrise Continuing Care, LLC v. Wright, 277 Va. 148, 671 S.E.2d 132 (2009).
19
20
21
22
23
24
25
No loss suffered
When the plaintiff in a breach-of-contract action has suffered no loss, there are no damages.
Wyo.Stone v. Devon Energy Production Co., L.P., 2008 WY 49, 181 P.3d 936 (Wyo. 2008).
IowaScott v. Grinnell Mut. Reinsurance Co., 653 N.W.2d 556 (Iowa 2002).
S.D.Gul v. Center for Family Medicine, 2009 SD 12, 762 N.W.2d 629, 242 Ed. Law Rep. 374 (S.D. 2009).
Wyo.WSP, Inc. v. Wyoming Steel Fabricators and Erectors, Inc., 2007 WY 80, 158 P.3d 651 (Wyo. 2007).
No windfall
The law of contracts is intended to give an injured party the benefit of the bargain, not the benefit of the bargain and
a windfall.
Mass.Perroncello v. Donahue, 448 Mass. 199, 859 N.E.2d 827 (2007).
S.D.Gul v. Center for Family Medicine, 2009 SD 12, 762 N.W.2d 629, 242 Ed. Law Rep. 374 (S.D. 2009).
Colo.Acoustic Marketing Research, Inc. v. Technics, LLC, 198 P.3d 96 (Colo. 2008).
Tex.Vise v. Foster, 247 S.W.2d 274 (Tex. Civ. App. Waco 1952), writ refused n.r.e..
D.C.Logan Motor Co. v. Lenders, Inc., 125 A.2d 511 (Mun. Ct. App. D.C. 1956).
Miss.Callicott v. Gresham, 249 Miss. 103, 161 So. 2d 183 (1964).
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
Tex.Howard v. Fred Jones of Texas, Inc., 295 S.W.2d 545 (Tex. Civ. App. Amarillo 1956), writ dismissed.
Miss.Callicott v. Gresham, 249 Miss. 103, 161 So. 2d 183 (1964).
Neb.International Text-Book Co. v. Martin, 82 Neb. 403, 117 N.W. 994 (1908).
AlaskaK & K Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702 (Alaska 2003).
Cal.Amelco Electric v. City of Thousand Oaks, 27 Cal. 4th 228, 115 Cal. Rptr. 2d 900, 38 P.3d 1120 (2002).
Wyo.City of Gillette v. Hladky Const., Inc., 2008 WY 134, 196 P.3d 184 (Wyo. 2008).
Pa.Lach v. Fleth, 361 Pa. 340, 64 A.2d 821 (1949).
S.C.U. S. Rubber Products v. Town of Batesburg, 183 S.C. 49, 190 S.E. 120, 110 A.L.R. 144 (1937).
Cal.Petersen v. Lang, 144 Cal. App. 2d 466, 301 P.2d 397 (1st Dist. 1956).
Nev.Cladianos v. Friedhoff, 69 Nev. 41, 240 P.2d 208 (1952).
N.H.Jackson v. Morse, 152 N.H. 48, 871 A.2d 47 (2005).
41 (Nev. 2011).
41 (Nev. 2011).
41 (Nev. 2011).
Reliance damages not usual measure
Reliance damages may be appropriate in certain instances of promissory estoppel, but they are not the usual measure
of damages.
Okla.Monarch Refineries v. Union Tank Car Co., 1943 OK 296, 193 Okla. 110, 141 P.2d 556 (1943).
Cal.Navarro v. Jeffries, 181 Cal. App. 2d 454, 5 Cal. Rptr. 435 (2d Dist. 1960).
N.D.Hayes v. Cooley, 13 N.D. 204, 100 N.W. 250 (1904).
Okla.Groendyke Transport, Inc. v. Merchant, 1962 OK 32, 380 P.2d 682 (Okla. 1962).
1100 (2007).
41 (Nev. 2011).
S.C.QHG of Lake City, Inc. v. McCutcheon, 360 S.C. 196, 600 S.E.2d 105 (Ct. App. 2004).
End of Document
123.Time of estimation; anticipatory breach, 25 C.J.S. Damages 123

Damages
(1) In General
123. Time of estimation; anticipatory breach
West's Key Number Digest, Damages 120, 120(1) to 120(7)
The general rule is that damages, in an action for breach of contract, are to be measured as of the date of
the breach, and the damages for an anticipatory breach are to be ascertained as of the date of the breach.
The general rule is that damages, in an action for breach of contract, are to be measured as of the date of the
breach. 1
The tender of an anticipatory breach does not affect the general rule of damages. 2 Where a continuing contract
is broken by a repudiation of liability under it during the course of performance, the party to whom performance
is due may sue immediately and recover for the breach of the entire contract. 3 The damages for an anticipatory
breach are to be ascertained as of the date of the breach, 4 but such damages are to be full compensation for the
loss occasioned by depriving the plaintiff of the benefit of the contract. 5
Since the injury is to the contract as a whole, the measure of damages is the value of the thing injured or destroyed
regarded as an article of property. 6 The party to whom performance is due is entitled to recover such amount as
will place him or her in the position he or she would be in if the contract had been fully performed. 7 The damages
recoverable are those that would have been recoverable if the party guilty of the anticipatory breach had waited
until the appointed time for performance before breaching the contract. 8
Where the trial is had prior to the time for complete performance of the contract, the damages are not limited to
the loss sustained up to the time of the trial. 9 Where the date of performance under the contract is still indefinite
at the time of the trial, the date of the breach determines the amount of damages. 10
Continuing contract.
In the case of an anticipatory breach of a continuing contract, the amount of damages may be measured by the
entire period of the contract, notwithstanding the party asserting damages had an option to terminate the contract
on a stipulated notice shorter than its unexpired term. 11
Installment contract.
Where a contract is to be performed in installments, the damages for its breach must be measured as of the time at
which each installment is due and not as of the time at which performance is to be completed. 12 Where one party
to a contract is by insolvency not able to perform, party liability is for the value of the contract to the end of the
term. 13 In cases in which a recovery may be had for prospective damages, the defendant is entitled only to the
present value of defendant's contract, and a proper allowance must be made for the fact that a present recovery is
awarded for damages that will have accrued only at some future time. 14
Cases:
"Direct damages" for breach of contract are typically expectation damages, measured by what it would take to put
the non-breaching party in the same position that it would be in had the breaching party performed as promised
under the contract. Latham Land I, LLC v. TGI Friday's, Inc., 96 A.D.3d 1327, 948 N.Y.S.2d 147 (3d Dep't 2012).
[END OF SUPPLEMENT]
Footnotes
Kan.Empire Mfg. Co. v. Empire Candle, Inc., 273 Kan. 72, 41 P.3d 798 (2002).
1
2
3
4
5
6
7
8
9
10
11
12
13
14
Tex.Miga v. Jensen, 96 S.W.3d 207 (Tex. 2002).

Ga.Mendel v. Converse & Co., 30 Ga. App. 549, 118 S.E. 586 (1923).
Anticipatory breach of contract, generally, see C.J.S., Contracts 710 to 718.
U.S.U.S. v. Purcell Envelope Co., 249 U.S. 313, 39 S. Ct. 300, 63 L. Ed. 620 (1919).
Ga.Irwin v. Young, 91 Ga. App. 773, 87 S.E.2d 322 (1955), judgment aff'd, 212 Ga. 1, 90 S.E.2d 22 (1955).
Mass.Eastern Paper & Box Co. v. Herz Mfg. Corp., 323 Mass. 138, 80 N.E.2d 484 (1948).
U.S.Placid Oil Co. v. Humphrey, 244 F.2d 184 (5th Cir. 1957).
U.S.McJunkin Corp. v. North Carolina Natural Gas Corp., 300 F.2d 794 (4th Cir. 1961).
Tex.Pollack v. Pollack, 46 S.W.2d 292 (Tex. Comm'n App. 1932).
U.S.Placid Oil Co. v. Humphrey, 244 F.2d 184 (5th Cir. 1957).
U.S.Albright v. Kalbitzer, 62 F. Supp. 815 (E.D. Pa. 1945).
U.S.In re New York, N. H. & H. R. Co., 298 F.2d 761 (2d Cir. 1962).
Tex.Employment Advisors, Inc. v. Sparks, 364 S.W.2d 478 (Tex. Civ. App. Waco 1963), writ refused n.r.e., 368
S.W.2d 199 (Tex. 1963).
U.S.Russell v. Barnes Foundation, 52 F. Supp. 827 (E.D. Pa. 1943), judgment aff'd, 143 F.2d 871 (C.C.A. 3d Cir.
1944).
U.S.McJunkin Corp. v. North Carolina Natural Gas Corp., 300 F.2d 794 (4th Cir. 1961).
U.S.Central Trust Co. of Illinois v. Chicago Auditorium Ass'n, 240 U.S. 581, 36 S. Ct. 412, 60 L. Ed. 811 (1916).
U.S.Roller v. George H. Leonard & Co., 229 F. 607 (C.C.A. 4th Cir. 1915).
N.Y.Recknagel v. Steinway, 184 N.Y. 614, 77 N.E. 801 (1906).
U.S.Pennsylvania Steel Co. v. New York City Ry. Co., 216 F. 458 (C.C.A. 2d Cir. 1914).
Cal.Noble v. Tweedy, 90 Cal. App. 2d 738, 203 P.2d 778 (2d Dist. 1949).
Fla.Pallardy-Watrous Ins. Agency v. M. Tucker, Inc., 120 Fla. 895, 163 So. 284 (1935).
End of Document
124.Contractual stipulations, 25 C.J.S. Damages 124

Damages
(1) In General
124. Contractual stipulations
West's Key Number Digest, Damages 118, 120, 120(1) to 120(7)
A contract fixing the measure of damages will govern both as to the method and amount, and additional
damages may not be claimed.
Where the parties to a contract have agreed on the measure of damages for its breach, such agreement will
ordinarily be enforced. 1 Contracting parties have the right to privately bargain for the amount of damages
to be paid in the event of a breach of contract provided that the stipulated sum is reasonable in light of the
circumstances. 2 Thus, parties to a contract may override the application of the judicial remedy for breach of a
contract by stipulating, in advance, to the sum to be paid in the event of a breach. 3 In order to modify the usual
rule of damages, however, it must be clear that the parties intended to stipulate as to the measure of damages, 4
and mere statements of opinion or matters of inducement will not ordinarily be given this effect. 5 In determining
the actual damages sustained from a breach of contract, the courts will not look to a liquidated damage clause
where such provision has become unenforceable. 6
It may be that a contractual limitation on damages may not be enforced when a disparity of bargaining power
exists, in effect, when one party has no real choice in accepting the agreement limiting the liability of the other
party. 7
Contract terminable on certain conditions.

Where a person refuses to perform a contract that is terminable by him or her on certain conditions, the amount of
money he or she would have to pay in exercising his or her election to terminate becomes the measure of damages
for his or her breach. 8 Where a contract is terminable at any time on notice and it is terminated without notice,
the damages that the aggrieved party may recover are limited to the notice period. 9 Where notice to terminate is
given as authorized by the contract, recovery may be limited to profits that would have been made between the
time of the notice of cancellation and the effective date thereof. 10
Contract containing "no damage" clause.

Where a party to a contract containing a "no damage" clause acts within the fair and legal import of its terms, he
or she cannot be deprived of the benefit of his or her agreement unless his or her conduct indicates bad faith or
some other tortious intent. 11 Consequential damages are not recoverable when the contract provides that there
shall be no liability for consequential damages. 12 Consequential damages within such a provision means damages
that do not arise according to the usual course of things from the breach of the contract itself or, in other words,
special damages that are the consequences of special circumstances known to the parties at the time the contract
was made. 13
Cases:
Home construction contract, which provided that builder and project owners waived any claims for consequential
damages including damages "for rental expenses, for losses of use, income, profit, financing, business and
reputation, and for loss of management or employee productivity barred claim for damages caused by delay"
precluded project owners from bringing claim against builder for damages caused by delay which included their
inability "to sell the projects as anticipated" and their missed opportunity "to sell the projects when the market
was appropriate." Big-D Signature Corp. v. Sterrett Properties, LLC, 2012 WY 138, 288 P.3d 72 (Wyo. 2012).
[END OF SUPPLEMENT]
Footnotes
Ill.Kemp v. Gannett, 50 Ill. App. 3d 429, 8 Ill. Dec. 726, 365 N.E.2d 1112 (4th Dist. 1977).
1
3
4
5
6
7
8
9
Mo.St. Joseph Light & Power Co. v. Kaw Valley Tunneling, Inc., 589 S.W.2d 260 (Mo. 1979).
Pa.Donahue v. R. C. Mahon Co., 219 Pa. Super. 210, 280 A.2d 563 (1971).
Tex.Arnold v. Spraggins, 470 S.W.2d 75 (Tex. Civ. App. Amarillo 1971), writ refused n.r.e., (Nov. 24, 1971).
Neb.Reichert v. Rubloff Hammond, L.L.C., 264 Neb. 16, 645 N.W.2d 519 (2002).
Limitation of liability clause unconscionable
Limitation of liability clause in home inspection agreement, which limited inspector's liability for any wrongdoing
to the amount paid for inspection and precluded home purchasers' ability to collect punitive damages, if otherwise
warranted, was substantively unconscionable.
Miss.Pitts v. Watkins, 905 So. 2d 553 (Miss. 2005).
Neb.Reichert v. Rubloff Hammond, L.L.C., 264 Neb. 16, 645 N.W.2d 519 (2002).
N.Y.Town of Tonawanda v. Stapell, Mumm & Beals Corp., 240 A.D. 472, 270 N.Y.S. 377 (4th Dep't 1934), aff'd,
265 N.Y. 630, 193 N.E. 419 (1934).
Tex.Pittsburgh Athletic Co. v. Malin, 71 S.W.2d 889 (Tex. Civ. App. Amarillo 1934), writ dismissed.
U.S.United Engineering & Contracting Co. v. U.S., 47 Ct. Cl. 489, 1911 WL 1375 (1912), aff'd, 49 Ct. Cl. 689, 234
U.S. 236, 34 S. Ct. 843, 58 L. Ed. 1294 (1914).
U.SBoyd v. Tornier, Inc., 656 F.3d 487 (7th Cir. 2011) (under Texas law).
Cal.Pecarovich v. Becker, 113 Cal. App. 2d 309, 248 P.2d 123 (1st Dist. 1952).
N.Y.Chatham Plan v. Clinton Trust Co., 246 A.D. 498, 286 N.Y.S. 179 (1st Dep't 1936).
U.S.Western Oil & Fuel Co. v. Kemp, 245 F.2d 633 (8th Cir. 1957).
10
11
12
13
Pa.Fife v. Great Atlantic & Pacific Tea Co., 166 Pa. Super. 77, 70 A.2d 369 (1950).
U.S.Spur Bottling Co. v. Canada Dry Ginger Ale, 98 F. Supp. 972 (W.D. Ark. 1951).
N.J.Gherardi v. Board of Ed. of City of Trenton, 53 N.J. Super. 349, 147 A.2d 535 (App. Div. 1958).
R.I.Psaty & Fuhrman v. Housing Authority of City of Providence, 76 R.I. 87, 68 A.2d 32, 10 A.L.R.2d 789 (1949).
Mass.Boylston Housing Corp. v. O'Toole, 321 Mass. 538, 74 N.E.2d 288, 172 A.L.R. 1251 (1947).
End of Document
125.Part performance, 25 C.J.S. Damages 125

Damages
(1) In General
125. Part performance
Where there has been a failure to complete performance of a contract according to its terms, the measure
of damages ordinarily is the reasonable cost of completion.
In the event of a failure to complete performance of a contract according to its terms, including a building or
construction contract or subcontract, the injured party is entitled to such compensation that will leave him or her as
well off as he or she would have been had the contract been fully performed. 1 The measure of damages ordinarily
is the reasonable cost of completion, 2 if completion is possible and does not involve unreasonable economic
waste, 3 or, where the consideration remains executory on the part of plaintiff, the difference between such cost
and the contract price for completion according to the contract. 4 Where a contract is breached after a partial
performance, the contractee is not entitled automatically to recover the difference between the contract price and
the amount it would have cost to have the work done unless completion actually is accomplished at a greater cost. 5
The measure of the plaintiff's recovery for partial performance when he or she is entitled to recover is the
reasonable value of labor and materials furnished, having reference to the contract price, not to exceed the benefit
received by defendant 6 and subject to a deduction of the amount of damages sustained by the defendant by reason
of the plaintiff's failure fully to perform the contract. 7
The party seeking to recover the cost of completion in a breach-of-contract case has the burden to prove that the
damages sought are reasonable. 8
The proper measure of damages to apply when a party breaches a contract, and later seeks restitution for partial
performance prior to the breach, is the value of the benefit resulting from the partial performance. 9
125.Part performance, 25 C.J.S. Damages 125
Cases:
A party to a contract may not receive actual and liquidated damages for the same injury; however, actual damages
related to the cost of completion are separate and distinct from liquidated damages intended to compensate for
injury resulting from delay. A. Miner Contracting, Inc. v. Toho-Tolani County Imp. Dist., 233 Ariz. 249, 311
P.3d 1062 (Ct. App. Div. 1 2013).
[END OF SUPPLEMENT]
Footnotes
R.I.Aiello Const., Inc. v. Nationwide Tractor Trailer Training and Placement Corp., 122 R.I. 861, 413 A.2d 85 (1980).
1
3
4
5
6
7
8
9
Tex.Beeman v. Worrell, 612 S.W.2d 953 (Tex. Civ. App. Dallas 1981).
UtahNielsen v. Chin-Hsien Wang, 613 P.2d 512 (Utah 1980).
Colo.R. F. Carle Co. v. Biological Sciences Curriculum Study Co., 616 P.2d 989 (Colo. App. 1980).
Mo.Finkel v. Hoel-Steffen Const. Co., 631 S.W.2d 645 (Mo. Ct. App. E.D. 1981).
Mont.Carriger v. Ballenger, 192 Mont. 479, 628 P.2d 1106 (1981).
Completion by other party of contract partially performed, see C.J.S., Contracts 807, 808.
D.C.Fortune v. Evans, 58 A.2d 919 (Mun. Ct. App. D.C. 1948).
Mo.Samuels v. Illinois Fire Ins. Co., 354 S.W.2d 352 (Mo. Ct. App. 1961).
Cal.Fairlane Estates, Inc. v. Carrico Const. Co., 228 Cal. App. 2d 65, 39 Cal. Rptr. 35 (4th Dist. 1964).
Tex.McKnight v. Renfro, 371 S.W.2d 740 (Tex. Civ. App. Dallas 1963), writ refused n.r.e., (Jan. 22, 1964).
U.S.Nello L. Teer Co. v. Hollywood Golf Estates, Inc., 324 F.2d 669 (5th Cir. 1963).
Ind.Western Wheeled Scraper Co. v. Scott Const. Co., 217 Ind. 408, 27 N.E.2d 879 (1940).
Ky.Trinity Universal Ins. Co. v. Mills, 293 Ky. 463, 169 S.W.2d 311 (1943).
Colo.Campbell v. Koin, 154 Colo. 425, 391 P.2d 365 (1964).
Md.Shapiro Engineering Corp. v. Francis O. Day Co., 215 Md. 373, 137 A.2d 695 (1958).
Wis.Plante v. Jacobs, 10 Wis. 2d 567, 103 N.W.2d 296 (1960).
Tex.Mustang Pipeline Co., Inc. v. Driver Pipeline Co., Inc., 134 S.W.3d 195 (Tex. 2004).
Conn.David M. Somers and Associates, P.C. v. Busch, 283 Conn. 396, 927 A.2d 832 (2007).
End of Document
126.Defective performance, 25 C.J.S. Damages 126

Damages
(1) In General
126. Defective performance
As a general rule, the measure of damages for defective performance of a contract is the difference in value
between what is tendered as performance and what is due as performance under the contract.
In the event of defective performance of a contract, the measure of damages must be such a sum as will compensate
the injured party. 1 He or she is entitled to such compensation that will leave him or her as well off as he or she
would have been had the contract been properly performed. 2
While in determining the measure of damages for defective performance of a contract, different elements are
proper for consideration in different cases, according to the nature of the defect, 3 as a general rule, the measure
of damages is the difference in value between what is tendered as performance and what is due as performance
under the contract. 4 In the event that what is tendered is of no value or is unsuitable for the purpose contemplated
by the contract, the measure of damages may be the amount required to remedy the defect, 5 or a recovery of the
full consideration paid may be had. 6 Also, where a defect may readily be remedied by repairs, the reasonable cost
of such repairs may afford the measure of damages. 7 The cost of performing the work covered by the contract
in an entirely different manner cannot be recovered. 8 Ordinarily, the full contract price cannot be recovered for
substantial performance unless the other party accepts such as complete performance. 9
Contractual stipulations.
A provision in a contract limiting the liability for defective performance is valid and enforceable, 10 and the court
may apply the measure of damages agreed on by the parties. 11
126.Defective performance, 25 C.J.S. Damages 126
Cases:
Under Nebraska law, where a defect in the performance of a contract can be remedied, the ordinary measure
of damages is the cost of repair, but where the defect cannot be remedied, the usual measure of damages is the
difference in value between the thing as represented and its actual value; this latter rule contemplates instances
where there has been substantial compliance with the contract, the plaintiff received substantially the same benefits
that it bargained for from the contract as performed, and performance in accordance with the contract is infeasible
or possible only at inordinate cost. BLB Aviation South Carolina, LLC v. Jet Linx Aviation, LLC, 748 F.3d 829
(8th Cir. 2014).
Cost of repair damages for breach of contract by defective performance is the cost of repairing the defective work.
Matt Miller Co., Inc. v. Taylor-Martin Holdings, LLC, 393 S.W.3d 68 (Mo. Ct. App. S.D. 2012).
[END OF SUPPLEMENT]
Footnotes
Ark.Allied Chemical Corp. v. Van Buren School Dist. No. 42, 264 Ark. 810, 575 S.W.2d 445 (1979).
1
5
6
7
8
9
10
11
N.D.Shimek v. Vogel, 105 N.W.2d 677 (N.D. 1960).

Tex.Smith v. Kinslow, 598 S.W.2d 910 (Tex. Civ. App. Dallas 1980).
Rights and liabilities of parties to contract on defective performance, see C.J.S., Contracts 809 to 814.
U.S.Aghnides v. Marmon Group, Inc., 463 F.2d 384 (4th Cir. 1972).
Mass.Concannon v. Galanti, 348 Mass. 71, 202 N.E.2d 236 (1964).
Wash.Odgers v. Held, 58 Wash. 2d 247, 362 P.2d 261 (1961).
U.S.American Elec. Power Co., Inc. v. Westinghouse Elec. Corp., 418 F. Supp. 435, 23 Fed. R. Serv. 2d 758, 19
U.C.C. Rep. Serv. 1009 (S.D. N.Y. 1976).
IowaRyan v. Kanne, 170 N.W.2d 395 (Iowa 1969).
N.Y.Webster v. Culver Roadways, Inc., 79 Misc. 2d 256, 359 N.Y.S.2d 863 (Sup 1974).
Ala.Lowe v. Morrison, 412 So. 2d 1212 (Ala. 1982).
Colo.Wickland v. Snyder, 39 Colo. App. 403, 565 P.2d 976 (App. 1977).
Or.Thomas v. Schmidt, 58 Or. App. 343, 648 P.2d 376 (1982).
IdahoGoodwin v. Village of Firth, 79 Idaho 459, 319 P.2d 970 (1957).
Kan.Board of Com'rs of Allen County v. Baker, 152 Kan. 164, 102 P.2d 1006 (1940).
Cal.Bause v. Anthony Pools, Inc., 205 Cal. App. 2d 606, 23 Cal. Rptr. 265 (2d Dist. 1962).
IdahoGoodwin v. Village of Firth, 79 Idaho 459, 319 P.2d 970 (1957).
Ga.Orkin Exterminating Co., Inc., of South Ga. v. Buchanan, 108 Ga. App. 449, 133 S.E.2d 635 (1963).
Pa.Brourman v. Bova, 198 Pa. Super. 279, 182 A.2d 245 (1962).
U.S.McCarthy v. Central Dredging Co., 203 F. 965 (C.C.A. 2d Cir. 1913).
Md.Hammaker v. Schleigh, 157 Md. 652, 147 A. 790, 65 A.L.R. 1285 (1929).
Substantial performance of contract, generally, see C.J.S., Contracts 800 to 804.
Pa.Magar v. Lifetime, Inc., 187 Pa. Super. 143, 144 A.2d 747 (1958).
Tex.Tucker v. Northcutt, 248 S.W.2d 750 (Tex. Civ. App. Waco 1952), writ refused, (July 16, 1952).
End of Document
127.Defective performanceBuilding or construction contract, 25 C.J.S. Damages 127

Damages
(1) In General
127. Defective performanceBuilding or construction contract
West's Key Number Digest, Damages 120(2), 123
In general, the measure of recovery for defective or incomplete performance of a construction contract is the
difference in value between the value of the performance contracted for and the value of the performance
actually rendered.
When negligent construction and breach of contract occurs, a party is entitled to recover damages amounts that
reasonably place the party in the same position it would have had but for the negligence and breach. 1 In general,
the measure of recovery for defective or incomplete performance of a construction contract is the difference in
value between the value of the performance contracted for and the value of the performance actually rendered. 2
The difference in the value of the property with the defective work and what it would have been had there been
strict compliance with the contract may be resorted to as the measure of damages where the contract has not
been substantially performed, 3 where the defects cannot be remedied without great sacrifice of work or material
or would impair the building, 4 or would involve unreasonable economic waste, 5 or where the defects cannot
be repaired at a reasonable cost, 6 or where it is not reasonable or practicable to remedy the defects, 7 or where
the cost of remedying the defect will not fully compensate the owner for the damages suffered by him or her. 8
When determining damages for the defective or incomplete performance of a construction contract, an owner
must deduct against the cost of completion the part of the price that he or she has not yet paid. 9
It is also said that the measure of damages for defective or incomplete performance of a construction contract
may be the cost of repairing the defects or making the building or structure conform to the specifications, 10
especially when there has been substantial performance, 11 unless the cost of repair is disproportionate to the
property's probable loss of value 12 and provided that unreasonable economic waste is not involved. 13 It has
been said that cost of correction or completion rather than loss in property value ordinarily affords the proper
basis for measuring the damages that result to the owner from the breach of a building or construction contract. 14
The propriety of applying such measure of damages is especially clear where correction or completion would not
involve unreasonable destruction of the work done by the contractor and the cost thereof would not be grossly
disproportionate to the results to be obtained. 15 In correcting the defect, the owner is limited to correction
according to the original plans and specifications, if adequate. 16 The owner, in making repairs, is not entitled to
charge the contractor with the cost of materials more expensive than that called for in the contract, 17 or to charge
the contractor for more and different kinds of materials than those embraced in the contract, 18 and the repairs
may not result in improvements to the property in the sense that they may not be of a different and superior type
than they would have been had they been constructed as warranted. 19
A property owner, in an action for breach of contract or negligence by a construction contractor, may choose,
depending on his or her particular circumstances, to present his or her case using either or both of two methods
of measuring damages for construction defect, i.e., cost of repair and diminution of value. 20 In fact, in defectiveconstruction cases, damages may include diminution in value, cost of construction, and completion in accordance
with the contract, or loss of rentals, and depending on the circumstances, only one measure of damages may be
appropriate, or a combination of them may be required to place the injured party in as favorable a position as
though no breach had occurred. 21
Cases:
Under Texas law, proper measure of breach of contract damages for defective construction is the difference in
value of the structure in its defective state versus as planned or the cost to repair it if repair does not constitute
economic waste. U.S. ex rel. Ragghianti Foundations III, LLC v. Peter R. Brown Const., Inc., 49 F. Supp. 3d
1031 (M.D. Fla. 2014).
In a contract case involving deficient construction work, the general rule, under New York law, is that the measure
of damages is the market value of the cost to repair the faulty construction, even where the defect arising from the
breach of contract is so substantial as to render the finished building partially unusable and unsafe, the measure of
damages is the market price of completing or correcting the performance. Lenard v. Design Studio, 889 F. Supp.
2d 518 (S.D. N.Y. 2012).
Property owner was not required to offer evidence of completed repairs to property to support breach of
construction contract claim against contractor; reasonable cost of construction and completion was simply one
measure of damages. Kritikos v. Andersen, 125 So. 3d 885 (Fla. 4th DCA 2013).
In breach of contract actions involving defective performance of a construction contract, damages are measured
by the reasonable cost of repair as long as it does not involve unreasonable economic waste; if economic waste
results, the proper measure of damages is the diminution of market value. Yaffe v. Scarlett Place Residential
Condominum, Inc., 205 Md. App. 429, 45 A.3d 844 (2012).
In defective construction cases involving a number of defects, the diminished value rule may be applicable to
some and the cost rule to others. Matt Miller Co., Inc. v. Taylor-Martin Holdings, LLC, 393 S.W.3d 68 (Mo. Ct.
App. S.D. 2012).
Defendant that brought counterclaim for breach of contract in quantum meruit action was entitled to recover as
damages for breach of contract the cost of completing the work that was the subject of the contract and correcting
the defects in the plaintiff's work. Metropolitan Switch Bd. Mfg. Co., Inc. v. B & G Elec. Contractors, Div. of B
& G Industries, Inc., 96 A.D.3d 725, 946 N.Y.S.2d 178 (2d Dep't 2012).
The measure of damages for breach of implied warranty of habitability and fitness is the cost of repair, but may
also include diminished value of the property. Legacy Builders, LLC v. Andrews, 2014 WY 103, 335 P.3d 1063
(Wyo. 2014).
[END OF SUPPLEMENT]
Footnotes
Miss.Harrison v. McMillan, 828 So. 2d 756 (Miss. 2002).
1
Me.Treadwell v. J.D. Const. Co., 2007 ME 150, 938 A.2d 794 (Me. 2007).
2
3
4
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
Value rule
N.D.Curtis Const. Co., Inc. v. American Steel Span, Inc., 2005 ND 218, 707 N.W.2d 68 (N.D. 2005).
Tex.RAJ Partners, Ltd. v. Darco Const. Corp., 217 S.W.3d 638 (Tex. App. Amarillo 2006).
Neb.Jacobs v. Korst, 175 Neb. 639, 122 N.W.2d 760 (1963).
Okla.Jones v. Featherston, 1962 OK 147, 373 P.2d 16 (Okla. 1962).
Wis.DeSombre v. Bickel, 18 Wis. 2d 390, 118 N.W.2d 868 (1963).
Colo.Campbell v. Koin, 154 Colo. 425, 391 P.2d 365 (1964).
Mass.Concannon v. Galanti, 348 Mass. 71, 202 N.E.2d 236 (1964).
Wash.Odgers v. Held, 58 Wash. 2d 247, 362 P.2d 261 (1961).
Ind.James I. Barnes Const. Co. v. Washington Tp. of Starke County, 134 Ind. App. 461, 184 N.E.2d 763 (1962).
Md.Gilbert Const. Co. v. Gross, 212 Md. 402, 129 A.2d 518 (1957).
Va.Barcroft Woods, Inc. v. Francis, 201 Va. 405, 111 S.E.2d 512 (1959).
IdahoRino v. Statewide Plumbing & Heating Co., 74 Idaho 374, 262 P.2d 1003 (1953).
Mo.Hotchner v. Liebowits, 341 S.W.2d 319 (Mo. Ct. App. 1960).
Okla.Jones v. Featherston, 1962 OK 147, 373 P.2d 16 (Okla. 1962).
Me.Treadwell v. J.D. Const. Co., 2007 ME 150, 938 A.2d 794 (Me. 2007).
Conn.Naples v. Keystone Bldg. and Development Corp., 295 Conn. 214, 990 A.2d 326 (2010).
Ga.Pollman v. Swan, 289 Ga. 767, 716 S.E.2d 191 (2011).
IdahoFox v. Mountain West Elec., Inc., 137 Idaho 703, 52 P.3d 848, 48 U.C.C. Rep. Serv. 2d 505 (2002).
Cost rule
N.D.Curtis Const. Co., Inc. v. American Steel Span, Inc., 2005 ND 218, 707 N.W.2d 68 (N.D. 2005).
Ga.Pollman v. Swan, 289 Ga. 767, 716 S.E.2d 191 (2011).
Haw.Izumi v. Kwan Doo Park, 44 Haw. 123, 351 P.2d 1083 (1960).
N.Y.Schmunk v. Berkey Housing Development Corp., 2 A.D.2d 736, 152 N.Y.S.2d 357 (3d Dep't 1956).
Nev.Knier v. Azores Const. Co., 78 Nev. 20, 368 P.2d 673 (1962).
N.Y.Ciminelli v. Umland Bros., 236 A.D. 154, 258 N.Y.S. 143 (4th Dep't 1932).
Colo.Fleming v. Scott, 141 Colo. 449, 348 P.2d 701 (1960).
IowaLewis Elec. Co. v. Miller, 791 N.W.2d 691 (Iowa 2010).
End of Document
128.Delay in performance, 25 C.J.S. Damages 128

Damages
(1) In General
128. Delay in performance
The loss resulting from the defendant's wrongful delay in the performance of a contract is the measure
of damage therefor, which, according to the circumstances, may be the rental value or value of the use of
the property, or interest on the value of the property, or the loss resulting from increased material and
labor costs.
The loss resulting from defendant's wrongful delay in the performance of a contract is the proper measure of
damages therefor. 1 The difference in cost between the accepted and rejected bids for the work is not a proper
measure of damages sustained because of delay in performance. 2 Delay occasioned by the rightful conduct of
the defendant, 3 or by the default of the plaintiff, 4 or by the default of both parties, 5 cannot be made a basis
of recovery.
Rental value or value of use.

Ordinarily, under a building and construction contract, in the absence of a stipulation in the contract, 6 the rental
value or value of the use of the property, 7 less the expenses of maintaining the building, 8 will be resorted to as the
measure of damages unless it clearly appears that the owner could not, during the delay, have rented the building, 9
or the building was constructed for sale only and was sold for the price originally fixed although at a later date. 10
The rental value or value of the use of the property is general damages that, as the direct and inevitable result of
failure to complete the building within the time specified, are within the contemplation of the parties at the time
of making the contract. 11 Special damages may be recovered if they were within the contemplation of the parties
when the contract was made. 12 In a proper case, a recovery as special damages of rentals actually paid for other
premises may be allowed, 13 particularly where the owner, to the knowledge of the contractor, was constructing
the building for the purpose of saving such rentals. 14
128.Delay in performance, 25 C.J.S. Damages 128
Interest on value.
Where, by reason of the defendant's delay in performing his or her contract, the plaintiff's property has been
compelled to remain idle, interest on the value of the property may afford a proper measure of damages. 15
Cases:
Judgment on jury verdict that awarded home owner $9662.76 for the cost of delay caused by home remodeling
company was not excessive; home owner testified that she financed the project through a home equity line of
credit, and that the delay in finishing the project prevented her from converting the home equity line of credit into
a 30 year conventional home mortgage. Fry v. Blauvelt, 818 N.W.2d 123 (Iowa 2012).
[END OF SUPPLEMENT]
Footnotes
U.S.E. C. Ernst, Inc. v. Koppers Co., Inc., 626 F.2d 324, 6 Fed. R. Evid. Serv. 763 (3d Cir. 1980).
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
IdahoOlson v. Quality-Pak Co., 93 Idaho 607, 469 P.2d 45 (1970).

Mo.Herbert & Brooner Const. Co. v. Golden, 499 S.W.2d 541 (Mo. Ct. App. 1973).
Pa.Exton Drive-In, Inc. v. Home Indem. Co., 436 Pa. 480, 261 A.2d 319 (1969).
U.S.Kolker v. U.S., 40 F. Supp. 972 (D. Md. 1941).
Mich.Wisconsin Bridge & Iron Co. v. City of Alpena, 238 Mich. 164, 213 N.W. 93, 51 A.L.R. 1209 (1927).
U.S.Board of Chosen Freeholders of Cumberland County v. J.V. Paxson Co., 196 F. 156 (D.N.J. 1912), aff'd, 201
F. 656 (C.C.A. 3d Cir. 1912).
U.S.Firestone Tire & Rubber Co. v. Riverside Bridge Co., 247 F. 625 (C.C.A. 6th Cir. 1918).
U.S.Firestone Tire & Rubber Co. v. Riverside Bridge Co., 247 F. 625 (C.C.A. 6th Cir. 1918).
N.Y.General Supply & Construction Co. v. Goelet, 241 N.Y. 28, 148 N.E. 778 (1925).
Minn.Northern Petrochemical Co. v. Thorsen & Thorshov, Inc., 297 Minn. 118, 211 N.W.2d 159 (1973).
Or.Gregory v. Weber, 51 Or. App. 547, 626 P.2d 392 (1981).
Va.Roanoke Hospital Ass'n v. Doyle & Russell, Inc., 215 Va. 796, 214 S.E.2d 155 (1975).
Mont.Leigland v. Rundle Land & Abstract Co., 64 Mont. 154, 208 P. 1075 (1922).
Or.Stubblefield v. Montgomery Ward & Co., 163 Or. 432, 96 P.2d 774, 125 A.L.R. 1228 (1939).
U.S.New Amsterdam Cas. Co. v. Mitchell, 325 F.2d 474 (5th Cir. 1963).
Minn.Dickinson & Gillespie v. Kirkwood, 204 Minn. 401, 283 N.W. 725 (1939).
Minn.Dickinson & Gillespie v. Kirkwood, 204 Minn. 401, 283 N.W. 725 (1939).
Miss.Bevis Const. Co. v. Kittrell, 243 Miss. 549, 139 So. 2d 375 (1962).
Conn.Mazzotta v. Bornstein, 104 Conn. 430, 133 A. 677 (1926).
Or.Stubblefield v. Montgomery Ward & Co., 163 Or. 432, 96 P.2d 774, 125 A.L.R. 1228 (1939).
End of Document
129.Prevention of performance, 25 C.J.S. Damages 129

Damages
(1) In General
129. Prevention of performance
Where, without fault on his or her part, one party to a contract who is willing to perform it is prevented
from doing so by the other party, the primary measure of damages is the amount of his or her loss, which
may consist of his or her reasonable outlay or expenditure toward performance, and the anticipated profits
that he or she would have derived from performance.
Where, without fault on his or her part, one party to a contract who is willing to perform it is, by the other party,
prevented from doing so, he or she is entitled to be placed in as good a position as he or she would have been
in had the contract been performed. 1 The primary measure of damages is the amount of his or her loss 2 or, as
it has been otherwise expressed, the value of his or her contract that may consist of two distinct items, 3 the one
being the party's reasonable outlay or expenditure toward performance, 4 deducting, however, in computing the
damages, the value of materials on hand, 5 and the other the anticipated profits that would have been derived from
performance. 6 When a plaintiff sues on a contract to recover the amount he or she would have received for the
full performance prevented by the defendant's breach, he or she seeks in effect to recover as damages the profit
from performance of the contract that profit the defendant's breach prevented him or her from earning. 7
The plaintiff is entitled to recover the amount that he or she has on the faith of the contract fairly and in good faith
laid out and expended, 8 and the loss on material on hand at the time the defendant refused to permit him or her
to perform his or her agreement, 9 together with a fair allowance for his or her own time and services. 10 Costs
of changes or improvements made on plaintiff's land ordinarily are not recoverable, but expenses of altering his
or her building for the purpose of performing the contract and which do not result in any value or benefit to him
or her may be recovered. 11 Profits may be too remote and speculative to be capable of the clear and direct proof
required by law, and in such a case, the plaintiff is confined to his or her loss of actual outlay and expense. 12
Failure to prove profits, however, will not prevent a recovery for outlay and expense. 13
Unearned profits can sometimes be used as the measure of general damages for breach of contract, such as when
the breaching party's conduct prevented the other side from undertaking performance. 14
Performance partly completed according to contract.

Where performance has been begun, the plaintiff is entitled to the contract price for the work done under and
according to the contract and to damages for being prevented from completing the contract. 15 Where performance
under the contract has advanced to a point where it may be determined from the contract what payment the plaintiff
is entitled to for the work already done, his or her measure of recovery is properly the contract price for the part
of the contract that has been performed together with the profits that he or she has lost from being prevented from
performing the remainder of the contract. 16 In the application of this rule, the measure of damages for the work
done under the contract may be fixed by taking the proportion of the entire price that the fair cost of the work
done bears to the fair cost of the whole work. 17 Another method of measurement that has been adopted is to take
the full contract price less the cost of completion of the contract 18 and payments already made. 19 Substantial
damages may not be recovered where the cost of completion is in excess of the unpaid contract balance. 20
Reasonable value of work and materials furnished.

Where there has been a prevention of performance, the plaintiff is entitled to recover the reasonable value of the
work that he or she has done under the contract together with the profits that he or she has lost through being
prevented from performing the remainder of the contract. 21 However, where the party injured by prevention of
performance elects to rescind the contract, he or she cannot recover on the contract either for outlay or for loss of
profits, but his or her recovery is on a quantum meruit for the value of his or her services actually performed. 22
While there is authority that where the action is on the contract, the plaintiff is not entitled to recover the reasonable
value of the work performed except as determined by the contract price, 23 there is also authority that the plaintiff
is not limited to the contract price in recovering on quantum meruit for work done where further performance is
prevented by the defendant. 24 Where tools and materials brought to the premises by the plaintiff are accepted
and retained by the defendant, it is proper to take them into account as a part of the plaintiff's expenditures on
which the damages caused by the defendants' breach of the contract are to be computed. 25
Recovery of installments paid.

Where a contract is for the complete construction of a building for an entire price, payable in installments as
the work progresses, a willful refusal by the contractor to complete the building entitles the owner to a return of
the installments paid, and interest may be allowed on such installments from the time when by the terms of the
contract the building should have been completely finished. 26 This is true although there has been a delay on the
part of the owner in seeking a recovery of such payments. 27
Footnotes
Colo.Comfort Homes, Inc. v. Peterson, 37 Colo. App. 516, 549 P.2d 1087 (App. 1976).
1
Fla.Kennedy v. George Cully Real Estate, Inc., 336 So. 2d 484 (Fla. Dist. Ct. App. 3d Dist. 1976).
Tex.Farris v. Smith Erectors, Inc., 516 S.W.2d 281 (Tex. Civ. App. Houston 1st Dist. 1974).
Nonperformance of contract excused by prevention of performance by adverse party, see C.J.S., Contracts 703 to
707.
5
6
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Cal.Navarro v. Jeffries, 181 Cal. App. 2d 454, 5 Cal. Rptr. 435 (2d Dist. 1960).
Del.Chrysler Corp. v. Quimby, 51 Del. 264, 144 A.2d 123 (1958), opinion adhered to on reh'g, 51 Del. 264, 144
A.2d 885 (1958).
Md.Eastern Woodworks v. Vance, 206 Md. 419, 112 A.2d 231 (1955).
U.S.U.S. v. Behan, 110 U.S. 338, 4 S. Ct. 81, 28 L. Ed. 168 (1884).
N.Y.Clement S. Crystal Inc. v. Denberg, 237 N.Y.S.2d 102 (Sup 1962).
U.S.U.S. v. Spearin, 54 Ct. Cl. 187, 248 U.S. 132, 39 S. Ct. 59, 63 L. Ed. 166 (1918).
Cal.B. C. Richter Contracting Co. v. Continental Cas. Co., 230 Cal. App. 2d 491, 41 Cal. Rptr. 98 (3d Dist. 1964).
N.Y.Clement S. Crystal Inc. v. Denberg, 237 N.Y.S.2d 102 (Sup 1962).
Ky.Ellis v. Knight, 382 S.W.2d 391 (Ky. 1964).
Wash.Longenecker v. Brommer, 59 Wash. 2d 552, 368 P.2d 900 (1962).
Ala.Whiting v. Dodd, 39 Ala. App. 80, 94 So. 2d 411 (1957).
OhioAllen, Heaton & McDonald v. Castle Farm Amusement Co., 151 Ohio St. 522, 39 Ohio Op. 330, 86 N.E.2d
782, 17 A.L.R.2d 963 (1949).
U.S.Michael Del Balso, Inc., v. Carozza, 136 F.2d 280 (App. D.C. 1943).
Cal.Carrier v. Piggly Wiggly of San Francisco, 11 Cal. App. 2d 180, 53 P.2d 400 (1st Dist. 1936).
Kan.Taylor v. Spencer, 75 Kan. 152, 88 P. 544 (1907).
Mich.Tross v. H.E.G. Clarke Co., 274 Mich. 263, 264 N.W. 365 (1936).
N.D.Welch Mfg. Co. v. Herbst Department Store, 53 N.D. 42, 204 N.W. 849 (1925).
Del.United Aircraft Corp. v. Paul Hardeman, Inc., 58 Del. 66, 204 A.2d 396 (Super. Ct. 1964).
102 P.3d 257 (2004).
Ky.Ellis v. Knight, 382 S.W.2d 391 (Ky. 1964).
Tex.Kirkwood & Morgan, Inc. v. Roach, 360 S.W.2d 173 (Tex. Civ. App. San Antonio 1962), writ refused n.r.e.,
(Dec. 5, 1962).
Conn.Young v. Shetucket Coal & Wood Co., 97 Conn. 92, 115 A. 672 (1921).
N.Y.Weiner v. H. Jaeckel & Sons, 179 N.Y.S. 629 (App. Term 1919).
Conn.Young v. Shetucket Coal & Wood Co., 97 Conn. 92, 115 A. 672 (1921).
N.J.Wilkins v. Bailey Engineering Co., 21 N.J. Super. 227, 91 A.2d 98 (App. Div. 1952).
Wash.Davis v. Thurston County, 119 Wash. 414, 205 P. 840 (1922).
U.S.Partridge v. Norair Engineering Corp., 301 F.2d 247 (D.C. Cir. 1962).
Mich.Kolton v. Nassar, 358 Mich. 154, 99 N.W.2d 362 (1959).
Tex.Kleiner v. Eubank, 358 S.W.2d 902 (Tex. Civ. App. Austin 1962), writ refused n.r.e., (Nov. 28, 1962).
Conn.Satta v. Buono, 127 Conn. 75, 14 A.2d 718 (1940).
Tex.Comeaux v. Mann, 244 S.W.2d 274 (Tex. Civ. App. Austin 1951), writ dismissed.
Mich.Kolton v. Nassar, 358 Mich. 154, 99 N.W.2d 362 (1959).
N.Y.Kenny v. Knickerbocker Bread & Yeast Co., 136 A.D. 568, 121 N.Y.S. 59 (1st Dep't 1910).
Tex.Dankowski v. Cremona, 352 S.W.2d 334 (Tex. Civ. App. Eastland 1961), writ refused n.r.e., (Mar. 28, 1962).
Ky.Hoefflin v. Wilkerson, 184 Ky. 484, 210 S.W. 667 (1919).
Mo.Kansas City Structural Steel Co. v. Athletic Bldg. Ass'n, 297 Mo. 615, 249 S.W. 922 (1923).
Performance prevented by adverse party as ground for rescission, see C.J.S., Contracts 637.
Kan.McGrew v. Ide Estate Inv. Co., 106 Kan. 348, 187 P. 887 (1920).
Cal.Boomer v. Muir, 24 P.2d 570 (Cal. App. 1st Dist. 1933), certified question accepted and appeal dismissed.
U.S.Guerini Stone Co. v. P.J. Carlin Const. Co., 248 U.S. 334, 39 S. Ct. 102, 63 L. Ed. 275 (1919).
26
27
U.S.U.S. v. U.S. Fidelity & Guaranty Co., 236 U.S. 512, 35 S. Ct. 298, 59 L. Ed. 696 (1915).
U.S.U.S. v. U.S. Fidelity & Guaranty Co., 236 U.S. 512, 35 S. Ct. 298, 59 L. Ed. 696 (1915).
End of Document
130.Work, labor, or services, 25 C.J.S. Damages 130

Damages
(2) Particular Classes of Contracts
130. Work, labor, or services
West's Key Number Digest, Damages 120, 120(2), 124, 124(2)
The measure of damages for breach of a contract for work, labor, or services is the actual loss sustained
as a consequence.
The damages for failure to furnish labor or services in accordance with a contract therefor are measured by the
actual loss sustained as a natural and proximate consequence, 1 which, when the contract is to perform a specific
piece of work or service, is ordinarily the reasonable cost of securing performance by other means, 2 or, where
the consideration is not executed, the difference between the contract price and such cost. 3
Where a contract involves the furnishing of services by the plaintiff, and performance is prevented by the
defendant, although the plaintiff is at all times ready and willing to perform, the measure of damages is prima facie
the consideration agreed to be paid 4 although it may be shown in mitigation that the plaintiff might have secured
other employment for his or her services during the contract period. 5 From this it appears that the true measure
of damages is not in such cases the contract price but the amount of the actual loss. 6 Where the contract is entire,
and after part performance the plaintiff has been deprived of its benefits by the wrongful acts of the defendant, he
or she is entitled to the fair market value of the services rendered. 7 Where performance on the part of the plaintiff
would have entailed expense to him or her, he or she is not entitled to the contract price without any deduction
being made for the expense of performance. 8 A contractor is not entitled to recover for services that he or she
was prevented from performing where he or she recovered the full expected profits. 9
The reasonable value of services rendered is the measure of damages for a breach of a contract to pay for services
where no agreement has been made as to compensation. 10
Footnotes
130.Work, labor, or services, 25 C.J.S. Damages 130
3
4
5
6
7
8
9
10
Ga.Classic Restorations, Inc. v. Bean, 155 Ga. App. 694, 272 S.E.2d 557 (1980).
Ill.B & C Elec., Inc. v. Pullman Bank and Trust Co., 96 Ill. App. 3d 321, 51 Ill. Dec. 698, 421 N.E.2d 206 (1st
Dist. 1981).
Tex.Edmonds v. Metreco, Ltd., 624 S.W.2d 380 (Tex. App. Fort Worth 1981).
Colo.Bell v. McCann, 535 P.2d 233 (Colo. App. 1975).
Ga.Stowers v. Hall, 159 Ga. App. 501, 283 S.E.2d 714 (1981).
Minn.Gess v. Sill, 312 Minn. 288, 251 N.W.2d 650 (1977).
Md.Middendorf, Williams & Co. v. Alexander Milburn Co., 137 Md. 583, 113 A. 348 (1921).
S.D.Northwestern Engineering Co. v. Ellerman, 71 S.D. 236, 23 N.W.2d 273 (1946).
Ga.Kerr v. Du Pree, 35 Ga. App. 122, 132 S.E. 393 (1926).
N.Y.Brockhurst v. Ryan, 2 Misc. 2d 747, 146 N.Y.S.2d 386 (Sup 1955).
R.I.Norm Co. v. Cumberland Coal Co., 53 R.I. 228, 165 A. 592 (1933).
N.Y.Dunn v. Allen, 59 A.D. 561, 67 N.Y.S. 218 (4th Dep't 1900).
Ark.Hocott v. Dougan, 182 Ark. 84, 29 S.W.2d 1088 (1930).
Ind.Township of Haddon School of Sullivan County v. Willis, 209 Ind. 356, 199 N.E. 251 (1936).
Va.Paddock v. Mason, 187 Va. 809, 48 S.E.2d 199 (1948).
IowaMurphy v. Williamson, 180 Iowa 291, 163 N.W. 211 (1917).
U.S.Partridge v. Norair Engineering Corp., 301 F.2d 247 (D.C. Cir. 1962).
Ga.Turner v. Houser, 110 Ga. App. 379, 138 S.E.2d 619 (1964).
Tex.Ingleside Mercantile Co. v. Vivrett, 66 S.W.2d 372 (Tex. Civ. App. San Antonio 1933).
OhioBolton v. Marshall, 153 Ohio St. 250, 41 Ohio Op. 270, 91 N.E.2d 508 (1950) (overruled on other grounds by,
Fox & Associates Co., L.P.A. v. Purdon, 44 Ohio St. 3d 69, 541 N.E.2d 448 (1989)).
Tex.Vetter v. Nicholson, 106 S.W.2d 1064 (Tex. Civ. App. Austin 1937).
End of Document
131.Board, lodging, or support, 25 C.J.S. Damages 131

Damages
131. Board, lodging, or support
The measure of damages for breach of a contract for board or lodging, or to support, is the loss sustained.
In cases of contracts for board or lodging where the breach is by the boarder or lodger, the measure of damages is
not the contract price but the actual loss sustained, 1 which under ordinary circumstances is the amount of profits
that would have been derived by a carrying out of the contract. 2 Reasonable expenses incurred in making the
property suitable for occupancy by the lodger, other than the expenditure of money that increased or enhanced the
reasonable value of the property, may be recovered. 3 However, where the contract provides that no deduction
shall be made in case of absence, the contract price may be recovered during such period or until the place of the
defaulting boarder is supplied by another paying the same or a higher price. 4
Where damages are claimed for a breach of contract of support during life, the measure thereof must necessarily
depend on the terms of the contract and the relative situations of the parties. 5 However, if a contract by one
person to support another for life is entirely broken, the person entitled to support may recover as damages the
full value of the contract, 6 which damages are not measured by the consideration that is expressed in the contract
but by the value of the services to be rendered. 7 The measure of such damages is a sum of money that will be
reasonably sufficient to maintain the plaintiff in his or her existing situation in life for the balance of his or her
life, in accordance with the recognized tables of mortality, 8 together with burial expenses, if such are provided
for in the contract. 9
Footnotes
Ky.Bootes v. Gwinner's Adm'r, 251 Ky. 322, 64 S.W.2d 904 (1933).
1
Tex.Peirce v. Peacock Military College, 220 S.W. 191 (Tex. Civ. App. San Antonio 1920).
2
Va.Glasgow v. Peatross, 201 Va. 43, 109 S.E.2d 135 (1959).
131.Board, lodging, or support, 25 C.J.S. Damages 131
3
4
5
6
7
8
Va.Glasgow v. Peatross, 201 Va. 43, 109 S.E.2d 135 (1959).

Tex.Peirce v. Peacock Military College, 220 S.W. 191 (Tex. Civ. App. San Antonio 1920).
Ind.Baughan v. Brown, 122 Ind. 115, 23 N.E. 695 (1890).
N.Y.Grosso v. Santori, 246 A.D. 755, 283 N.Y.S. 912 (2d Dep't 1935).
Mass.Soderlund v. Helman, 215 Mass. 542, 102 N.E. 899 (1913).
N.C.Norwood v. Carter, 242 N.C. 152, 87 S.E.2d 2, 50 A.L.R.2d 608 (1955).
Conn.McGill v. Malo, 23 Conn. Supp. 447, 184 A.2d 517 (Super. Ct. 1962).
Ky.Staiar's Adm'r v. Netter, 198 Ky. 788, 250 S.W. 89 (1923).
N.M.Van Sickle v. Keck, 42 N.M. 450, 81 P.2d 707 (1938).
N.M.Van Sickle v. Keck, 42 N.M. 450, 81 P.2d 707 (1938).
End of Document
132.Division of profits, losses, or expenses, 25 C.J.S. Damages 132

Damages
132. Division of profits, losses, or expenses
The measure of damages for breach of an agreement under which the parties are to share profits is the
amount of profits that the plaintiff would have received under the contract if it had been carried out.
The measure of damages for breach of an agreement under which the parties are to share profits is ordinarily the
amount of profits that the plaintiff would have received under the contract if it had been carried out. 1 Thus, on
breach of an agreement to share the proceeds of a venture, plaintiff's damages are measured by the value of that
which would have been his or her share. 2 In estimating profits, a possible increase or decrease in the business
may be taken into consideration. 3
Footnotes
U.S.Lee v. Joseph E. Seagram & Sons, Inc., 552 F.2d 447 (2d Cir. 1977).
1
2
3
Colo.Advance Press Corp. v. Chester, 511 P.2d 932 (Colo. App. 1973).
Fla.Innkeepers Intern., Inc. v. McCoy Motels, Ltd., 324 So. 2d 676 (Fla. Dist. Ct. App. 4th Dist. 1975).
N.Y.Weinrauch v. Kashkin, 64 A.D.2d 897, 407 N.Y.S.2d 885 (2d Dep't 1978).
Colo.Riedel v. Brent, 149 Colo. 194, 368 P.2d 771 (1962).
Mich.Murphy v. Craig, 76 Mich. 155, 42 N.W. 1097 (1889).
Mo.Goldman v. Wolff, 6 Mo. App. 490, 1879 WL 7844 (1879).
End of Document
133.Granting special privileges or restraining competition, 25 C.J.S. Damages 133

Damages
133. Granting special privileges or restraining competition
The measure of damages for breach of a contract granting special privileges or restraining competition is
the loss of profits sustained by the injured person.
Where a contract granting a special privilege or restraining competition is broken by the party granting such
privilege, the measure of damages is in general the loss of profits sustained by the other party, 1 together with
such other losses as may reasonably be supposed to have been within the contemplation of the parties at the
time the contract was made. 2 The measure of damages for the breach of an anticompetition clause is not the
amount of profits made by the defendant although the profits realized by the defendant as a result of a breach
of an anticompetition clause may be considered by the trier-of-fact if shown to correspond with the loss of the
plaintiff. 3 The measure of damages in an action for the breach of a noncompetition agreement is usually difficult
of exact computation, but an injured party will not be precluded from recovering because of that fact. 4
Injunctive relief.
Where plaintiff's damages for breach of a contract restraining competition are not ascertainable, injunctive relief
may be appropriate. 5
Cases:
The amount that a joint venture 45 percent owned by a prospective investor in a memory chip technology should
have paid in royalties for the joint venture's use of the technology, calculated by the joint venture's profits from its
sales using the technology, was not a proper measure of damages for prospective investor's breach of nondisclosure
agreement in disclosing the technology to the joint venture for development, since the amount that the joint venture
133.Granting special privileges or restraining competition, 25 C.J.S. Damages 133
should have paid in royalties did not establish a basis for estimating what the prospective investor would have
paid for a license to use the technology. Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc.,
225 Cal. App. 4th 786, 170 Cal. Rptr. 3d 581 (6th Dist. 2014).
When a noncompetition agreement is breached, the nonbreaching party is entitled to the benefit of the bargain:
to put the party injured in the same position, as far as money can do it, as he would have been if the contract had
been performed. Preferred Systems Solutions, Inc. v. GP Consulting, LLC, 732 S.E.2d 676 (Va. 2012).
[END OF SUPPLEMENT]
Footnotes
1
2
3
4
5
UtahTruGreen Companies, L.L.C. v. Mower Brothers, Inc., 2008 UT 81, 199 P.3d 929 (Utah 2008).
La.Vidalat v. City of New Orleans, 43 La. Ann. 1121, 10 So. 175 (1891).
N.Y.Wakeman v. Wheeler & Wilson Mfg. Co., 101 N.Y. 205, 4 N.E. 264 (1886).
UtahTruGreen Companies, L.L.C. v. Mower Brothers, Inc., 2008 UT 81, 199 P.3d 929 (Utah 2008).
Use of client list to solicit customers
U.S.Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Hagerty, 808 F. Supp. 1555 (S.D. Fla. 1992), aff'd, 2 F.3d 405
(11th Cir. 1993).
End of Document
134.Payment or loan of money, 25 C.J.S. Damages 134

Damages
134. Payment or loan of money
Where a contract to pay a specific sum of money is broken, the damages are measured by the sum stipulated
to be paid, and the damages for delay in the payment of money is interest thereon. In the absence of special
circumstances, the breach of a contract to lend money will not impose a liability in damages.
Where a contract to pay a specific sum of money is broken, the damages are measured by the sum stipulated to be
paid 1 except in a case where the obligation to pay money is special and has reference to objects other than the mere
discharge of a debt, in which case special damages may be recovered according to the actual injury. 2 Likewise,
on a covenant for the payment of a note, the measure of damages is the amount thereof. 3 In some jurisdictions,
statutes provide that the detriment caused by the breach of an obligation to pay money only is deemed to be
the amount due by the terms of the obligation with interest. 4 Such statutes are intended to codify the commonlaw rule of damages for breach of a contract to pay a liquidated sum. 5 The doctrine of acceleration of damages
following an anticipatory breach does not apply to unilateral obligations for the payment of money in the future. 6
Delay in payment.
The measure of damages for delay in the payment of money is interest thereon at the legal 7 rate during the period
of detention or at the agreed nonusurious 8 rate during the period of detention. However, where the action is for
damages for breach of contract, and not a suit on a note or other like agreement to pay money, the plaintiff is
entitled to reasonable damages occasioned by the delay, and his or her recovery is not limited to interest at the
legal rate. 9
Payment of debt of another.
Where the breach of contract consists of a failure to pay the debt of another, the measure of damages has usually
been considered the amount lost in consequence of the breach, 10 and this rule is especially applicable where the
agreed payment is not of a specific debt but involves property rights that are or may be endangered by a breach. 11
While damages for breach of a promise to pay another's debt may include consequential losses in addition to
the amount of the debt, such losses are allowed only when special facts exist that show that the parties would
reasonably contemplate them if the promise should be broken. 12
Installment contracts.
The measure of damages for the breach or repudiation of a contract to pay money in installments, before the
whole amount called for by its terms is due, is the present value of the contract, 13 and it is error to award the
total amount of the unpaid installments with interest on those that are due, without any abatement of the amount
of those that are not due. 14 However, where there is a total breach of a contract to pay money in installments,
recovery for the entire injury is proper. 15
Loan of money.
Ordinarily, the breach of a contract to lend money will not impose a liability in damages 16 beyond nominal
damages, 17 particularly where the loan is to be repaid on demand, 18 since no injury will result if the same
amount may be borrowed from another on the same terms. 19 The presence of special circumstances that are in
the contemplation of the parties may impose a liability, in which case the damages will be measured by the actual
loss sustained, 20 as by the expense of negotiating another loan, 21 and the amount of increased interest that the
borrower has to pay 22 within the highest rate authorized by law. 23 The measure of damages for the breach of
a contract to lend money is the difference in the legal and contractual rate of interest if the latter was less than
the legal rate. 24
Footnotes
Cal.U. S. Industries, Inc. v. Edmond J. Vadnais, General Contractor, 270 Cal. App. 2d 520, 76 Cal. Rptr. 44 (2d
1
2
3
4
5
6
7
8
9
Dist. 1969).
Kan.Steel v. Eagle, 207 Kan. 146, 483 P.2d 1063 (1971).
Okla.Smith v. Robinson, 1979 OK 57, 594 P.2d 364 (Okla. 1979).
UtahCox Corp. v. Dugger, 583 P.2d 96 (Utah 1978).
U.S.Hasquet v. Big West Oil Co., 29 F.2d 78 (C.C.A. 9th Cir. 1928).
U.S.Curran v. Smith, 149 F. 945 (C.C.A. 3d Cir. 1906).
Ga.Stokes v. Robertson, 143 Ga. 721, 85 S.E. 895 (1915).
Okla.Ray F. Fischer Co. v. Loeffler-Green Supply Co., 1955 OK 234, 289 P.2d 139 (Okla. 1955).
Cal.Weaver v. Bank of America Nat. Trust & Sav. Ass'n, 59 Cal. 2d 428, 30 Cal. Rptr. 4, 380 P.2d 644 (1963).
U.S.Local 1574, Intern. Ass'n of Machinists and Aerospace Workers v. Gulf & Western Mfg. Co. (Eastern Group),
417 F. Supp. 191 (D. Me. 1976).
Colo.Von Riesen v. Greeley Finance Co., 142 Colo. 210, 350 P.2d 340 (1960).
N.H.Smith v. Wetherell, 89 N.H. 106, 193 A. 216 (1937), aff'd, 89 N.H. 106, 194 A. 129 (1937).
Ky.Clark v. Life & Cas. Ins. Co., 245 Ky. 579, 53 S.W.2d 968, 84 A.L.R. 1420 (1932).
Mo.Wentzel v. Lake Lotawana Development Co., 226 Mo. App. 960, 48 S.W.2d 185 (1932).
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Cal.Katz v. Haskell, 196 Cal. App. 2d 144, 16 Cal. Rptr. 453 (2d Dist. 1961).
N.M.Charles Ilfeld Co. v. Nickson, 45 N.M. 18, 107 P.2d 1047 (1940).
Ind.Lowe v. Turpie, 147 Ind. 652, 44 N.E. 25 (1896).
N.H.Smith v. Wetherell, 89 N.H. 106, 193 A. 216 (1937), aff'd, 89 N.H. 106, 194 A. 129 (1937).
Wash.Yarno v. Hedlund Box & Lumber Co., 129 Wash. 457, 225 P. 659 (1924), modified on other grounds, 129
Wash. 457, 227 P. 518 (1924).
Ala.Scientific American Compiling Department v. Gillespie, 4 Ala. App. 590, 58 So. 756 (1912).
N.H.Hoyt v. Horst, 105 N.H. 380, 201 A.2d 118 (1964).
Conn.Valente v. Affinito, 118 Conn. 581, 173 A. 235 (1934).
Ga.W.A. Ward Realty & Investment Co. v. Richardson, 48 Ga. App. 439, 172 S.E. 758 (1934).
N.Y.Vineyard v. Martin, 29 N.Y.S.2d 935 (Sup 1941).
N.Y.Bond Street Knitters v. Peninsula Nat. Bank, 266 A.D. 503, 42 N.Y.S.2d 744 (1st Dep't 1943).
N.Y.Bradford, E. & C.R. Co. v. New York, L.E. & W.R. Co., 123 N.Y. 316, 25 N.E. 499 (1890).
Ga.Anderson v. Hilton & Dodge Lumber Co., 121 Ga. 688, 49 S.E. 725 (1905).
Ga.Albany Federal Sav. & Loan Ass'n v. Henderson, 198 Ga. 116, 31 S.E.2d 20 (1944).
N.Y.Zelazny v. Pilgrim Funding Corp., 41 Misc. 2d 176, 244 N.Y.S.2d 810 (Dist. Ct. 1963).
IowaHixson v. First Nat. Bank, 198 Iowa 942, 200 N.W. 710 (1924).
Mo.Fischman v. Schultz, 55 S.W.2d 313 (Mo. Ct. App. 1932).
U.S.Archer-Daniels-Midland Co. v. Paull, 293 F.2d 389 (8th Cir. 1961).
Ind.Doddridge v. American Trust & Sav. Bank, 98 Ind. App. 334, 189 N.E. 165 (1934).
Mo.Fischman v. Schultz, 55 S.W.2d 313 (Mo. Ct. App. 1932).
OhioWeissenberger v. Central Acceptance Corp., 64 Ohio App. 398, 18 Ohio Op. 168, 31 Ohio L. Abs. 357, 28
N.E.2d 794 (1st Dist. Hamilton County 1940).
N.Y.Eaton v. Danziger, 138 Misc. 290, 246 N.Y.S. 98 (App. Term 1930).
End of Document
135.Payment or delivery of property, 25 C.J.S. Damages 135

Damages
135. Payment or delivery of property
The measure of damages for breach of a contract to pay a fixed sum in a particular commodity or specific
articles of property is the sum stated, but, where the contract is to pay specific property, the measure of
damages is the value of the property at the time of the breach.
The measure of damages for breach of a contract to pay a fixed sum in a particular commodity or specific articles
of property is the sum stated, and the value of the commodity at the time of the breach is not material. 1 Where,
however, the contract is not to pay a sum stated in property but is to pay specific property, the measure of damages
is the value of the property at the time of the breach, 2 and this is true although the parties to the contract for the
purpose of determining the quantity to be delivered have placed a price on it. 3 Likewise, the measure of damages
for the failure to deliver commodities in accordance with the terms of a contract is ordinarily taken to be the value
of such commodity at the time of the breach of the contract. 4
Delivery or assignment of note or mortgage.

Where the contract is to deliver notes, the measure of damages for a breach is, in the absence of any further proof
of the value of the notes, their face value with interest according to their tenor at the time of the trial. 5 Where
an agreement is to assign a mortgage of a specified amount, and it is not shown that any personal obligation for
the amount supposed to be secured by the mortgage was considered by the parties, the measure of damages for a
failure to perform is the amount of the mortgage. 6 In ascertaining the value of a mortgage in determining damages
for breach of an option to purchase a mortgage, no hard or fast rule exists, but all reasonable factors should be
considered, and it then becomes a matter of the exercise of reasonable judgment. 7
Failure to deliver marketable goods.
135.Payment or delivery of property, 25 C.J.S. Damages 135
The measure of damages for the failure to deliver marketable goods is the difference between the value of the
goods at the time set for delivery and the contract price. 8
Footnotes
Pa.Pantano v. Zamer Motor Sales Co., 170 Pa. Super. 317, 85 A.2d 681 (1952).
1
U.S.Kaufman v. Diversified Industries, Inc., 460 F.2d 1331, 10 U.C.C. Rep. Serv. 1085 (2d Cir. 1972).
2
3
4
5
6
7
Colo.Medema Homes, Inc. v. Lynn, 647 P.2d 664 (Colo. 1982).

Tex.Cooper v. Kruse-Reed, Inc., 554 S.W.2d 45, 22 U.C.C. Rep. Serv. 683 (Tex. Civ. App. Amarillo 1977).
Ark.Brace v. Oil Fields Corp., 173 Ark. 1128, 293 S.W. 1041 (1927).
Ga.Goldstein v. Ipswich Hosiery Co., 104 Ga. App. 500, 122 S.E.2d 339 (1961).
Mich.Sobel v. Steelcraft Piston Ring Sales, 294 Mich. 211, 292 N.W. 863 (1940).
Ala.Kennedy v. Hudson, 224 Ala. 17, 138 So. 282 (1931).
Mass.Garsson v. American Diesel Engine Corp., 310 Mass. 618, 39 N.E.2d 566 (1942).
Tex.Allied Bldg. Credits, Inc. v. Grogan Builders Supply Co., 365 S.W.2d 692 (Tex. Civ. App. Houston 1963), writ
refused n.r.e., (June 5, 1963).
Wash.Wilson v. Clark, 63 Wash. 136, 114 P. 916 (1911).
Second mortgage
N.Y.Lent v. Eidt, 263 A.D. 73, 31 N.Y.S.2d 677 (1st Dep't 1941), judgment aff'd, 288 N.Y. 603, 42 N.E.2d 607
(1942).
Tex.Miga v. Jensen, 96 S.W.3d 207 (Tex. 2002).
End of Document
136.Betterment or improvement of land, 25 C.J.S. Damages 136

Damages
136. Betterment or improvement of land
The measure of damages for breach of a contract, the performance of which would result in the betterment
or improvement of land, may be the difference in the rental value of the land, the difference in the value
of the land, or the cost of making the improvement.
The measure of damages for breach of a contract, the performance of which would result in the betterment or
improvement of land, may be the difference in the rental value of the land with and without performance of the
contract, 1 or, according to other authorities, the difference in the value. 2 In a proper case, the measure of damages
may be the cost or expense of making the improvements. 3
Where the contract has to do with defendant's carrying on of a business on the premises involved, the measure
of damages for a breach where the business is not abandoned is the difference between the value of the going
business with the burden imposed on it by the breach of contract and its value freed from such burden. 4 In case
the enterprise or business is abandoned, if the breach of contract is such as to justify such abandonment, the
measure of damages is not less than the actual expense and loss incurred on the face of the contract. 5 Where the
abandonment is not justified, the recovery should be limited to the additional expense or loss, if any, consequent
on the default incurred in the prosecution of the enterprise so far as it had gone. 6
Footnotes
Cal.Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co., 66 Cal. App. 3d 101, 135 Cal. Rptr. 802
1
2
3
4
(4th Dist. 1977).

W.Va.Hurxthal v. St. Lawrence Boom & Mfg. Co., 65 W. Va. 346, 64 S.E. 355 (1909).
Tex.Lakewood Heights Co. v. McCuistion, 226 S.W. 1109 (Tex. Civ. App. Dallas 1920), writ refused, (Jan. 4, 1922).
Colo.Kniffin v. Colorado Western Development Co., 622 P.2d 586 (Colo. App. 1980).
N.D.Dobler v. Malloy, 214 N.W.2d 510 (N.D. 1973).
S.C.Martin v. Seaboard Air Line Ry., 70 S.C. 8, 48 S.E. 616 (1904).
136.Betterment or improvement of land, 25 C.J.S. Damages 136
5
6
Conn.Gordon v. Indusco Management Corp., 164 Conn. 262, 320 A.2d 811 (1973).
End of Document

Damages
b. Torts
137. Generally
In tort actions, the measure of damages is that that will afford compensation to the injured person.
In actions of tort, the general rule that the measure of damages is that that will afford compensation to the injured
person applies. 1 In many cases, owing to the impossibility of exactly fixing such compensation by a money
standard, its amount must be determined by the trier of facts in the exercise of a sound or reasonable discretion. 2
However, such discretion is not unlimited 3 or without control. 4 Where from the nature and circumstances of the
case, a rule may be discovered by which adequate compensation may be accurately measured, such a rule should
be applied in actions of tort 5 although where subordinate rules for the measure of such damages run counter to the
paramount rule of fair and just compensation, the former must yield to the principle underlying all such rules. 6
The plaintiff, in a tort action, is not, in being awarded damages, to be placed in a better position than he or she
would have been in had the wrong not been done. 7
The loss suffered by an injured person is determinable by the conditions existing as of the date of the tort, such
being the time when the right and cause of action for tort-caused damages arose, so that unrelated subsequent
events do not affect the amount of recovery. 8
Nuisance and negligence.

Damages in nuisance and negligence are similarly measured. 9
Statutory penalties not included.

The measure of damages in tort actions does not include statutory penalties. 10
Interference with business.

Where a recovery for tortious interference with business is proper, the measure of damages is the loss resulting
therefrom 11 where the amount of profits lost can be shown with reasonable certainty. 12
Footnotes
U.S.Pirre v. Printing Developments, Inc., 468 F. Supp. 1028 (S.D. N.Y. 1979), aff'd, 614 F.2d 1290 (2d Cir. 1979).
1
N.J.State Farm Mut. Auto. Ins. Co. v. Toro, 127 N.J. Super. 223, 316 A.2d 745 (Law Div. 1974).
Wash.McCurdy v. Union Pac. R. Co., 68 Wash. 2d 457, 413 P.2d 617 (1966).
Measure of tort damages
In general, when reviewing the assessment of damages in tort cases, court applies the rule that the injured party is entitled
to be placed as nearly as possible in the position he or she would have occupied had it not been for the tortious conduct;
these damages can include those costs proximately resulting from, or in consequence of, the defendant's conduct.
AlaskaAnchorage Chrysler Center, Inc. v. DaimlerChrysler Motors Corp., 221 P.3d 977 (Alaska 2009).
3
4
5
6
8
9
10
11
12
A.L.R. Library
Measure and elements of damages recoverable for attorney's negligence in preparing or conducting litigation
Twentieth Century cases, 90 A.L.R.4th 1033.
Excessiveness or inadequacy of compensatory damages for malicious prosecution, 50 A.L.R.4th 843.
Excessiveness or inadequacy of compensatory damages for defamation, 49 A.L.R.4th 1158.
Excessiveness or inadequacy of compensatory damages for false imprisonment or arrest, 48 A.L.R.4th 165.
La.Molton v. Avrard, 293 So. 2d 557 (La. Ct. App. 4th Cir. 1974).
Miss.Travelers Indem. Co. v. Davis Wholesale Drug Co., 234 So. 2d 604 (Miss. 1970).
N.D.Vallejo v. Jamestown College, 244 N.W.2d 753 (N.D. 1976).
Mont.Cline v. Tait, 113 Mont. 475, 129 P.2d 89 (1942).
U.S.Aladdin Mfg. Co. v. Mantle Lamp Co. of America, 116 F.2d 708 (C.C.A. 7th Cir. 1941).
Mich.Warren v. Cole, 15 Mich. 265, 1867 WL 1783 (1867).
U.S.McKenney v. Buffelen Mfg. Co., 232 F.2d 5 (9th Cir. 1956).
N.M.Rutherford v. James, 33 N.M. 440, 270 P. 794, 63 A.L.R. 237 (1928) (overruled in part on other grounds by,
Reed v. Styron, 69 N.M. 262, 365 P.2d 912 (1961)).
U.S.Ohio Oil Co. v. Elliott, 254 F.2d 832 (10th Cir. 1958).
Cal.Valdez v. Taylor Auto. Co., 129 Cal. App. 2d 810, 278 P.2d 91 (2d Dist. 1954).
Ky.Western Union Telegraph Co. v. Guard, 283 Ky. 187, 139 S.W.2d 722 (1940).
Cal.Dufour v. Henry J. Kaiser Co., 215 Cal. App. 2d 26, 29 Cal. Rptr. 871 (1st Dist. 1963).
N.J.Houlihan v. Raymond, 49 N.J. Super. 85, 139 A.2d 37 (Law Div. 1958).
Mass.Keegan v. O'Donnell, 310 Mass. 346, 37 N.E.2d 995 (1941) (abrogated on other grounds by, United Truck
Leasing Corp. v. Geltman, 406 Mass. 811, 551 N.E.2d 20 (1990)).
Mich.Couyoumjian v. Brimage, 322 Mich. 191, 33 N.W.2d 755 (1948).
End of Document
138.Measure for breach of contract compared, 25 C.J.S. Damages 138

Damages
b. Torts
138. Measure for breach of contract compared
Damages not even anticipated are recoverable in tort while only such damages as were reasonably
contemplated by the parties at the time of entering into a contract are recoverable for a breach thereof.
The measure of damages fixed for a tort and for a breach of contract is in many respects the same except where
a statute provides a special statutory rule for a specific tort or a breach of contract. 1 Contract damages, like tort
damages, are intended to compensate the plaintiff for his or her loss. 2 However, a distinction has been recognized
between the measures of damages in the two types of actions, in that damages not even anticipated are recoverable
in tort while only such damages as were reasonably contemplated by the parties at the time of entering into a
contract are recoverable for a breach thereof. 3
Footnotes
Ariz.McNutt Oil & Refining Co. v. D'Ascoli, 79 Ariz. 28, 281 P.2d 966 (1955).
1
2
3
Cal.Rutherford v. Standard Engineering Corp., 88 Cal. App. 2d 554, 199 P.2d 354 (1st Dist. 1948).
Tex.Armendariz v. Mora, 553 S.W.2d 400 (Tex. Civ. App. El Paso 1977), writ refused n.r.e., (Dec. 14, 1977).
Wyo.Stone v. Devon Energy Production Co., L.P., 2008 WY 49, 181 P.3d 936 (Wyo. 2008).
Cal.Abramowitz v. Bank of America, 131 Cal. App. 2d Supp. 892, 281 P.2d 380 (App. Dep't Super. Ct. 1955).
End of Document

Damages
c. Injuries to Person
139. Generally
The measure of damages for injury to the person may be broadly stated to be such sum as will fairly or
reasonably compensate the injured person for all losses that he or she has sustained by reason of the injury.
The measure of damages for injury to the person may be broadly stated to be such sum, as far as it is susceptible
of estimate in money, as will compensate the plaintiff for all losses, subject to the limitations imposed by the
doctrines of natural and proximate consequences, 1 which he or she has sustained by reason of the injury, including
compensation for his or her pain and suffering, for his or her loss of time, for medical attendance and support
during the period of his or her disablement, for impairment of earning capacity, and for such permanent injury
and continuing disability as he or she has sustained. 2 The plaintiff is not limited in his or her recovery to specific
pecuniary losses as to which there is direct proof, 3 and certain of the results of a personal injury are insusceptible
of pecuniary measurement, 4 so the award is of necessity somewhat arbitrary in nature. 5
Thus, there is no fixed or absolute standard, or definite or precise rule, for measuring damages for personal
injuries 6 except that the amount should not be so large as to indicate that there has been an abuse of discretion
by the trial court. 7 It would be impossible to recount all the factors that enter into fair and just compensation, 8
and each case must be considered on all its own facts. 9 However, there must be some uniformity or an endeavor
to maintain uniformity. 10
The measure of compensatory damages for personal injury is the same whether the action is for negligence or
for breach of contract 11 and whether the defendant's negligence is gross or simple. 12 The amount for which
another would be willing to undergo a similar injury does not furnish a proper criterion for the measure of what
will constitute a reasonable compensation for a personal injury. 13
Discretion of trier of facts.
The amount of the award rests largely within the discretion or judgment of the trier of facts. 14 However, the
discretion so vested is not an arbitrary or an unlimited one 15 but must be exercised reasonably and intelligently, 16
and its exercise must be governed by the circumstances and be based on the evidence adduced, 17 the controlling
principle being that of securing to the plaintiff a reasonable compensation for the injury or loss that he or she
has sustained. 18
Footnotes
Cal.Eggink v. Robertson, 191 Cal. App. 2d 496, 13 Cal. Rptr. 76 (3d Dist. 1961).
1
Minn.Smith v. Rekucki, 287 Minn. 149, 177 N.W.2d 410 (1970).
Mo.Steele v. Yacovelli, 419 S.W.2d 477 (Mo. Ct. App. 1967).
Tex.Edmondson v. Keller, 401 S.W.2d 718 (Tex. Civ. App. Austin 1966).
Wyo.Blakeman v. Gopp, 364 P.2d 986 (Wyo. 1961).
Making plaintiff whole
Tort damages, with the exception of punitive damages, are intended to make the plaintiff whole by compensating him
or her for any injuries or losses proximately caused by the defendant.
3
4
5
6
7
8
9
10
11
12
13
14
A.L.R. Library
Valuing damages in personal injury actions awarded for gratuitously rendered nursing and medical care, 49 A.L.R.5th
685.
Excessiveness or adequacy of awards of compensatory damages in civil actions for deprivation of rights under 42
U.S.C.A. sec. 1983modern cases, 99 A.L.R. Fed. 501.
Excessiveness or adequacy of compensatory damages for personal injury to or death of seaman in actions under Jones
Act (46 App. U.S.C.A. sec. 688) or doctrine of unseaworthinessmodern cases, 96 A.L.R. Fed. 541.
U.S.Harris v. Marion Concrete Co., 320 F. Supp. 16 (D.S.C. 1970), order aff'd, 435 F.2d 561 (4th Cir. 1970).
Minn.Dawydowycz v. Quady, 300 Minn. 436, 220 N.W.2d 478 (1974).
N.Y.Raman v. Carborundum Co., 31 A.D.2d 552, 295 N.Y.S.2d 534 (2d Dep't 1968).
U.S.Kisor v. Tulsa Rendering Co., 113 F. Supp. 10 (W.D. Ark. 1953).
Ark.Rudolph v. Mundy, 226 Ark. 95, 288 S.W.2d 602 (1956).
Ala.Summerlin v. Robinson, 42 Ala. App. 116, 154 So. 2d 685 (1963).
Conn.Kekac v. New York, N. H. & H. R. Co., 149 Conn. 731, 179 A.2d 832 (1962).
La.Cassreino v. Brown, 144 So. 2d 608 (La. Ct. App. 4th Cir. 1962) (disapproved of on other grounds by, Winfree
v. Consolidated Underwriters, 246 La. 981, 169 So. 2d 71 (1964)).
Ariz.Young Candy & Tobacco Co. v. Montoya, 91 Ariz. 363, 372 P.2d 703 (1962).
Cal.Torres v. City of Los Angeles, 58 Cal. 2d 35, 22 Cal. Rptr. 866, 372 P.2d 906 (1962).
Wash.Estes v. Bevan, 64 Wash. 2d 869, 395 P.2d 44 (1964).
Cal.Ingram v. Higgins, 103 Cal. App. 2d 287, 229 P.2d 385 (2d Dist. 1951).
Okla.Denco Bus Co. v. Keller, 1949 OK 249, 202 Okla. 263, 212 P.2d 469 (1949).
U.S.Tullos v. Corley, 337 F.2d 884, 9 Fed. R. Serv. 2d 12B.22, Case 1 (6th Cir. 1964).
IdahoMendenhall v. MacGregor Triangle Co., 83 Idaho 145, 358 P.2d 860 (1961).
La.Johnston v. Peerless Ins. Co., 159 So. 2d 415 (La. Ct. App. 2d Cir. 1963).
La.Little v. Safeguard Ins. Co., 137 So. 2d 415 (La. Ct. App. 3d Cir. 1962).
Mo.Mattan v. Hoover Co., 350 Mo. 506, 166 S.W.2d 557 (1942).
N.Y.Matusow v. Camp Orinsekwa, 155 Misc. 452, 280 N.Y.S. 626 (City Ct. 1935).
Mass.Semons v. Towne, 285 Mass. 96, 188 N.E. 605 (1934).
Mo.Counts v. Thompson, 359 Mo. 485, 222 S.W.2d 487 (1949).
N.Y.Schmidt v. Interborough Rapid Transit Co., 49 Misc. 255, 97 N.Y.S. 390 (App. Term 1906).
U.S.Galard v. Johnson, 504 F.2d 1198 (7th Cir. 1974).
AlaskaAlaska Airlines, Inc. v. Sweat, 568 P.2d 916 (Alaska 1977).
15
16
17
18
UtahAmoss v. Broadbent, 30 Utah 2d 165, 514 P.2d 1284 (1973).

Ala.Blount Bros. Const. Co. v. Rose, 274 Ala. 429, 149 So. 2d 821 (1962).
IowaWebster v. City of Colfax, 250 Iowa 181, 93 N.W.2d 91 (1958).
Mo.Davidson v. Schneider, 349 S.W.2d 908 (Mo. 1961).
Ala.Atlanta Life Ins. Co. v. Stanley, 276 Ala. 642, 165 So. 2d 731 (1964).
Ark.Williamson v. Garrigus, 228 Ark. 705, 310 S.W.2d 8 (1958).
Ill.Haizen v. Yellow Cab Co., 41 Ill. App. 2d 330, 190 N.E.2d 514 (1st Dist. 1963).
Wyo.Blakeman v. Gopp, 364 P.2d 986 (Wyo. 1961).
Kan.White v. Rapid Transit Lines, Inc., 192 Kan. 802, 391 P.2d 148 (1964).
Mo.Davidson v. Schneider, 349 S.W.2d 908 (Mo. 1961).
Pa.Bedillion v. Frazee, 408 Pa. 281, 183 A.2d 341 (1962).
End of Document
140.Plaintiff's age and condition and other personal factors, 25 C.J.S. Damages 140

Damages
140. Plaintiff's age and condition and other personal factors
Such personal factors as age and sex may be considered in assessing damages for personal injury but
generally not matters relating to the plaintiff's wealth or poverty.
It is proper for the jury, in estimating the damages for personal injury, to take into consideration the plaintiff's
age. 1 Other matters that may be taken into consideration are the plaintiff's health 2 and sex, 3 and where material
in assessing damages, the plaintiff's condition or position in life. 4
The jury may take into consideration the ordinary business of the plaintiff and his or her manner of living, 5 but
a plaintiff is not entitled to special damages because of any particular calling or profession. 6
Wealth or poverty.
It is not proper to show, or for the jury to consider, the plaintiff's condition as to wealth or poverty. 7 Hence, while
it is proper to establish the plaintiff's financial condition to meet a distinct issue presented by the defendant, 8
it is improper for the plaintiff to show that he or she was dependent solely on his or her earnings for his or her
support, 9 or the support of himself or herself and his or her family. 10
Footnotes
Ill.Parnham v. Carl W. Linder Co., 36 Ill. App. 2d 224, 183 N.E.2d 744 (2d Dist. 1962).
1
2
3
4
La.Thornton v. F. Strauss & Son, Inc., 129 So. 2d 580 (La. Ct. App. 2d Cir. 1961).
Wis.Doolittle v. Western States Mut. Ins. Co., 24 Wis. 2d 135, 128 N.W.2d 403 (1964).
U.S.Jackson v. LaFollette Hardware & Lumber Co., 101 F. Supp. 916 (E.D. Tenn. 1950), judgment aff'd, 193 F.2d
647 (6th Cir. 1951).
Cal.Roedder v. Rowley, 28 Cal. 2d 820, 172 P.2d 353 (1946).
La.Thornton v. F. Strauss & Son, Inc., 129 So. 2d 580 (La. Ct. App. 2d Cir. 1961).
140.Plaintiff's age and condition and other personal factors, 25 C.J.S. Damages 140
5
6
7
8
9
10
Tex.Miller v. Hooper, 94 S.W.2d 230 (Tex. Civ. App. Amarillo 1936).

U.S.District of Columbia v. Woodbury, 136 U.S. 450, 10 S. Ct. 990, 34 L. Ed. 472 (1890).
N.H.Holyoke v. Grand Trunk Ry., 48 N.H. 541, 1869 WL 2788 (1869).
Cal.Packard v. Moore, 9 Cal. 2d 571, 71 P.2d 922 (1937).
Ill.Mazur v. Chicago Transit Authority, 7 Ill. App. 2d 441, 129 N.E.2d 602 (1st Dist. 1955).
OhioHudock v. Youngstown Municipal Ry. Co., 164 Ohio St. 493, 58 Ohio Op. 345, 132 N.E.2d 108, 59 A.L.R.2d
365 (1956).
Tex.St. Louis S.W. Ry. Co. of Texas v. Brown, 163 S.W. 383 (Tex. Civ. App. Dallas 1914), writ refused, (Oct.
15, 1914).
Ga.Barnes v. Thomas, 72 Ga. App. 827, 35 S.E.2d 364 (1945).
Tex.St. Louis Southwestern Ry. Co. of Texas v. Kimmey, 189 S.W. 550 (Tex. Civ. App. Beaumont 1916).
Fla.Baggett v. Davis, 124 Fla. 701, 169 So. 372 (1936).
End of Document
141.Permanency of injury and life expectancy, 25 C.J.S. Damages 141

Damages
141. Permanency of injury and life expectancy
The temporary or permanent character of personal injuries should be considered in assessing damages,
and, where the injuries are permanent, it is proper to consider the plaintiff's life expectancy.
In estimating damages for personal injuries, consideration should be given to whether the injuries are shown to
be temporary or permanent, 1 and to the expectation of reasonable results of treatment. 2 For permanent personal
injuries, the measure of damages is such sum as will compensate for mental and physical pain, past and future, and
for permanent impairment of power to earn money, with reasonable expense for medical services. 3 In determining
damages for personal injury, not only the plaintiff's expectancy and earning power but occupational hazards, 4
possible unemployment, 5 and probable decrease of earnings in later life 6 must also be considered as may the
fact of his or her unemployment at the date of the trial. 7 In estimating future elements of damage, such as for
mental and physical pain and suffering, medical expenses, and the like, the plaintiff's condition as it exists after
the injury, and not as it was before the injury, should be considered. 8
Life expectancy; mortality tables.

Where the injuries are shown to be permanent in their character, it is proper to consider the probable life expectancy
of the plaintiff, 9 and for this purpose, standard life and mortality tables are admissible, 10 at least if the plaintiff's
earning power is permanently impaired as a result of his or her injury. 11 Where the permanency is controverted,
the mortality tables may be admitted to be considered by the jury in case it finds that the injury is permanent. 12
Mortality tables, however, are not the exclusive evidence admissible to establish life expectancy, 13 and the jurors
may determine such fact from their own knowledge and from the proof of the age, health, and habits of the person
and other facts before them. 14 Mortality tables are not conclusive or exclusive on a question of life expectancy, 15
and the jury should be so instructed. 16 Such tables may be introduced even though the injury is such as to have
shortened the plaintiff's life. 17
Death of injured person.

The fact that the injured person died subsequent to the rendition of the verdict does not affect the question
of damages. 18 If the accident caused the death, appropriate damages must be considered as if death had not
intervened. 19 However, if death results from a condition unconnected with the accident, death ends the period of
damages, 20 and where the injured person dies from other causes before a judgment, the loss of earnings because
of impaired earning capacity for the period of his or her life expectancy cannot enter into the award. 21
Footnotes
Colo.King v. Avila, 127 Colo. 538, 259 P.2d 268 (1953).
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
Miss.Kincade & Lofton v. Stephens, 50 So. 2d 587 (Miss. 1951).
Mo.Braun v. Roux Distributing Co., 312 S.W.2d 758 (Mo. 1958).
Tex.Missouri Pac. R. Co. v. Kimbrell, 326 S.W.2d 720 (Tex. Civ. App. Texarkana 1959), writ granted, (Nov. 11,
1959) and judgment aff'd, 160 Tex. 542, 334 S.W.2d 283 (1960).
Ky.Middlesboro Coca Cola Bottling Works v. Ball, 262 Ky. 101, 89 S.W.2d 875 (1936).
Pa.Thirkell v. Equitable Gas Co., 307 Pa. 377, 161 A. 313 (1932).
Va.Chesapeake & O. Ry. Co. v. Arrington, 126 Va. 194, 101 S.E. 415 (1919).
U.S.Barnes v. Norfolk Southern Ry. Co., 333 F.2d 192 (4th Cir. 1964).
Neb.Crecelius v. Gamble-Skogmo, Inc., 144 Neb. 394, 13 N.W.2d 627 (1944).
Ill.Parnham v. Carl W. Linder Co., 36 Ill. App. 2d 224, 183 N.E.2d 744 (2d Dist. 1962).
IowaRuud v. Grimm, 252 Iowa 1266, 110 N.W.2d 321 (1961).
Wis.Doolittle v. Western States Mut. Ins. Co., 24 Wis. 2d 135, 128 N.W.2d 403 (1964).
Ala.Collins v. Windham, 277 Ala. 129, 167 So. 2d 690 (1964).
Fla.Florida East Coast Ry. Co. v. Hardee, 162 So. 2d 704 (Fla. Dist. Ct. App. 3d Dist. 1964).
Neb.Zager v. Johnson, 174 Neb. 106, 116 N.W.2d 1 (1962).
Admissibility of mortality tables, generally, see C.J.S., Evidence 1264, 1265.
Pa.Messer v. Beighley, 409 Pa. 551, 187 A.2d 168 (1963).
UtahMitchell v. Arrowhead Freight Lines, 117 Utah 224, 214 P.2d 620 (1950).
Okla.Jones v. Eppler, 1953 OK 363, 1953 OK 364, 266 P.2d 451, 48 A.L.R.2d 333 (Okla. 1953).
UtahMitchell v. Arrowhead Freight Lines, 117 Utah 224, 214 P.2d 620 (1950).
Fla.City of Tampa v. Johnson, 114 So. 2d 807 (Fla. Dist. Ct. App. 2d Dist. 1959).
Wyo.Glover v. Berger, 72 Wyo. 221, 263 P.2d 498 (1953).
Colo.Riss & Co. v. Anderson, 108 Colo. 78, 114 P.2d 278 (1941).
Wyo.Glover v. Berger, 72 Wyo. 221, 263 P.2d 498 (1953).
Fla.City of Tampa v. Johnson, 114 So. 2d 807 (Fla. Dist. Ct. App. 2d Dist. 1959).
OhioMiller v. Loy, 101 Ohio App. 405, 1 Ohio Op. 2d 331, 140 N.E.2d 38 (2d Dist. Clark County 1956).
W.Va.Lawrence v. Nelson, 145 W. Va. 134, 113 S.E.2d 241 (1960) (overruled in part on other grounds by, Yates
v. Mancari, 153 W. Va. 350, 168 S.E.2d 746 (1969)).
N.J.Kappovich v. Le Winter, 43 N.J. Super. 528, 129 A.2d 299 (App. Div. 1957).
N.C.Hunt v. Wooten, 238 N.C. 42, 76 S.E.2d 326 (1953).
OhioMiller v. Loy, 101 Ohio App. 405, 1 Ohio Op. 2d 331, 140 N.E.2d 38 (2d Dist. Clark County 1956).
Mass.Fournier v. Zinn, 257 Mass. 575, 154 N.E. 268 (1926).
Pa.Paul v. Atlantic Refining Co., 304 Pa. 360, 156 A. 94 (1931).
Pa.Chappell v. Pittsburgh & W. Va. Ry. Co., 402 Pa. 646, 168 A.2d 330 (1961).
20
21
Pa.Chappell v. Pittsburgh & W. Va. Ry. Co., 402 Pa. 646, 168 A.2d 330 (1961).
Mo.Adelsberger v. Sheehy, 336 Mo. 497, 79 S.W.2d 109 (1934).
End of Document
142.Mathematical computation or certainty, 25 C.J.S. Damages 142

Damages
142. Mathematical computation or certainty
Damages for personal injuries are not a mere matter of mathematical calculation and cannot be computed
with mathematical certainty.
The amount of recovery for personal injuries cannot be reduced to a mere matter of mathematical computation. 1
Hence, the recovery cannot be measured by taking a sum the interest on which would produce the amount
previously earned by the plaintiff; 2 nor do rules to be derived from standard life and annuity tables furnish an
absolute guide for the discretion of the jury. 3
Footnotes
Conn.Gorczyca v. New York, N. H. & H. R. Co., 141 Conn. 701, 109 A.2d 589 (1954).
1
2
3
Fla.Merwin v. Kellems, 78 So. 2d 865 (Fla. 1955).

N.J.Botta v. Brunner, 26 N.J. 82, 138 A.2d 713, 60 A.L.R.2d 1331 (1958).
N.D.Anderson v. Schreiner, 94 N.W.2d 294 (N.D. 1958).
U.S.Albert Miller & Co. v. Wilkins, 209 F. 582 (C.C.A. 7th Cir. 1913).
U.S.Vicksburg & M.R. Co. v. Putnam, 118 U.S. 545, 7 S. Ct. 1, 30 L. Ed. 257 (1886).
Mont.Cornell v. Great Northern Ry. Co., 57 Mont. 177, 187 P. 902 (1920).
End of Document
143.Present value, 25 C.J.S. Damages 143

Damages
143. Present value
The plaintiff is entitled to recover the present worth of all damages sustained through personal injury.
In an action to recover damages for personal injury resulting from the defendant's negligence, plaintiff is entitled
to recover the present worth of all damages sustained in consequence of the defendant's tort. 1 An award for
personal injuries should be rendered on the basis of a cash settlement of the plaintiff's injuries, past, present, and
prospective. 2
Although, in view of the plaintiff's right to recover for medical attention, past, present, and future, the mere fact
that interest on an award may exceed his or her earnings at the time of injury does not render the award excessive, 3
the allowance of a sum that, properly invested, would yield him or her an amount annually equal to his or her
past or expected wages during his or her life, leaving the principal undiminished for his or her estate at his or her
death, is improper. 4 The law, in allowing a recovery of damages, general or special, does not use as a criterion
the money that a person would have to pay in order to obtain insurance or an annuity yielding him or her a certain
income for a period of years. 5 It is not necessary, however, to require the jury to reduce to its present worth the
amount allowed for mental and physical suffering. 6
Footnotes
N.C.Owens v. Kelly, 240 N.C. 770, 84 S.E.2d 163 (1954).
1
2
3
4
5
6
S.C.Grimsley v. Atlantic Coast Line R. Co., 189 S.C. 251, 1 S.E.2d 157 (1939).
Cal.Kirschbaum v. McCarthy, 5 Cal. 2d 191, 54 P.2d 8 (1936).
Va.Chesapeake & O. Ry. Co. v. Arrington, 126 Va. 194, 101 S.E. 415 (1919).
U.S.Caldwell v. Southern Pac. Co., 71 F. Supp. 955 (S.D. Cal. 1947).
U.S.Schirra v. Delaware, L. & W. R. Co., 103 F. Supp. 812 (M.D. Pa. 1952).
Ky.Louisville & N.R. Co. v. Gayle, 204 Ky. 142, 263 S.W. 763 (1924).
143.Present value, 25 C.J.S. Damages 143
End of Document

Damages
d. Injuries to Property
(1) In General
144. Generally
The measure of damages for an injury to, or loss of, property by a tort is compensation for the actual loss
sustained, and there is no fixed, inflexible rule for determining such measure.
No single fixed rule for recovery of damages for injury to personal property will invariably make an injured
party whole. 1 Whatever formula is most appropriate to compensate the injured party for the loss sustained in the
particular case will be adopted, 2 in the sound discretion of the trier of fact, 3 and each case must be determined
on its particular facts. 4 Though the measures of damages for an injury to personal property may vary to fit the
circumstances of each case, the position to which the injured party should be restored is the same, that is, complete
compensation for the injury. 5 Generally, three approaches have been followed by the state courts in arriving at
the amount of damages to property: (1) the cost of restoration if the thing damaged can be adequately repaired,
(2) the difference in value prior to and following the damage, or (3) the cost of replacement new, less reasonable
depreciation, if the value before and after the damage cannot be reasonably determined, or if the cost of the repairs
exceeds the value of the thing damaged. 6
As a general rule, the measure of damages for an injury to, or loss of, property by a tort is compensation for the
actual loss sustained thereby. 7 The injured party is to recover the value of the property destroyed. 8 It is never
contemplated that he or she should realize a profit from the damages sustained. 9
Ordinarily, the measure of damages in cases of the destruction of property is the market value of property
destroyed 10 at the place of destruction. 11 For an injury to property, the measure of damages is generally
the difference between the reasonable market value immediately before and after the injury. 12 The measure
of damages may also be the cost of repairs, 13 especially where the property is without market value. 14 In
determining damages for property damage, if the cost of restoring the property to its original condition is
disproportionate to the value of the property or economically wasteful, unless there is a reason personal to the
owner for restoring the original condition, or there is reason to believe that the plaintiff will, in fact, make the
repairs, damages are measured only by the difference between the value of the property before and after the
harm. 15
Traditionally, a plaintiff whose property is damaged and can be repaired can recover either: (1) the cost of renting
a similar piece of property for the period of repairs or, (2) if a rental is not available, lost profits for that repair
period. 16
Property with special value.

When personal property carries sentimental rather than market value, the jury may award damages for the
reasonable special value of such articles to their owner, and such value is not based on the subjective opinion of
the plaintiff but rather is calculated by the jury based upon the facts and circumstances in evidence. 17
Cases:
Under Texas law, a plaintiff whose property has been destroyed by the tortious acts of another is generally entitled
to recover the market value of the property at the time of its loss; the measure of damages is the difference in
its market value immediately before and immediately after the injury, at the place where the damage occurred.
Factory Mut. Ins. Co. v. Alon USA L.P., 705 F.3d 518 (5th Cir. 2013).
Where expenditures to restore or to replace to predamage condition are used as the measure of damages, a test of
reasonableness is imposed. Wyman v. Ayer Properties, LLC, 49 Mass. 64, 11 N.E.3d 1074 (2014).
When a plaintiff seeks to continue to use the damaged property instead of selling it, diminution in property value
may not compensate the plaintiff adequately. McEwen v. MCR, LLC, 2012 MT 319, 291 P.3d 1253 (Mont. 2012).
The proportionality of cost-of-repair damages relative to the value of the property prior to a tort injury to property
is part of the general inquiry on the reasonableness of damages. Langlois v. Town of Proctor, 2014 VT 130, 113
A.3d 44 (Vt. 2014).
[END OF SUPPLEMENT]
Footnotes
1
Cal.Basin Oil Co. of Cal. v. Baash-Ross Tool Co., 125 Cal. App. 2d 578, 271 P.2d 122 (2d Dist. 1954).
2
U.S.U.S. v. Sutro, 235 F.2d 499 (9th Cir. 1956).
3
4
5
6
U.S.Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975).
7
IdahoBeal v. Mars Larsen Ranch Corp., Inc., 99 Idaho 662, 586 P.2d 1378 (1978).
IowaAdams v. Deur, 173 N.W.2d 100 (Iowa 1969).
N.J.Commonwealth Land Title Ins. Co. v. Conklin Associates, 152 N.J. Super. 1, 377 A.2d 740 (Law Div. 1977),
judgment aff'd, 167 N.J. Super. 392, 400 A.2d 1208 (App. Div. 1979).
8
9
10
11
12
13
14
15
16
17
U.S.Beaufort & Morehead R. Co. v. The Damyank, 122 F. Supp. 82 (E.D. N.C. 1954).
U.S.Consolidated Elec. Cooperative v. Panhandle Eastern Pipeline Co., 189 F.2d 777 (8th Cir. 1951).
Wash.Dahl-Smyth, Inc. v. City of Walla Walla, 148 Wash. 2d 835, 64 P.3d 15 (2003).
Diminution in value of property
The general rule for measuring property damage is diminution in market value.
Ind.Allgood v. Meridian Sec. Ins. Co., 836 N.E.2d 243 (Ind. 2005).
La.Maryland Cas. Co. v. Rittiner, 133 So. 2d 172 (La. Ct. App. 4th Cir. 1961).
Necessary showings
When cost of repairs are relied upon as a measure of damages, it is necessary to establish that (1) the repairs were
necessary as a result of the wrongful act, and (2) the cost of repairs were necessary or reasonable.
Miss.Owen v. Owen, 928 So. 2d 156 (Miss. 2006).
Wis.Wisconsin Telephone Co. v. Reynolds, 2 Wis. 2d 649, 87 N.W.2d 285 (1958).
La.Frisby v. Mugnier, 971 So. 2d 1045 (La. Ct. App. 1st Cir. 2007), writ denied, 969 So. 2d 638 (La. 2007).
Mo.Collier v. City of Oak Grove, 246 S.W.3d 923 (Mo. 2008).
End of Document
145.Deprivation of use, 25 C.J.S. Damages 145

Damages
(1) In General
145. Deprivation of use
The proper measure of damages because of the deprivation of the use of property is the value of such use.
The proper measure of damages because of the deprivation of the use of property is the value of such use. 1 This
is ordinarily measured by the fair rental value of the property. 2 However, it has been said that generally one is not
entitled to recover damages for the loss of use of personal property except in cases of damage to an automobile. 3
Cases:
A party must show in all cases that property damage represents a temporary injury in order to receive restoration
costs. McEwen v. MCR, LLC, 2012 MT 319, 291 P.3d 1253 (Mont. 2012).
[END OF SUPPLEMENT]
Footnotes
U.S.National Steel Corp. v. Great Lakes Towing Co., 574 F.2d 339 (6th Cir. 1978).
1
IowaNizzi v. Laverty Sprayers, Inc., 259 Iowa 112, 143 N.W.2d 312 (1966).
Mass.Omni Flying Club, Inc. v. Cessna Aircraft Co., 366 Mass. 154, 315 N.E.2d 885, 15 U.C.C. Rep. Serv. 647
(1974).
U.S.Corporate Air Fleet of Tennessee, Inc. v. Gates Learjet, Inc., 589 F. Supp. 1076 (M.D. Tenn. 1984).
Mo.Gerst v. Flinn, 615 S.W.2d 628 (Mo. Ct. App. E.D. 1981).
Tex.State v. Brunson, 435 S.W.2d 242 (Tex. Civ. App. Corpus Christi 1968), writ granted, (Mar. 26, 1969) and
judgment aff'd, 444 S.W.2d 598 (Tex. 1969).
Ark.Southwestern Bell Telephone Co. v. Harris Co. of Fort Smith, 353 Ark. 487, 109 S.W.3d 637 (2003).
145.Deprivation of use, 25 C.J.S. Damages 145
End of Document
146.Total loss or destruction, 25 C.J.S. Damages 146

Damages
(2) Injuries to Personal Property
(a) In General
146. Total loss or destruction
As a general rule, the measure of damages for the loss or destruction of personal property is its reasonable
value at the time of the loss.
The measure of damages for the loss or destruction of personal property is, as a general rule, its value, or its
reasonable value, at the time of the loss or destruction, 1 or the fair market value of the property at the time of
the loss or destruction, 2 or the difference in the market value immediately before and immediately after injury. 3
Interest from the time the cause of action accrued may in some jurisdictions be included. 4 A property owner is
entitled to the full market value only if the property is totally destroyed in the accident. 5
The general rule has exceptions, depending on the particular facts and circumstances, 6 and it is not entirely
inflexible. 7 Consideration must always be given to the basic fundamental principle that the person injured shall
receive a compensation commensurate with his or her loss and no more. 8 Market value does not constitute the
measure of damages where the property lost or destroyed had a special or peculiar value to its owner. 9
Typically, where destroyed property can be replaced, the owner of the property is fully compensated, as damages
in a tort action, upon receipt of the expenses of replacement. 10 However, a property owner whose property is
destroyed by a tortfeasor is not fully compensated by receiving the replacement cost as damages, if he or she
suffers lost profits where the replacement of the destroyed property is delayed, and in such cases, lost profits may
be necessary to accomplish fully compensating the claimant for his or her loss. 11
In general, a person tortiously deprived of property is entitled to damages based upon its special value to him or
her if that is greater than its market value, and where the lost property is replaceable, it is appropriate to measure
damages for its loss by the cost of replacement. 12
146.Total loss or destruction, 25 C.J.S. Damages 146
Cases:
The election of remedies between market-value damages or the reasonable cost of repairs is not available to a
plaintiff whose property is totally destroyed; such a plaintiff is limited to seeking the proper measure of marketvalue damages. Texas Farm Bureau Mut. Ins. Co. v. Wilde, 385 S.W.3d 733 (Tex. App. El Paso 2012), reh'g
overruled, (Dec. 27, 2012).
[END OF SUPPLEMENT]
Footnotes
U.S.Standard Oil Co. of New Jersey v. Southern Pac. Co., 268 U.S. 146, 45 S. Ct. 465, 69 L. Ed. 890 (1925).
1
Ill.Behrens v. W. S. Bills & Sons, Inc., 5 Ill. App. 3d 567, 283 N.E.2d 1 (3d Dist. 1972).
Tex.American Transfer & Storage Co. v. Reichley, 560 S.W.2d 196, 23 U.C.C. Rep. Serv. 144 (Tex. Civ. App.
Amarillo 1977), writ refused n.r.e., (Mar. 29, 1978).
Wash.Herberg v. Swartz, 89 Wash. 2d 916, 578 P.2d 17 (1978).
3
4
5
6
7
8
9
10
11
12
Another statement
Where a property owner is the victim of a tort that destroys his or her property, the law seeks to restore the owner for
his or her full actual loss by awarding the owner the monetary equivalent of the destroyed property so as to place him
or her in as good a position as he or she would have enjoyed in the absence of the destruction.
D.C.Withers v. Wilson, 989 A.2d 1117 (D.C. 2010).
W.Va.Carbasho v. Musulin, 217 W. Va. 359, 618 S.E.2d 368 (2005).
Determining fair market value
In determining the fair market value of a used item, neither its original cost nor its current price new is definitive, for
its condition may have changed, and depreciation must be considered.
Wyo.Wilcox v. Herbst, 75 Wyo. 289, 295 P.2d 755 (1956).
Tex.Wagner & Chisholm v. Dunham, 246 S.W. 1044 (Tex. Civ. App. Beaumont 1923).
S.D.Joseph v. Kerkvliet, 2002 SD 39, 642 N.W.2d 533 (S.D. 2002).
Wyo.Rocky Mountain Packing Co. v. Branney, 393 P.2d 131 (Wyo. 1964).
U.S.U.S. v. State of Md., for Use of Meyer, 322 F.2d 1009 (D.C. Cir. 1963), cert. granted, judgment rev'd on other
grounds, 382 U.S. 158, 86 S. Ct. 304, 15 L. Ed. 2d 226 (1965).
W.Va.Cato v. Silling, 137 W. Va. 694, 73 S.E.2d 731 (1952).
End of Document
147.Injuries short of loss or destruction, 24 C.J.S. Damages 147

Damages
(a) In General
147. Injuries short of loss or destruction
The measure of damages for an injury to personal property that has not been entirely destroyed is the
difference between its value at the place immediately before and immediately after the injury, or, if such
sum be less, the reasonable cost of repairs to restore the property to its previous condition.
The owner of personal property damaged by the tort of another is entitled to reasonable compensation for the
loss sustained. 1
As a general rule, the measure of damages to personal property is calculated by determining the difference in
the fair market value of the property immediately before and immediately after the occurrence. 2 In other words,
in cases involving damage to property, the ordinary measure of damages is the diminution of market value of
the property, 3 plus, according to some authority, necessary and reasonable expenses incurred by the owner in
connection with the injury. 4
In instances where diminution in value damages do not make the plaintiff whole, in cases involving damage to
property, another measure of damages, cost of repair or replacement, may be more appropriate. 5 In fact, in some
states it is a general rule that damage for repairs to property is the fair and reasonable cost of repair 6 not to exceed
the value of the property immediately prior to the loss or damage. 7 If the fair and reasonable repair costs are less
than the value of the property prior to the accident, such costs are included in the plaintiff's damage award, but if
such repair costs exceed the preaccident value of the property, the damages awarded for repair costs are limited
to that value. 8 In cases where it is shown that repairs failed to bring a damaged item of personal property up to
the condition it was in prior to the damage, the cost of repairs made plus postrepair diminution in value of the
property will ordinarily be the proper measure of damages. 9
In one state, the measure of damages for the destruction of household goods, clothing, and personal effects is the
actual worth or value of the articles to the owner for use in the condition in which they were at the time of the
injury, excluding any fanciful or sentimental considerations. 10
Trade allowance.
The figure allowed the plaintiff by a dealer in a trade of the plaintiff's damaged automobile for a new automobile
is not a proper standard for ascertaining the value of the plaintiff's automobile subsequent to the accident. 11 A
proper recovery may be the value of an automobile before the accident less the amount received thereafter as a
credit in a trade for another car. 12 Furthermore, the owner of an automobile involved in a collision is entitled
to recover damages representing not only the cost of repairing the vehicle but also representing the loss in tradein value of the automobile. 13
Special items of damages.

A plaintiff may recover a total damages award greater than the preaccident value of the damaged property when
special items of damages have been suffered by the plaintiff. 14
Cases:
Proper measure of damages in suit seeking to recover damages to car in relation to motor vehicle accident was
plaintiff's recovery of repair costs, and not additional $4,595 representing loss of value in his vehicle before and
after accident, absent any factual or legal basis for exception to be made to general rule regarding appropriate
measure of damages in such cases. Delamater v. Fisher, 47 Misc. 3d 592, 2015 WL 422980 (N.Y. City Ct. 2015).
[END OF SUPPLEMENT]
Footnotes
Ala.Wert v. Geeslin, 37 Ala. App. 351, 69 So. 2d 718 (1953).
1
2
3
4
5
6
7
8
9
La.Beauregard v. Salmon, 205 So. 2d 634 (La. Ct. App. 2d Cir. 1967).
Tex.Wright v. Gernandt, 559 S.W.2d 864 (Tex. Civ. App. Corpus Christi 1977).
Wyo.Wilcox v. Herbst, 75 Wyo. 289, 295 P.2d 755 (1956).
Ark.Southwestern Bell Telephone Co. v. Harris Co. of Fort Smith, 353 Ark. 487, 109 S.W.3d 637 (2003).
W.Va.Carbasho v. Musulin, 217 W. Va. 359, 618 S.E.2d 368 (2005).
Okla.Brennen v. Aston, 2003 OK 91, 84 P.3d 99 (Okla. 2003).
Okla.Brennen v. Aston, 2003 OK 91, 84 P.3d 99 (Okla. 2003).
10
11
12
13
14
Tex.Gulf States Utilities Co. v. Low, 79 S.W.3d 561 (Tex. 2002).

Del.Alber v. Wise, 53 Del. 126, 166 A.2d 141 (1960).
OhioAnderson v. American Bankers Ins. Co. of Fla., 99 Ohio App. 183, 58 Ohio Op. 310, 132 N.E.2d 256 (2d Dist.
Miami County 1954).
Okla.Carnes v. Ditzenberger, 1933 OK 249, 163 Okla. 146, 21 P.2d 756 (1933).
La.Pender v. Bonfanti, 13 So. 2d 105 (La. Ct. App. 1st Cir. 1943).
N.Y.Rosenfield v. Choberka, 140 Misc. 2d 9, 529 N.Y.S.2d 455 (Sup 1988).
End of Document

Damages
(b) Detention or Deprivation of Use
148. Generally
The measure of damages for the detention, or deprivation of the use, of personal property is, as a general
rule, the value of the use thereof.
The measure of damages for the detention of personal property is, as a general rule, the value of its use during the
period of detention, 1 less depreciation. 2 As bearing on this question, the rental value of the property is properly
considered 3 or the amount that might have been made by the use of the property. 4
Where, through an injury to property, the plaintiff is temporarily deprived of its use, the measure of his or her
damage is the amount of the injury to the property, together with the value of its use during the time required
by the exercise of proper or reasonable diligence to secure its repair. 5 On the other hand, one who recovers the
full value of a chattel destroyed through the negligence of another ordinarily cannot recover for the value of the
use thereof after it was destroyed. 6 Where the property is something that can be replaced, the measure of the
plaintiff's damages is the expense of hiring the property that he or she is forced to substitute for that of which he
or she is deprived. 7 In case the property that is replaced is of such a character that during the period for which a
substitute is hired there would have been a necessary expense for the upkeep or operation of the original property,
a deduction must be made for such upkeep or operation from the amount paid as rent for the substitute. 8
Detention of money.
Ordinarily, the measure of damages for the wrongful detention of money is interest during the period of
detention. 9
Cases:
The fair rental value of equipment during the period of prevention of its use is generally adopted as a proper
measure for determination of the extent of damage from loss of use. Restatement of Torts 931(a); Restatement
(Second) of Torts 931(a). Koenig v. PurCo Fleet Services, Inc., 2012 CO 56, 285 P.3d 979 (Colo. 2012).
[END OF SUPPLEMENT]
Footnotes
AlaskaBurgess Const. Co. v. Hancock, 514 P.2d 236 (Alaska 1973).
1
2
3
4
5
6
7
8
9
Mo.Johnson v. Linder, 618 S.W.2d 265 (Mo. Ct. App. E.D. 1981).
N.C.Roberts v. Pilot Freight Carriers, Inc., 273 N.C. 600, 160 S.E.2d 712 (1968).
Mont.Rigney v. Swingley, 112 Mont. 104, 113 P.2d 344 (1941).
AlaskaBurgess Const. Co. v. Hancock, 514 P.2d 236 (Alaska 1973).
Kan.Nelson v. Hy-Grade Const. & Materials, Inc., 215 Kan. 631, 527 P.2d 1059, 15 U.C.C. Rep. Serv. 1002 (1974).
Or.Scott v. Elliott, 253 Or. 168, 451 P.2d 474 (1969).
Ind.Horace F. Wood Transfer Co. v. Shelton, 180 Ind. 273, 101 N.E. 718 (1913).
Tex.Community Public Service Co. v. Gray, 107 S.W.2d 495 (Tex. Civ. App. El Paso 1937).
Mo.Orr v. Williams, 379 S.W.2d 181 (Mo. Ct. App. 1964).
La.Skinner v. Scott, 238 La. 868, 116 So. 2d 696 (1959).
Mass.Weston v. Boston & M.R.R., 190 Mass. 298, 76 N.E. 1050 (1906).
Neb.Kunkel v. Cohagen, 151 Neb. 774, 39 N.W.2d 609 (1949).
N.H.Rogers v. Nelson, 97 N.H. 72, 80 A.2d 391 (1951).
IowaBishop v. Baird & Baird, 238 Iowa 871, 29 N.W.2d 201 (1947).
End of Document
149.Loss of use of motor vehicle, 25 C.J.S. Damages 149

Damages
(b) Detention or Deprivation of Use
149. Loss of use of motor vehicle
While there is authority that the proper measure of damages is the reasonable cost of hiring another motor
vehicle, if any is available in the market for hire while the damaged vehicle is being repaired, there is also
authority that, in the absence of an allegation of special damages on account of an amount actually so
expended, the plaintiff is entitled to recover only the fair value of the use of his or her own motor vehicle
while it is being repaired, and not the hire paid for a different vehicle.
The decisions as to the proper measure of damages for the loss of use of a damaged motor vehicle during a
reasonable period for repairs are not uniform, 1 and no definite general rule can be laid down except that the
award should be fair and reasonable compensation to the plaintiff, according to the circumstances of the particular
case, 2 and that the rental value is always a material and relevant factor in helping to ascertain the value of the
loss of use. 3 While there is authority that the proper measure of damages is the reasonable cost of hiring another
motor vehicle, if any is available in the market for hire while the damaged vehicle is being repaired, 4 there is also
authority that, in the absence of an allegation of special damages on account of an amount actually so expended,
the plaintiff is entitled to recover only the fair value of the use of his or her own motor vehicle while it is being
repaired, and not the hire paid for a different vehicle, 5 although recovery of an amount actually expended for the
hire of another vehicle is permitted. 6 Under this view, the value of the use of a motor vehicle is its market value
during the period of loss thereof, and, while the market rental value of the vehicle is a material and relevant factor
in determining the value of the use, it is not in itself the measure of damages. 7 The amount allowable must be
only the market value of the bare use, without compensation for the general upkeep of the vehicle. 8
In measuring the damages resulting from the loss of use of a motor vehicle, it is immaterial whether plaintiff
actually hired another car or expended money as a result of the loss of use of the vehicle damaged, or went without
any car while repairs were being made, 9 and his or her damages need not necessarily be pecuniary. 10 However,
if in fact no actual damage was suffered by reason of the deprivation of use, no recovery can be had. 11 When the
motor vehicle is totally destroyed and there is a recovery for its full value, there can be no recovery for loss of
use 12 or the cost of hiring another vehicle. 13 Also, where the difference in value immediately before and after the
accident is recovered, there can be no recovery for the value of the use of the vehicle while it is being repaired. 14
Loss of profits.
Where no substitute motor vehicle can be hired in the market while the plaintiff's vehicle is being repaired, it is
proper to award the plaintiff the amount of profits lost in his or her business as a result of the deprivation of the use
of his or her vehicle as the measure of damages therefor where they can be clearly and certainly established. 15
However, an award for loss of profits is erroneous in the absence of a showing that no other vehicle could be
had 16 or that the rental value could not be determined, 17 and loss of revenue is not a basis of damages. 18
Period of loss.
It is not proper to estimate the value of the use of an automobile for a long period of time by proof of the value
of such use by the day. 19 Damages for the loss of use of an automobile for a short time may be much greater
proportionately than for a long period. 20
Nonbusiness use.
Recovery for loss of use of a vehicle is not limited to cases in which it is used in business. 21
Footnotes
Tenn.Perkins v. Brown, 132 Tenn. 294, 177 S.W. 1158 (1915).
1
Conn.Hawkins v. Garford Trucking Co., 96 Conn. 337, 114 A. 94 (1921).
2
Ky.Pope's Adm'r v. Terrill, 308 Ky. 263, 214 S.W.2d 276 (1948).
3
N.M.Cress v. Scott, 117 N.M. 3, 868 P.2d 648 (1994).
4
5
6
7
8
10
11
12
N.Y.Allanson v. Cummings, 81 A.D.2d 16, 81 A.D.2d 1031, 439 N.Y.S.2d 545 (4th Dep't 1981).
Tex.Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 115 (Tex. 1984).
Cal.Salyer Grain & Milling Co. v. Henson, 13 Cal. App. 3d 493, 91 Cal. Rptr. 847 (5th Dist. 1970).
Wyo.Colorado Kenworth, Inc. v. Archie Meek Transp. Co., 495 P.2d 1183 (Wyo. 1972).
Conn.Hansen v. Costello, 125 Conn. 386, 5 A.2d 880 (1939).
La.Erie v. Primos, 39 So. 2d 178 (La. Ct. App., Orleans 1949).
Conn.Hawkins v. Garford Trucking Co., 96 Conn. 337, 114 A. 94 (1921).
La.Maggio v. M. F. Bradford Motor Express, 171 So. 859 (La. Ct. App., Orleans 1937), amended and reh'g refused
on other grounds, 172 So. 438 (La. Ct. App., Orleans 1937).
N.Y.Goldshear v. Blank, 168 N.Y.S. 628 (App. Term 1918).
Cal.Tremeroli v. Austin Trailer Equipment Co., 102 Cal. App. 2d 464, 227 P.2d 923 (1st Dist. 1951).
OhioPerry v. Harris, 31 Ohio Op. 2d 216, 95 Ohio L. Abs. 21, 197 N.E.2d 416 (Ct. App. 8th Dist. Cuyahoga County
1964).
Conn.Cook v. Packard Motor Car Co. of New York, 88 Conn. 590, 92 A. 413 (1914).
La.Interurban Transp. Co. v. F. Strauss & Sons, 196 So. 367 (La. Ct. App. 2d Cir. 1940).
N.Y.Donnelly v. Poliakoff, 79 Misc. 250, 139 N.Y.S. 999 (App. Term 1913).
Ala.Fuller v. Martin, 41 Ala. App. 160, 125 So. 2d 4 (1960).
13
14
15
16
17
18
19
20
21
Cal.Pfingsten v. Westenhaver, 39 Cal. 2d 12, 244 P.2d 395 (1952).

IowaPugh v. Queal Lumber Co., 193 Iowa 924, 188 N.W. 1 (1922).
IdahoJaquith v. Stanger, 79 Idaho 49, 310 P.2d 805 (1957).
W.Va.Somerville v. Dellosa, 133 W. Va. 435, 56 S.E.2d 756 (1949).
Ala.Wilson & Co. v. Sims, 250 Ala. 414, 34 So. 2d 689 (1948).
N.Y.Naughton Mulgrew Motor Car Co. v. Westchester Fish Co., 105 Misc. 595, 173 N.Y.S. 437 (App. Term 1918).
N.Y.Central Greyhound Lines v. Bonded Freightways, 193 Misc. 320, 82 N.Y.S.2d 671 (Sup 1948).
Tex.St. Louis, B. & M. Ry. Co. v. Texas Mexican Ry. Co., 181 S.W.2d 895 (Tex. Civ. App. San Antonio 1944),
writ refused, (Nov. 1, 1944) and judgment rev'd on other grounds, 328 U.S. 134, 66 S. Ct. 937, 90 L. Ed. 1132 (1946).
Tex.Shell Petroleum Corp. v. Clement, 102 S.W.2d 289 (Tex. Civ. App. Beaumont 1937).
D.C.Eschinger v. United Mut. Fire Ins. Co., 61 A.2d 725 (Mun. Ct. App. D.C. 1948).
N.Y.Johnson v. Scholz, 276 A.D. 163, 93 N.Y.S.2d 334 (2d Dep't 1949).
End of Document

Damages
(3) Injuries to Real Property
(a) In General
150. Generally
The measure of damages for a permanent injury to real property is usually the fair value of the property
immediately before and immediately after the injury. The recovery for a temporary injury to real property
is measured by the loss sustained by the owner and may include the cost of restoration if less than the
difference in value and the diminution in the value of the use and enjoyment or rental value of the property
during the time the injury exists.
The purpose of awarding damages in cases involving injury to real property is to return the injured party as nearly
as possible to the position he or she would have been in had the wrongful act not occurred. 1
A proper measure of compensatory damages in a tort action based on damage to real property is the difference
between the fair market value of the property immediately before the damage and the fair market value
immediately after the damage. 2 It has been said that the appropriate measure of direct, compensatory damages to
real property generally is the diminution in the value of that property even when the cost to remediate the property
exceeds the diminution in the value thereof. 3 However, it has been observed that diminution in market value will
not always correspond with a plaintiff's damages resulting from injury to real property as certain cases warrant
an award of restoration damages in excess of the property's diminution in market value. 4 Thus, other courts have
said that the cost to repair or restore land may be an appropriate measure of damages even if repair costs exceed
the diminution in value. 5 The cost to restore land may not be disproportionate to the diminution in the property's
value; rather, the cost of repair must be reasonable and bear some proportion to the injury sustained. 6 One court
has said that the measure of an owner's recovery for damages to real property is the cost of restoration of the
property to the condition it was in prior to the injury or, where that is impracticable, then the difference between the
value of the property before and after the injury is the correct measure. 7 Another court has said that replacement
cost and diminution in market value are simply two sides of the same coin when measuring damages for injury
to real property as each is a proper way to measure lost property value, the lower of the two figures affording
full compensation to the owner. 8
Where the thing that is destroyed or injured, although a part of, or attached to, the realty, has a distinct value without
reference to the realty on which it stands or from which it grows, the recovery is for the value or depreciation
of value of the thing destroyed or injured, and not for the difference in the value of the land before and after the
destruction. 9 The recovery may be the value of the thing destroyed or the cost of its repair. 10
Damages arising from temporary injury to land may be measured by different standards, depending on the
varying circumstances of each particular case. 11 Where damage to real property is not permanent, the measure of
recovery is the reasonable expense of repairing the injury 12 plus the intervening loss of rental value for the period
reasonably needed to repair the injury. 13 This is particularly true where the adoption of the difference in value as
the measure of damages would be difficult and uncertain, 14 or where the injury is not so much to the land itself as
to improvements thereon. 15 The recovery is limited to the cost of restoring the premises to their original condition
and does not extend to that of placing them in better condition than they were in originally. 16 In an action based
on temporary injury to noncommercial real estate, a plaintiff need not prove diminution in the market value of the
property in order to recover the reasonable costs of restoration, but either party may offer evidence of diminution
of the market value of the property as a factor bearing on the reasonableness of the cost of restoration. 17
In regard to temporary injury to property, if the cost of restoration exceeds the value of the premises in their
original condition, or in the diminution in market value, the latter are the limits of recovery. 18 However, because
the goal of compensatory damages is reimbursement of the actual loss suffered, the rule precluding recovery in
excess of the diminution in value is not of invariable application. 19
The reduction in value to real property caused by damage cannot exceed the property's fair market value
immediately prior to the injury unless, as a result of the injury, the landowner is legally obligated to incur costs that
exceed that value, e.g., the injury consisted of dumping toxic substances on the property that the landowner was
legally obligated to clean up, and the clean-up cost exceeded the property's fair market value prior to the injury. 20
Relevant diminution in value is not necessarily limited to the portion of the land that was damaged, and depending
upon the circumstances, damage to a portion of the land can diminish the fair market value of the remainder. 21
Depreciation of rental value.

As bearing on the question of diminution of value, even in cases of permanent injury, diminution in the rental
value of the premises may be shown. 22 Where an injury to land is temporary, the measure of damages may be,
or should include, the depreciation in the reasonable rental value of the land from the time of the injury. 23 Where
the injury is due to a continuing wrong for which successive recoveries may be had, the measure of damages is
not the diminution of the value of the land but the diminution in its rental value. 24
Loss of use or enjoyment.

Where the injury is temporary, the measure of damages may include recovery for the loss, or diminution in the
value, of the use of the premises during the time that the injury exists 25 or during the period for which the action
is brought. 26 Where land is susceptible of more than one use, but the uses are necessarily incompatible, the
amount of injury is to be determined on the basis of the availability of the land for its best, most valuable, or
most advantageous use. 27 Where the defendant's wrongful act has deprived the plaintiff temporarily of the use
and enjoyment of his or her property, the plaintiff is entitled to recover therefor and is not limited to the mere
cost of restoring the property to its former condition. 28 Thus, where the plaintiff has been deprived of the use of
premises, as by reason of injuries to them, he or she may recover their rental value for the time during which he
or she is deprived of their use. 29 Damages for loss of use of property are to be measured by the injury actually
sustained. 30 The claim for compensation cannot be met by showing that the damages would be lessened if the
property were devoted to other uses. 31
Injury to part of tract.

Unless circumstances render a division necessary, the logical and proper method of computing damages for
injuries to a part of land is to treat the estate as a whole. 32 Where the injury is to only a small parcel composing
part of a larger tract, which does not depreciate the market value of the entire tract, the measure of damages must
be based on the portion destroyed. 33
Special value.
Individuals may value land for specific and personal reasons, and in such instances, justice requires that an award
for damages restore these property owners to the position they enjoyed prior to a tortfeasor's interference. 34
Cases:
To justify an award of restoration damages based on harm to real property, the landowner must demonstrate a
reason personal to indicate circumstances where the owner holds property primarily for use rather than for sale
and where the owner is likely to make repairs with the restoration costs award rather than to pocket the funds and
enjoy a windfall. Chung v. Rora Park, 339 P.3d 351 (Alaska 2014).
Although determining damages for loss of use and enjoyment of real property must be flexible and based
on the factual circumstances of each case, such damages must also be capable generally of reasonable
measurement, rather than purely speculative. Exxon Mobil Corp. v. Albright, 432 Md. 67, 67 A.3d 1100 (2013),
on reconsideration in part on other grounds, 432 Md. 199, 67 A.3d 1181 (2013).
The proper measure of damages for damage to real property, including commercial real property, is the reasonable
cost of repair, rather than diminution in value, and, thus, a plaintiff's failure to present evidence on diminution
in value does not destroy its entire case. B & B Contrs. & Developers, Inc. v. Olsavsky Jaminet Architects, Inc.,
2012-Ohio-5981, 984 N.E.2d 419 (Ohio Ct. App. 7th Dist. Mahoning County 2012).
Diminution in value is the proper measure of damages for permanent injury to land. Marin Real Estate Partners,
L.P. v. Vogt, 373 S.W.3d 57 (Tex. App. San Antonio 2011), rule 53.7(f) motion granted, (Mar. 30, 2012).
When residential real property is damaged, the owner may recover damages for the reasonable cost of repairing it
even if the costs exceed its fair market value before the damage; the owner may also recover the related expenses
stemming from the injury, annoyance, inconvenience, and aggravation, and loss of use during the repair period;
if the damage cannot be repaired, then the owner may recover the fair market value of the property before it was
damaged, plus the related expenses stemming from the injury, annoyance, inconvenience, and aggravation, and
loss of use during the time he has been deprived of his property. Brooks v. City of Huntington, 768 S.E.2d 97
(W. Va. 2014).
If the damage to the real property due to defective construction or breach of the warranty of habitability is so
extensive as to substantially amount to a taking of the property, the measure of damages will be the difference in the
market value before and after the damage is inflicted; if the damage is not so extensive as to substantially amount
to a taking, the cost of repairs to the property will measure the damages, with incidental damages recoverable in
some instances, but in any case, the lower of the two figures, cost of repairs as compared to the difference in value
before and after, will demonstrate the damage ceiling. Restatement (Second) of Contracts 348. Legacy Builders,
LLC v. Andrews, 2014 WY 103, 335 P.3d 1063 (Wyo. 2014).
[END OF SUPPLEMENT]
Footnotes
Wash.Thompson v. King Feed & Nutrition Service, Inc., 153 Wash. 2d 447, 105 P.3d 378 (2005).
1
Ala.Birmingham Coal & Coke Co., Inc. v. Johnson, 10 So. 3d 993 (Ala. 2008).
2
3
4
5
6
7
8
9
10
11
12
Mont.Lampi v. Speed, 2011 MT 231, 362 Mont. 122, 261 P.3d 1000 (2011).
Ala.Poffenbarger v. Merit Energy Co., 972 So. 2d 792 (Ala. 2007).
368 (2007).
D.C.Wood v. Neuman, 979 A.2d 64 (D.C. 2009).
N.Y.Fisher v. Qualico Contracting Corp., 98 N.Y.2d 534, 749 N.Y.S.2d 467, 779 N.E.2d 178 (2002).
Cal.Charles v. Reuck, 179 Cal. App. 2d 145, 3 Cal. Rptr. 490 (3d Dist. 1960).
Ill.Kremeyer v. Shumate, 20 Ill. App. 2d 542, 156 N.E.2d 271 (2d Dist. 1959).
Tex.Cummer-Graham Co. v. Maddox, 155 Tex. 284, 285 S.W.2d 932 (1956).
Cal.Menzies v. Geophysical Service, Inc., 116 Cal. App. 2d 419, 254 P.2d 51 (4th Dist. 1953).
Tex.Humble Pipe Line Co. v. Day, 172 S.W.2d 356 (Tex. Civ. App. Waco 1943), writ refused w.o.m., (June 23,
1943).
368 (2007).
Environmental cleans up
Ark.Felton Oil Co., L.L.C. v. Gee, 357 Ark. 421, 182 S.W.3d 72 (2004).
13
14
15
Meaning of temporary damage

An injury qualifies as "temporary," for purposes of an award of restoration damages for injury to property, if the
tortfeasor could restore the destroyed property to substantially the condition in which it existed before the injury.
IowaGraessle v. Carpenter, 70 Iowa 166, 30 N.W. 392 (1886).
Neb.Koyen v. Citizens' Nat. Bank, 107 Neb. 274, 185 N.W. 413 (1921).
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
Wash.Burr v. Clark, 30 Wash. 2d 149, 190 P.2d 769 (1948).

Conn.Whitman Hotel Corp. v. Elliott & Watrous Engineering Co., 137 Conn. 562, 79 A.2d 591 (1951).
Ky.Jefferson County v. Pohlman, 243 Ky. 556, 49 S.W.2d 344 (1932).
OhioMartin v. Design Constr. Servs., Inc., 121 Ohio St. 3d 66, 2009-Ohio-1, 902 N.E.2d 10 (2009).
368 (2007).
IdahoFarr West Investments v. Topaz Marketing L.P., 148 Idaho 272, 220 P.3d 1091 (2009).
Md.Bernstein v. Merekel, 126 Md. 454, 95 A. 55 (1915).
U.S.Stanford v. Tennessee Val. Authority, 18 F.R.D. 152 (M.D. Tenn. 1955).
OhioCity of Norwood v. Sheen, 126 Ohio St. 482, 186 N.E. 102, 87 A.L.R. 1375 (1933).
Tex.City of Abilene v. Walker, 309 S.W.2d 494 (Tex. Civ. App. Eastland 1958).
Release of hazardous material
A party's recovery for damages to real property caused by the release of hazardous material is limited to the loss of
rental value of the property for a period of time reasonably necessary to repair the damage.
Mass.Guaranty-First Trust Co. v. Textron, Inc., 416 Mass. 332, 622 N.E.2d 597 (1993).
Tex.Gulf, B. & G.N. Ry. Co. v. Roberts, 86 S.W. 1052 (Tex. Civ. App. 1905).
Kan.Alexander v. Arkansas City, 193 Kan. 575, 396 P.2d 311 (1964).
Or.Parker v. Harris Pine Mills, 206 Or. 187, 291 P.2d 709, 56 A.L.R.2d 382 (1955).
Tex.Bradley v. McIntyre, 373 S.W.2d 389 (Tex. Civ. App. Houston 1963), writ refused n.r.e., (Apr. 1, 1964).
Loss of profits
The appropriate measure of damages for the tortious act of the temporary discharge of untreated wastewater on real
property held for commercial sale as residential lots is the owner's loss of profits during the period in which the lots
could not be sold due to the accumulation of the wastewater rather than the amount of interest paid on the property
during the temporary injury.
OhioHenderson v. Spring Run Allotment, 99 Ohio App. 3d 633, 651 N.E.2d 489 (9th Dist. Wayne County 1994).
Tex.Lone Star Gas Co. v. Hutton, 58 S.W.2d 19 (Tex. Comm'n App. 1933).
Kan.Steifer v. City of Kansas City, 175 Kan. 794, 267 P.2d 474 (1954).
N.H.Barker v. Publishers' Paper Co., 78 N.H. 571, 103 A. 757 (1918).
Ark.Ross & Ross v. St. Louis, I.M. & S. Ry. Co., 120 Ark. 264, 179 S.W. 353 (1915).
Neb.Baburek v. Skomal, 176 Neb. 832, 127 N.W.2d 731 (1964).
Cal.Sacchi v. Bayside Lumber Co., 13 Cal. App. 72, 108 P. 885 (3d Dist. 1910).
IowaConklin v. City of Des Moines, 189 Iowa 181, 178 N.W. 353 (1920).
Mich.Bissell v. Ford, 176 Mich. 64, 141 N.W. 860 (1913).
Tex.General Crude Oil Co. v. Aiken, 162 Tex. 104, 344 S.W.2d 668 (1961).
Cal.Gordon v. Perkins, 36 Cal. App. 90, 171 P. 698 (1st Dist. 1918).
IdahoWeitz v. Green, 148 Idaho 851, 230 P.3d 743 (2010).
End of Document
151.Double damages, 25 C.J.S. Damages 151

Damages
(a) In General
151. Double damages
Double damages may not be recovered for injuries to realty.
Double damages are not legally recoverable for injuries to realty. 1 The plaintiff cannot have a recovery for
permanent depreciation of the value of his or her premises and also for the cost of restoration to their former
condition. 2 Where depreciation in value is the proper measure of damage, damages for loss of enjoyment of
property are not recoverable. 3 Thus, where damages, because of the diminished enjoyment or use of the property,
are claimed and also damages for permanent injury, the two awards must not be allowed to overlap. 4 Likewise,
where a recovery for permanent injury is had, consisting of the decrease in the value of the land, no recovery for
its decreased rental value is permitted. 5 Where, however, the injury is not permanent, the landowner, in addition
to the cost of restoring the premises to their original condition, may recover compensation for the loss of use; 6
or of rent; 7 or for depreciation in rental value, 8 pending restoration; or loss of income pending restoration with
reasonable expenditure, effort, and expedition. 9
There cannot be a recovery of the full value of land permanently destroyed and also for loss of crops subsequently
planted thereon. 10 Thus, where soil is wrongfully taken and removed from land, the owner cannot recover both
the market value of the soil severed and the diminution of the market value of the land. 11 Where, however, timber
is removed, the damages may include a sum for the amount of loss occasioned by the cutting and removing of the
timber and also for the leaving of rubbish scattered on the land. 12
Footnotes
Fla.Standard Oil Co. v. Dunagan, 171 So. 2d 622 (Fla. Dist. Ct. App. 3d Dist. 1965).
1
151.Double damages, 25 C.J.S. Damages 151
3
4
5
6
7
8
9
10
11
12
Ala.Illinois Cent. R. Co. v. Elliott, 17 Ala. App. 134, 82 So. 582 (1919).
Fla.Atlantic Coast Line R. Co. v. Saffold, 130 Fla. 598, 178 So. 288 (1938).
La.Ellis v. New Orleans Great Northern R. Co., 169 La. 797, 126 So. 64 (1930).
Ill.Kugel v. Village of Brookfield, 322 Ill. App. 349, 54 N.E.2d 92 (1st Dist. 1944).
Tex.Pickens v. Harrison, 151 Tex. 562, 252 S.W.2d 575 (1952).
Cal.Natural Soda Products Co. v. City of Los Angeles, 23 Cal. 2d 193, 143 P.2d 12 (1943).
W.Va.Akers v. Ashland Oil & Refining Co., 139 W. Va. 682, 80 S.E.2d 884 (1954).
W.Va.Akers v. Ashland Oil & Refining Co., 139 W. Va. 682, 80 S.E.2d 884 (1954).
IowaBrown Land Co. v. Lehman, 134 Iowa 712, 112 N.W. 185 (1907).
Mass.Belkus v. City of Brockton, 282 Mass. 285, 184 N.E. 812 (1933).
Ala.Goodyear Tire & Rubber Co. of Ala. v. Gadsden Sand & Gravel Co., 248 Ala. 273, 27 So. 2d 578 (1946)
(overruled in part on other grounds by, Bradley & McWhirter, Inc. v. Conklan, 278 Ala. 395, 178 So. 2d 551 (1965)).
Colo.Larimer & Weld Irr. Co. v. Landers, 26 Colo. App. 1, 141 P. 517 (1914).
Ga.City of Atlanta v. Holcomb, 20 Ga. App. 601, 93 S.E. 259 (1917).
Ind.Halstead v. Sigler, 35 Ind. App. 419, 74 N.E. 257 (1905).
End of Document
152.Buildings and other structures, 25 C.J.S. Damages 152

Damages
(b) Particular Kinds of Property
152. Buildings and other structures
The measure of damages for injury to, or destruction of, buildings or other structures is the amount of
the loss, which may be the difference in the value of the realty before and after the injury, the value of the
building or structure, or, where practicable, the cost of restoration.
While primarily the amount of recovery for the injury to, or destruction of, a building or other structure is the
amount of the loss, 1 no hard and fast rule can be laid down for all cases as to the measure of damages. 2 Where
the ownership of the building and of the land is in the same person, or where the building is considered as a part
of the real estate, the measure of damage in case of injury to, or partial or total destruction of, the building or other
structure is the difference in the value of the realty immediately before and after the injury. 3 This is particularly
the case where restoration of the building or other structure is impossible or impracticable. 4
On the other hand, sometimes on the theory that buildings have a value apart from the realty on which they stand, 5
there is authority for the view, particularly where the buildings are destroyed without other injury to the freehold,
that the value of the buildings destroyed is to be taken as a measure of damages. 6 This rule has been applied
where the action is brought for injury to buildings as apart from the realty although the rule first stated, based on
diminution of the value of the real estate, is also recognized. 7 Indeed, the two methods have been declared to be a
distinction without a difference, since the results obtained are the same under either method, 8 although a possible
difference in the results obtained has also been pointed out. 9
The measure of damages may be the cost of restoration or repair where the building or other structure can be
restored to substantially the condition it was in prior to the injury, 10 at least where such cost is less than the
diminution in the value of the structure 11 or is less than its value before the damage was inflicted. 12 Defendant
is not required to pay for a new and modern structure, disregarding the obsolescent condition of the structure
when damaged. 13 To the cost of restoration may be added, in a proper case, the loss of rental, 14 or of use, 15
or diminution in the value of the use of the property, 16 during the time required for repairs, with a deduction, if
such be the case, for the cost of restoring the property with new material more valuable than that destroyed. 17
Lack of market value.

Where a building is without market value, its real or ordinary cash value is to be obtained from a consideration of
other factors, such as its cost, the uses to which it has been put, and its age, condition, and location. 18 The price
at which the owner has contracted to sell it is not controlling. 19
Replacement cost.
The replacement cost or value may be considered with respect to estimating damages, 20 but it does not necessarily
constitute the measure of damages, 21 although, under the particular circumstances of the case, it may do so. 22
The cost of a new building to replace an old one may be shown as a guide to a correct estimate of the value of
the old building 23 except where from the character of the building destroyed or damaged such evidence would
be misleading as to the true measure of damages. 24
Ownership of building and land in different persons; leased premises.

Where the ownership of the building and the land is not in the same person, the measure of damages is the
reasonable market value of the building less the cost of removal 25 and the value of the wrecked material restored
to plaintiff. 26 There is also authority that, under such circumstances, the measure of damages is the value the
building would have possessed had it been moved, less the cost of moving, 27 or the cost of restoring the building
to the condition that it was in at the time of the damage. 28 The correct measure of damages to be applied to
a subrogation case involving the destruction of leased premises is the reasonable value of the building when
destroyed rather than the value of the insured's leasehold interest. 29
Fences.
While there is authority that the measure of damages for the destruction of a fence is the cost of replacing it in its
former condition, 30 and not the replacement cost of a new fence, 31 there is also authority that the measure of
damages is the value of the fence, 32 which value is not the market value of the fence but the value of the fence
as an enclosure to the plaintiff's land. 33 Another measure of damages that has been adopted is the difference
between the value of the land before and after the injury. 34
Telephone line.
A telephone line may be treated as real estate for the purpose of applying a rule of damages if to do so will enable
a more accurate and satisfactory determination of the amount of damages to be made. 35
Cases:
When property is so damaged that it cannot be restored, e.g., when a house is burned to the ground, the tortfeasor is
liable for the amount by which the value of the property has diminished; however, when the property is damaged
in such a way that it can be restored, as when a house suffers smoke and water damage in a fire, the tortfeasor is
liable for the costs of restoring the property to its former condition, up to the total value of the property. Evenson
v. Lilley, 282 P.3d 610 (Kan. 2012).
[END OF SUPPLEMENT]
Footnotes
Miss.Long v. Magnolia Hotel Co., 236 Miss. 655, 111 So. 2d 645 (1959), suggestion of error sustained on other
1
4
5
6
7
8
9
10
11
12
grounds, 236 Miss. 655, 114 So. 2d 667 (1959).

Neb.Joiner v. Pound, 149 Neb. 321, 31 N.W.2d 100 (1948).
N.M.Snider v. Town of Silver City, 56 N.M. 603, 247 P.2d 178 (1952).
U.S.Cameron, Joyce & Co. v. McLouth, 70 F.2d 6 (C.C.A. 7th Cir. 1934).
IowaBritven v. Occidental Ins. Co., San Francisco, Cal., 234 Iowa 682, 13 N.W.2d 791 (1944).
Neb.Davenport v. Intermountain Ry., Light & Power Co., 108 Neb. 387, 187 N.W. 905 (1922).
Colo.Lembke Plumbing and Heating v. Hayutin, 148 Colo. 334, 366 P.2d 673 (1961).
Minn.Rinkel v. Lee's Plumbing & Heating Co., 257 Minn. 14, 99 N.W.2d 779 (1959).
N.D.Mischel v. Vogel, 96 N.W.2d 233 (N.D. 1959).
Wis.Steel v. Ritter, 16 Wis. 2d 281, 114 N.W.2d 436 (1962).
Ga.Mercer v. J & M Transp. Co., 103 Ga. App. 141, 118 S.E.2d 716 (1961).
Ky.River Queen Coal Co. v. Mencer, 379 S.W.2d 461 (Ky. 1964).
Cal.Givens v. Markall, 51 Cal. App. 2d 374, 124 P.2d 839 (3d Dist. 1942).
Ky.Stewart v. Sizemore, 306 S.W.2d 821 (Ky. 1957).
Mo.Thomas v. Boone Elec. Co-op., 277 S.W.2d 640 (Mo. Ct. App. 1955).
Tex.Wilson v. Modica, 80 S.W.2d 411 (Tex. Civ. App. Beaumont 1935).
Tex.Taylor v. Gossett, 269 S.W. 230 (Tex. Civ. App. Dallas 1925), writ dismissed w.o.j., (Apr. 8, 1925).
Mo.Matthews v. Missouri Pac. Ry. Co., 142 Mo. 645, 44 S.W. 802 (1897).
U.S.Brooklyn Waterfront Terminal Corp. v. International Terminal Operating Co., 211 F. Supp. 702 (S.D. N.Y.
1962), order aff'd, 311 F.2d 221 (2d Cir. 1962).
Ga.Southern Ry. Co. v. Wooten, 110 Ga. App. 6, 137 S.E.2d 696 (1964).
Ky.Business Realty, Inc. v. Noah's Dove Lodge No. 20, 375 S.W.2d 389 (Ky. 1963).
N.Y.Ferreri v. Dworman Associates, Inc., 34 Misc. 2d 1053, 231 N.Y.S.2d 399 (Sup 1962).
OhioZaras v. City of Findlay, 112 Ohio App. 367, 16 Ohio Op. 2d 306, 176 N.E.2d 451 (3d Dist. Hancock County
1960).
Pa.Dussell v. Kaufman Const. Co., 398 Pa. 369, 157 A.2d 740, 79 A.L.R.2d 957 (1960).
"Lesser than" measure of damages
Under the "lesser than" measure of damages for a negligently damaged building, the owner is entitled to recover the
entire cost of restoring the damaged building to its former condition unless such cost exceeds its diminution in value
as the result of the injury, in which event the recovery must be limited to the amount of such diminution.
Wash.Thompson v. King Feed & Nutrition Service, Inc., 153 Wash. 2d 447, 105 P.3d 378 (2005).
U.S.T. H. Browning S. S. Co. v. F. H. Peavey & Co., 235 F.2d 5 (8th Cir. 1956).
Mich.Ziegler v. Predmore, 341 Mich. 639, 68 N.W.2d 130 (1955).
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
U.S.Brooklyn Waterfront Terminal Corp. v. International Terminal Operating Co., 211 F. Supp. 702 (S.D. N.Y.
1962), order aff'd, 311 F.2d 221 (2d Cir. 1962).
Ky.Price Bros. v. City of Dawson Springs, 190 Ky. 349, 227 S.W. 470 (1921).
U.S.Russell v. U.S., 113 F. Supp. 353 (M.D. Pa. 1953).
grounds, 236 Miss. 655, 114 So. 2d 667 (1959).
Ariz.City of Globe v. Rabogliatti, 24 Ariz. 392, 210 P. 685 (1922).
Ky.States Corporation v. Shull, 216 Ky. 57, 287 S.W. 210 (1926).
La.Reisz v. Kansas City Southern R. Co., 148 La. 929, 88 So. 120 (1921).
Ky.Prestonsburg Superior Oil Gas Co. v. Vance, 215 Ky. 77, 284 S.W. 405, 47 A.L.R. 483 (1926).
Mich.Fite v. North River Ins. Co., 199 Mich. 467, 165 N.W. 705 (1917).
La.Southwestern Elec. Power Co. v. Canal Ins. Co., 121 So. 2d 769 (La. Ct. App. 2d Cir. 1960).
Miss.Sears, Roebuck & Co. v. Creekmore, 199 Miss. 48, 23 So. 2d 250 (1945).
Ill.Johnson v. Pagel Clikeman Co., 343 Ill. App. 346, 99 N.E.2d 148 (2d Dist. 1951).
N.Y.Town of Greenburgh v. J.F. Shea Co., 48 N.Y.S.2d 69 (Sup 1944), judgment aff'd, 268 A.D. 998, 51 N.Y.S.2d
862 (2d Dep't 1944).
Ky.Louisville & N.R. Co. v. Home Ins. Co. of New York, 146 Ky. 281, 142 S.W. 398 (1912).
Miss.Sears, Roebuck & Co. v. Creekmore, 199 Miss. 48, 23 So. 2d 250 (1945).
grounds, 236 Miss. 655, 114 So. 2d 667 (1959).
Cal.Gosliner v. Briones, 187 Cal. 557, 204 P. 19 (1921).
Ky.Ohio Valley Electric Ry. Co. v. Scott, 172 Ky. 183, 189 S.W. 7 (1916).
Tex.Heidelberg v. Newton, 292 S.W. 909 (Tex. Civ. App. Texarkana 1927).
Ga.Southern Ry. Co. v. Wooten, 110 Ga. App. 6, 137 S.E.2d 696 (1964).
Ky.Continental Ins. Co. v. Plummer, 904 S.W.2d 231 (Ky. 1995).
Ark.Barnes v. Young, 238 Ark. 484, 382 S.W.2d 580 (1964).
Ky.Louisville & N. R. Co. v. Howe, 243 S.W.2d 905 (Ky. 1951).
Mo.Bolton v. Missouri-Kansas-Texas R. Co., 373 S.W.2d 169 (Mo. Ct. App. 1963).
Ark.Barnes v. Young, 238 Ark. 484, 382 S.W.2d 580 (1964).
La.Newman v. Louisiana & A. Ry. Co., 19 So. 2d 668 (La. Ct. App. 2d Cir. 1944).
S.C.Hall v. Seaboard Air Line Ry. Co., 126 S.C. 330, 119 S.E. 910, 33 A.L.R. 292 (1923).
Tex.W.R. Pickering Lumber Co. v. Bussey, 294 S.W. 665 (Tex. Civ. App. Beaumont 1927).
Tex.Gulf, C. & S.F. Ry. Co. v. Wallace, 14 Tex. Civ. App. 386, 37 S.W. 382 (1896).
Ala.Alabama Great Southern R. Co. v. Russell, 254 Ala. 701, 48 So. 2d 249 (1949).
Ga.Georgia R. R. & Banking Co. v. Flynt, 93 Ga. App. 514, 92 S.E.2d 330 (1956).
Ky.Kentucky Utilities Co. v. Consolidated Tel. Co., 252 S.W.2d 437 (Ky. 1952).
End of Document
153.Crops, 25 C.J.S. Damages 153

Damages
153. Crops
The measure of damages for the destruction of, or injury to, a crop is its value at the time and place of
destruction.
The measure of damages for the entire destruction of a growing crop is its value at the time and place of
destruction, 1 not the difference in the value of the land before and after the destruction of the crop. 2 A similar
rule has been applied in the case of the destruction of a matured crop. 3 The measure of damages to a growing
crop that is injured, but not rendered worthless, is the difference between the value of the crop before and after
the injury at the time and place thereof. 4 In either case, interest from the date of injury may be included in the
measure of damages. 5 The amount of loss must be determined as of the time of the injury or destruction. 6 Hence,
the market value at the time of maturity does not in itself furnish a proper measure of damages. 7
It has been said that in crop-damage cases, the measure of damages for the destruction of a mature crop is the
difference between the value of the mature crop if there had been no injury and the value of the actual crop
harvested, less the necessary costs of harvesting and transporting the crop to market, and thus, when a mature crop
is destroyed, damages may be proved by showing the market value of the crop, less the necessary costs of finishing,
harvesting, and transporting the crop to market. 8 On the other hand, the measure of damages for the destruction
of an unmatured growing crop is the value the crop would have had if it had matured, minus any savings to the
plaintiff in the costs of producing, harvesting, and transporting the crop to market, and damages based upon the
value of an unmatured crop are analogous to profits lost and are governed by the same rule precluding recovery
in cases of either uncertainty or remoteness. 9
The true value of a crop must be arrived at from a consideration of numerous facts and factors, 10 among which
are the kind of crops that the land will ordinarily yield, 11 the probable yield or value under proper cultivation, 12
the average yield per acre of similar land in the neighborhood cultivated in the same way, 13 and the stage of
advancement at which the crop was when injured or destroyed. 14 There must be considered and subtracted from
the amount recoverable the expenses that would have been incurred after the injury in producing the crop, 15 such
as for cultivating, gathering, threshing, or harvesting the crop. 16 Also to be considered, in this same connection,
are expenses in marketing it, 17 including expenses in fitting or preparing it for market, 18 and transporting it to
market. 19
The market value of the crop, 20 the market value of the probable crop, without the injury or destruction, at the
time of maturity, 21 and circumstances bearing on the probability of maturing the crop in the absence of the
injury 22 are also factors for consideration. The difference between such probable value in the market and the cost
of finishing the cultivation and gathering, preparing, and transportation to market will represent the value at the
time of loss. 23 These expenses may be subject to challenge as to their reasonableness. 24
Continuing injuries.
Where a crop is injured, from time to time throughout its growing season until its maturity, but is not destroyed, so
that it is cultivated throughout the season, harvested and marketed, the damage may be measured by the difference
between the value at maturity of the probable crop if there had been no injury and the value of the actual crop at
that time, less the expense of fitting for market that portion of the probable crop that was prevented from maturing
by the injury. 25
New crop.
Where a new crop is planted after the old one has been destroyed, the person inflicting the injury is entitled, in
the measure of damages, to credit for the profit on the new crop, that is, the value of such new crop less the cost
of producing, gathering, and marketing it. 26
Perennial crops.
Where a perennial crop is destroyed, the measure of damages is the difference in the value of the land with the
growing crop and its value after the destruction thereof. 27 Proof of the value of the perennial crops destroyed to
the land for the purpose of occupancy is proper. 28
Stipulated share.
Where crops partially or completely destroyed through breach of a lease or contract are produced on a stipulated
share, only the portion that belongs to the complaining party is to be considered in estimating the damages
sustained. 29
Footnotes
Ark.Sullivan v. Voyles, 249 Ark. 948, 462 S.W.2d 454 (1971).
1
Kan.Binder v. Perkins, 213 Kan. 365, 516 P.2d 1012 (1973).
2
3
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
La.Aultman v. Rinicker, 416 So. 2d 641 (La. Ct. App. 2d Cir. 1982).
Ala.Alabama Great Southern R. Co. v. Russell, 254 Ala. 701, 48 So. 2d 249 (1949).
Colo.Smith v. Eichheim, 147 Colo. 180, 363 P.2d 185 (1961).
Neb.Ballmer v. Smith, 158 Neb. 495, 63 N.W.2d 862 (1954).
Okla.Hamburger v. Davis, 1952 OK 366, 207 Okla. 351, 249 P.2d 723 (1952).
U.S.Dietz v. Consolidated Oil & Gas, Inc., 643 F.2d 1088, 8 Fed. R. Evid. Serv. 219 (5th Cir. 1981).
N.D.Eichenberger v. Wilhelm, 244 N.W.2d 691, 20 U.C.C. Rep. Serv. 63 (N.D. 1976).
Or.Wood v. Woodcock, 276 Or. 49, 554 P.2d 151 (1976).
Wis.Cutler Cranberry Co., Inc. v. Oakdale Elec. Co-op., 78 Wis. 2d 222, 254 N.W.2d 234 (1977).
La.Murff v. Louisiana Highway Commission, 146 So. 328 (La. Ct. App. 2d Cir. 1933).
Tex.Gerhart v. Harris County, 244 S.W. 1103 (Tex. Civ. App. Beaumont 1922), writ granted, (Jan. 3, 1923) and
aff'd, 115 Tex. 449, 283 S.W. 139 (1926).
Cal.Parks v. Atwood Crop Dusters, Inc., 118 Cal. App. 2d 368, 257 P.2d 653 (4th Dist. 1953).
Okla.Wilcox Oil Co. v. Lawson, 1959 OK 138, 341 P.2d 591 (Okla. 1959).
Wyo.Redwine v. Fitzhugh, 78 Wyo. 407, 329 P.2d 257, 72 A.L.R.2d 664 (1958).
Ill.Libbra v. Mt. Olive & Staunton Coal Co., 29 Ill. App. 2d 396, 172 N.E.2d 813 (4th Dist. 1961).
La.Ingargiola v. Schnell, 11 So. 2d 281 (La. Ct. App., Orleans 1942).
Neb.Pribil v. Koinzan, 266 Neb. 222, 665 N.W.2d 567 (2003).
Cal.Dutra v. Cabral, 80 Cal. App. 2d 114, 181 P.2d 26 (3d Dist. 1947).
Neb.Gable v. Pathfinder Irr. Dist., 163 Neb. 349, 79 N.W.2d 708 (1956).
Okla.Shannon v. Bridges, 1946 OK 50, 196 Okla. 481, 165 P.2d 976 (1946).
Ill.Chicago & R.I.R. Co. v. Ward, 16 Ill. 522, 1855 WL 5477 (1855).
U.S.Aerial Agr. Service of Mont. v. Richard, 264 F.2d 341 (5th Cir. 1959).
Mo.Miller v. Sabinske, 322 S.W.2d 941 (Mo. Ct. App. 1959).
La.Trahan v. Bearb, 138 So. 2d 420 (La. Ct. App. 3d Cir. 1962).
Cal.Parks v. Atwood Crop Dusters, Inc., 118 Cal. App. 2d 368, 257 P.2d 653 (4th Dist. 1953).
Ky.City of Marion v. Nunn, 292 Ky. 251, 166 S.W.2d 298 (1942).
Mo.McCrory v. Monroe, 336 S.W.2d 118 (Mo. Ct. App. 1960).
Ariz.Gilliland v. Rodriquez, 77 Ariz. 163, 268 P.2d 334 (1954).
Okla.Black v. Ellithorp, 1963 OK 60, 382 P.2d 23 (Okla. 1963).
S.D.Bruha v. Bochek, 76 S.D. 131, 74 N.W.2d 313 (1955).
Mo.McCrory v. Monroe, 336 S.W.2d 118 (Mo. Ct. App. 1960).
Ariz.Gilliland v. Rodriquez, 77 Ariz. 163, 268 P.2d 334 (1954).
Wyo.Redwine v. Fitzhugh, 78 Wyo. 407, 329 P.2d 257, 72 A.L.R.2d 664 (1958).
S.C.W. R. Grace & Co. (Davison Chemical Co. Division) v. LaMunion, 245 S.C. 1, 138 S.E.2d 337 (1964).
Wis.Peacock v. Wisconsin Zinc Co., 177 Wis. 510, 188 N.W. 641 (1922).
Tex.International-Great Northern R. Co. v. Reagan, 36 S.W.2d 564 (Tex. Civ. App. Waco 1931), writ granted, (July
22, 1931) and aff'd, 121 Tex. 233, 49 S.W.2d 414 (1932).
27
28
29
Colo.Hoover v. Shott, 68 Colo. 385, 189 P. 848 (1920).

Neb.Wischmann v. Raikes, 168 Neb. 728, 97 N.W.2d 551 (1959).
Ariz.Beville v. Allen, 28 Ariz. 397, 237 P. 184 (1925).
End of Document
154.Trees and shrubs, 25 C.J.S. Damages 154

Damages
154. Trees and shrubs
The measure of damages for injury to, or the destruction of, trees, including trees valuable for timber
purposes, is the difference in the value of the land before and after the injury or destruction.
The cardinal principles in the determination of the appropriate measure of damages for the cutting of trees or
shrubbery are the flexibility of the approach and full compensation to the owner within the overall limitation of
reasonableness. 1 The measure of damages for injury to, or the destruction of, trees, including trees valuable for
timber purposes, is the difference in the value of the land before and after the injury or destruction, 2 the value
of the trees being admissible on the question of depreciation in the value of the land. 3 The general measure of
damages for damaged or destroyed noncommercial trees, shrubs, and related vegetation is the difference in the
value of the entire parcel of landdamaged and undamaged portionsimmediately before and after the loss. 4
A similar rule has been applied to ornamental or shade trees, 5 and to orchards or fruit trees. 6 When seeking
an award of damages for damaged or destroyed noncommercial trees, shrubs, and related vegetation, a jury may
consider factors in determining the diminution in value of property, including but not limited to the types and sizes
of the damaged or destroyed trees and shrubs, the purpose for which the destroyed or damaged trees and shrubs
were grown or maintained, the reasonable and practicable replacement costs, and the use of the particular land,
including any aesthetic value to the landowners of such trees and shrubs. 7
According to other authorities, the measure of damages for the destruction of forest trees is their market value
rather than the difference between the value of the land before and after destruction. 8 A like rule is applied in
some jurisdictions to both forest and fruit trees, 9 and the measure of damages for injury to an orchard or fruit
trees is the difference in the value of the trees as they are immediately before, and immediately after, the injury. 10
It is proper to measure damages from destruction of trees either by the diminution in the value of the land or by
the value of the trees destroyed. 11 Where the value of the trees destroyed is capable of ascertainment without
reference to the soil in which they grew, and damage to the soil itself is also ascertainable, the plaintiff is entitled
to recover for both. 12 The measure of damages for the destruction of shade or ornamental trees is their actual
value, 13 which may include elements of sentiment and utility, 14 and the cost of replacement is generally not the
measure of damage. 15 With respect to fruit trees, the cost of replacement is not the true criterion for determining
the loss from their destruction. 16
When seeking an award of damages for damaged or destroyed noncommercial trees, shrubs, and related vegetation,
a landowner may not recover restoration costs that exceed the market value of the entire parcel prior to the loss. 17
When the cost of restoration of property that has sustained damaged or destroyed noncommercial trees, shrubs,
and related vegetation exceeds the diminution in value, then the greater cost of restoration will be allowed when
the landowner has a personal reason relating to the land for restoring the land to its original condition and when
the cost of restoration is reasonable in relation to the damage inflicted. 18
Replacement value is not a proper measure of damages in tree-cutting cases because such a measure of damages
would lead to unreasonable recoveries in excess of the market value of the land, would raise impossible issues in
resolving the replacement values of healthy or partially damaged trees, and cannot be practically applied. 19
Cases:
Restoration costs, even those that exceed diminution in value, may be awarded for damage to trees if there is
a reason personal to the owner for restoring the original condition, or where there is reason to believe that the
plaintiff will, in fact, make the repairs. Kallis v. Sones, 208 Cal. App. 4th 1274, 146 Cal. Rptr. 3d 419 (2d Dist.
2012), review filed, (Sept. 18, 2012).
There is no fixed rule of damages for negligent injury to or destruction of trees, and court has the discretion to
consider more than one measure of damages in order to permit flexibility and achieve a just result; however, court
should not award damages under more than one theory. Evenson v. Lilley, 282 P.3d 610 (Kan. 2012).
[END OF SUPPLEMENT]
Footnotes
UtahPehrson v. Saderup, 28 Utah 2d 77, 498 P.2d 648 (1972).
1
3
4
5
Tex.M. C. Winters, Inc. v. Lawless, 445 S.W.2d 761 (Tex. Civ. App. Eastland 1969), writ refused n.r.e., (Jan. 21,
1970).
Colo.Zwick v. Simpson, 37 Colo. App. 430, 551 P.2d 216 (App. 1976), aff'd in part, rev'd in part on other grounds,
193 Colo. 36, 572 P.2d 133 (1977).
La.Pearce v. L. J. Earnest, Inc., 411 So. 2d 1276 (La. Ct. App. 3d Cir. 1982), writ denied, 414 So. 2d 377 (La. 1982).
Tex.Burris v. Krooss, 563 S.W.2d 875 (Tex. Civ. App. Eastland 1978).
W.Va.Leach v. Biscayne Oil and Gas Co., Inc., 169 W. Va. 624, 289 S.E.2d 197 (1982).
Md.Samson Const. Co. v. Brusowankin, 218 Md. 458, 147 A.2d 430, 69 A.L.R.2d 1326 (1958).
N.J.Busche v. New York, S. & W. R. Co., 10 N.J. Misc. 511, 159 A. 789 (Sup. Ct. 1932).
Fla.Watson v. Jones, 160 Fla. 819, 36 So. 2d 788 (1948).
7
8
9
10
11
12
13
14
15
16
17
18
19
N.Y.Greene v. Mindon Const. Corp., 188 N.Y.S.2d 633 (Sup 1959).

Tex.Moran Corp. v. Murray, 381 S.W.2d 324 (Tex. Civ. App. Texarkana 1964).
IowaGrell v. Lumsden, 206 Iowa 166, 220 N.W. 123 (1928).
Mo.Butcher v. St. Louis-San Francisco Ry. Co., 225 Mo. App. 749, 39 S.W.2d 1066 (1931).
Okla.Thompson v. Boydstun, 1941 OK 344, 189 Okla. 530, 118 P.2d 236 (1941).
Mo.Alcorn v. St. Louis & H.R. Co., 219 Mo. App. 657, 284 S.W. 510 (1926).
W.Va.Danielley v. Virginian Ry. Co., 103 W. Va. 97, 136 S.E. 691 (1927).
Neb.Missouri Pac. R. Co. v. Tipton, 61 Neb. 49, 84 N.W. 416 (1900).
Neb.Kinney v. Chicago, B. & Q.R. Co., 92 Neb. 383, 138 N.W. 577 (1912).
Me.Spear v. Hoffses, 128 Me. 409, 148 A. 146 (1929).
W.Va.Fairview Fruit Co. v. H.P. Brydon & Bro., 85 W. Va. 609, 102 S.E. 231 (1920).
Ala.Jefferson Lumber Co. v. Berry, 247 Ala. 164, 23 So. 2d 7, 161 A.L.R. 544 (1945).
La.Marbury v. Louisiana Highway Commission, 153 So. 590 (La. Ct. App. 2d Cir. 1934).
Kan.Nordgren v. Southwestern Bell Telephone Co., 125 Kan. 33, 262 P. 577 (1928).
Kan.Nordgren v. Southwestern Bell Telephone Co., 125 Kan. 33, 262 P. 577 (1928).
La.City of New Orleans v. Shreveport Oil Co., 170 La. 432, 128 So. 35 (1930).
La.Davis v. Chicago, R. I. & P. Ry. Co., 13 So. 2d 389 (La. Ct. App. 2d Cir. 1943).
Conn.Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 881 A.2d 937 (2005).
End of Document
155.Pasture and meadowland, 25 C.J.S. Damages 155

Damages
155. Pasture and meadowland
The measure of damages for the destruction of the grass or hay on a pasture or meadow is the value of such
crop at the time and place of destruction.
Where an injury to pasture or meadowland results in the destruction of the grass or hay thereon, considered as
a crop, the measure of damages is the value of such crop at the time and place of destruction, 1 in the absence
of permanent injury to the soil by the destruction of the roots of the grass or plants. 2 Where the injury also
results in an injury to the land itself, as by destruction of the turf or grass roots, the plaintiff is entitled to a further
recovery, which by some authorities is measured by the diminution of the value of the land, 3 or, what is practically
equivalent, such amount as will compensate for the injury done to the turf and roots, taking into consideration the
purposes to which the owner was appropriating or desired to appropriate the land or to which it was adapted. 4
According to other authorities, this further recovery is measured by the cost of restoration together with the rental
value of the land during the time required. 5
In case of partial destruction of meadow or grassland, the measure of damages is the difference between the value
immediately before and immediately after. 6 The landowner may recover whatever damages have naturally and
proximately resulted from the injury. 7
Footnotes
Ark.Missouri Pac. R. Co. v. Benham, 192 Ark. 35, 89 S.W.2d 928 (1936).
1
2
3
IowaBaird v. Minneapolis & St. L.R. Co., 214 Iowa 611, 243 N.W. 515 (1932).
Ark.Farm Bureau Lumber Corp. v. McMillan, 211 Ark. 951, 203 S.W.2d 398, 175 A.L.R. 157 (1947).
155.Pasture and meadowland, 25 C.J.S. Damages 155
4
5
6
7
Okla.Hamon v. Gardner, 1957 OK 161, 315 P.2d 669 (Okla. 1957).

Tex.Forbau v. Producers Gas Co., 601 S.W.2d 550 (Tex. Civ. App. Amarillo 1980).
La.Pelloquin v. Missouri Pac. R. Co., 216 So. 2d 686 (La. Ct. App. 3d Cir. 1968).
Tex.Cosden Oil Co. v. Sides, 35 S.W.2d 815 (Tex. Civ. App. Eastland 1931).
Cal.Miller & Lux v. Pinelli, 84 Cal. App. 42, 257 P. 573 (3d Dist. 1927).
Ky.Louisville & N.R. Co. v. Jones, 222 Ky. 531, 1 S.W.2d 972 (1928).
N.D.Beck v. Lind, 235 N.W.2d 239 (N.D. 1975).
IowaPascal v. Chicago, R.I. & P. Ry. Co., 160 Iowa 484, 141 N.W. 920 (1913).
Tex.Chicago, R.I. & G. Ry. Co. v. Word, 158 S.W. 561 (Tex. Civ. App. Amarillo 1913), writ granted, (Mar. 18,
1914) and rev'd on other grounds, 207 S.W. 902 (Tex. Comm'n App. 1919).
End of Document
156.Loss of time and earnings, 25 C.J.S. Damages 156

Damages
3. Measure of Particular Elements
a. In General
156. Loss of time and earnings
Compensation for loss of time resulting from a personal injury is to be measured by the amount of money
that the injured person might reasonably have earned in the same time by the pursuit of his or her ordinary
occupation.
The loss of personal earnings is properly considered as a measure of damages. 1 The measure of damages for
loss of time is the value of the plaintiff's time due to an inability to work, 2 and where there are personal injuries
involving a loss of employment, there is no set formula as to the amount of damages that may be awarded. 3 The
trial court is accorded broad discretion in assessing awards for lost earnings, but there must be a factual basis in
the record for the award. 4
Compensation for the loss of time resulting from a personal injury is to be measured by the amount of money that
the injured person might reasonably have earned in the same time by the pursuit of his or her ordinary occupation, 5
which amount may be ascertained from a consideration of the wages or earnings actually lost by him or her, 6 or
of his or her average earnings, 7 or from a consideration of his or her general qualities and his or her qualifications
for any particular business in which he or she may be engaged. 8 An award of backpay may consist of lost salary,
including anticipated raises. 9
Hence, it may be shown what the plaintiff was earning at the time of the injury. 10 In this connection, "earnings"
are not limited to monetary sums but may be in any form as long as they have monetary value. 11 Speculative
elements or sources of salary or earnings may not be considered. 12
In calculating a plaintiff's damages for accrued loss of earnings because of personal injuries, the award of damages
should be based upon the plaintiff's gross earnings or earning capacity and should not be reduced because of any
income tax or other paycheck-type deduction. 13 Thus, a plaintiff's income taxes, Social Security and Medicare
payments, vacation fund payments, health and life insurance premiums, Christmas club deductions, union dues,
and so forth should not be accounted for when assessing a plaintiff's loss of earnings. 14
Where plaintiff's earnings are not measured by a fixed wage, it is proper to show the business in which he or she
was engaged and the extent and amount of his or her ordinary business, 15 or its average profits, 16 together with
the particular part of the business transacted by him or her, 17 as well as the compensation usually paid to persons
doing such business for others. 18 Where the plaintiff is engaged in the practice of a profession, it is proper to show
the extent and amount of his or her ordinary practice, 19 and his or her earnings therefrom. 20 The proper measure
of damages for his or her loss of time is the amount he or she would have earned by the practice of his or her
profession. 21 It is not proper, however, to take as the standard the market value of the average wages of a person
of the plaintiff's average capacity working in the same employment 22 or the average earnings of persons doing
similar work for another employer in the same field. 23 Neither is it proper to consider what the plaintiff might
have earned had he or she gone to another city, 24 or reengaged in a former business, 25 or secured prospective
employment, 26 or the opinions of witnesses as to what the plaintiff might be capable of earning in vocations in
which he or she had never been employed. 27
There is no distinction between loss of earnings and loss of time as to the necessity of proof of their value, and
in either case, such proof is ordinarily essential to support a recovery. 28 Where the plaintiff is engaged in such
a business that there is no rule by which the value of the time lost from it may be well ascertained, the jury may
in its discretion, from all of the facts before it, award an amount sufficient as reasonable compensation for the
time lost. 29 A similar rule applies in a case where the plaintiff loses time as a result of his or her injuries but is
unable to prove its value because he or she was not at the time of the injury engaged in any service or business. 30
Proper evidence may be admitted for the purpose of showing that the plaintiff was not purposely idle after his
or her injury. 31
Earnings subsequent to injury.

Evidence with respect to gross earnings subsequent to the injury is inadmissible on the issue of loss of earnings
in the absence of evidence as to prior earnings. 32
Time lost by reason of injury to third person.

Where, by reason of an injury to a third person, the plaintiff has lost time from his or her employment while taking
care of such person, the measure of his or her recovery where such lost time constitutes a recoverable element of
damage is the value of his or her time as a caregiver, and not the value of his or her time in his or her occupation
or employment. 33 There is, however, also authority to the contrary. 34
Footnotes
Ala.Feazell v. Campbell, 358 So. 2d 1017 (Ala. 1978).
1
Wis.Fischer v. Cleveland Punch and Shear Works Co., 91 Wis. 2d 85, 280 N.W.2d 280 (1979).
Purpose of backpay
2
3
4
5
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
The purpose of backpay is to place the grievant in the position that the grievant would have been absent a violation
and to completely redress the economic injury the plaintiff has suffered.
D.C.Asylum Co. v. District of Columbia Dept. of Employment Services, 10 A.3d 619 (D.C. 2010).
IowaMiller v. McCoy Truck Lines, 243 Iowa 483, 52 N.W.2d 62 (1952).
Wis.Kowalke v. Farmers Mut. Auto. Ins. Co., 3 Wis. 2d 389, 88 N.W.2d 747 (1958).
UtahJorgensen v. Gonzales, 14 Utah 2d 330, 383 P.2d 934 (1963).
La.Driscoll v. Stucker, 893 So. 2d 32 (La. 2005).
La.McCrory v. Great Am. Indem. Co., 92 So. 2d 742 (La. Ct. App. 2d Cir. 1957).
N.Y.Grayson v. Irvmar Realty Corp., 7 A.D.2d 436, 184 N.Y.S.2d 33 (1st Dep't 1959).
Wis.Kablitz v. Hoeft, 25 Wis. 2d 518, 131 N.W.2d 346 (1964).
La.Leon v. Jackson, 122 So. 2d 102 (La. Ct. App. 2d Cir. 1960).
N.M.Morris v. Cartwright, 57 N.M. 328, 258 P.2d 719 (1953).
R.I.Bernat v. De Gasparre, 85 R.I. 259, 129 A.2d 545 (1957).
Ariz.Valley Transp. System v. Reinartz, 67 Ariz. 380, 197 P.2d 269 (1948).
Ill.Levinthal v. Chicago Transit Authority, 345 Ill. App. 185, 102 N.E.2d 545 (1st Dist. 1951).
La.Breaux v. Valin, 138 So. 2d 405 (La. Ct. App. 3d Cir. 1962).
Tenn.Yellow Bus Line v. Brenner, 31 Tenn. App. 209, 213 S.W.2d 626 (1948).
D.C.Asylum Co. v. District of Columbia Dept. of Employment Services, 10 A.3d 619 (D.C. 2010).
Ill.Cooney v. Hughes, 310 Ill. App. 371, 34 N.E.2d 566 (1st Dist. 1941).
La.McCary v. Manufacturers Cas. Ins. Co., 106 So. 2d 524 (La. Ct. App. 2d Cir. 1958).
Mich.Maxwell v. Wanik, 290 Mich. 106, 287 N.W. 396 (1939).
Del.Winter v. Pennsylvania R. Co., 45 Del. 108, 68 A.2d 513 (Super. Ct. 1949).
Mo.McCarthy v. Sebben, 331 S.W.2d 601 (Mo. 1960).
R.I.Fielding v. Kaplan, 72 R.I. 352, 51 A.2d 492 (1947).
W.Va.Hicks ex rel. Saus v. Jones, 217 W. Va. 107, 617 S.E.2d 457 (2005).
Colo.Nemer v. Anderson, 151 Colo. 411, 378 P.2d 841 (1963).
IowaAmelsburg v. Lunning, 234 Iowa 852, 14 N.W.2d 680 (1944).
N.J.Woschenko v. C. Schmidt & Sons, 2 N.J. 269, 66 A.2d 159, 12 A.L.R.2d 281 (1949).
Ky.Pickering v. Simpkins, 271 Ky. 288, 111 S.W.2d 650 (1937).
Tex.Texas & N. O. R. Co. v. Wood, 166 S.W.2d 141 (Tex. Civ. App. San Antonio 1942).
Ky.Chesapeake & O. Ry. Co. v. Shanks, 260 Ky. 416, 86 S.W.2d 128 (1935).
La.McCrory v. Great Am. Indem. Co., 92 So. 2d 742 (La. Ct. App. 2d Cir. 1957).
Mich.Hunter v. Baldwin, 268 Mich. 106, 255 N.W. 431 (1934).
U.S.City of Nebraska v. Campbell, 67 U.S. 590, 17 L. Ed. 271, 1862 WL 6752 (1862).
Ky.Chesapeake & O. Ry. Co. v. Shanks, 260 Ky. 416, 86 S.W.2d 128 (1935).
U.S.Burlington Transp. Co. v. Josephson, 153 F.2d 372 (C.C.A. 8th Cir. 1946).
Ark.Yost v. Studer, 227 Ark. 1000, 302 S.W.2d 775 (1957).
Mass.Braithwaite v. Hall, 168 Mass. 38, 46 N.E. 398 (1897).
Mo.Wilson v. Kansas City Public Service Co., 354 Mo. 1032, 193 S.W.2d 5 (1946).
Neb.Omaha & R.V.R. Co. v. Ryburn, 40 Neb. 87, 58 N.W. 541 (1894).
IowaDickeson v. Lzicar, 208 Iowa 275, 225 N.W. 406 (1929).
Ga.Atlanta & W.P. Ry. Co. v. Newton, 85 Ga. 517, 11 S.E. 776 (1890).
R.I.Fielding v. Kaplan, 72 R.I. 352, 51 A.2d 492 (1947).
28
29
30
31
32
33
34
Ark.Yost v. Studer, 227 Ark. 1000, 302 S.W.2d 775 (1957).

Tex.Red Arrow Freight Lines v. Gravis, 84 S.W.2d 540 (Tex. Civ. App. San Antonio 1935).
Tex.South Plains Coaches v. Behringer, 32 S.W.2d 959 (Tex. Civ. App. Amarillo 1930), writ dismissed w.o.j., (Jan.
21, 1931).
21, 1931).
U.S.E. I. Du Pont De Nemours Co. v. Hall, 237 F.2d 145 (4th Cir. 1956).
N.Y.Raplee v. City of Corning, 6 A.D.2d 230, 176 N.Y.S.2d 162 (4th Dep't 1958).
Ky.Sedlock v. Trosper, 307 Ky. 369, 211 S.W.2d 147, 13 A.L.R.2d 349 (1948) (overruled in part on other grounds
by, Conley v. Foster, 335 S.W.2d 904 (Ky. 1960)).
N.H.Ernshaw v. Roberge, 86 N.H. 451, 170 A. 7 (1934).
Ark.Western Coal & Mining Co. v. Honaker, 79 Ark. 629, 96 S.W. 361 (1906).
Tex.Pullman Palace-Car Co. v. Smith, 79 Tex. 468, 14 S.W. 993 (1890).
End of Document
157.Loss of time and earningsProfits, 25 C.J.S. Damages 157

Damages
a. In General
157. Loss of time and earningsProfits
In suits for personal injuries, the plaintiff may recover damages for loss of earnings or profits in his or her
business and as evidence thereof may show his or her earnings or profits before and after the injury.
In suits for personal injuries, the plaintiff may recover damages for loss of earnings or profits in his or her business
and as evidence thereof may show his or her earnings or profits before and after the injury. 1 In estimating damages
for loss of time and earnings, the terms "profits" and "earnings" are not synonymous. 2 The plaintiff's income, as
derived from a business that is conducted with little or no capital, but is entirely or almost entirely dependent on
the plaintiff's personal labor, may be considered as affording a measure of damages for loss of time. 3 However,
conjectural profits that might have been derived by the plaintiff had he or she been able to devote his or her time
to a business in which he or she is associated with, or employs the labor of, others, 4 or which constitute a return
on invested capital, 5 cannot be considered. Rather, the plaintiff's recovery is confined to the value of his or her
services in the business. 6 In order to establish the value of the plaintiff's services in his or her business, it is proper
to show the character of the business, together with the capital and assistants employed. 7 It is also proper to show
the profits, not as a distinct element of damage but as showing the value of the plaintiff's time and services. 8
However, evidence of gains and profits from the plaintiff's business has little relevancy to his or her claim for loss
of time from the business by reason of his or her injuries. 9 Furthermore, profits that are remote or speculative
may not be considered on the question of the plaintiff's loss of time. 10
Footnotes
Mo.Stewart v. St. Louis Public Service Co., 233 S.W.2d 759 (Mo. Ct. App. 1950).
1
2

157.Loss of time and earningsProfits, 25 C.J.S. Damages 157
5
6
7
8
9
10

Pa.Apfelbaum v. Markley, 134 Pa. Super. 392, 3 A.2d 975 (1939).
Tex.Red Arrow Freight Lines v. Gravis, 84 S.W.2d 540 (Tex. Civ. App. San Antonio 1935).
Cal.Hoffmann v. Lane, 11 Cal. App. 2d 655, 54 P.2d 477 (1st Dist. 1936).
Mich.Mayala v. Underwood Veneer Co., 281 Mich. 434, 275 N.W. 198 (1937).
End of Document
158.Value of personalty or realty, 25 C.J.S. Damages 158

Damages
a. In General
158. Value of personalty or realty
In determining the question of value as an element of damages, resort is ordinarily to be had to the market
value of the property involved, but in some situations, other factors may be considered or are determinative.
The ascertainment of the value of property for the purpose of measuring damages is not controlled by artificial
rules, and the question is peculiarly one of fact for the determination of the jury. 1 It is not a matter of formulas,
but the recovery must be reasonable, having its basis in a proper consideration of all relevant facts. 2 In cases in
which value is established by the opinion of witnesses, the jurors are not required to take the estimate of any of
the witnesses but may use their own judgment. 3
In determining a question of value, resort is ordinarily to be had to the market value of the property involved. 4
In some cases, however, the market cannot be referred to as a sole standard of value, but such other elements as
are obtainable must be considered, 5 as where the property involved has not been bought and sold so as to have
an established market value, 6 or is so unusual in its character that there is little or no demand for it, 7 or where
the market value cannot be feasibly obtained or determined. 8
Furthermore, the property may be of such character that an award of the market value would not afford due
compensation to the owner, 9 in which case he or she may be entitled to recover the value of the property to him or
her, 10 as in the case of loss of, or injury to, wearing apparel, 11 baggage, 12 or household goods, 13 although he
or she is not entitled to a fanciful or sentimental price or value that he or she may for special reasons place on it. 14
Recovery may be had for the injury, loss, or destruction of property even though it has no actual market value, 15
in which case, plaintiff is entitled to recover its actual or reasonable value, or its special value to him or her. 16
The value of personal property for which there is no local market may be fixed by the market value at the nearest
market, less the cost of transportation thereto, 17 or plus the cost of transportation if kept for use rather than for
sale. 18 Where there is shown to be no market value for personal property at or near the place of the injury, its
intrinsic worth may be shown, on the question of damages, although there may be a market for it in an adjoining
county. 19 Where, however, the evidence shows that there is a market value at the place that, under the general
rule, governs in fixing the damages for its loss or injury, the market value at other places cannot be shown. 20
Either the damage to real property or the cause of the damage can be permanent or temporary, but the rule of
damages applicable in a given case is determined by whether the damage suffered is permanent or temporary
rather than by whether the cause of the damage is permanent or temporary and susceptible of being remedied
and abated. 21
Value for different uses or special purpose.

Where an article has different values as it may be used for different purposes, all of such values should be taken
into consideration, 22 and the owner is entitled to recover the highest value. 23 In establishing the market value of
land, it does not necessarily follow that the landowner is limited to the value of the land for one purpose only; 24 its
market value for any purpose for which it could be sold in the open market must be considered. 25 The adaptability
of property taken or injured for a special purpose affecting its value is an element for the consideration of the
jury in assessing the damages. 26
Time of valuation.
As a general rule, where property is injured or destroyed, its value as bearing on the measure of damages is to
be determined as of the time of the injury or destruction, 27 or at such time as the extent of the injury can be
determined. 28 Thus, when the value of property is to be considered for the purpose of estimating the profits that
would have been derived from the performance of a contract, it is to be taken as of the time at which it is to be
delivered according to the contract. 29
Depreciation.
While there is authority that depreciation, as from use, must be considered in determining the value of property, 30
there is also authority that, under the facts of the case, depreciation may not be a matter to be considered in
determining the value of property. 31
Cases:
Under Texas law, "market value" is the amount a willing buyer, who is under no obligation to buy, would pay
to a willing seller, who is under no obligation to sell; however, not all property has a market value. Factory Mut.
Ins. Co. v. Alon USA L.P., 705 F.3d 518 (5th Cir. 2013).
Measure of damages on homeowner's counterclaims against company that installed heating system in his
home, which alleged that heating system failed, resulting in frozen pipes that caused flooding which destroyed
homeowner's professional photography archive, was fair market value of archive at the time of destruction or, if
none, its value to homeowner; fact that homeowner maintained archive as private collection, rather than marketing
it for sale, did not diminish its value. D.A. Bennett LLC v. Cartz, 113 A.D.3d 945, 979 N.Y.S.2d 179 (3d Dep't
2014).
[END OF SUPPLEMENT]
Footnotes
La.Chaney v. Brumfield Wrecker Service, Inc., 400 So. 2d 1119 (La. Ct. App. 1st Cir. 1981).
1
6
7
8
9
10
11
12
13
14
15
16
Me.Atherton v. Crandlemire, 140 Me. 28, 33 A.2d 303 (1943).

OhioGroves v. Gray, 74 Ohio App. 384, 29 Ohio Op. 580, 59 N.E.2d 166 (9th Dist. Summit County 1942).
U.S.Standard Oil Co. of New Jersey v. Southern Pac. Co., 268 U.S. 146, 45 S. Ct. 465, 69 L. Ed. 890 (1925).
Ill.Chicago, B. & Q. R. R. v. Ommen, 93 Ill. App. 2d 299, 235 N.E.2d 880 (4th Dist. 1968).
La.Howell v. New Orleans Public Service, Inc., 408 So. 2d 7 (La. Ct. App. 4th Cir. 1981), writ denied, 412 So.
2d 1096 (La. 1982).
U.S.Isthmian S. S. Co. v. McElligott, 177 F.2d 591 (5th Cir. 1949).
Conn.Duka v. Hotel Associates, Inc., 1 Conn. Cir. Ct. 332, 23 Conn. Supp. 500, 185 A.2d 86 (App. Div. 1962).
Miss.Leavenworth v. Board of Mississippi Levee Commissioners, 140 So. 518 (Miss. 1932).
AlaskaState v. Stanley, 506 P.2d 1284 (Alaska 1973).
Ind.Sanborn Elec. Co. v. Bloomington Athletic Club, 433 N.E.2d 81 (Ind. Ct. App. 1982).
N.C.Huff v. Thornton, 23 N.C. App. 388, 209 S.E.2d 401 (1974), decision aff'd, 287 N.C. 1, 213 S.E.2d 198 (1975).
Evidence of market value, generally, see C.J.S., Evidence 324.
Ala.White v. Henry, 255 Ala. 7, 49 So. 2d 779 (1950).
Ill.Flynn v. Zimmerman, 23 Ill. App. 2d 467, 163 N.E.2d 568 (2d Dist. 1960).
Neb.Joiner v. Pound, 149 Neb. 321, 31 N.W.2d 100 (1948).
Mo.Monahan v. Scott Cleaning Co., 241 S.W. 956 (Mo. Ct. App. 1922).
IowaMcMahon v. City of Dubuque, 107 Iowa 62, 77 N.W. 517 (1898).
U.S.U.S. v. State of Md., for Use of Meyer, 322 F.2d 1009 (D.C. Cir. 1963), cert. granted, judgment rev'd on other
grounds, 382 U.S. 158, 86 S. Ct. 304, 15 L. Ed. 2d 226 (1965).
Minn.Hohenstein v. Dodds, 215 Minn. 348, 10 N.W.2d 236 (1943).
OhioBishop v. East Ohio Gas Co., 143 Ohio St. 541, 28 Ohio Op. 470, 56 N.E.2d 164 (1944).
U.S.R. T. Jones Lumber Company v. Roen Steamship Company, 270 F.2d 456 (2d Cir. 1959).
U.S.Szekely v. Eagle Lion Films, Inc., 140 F. Supp. 843 (S.D. N.Y. 1956), judgment aff'd, 242 F.2d 266 (2d Cir.
1957).
Conn.Duka v. Hotel Associates, Inc., 1 Conn. Cir. Ct. 332, 23 Conn. Supp. 500, 185 A.2d 86 (App. Div. 1962).
Tex.Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex. 1963).
U.S.Featherston v. Hartford Fire Ins. Co., 146 F. Supp. 535 (W.D. Ark. 1956).
Tex.Railway Exp. Agency, Inc. v. Bennett, 350 S.W.2d 214 (Tex. Civ. App. San Antonio 1961).
W.Va.Barnette v. Casey, 124 W. Va. 143, 19 S.E.2d 621 (1942).
U.S.Featherston v. Hartford Fire Ins. Co., 146 F. Supp. 535 (W.D. Ark. 1956).
Del.Rafal v. Rafal, 41 Del. Ch. 434, 198 A.2d 177 (1964).
Tex.Railway Exp. Agency v. Baum, 250 S.W.2d 423 (Tex. Civ. App. Waco 1952).
Conn.Holmes v. Freeman, 1 Conn. Cir. Ct. 336, 23 Conn. Supp. 504, 185 A.2d 88 (App. Div. 1962).
Okla.St. Louis-San Francisco Ry. Co. v. Kittrell, 1953 OK 38, 208 Okla. 147, 253 P.2d 1076 (1953).
Ill.Flynn v. Zimmerman, 23 Ill. App. 2d 467, 163 N.E.2d 568 (2d Dist. 1960).
Wis.Weber v. Wisconsin Power & Light Co., 215 Wis. 480, 255 N.W. 261 (1934).
U.S.Rhoades, Inc. v. United Air Lines, Inc., 224 F. Supp. 341 (W.D. Pa. 1963), judgment aff'd, 340 F.2d 481 (3d
Cir. 1965).
IdahoZenier v. Spokane Intern. R. Co., 78 Idaho 196, 300 P.2d 494 (1956).
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
Conn.Stoll v. Almon C. Judd Co., 106 Conn. 551, 138 A. 479, 53 A.L.R. 1042 (1927).
Wis.Weber v. Wisconsin Power & Light Co., 215 Wis. 480, 255 N.W. 261 (1934).
N.D.McGilvra v. Minneapolis, St. P. & S.S.M. Ry. Co., 35 N.D. 275, 159 N.W. 854 (1916).
S.C.McCready v. Atlantic Coast Line R. Co., 212 S.C. 449, 48 S.E.2d 193 (1948).
Tex.San Antonio & A.P. Ry. Co. v. Liggett, 252 S.W. 191 (Tex. Civ. App. Austin 1923).
Ala.Louisville & N.R. Co. v. Dickson, 15 Ala. App. 423, 73 So. 750 (1916).
Okla.Mid-Continent Petroleum Corp. v. Fisher, 1938 OK 483, 183 Okla. 638, 84 P.2d 22 (1938).
Neb.Maul v. Drexel, 55 Neb. 446, 76 N.W. 163 (1898).
Neb.Lowe v. City of Omaha, 33 Neb. 587, 50 N.W. 760 (1891).
Ark.Missouri Pac. R. Co. v. Clements, 225 Ark. 268, 281 S.W.2d 936 (1955).
Tex.City of Austin v. Howard, 158 S.W.2d 556 (Tex. Civ. App. Austin 1941), writ refused w.o.m., (Mar. 25, 1942).
Ala.W.T. Smith Lumber Co. v. McKenzie, 256 Ala. 496, 55 So. 2d 919 (1952).
Conn.Holmes v. Freeman, 1 Conn. Cir. Ct. 336, 23 Conn. Supp. 504, 185 A.2d 88 (App. Div. 1962).
W.Va.Butler v. Smith's Transfer Corp., 147 W. Va. 402, 128 S.E.2d 32 (1962).
Wash.Cheskov v. Port of Seattle, 55 Wash. 2d 416, 348 P.2d 673 (1960).
Ky.Stevens & Elkins v. Lewis-Wilson-Hicks Co., 168 Ky. 648, 182 S.W. 840 (1916), modified on other grounds,
170 Ky. 238, 185 S.W. 873 (1916).
N.Y.Eaves Costume Mfg. Corp. v. Greene, 156 N.Y.S.2d 229 (Mun. Ct. 1956).
OhioVillage of Lebanon v. Loop, 4 Ohio Op. 480, 20 Ohio L. Abs. 302, 32 N.E.2d 458 (Ct. App. 1st Dist. Warren
County 1935).
La.Mosely v. Sears, Roebuck & Co., 167 So. 2d 408 (La. Ct. App. 1st Cir. 1964).
End of Document
159.Rental value, 25 C.J.S. Damages 159

Damages
a. In General
159. Rental value
The measure of damages for the loss of use or rental value of property is generally the ordinary value
thereof.
The measure of damages for the loss of use or rental value of property occasioned by the defendant's wrongful
conduct is, as a general rule, the ordinary value thereof. 1 Where property is not rentable, proof of the actual worth
of the use thereof may be resorted to. 2
The rental value or damages from the loss of use of a portion of a construction or manufacturing plant, due to
a delay in the completion of contracts occasioned by the adverse party, may be ascertained by computation and
need not be established by direct evidence as to rental value. 3
Footnotes
Cal.Bourdieu v. Seaboard Oil Corp., 63 Cal. App. 2d 201, 146 P.2d 256 (4th Dist. 1944).
1
2
3
Mont.Pritchard Petroleum Co. v. Farmers Co-Op. Oil & Supply Co., 121 Mont. 1, 190 P.2d 55 (1948).
Tex.Gray County Gas Co. v. Oldham, 238 S.W.2d 596 (Tex. Civ. App. Amarillo 1951).
Cal.Bourdieu v. Seaboard Oil Corp., 63 Cal. App. 2d 201, 146 P.2d 256 (4th Dist. 1944).
Tex.Gray County Gas Co. v. Oldham, 238 S.W.2d 596 (Tex. Civ. App. Amarillo 1951).
U.S.William Cramp & Sons Ship & Engine Bldg. Co. v. U.S., 50 Ct. Cl. 179, 1915 WL 1109 (1915).
End of Document

Damages
b. Impairment of Earning Capacity
160. Generally
The measure of damages for impairment of earning capacity is the difference between the amount that the
plaintiff was capable of earning before his or her injury and that which he or she is capable of earning
thereafter.
Impairment of earning capacity in the future refers to the loss of pecuniary benefits and includes the probable
loss of wages and earnings in the future resulting from the plaintiff's injuries. 1 In general terms, the measure
of damages for impairment of earning capacity may be stated to be the difference between the amount that the
plaintiff was capable of earning before his or her injury and that which he or she is capable of earning thereafter. 2
However, the amount that the injured party would have earned but for the injury is not susceptible to precise
measurement in a personal injury action involving a claim for lost future earning capacity. 3 It follows that that
there can be no fixed rule by which the amount of damages for diminution or impairment of earning capacity,
or loss of future earnings, may be definitely measured, 4 and each case must be judged on its own facts, 5 and
the jury should take into consideration the whole picture. 6 Where the time element is uncertain, the measure of
damages for loss of future earnings is based on the sound judgment of the trier of the facts. 7
A recovery of damages for loss of earning capacity is not merely a recovery for lost wages. 8 Damages should
be estimated on the injured person's ability to earn money, rather than what he or she actually earned before the
injury, 9 and the difference in the actual earnings of the plaintiff before and after the injury does not constitute the
measure. 10 Hence, the amount that the plaintiff is capable of earning, and not that which he or she has actually
earned since the injury, is to be taken for the purpose of comparison with his or her previous earnings as showing
the diminution of earning capacity, 11 evidence as to actual earnings subsequent to the injury being received not
as tending to mitigate damages but to establish the plaintiff's earning powers. 12 Accordingly, a recovery may be
had for impairment or diminution of earning ability or power, even though it is not shown that the plaintiff has in
the past earned anything or had been engaged in a remunerative or compensable pursuit, 13 and even though he
or she was not gainfully employed at the time of the injury. 14
While the plaintiff's training, experience, and established line of work supply the setting for measurement of the
damages, 15 diminution of earning capacity is not, of necessity, measured by its diminution in the particular calling
in which the plaintiff was engaged at the time of the injury. 16 Hence, the plaintiff may show that he or she was
capable of earning more than he or she was earning at the time of the injury, 17 and the jury may consider what the
plaintiff might have been able to earn but for the injury in any employment for which he or she was suited, 18 or
what he or she may be able to earn in spite of the injury in any such employment. 19 On the other hand, there is also
authority that the plaintiff's damages should be measured by his or her impairment of earning capacity in his or her
usual employment. 20 The jury, in estimating impairment of earning capacity, may consider the possibility that the
plaintiff may be able to engage in vocations other than that in which he or she was injured although no evidence
thereof has been introduced. 21 Hence, the plaintiff may prove his or her inability to pursue other employments. 22
In calculating a plaintiff's damages for impairment of future earning capacity because of personal injuries, the
award of damages should be based upon the plaintiff's gross earnings or earning capacity and should not be reduced
because of any income tax or other paycheck-type deduction. 23
Necessity of proof as to amount.

Evidence from which the amount may be determined is essential to an award for impairment or destruction
of earning capacity. 24 An award cannot be made from mere conjecture or without proper data furnished as
evidence, 25 although the evidence need not be clear and indubitable to entitle it to go to the jury, 26 and the
law exacts only the kind of proof of which the fact to be proved is susceptible. 27 An award for diminution of
prospective earning capacity may be made even though there is no direct evidence as to the amount of the loss. 28
Cases:
The assessment of damages for impairment of earning capacity rests largely on the common knowledge of the
jury, sometimes with little aid from evidence. Reckis v. Johnson & Johnson, 28 N.E.3d 445 (Mass. 2015).
Personal injury damages may include an award for lost earning capacity including both the loss of earnings
between the date of the injury and the date of judgment and the loss of future earnings. Mickey v. BNSF Ry. Co.,
437 S.W.3d 207 (Mo. 2014).
[END OF SUPPLEMENT]
Footnotes
Mo.Honeycutt v. Wabash R. Co., 313 S.W.2d 214 (Mo. Ct. App. 1958), transferred to Mo. S. Ct., 337 S.W.2d 50
1
2
(Mo. 1960).
U.S.Reed v. Union Pacific R. Co., 185 F.3d 712 (7th Cir. 1999).
Colo.Hildyard v. Western Fasteners, Inc., 33 Colo. App. 396, 522 P.2d 596 (App. 1974).
La.Wilson v. Aetna Cas. and Sur. Co., 401 So. 2d 500 (La. Ct. App. 2d Cir. 1981).
N.H.Laramie v. Stone, 160 N.H. 419, 999 A.2d 262 (2010).
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
Gauging future earnings loss

Generally speaking, where there is a history of employment to consider, future earnings loss may be gauged in personal
injury action by comparing the demonstrated earning capacity of the injured party prior to the injury projected over
the remaining working life of the injured party, taking into account foreseeable adjustments, such as expected wage
increases, with what the injured party can now be expected to earn in light of diminished physical capacity.
D.C.National R.R. Passenger Corp. v. McDavitt, 804 A.2d 275 (D.C. 2002).
U.S.Noack v. American S. S. Co., 491 F.2d 937 (6th Cir. 1974).
La.Green v. Farmers Ins. Co., 412 So. 2d 1136 (La. Ct. App. 2d Cir. 1982).
Or.Kinney v. General Const. Co., 248 Or. 500, 435 P.2d 297 (1967).
U.S.Delaney v. New York Cent. R. Co., 68 F. Supp. 70 (S.D. N.Y. 1946).
Pa.Rice v. Philadelphia Transp. Co., 394 Pa. 454, 147 A.2d 627 (1959).
Considerable discretion from trial court
The trial court must be afforded considerable discretion in calculating awards for lost future income because they are
inherently speculative and are intrinsically insusceptible of being calculated with mathematical certainty.
Vt.Havill v. Woodstock Soapstone Co., 181 Vt. 577, 2007 VT 17, 924 A.2d 6 (2007).
Mich.Vink v. House, 336 Mich. 292, 57 N.W.2d 887 (1953).
Ariz.City of Phoenix v. Mubarek Ali Khan, 72 Ariz. 1, 229 P.2d 949 (1951).
Mich.Prince v. Lott, 369 Mich. 606, 120 N.W.2d 780 (1963).
N.M.Baros v. Kazmierczwk, 68 N.M. 421, 362 P.2d 798 (1961).
Wis.Boodry v. Byrne, 22 Wis. 2d 585, 126 N.W.2d 503 (1964).
Fla.Atlantic Coast Line R. Co. v. Ganey, 125 So. 2d 576 (Fla. Dist. Ct. App. 3d Dist. 1960).
Mich.Lorenz v. Sowle, 360 Mich. 550, 104 N.W.2d 347, 81 A.L.R.2d 728 (1960).
U.S.U.S. v. Jacobs, 308 F.2d 906 (5th Cir. 1962).
Pa.Sherman v. Manufacturers Light & Heat Co., 389 Pa. 61, 132 A.2d 255 (1957).
Pa.Sherman v. Manufacturers Light & Heat Co., 389 Pa. 61, 132 A.2d 255 (1957).
U.S.Illinois Cent. R. Co. v. Staples, 272 F.2d 829 (8th Cir. 1959).
Mich.Miller v. Pillow, 337 Mich. 262, 59 N.W.2d 283 (1953).
U.S.Grobengieser v. Clearfield Cheese Co., 94 F. Supp. 402 (W.D. Pa. 1950).
S.C.Matthews v. Porter, 239 S.C. 620, 124 S.E.2d 321 (1962).
Tenn.Southern Coach Lines v. Wilson, 31 Tenn. App. 240, 214 S.W.2d 55 (1948).
Haw.Condron v. Harl, 46 Haw. 66, 374 P.2d 613 (1962).
IowaGrant v. Thomas, 254 Iowa 581, 118 N.W.2d 545 (1962).
Neb.Jacobsen v. Poland, 163 Neb. 590, 80 N.W.2d 891 (1957).
Vt.Trombetta v. Champlain Valley Fruit Co., 117 Vt. 491, 94 A.2d 797 (1953).
Tex.Wichita Valley Ry. Co. v. Williams, 6 S.W.2d 439 (Tex. Civ. App. Eastland 1928), writ refused, (Dec. 5, 1928).
Mich.Miller v. Pillow, 337 Mich. 262, 59 N.W.2d 283 (1953).
IowaO'Connor v. Chicago, R.I. & P. Ry. Co., 144 Iowa 289, 122 N.W. 947 (1909).
U.S.Hanson v. Reiss S. S. Co., 184 F. Supp. 545 (D. Del. 1960).
Ill.Pinkstaff v. Pennsylvania R. Co., 23 Ill. App. 2d 507, 163 N.E.2d 728 (1st Dist. 1959), aff'd, 20 Ill. 2d 193, 170
N.E.2d 139 (1960).
IowaGreenway v. Taylor County, 144 Iowa 332, 122 N.W. 943 (1909).
Md.Adams v. Benson, 208 Md. 261, 117 A.2d 881 (1955).
22
23
24
25
26
27
28
Ala.Brilliant Coal Co. v. Barton, 205 Ala. 89, 87 So. 830 (1920).
Nev.Sierra Pac. Power Co. v. Anderson, 77 Nev. 68, 358 P.2d 892 (1961).
Mo.Honeycutt v. Wabash R. Co., 313 S.W.2d 214 (Mo. Ct. App. 1958), transferred to Mo. S. Ct., 337 S.W.2d 50
(Mo. 1960).
Pa.Brodie v. Philadelphia Transp. Co., 415 Pa. 296, 203 A.2d 657 (1964).
Tex.English v. Hegi, 337 S.W.2d 860 (Tex. Civ. App. Amarillo 1960).
Colo.Klimkiewicz v. Karnick, 150 Colo. 267, 372 P.2d 736 (1962).
(July 22, 1964).
21, 1931).
N.H.Dowling v. L. H. Shattuck, Inc., 91 N.H. 234, 17 A.2d 529 (1941).
Tex.McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710 (1943).
Mass.Doherty v. Ruiz, 302 Mass. 145, 18 N.E.2d 542 (1939).
End of Document
161.Income or profits from business, 25 C.J.S. Damages 161

Damages
161. Income or profits from business
The profits of a business enterprise, or income or profits from a business in which the injured person is
engaged with others, or employs the labor of others, generally cannot be accepted as a measure of earning
capacity.
The earnings that are to be considered in determining the diminution of earning capacity are those that are derived
from the labor, skill, or knowledge of the person injured, without the employment of substantial capital. 1 Hence,
the profits of a business enterprise 2 or a partnership, 3 or income or profits that result from the performance
of contracts combining capital and labor, 4 or income or profits from a business in which the injured person
is engaged with others, or employs the labor of others, 5 cannot be accepted as a measure of earning capacity.
Under such circumstances, the measure of loss is the impairment of the value of the plaintiff's services in the
business. 6 Evidence of impairment of profits, however, where they can be shown to be the direct result of the
plaintiff's injury, may be received, not as a distinct element of damage but as evidence of the value of his or her
services. 7 The loss of profits from a personally operated business may be received in evidence and considered in
determining the extent of the injured party's diminished capacity to earn. 8 In order to arrive at a correct estimate
of the plaintiff's earning power, it is proper for the jury to consider the profits that have been derived from his or
her management of, or activity in, a business as distinguished from profits derived from invested capital. 9 Where
the predominating factor is the directing intellectual and physical labor of the individual, such business may be
characterized as personal, and income therefrom may be regarded as earnings, even though others with tools and
equipment may aid in the work, as the personal feature prevails over the investment of insignificant capital and
the labor of others. 10
Footnotes
Pa.Murphy v. Pittsburgh Rys. Co., 292 Pa. 191, 140 A. 897 (1927).
1
Tex.Dallas Ry. & Terminal Co. v. Guthrie, 146 Tex. 585, 210 S.W.2d 550 (1948).
2
161.Income or profits from business, 25 C.J.S. Damages 161
3
4
5
7
8
9
10
Wash.Kennard v. Kaelin, 58 Wash. 2d 524, 364 P.2d 446 (1961).

Pa.James v. Ferguson, 401 Pa. 92, 162 A.2d 690 (1960).
Minn.Klingbeil v. Truesdell, 256 Minn. 360, 98 N.W.2d 134 (1959).
N.D.Wilson v. Oscar H. Kjorlie Co., 73 N.D. 134, 12 N.W.2d 526 (1944).
N.H.Ellsworth v. Watkins, 101 N.H. 51, 132 A.2d 136 (1957).
Mass.Bagley v. Kimball, 268 Mass. 440, 167 N.E. 661 (1929).
Pa.Offensend v. Atlantic Refining Co., 322 Pa. 399, 185 A. 745 (1936).
End of Document
162.General considerations affecting measure, 25 C.J.S. Damages 162

Damages
162. General considerations affecting measure
Numerous matters are considered in determining the measure of damages for impairment of earning
capacity or loss of future earnings, such as the plaintiff's age, physical condition, and past earnings.
The measure of damages for the diminution of one's capacity to earn money, or for loss of future earnings, involves
numerous considerations. 1 As a broad general rule, all evidence tending to show the character of the plaintiff's
ordinary pursuits and the extent to which the injury has prevented or will prevent him or her from following such
pursuits is admissible. 2 Evidence that consists of mere guesswork and speculation, as with respect to what may
happen, should be excluded 3 although testimony tending to establish the future earning capacity of any person
is necessarily speculative. 4
Furthermore, the evidence offered should relate to the plaintiff's earning capacity. 5
For purposes of computing loss of future earning capacity in a personal injury action, a plaintiff's work history,
good or bad, bears on whether, how, and how long the plaintiff probably would have been employed had he or
she not been injured. 6 The plaintiff's occupational abilities, industriousness, work habits, and experience are also
relevant. 7 There is no requirement that loss of earning capacity need be measured in a vacuum in a personal
injury action, and ordinarily considered are a plaintiff's health, education, and opportunity for education; age,
intelligence, industriousness, manner of living, sobriety, or temperance; frugality or lavishness; or other personal
characteristics that affect ability to secure business or earn money. 8 "Productivity," which is to be considered in
estimating lost future earning capacity, for purposes of calculating a damages award, includes such factors as age,
maturity, education, skill, and technology advances. 9 Other matters to be considered are the plaintiff's record of
employment, 10 his or her life expectancy, 11 his or her occupation, 12 the effect of the injury thereon, 13 the value
of his or her services, 14 avenues of occupation open to him or her, 15 and the physical capacity of the plaintiff to
perform his or her work at the time he or she was injured 16 and thereafter. 17
It is also proper to consider the plaintiff's past earning capacity, 18 his or her earnings before the injury 19 and
his or her earnings thereafter, 20 with a comparison of such earnings, 21 and the usual or customary earnings of
others engaged in the same or similar employment or vocation in the area. 22
Footnotes
Ariz.Mandelbaum v. Knutson, 11 Ariz. App. 148, 462 P.2d 841 (Div. 2 1969).
1
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
Ark.Home Ins. Co. v. Spears, 267 Ark. 704, 590 S.W.2d 71 (Ct. App. 1979).
La.Welton v. Falcon, 341 So. 2d 564 (La. Ct. App. 4th Cir. 1976), writ denied, 342 So. 2d 872 (La. 1977) and writ
denied, 342 So. 2d 1109 (La. 1977).
Tex.Armellini Exp. Lines of Florida, Inc. v. Ansley, 605 S.W.2d 297 (Tex. Civ. App. Corpus Christi 1980), writ
refused n.r.e., (Jan. 7, 1981) and (disapproved of on other grounds by, Pope v. Moore, 711 S.W.2d 622 (Tex. 1986)).
Pa.Benshetler v. Palumbo Motors, 380 Pa. 353, 110 A.2d 207 (1955).
Tex.White v. McElroy, 350 S.W.2d 249 (Tex. Civ. App. El Paso 1961), writ refused n.r.e., (Mar. 14, 1962).
Wyo.Husted v. French Creek Ranch, Inc., 79 Wyo. 307, 333 P.2d 948 (1959).
Ariz.City of Phoenix v. Mubarek Ali Khan, 72 Ariz. 1, 229 P.2d 949 (1951).
Tex.White v. McElroy, 350 S.W.2d 249 (Tex. Civ. App. El Paso 1961), writ refused n.r.e., (Mar. 14, 1962).
N.M.Turrietta v. Wyche, 54 N.M. 5, 212 P.2d 1041, 15 A.L.R.2d 407 (1949).
Tex.Payne v. Bannon, 238 S.W. 701 (Tex. Civ. App. Dallas 1922).
OhioBartlebaugh v. Pennsylvania R. Co., 51 Ohio L. Abs. 161, 78 N.E.2d 410 (Ct. App. 2d Dist. Franklin County
1948), judgment modified on other grounds, 150 Ohio St. 387, 38 Ohio Op. 237, 82 N.E.2d 853 (1948).
U.S.Roberts v. U.S., 316 F.2d 489 (3d Cir. 1963).
AlaskaCity of Anchorage v. Steward, 374 P.2d 737 (Alaska 1962).
Minn.Capriotti v. Beck, 264 Minn. 39, 117 N.W.2d 563 (1962).
Minn.Capriotti v. Beck, 264 Minn. 39, 117 N.W.2d 563 (1962).
U.S.Abraham v. Gendlin, 172 F.2d 881 (D.C. Cir. 1949).
Ky.Louisville & I.R. Co. v. Murphy, 190 Ky. 795, 228 S.W. 442 (1921).
Mich.Pawlicki v. Detroit United Ry., 191 Mich. 536, 158 N.W. 162 (1916).
Tex.Dofner v. Branard, 236 S.W.2d 544 (Tex. Civ. App. San Antonio 1951), writ refused n.r.e..
Ga.New Winder Lumber Co. v. Payne, 40 Ga. App. 188, 149 S.E. 85 (1929).
Md.American Oil Co. v. Wells, 164 Md. 422, 165 A. 298 (1933).
Tex.Green v. Rudsenske, 320 S.W.2d 228 (Tex. Civ. App. San Antonio 1959).
W.Va.Drummond v. Cook Motor Lines, 136 W. Va. 293, 67 S.E.2d 337 (1951).
Ga.Wright v. Lail, 219 Ga. 607, 135 S.E.2d 418 (1964).
S.C.Matthews v. Porter, 239 S.C. 620, 124 S.E.2d 321 (1962).
Wis.Boodry v. Byrne, 22 Wis. 2d 585, 126 N.W.2d 503 (1964).
Ala.Hiller v. Goodwin, 258 Ala. 700, 65 So. 2d 152 (1953).
Pa.Muller v. Kirschbaum Co., 298 Pa. 560, 148 A. 851 (1930).
Tex.St. Louis Southwestern Ry. Co. of Texas v. Lewis, 277 S.W. 727 (Tex. Civ. App. Texarkana 1925).
U.S.McGilvray v. Powell 700 North, 186 F.2d 909 (7th Cir. 1951).
AlaskaCity of Anchorage v. Steward, 374 P.2d 737 (Alaska 1962).
N.M.Turrietta v. Wyche, 54 N.M. 5, 212 P.2d 1041, 15 A.L.R.2d 407 (1949).

End of Document
163.Extent of inquiry into prior earnings, 25 C.J.S. Damages 163

Damages
163. Extent of inquiry into prior earnings
The authorities differ as to the length of the period, prior to the injury, for which the plaintiff's earnings
may be considered on the question of impairment of his or her earning capacity.
Evidence as to prior earnings, as bearing on impairment of earning capacity, is not confined to a time immediately
prior to the accident, 1 and there appears to be a wide divergence in the opinions of the courts as to the period of
time that may be considered, 2 and according to some authorities, the inquiry is permitted to extend back over a
considerable period of time, 3 particularly where the conditions are similar 4 or where it is shown that the plaintiff
at the time of the accident retained the qualifications that he or she had previously possessed. 5 Other authorities,
however, confine the inquiry more closely to the time of the injury, 6 especially where the earning capacity that
it is sought to show was in an entirely different employment, 7 or in an occupation that has been apparently
abandoned, 8 or that the plaintiff is not shown to be able to resume. 9
Although the plaintiff had no fixed salary and no fixed term of employment, it is nevertheless proper to show what
he or she had been able to earn prior to the accident. 10 To justify an inquiry into the earnings of the plaintiff in
a particular employment, he or she should have been engaged therein for a sufficient time to render such a test a
fair and general measure of his or her earning capacity. 11
Prior earnings in different trade.

Testimony concerning prior earnings in a different trade, on the question of impairment of earning capacity, is
admissible, not as furnishing a measure of damages but as a guide or assistance in enabling the jury to exercise
a sound and just discretion in determining the proper amount to be awarded for the impairment of earning
capacity. 12
163.Extent of inquiry into prior earnings, 25 C.J.S. Damages 163
Footnotes
Ark.Missouri Pac. R. Co. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944).
1
2
3
4
5
6
7
8
9
10
11
12

Mich.Lorenz v. Sowle, 360 Mich. 550, 104 N.W.2d 347, 81 A.L.R.2d 728 (1960).
Tex.Galveston, H. & S.A. Ry. Co. v. Harling, 260 S.W. 1016 (Tex. Comm'n App. 1924).
Tex.Wells Fargo & Co. v. Benjamin, 165 S.W. 120 (Tex. Civ. App. Texarkana 1914), aff'd, 107 Tex. 331, 179 S.W.
513 (1915) and writ granted, (Oct. 27, 1915).
Ind.Union Traction Co. v. Taylor, 81 Ind. App. 257, 135 N.E. 255 (1922).
N.C.Fox v. Asheville Army Store, 216 N.C. 468, 5 S.E.2d 436 (1939).
Pa.Rooney v. Maczko, 315 Pa. 113, 172 A. 151 (1934).
Pa.Hobel v. Mahoning & Shenango Ry. & Light Co., 229 Pa. 507, 79 A. 119 (1911).
Pa.Rooney v. Maczko, 315 Pa. 113, 172 A. 151 (1934).
Tex.Houston & T.C.R. Co. v. Gee, 27 Tex. Civ. App. 414, 66 S.W. 78 (1901).
Or.Brown v. Oregon-Washington R. & Navigation Co., 63 Or. 396, 128 P. 38 (1912).
End of Document
164.Possibility of increase or decrease in earnings or of..., 25 C.J.S. Damages ...

Damages
164. Possibility of increase or decrease in earnings or of promotion
The authorities are not uniform as to whether, and to what extent, the possibility of an increase in earnings,
as by promotion, or of a decrease therein, may be shown on the question of impairment of earning capacity.
On the question of impairment of earning capacity, there is authority that it is proper for the jury to consider the
general probabilities and possibilities that the plaintiff's earning capacity would have increased 1 or decreased, 2
had he or she not been injured, and that, within limits, the jury may take into consideration opportunities for
promotion as shown by the evidence. 3 However, under other authority, it is improper to show that the plaintiff
had a chance of promotion to a higher position and to show the increase in earnings that would have accompanied
such promotion. 4 A different rule applies where such promotion is reasonably certain, such as a promotion under
seniority rules, 5 where a promotion has been promised, 6 or where there is a provision therefor in the contract
of employment. 7 An offer of a better salary may be shown. 8
Footnotes
U.S.Taenzler v. Burlington Northern, 608 F.2d 796, 5 Fed. R. Evid. Serv. 439 (8th Cir. 1979).
1
2
3
4
5
Fla.Loftin v. Wilson, 67 So. 2d 185 (Fla. 1953).

Pa.Benshetler v. Palumbo Motors, 380 Pa. 353, 110 A.2d 207 (1955).
Fla.Loftin v. Wilson, 67 So. 2d 185 (Fla. 1953).
OhioBartlebaugh v. Pennsylvania R. Co., 51 Ohio L. Abs. 161, 78 N.E.2d 410 (Ct. App. 2d Dist. Franklin County
1948), judgment modified on other grounds, 150 Ohio St. 387, 38 Ohio Op. 237, 82 N.E.2d 853 (1948).
Vt.Marshall v. Dalton Paper Mills, 82 Vt. 489, 74 A. 108 (1909).
Cal.Baker v. Southern Pac. Co., 184 Cal. 357, 193 P. 765 (1920).
IowaBradley v. Interurban Ry. Co., 191 Iowa 1351, 183 N.W. 493 (1921).
Mo.Jones v. St. Louis-San Francisco Ry. Co., 333 Mo. 802, 63 S.W.2d 94 (1933).
164.Possibility of increase or decrease in earnings or of..., 25 C.J.S. Damages ...
6
7
8
Ark.A.L. Clark Lumber Co. v. St. Coner, 97 Ark. 358, 133 S.W. 1132 (1911).
Ill.Eilers v. Peoria Ry. Co., 200 Ill. App. 487, 1916 WL 2303 (2d Dist. 1916).
S.C.Montgomery v. Seaboard Air Line Ry., 73 S.C. 503, 53 S.E. 987 (1906).
End of Document
165.Computation of amount, 25 C.J.S. Damages 165

Damages
165. Computation of amount
The computation of damages for the impairment of earning capacity involves the determination of the
present value of future earnings lost, in view of the plaintiff's life expectancy.
In estimating the amount of an award for prospective damages due to impaired earning capacity or loss of future
earnings, it is proper to consider the plaintiff's life expectancy and the present value of a yearly income equivalent
to the probable reduction of his or her earnings. 1 It is not proper to award a sum, the interest on which would equal
the reduction of the plaintiff's yearly income, 2 nor is it proper to award an amount equal to the total amount of such
future reduction of earnings. 3 According to some authorities, in determining the present value of future earnings,
the discount is at the legal rate of interest. 4 Other authorities do not restrict the jury, or the trial court sitting
without a jury, to the legal rate of interest in computing the present value, but leave to them, within reasonable
limits, the discretion of applying such rate of interest as they find just and fair under the circumstances. 5 The
rate of interest should be used that, in the considered judgment of the jury, or the trial court sitting without a jury,
is reasonable, just, and right under all the circumstances, taking into consideration the evidence presented, their
knowledge of the prevailing interest rates within the limits prescribed by law in the area, and what rate of interest
could fairly be expected from safe investments that a person of ordinary prudence, but without particular financial
experience or skill, could make in the locality. 6 Where there is evidence that the plaintiff is earning, and will
continue to earn, money and that his or her earning capacity has been diminished, an award may be made based on
a percentage of diminution of earning capacity. 7 An award for the impairment of the plaintiff's earning capacity
may not be reduced because of the power of money to earn money. 8
The jury is not entitled to make the award entirely a matter of mathematical calculation without considering
other circumstances in the case, 9 such, for example, as the probable normal diminution of the plaintiff's earning
capacity with advancing years. 10 Also, it is required to take into consideration, in determining the present value
of the award, the expenses of investment 11 and taxes. 12 However, an award should not be reduced by reason
of its freedom from income tax, 13 and a deduction for income taxes from the estimate of expected earnings is
too conjectural. 14 Local conditions must also be considered, as well as the fact that the amount of interest to be
earned will vary from time to time. 15
While there is authority that the proper measure of damages is the amount required to purchase a life annuity
equivalent to the reduction in the plaintiff's earning capacity, 16 there is also authority that such a measure is
incorrect and that the recovery must be limited to the present worth of the plaintiff's future earnings as the jury
has estimated them. 17
Mortality tables.
Mortality tables, while constituting relevant proof, 18 are not binding on the jury. Rather, the jurors may rely on
their own observation and experiences, and the facts and circumstances in evidence, 19 and, indeed, in order to
authorize a recovery for diminished earning capacity, it is not essential that the standard mortality tables should
have been introduced in evidence. 20
Double recovery.
An allowance, if any, for impairment of power to earn money should begin only when an allowance, if any, for
time lost is ended. 21 There is only one compensation for a permanent injury as related to the ability to work,
earning capacity, or future lost earnings, but that one compensation involves all three elements, and the elements
are arrived at in a different manner because of the exigencies of the case. 22
Footnotes
U.S.Riha v. Jasper Blackburn Corp., 516 F.2d 840 (8th Cir. 1975).
1
2
3
4
5
6
7
8
9
10
11
12
13

Me.Ginn v. Penobscot Co., 334 A.2d 874 (Me. 1975).
Mo.Sampson v. Missouri Pac. R. Co., 560 S.W.2d 573 (Mo. 1978).
U.S.Stewart v. Atlantic Gulf & Pacific Co., 9 F. Supp. 344 (S.D. Fla. 1934).
N.C.Hill v. Director General of Railroads, 180 N.C. 490, 105 S.E. 184 (1920).
Or.Adskim v. Oregon-Washington R. & Nav. Co., 134 Or. 574, 294 P. 605 (1930).
Pa.Windle v. Davis, 275 Pa. 23, 118 A. 503 (1922).
Fla.Renuart Lumber Yards v. Levine, 49 So. 2d 97 (Fla. 1950).
IowaVon Tersch v. Ahrendsen, 251 Iowa 115, 99 N.W.2d 287, 79 A.L.R.2d 267 (1959).
Wash.Wentz v. T. E. Connolly, Inc., 45 Wash. 2d 127, 273 P.2d 485 (1954).
AlaskaMorrison v. State, 516 P.2d 402 (Alaska 1973).
La.Stanford v. Bateman Frozen Foods Co., 149 So. 2d 753 (La. Ct. App. 1st Cir. 1963), writ refused, 244 La. 212,
151 So. 2d 689 (1963).
Mo.Breland v. Gulf, M. & O. R. Co., 325 S.W.2d 9 (Mo. 1959).
Pa.Littman v. Bell Tel. Co. of Pennsylvania, 315 Pa. 370, 172 A. 687 (1934).
Va.Sykes v. Brown, 156 Va. 881, 159 S.E. 202 (1931).
Tex.Galveston, H. & S.A. Ry. Co. v. Kief, 58 S.W. 625 (Tex. Civ. App. 1900), rev'd on other grounds, 94 Tex.
334, 60 S.W. 543 (1901).
U.S.Palmer v. U.S., 146 F.3d 361, 1998 FED App. 0174P (6th Cir. 1998).
Tex.Galveston, H. & S.A. Ry. Co. v. Dehnisch, 57 S.W. 64 (Tex. Civ. App. 1900).
Wis.Hardware Mut. Cas. Co. v. Harry Crow & Son, Inc., 6 Wis. 2d 396, 94 N.W.2d 577 (1959).
14
15
16
17
U.S.Southern Pac. Co. v. Guthrie, 186 F.2d 926 (9th Cir. 1951).
Mo.Dempsey v. Thompson, 363 Mo. 339, 251 S.W.2d 42 (1952).
Tex.Texas & N. O. R. Co. v. Pool, 263 S.W.2d 582 (Tex. Civ. App. Waco 1953) (disapproved of on other grounds
by, Missouri-Kansas-Texas R. Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956)).
Ark.Missouri Pac. R. Co. v. Henderson, 194 Ark. 884, 110 S.W.2d 516 (1937).
Mont.Bourke v. Butte Electric & Power Co., 33 Mont. 267, 83 P. 470 (1905).
21
U.S.Farmers Union Federated Co-op. Shipping Ass'n v. McChesney, 251 F.2d 441 (8th Cir. 1958).
Pa.Goodhart v. Pennsylvania R. Co., 177 Pa. 1, 35 A. 191 (1896).
Ariz.Rodgers v. Bryan, 82 Ariz. 143, 309 P.2d 773 (1957).
4th Cir. 1963).
Ga.Southern Ry. Co. v. Parham, 10 Ga. App. 531, 73 S.E. 763 (1912).
Mont.Robinson v. Helena Light & Ry. Co., 38 Mont. 222, 99 P. 837 (1909).
Ga.Dalton Excelsior Co. v. Keeble, 19 Ga. App. 336, 91 S.E. 440 (1917).
Tex.Missouri, K. & T. Ry. Co. of Texas v. Coker, 143 S.W. 218 (Tex. Civ. App. Austin 1911), writ refused.
Ky.McLellan v. Threlkeld, 279 Ky. 114, 129 S.W.2d 977 (1939).
22
Reason for rule

A litigant may not recover for the impairment of future earning capacity and time lost in the future during the same
period of time; it permits the jury to allow a double recovery.
18
19
20
End of Document
166.Loss of profits, 25 C.J.S. Damages 166

Damages
c. Loss of Business or Profits
166. Loss of profits
In order for profits to be recovered, there must be reasonable proof of their amount, and for this purpose,
actual past profits and receipts in the particular business or undertaking, where not too remote, may be
shown.
In order for profits to be recovered as an element of damages, there must be reasonable proof of the amount
thereof, 1 and any reasonable method of estimating prospective profit is acceptable. 2 Actual past profits and
receipts in the particular business or undertaking may be shown, 3 where not too remote from the injury or wrong
complained of, 4 although they cannot be taken as an exact measure of future profits. 5 While evidence of past
profits is generally an appropriate method to calculate estimated future profits, there are many different methods
that may be used, and whichever method is used must be reasonably accurate and provide a fair basis for calculating
the damages. 6
In awarding damages for loss of profits, net profits, and not gross profits, are generally the proper measure of
recovery. 7 However, where the operating expenses are fixed, gross profits may be awarded as representing net
profits 8 since the expenses would not have increased had the contract not been breached. 9 Earnings that the
plaintiff would not have made had the defendant not breached the contract must be deducted from the amount
awarded for lost profits. 10
In an action on a contract, where the breach alleged consists of prevention of performance, profits as an element
of damages are ordinarily measured by the difference between the contract price and the cost of performance, 11
after taking into account as a deduction from the difference thus ascertained whatever benefit came to the
plaintiff by reason of being relieved from fully performing the contract. 12 Accordingly, it is proper to make
reasonable deduction for the shortened time for which the plaintiff is engaged in the work, 13 expenditures
rendered unnecessary, 14 and for release from the care, trouble, risk, and expense attending a full execution of
the contract. 15 The costs of performance are to be estimated as nearly as may be according to the circumstances
that existed at the time of the breach. 16 Thus, the price of labor and material at the time of the breach, without
regard to subsequent fluctuations, is alone to be considered. 17 Where a contract to perform services is breached,
the plaintiff may recover lost profits only from the date of the breach to the time of filing suit. 18
In calculating damages in a breach-of-contract action for future lost profits, anticipated expenses should be
deducted from anticipated revenues. 19 In general, in calculating lost profits damages, lost revenue is estimated,
and overhead expenses tied to the production of that income are deducted from the estimated lost revenue. 20 For
purposes of calculating lost profits damages, "overhead expenses" include both fixed and variable expenses, and
"fixed expenses" are the continuous expenses of the business that are incurred regardless of the loss of a portion
of the business, for example, rent, taxes, and administrative salaries, and "variable expenses," also called "direct
expenses," are costs directly linked to the volume of business. 21 For purposes of calculating lost profit damages,
it is not necessarily the case that a company will incur increased expense or overhead, especially where a business
was already profitable at the time damages began, and evidence supports an inference that it could have performed
profitable services using only its existing resources. 22
Where the contract does not expressly define the scope or extent of lost profit damages recoverable in the event
of a breach, a court may consider what the parties would have concluded had they specifically addressed the issue
upon entering into the agreement. 23
Contract terminable by either party.

Where a contract provides for its termination by either party on notice of a specified number of days, profits may
be recovered for only that length of time. 24
Cases:
Ordinarily, under Rhode Island law, a plaintiff seeking damages for breach of contract is required to show evidence
of lost profits, as opposed to lost revenues. T G Plastics Trading Co., Inc. v. Toray Plastics (America), Inc., 775
F.3d 31 (1st Cir. 2014).
Under Georgia law, evidence of lost profits that dealer of aircraft LCD displays offered at trial in breach of
contract action against its primary product suppliers constituted consequential, rather than direct, damages, for
which suppliers were not liable under terms of the parties' purchase and support agreements; dealer sought to
show how much it would have earned selling displays to potential purchaser if suppliers had performed their
obligations under the support agreement, but those damages relied on future deals with a business that was not a
party to the support agreement, and were contingent on anticipated prices and demand that were not determined
by the contract itself, and therefore the damages were not "necessarily inherent in the contract." Atlantech Inc. v.
American Panel Corp., 743 F.3d 287 (1st Cir. 2014).
Under Louisiana law, in cases where direct evidence is not available to establish the exact extent of loss caused
by a breach of contract, resort to customary or foreseeable profit as a measure of damages is proper; the ultimate
goal of such compensatory damages is to put a plaintiff in the same economic position it would have been in had
the contract been fulfilled as planned. Arthur J. Gallagher & Co. v. Babcock, 703 F.3d 284 (5th Cir. 2012).
Subcontractor that provided concrete on bridge construction project was not entitled to lost profit damages for
prime contractor's repudiation of parties' concrete supply contract in subcontractor's breach of contract action
against prime contractor under Arkansas law, absent showing that subcontractor had been lost volume seller or
that statutory compensatory damages had been otherwise inadequate. West's A.C.A. 42708(1, 2). Razorback
Concrete Co. v. Dement Const. Co., LLC, 688 F.3d 346 (8th Cir. 2012).
To calculate lost profits as damages, the lost profits a party must prove are the net profits, as opposed to gross
profits. Brothers v. Winstead, 129 So. 3d 906 (Miss. 2014).
"Yardstick" method, in which comparable established business is used as comparison, was appropriate method
for determining automobile dealer's lost profits damages in dealer's breach of contract action against automobile
manufacturer; method had previously been accepted for calculating lost profits, and business compared to was
also owned and operated by dealer. DaimlerChrysler Motors Co., LLC v. Manuel, 362 S.W.3d 160 (Tex. App.
Fort Worth 2012).
[END OF SUPPLEMENT]
Footnotes
U.S.King v. U.S., 292 F. Supp. 767 (D. Colo. 1968).
1
Ind.Indiana Bell Tel. Co., Inc. v. O'Bryan, 408 N.E.2d 178 (Ind. Ct. App. 1980).
Nev.Eaton v. J. H., Inc., 94 Nev. 446, 581 P.2d 14 (1978).
2
3
4
5
6
7
8
9
10
11
12
13
Plaintiff bears burden of providing evidence

Tex.ERI Consulting Engineers, Inc. v. Swinnea, 318 S.W.3d 867 (Tex. 2010).
N.Y.Community Home Imp. Co. of N.Y. v. Turner, 80 N.Y.S.2d 629 (Mun. Ct. 1947).
U.S.Mercury Cleaning Systems, Inc. v. Manitowoc Engineering Corp., 255 F.2d 318 (7th Cir. 1958).
Ga.Kroger Co. v. Perpall, 105 Ga. App. 682, 125 S.E.2d 511 (1962).
IdahoWilliams v. Bone, 74 Idaho 185, 259 P.2d 810 (1953).
Ill.Kolberg v. Cities Service Oil Co., 343 Ill. App. 355, 99 N.E.2d 152 (2d Dist. 1951).
Tex.Richker v. Georgandis, 323 S.W.2d 90 (Tex. Civ. App. Houston 1959), writ refused n.r.e..
U.S.Garvin v. American Motors Sales Corp., 202 F. Supp. 667 (W.D. Pa. 1962), judgment rev'd on other grounds,
318 F.2d 518 (3d Cir. 1963).
U.S.Distillers Distributing Corp. v. J. C. Millett Co., 310 F.2d 162 (9th Cir. 1962).
Cal.Automatic Vending Co. v. Wisdom, 182 Cal. App. 2d 354, 6 Cal. Rptr. 31 (3d Dist. 1960).
Colo.Lee v. Durango Music, 144 Colo. 270, 355 P.2d 1083 (1960).
Two variables
R.I.Rhode Island Managed Eye Care, Inc. v. Blue Cross & Blue Shield of Rhode Island, 996 A.2d 684 (R.I. 2010).
U.S.Willred Co. v. Westmoreland Metal Mfg. Co., 200 F. Supp. 59, 1 U.C.C. Rep. Serv. 181 (E.D. Pa. 1961).
AlaskaSuntrana Min. Co. v. Widich, 360 P.2d 84 (Alaska 1961).
Mont.A. T. Klemens & Son v. Reber Plumbing & Heating Co., 139 Mont. 115, 360 P.2d 1005 (1961).
Cal.Rudolph v. Johnson, 127 Cal. App. 451, 16 P.2d 152 (4th Dist. 1932).
Mass.Buchholz v. Green Bros. Co., 272 Mass. 49, 172 N.E. 101 (1930).
Mont.A. T. Klemens & Son v. Reber Plumbing & Heating Co., 139 Mont. 115, 360 P.2d 1005 (1961).
IdahoMolyneux v. Twin Falls Canal Co., 54 Idaho 619, 35 P.2d 651, 94 A.L.R. 1264 (1934).
14
15
16
17
18
19
20
21
22
23
24
Tex.Ingleside Mercantile Co. v. Vivrett, 66 S.W.2d 372 (Tex. Civ. App. San Antonio 1933).
Wash.Platts v. Arney, 50 Wash. 2d 42, 309 P.2d 372 (1957).
IdahoMolyneux v. Twin Falls Canal Co., 54 Idaho 619, 35 P.2d 651, 94 A.L.R. 1264 (1934).
U.S.J. D. Hedin Const. Co. v. F. S. Bowen Elec. Co., 273 F.2d 511, 2 Fed. R. Serv. 2d 767 (D.C. Cir. 1959).
Tex.Carras v. Birge, 211 S.W.2d 998 (Tex. Civ. App. Dallas 1948), writ refused n.r.e..
N.C.Hawk v. Pine Lumber Co., 149 N.C. 10, 62 S.E. 752 (1908).
Ga.Roswell Apartments, Inc. v. D. L. Stokes & Co., 105 Ga. App. 163, 123 S.E.2d 682 (1961).
R.I.Guzman v. Jan-Pro Cleaning Systems, Inc., 839 A.2d 504 (R.I. 2003).
Del.Honeywell Intern. Inc. v. Air Products & Chemicals, Inc., 872 A.2d 944, 57 U.C.C. Rep. Serv. 2d 81 (Del. 2005).
Del.Chrysler Corp. v. Quimby, 51 Del. 264, 144 A.2d 885 (1958).
Okla.Osborn v. Commanche Cattle Industries, Inc., 1975 OK CIV APP 67, 545 P.2d 827 (Ct. App. Div. 1 1975).
End of Document
167.Loss of business, 25 C.J.S. Damages 167

Damages
c. Loss of Business or Profits
167. Loss of business
Where a regular and established business is injured, interrupted, or destroyed, the measure of damages is
the diminution in value of the business by reason of the wrongful act.
When an established business is injured, interrupted, or destroyed, the measure of damages is the diminution in
value of the business by reason of the wrongful act, measured by the loss of the usual profits from the business, 1
with interest. 2 It is the net loss, and not diminution in gross income. 3 In order to establish the diminution in
value, it is necessary, or proper, to show the usual, or past, profits from the business. 4 Hence, where an established
business has been interrupted, the measure of damages is the loss of profits, 5 together with such expenses as
continue while the business is interrupted. 6
Goodwill of business.
The goodwill of a business, sold as a discrete asset for an agreed price, cannot, as a matter of law, have a negative
value for purposes of determining damages in a breach-of-contract action. 7
Footnotes
Va.Banks v. Mario Industries of Virginia, Inc., 274 Va. 438, 650 S.E.2d 687 (2007).
1
Ariz.Farmers Ins. Exchange v. Henderson, 82 Ariz. 335, 313 P.2d 404 (1957).
2
3
U.S.Jacksonville Blow Pipe Co. v. Trammell Hardwood Flooring Co., 170 F. Supp. 537 (N.D. Ga. 1958), judgment
4
aff'd, 264 F.2d 717 (5th Cir. 1959).

Or.Western Rebuilders & Tractor Parts, Inc. v. Felmley, 237 Or. 191, 391 P.2d 383 (1964).
Va.United Const. Workers v. Laburnum Const. Corp., 194 Va. 872, 75 S.E.2d 694 (1953), judgment aff'd, 347 U.S.
656, 74 S. Ct. 833, 98 L. Ed. 1025 (1954).
167.Loss of business, 25 C.J.S. Damages 167

Va.United Const. Workers v. Laburnum Const. Corp., 194 Va. 872, 75 S.E.2d 694 (1953), judgment aff'd, 347 U.S.
656, 74 S. Ct. 833, 98 L. Ed. 1025 (1954).
Cal.Elsbach v. Mulligan, 58 Cal. App. 2d 354, 136 P.2d 651 (1st Dist. 1943).
W.Va.Axford v. Price, 134 W. Va. 725, 61 S.E.2d 637 (1950).
Fla.Concept, L.C. v. Gesten, 662 So. 2d 970 (Fla. Dist. Ct. App. 4th Dist. 1995), as clarified on reh'g, (Nov. 27, 1995).
End of Document

Damages
d. Expenses
168. Generally
West's Key Number Digest, Damages 101, 116, 124, 124(3)
The measure of a recovery for expenses incurred by the plaintiff by reason of the defendant's wrongful act
is a reasonable sum therefor and not necessarily the amount actually paid out.
The measure of a recovery for expenses incurred by the plaintiff by reason of the defendant's wrongful act is
a reasonable sum therefor, 1 and not necessarily the amount actually paid out, 2 nor a sum in excess thereof. 3
Hence, while evidence of the amount actually paid may be considered, 4 the necessity of such payment 5 and its
reasonableness 6 must be shown except, perhaps, in a case where the amount is small and the expenditures such as
may be fully understood by the jury. 7 However, salaries of regular employees have been allowed as a recoverable
expense at the rate actually paid rather than at the value of the services. 8
To warrant a recovery for expenses, there must be evidence from which the amount to be allowed can be properly
determined. 9 Thus, evidence that services have been rendered to the injured person is insufficient as a basis for
recovery unless the value of such services is shown. 10 Where the plaintiff has made the repairs himself or herself,
his or her overhead expenses may be included in the amount recoverable, 11 but a profit on the repairs is not
recoverable. 12 Duplicate expenses cannot, of course, be recovered. 13
Procuring contract.
Money spent in procuring a contract cannot be treated as an expense of performance of that contract or recoverable
as damages for its breach. 14
Footnotes
U.S.Atlantic Aviation Corp. v. U.S., 456 F. Supp. 121 (D. Del. 1978).
1
Ill.Trowbridge v. Chicago & I. M. Ry. Co., 131 Ill. App. 2d 707, 263 N.E.2d 619 (3d Dist. 1970).
2
3
4
5
6
7
8
9
10
11
12
13
14
Kan.Nolan v. Auto Transporters, 226 Kan. 176, 597 P.2d 614 (1979).
Tex.Tinney v. Williams, 144 S.W.2d 344 (Tex. Civ. App. Amarillo 1940).
Tex.Kuehn v. Neugebauer, 204 S.W. 369 (Tex. Civ. App. Austin 1918).
Ala.Birmingham Amusement Co. v. Norris, 216 Ala. 138, 112 So. 633, 53 A.L.R. 840 (1927).
Mich.Luttenton v. Detroit, J. & C. Ry., 209 Mich. 20, 176 N.W. 558 (1920).
W.Va.Payne v. Ace House Movers, Inc., 145 W. Va. 86, 112 S.E.2d 449 (1960).
Or.Chaperon v. Portland General Elec. Co., 41 Or. 39, 67 P. 928 (1902).
U.S.Krawill Machinery Corp. v. Robert C. Herd & Co., 155 F. Supp. 296 (D. Md. 1957), judgment aff'd, 256 F.2d
946 (4th Cir. 1958), judgment aff'd, 359 U.S. 297, 79 S. Ct. 766, 3 L. Ed. 2d 820 (1959).
Cal.Roberts Distributing Co. v. Kaye-Halbert Corp., 126 Cal. App. 2d 664, 272 P.2d 886 (2d Dist. 1954).
La.Rodriguez v. Hudson, 79 So. 2d 578 (La. Ct. App., Orleans 1955).
Mo.Anderson v. Glascock, 271 S.W.2d 243 (Mo. Ct. App. 1954).
N.D.Hintz v. Wagner, 25 N.D. 110, 140 N.W. 729 (1913).
U.S.Ford Motor Co. v. Bradley Transp. Co., 174 F.2d 192 (6th Cir. 1949).
La.Sewell v. Newton, 152 So. 389 (La. Ct. App., Orleans 1934).
La.Cormier v. Traders & General Ins. Co., 159 So. 2d 746 (La. Ct. App. 3d Cir. 1964), writ issued, 245 La. 806,
161 So. 2d 279 (1964) and writ issued, 245 La. 805, 161 So. 2d 279 (1964) and judgment rev'd on other grounds, 246
La. 976, 169 So. 2d 69 (1964).
Ky.Linde v. Ellis, 224 Ky. 649, 6 S.W.2d 1089 (1928).
Minn.Goodell v. Accumulative Income Corp., 185 Minn. 213, 240 N.W. 534 (1932).
End of Document
169.Litigation expenses and attorney's fees, 25 C.J.S. Damages 169

Damages
d. Expenses
169. Litigation expenses and attorney's fees
West's Key Number Digest, Damages 70 to 73, 101, 116
Attorney's fees or other expenses of litigation are recoverable as damages only to the extent that they are
necessarily incurred and reasonable in amount, or within the limitations fixed by a contract or statute.
When attorney's fees or other expenses of litigation are recoverable as damages, they can be recovered only
to the extent that they are necessarily incurred 1 and reasonable in amount, 2 or within the limitations fixed
by a contract 3 or statute. 4 The fee charged for the legal services is not the basis of the award, 5 but in some
jurisdictions, absence of proof that the fee has actually been paid or an obligation therefor incurred defeats recovery
of the fee. 6
There can be no recovery in the absence of evidence from which the amount to be allowed can be properly
determined. 7 Where the amount awarded is fixed by the jury, there must be evidence concerning the
reasonableness of the fee, 8 but where the amount is fixed by the court, the court need not hear any opinion
testimony as to the value of the services. 9 The court in passing on the reasonableness of attorney's fees sought
to be recovered as damages will consider the amount of work and skill entailed, the amount of money involved,
and the responsibilities assumed. 10
Where contractual provisions for payment by a debtor of his or her creditor's attorney's fees and costs are invoked,
such payment should not be enforced in the full amount of the creditor's legal expenses, even though actually
incurred and reasonable in amount, where his or her claims or defenses giving rise to such expenses lack substantial
merit, and in no event should the sum allowed be so large as to constitute an undue penalty for taking the grievance
to court. 11 If the creditor has benefited by having a doubtful question of law resolved, thus reducing the area of
a potential future dispute, the debtor should bear only a fair portion of the burden. 12
Footnotes
169.Litigation expenses and attorney's fees, 25 C.J.S. Damages 169
1
2
3
4
5
6
7
8
9
10
11
12
Ala.Highlands Underwriters Ins. Co. v. Elegante Inns, Inc., 361 So. 2d 1060 (Ala. 1978).
Fla.Trustees of Cameron-Brown Inv. Group v. Tavormina, 385 So. 2d 728 (Fla. Dist. Ct. App. 3d Dist. 1980).
Fla.United Bonding Ins. Co. of Indianapolis, Ind. v. Presidential Ins. Co., 155 So. 2d 635 (Fla. Dist. Ct. App. 2d
Dist. 1963).
Ga.Taylor v. Estes, 85 Ga. App. 716, 70 S.E.2d 82 (1952).
Mont.State ex rel. Mueller v. Todd, 117 Mont. 80, 158 P.2d 299 (1945).
U.S.Manchester Gardens, Inc. v. Great West Life Assur. Co., 205 F.2d 872 (D.C. Cir. 1953).
Fla.United Bonding Ins. Co. of Indianapolis, Ind. v. Presidential Ins. Co., 155 So. 2d 635 (Fla. Dist. Ct. App.
Dist. 1963).
La.Davis v. Laster, 130 So. 2d 479 (La. Ct. App. 2d Cir. 1961), rev'd on other grounds, 242 La. 735, 138 So.
558, 96 A.L.R.2d 332 (1962).
Fla.United Bonding Ins. Co. of Indianapolis, Ind. v. Presidential Ins. Co., 155 So. 2d 635 (Fla. Dist. Ct. App.
Dist. 1963).
La.Davis v. Laster, 130 So. 2d 479 (La. Ct. App. 2d Cir. 1961), rev'd on other grounds, 242 La. 735, 138 So.
558, 96 A.L.R.2d 332 (1962).
Mont.Rigney v. Swingley, 112 Mont. 104, 113 P.2d 344 (1941).
2d
2d
2d
2d
Cal.Genis v. Krasne, 47 Cal. 2d 241, 302 P.2d 289 (1956).

Mont.State ex rel. Mueller v. Todd, 117 Mont. 80, 158 P.2d 299 (1945).
End of Document
170.Medical attention, medicine, and nursing, 25 C.J.S. Damages 170

Damages
d. Expenses
170. Medical attention, medicine, and nursing
The proper measure of damages for medical attention, medicine, and nursing care is the reasonable value
thereof, and not the amount actually paid or charged.
The proper measure of damages for medical treatment rendered in a personal injury action is the reasonable value
of the medical treatment reasonably required by the injury 1 and not the amount actually paid or charged. 2 While
evidence of the amount paid or agreed to be paid may be considered, 3 it must be accompanied or followed by
evidence that such amount was reasonable 4 and its expenditure necessary 5 as a result of defendant's fault. 6
The trier of fact must look to a variety of other factors in making such a finding, and among those factors to be
considered by the jury are the amount billed to the plaintiff and the relative market value of those services. 7
There can be no recovery in the absence of evidence from which the amount to be allowed can be properly
determined 8 although it appears that the plaintiff required medical attention and actually had physicians in
attendance for a considerable period as a result of the injuries. 9 In order that there may be a recovery for medical
services, there must be evidence as to the value of such services. 10 It is not sufficient to show what the physician
charged the plaintiff, 11 nor is such evidence admissible without other evidence as to the value of the services 12
or to show that the charges have been paid. 13
Services furnished by members of injured person's family or others.

Where a recovery is allowed for nursing and attendance furnished by members of the injured person's family or
others as unskilled nurses, the recovery is to be measured by what is customarily charged for similar work, 14
or the reasonable value of the nursing services, 15 and not the wages lost by the person performing the services
during the time he or she was absent from his or her regular employment. 16 While there is authority that evidence
as to the value of such nursing services is necessary, 17 there is also authority that the jury may determine the
value thereof as a matter of common knowledge without evidence thereof. 18
Limitation to contractual schedule of rates.

Where the amount paid for medical services is in accordance with a contractual schedule of rates, the recovery is
limited to that amount although the reasonable value of the services in the absence of the contract is higher. 19
Future expenses.
Where there is no evidence as to the probable extent of future medical or nursing services or as to the amount
that might have to be expended therefor, the jury may determine from the services, which at that time have been
required and the value thereof, what might be reasonably expected in the future. 20 While there is authority that
the rule that an award for future damages should be reduced to its present worth is not applicable to an award for
future medical attention, 21 there is also authority that any award for future medical expenses should be reduced
to its present cash value. 22
Cases:
A jury award of $60,000 for past medical expenses deviated materially from what would be reasonable
compensation, as it was excess of the total amount of bills laborer offered into evidence. McKinney's CPLR 5501.
Pinto v. Gormally, 109 A.D.3d 425, 970 N.Y.S.2d 543 (1st Dep't 2013).
[END OF SUPPLEMENT]
Footnotes
Ind.Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009).
1
Mass.Scott v. Garfield, 454 Mass. 790, 912 N.E.2d 1000 (2009).
S.C.Haselden v. Davis, 353 S.C. 481, 579 S.E.2d 293 (2003).
S.D.Papke v. Harbert, 2007 SD 87, 738 N.W.2d 510 (S.D. 2007).
Wis.Leitinger v. DBart, Inc., 2007 WI 84, 302 Wis. 2d 110, 736 N.W.2d 1 (2007).
Ind.Butler v. Indiana Dept. of Ins., 904 N.E.2d 198 (Ind. 2009).
Cal.Graf v. Marvin Engh Truck Co., 207 Cal. App. 2d 550, 24 Cal. Rptr. 511 (4th Dist. 1962).
Mo.Hay v. Ham, 364 S.W.2d 118 (Mo. Ct. App. 1962).
W.Va.Keffer v. Logan Coca-Cola Bottling Works, Inc., 141 W. Va. 839, 93 S.E.2d 225 (1956).
La.Yarberry v. Shreveport Rys. Co., 117 So. 2d 637 (La. Ct. App. 2d Cir. 1959).
W.Va.Keffer v. Logan Coca-Cola Bottling Works, Inc., 141 W. Va. 839, 93 S.E.2d 225 (1956).
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

Mo.Begley v. Adaber Realty & Inv. Co., 358 S.W.2d 785 (Mo. 1962).
OhioHudock v. Youngstown Municipal Ry. Co., 164 Ohio St. 493, 58 Ohio Op. 345, 132 N.E.2d 108, 59 A.L.R.2d
365 (1956).
Kan.Cudahy Packing Co. v. Broadbent, 70 Kan. 535, 79 P. 126 (1905).
Neb.Oliverius v. Wicks, 107 Neb. 821, 187 N.W. 73 (1922).
Wash.Torgeson v. Hanford, 79 Wash. 56, 139 P. 648 (1914).
S.D.Klingaman v. Fish & Hunter Co., 19 S.D. 139, 102 N.W. 601 (1905) (overruled in part on other grounds by,
Ross v. Foss, 77 S.D. 358, 92 N.W.2d 147 (1958)).
Wash.Cole v. Schaub, 164 Wash. 162, 2 P.2d 669 (1931), aff'd, 164 Wash. 162, 7 P.2d 1119 (1932).
N.H.Ernshaw v. Roberge, 86 N.H. 451, 170 A. 7 (1934).
Wis.Hommel v. Badger State Inv. Co., 166 Wis. 235, 165 N.W. 20 (1917).
Nev.Armstrong v. Onufrock, 75 Nev. 342, 341 P.2d 105, 76 A.L.R.2d 946 (1959).
Nev.Armstrong v. Onufrock, 75 Nev. 342, 341 P.2d 105, 76 A.L.R.2d 946 (1959).
Tex.Warren Petroleum Corp. v. Pyeatt, 275 S.W.2d 216 (Tex. Civ. App. Texarkana 1955), writ refused n.r.e., (Apr.
13, 1955).
IowaScurlock v. City of Boone, 142 Iowa 684, 121 N.W. 369 (1909).
Mo.Drogmund v. Metropolitan St. Ry. Co., 122 Mo. App. 154, 98 S.W. 1091 (1906).
U.S.Pabon v. Cotton State Mut. Ins. Co., 196 F. Supp. 586 (D.P.R. 1961).
Tex.Edens-Birch Lumber Co. v. Wood, 139 S.W.2d 881 (Tex. Civ. App. Beaumont 1940), writ dismissed, judgment
correct.
Life expectancy
Plaintiff's normal life expectancy was properly used in calculating his future medical expenses as an item of damages
where there was testimony that proper medical care would enable plaintiff to live out his normal life expectancy.
4th Cir. 1963).
Pa.Renner v. Sentle, 151 Pa. Super. 231, 30 A.2d 220 (1943).
Ga.Hughes v. Brown, 109 Ga. App. 578, 136 S.E.2d 403 (1964).
End of Document

Damages
e. Interest
(1) In General
171. Generally
West's Key Number Digest, Damages 66, 66.1, 67
Prejudgment interest is an appropriate element of damages in some cases, and as a general rule, interest
awarded as damages is to be computed at the legal rate.
Prejudgment interest is an appropriate element of damages in some cases. 1 Prejudgment interest is normally
designed to make the plaintiff whole and is part of the actual damages sought to be recovered. 2 The allowance of
prejudgment interest as an element of damages is primarily an equitable determination and a matter lying within
the discretion of the trial court. 3 The equitable approach to determining interest as an element of damages is only
necessary when the parties have not agreed by contract on the amount of interest to be paid, and if the parties have
agreed on the payment of interest, it is payable not as damages but pursuant to a contract duty that is enforceable. 4
Where prejudgment interest is recoverable by statute as a cost of litigation, it is not an element of damages. 5
Interest awarded as damages is, under the general rule, to be computed at the legal rate 6 or, where there is no
fixed legal rate, at a reasonable rate conforming to the customs prevailing in the community in dealings of a like
character. 7 The rule is the same in equity as at law. 8 However, under some circumstances, less than the legal
rate of interest may be awarded. 9
Cases:
In contrast to prejudgment interest, post-judgment interest is not an element of damages, but is a statutory award
for delay in the payment of money actually due. RGR, LLC v. Settle, 764 S.E.2d 8 (Va. 2014).
[END OF SUPPLEMENT]
Footnotes
Wyo.Wells Fargo Bank Wyoming, N.A. v. Hodder, 2006 WY 128, 144 P.3d 401 (Wyo. 2006).
1
Va.Upper Occoquan Sewage Authority v. Blake Const. Co., Incorporated/Poole & Kent, 275 Va. 41, 655 S.E.2d
2
10 (2008).
Interest as damages distinguished
"Interest as interest" is compensation for the use or detention of money, while "interest as damages" is compensation
allowed by law as additional damages for lost use of the money during the lapse of time between the accrual of the
claim and the date of the judgment, i.e., prejudgment interest.
Tex.Marrs and Smith Partnership v. D.K. Boyd Oil and Gas Co., Inc., 223 S.W.3d 1 (Tex. App. El Paso 2005).
As part of substantive debt
Because interest is as much a part of substantive debt as principal, it can be imposed as a form of damages even in
the absence of any contractual obligation.
Pa.Centennial School Dist. v. Kerins, 840 A.2d 377 (Pa. Commw. Ct. 2003).
3
4
5
6
7
8
9
Not a windfall
Residential cooperative was entitled to recover interest paid on delinquent real estate taxes from its former managing
agent; recovery of such interest was an element of damages and would not constitute an impermissible windfall or put
cooperative in a "better position" than it was in prior to its managing agent's alleged misfeasance.
N.Y.Jamie Towers Housing Company, Inc. v. William B. Lucas, Inc., 296 A.D.2d 359, 745 N.Y.S.2d 532 (1st Dep't
2002).
U.S.Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485 (4th Cir. 2005) (under South Carolina law).
U.S.Philadelphia Housing Authority v. CedarCrestone, Inc., 562 F. Supp. 2d 653 (E.D. Pa. 2008) (under
Pennsylvania law).
U.S.Maddox v. American Airlines, Inc., 298 F.3d 694 (8th Cir. 2002) (under Oklahoma law).
Cal.McConnell v. Pacific Mut. Life Ins. Co., 205 Cal. App. 2d 469, 24 Cal. Rptr. 5 (2d Dist. 1962).
IowaCharles v. Epperson & Co., 258 Iowa 409, 137 N.W.2d 605 (1965).
Tex.City of Abilene v. Downs, 386 S.W.2d 877 (Tex. Civ. App. Fort Worth 1965), writ refused n.r.e., (May 26,
1965).
U.S.E. I. Du Pont De Nemours & Co. v. Lyles & Lang Const. Co., 219 F.2d 328 (4th Cir. 1955).
S.D.Smith v. Johnson, 30 S.D. 200, 138 N.W. 18 (1912).
U.S.Speed v. Transamerica Corp., 135 F. Supp. 176 (D. Del. 1955), judgment modified on other grounds, 235 F.2d
369 (3d Cir. 1956).
End of Document
172.Change of legal rate, 25 C.J.S. Damages 172

Damages
e. Interest
(1) In General
172. Change of legal rate
If the legal rate of interest has been changed after the wrongful act or injury complained of, but before a
final determination, the interest should be computed at the former rate up to the time of the change in the
law and at the latter rate for the period thereafter.
In cases where interest is allowed as damages, and not by reason of a contract, express or implied, for its payment,
the interest for each period must be computed at the rate that was legal during that period, and statutes changing
the rate will operate prospectively only. 1 If the legal rate of interest has been changed after the wrongful act or
injury complained of, but before a final determination, the interest should be computed at the former rate up to
the time of the change in the law and at the latter rate for the period thereafter. 2
Cases:
Under the "collateral source rule," a tortfeasor may not benefit, and an injured plaintiff's tort recovery may not be
reduced, because of monies received by the plaintiff from sources independent of the tortfeasor's procuration or
contribution. Powell v. Chabanais Concrete Pumping, Inc., 82 So. 3d 548 (La. Ct. App. 5th Cir. 2011).
[END OF SUPPLEMENT]
Footnotes
N.Y.Metropolitan Sav. Bank v. Tuttle, 290 N.Y. 497, 49 N.E.2d 983, 147 A.L.R. 1019 (1943).
1
2
Tex.Haag v. Pugh, 545 S.W.2d 22 (Tex. Civ. App. Eastland 1976).

Tenn.Haag v. Pugh, 545 S.W.2d 22 (Tex. Civ. App. Eastland 1976).
172.Change of legal rate, 25 C.J.S. Damages 172
End of Document

Damages
e. Interest
(2) Period for Which Computed
(a) In General
173. Generally
The allowance of interest as compensatory damages is generally calculated from the time the money due
should have been paid.
Generally, the allowance of interest as compensatory damages is calculated from the time the money due should
have been paid, 1 or, as similarly stated, interest when allowed as damages runs from the date when the right
to recover a sum certain is vested in the plaintiff 2 or from the date of the accrual of the cause of action. 3 The
commencement of an action may constitute the requisite demand for payment, and interest may run from that
time. 4
Footnotes
U.S.Louisiana & A. Ry. Co. v. Export Drum Co., 359 F.2d 311 (5th Cir. 1966).
1
2
3
4

N.Y.Ariola v. Petro Trucking Corp., 50 Misc. 2d 216, 270 N.Y.S.2d 309 (Sup 1966).
Tex.Hexter v. Powell, 475 S.W.2d 857 (Tex. Civ. App. Dallas 1971), writ refused n.r.e., (May 17, 1972).
Ariz.Rossi v. Hammons, 34 Ariz. 95, 268 P. 181 (1928).
Mo.Prudential Ins. Co. of America v. Goldsmith, 239 Mo. App. 188, 192 S.W.2d 1 (1945).
Tex.Statler Hotels v. Herbert Rosenthal Jewelry Corp., 351 S.W.2d 579 (Tex. Civ. App. Dallas 1961), writ refused
n.r.e., (Feb. 21, 1962).
End of Document
174.Money wrongfully obtained or used, 25 C.J.S. Damages 174

Damages
e. Interest
(a) In General
174. Money wrongfully obtained or used
Generally, interest is recoverable on money wrongfully obtained from another or wrongfully used by the
person having possession of it from the date it was so obtained or used.
Generally, interest is recoverable on money wrongfully obtained from another or wrongfully used by the person
having possession of it from the date it was so obtained or used, 1 or from the earliest date that it can be proved
to have been obtained or used. 2 Where possession of the money is given for a particular purpose that fails in
accomplishment, interest should be allowed from the date of demand for payment or restoration, 3 and as a matter
of course, interest can be awarded only from demand where demand is necessary to make the defendant's retention
of possession or failure to deliver wrongful. 4
Footnotes
Cal.In re Willardson's Estate, 101 Cal. App. 2d 777, 226 P.2d 369 (2d Dist. 1951).
1
2
3
4
IowaCharles v. Epperson & Co., 258 Iowa 409, 137 N.W.2d 605 (1965).
Mass.Broomfield v. Kosow, 349 Mass. 749, 212 N.E.2d 556 (1965).
N.C.Silver Valley Min. Co. v. Baltimore Gold & Silver Mining & Smelting Co., 101 N.C. 679, 8 S.E. 361 (1888).
Cal.Buttner v. Smith, 4 Cal. Unrep. 627, 36 P. 652 (Cal. 1894).
Va.Vashon v. Barrett, 105 Va. 490, 54 S.E. 705 (1906).
End of Document
175.Money held to use of another, 25 C.J.S. Damages 175

Damages
e. Interest
(a) In General
175. Money held to use of another
Where one person holds money to the use of another, and is charged with a certain duty with regard thereto,
and fails to make such application thereof as his or her duty requires, interest is to be computed on the sum
so held from the date of his or her failure to make the required application.
Where one person holds money to the use of another, and is charged with a certain duty with regard thereto, and
fails to make such application thereof as his or her duty requires, interest is to be computed on the sum so held
from the date of his or her failure to make the required application. 1 Otherwise, in the absence of any misconduct
on the part of the person holding money to another's use, interest will be allowed only from the demand for its
delivery to the person entitled thereto. 2 Where the person holding the money is entitled to hold it until a certain
time, interest cannot run against him or her until such time. 3
Footnotes
1
2
3
N.M.State v. American Surety Co. of New York, 37 N.M. 411, 24 P.2d 267, 89 A.L.R. 1314 (1933).
N.M.State v. American Surety Co. of New York, 37 N.M. 411, 24 P.2d 267, 89 A.L.R. 1314 (1933).
IowaLessenich v. Sellers, 119 Iowa 314, 93 N.W. 348 (1903).
End of Document
176.Judgments, verdicts, and awards, 25 C.J.S. Damages 176

Damages
e. Interest
(a) In General
176. Judgments, verdicts, and awards
Interest generally commences to run on judgments from the date of their entry, and interest on the sum
found due by a verdict, award, or report of a master is generally allowed from the date when such sum
is payable.
Interest generally commences to run on judgments from the date of their entry, 1 and, where a judgment is entered
nunc pro tunc, interest is to be computed from the day on which it is to be considered as entered 2 although, by the
terms of some statutes, interest on money judgments is to be computed from the date of the return of the verdict
or finding by the court. 3 Interest on the sum found due by a verdict, award, or report of a master is generally
allowed from the date when the sum is payable by the terms of such verdict, award, or report. 4 However, interest
is to be computed from the confirmation of the verdict, award, or report of a master, where such confirmation is
necessary to give it effect. 5 Where a statute so provides, interest is allowed from the date of the report or award. 6
Where a verdict liquidates a claim, and fixes it as of a prior date, interest should be allowed from that date. 7
Cases:
Postjudgment interest began to run from date of original judgment, rather than date of final judgment after appeal;
trial court should have issued a correct judgment when it issued its original judgment. V.T.C.A., Finance Code
304.005(a). Griffin v. Long, 442 S.W.3d 380 (Tex. App. Tyler 2011), review granted, judgment rev'd, 442 S.W.3d
253 (Tex. 2014).
[END OF SUPPLEMENT]
176.Judgments, verdicts, and awards, 25 C.J.S. Damages 176
Footnotes
U.S.Automatic Dialing Corp. v. Maritime Quality Hardware Co., 98 F. Supp. 650 (D. Me. 1951).
1
2
3
4
5
6
7
Cal.Patterson v. Missler, 238 Cal. App. 2d 759, 48 Cal. Rptr. 215 (4th Dist. 1965).
IdahoMitchell v. Flandro, 96 Idaho 236, 526 P.2d 841 (1974).
Kan.Foster v. City of Augusta, 174 Kan. 324, 256 P.2d 121 (1953).
Cal.Cutting Fruit Packing Co. v. Canty, 141 Cal. 692, 75 P. 564 (1904).
Ind.Lake Erie & W.R. Co. v. Huffman, 177 Ind. 126, 97 N.E. 434 (1912).
Ill.Pearson v. Sanderson, 128 Ill. 88, 21 N.E. 200 (1889).
U.S.Locklin v. Day-Glo Color Corp., 429 F.2d 873 (7th Cir. 1970).
Ga.Guernsey v. Phinizy, 113 Ga. 898, 39 S.E. 402 (1901).
Mass.Speirs v. Union Drop-Forge Co., 180 Mass. 87, 61 N.E. 825 (1901).
Fla.Sullivan v. McMillan, 37 Fla. 134, 19 So. 340 (1896).
End of Document
177.Damages for torts, 25 C.J.S. Damages 177

Damages
e. Interest
(a) In General
177. Damages for torts
While there is authority that where interest is allowed as part of the recovery for the commission of a tort,
such interest is computed from the date when the tort was committed. There is also authority that in such
case, interest is to be computed only from the date of the judicial demand or institution of the suit for
damages, or, where the claim is unliquidated, from the date of the judgment.
There is authority that where damages are recovered for the commission of a tort, and interest on such damages
is allowed as a part thereof, interest is to be computed from the date when the tort was committed or injury
sustained, 1 particularly where the sum is definitely ascertainable. 2 However, there is also authority that in such
case, interest is to be computed only from the date of the judicial demand or institution of the suit for damages, 3
or, where the claim is unliquidated, from the date of the judgment. 4 Under still other authority, in the absence
of a statute otherwise providing, a successful plaintiff in a tort action for an unliquidated sum is not entitled to
interest until the damages have been liquidated by a verdict or findings. 5
Footnotes
Conn.Scribner v. O'Brien, Inc., 169 Conn. 389, 363 A.2d 160 (1975).
1
Kan.Aetna Cas. and Sur. Co. v. Hepler State Bank, 6 Kan. App. 2d 543, 630 P.2d 721, 32 U.C.C. Rep. Serv. 187,
23 A.L.R.4th 841 (1981).
N.Y.Brandt Corp. v. Warren Automatic Controls Corp., 37 A.D.2d 563, 322 N.Y.S.2d 291 (2d Dep't 1971).
Tex.City of San Augustine v. Roy W. Green Co., 548 S.W.2d 467 (Tex. Civ. App. Tyler 1977), writ refused n.r.e.,
(June 22, 1977).
Tex.First Nat. Bank v. Slaton Independent School Dist., 58 S.W.2d 870 (Tex. Civ. App. Amarillo 1933), writ
dismissed.
Colo.Johnson v. Enlow, 132 Colo. 101, 286 P.2d 630 (1955).
177.Damages for torts, 25 C.J.S. Damages 177
La.Pellegrin v. Fidelity & Cas. Co. of New York, 193 So. 2d 392 (La. Ct. App. 1st Cir. 1966).
R.I.Perri v. Wood, 103 R.I. 53, 234 A.2d 663 (1967).
U.S.Thibodeaux v. Rowan Drilling Co., 314 F. Supp. 543 (W.D. La. 1969), judgment aff'd, 429 F.2d 573 (5th Cir.
1970).
Colo.Engler v. Hatch, 472 P.2d 680 (Colo. App. 1970).
Ky.Lebow v. Cameron, 394 S.W.2d 773 (Ky. 1965).
U.S.Valdosta Milling Co. v. Garretson, 217 F.2d 625 (5th Cir. 1954).
Mass.Connelly v. Fellsway Motor Mart, 270 Mass. 386, 170 N.E. 467 (1930).
End of Document

Damages
e. Interest
(b) Breach of Contract
178. Generally
Where interest is recoverable as damages for the breach of a contract, as a general rule it should be
computed from the date of the breach.
Interest is allowed to be recovered as an element of damages for breach of contract, 1 and as a general rule, where
interest is recoverable as damages for the breach of a contract, it should be computed from the date of the breach 2
or date of accrual of the cause of action. 3 Where the claim is unliquidated, however, there is authority that interest
should be allowed only from the time action is brought 4 or from the date of adjudication thereof. 5 In the absence
of proof of a fixed date of breach, interest may be computed and added from the date of the commencement of
the action. 6
Footnotes
Wis.Staver v. Milwaukee County, 289 Wis. 2d 675, 2006 WI App 33, 712 N.W.2d 387 (Ct. App. 2006).
1
Equitable means of recognizing economic reality

As component of damages award in breach-of-contract action, "interest" is equitable means of recognizing economic
reality that breaching party has enjoyed long opportunity to earn interest on money that it wrongfully withheld under
contract.
Ky.University of Louisville v. RAM Engineering & Const., Inc., 199 S.W.3d 746, 212 Ed. Law Rep. 937 (Ky. Ct.
App. 2005).
Conn.Walter Kidde Constructors, Inc. v. State, 37 Conn. Supp. 50, 434 A.2d 962 (Super. Ct. 1981).
N.Y.D'Allemagne v. Lapidus, 35 A.D.2d 717, 314 N.Y.S.2d 894 (1st Dep't 1970).
Tex.R. G. McClung Cotton Co. v. Cotton Concentration Co., 479 S.W.2d 733 (Tex. Civ. App. Dallas 1972), writ
refused n.r.e., (Nov. 8, 1972).
Tex.Marion v. Layton, 373 S.W.2d 122 (Tex. Civ. App. Amarillo 1963).
4
5
Tenn.Brady v. Oliver, 125 Tenn. 595, 147 S.W. 1135 (1911).

U.S.Truscon Steel Co. v. U.S., 70 Ct. Cl. 727, 1930 WL 2519 (1930).
Date of judgment
In an action for unliquidated damages for a breach of contract, interest should be allowed only from the date of judgment.
Cal.Graddon v. Knight, 138 Cal. App. 2d 577, 292 P.2d 632 (1st Dist. 1956).
IdahoWilliams v. Idaho Potato Starch Co., 73 Idaho 13, 245 P.2d 1045 (1952).
N.Y.Mathis v. Matthews, 39 N.Y.S.2d 242 (Sup 1943).
End of Document
179.Payment of money, 25 C.J.S. Damages 179

Damages
e. Interest
(b) Breach of Contract
179. Payment of money
Where interest is recoverable on the breach of a contract, express or implied, for the payment of money,
as a general rule it should be computed from the date payment was due.
In a breach-of-contract action, if the breach consists of a failure to pay a definite sum in money or to render a
performance with fixed or ascertainable monetary value, interest is recoverable from the time for performance
on the amount due less all deductions to which the party in breach is entitled and interest is due as a matter of
course. 1 Although the exact date for the payment of the money is not fixed by the contract, if it can be ascertained
with reasonable certainty from the terms of the contract, interest will be allowed from the date so ascertained. 2
Payment on happening of event or condition.

Where a contract provides for the payment of money on the happening of an event, or on a certain condition,
interest is to be computed only from the happening of such event or the compliance with such condition. 3 This
rule applies where money is payable at the death of a person, 4 at the final settlement of a decedent's estate, 5 the
completion of certain work, 6 or the delivery of certain articles. 7
Contract silent as to time.

While there is authority that where a contract for the payment of money fixes no time when it shall be paid, the
amount is payable immediately, and interest runs from the date of the contract, 8 there is also authority that, in
the case of such a contract, a demand for payment is regarded as necessary to a default, and interest runs only
from the date of such demand. 9
Loans and advances.

Where one person lends money to or pays money at the request and to the use of another, interest is to be allowed
on the sum lent or advanced from the date of the transaction in the absence of any agreement to the contrary. 10
Accounts.
Interest is generally allowed on the balance due on an account from the date of the liquidation of such account
and the acknowledgment of such balance, 11 or from the date of the demand for payment of such balance, the
demand operating as a liquidation so as to start the running of interest. 12 The presentation of an account showing
a balance due, when no objection is made by the debtor, is a sufficient demand and liquidation to start the running
of interest. 13 However, if the parties have expressly fixed on a term of credit, interest will be allowed on such
balance only from the date of the expiration of the credit. 14 Thus, also, where a term of credit is fixed by usage
or custom of dealing, or by a statute, interest will be computed from the expiration of such credit. 15 In an action
on an open and unliquidated account, interest is ordinarily allowed only from the date of bringing the suit. 16
Work done and material furnished.

There is authority that, in the absence of a contract fixing the time of payment for work done and material furnished,
payment should be made on the completion of the work, and interest is to be allowed from such time. 17 However,
there is also authority that, in suits for wages or for work done and materials furnished, interest is to be allowed
only from the time a demand is made, 18 and, in the absence of a previous demand, interest is to be allowed only
from institution of the suit. 19 Where the claim sued on is unliquidated, interest should not be allowed prior to
the date of the judgment, 20 and where the right of a person to compensation for work and materials furnished
under a contract is doubtful and contested on reasonable grounds, and the amount due him or her requires to be
adjusted by proceedings in the suit, interest is recoverable only after his or her right to recover and the amount of
his or her recovery have been determined. 21 If the exact amount of the indebtedness due the plaintiff is known to,
and admitted by, the defendant, interest will be allowed from the time it became due, 22 and, if the admission of
the amount due arises from defendant's pleadings, interest will be allowed from the time of filing the answer. 23
Interest should not be allowed the plaintiff on sums that the defendant had a right to retain under the contract. 24
Footnotes
U.S.Siematic Mobelwerke GmbH & Co. KG v. Siematic Corp., 643 F. Supp. 2d 675 (E.D. Pa. 2009), subsequent
1
4
5
determination, 669 F. Supp. 2d 538 (E.D. Pa. 2009) (under Pennsylvania law).
Ky.Felix v. Lykins Enterprises, Inc., 2010 WL 4137276 (Ky. Ct. App. 2010).
Cal.Huntoon v. Hurley, 137 Cal. App. 2d 33, 290 P.2d 14 (2d Dist. 1955).
P.2d 982 (1948).
Cal.Gillis v. Sun Ins. Office, Limited, 238 Cal. App. 2d 408, 47 Cal. Rptr. 868, 25 A.L.R.3d 564 (1st Dist. 1965).
Or.State ex rel. J. F. Konen Const. Co. v. U. S. Fidelity & Guaranty Co., 234 Or. 554, 380 P.2d 795 (1963), on reh'g,
234 Or. 554, 382 P.2d 858 (1963).
Ga.McCook v. Harp, 81 Ga. 229, 7 S.E. 174 (1888).
S.C.Kinard v. Glenn, 29 S.C. 590, 8 S.E. 203 (1888).
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Mich.Sweeney v. Adam Groth Co., 269 Mich. 436, 257 N.W. 855 (1934).
Cal.Ryland v. Heney, 130 Cal. 426, 62 P. 616 (1900).
Cal.Jetty v. Craco, 123 Cal. App. 2d 876, 267 P.2d 1055 (2d Dist. 1954).
N.H.Dame v. Wood, 75 N.H. 38, 70 A. 1081 (1908).
U.S.Goodwin v. Fox, 129 U.S. 601, 9 S. Ct. 367, 32 L. Ed. 805 (1889).
Cal.Jetty v. Craco, 123 Cal. App. 2d 876, 267 P.2d 1055 (2d Dist. 1954).
U.S.Blum v. William Goldman Theatres, 174 F.2d 908 (3d Cir. 1949).
R.I.Kerr Bros. v. Armstrong, 110 A. 416 (R.I. 1920).
Ga.Swink v. Prater, 90 Ga. App. 266, 82 S.E.2d 901 (1954).
U.S.Cooper & Co. v. Coates & Co., 88 U.S. 105, 22 L. Ed. 481, 1874 WL 17328 (1874).
Ill.Walker v. Woods, 334 Ill. App. 619, 79 N.E.2d 533 (1st Dist. 1948).
Cal.Ghirardelli v. Peninsula Properties Co., 16 Cal. 2d 494, 107 P.2d 41 (1940).
Ga.Shaheen v. Kiker, 105 Ga. App. 692, 125 S.E.2d 541 (1962).
IowaWilliams v. Stroh Plumbing & Elec., Inc., 250 Iowa 599, 94 N.W.2d 750, 82 A.L.R.2d 465 (1959).
Neb.Moore v. Schank, 148 Neb. 228, 27 N.W.2d 165 (1947).
La.Silberberg v. Kalil & Mickal, 159 La. 560, 105 So. 620 (1925).
Tex.Hines v. Thomas, 164 S.W.2d 59 (Tex. Civ. App. Dallas 1942).
U.S.Northern Pac. Ry. Co. v. Twohy Bros. Co., 95 F.2d 220 (C.C.A. 9th Cir. 1938).
W.Va.Bischoff v. Francesa, 133 W. Va. 474, 56 S.E.2d 865 (1949).
U.S.Freygang v. Vera Cruz & P. R. Co., 154 F. 640 (C.C.A. 4th Cir. 1907).
U.S.Bates County, Mo., v. Wills, 269 F. 734 (C.C.A. 8th Cir. 1920).
Mass.Philip Carey Mfg. Co. v. Joseph Rugo, Inc., 346 Mass. 206, 190 N.E.2d 890 (1963).
Mo.Lindenlaub v. Ozora Marble Quarries Co., 70 S.W.2d 1110 (Mo. Ct. App. 1934).
Cal.Parker v. Maier Brewing Co., 180 Cal. App. 2d 630, 4 Cal. Rptr. 825 (2d Dist. 1960).
U.S.Illinois Sur. Co. v. U.S., 215 F. 334 (C.C.A. 4th Cir. 1914).
U.S.Jacksonville Blow Pipe Co. v. Trammell Hardwood Flooring Co., 170 F. Supp. 537 (N.D. Ga. 1958), judgment
aff'd, 264 F.2d 717 (5th Cir. 1959).
Cal.Gray v. Bekins, 186 Cal. 389, 199 P. 767 (1921).
Cal.Gray v. Bekins, 186 Cal. 389, 199 P. 767 (1921).
N.Y.Holdsworth v. Charles T. Wills, Inc., 254 A.D. 677, 3 N.Y.S.2d 226 (2d Dep't 1938), judgment aff'd, 279 N.Y.
768, 18 N.E.2d 859 (1939).
End of Document
180.Physical pain and suffering, 25 C.J.S. Damages 180

Damages
f. Physical and Mental Pain and Suffering
180. Physical pain and suffering
There is no standard or exact rule by which physical pain and suffering may be measured and compensated
for in money, but the damages awarded for physical pain and suffering should constitute a reasonable
compensation to the plaintiff under the circumstances of the particular case.
There is no standard or exact rule by which physical pain and suffering may be measured and compensated for
in money 1 as it is generally recognized that damages for pain and suffering are by their nature highly subjective
and are not easily calculated in economic terms. 2 The guiding standard entails a determination of fairness and
reasonableness. 3 Moreover, there is no measuring stick by which to determine the amount of damages to be
awarded for pain and suffering other than the intelligence of a fair and impartial trier of fact governed by a sense of
justice. 4 The damages cannot properly be limited to a set percentage of medical, hospital, and related expenses. 5
An award of damages for pain and suffering should be estimated in a fair and reasonable manner, and not by any
sentimental or fanciful standard, 6 and should constitute a reasonable compensation to the plaintiff on the facts
disclosed by the evidence. 7 The use of a mathematical formula to calculate damages for pain and suffering, while
not required, is not forbidden. 8
The amounts of damages awarded for pain and suffering are necessarily speculative, and each case must be judged
on its own facts, 9 but awards should be so made as to maintain some degree of uniformity for similar injuries
after taking into account the great variation in circumstances surrounding each injury. 10 The amount allowed
rests in the sound judgment or discretion of the jury or other trier of the facts, 11 subject to correction only for bias,
mistake, or abuse of discretion. 12 The amount allowed by the jury will not ordinarily be disturbed 13 where it is
not flagrantly out of reason. 14 The jurors must be guided by the evidence as interpreted by their own observation,
experience, and sense of fairness, 15 and they are entitled to consider the intensity 16 and the length 17 of the
plaintiff's suffering, the nature of the injury, 18 and the injured person's age, health, habits, and pursuits. 19
Various matters have no bearing on damages for pain and suffering, 20 including the social position of the injured
person, 21 his or her ability of self-support, 22 and his or her lack of appreciation of the purchasing power of
money. 23
Pain-related medical expenses.

A jury may award pain-related medical expenses and, at the same time, may also determine that the evidence of
pain and suffering was insufficient to support a monetary award. 24
Future consequences.
Where the injury is permanent and the physical suffering will continue, the probable life expectancy of the plaintiff
is to be considered, 25 but the death of the injured person prior to the trial fixes and makes ascertainable the amount
of damages for pain that would otherwise be awarded on the basis of life expectancy. 26 The rule that the recovery
must be limited to its present value is not applicable to a recovery for future pain and suffering. 27
Cases:
Passenger, who was injured in auto accident, did not waive, for purposes of appeal, her claim for past pain and
suffering by failing to offer proper jury instructions; passenger was not arguing that it was mandatory for the jury
to award her damages, and instead, she was arguing that insufficient evidence supported the jury's zero damage
award, and that it should have awarded her pain and suffering damages based on the evidence before it. Carestia
v. Robey, 2013 MT 335, 313 P.3d 169 (Mont. 2013).
As the amount of an award for pain and suffering is a subjective determination that cannot be precisely quantified,
whether there is a material deviation, as would warrant setting aside the award, is determined by examining
comparable cases; this analysis requires consideration of factors such as the nature and extent of the injuries, the
degree of past, present and future pain and the permanency of the injury. Ciuffo v. Mowery Const., Inc., 107
A.D.3d 1195, 967 N.Y.S.2d 223 (3d Dep't 2013).
[END OF SUPPLEMENT]
Footnotes
Ala.O'Rear v. B.H., 69 So. 3d 106 (Ala. 2011).
1
2
3
4
5
6
Pa.K.H. v. J.R., 573 Pa. 481, 826 A.2d 863 (2003).
R.I.Oliveira v. Jacobson, 846 A.2d 822 (R.I. 2004).
IowaJasper v. H. Nizam, Inc., 764 N.W.2d 751 (Iowa 2009), as amended on denial of reh'g, (Mar. 5, 2009).
Pa.K.H. v. J.R., 573 Pa. 481, 826 A.2d 863 (2003).
Mont.Albinger v. Harris, 2002 MT 118, 310 Mont. 27, 48 P.3d 711 (2002).
Ill.Lau v. West Towns Bus Co., 16 Ill. 2d 442, 158 N.E.2d 63 (1959).
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
AlaskaBeaulieu v. Elliott, 434 P.2d 665 (Alaska 1967).

N.Y.Paley v. Brust, 21 A.D.2d 758, 250 N.Y.S.2d 356 (1st Dep't 1964).
N.C.Robertson v. Stanley, 285 N.C. 561, 206 S.E.2d 190 (1974).
W.Va.Freshwater v. Booth, 160 W. Va. 156, 233 S.E.2d 312 (1977).
U.S.Dugas v. Kansas City Southern Ry. Lines, 473 F.2d 821 (5th Cir. 1973).
Neb.Bishop v. Bockoven, Inc., 199 Neb. 613, 260 N.W.2d 488 (1977).
N.J.Besler v. Board of Educ. of West Windsor-Plainsboro Regional School Dist., 201 N.J. 544, 993 A.2d 805, 256
Ed. Law Rep. 826 (2010).
La.Bunch v. Gay, 155 So. 2d 269 (La. Ct. App. 2d Cir. 1963).
IowaNichols v. Snyder, 247 Iowa 1302, 78 N.W.2d 836 (1956).
Neb.Thorpe v. Zwonechek, 177 Neb. 504, 129 N.W.2d 483 (1964).
Ala.Montgomery City Lines v. Hawes, 31 Ala. App. 564, 20 So. 2d 536 (1944).
Ala.Montgomery City Lines v. Hawes, 31 Ala. App. 564, 20 So. 2d 536 (1944).
Wis.Parr v. Douglas, 253 Wis. 311, 34 N.W.2d 229 (1948).
Mo.Walton v. U.S. Steel Corp., 362 S.W.2d 617 (Mo. 1962).
La.Michaud v. Travelers Indem. Co., 91 So. 2d 456 (La. Ct. App. 2d Cir. 1956).
N.Y.Di Gerlando v. Second Ave. R. Corporation, 155 Misc. 168, 278 N.Y.S. 797 (Sup 1935), aff'd, 246 A.D. 585,
284 N.Y.S. 364 (1st Dep't 1935).
Wis.Binsfeld v. Curran, 22 Wis. 2d 610, 126 N.W.2d 509 (1964).
Wis.Binsfeld v. Curran, 22 Wis. 2d 610, 126 N.W.2d 509 (1964).
Ill.Balough v. Northeast Illinois Regional Commuter R.R. Corp., 409 Ill. App. 3d 750, 351 Ill. Dec. 184, 950 N.E.2d
680 (1st Dist. 2011).
Neb.Borcherding v. Eklund, 156 Neb. 196, 55 N.W.2d 643 (1952) (overruled in part on other grounds by, Wolfe
v. Mendel, 165 Neb. 16, 84 N.W.2d 109 (1957)).
Tex.City of Austin v. Hoffman, 379 S.W.2d 103 (Tex. Civ. App. Austin 1964), writ dismissed by agreement, (July
29, 1964).
Mo.Harris v. Goggins, 374 S.W.2d 6 (Mo. 1963).
Ga.Morgan v. Mull, 101 Ga. App. 36, 112 S.E.2d 661 (1960).
Tex.Missouri Pac. R. Co. v. Handley, 341 S.W.2d 203 (Tex. Civ. App. San Antonio 1960).
End of Document
181.Mental pain and suffering, 25 C.J.S. Damages 181

Damages
f. Physical and Mental Pain and Suffering
181. Mental pain and suffering
The amount of an award for mental pain and suffering rests in the sound discretion of the jury or other
trier of the facts. Substantial damages may be allowed, but the award must be reasonable in the light of all
the relevant factors disclosed by the evidence.
The amount of an award for mental pain and suffering rests ordinarily in the sound discretion of the jury or other
trier of the facts, 1 subject to correction only for improper exercise, or clear abuse, of discretion. 2 There is no
exact rule by which compensatory damages for mental pain and suffering may be accurately measured, 3 and
the only measure of damages therefor is the opinion and judgment of a reasonable person, 4 or the enlightened
conscience of impartial jurors. 5 In awarding damages for mental suffering, the fact finder must rely upon the
totality of the circumstances surrounding the incident, and the credibility of the evidence and the witnesses and
the weight to be given all of these factors rest in the discretion of the fact finder. 6 Substantial damages may be
allowed, 7 but the award must be reasonable in light of all the relevant factors disclosed by the evidence. 8
While there is authority that direct evidence as to mental suffering is unnecessary in order that there may be an
award therefor, 9 and that evidence of mental suffering other than evidence of the injury that is the alleged cause
of action is inadmissible, 10 there is also authority that the admission of direct evidence as to mental anguish is
not erroneous. 11 As bearing on the amount of mental pain and distress inflicted, it is proper to show the manner
in which the wrongful act was committed. 12 Where the plaintiff is entitled to recover for mental anguish in
connection with an injury, incidents in connection with his or her chosen profession that tend to disclose his or
her general proficiency and achievement in it and attachment thereto may be properly admitted. 13
Factors properly to be considered in assessing damages for mental pain and suffering are the length of time
during which pain or other harm to the feelings has been or probably will be experienced, and the intensity of
the distress. 14 All material and relevant circumstances are to be taken into consideration, 15 including plaintiff's
age, 16 sex, 17 condition of life, 18 inability to live a normal life, 19 and any other facts indicating susceptibility
of injured person to this type of harm. 20 With respect to an award of damages, mental suffering varies in every
case with the temperament of the individual, 21 and the extent and duration of emotional distress depend on the
sensitiveness of the injured person. 22
Future suffering.
Damages awarded for future mental suffering should be considered in connection with the probable life expectancy
of the plaintiff in his or her injured condition at the time of the trial. 23 Furthermore, the plaintiff's knowledge of
his or her decreased life expectancy may lead to his or her suffering from emotional distress that may be considered
in assessing his or her future mental suffering. 24 The rule that an award for future damages should be discounted
or limited to its present value does not apply to an award for mental suffering. 25
Footnotes
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
(2003).
Mo.Burns v. Burns, 193 S.W.2d 951 (Mo. Ct. App. 1946).
Ga.Atlanta Veterans Transp., Inc. v. Cagle, 106 Ga. App. 551, 127 S.E.2d 702 (1962).
Neb.Wendeln v. The Beatrice Manor, Inc., 271 Neb. 373, 712 N.W.2d 226 (2006).
Wash.Browning v. Slenderella Systems of Seattle, 54 Wash. 2d 440, 341 P.2d 859 (1959) (disapproved of on other
grounds by, Nord v. Shoreline Sav. Ass'n, 116 Wash. 2d 477, 805 P.2d 800 (1991)).
U.S.Beaty v. Buckeye Fabric Finishing Co., 179 F. Supp. 688 (E.D. Ark. 1959).
La.Horrell v. Gulf & Valley Cotton Oil Co., 16 La. App. 91, 133 So. 392 (Orleans 1931).
La.Horrell v. Gulf & Valley Cotton Oil Co., 16 La. App. 91, 133 So. 392 (Orleans 1931).
Tex.Western Union Telegraph Co. v. Adams, 75 Tex. 531, 12 S.W. 857 (1889).
Me.Wyman v. Leavitt, 71 Me. 227, 1880 WL 4129 (1880).
Mass.Hawes v. Knowles, 114 Mass. 518, 1874 WL 9473 (1874).
U.S.Southern Pac. Co. v. Ward, 208 F. 385 (C.C.A. 9th Cir. 1913).
S.D.Bean v. Best, 77 S.D. 433, 93 N.W.2d 403 (1958).
Lack of comprehension
In awarding damages for pain and suffering, the court properly considered that plaintiff's lack of comprehension,
although not total, considerably diminished the mental suffering to which he was subjected.
U.S.Helms v. U.S., 231 F. Supp. 961 (N.D. Tex. 1964).
U.S.Hanson v. Reiss S. S. Co., 184 F. Supp. 545 (D. Del. 1960).
Ala.Disheroon v. Brock, 213 Ala. 637, 105 So. 899 (1925).
U.S.Vastano v. Partownership Brovigtank, 158 F. Supp. 477 (E.D. N.Y. 1957).
Cal.Sandoval v. Southern Cal. Enterprises, 98 Cal. App. 2d 240, 219 P.2d 928 (2d Dist. 1950).
23
24
25
Neb.Borcherding v. Eklund, 156 Neb. 196, 55 N.W.2d 643 (1952) (overruled in part on other grounds by, Wolfe
v. Mendel, 165 Neb. 16, 84 N.W.2d 109 (1957)).
AlaskaMorrison v. State, 516 P.2d 402 (Alaska 1973).
End of Document
Research References, 25 C.J.S. Damages IV D Refs.
25 C.J.S. Damages IV D Refs.

Damages
D. Aggravation, Mitigation, or Reduction of Loss; Estoppel or Waiver
Research References
A.L.R. Library
A.L.R. Index, Future and Prospective Damages
End of Document
182.Matter of aggravation, 25 C.J.S. Damages 182

Damages
1. In General
182. Matter of aggravation
Additional damages may be awarded where elements of aggravation are present, but the plaintiff may not
recover for any enhancement of damages that is due to his or her own acts except where his or her acts
were reasonable and were in an effort to minimize the loss.
Where elements of aggravation are present, damages may be awarded to the plaintiff more liberally 1 although
exemplary damages as such are not awarded. 2 It is the duty of an injured person to exercise ordinary care not
to aggravate his or her injuries and damages, 3 and, generally, the plaintiff cannot recover for any enhancement
of damages that is due to his or her own acts, 4 and a person who has sustained an injury by reason of a breach
of contract has no right to perform the contract if by so doing, damages will be enhanced. 5 However, where the
injured person undertakes to minimize or reduce the loss, and in so doing uses reasonable care, he or she can
recover in full for all damages he or she has sustained although his or her efforts to reduce the loss have actually
resulted in an increase of the total damage. 6 Furthermore, where the injured person had a choice of two reasonable
courses of action to take to reduce or minimize the loss, it is not fatal to his or her recovery that the one chosen
resulted in a further loss. 7
Benefit received by the defendant.

In determining the measure of compensation, the law of torts ordinarily does not take into account, as do the rules
based on unjust enrichment, the benefits received by the wrongdoer. 8
Aid to injured party from third persons.

An actor whose tortious conduct causes physical harm to another is liable for any enhanced harm the other suffers
due to the efforts of third persons to render aid reasonably required by the other's injury as long as the enhanced
harm arises from a risk that inheres in the effort to render aid. 9
182.Matter of aggravation, 25 C.J.S. Damages 182
Footnotes
U.S.Fuentes v. Reilly, 590 F.2d 509 (3d Cir. 1979).
1
2
3
4
5
6
7
8
9
Tex.Potter v. Crump, 555 S.W.2d 206 (Tex. Civ. App. Fort Worth 1977), writ refused n.r.e., (Feb. 1, 1978).
Wis.Fouse v. Persons, 80 Wis. 2d 390, 259 N.W.2d 92 (1977).
N.H.Baer v. Rosenblatt, 106 N.H. 26, 203 A.2d 773 (1964), judgment rev'd on other grounds, 383 U.S. 75, 86 S.
Ct. 669, 15 L. Ed. 2d 597 (1966).
Ky.Carney v. Scott, 325 S.W.2d 343 (Ky. 1959).
U.S.Tennessee Valley Sand & Gravel Co. v. M/V Delta, 598 F.2d 930 (5th Cir. 1979), opinion corrected on other
grounds on denial of reh'g, 604 F.2d 13 (5th Cir. 1979).
U.S.Commodity Credit Corp. v. Rosenberg Bros. & Co., 243 F.2d 504 (9th Cir. 1957).
Cal.Hartong v. Partake, Inc., 266 Cal. App. 2d 942, 72 Cal. Rptr. 722 (1st Dist. 1968).
La.Broussard v. Pierret, 215 So. 2d 136 (La. Ct. App. 3d Cir. 1968).
N.D.Eriksen v. Boyer, 225 N.W.2d 66 (N.D. 1974).
U.S.Ellerman Lines, Limited v. The President Harding, 288 F.2d 288 (2d Cir. 1961).
End of Document
183.Estoppel or waiver affecting amount of damages, 25 C.J.S. Damages 183

Damages
1. In General
183. Estoppel or waiver affecting amount of damages
Ordinarily, the right to have the correct rule of damages applied is a rule of law that is not waived as
objections to evidence are waived, but the plaintiff may waive, or be estopped to recover, a part of his or
her claim for damages.
A party seeking to recover damages is entitled to have the correct rule of damages applied, and this is a rule of law
that is not waived as objections to evidence are waived, 1 but the plaintiff may waive, or be estopped to assert, a
part of his or her claim for damages 2 as by deducting, in his or her complaint, the amount of insurance he or she
has received, 3 or by abandoning the theory under which certain damages are claimed. 4 Damages, once suffered
and waived, are waived for all purposes and cannot be recovered under another guise, name, or form. 5
Footnotes
Mo.Meyer v. Clark Oil Co., 686 S.W.2d 836 (Mo. Ct. App. E.D. 1984).
1
2
3
4
5
Wis.Venzke v. Magdanz, 243 Wis. 155, 9 N.W.2d 604 (1943).

Cal.Watson v. Rotary Colorprint, 73 Cal. App. 2d 119, 166 P.2d 41 (2d Dist. 1946).
Ill.Kerns v. Engelke, 76 Ill. 2d 154, 28 Ill. Dec. 500, 390 N.E.2d 859, 4 A.L.R.4th 1 (1979).
N.C.Hartley v. Ballou, 286 N.C. 51, 209 S.E.2d 776 (1974).
Or.Olds v. Von der Hellen, 127 Or. 276, 270 P. 497 (1928).
Cal.Watson v. Rotary Colorprint, 73 Cal. App. 2d 119, 166 P.2d 41 (2d Dist. 1946).
Cal.Sherer v. City of Laguna Beach, 13 Cal. App. 2d 396, 57 P.2d 157 (4th Dist. 1936).
End of Document

Damages
2. Matter of Mitigation or Reduction
a. In General
184. Generally
Under the equitable doctrine of mitigation of damages, the defendant generally may show in mitigation or
reduction of damages any facts surrounding the injury that tend to reduce the amount required for just
compensation to the plaintiff.
Generally speaking, a party has a duty to mitigate its damages. 1 The mitigation of damages doctrine encourages
plaintiffs to take reasonable steps to minimize losses caused by a defendant's negligence by prohibiting recovery
for any damages that the plaintiff could reasonably have avoided. 2 A plaintiff's failure to take reasonable steps to
mitigate damages bars recovery, not in toto but only for the damages that might have been avoided by reasonable
efforts. 3 The duty to mitigate damages arises after a party has suffered injury, loss, or damage, 4 and persists as
long as damages are suffered and may reasonably be mitigated. 5 In general, before a failure-to-mitigate claim may
be submitted, the defendant must introduce substantial evidence that: (1) there was something the plaintiff could
have done to mitigate his or her loss; (2) requiring the plaintiff to do so was reasonable under the circumstances; (3)
the plaintiff acted unreasonably in failing to undertake the mitigating activity; and (4) a causal connection exists
between the plaintiff's failure to mitigate and the damages claimed. 6 The trial court has considerable discretion
as to the effect to be given to facts pleaded in mitigation. 7 Mitigation of damages is an equitable doctrine. 8
A plaintiff's duty to mitigate damages focuses on whether the plaintiff took reasonable steps to avoid or reduce
damages that were proximately caused by the negligence of the defendant. 9 A damaged party is only expected to
do what is reasonable under the circumstances and need not embark upon a course of action that may cause further
detriment to him or her. 10 The doctrine of mitigation of damages does not permit damages reduction based on
what could have been avoided through Herculean efforts, 11 and a plaintiff's duty to mitigate damages does not
extend to accepting a position that entails great hardship or personal embarrassment. 12 An injured party is only
accountable for those hypothetical ameliorative actions that could have been accomplished through ordinary and
reasonable care, without requiring undue effort or expense. 13 Furthermore, when both of the parties have the
same opportunity to reduce damages, the defendant cannot later contend that the plaintiff failed to mitigate. 14
The general rule is that injured parties need not institute and prosecute lawsuits in order to mitigate damages as
litigation is too uncertain and costly to impose such a duty on a party. 15
The law limits speculation and conjecture and imposes duties of mitigation to the injured party. 16 Specifically,
damages may only be recovered when the evidence presented at trial removes their quantum from the realm
of speculation and conjecture and transports it through the twilight zone and into the daylight of reasonable
certainty. 17
The duty to mitigate unquestionably applies in tort just as it applies in contract. 18
As affirmative defense.
Mitigation of damages is an affirmative defense that recognizes that a plaintiff's conduct following the defendant's
negligence may be a reason for reducing damages, but it does not necessarily bar all recovery, and this context
distinguishes mitigation of damages from those other affirmative defenses or special pleas, which, if proven,
constitute an absolute defense to the claim. 19 The affirmative defense of failure to mitigate damages has two
elements and as to both the defendant bears the burden of proof by a preponderance of the evidence: first, the
defendant must prove that the plaintiff failed to exercise reasonable care to mitigate his or her postinjury damages;
second, the defendant must prove that the plaintiff's failure to exercise reasonable care caused the plaintiff to
suffer an identifiable item of harm not attributable to the defendant's negligent conduct. 20 A defendant's burden
to prove that the plaintiff has not used reasonable diligence to mitigate damages includes proof of causation, that
is, the defendant must prove that the plaintiff's unreasonable postinjury conduct has increased the plaintiff's harm,
and if so, by how much. 21
Provocation or fault of the plaintiff.

For the purpose of reducing or mitigating the damages that the plaintiff sustained, it may be shown that there was
a reasonable excuse for the acts of the defendant arising from the provocation or fault of the plaintiff, but not
sufficient to justify entirely the acts that were done, 22 since malice and provocation in the plaintiff are punishable
by awarding him or her less than the measure of compensation. 23
Recovery for efforts to mitigate.

The corollary of the mitigation of damages doctrine permits the plaintiff to recover for costs and harms incurred
during a reasonable effort to mitigate, but it must still be established that the time and effort expended was a legal
injury rather than an inconvenience or annoyance. 24
Footnotes
Ky.Morgan v. Scott, 291 S.W.3d 622 (Ky. 2009).
1
Miss.Illinois Central R. Co. v. Winters, 863 So. 2d 955 (Miss. 2004).
Property damage cases

Mass.Hill v. Metropolitan Dist. Com'n, 439 Mass. 266, 787 N.E.2d 526 (2003).
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
(2006).
IowaVasconez v. Mills, 651 N.W.2d 48 (Iowa 2002).
S.D.Buell v. Greene, 66 S.D. 615, 287 N.W. 509 (1939).
U.S.Taylor v. Ford Motor Co., 392 F. Supp. 254 (W.D. Mo. 1974).
Wis.Rixmann v. Somerset Public Schools, St. Croix County, 83 Wis. 2d 571, 266 N.W.2d 326 (1978).
Miss.University of Southern Mississippi v. Williams, 891 So. 2d 160, 195 Ed. Law Rep. 396 (Miss. 2004).
Miss.University of Southern Mississippi v. Williams, 891 So. 2d 160, 195 Ed. Law Rep. 396 (Miss. 2004).
Wyo.Cordero Mining Co. v. U.S. Fidelity and Guar. Ins. Co., 2003 WY 48, 67 P.3d 616 (Wyo. 2003).
Pa.Mawhinney v. Holtzhauer, 168 Pa. Super. 283, 77 A.2d 734 (1951).
A.L.R. Library
Provocation as basis for mitigation of compensatory damages in action for assault and battery, 35 A.L.R.4th 947.
Pa.Mawhinney v. Holtzhauer, 168 Pa. Super. 283, 77 A.2d 734 (1951).
End of Document
185.Avoidable consequences, 25 C.J.S. Damages 185

Damages
a. In General
185. Avoidable consequences
The defendant may show that consequences sought to be made a basis of a recovery come within the rule
providing that there can be no recovery by the plaintiff for consequences of an injury that by the exercise
of proper care on his or her part might have been avoided.
It is proper, in mitigation of damages, for the defendant to show that consequences sought to be made a basis
of a recovery come within the rule providing that there can be no recovery by the plaintiff for consequences of
an injury that by the exercise of proper care on his or her part might have been avoided. 1 Where an injured
person has succeeded in reducing the damages suffered, or which would otherwise have been suffered, his or
her claim against the defendant must be reduced accordingly. 2 The rule of avoidable consequences comes into
play after a legal wrong has occurred, but while some damages may still be averted, and bars recovery only for
such damages. 3 The avoidable consequences doctrine is a specific type of mitigation available in property torts,
which states that a party cannot recover damages flowing from consequences that that party could reasonably
have avoided, and the doctrine requires a plaintiff to take all reasonable steps to mitigate damages after he or she
has been tortiously injured. 4 The doctrine of avoidable consequences applies to contract as well as tort actions. 5
Furthermore, the rule of avoidable consequences is only available if the defendant makes an offer of proof as to
the harm the plaintiff could have avoided by the omission or commission of a particular act. 6
The rule of avoidable consequences measures the extent of the obligation of the injured person, and things that
happen later and which let an injured plaintiff escape some of the ultimate consequences of the wrong done to him
or her do not inure to the benefit of the defendant. 7 Thus, a wrongdoer who has deprived the owner of property
of the use of such property may not show in mitigation of damages that the owner was able to use other property
as a substitute. 8 Likewise, where the owner purchased other property to use in place of property the use of which
he or she was deprived, and subsequently sold such substitute property at a profit, the wrongdoer cannot obtain a
reduction of damages on this account. 9 A defendant who has committed an illegal act by charging the plaintiff
more for a commodity than the law allows is not entitled to a reduction of damages because the plaintiff passed
on his or her loss to his or her customers. 10
185.Avoidable consequences, 25 C.J.S. Damages 185
Cases:
For purposes of mitigation of damages, where an injured party permits her loss to be unnecessarily enhanced
through her own negligence or willfulness, that increased loss will be borne by the injured party. Restatement
(Second) of Contracts 350. Boyer v. Buol Properties, LLC, 2014 IL App (1st) 132780, 387 Ill. Dec. 344, 22
N.E.3d 389 (App. Ct. 1st Dist. 2014).
[END OF SUPPLEMENT]
Footnotes
D.C.Hinton v. Sealander Brokerage Co., 917 A.2d 95 (D.C. 2007).
1
3
4
5
6
7
8
9
10
(2006).
Mich.Nelson v. Galpin, 277 Mich. 529, 269 N.W. 586 (1936).
N.Y.Harris Structural Steel Co. v. Chapman, 162 Misc. 709, 295 N.Y.S. 443 (Mun. Ct. 1937).
N.H.Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813, 891 A.2d 477, 58 U.C.C. Rep. Serv. 2d 401 (2005).
U.S.Potts v. Benjamin, 882 F.2d 1320 (8th Cir. 1989).
U.S.Hanover Shoe, Inc. v. United Shoe Machinery Corp., 185 F. Supp. 826 (M.D. Pa. 1960), order aff'd, 281 F.2d
481 (3d Cir. 1960).
La.Watkins v. Gulf Refining Co., 206 La. 942, 20 So. 2d 273 (1944).
U.S.Hanover Shoe, Inc. v. United Shoe Machinery Corp., 185 F. Supp. 826 (M.D. Pa. 1960), order aff'd, 281 F.2d
481 (3d Cir. 1960).
End of Document

Damages
a. In General
West's Key Number Digest, Damages 62(4), 63
In an action for a breach of contract, the defendant generally may show any matters that go to reduce the
amount of loss actually suffered by the plaintiff, including any benefits derived by the injured party because
he or she was not required to perform the contract after breach.
Parties to contract are required to mitigate damages in situations of breach. 1 A nondefaulting party in a contractual
arrangement must act reasonably under the circumstances so as not to unnecessarily enlarge damages caused by
default. 2 The duty to mitigate damages bars recovery for losses suffered by a nonbreaching party that could have
been avoided by reasonable effort and without risk of substantial loss or injury. 3 Thus, a defendant, in an action
for a breach of contract, is entitled to show any matters that go to reduce the amount of loss actually suffered
by the plaintiff. 4
A tender of performance cannot be shown in mitigation of damages for a failure to perform after a suit is brought
in the absence of a statute so providing. 5 Furthermore, the plaintiff's duty to mitigate damages does not require
the plaintiff to accept an offer from the breaching party if it is conditioned on the surrender of the plaintiff's claim
for breach of contract 6 or on acceptance of new and different contract terms that are less favorable to the plaintiff
than those to which he or she had previously agreed. 7
Benefits derived from not being required to perform.

Any savings made by the injured party because he or she was not required to perform the contract after the other
party's breach are to be deducted from the value of the performance, 8 and, in addition, there should be deducted
from the recovery of the party injured any losses he or she would have suffered had the contract been performed. 9
Payment of compensation.
The payment of compensation by an original wrongdoer, 10 or out of the proceeds of the property involved, 11
or agreed to be paid to the plaintiff by a third party on the same cause of action, 12 or partial satisfaction from
a third person against whom a claim for damages was made with respect to the same subject matter 13 may be
shown in reduction of damages for breach of contract.
Breach of lease.
A landlord can mitigate damages for breach of a lease in other ways than by reletting, and selling the property
is one such way. 14
Breach of contract for sale of real estate.

When a purchaser has breached a contract for the sale of real estate, the seller nonetheless has the duty of making
reasonable efforts to mitigate damages resulting from the breach, and to the extent that the seller fails to do so,
he or she may not recover the additional damages incurred. 15
Effect of liquidated damages clause.

When the parties agree to a liquidated damages clause in the event of breach, there is no need to mitigate damages
for breach of contract. 16
Cases:
Under Missouri law, one damaged by breach of contract must make reasonable efforts to minimize resulting
damages. Graham Const. Services v. Hammer & Steel Inc., 755 F.3d 611 (8th Cir. 2014).
A party who suffers a loss due to the breach of a contract has the duty to make reasonable efforts to mitigate his
losses; the burden to prove this duty to mitigate is placed on the party who actually breaches the contract, and the
breaching party must show how further loss could have been avoided through the reasonable efforts of the injured
party. Portside Investors, L.P. v. Northern Ins. Co. of New York, 2011 PA Super 252, 2011 WL 5866235 (2011).
Vendor's sale of property to third party did not preclude breach of contract action against contracted purchaser
due to impossibility in dispute concerning real estate purchase agreement, where contractual "put" remedy
permitted vendor to mitigate damages prior to bringing breach of contract suit by selling property to a third party.
Internacional Realty, Inc. v. 2005 RP West, Ltd., 449 S.W.3d 512 (Tex. App. Houston 1st Dist. 2014).
[END OF SUPPLEMENT]
Footnotes
AlaskaD.H. Blattner & Sons, Inc. v. N.M. Rothschild & Sons, Ltd., 55 P.3d 37 (Alaska 2002).
1
Mont.Performance Machinery Co., Inc. v. Yellowstone Mountain Club, LLC, 2007 MT 250, 339 Mont. 259, 169
P.3d 394, 64 U.C.C. Rep. Serv. 2d 31 (2007).
R.I.Cady v. IMC Mortg. Co., 862 A.2d 202 (R.I. 2004) (stating Florida law).
R.I.Dovenmuehle Mortg., Inc. v. Antonelli, 790 A.2d 1113 (R.I. 2002).
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Efforts required
Generally, a party who has been wronged by a breach of contract may not unreasonably sit idly by and allow damages
to accumulate but instead must attempt to minimize his or her damages.
OhioState ex rel. Stacy v. Batavia Local School Dist. Bd. of Edn., 105 Ohio St. 3d 476, 2005-Ohio-2974, 829 N.E.2d
298, 198 Ed. Law Rep. 952 (2005).
N.Y.Holy Properties Ltd., L.P. v. Kenneth Cole Productions, Inc., 87 N.Y.2d 130, 637 N.Y.S.2d 964, 661 N.E.2d
694 (1995).
Or.Landreth v. Barnard & Kinney, Inc., 277 Or. 703, 561 P.2d 631 (1977).
UtahUtah Farm Production Credit Ass'n v. Cox, 627 P.2d 62 (Utah 1981).
U.S.Colby v. Reed, 99 U.S. 560, 25 L. Ed. 484, 1878 WL 18222 (1878).
U.S.Mallek v. City of San Benito, 121 F.3d 993 (5th Cir. 1997).
U.S.Cook Industries, Inc. v. Carlson, 334 F. Supp. 809 (N.D. Miss. 1971).
N.Y.Horn v. State, 38 A.D.2d 766, 327 N.Y.S.2d 870 (3d Dep't 1972).
U.S.In re Yeager Co., 227 F. Supp. 92, 27 Ohio Op. 2d 215 (N.D. Ohio 1963).
Ala.Standard Oil Co. v. Lloyd, 26 Ala. App. 306, 159 So. 371 (1935).
N.Y.Rodda v. Barrett, 251 A.D. 790, 296 N.Y.S. 648 (4th Dep't 1937).
Kan.Daeschner v. Gibson, 103 Kan. 555, 175 P. 681 (1918).
Mass.New York Bank Note Co. v. Kidder Press Mfg. Co., 192 Mass. 391, 78 N.E. 463 (1906).
R.I.Cady v. IMC Mortg. Co., 862 A.2d 202 (R.I. 2004) (under Florida law).
End of Document

Damages
b. Torts
187. Generally
West's Key Number Digest, Damages 59 to 61, 63
In a tort action, the defendant may set up any facts that tend to show that the plaintiff has not suffered
damages to the extent claimed by him or her, such as that he or she has received compensation from the
original wrongdoer.
It is generally recognized that in an action sounding in tort, it is competent for the defendant to prove any facts
tending to show that the plaintiff has not suffered damages to the extent claimed by him or her. 1 It may be open to
the defendant to show that payments by the plaintiff to avoid the consequences of the defendant's negligence were
made voluntarily, and not under any legal duty, 2 but uncertainty as to the future effect of an injury should not have
the effect of mitigating or diminishing an award of damages against the party legally responsible for the injury. 3
In determining the damages suffered as a result of a tortious act, consideration may be given, where equitable,
to the value of any special benefits conferred by that act to the interest that was harmed, 4 but an indirect benefit
to the plaintiff, 5 such as an indirect benefit to his or her property, 6 resulting from the defendant's wrongful act
cannot be set up in mitigation of damages. The defendant is not entitled to a reduction of damages on account of a
benefit that is not caused by the wrongful act itself, 7 and he or she is not entitled to minimize the damages that he
or she has caused the plaintiff by showing that he or she himself or herself has suffered a loss by the same act. 8
Payment by or on behalf of defendant.

Under common law, a tort defendant is generally entitled to set off the full amount of compensation that the
plaintiff receives from benefit sources affiliated with that defendant. 9 Also, as a general rule, any compensation
paid by the defendant tortfeasor or his or her insurer to the injured person because of the injury are properly
deductible in mitigation of damages. 10 If a tortfeasor provides a source or fund out of which the injured person's
special damages are paid prior to the trial of the action, the latter's recovery is diminished to such an extent 11
since the tortfeasor need not pay twice for the same injury. 12 Thus, where the tortfeasor has made disability
payments, 13 or has defrayed medical and hospital expenses caused by the injury, 14 or has paid wages or salary
during the period of disability, 15 such payments should be considered in mitigation of the tort damage. However,
the fact that a benefit or payment comes from the tortfeasor does not itself preclude the possibility that it is from
a collateral source, so as not to be considered in mitigation of damages. 16
Provocation or fault by the plaintiff.

In tort actions, compensatory damages may be mitigated by reason of provocation or fault on the part of the person
injured, 17 but only those circumstances with which the injured person was connected may be considered for this
purpose. 18
Comparative fault.
While a plaintiff's postaccident conduct that constitutes an unreasonable failure to mitigate damages is not to be
considered in the assessment of fault under a state comparative fault act, a plaintiff may not recover for any item of
damage that the plaintiff could have avoided through the use of reasonable care. 19 Resulting damages, excluding
any caused by a plaintiff's postaccident failure to use reasonable care, are then to be multiplied by the defendant's
percentage of fault to determine the verdict to be entered under the comparative fault act. 20
Duty to mitigate.
A plaintiff in a negligence action has a duty to mitigate his or her postinjury damages, and the amount of damages
a plaintiff is entitled to recover is reduced by those damages that reasonable care would have prevented. 21
Medical care.
When a defendant claims that after an accident a plaintiff unreasonably failed to follow medical advice, in order
to establish a failure to mitigate damages, the defendant must also prove that the plaintiff's actions caused the
plaintiff to suffer a discrete, identifiable harm arising from that failure, and not arising from the defendant's acts
alone. 22 A patient's duty to mitigate damages after receiving negligent medical care is a specific application of
the general requirement that one who is injured by the wrongful or negligent acts of another, whether as the result
of a tort or of a breach of contract, is bound to exercise reasonable care and diligence to avoid loss or to minimize
or lessen the resulting damage, and to the extent that his or her damages are the result of his or her active and
unreasonable enhancement thereof or are due to his or her failure to exercise such care and diligence, the patient
cannot recover. 23
Cases:
Common-law setoff under Michigan law is grounded in the principle that an injured party is entitled to only one
recovery for a single, indivisible injury and precludes an injured party from receiving a double recovery. Mais v.
Allianz Life Ins. Co. of North America, 34 F. Supp. 3d 754 (W.D. Mich. 2014).
[END OF SUPPLEMENT]
Footnotes
U.S.U.S. v. Ebinger, 386 F.2d 557 (2d Cir. 1967).
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
La.Rheams v. McCray, 346 So. 2d 834 (La. Ct. App. 1st Cir. 1977), writ denied, 351 So. 2d 154 (La. 1977).
N.Y.Werner v. Our Lady of Lourdes, 60 A.D.2d 791, 400 N.Y.S.2d 659 (4th Dep't 1977).
U.S.U.S. v. Andrews, 206 F. Supp. 50 (D. Idaho 1961).
Okla.St. Louis-San Francisco Ry. Co. v. McBride, 1961 OK 222, 376 P.2d 214 (Okla. 1961).
Cal.Maben v. Rankin, 55 Cal. 2d 139, 10 Cal. Rptr. 353, 358 P.2d 681 (1961).
Md.Levi v. Schwartz, 201 Md. 575, 95 A.2d 322, 36 A.L.R.2d 1241 (1953).
Mo.Samples v. Kansas City Rys. Co., 232 S.W. 1049 (Mo. Ct. App. 1921).
Wash.Caldbick v. Marysville Water & Power Co., 114 Wash. 562, 195 P. 1027 (1921).
Md.Levi v. Schwartz, 201 Md. 575, 95 A.2d 322, 36 A.L.R.2d 1241 (1953).
Or.Northwest Oil Co. v. Haslett Warehouse Co., 168 Or. 570, 123 P.2d 985 (1942).
Cal.Ward v. Taggart, 51 Cal. 2d 736, 336 P.2d 534 (1959).
OhioHess v. Norfolk S. Ry. Co., 106 Ohio St. 3d 389, 2005-Ohio-5408, 835 N.E.2d 679 (2005).
Cal.Jaramillo v. State of California, 81 Cal. App. 3d 968, 146 Cal. Rptr. 823 (3d Dist. 1978).
N.D.Bartels v. City of Williston, 276 N.W.2d 113 (N.D. 1979).
Tex.J. Weingarten, Inc. v. Higginbotham, 523 S.W.2d 450 (Tex. Civ. App. Beaumont 1975), writ refused n.r.e..
Cal.Dodds v. Bucknum, 214 Cal. App. 2d 206, 29 Cal. Rptr. 393 (2d Dist. 1963).
U.S.U.S. v. Price, 288 F.2d 448 (4th Cir. 1961).
U.S.U.S. v. Brooks, 176 F.2d 482 (4th Cir. 1949).
U.S.Spielman v. New York, New Haven & Hartford R. Co., 147 F. Supp. 451 (E.D. N.Y. 1956).
U.S.U.S. v. Brooks, 176 F.2d 482 (4th Cir. 1949).
La.Moore v. Blanchard, 216 La. 253, 43 So. 2d 599 (1949).
A.L.R. Library
Provocation as basis for mitigation of compensatory damages in action for assault and battery, 35 A.L.R.4th 947.
La.Moore v. Blanchard, 216 La. 253, 43 So. 2d 599 (1949).
Ind.Kocher v. Getz, 824 N.E.2d 671 (Ind. 2005).
Ind.Kocher v. Getz, 824 N.E.2d 671 (Ind. 2005).
End of Document
188.Payment by cotortfeasor, 25 C.J.S. Damages 188

Damages
b. Torts
188. Payment by cotortfeasor
As a general rule, partial compensation paid by one tortfeasor may be shown by another tortfeasor in
mitigation or reduction of damages.
Generally, partial compensation paid by one tortfeasor may be shown by another tortfeasor in mitigation or
reduction of damages, 1 for the reason that a party can have but one satisfaction for his or her damages. 2 The rule
also applies where the person who affected the settlement with the injured person was not in fact a tortfeasor 3
or was immune from legal liability. 4
The general rule applies where there has been a settlement between the plaintiff and another tortfeasor 5
although where a plaintiff's settlement with several defendants completely offsets the damages assessed against a
nonsettling defendant, the award is entirely offset, resulting in a zero judgment. 6
The rule usually is not affected by the character of the instrument, or by the kind of arrangement, under which the
partial compensation was paid, 7 and is applicable where the partial compensation was paid under, or in return
for, a partial or conditional release, 8 or a covenant not to sue. 9
There are recognized limits to the application of the general rule, and it only applies in determining actual damages
and to only those damages for which all tortfeasors are equally liable. 10 The rule is not applicable where there
are several tortfeasors whose liability is several and not joint, 11 and where liability is several and not joint,
compensation paid by one does not reduce the damages for which the others are liable. 12 Where the liability
of each tortfeasor is separate and independent of that of the others, the collateral source rule applies, so that the
damages that are recoverable against one should not be reduced or mitigated because of the damages that have
been recovered against the others. 13 A tortfeasor who was 100% at fault for an apartment fire was not entitled
to a credit based on a prearbitration settlement between an apartment landlord and the other defendants in which
the landlord had received one-half of its damages as the tortfeasor was not required to pay more than his or her
proportionate share. 14
The applicability of a setoff is predicated on the settling party being liable, at least in some part, for the plaintiff's
injury. 15 Basic fairness and justice dictate that a tortfeasor should not benefit from a plaintiff's good fortune in
reaching settlements with other potential defendants not determined to be liable. 16
Extent of mitigation or reduction.

The rules governing the extent by which the damages of a tortfeasor are to be reduced by reason of payment made
to the injured person by one who is also alleged to be a tortfeasor are not uniform, and the extent of the reduction
frequently depends on the circumstances of the particular case, such as whether the tortfeasors were separate or
joint, 17 and if joint, whether contribution between them may be had. 18 Where the tortfeasors are not jointly
liable, the nonsettling party cannot claim a setoff for any amount received by the plaintiff in settlement with other
defendants, based on the distinct acts of those defendants. 19
One rule that has been applied is that payment by one tortfeasor of partial compensation to the injured person
entitles the other tortfeasor to a pro tanto reduction of the damages, that is, the damages are to be reduced by the
amount actually paid. 20 Under another rule, the damages of the defendant tortfeasor may be reduced by a pro
rata share of the judgment regardless of the amount that was actually paid by other joint tortfeasors. 21
Comparative fault.
Under principles of comparative fault, a nonsettling defendant is not entitled to a credit for amounts paid by a
settling defendant because the nonsettling defendant is required to pay damages based on his or her percentage of
fault. 22 When the comparative fault of all parties has been jointly determined, there is no danger of parties overor underpaying, and thus, neither offsets nor a contribution remedy would be appropriate. 23
Cases:
Under Texas law, where settlement in earlier action between payee and its employee, who had indorsed more than
900 customer checks intended for payee and deposited them into his personal checking account, represented a
compromise for a different amount, namely, the total loss, than the amount at issue in payee's subsequent action
against depositary bank, as nonsettling defendant, as well as different damages, in that payee had sued its employee
for punitive damages, the settlement credit could not be applied wholesale to the bank's liability but, rather, an
allocation was necessary. Coastal Agricultural Supply, Inc. v. JP Morgan Chase Bank, N.A., 759 F.3d 498, 84
U.C.C. Rep. Serv. 2d 165 (5th Cir. 2014).
Settlement proceeds received by a successor-in-interest of a bank relating to fraudulent wire transfers authorized
by the bank's prior owner did not apply to reduce the successor's judgment against the bank that received the
fraudulent wire transfers under Texas's one-satisfaction rule as predicted by the Court of Appeals, where the
successor never alleged that the prior owner was a joint tortfeasor alongside the receiving bank, and the successor's
potential claim against the prior owner sounded in contract, while the claim against the receiving bank sounded
in tort. GE Capital Commercial, Inc. v. Worthington Nat. Bank, 754 F.3d 297 (5th Cir. 2014).
Money paid in settlement of punitive damages claims is not subject to setoff. BCS Services, Inc. v. BG
Investments, Inc., 728 F.3d 633 (7th Cir. 2013).
Under California law, where the special verdict does not specify economic and noneconomic damages, but merely
awards an undifferentiated lump sum, and the defendant failed to propose such a special verdict, the defendant is
deemed to have waived any right to any offset. C.B. v. City of Sonora, 769 F.3d 1005 (9th Cir. 2014).
Under Oklahoma law, it's not for courts to absolve defendants who elect to go to trial from damages a jury has
lawfully found them personally liable for and attribute some of those sums to others not found liable; a pretrial
settlement cannot be used as a credit where the ghost tortfeasor's liability was not submitted to the jury. 12
Okl.St.Ann. 832(H). Monfore v. Phillips, 778 F.3d 849 (10th Cir. 2015).
A nonsettling tortfeasor is entitled to a reduction in the judgment only if he proves at trial that the released party
was at fault and therefore solidarily liable. Hyatt v. Mutual of Omaha Ins. Co., 149 So. 3d 406 (La. Ct. App. 3d
Cir. 2014).
Under the common-law rule of setoff among jointly liable tort defendants, where a negligence action is brought
against joint tortfeasors, and one alleged tortfeasor agrees to settle his potential liability by paying a lump sum in
exchange for a release, and a judgment is subsequently entered against the non-settling tortfeasor, the judgment
is reduced pro tanto by the settlement amount. Greer v. Advantage Health, 305 Mich. App. 192, 852 N.W.2d
198 (2014).
Nonsettling defendant was entitled to credit for entire amount of plaintiff's settlement with her insurer; parties had
stipulated to the settlement amount on the record, and plaintiff failed to prove that she would not receive a double
recovery from the settlement and a judgment against defendant. V.T.C.A., Civil Practice & Remedies Code
33.012(b). Dalworth Restoration, Inc. v. Rife-Marshall, 433 S.W.3d 773 (Tex. App. Fort Worth 2014).
[END OF SUPPLEMENT]
Footnotes
U.S.Howard v. General Cable Corp., 674 F.2d 351 (5th Cir. 1982).
1
3
4
Ariz.Adams v. Dion, 109 Ariz. 308, 509 P.2d 201 (1973).

Mo.Taylor v. Yellow Cab Co., 548 S.W.2d 528 (Mo. 1977).
Tex.Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000).
Ala.Williams v. Colquett, 272 Ala. 577, 133 So. 2d 364 (1961).
Ga.Malone v. City of Rossville, 107 Ga. App. 271, 129 S.E.2d 563 (1963).
W.Va.Hardin v. New York Cent. R. Co., 145 W. Va. 676, 116 S.E.2d 697 (1960).
Md.Steger v. Egyud, 219 Md. 331, 149 A.2d 762 (1959).
Charitable organization
Pa.Brown v. City of Pittsburgh, 409 Pa. 357, 186 A.2d 399 (1962).
U.S.Screen Gems-Columbia Music, Inc. v. Metlis & Lebow Corp., 453 F.2d 552 (2d Cir. 1972).
Ariz.Egurrola v. Szychowski, 95 Ariz. 194, 388 P.2d 242 (1964).
Mont.Cheff v. BNSF Ry. Co., 2010 MT 235, 358 Mont. 144, 243 P.3d 1115 (2010).
N.H.Tiberghein v. B.R. Jones Roofing Co., 156 N.H. 110, 931 A.2d 1223 (2007).
Va.Acordia of Virginia Ins. Agency, Inc. v. Genito Glenn, L.P., 263 Va. 377, 560 S.E.2d 246 (2002).
Under Uniform Contribution Among Joint Tortfeasors Act
Md.Scapa Dryer Fabrics, Inc. v. Saville, 418 Md. 496, 16 A.3d 159 (2011).
Statute governing credits for payments made to injured person

Neb.Maxwell v. Montey, 265 Neb. 335, 656 N.W.2d 617 (2003).
6
7
8
10
11
12
13
14
15
16
17
18
19
20
21
22
23
Burden
Generally, a nonsettling party seeking a setoff based on a settlement the plaintiff obtained from another tort defendant
bears the burden of proving what portion of the prior settlement was allocated or attributable to its share of the liability.
Cal.Goodman v. Lozano, 47 Cal. 4th 1327, 104 Cal. Rptr. 3d 219, 223 P.3d 77 (2010), as modified, (Mar. 30, 2010).
Ill.Price v. Wabash R. Co., 30 Ill. App. 2d 115, 174 N.E.2d 5 (3d Dist. 1961).
N.D.Levi v. Montgomery, 120 N.W.2d 383 (N.D. 1963).
W.Va.Hardin v. New York Cent. R. Co., 145 W. Va. 676, 116 S.E.2d 697 (1960).
AlaskaLuth v. Rogers & Babler Const. Co., 507 P.2d 761 (Alaska 1973).
Ariz.Riexinger v. Ashton Co., 9 Ariz. App. 406, 453 P.2d 235 (1969).
Wash.Christianson v. Fayette R. Plumb, Inc., 7 Wash. App. 309, 499 P.2d 72 (Div. 1 1972).
Tex.Hill v. Budget Finance & Thrift Co., 383 S.W.2d 79 (Tex. Civ. App. Dallas 1964).
U.S.Shapiro, Bernstein & Co. v. Goody, 248 F.2d 260 (2d Cir. 1957).
U.S.Shapiro, Bernstein & Co. v. Goody, 248 F.2d 260 (2d Cir. 1957).
Tex.Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000).
Cal.Greenberg v. Hastie, 202 Cal. App. 2d 159, 20 Cal. Rptr. 747 (1st Dist. 1962).
Tenn.Williams Holding Co. v. Willis, 166 S.W.3d 707 (Tenn. 2005).
Ga.Broda v. Dziwura, 286 Ga. 507, 689 S.E.2d 319 (2010).
Ga.Broda v. Dziwura, 286 Ga. 507, 689 S.E.2d 319 (2010).
N.J.Judson v. Peoples Bank & Trust Co., 25 N.J. 17, 134 A.2d 761 (1957).
U.S.Pilosky v. Dougherty, 179 F. Supp. 148 (E.D. Pa. 1959).
Neb.Tadros v. City of Omaha, 273 Neb. 935, 735 N.W.2d 377 (2007).
Pa.Taylor v. Solberg, 566 Pa. 150, 778 A.2d 664 (2001).
U.S.Martello v. Hawley, 300 F.2d 721 (D.C. Cir. 1962).
Md.Steger v. Egyud, 219 Md. 331, 149 A.2d 762 (1959).
Tenn.Williams Holding Co. v. Willis, 166 S.W.3d 707 (Tenn. 2005).
AlaskaPetrolane Inc. v. Robles, 154 P.3d 1014 (Alaska 2007).
End of Document

Damages
c. Compensation Received from Collateral Source
189. Generally
Compensation or indemnity for the loss received by the plaintiff from a collateral source, wholly
independent of the wrongdoer, cannot be set up by the latter in mitigation or reduction of damages.
The collateral source rule is an equitable doctrine 1 that permits an injured person to recover the full amount of
his or her provable damages, regardless of the amount of compensation that the person has received for his or her
injuries from sources unrelated to, or collateral of, the defendant. 2 As a substantive rule of damages, the collateral
source rule bars a defendant from reducing the plaintiff's compensatory award by the amount the plaintiff received
from the collateral source. 3 At common law, the "collateral source rule" prevented the jury from hearing evidence
of payments made to an injured person by a source independent of the tortfeasor as a result of the occurrence
upon which the personal injury action is based. 4 The collateral source rule is predicated on the theory that a
tortfeasor has no interest in and therefore no right to benefit from monies received by the injured person from
sources unconnected with the defendant. 5
A fundamental tenet underlying the collateral-source rule is that as between the source of the collateral funds and
the wrongdoer, the party whose wrongful act or culpable negligence caused the injury ought to make compensation
and bear the loss. 6 The collateral-source rule, like other tort principles, also aims at deterring a tortfeasor's
negligent conduct, and accordingly, it makes the tortfeasor fully responsible for damages caused as a result of
tortious conduct. 7 It should be noted that the collateral-source doctrine is inapplicable to bar the setoff of payments
that are in some way attributable to the defendant. 8
The collateral-source rule is an exception to the general rule of damages preventing a double recovery by an
injured party, 9 or in other words, it is an exception to the general rule that in a tort action, the measure of damages
is that that will compensate and make the plaintiff whole. 10 It is also an exception to the rule that tort damages
are only compensatory as the rule prevents a tortfeasor from reducing his or her liability to a plaintiff by proving
that payments were made to the plaintiff by a collateral source. 11
While the collateral-source doctrine is a general law of damages, there is some variation as to the extent of its
application depending on the exact nature of the compensation received. 12 Furthermore, the collateral-source
doctrine is applicable only to benefits that have already been paid or that are presently due and owing at the time
the defendant is found liable in damages to the plaintiff. 13 Also, while the collateral-source rule precludes certain
deductions against otherwise recoverable damages, it does not expand the scope of economic damages to include
expenses that the plaintiff never incurred. 14
Exception for awards against political subdivisions.

Under a statute, the collateral-source rule may not be applicable to damage awards entered against a political
subdivision. 15 Under such a statute, collateral-source benefits must be deducted from any award against a political
subdivision, including future collateral benefits to the extent that they can be determined with a reasonable degree
of certainty. 16
Gratuitous payments.
The collateral-source rule applies to payments received gratuitously, as well as those received as a result of an
obligation, and a benefit secured by the injured party either through insurance contracts, advantageous employment
arrangements, or gratuity from family or friends should not benefit the tortfeasor by reducing his or her liability
for damages. 17 However, there is also authority that the doctrine may be applied only where the payments or
benefits that were received from the collateral source were the result of some consideration that had previously
been extended by the plaintiff and not where the payments or benefits were supplied to the injured person
gratuitously. 18
Contract or tort.
In the application of the collateral-source doctrine or rule, a distinction is sometimes drawn between damages in
tort and damages in contract. 19 While there is authority that the collateral-source doctrine is applicable only in
tort actions, 20 there is also authority that the doctrine is applicable in contract cases, as well as in tort actions. 21
Statute allowing reduction in recovery for compensation from collateral sources.

In one state, the collateral-source statute allows a party who has been found liable for injury or disability to seek
a reduction in the jury award for compensation that the plaintiff has already obtained from collateral sources, and
the purpose of this statute is to prevent double recoveries by plaintiffs. 22 Because such a collateral source statute
abrogates the common law, a court construes the statute narrowly. 23
Cases:
Under Alabama law, a jury must consider all of the evidence introduced at trial regarding payments of medical
and hospital expenses from collateral sources and determine to what extent the plaintiff is entitled to recover his
medical or hospital expenses. Ala.Code 1975, 122145(a). Washington v. U.S., 17 F. Supp. 3d 1154 (S.D.
Ala. 2014).
New York collateral source statute does not provide for a reduction in damages based on any and all of the
plaintiff's collateral recoveries; rather, reduction is authorized only when the collateral source payment represents
reimbursement for a particular category of loss that corresponds to a category of loss for which damages were
awarded. N.Y.McKinney's CPLR 4545(c) (2008). In re September 11 Litigation, 889 F. Supp. 2d 616 (S.D. N.Y.
2012).
Under the collateral source rule, the distinction between expenses covered by insurance and expenses paid outof-pocket is irrelevant and does not affect Court's determination of damages. Jagger v. Schiavello, 93 A.3d 656
(Del. Super. Ct. 2014).
Even though collateral sources may mitigate an injured party's loss, they do not reduce the tortfeasor's liability.
Kenney v. Liston, 760 S.E.2d 434 (W. Va. 2014).
[END OF SUPPLEMENT]
Footnotes
Wis.Estate of Kriefall v. Sizzler USA Franchise, Inc., 335 Wis. 2d 151, 2011 WI App 101, 801 N.W.2d 781, 74
1
U.C.C. Rep. Serv. 2d 819 (Ct. App. 2011), review granted, 2011 WI 100, 337 Wis. 2d 48, 806 N.W.2d 637 (2011) and
review granted, 2011 WI 100, 337 Wis. 2d 48, 806 N.W.2d 637 (2011).
Ill.Wills v. Foster, 229 Ill. 2d 393, 323 Ill. Dec. 26, 892 N.E.2d 1018 (2008).
Md.Lockshin v. Semsker, 412 Md. 257, 987 A.2d 18 (2010).
Federal courts
The federal courts apply the collateral source rule to damages in Federal Employers' Liability Act actions.
Cal.Lund v. San Joaquin Valley R.R., 31 Cal. 4th 1, 1 Cal. Rptr. 3d 412, 71 P.3d 770 (2003), as modified on denial
of reh'g, (Sept. 24, 2003).
S.D.Cruz v. Groth, 2009 SD 19, 763 N.W.2d 810 (S.D. 2009).
Tex.Haygood v. De Escabedo, 54 Tex. Sup. Ct. J. 1377, 2011 WL 2601363 (Tex. 2011).
Punitive in nature
The common law "collateral source rule" is somewhat punitive in nature as it prohibits the wrongdoer from enjoying
the benefits procured by the injured plaintiff; if either party is to receive a windfall, the rule awards it to the injured
plaintiff who was wise enough or fortunate enough to secure compensation from an independent source, and not to the
tortfeasor, who has done nothing to provide the compensation and seeks only to take advantage of third-party benefits
obtained by the plaintiff.
No influence on jury
The entire theory of the collateral source rule is to keep the jury from learning anything about the collateral income
so that it will not influence the decision of the jury.
Medical expenses
When a finder of fact is determining the reasonable value of medical services, the collateral source rule bars admission
of evidence stating that the expenses were paid by a collateral source; however, the rule does not address, much less
bar, the admission of evidence indicating that something less than the charged amount has satisfied, or will satisfy,
the amount billed.
5
6
7
10
11
12
13
14
15
16
17
18
19
20
21
Workers' compensation
Under the collateral source statute, if the jury is to consider evidence of collateral source payments, such as worker's
compensation, that a personal injury plaintiff is required to repay, the jury should include the amount of any collateral
source payments that the plaintiff is required to repay in its award to the plaintiff; but if there is no evidence of an
obligation to repay, then the jury should not include the amount of collateral source payments in its award.
Ind.Travelers Indem. Co. of America v. Jarrells, 927 N.E.2d 374 (Ind. 2010).
Del.Mitchell v. Haldar, 883 A.2d 32 (Del. 2005).
Vt.Windsor School Dist. v. State, 183 Vt. 452, 2008 VT 27, 956 A.2d 528, 236 Ed. Law Rep. 904 (2008).
Mass.Law v. Griffith, 457 Mass. 349, 930 N.E.2d 126 (2010).
Vt.Windsor School Dist. v. State, 183 Vt. 452, 2008 VT 27, 956 A.2d 528, 236 Ed. Law Rep. 904 (2008).
Wis.Lagerstrom v. Myrtle Werth Hos.-Mayo Health System, 2005 WI 124, 285 Wis. 2d 1, 700 N.W.2d 201 (2005).
Colo.Ferrellgas, Inc. v. Yeiser, 247 P.3d 1022 (Colo. 2011).
Benefit from tortfeasor
If the tortfeasor provides a benefit to the plaintiff specifically to compensate him or her for his or her injury, the benefit
does not constitute a collateral source; such payments may, therefore, be taken into account in fixing tort damages as
the tortfeasor need not pay twice for the same damage.
U.S.Sloas v. CSX Transp. Inc., 616 F.3d 380 (4th Cir. 2010).
Collateral-source statute
Collateral-source statute that permits court to deduct from damages award for bodily injury or death collateral benefits
received by injured or deceased person except for specified benefits does not prohibit double recovery; legislative
history and text of bill indicate intent to allow plaintiff to make double recoveries for benefits that were result of
plaintiff's planning and investment.
Or.White v. Jubitz Corp., 347 Or. 212, 219 P.3d 566 (2009).
OhioRobinson v. Bates, 112 Ohio St. 3d 17, 2006-Ohio-6362, 857 N.E.2d 1195 (2006).
Mo.Deck v. Teasley, 322 S.W.3d 536 (Mo. 2010).
Fla.Allstate Ins. Co. v. Rudnick, 761 So. 2d 289 (Fla. 2000).
OhioBuchman v. Wayne Trace Local School Dist. Bd. of Edn., 73 Ohio St. 3d 260, 1995-Ohio-136, 652 N.E.2d
952, 101 Ed. Law Rep. 1089 (1995).
OhioBuchman v. Wayne Trace Local School Dist. Bd. of Edn., 73 Ohio St. 3d 260, 1995-Ohio-136, 652 N.E.2d
952, 101 Ed. Law Rep. 1089 (1995).
U.S.Cunningham v. Rederiet Vindeggen A/S, 333 F.2d 308 (2d Cir. 1964).
U.S.United Protective Workers of America, Local No. 2 v. Ford Motor Co., 223 F.2d 49, 48 A.L.R.2d 1285 (7th
Cir. 1955).
Mich.Corl v. Huron Castings, Inc., 450 Mich. 620, 544 N.W.2d 278 (1996).
U.S.Safeco Ins. Co. of America v. City of White House, Tenn., 191 F.3d 675, 1999 FED App. 0339P (6th Cir. 1999).
Mich.Corl v. Huron Castings, Inc., 450 Mich. 620, 544 N.W.2d 278 (1996).
U.S.N.L.R.B. v. Marshall Field & Co., 129 F.2d 169, 144 A.L.R. 394 (C.C.A. 7th Cir. 1942), decree aff'd by, 318
U.S. 253, 63 S. Ct. 585, 87 L. Ed. 744 (1943).
22
23
N.Y.Gusikoff v. Republic Storage Co., 241 A.D. 889, 272 N.Y.S. 77 (2d Dep't 1934).
Minn.Graff v. Robert M. Swendra Agency, Inc., 800 N.W.2d 112 (Minn. 2011).
Minn.Graff v. Robert M. Swendra Agency, Inc., 800 N.W.2d 112 (Minn. 2011).
End of Document
190.Insurance, 25 C.J.S. Damages 190

Damages
190. Insurance
Under the collateral-source rule, a wrongdoer may not set up in mitigation or reduction of damages that
the party seeking recovery has been wholly or partially compensated by insurance where such insurance
was not procured by the wrongdoer.
Under the collateral-source rule or doctrine, the fact that the party seeking recovery has been wholly or partially
indemnified for the loss by insurance cannot be set up by the wrongdoer in mitigation of damages 1 where the
wrongdoer did not contribute to the procurement of the insurance. 2 The primary policy reason for the application
of the collateral-source rule is tort deterrence, and the rule reflects the beliefs that the tortfeasor should not profit
from the victim's prudence in obtaining insurance, and that by reducing the amount the tortfeasor would have to
pay, the deterrent effect of the law would be hampered. 3 The rule thus encourages the maintenance of insurance. 4
The rule as to insurance is not affected by the fact that the insurer is entitled to be subrogated to the rights of
the insured as against the tortfeasor or by the fact that the insurer may recover back from the insured the amount
of the recovery. 5
The general rule that indemnification by insurance that was not procured by the wrongdoer cannot be set up
in mitigation of damages applies where the indemnification is by motor vehicle, 6 theft, 7 accident, 8 health, 9
or disability 10 insurance. The general rule also applies where the indemnification is under other forms of
insurance. 11
Fire insurance.
Except where the insurance has been kept up by the wrongdoer, 12 or it is otherwise provided by a statute, 13
the general rule also applies where the matter of insurance is set up in mitigation in case of damages by fire 14
although the action, to the extent of the amount of the insurance, is prosecuted for the benefit of the insurance
company. 15 The situation is different where a property owner is entitled to protection against loss by fire under
two insurance contracts, one of which is a fire-insurance policy, and in such a case, if the owner recovers a portion
of his or her loss from one, he or she can only recover the remainder of his or her loss from the other, 16 and if he
or she has been fully compensated by one, he or she is not entitled to recover from the other. 17
Medical or hospital services supplied or paid for by insurance.

As a general proposition, and subject to some exceptions, damages sought for personal injuries are not to be
reduced because hospital and medical services, made necessary because of the injuries, were supplied or paid for
by insurance, 18 or by a beneficial society. 19 While there is authority that no different legal result follows because
the premium for the payment of the insurance was paid, not by the injured person but by the tortfeasor 20 or a
third person, 21 there is also authority that if the medical and hospital expenses were paid for or supplied by the
tortfeasor's insurer, such fact may be shown in mitigation of damages, 22 and that in such a case, the collateralsource rule does not apply since the source of the benefits is not wholly independent of the tortfeasor. 23 The
collateral-source rule does apply where the hospital and medical services insurance was effected and paid for by
the injured person, or through some other source, and toward which the tortfeasor did not contribute. 24
Medical expenses settled for lesser amount.

In determining whether, pursuant to the collateral-source rule, a plaintiff is entitled to recover his or her full billed
medical expenses when the bill was settled by a third party for a lesser amount, some states follow the reasonablevalue approach, under which all plaintiffs are entitled to seek to recover the full reasonable value of their medical
expenses regardless of whether they have private insurance or are covered by a government program. 25
Cases:
Uniform Contribution Among Tortfeasors Act (UCATA) did not preclude offset in injured motorist's personal
injury action against other driver involved in automobile accident based on insurance payment motorist received
from underinsured motorist insurer; other driver was only defendant at trial, and offset was based only on payment
from insurer and not on settlements between motorist and settling defendants. West's A.C.A. 1661201 et seq.
Brown v. Lee, 2012 Ark. 417, 424 S.W.3d 817 (2012).
Since the Legislature limited the exclusion from a collateral source offset of damages awarded in a personal injury
action only to life insurance, those payments or benefits that are "like" life insurance are not excluded. McKinney's
CPLR 4545(c). Gardner v. State, 978 N.Y.S.2d 736 (Ct. Cl. 2013).
Lot lessees' references to lender's title insurance coverage on RV park property that lender foreclosed on did not
warrant reversal pursuant to the collateral source rule in dispute over the priority of the parties' interests in the
property because purchaser failed to show that the statements prejudiced the outcome of the proceedings. Pioneer
Builders Co. of Nevada, Inc. v. K D A Corp., 2012 UT 74, 292 P.3d 672 (Utah 2012).
[END OF SUPPLEMENT]
Footnotes
3
4
5
6

Ill.Arthur v. Catour, 216 Ill. 2d 72, 295 Ill. Dec. 641, 833 N.E.2d 847 (2005).
Okla.Blythe v. University of Oklahoma, 2003 OK 115, 82 P.3d 1021 (Okla. 2003).
S.C.Covington v. George, 359 S.C. 100, 597 S.E.2d 142 (2004).
Ill.Arthur v. Catour, 216 Ill. 2d 72, 295 Ill. Dec. 641, 833 N.E.2d 847 (2005).
N.Y.Moore v. Leggette, 24 A.D.2d 891, 264 N.Y.S.2d 765 (2d Dep't 1965), order aff'd, 18 N.Y.2d 864, 276 N.Y.S.2d
118, 222 N.E.2d 737 (1966).
Tex.Mid-Century Ins. Co. of Texas v. Kidd, 997 S.W.2d 265 (Tex. 1999).
La.Cutsinger v. Redfern, 12 So. 3d 945 (La. 2009).
Md.Haischer v. CSX Transp., Inc., 381 Md. 119, 848 A.2d 620 (2004).
Kan.Rexroad v. Kansas Power & Light Co., 192 Kan. 343, 388 P.2d 832 (1964).
Ala.Carlisle v. Miller, 275 Ala. 440, 155 So. 2d 689 (1963).
La.Williams v. Langston, 138 So. 2d 691 (La. Ct. App. 4th Cir. 1962).
Mo.Baker v. Fortney, 299 S.W.2d 563 (Mo. Ct. App. 1957).
Uninsured-motorist (UM)/underinsured-motorist (UIM) benefits as collateral source
7
8
9
10
11
12
13
14
15
16
17
18
Uninsured-motorist (UM) benefits not collateral source

Conn.Enviro Express, Inc. v. AIU Ins. Co., 279 Conn. 194, 901 A.2d 666 (2006).
IdahoDyet v. McKinley, 139 Idaho 526, 81 P.3d 1236 (2003) (abrogated on other grounds by, Verska v. Saint
Alphonsus Regional Medical Center, 151 Idaho 889, 265 P.3d 502 (2011)).
Ill.Byalos v. Matheson, 328 Ill. 269, 159 N.E. 242 (1927).
Minn.Solberg v. Minneapolis Willys-Knight Co., 177 Minn. 10, 224 N.W. 271 (1929).
W.Va.Keesee v. General Refuse Service, Inc., 216 W. Va. 199, 604 S.E.2d 449 (2004).
Ky.Baptist Healthcare Systems, Inc. v. Miller, 177 S.W.3d 676 (Ky. 2005).
Mass.Shea v. Rettie, 287 Mass. 454, 192 N.E. 44, 95 A.L.R. 571 (1934).
Ind.Powers v. Ellis, 231 Ind. 273, 108 N.E.2d 132 (1952).
Liability insurance
N.H.Waumbec Mills, Inc. v. Bahnson Service Co., 103 N.H. 461, 174 A.2d 839 (1961).
Tex.Publix Theatres Corporation v. Powell, 123 Tex. 304, 71 S.W.2d 237 (Comm'n App. 1934).
Me.Boston Excelsior Co. v. Bangor & A.R. Co., 93 Me. 52, 44 A. 138 (1899).
Ill.Lindor v. Burns, 292 Ill. App. 201, 10 N.E.2d 686 (1st Dist. 1937).
La.V. Rivera S. En C. v. Texas & N. O. R. Co., 211 La. 969, 31 So. 2d 180, 172 A.L.R. 791 (1947).
N.Y.Rinaudo v. Erichsen, 273 A.D. 1040, 78 N.Y.S.2d 569 (3d Dep't 1948).
Va.Norfolk & W. Ry. Co. v. Perrow, 101 Va. 345, 43 S.E. 614 (1903).
Ky.Georgetown Water, Gas, Elec. & Power Co. v. Neale, 137 Ky. 197, 125 S.W. 293 (1910).
Ariz.Warren Co. v. Hanson, 17 Ariz. 252, 150 P. 238 (1915).
Del.Mitchell v. Haldar, 883 A.2d 32 (Del. 2005).
Mo.Kickham v. Carter, 335 S.W.2d 83 (Mo. 1960).
N.J.Long v. Landy, 35 N.J. 44, 171 A.2d 1 (1961).
HMO coverage
Ill.Rogalla v. Christie Clinic, P.C., 341 Ill. App. 3d 410, 276 Ill. Dec. 489, 794 N.E.2d 384 (4th Dist. 2003) (rejected
on other grounds by, Lopez v. Morley, 352 Ill. App. 3d 1174, 288 Ill. Dec. 234, 817 N.E.2d 592 (2d Dist. 2004)).
19
20
21
22
23
24
25
Medicaid and Medicare payments

Miss.Wal-Mart Stores, Inc. v. Frierson, 818 So. 2d 1135 (Miss. 2002).
Neb.Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007), opinion supplemented on other grounds on overruling
of reh'g, 274 Neb. 267, 759 N.W.2d 113 (2007).
Minn.Dyson v. Schmidt, 260 Minn. 129, 109 N.W.2d 262 (1961).
La.Distefano v. Delta Fire & Cas. Co., 98 So. 2d 310 (La. Ct. App. 1st Cir. 1957).
S.C.Joiner v. Fort, 226 S.C. 249, 84 S.E.2d 719 (1954).
Del.Yarrington v. Thornburg, 57 Del. 224, 198 A.2d 181 (Super. Ct. 1964), aff'd, 58 Del. 152, 205 A.2d 1, 11
A.L.R.3d 1110 (1964).
La.Gunter v. Lord, 242 La. 943, 140 So. 2d 11 (1962).
N.C.Tart v. Register, 257 N.C. 161, 125 S.E.2d 754 (1962).
Del.Yarrington v. Thornburg, 57 Del. 224, 198 A.2d 181 (Super. Ct. 1964), aff'd, 58 Del. 152, 205 A.2d 1, 11
A.L.R.3d 1110 (1964).
La.Gunter v. Lord, 242 La. 943, 140 So. 2d 11 (1962).
End of Document
191.Other collateral sources, 25 C.J.S. Damages 191

Damages
191. Other collateral sources
In the application of the collateral-source rule, it is generally recognized that a wrongdoer may not set up in
mitigation of damages that the injured person has received payments made under a workers' compensation
act or Social Security benefits, or that his or her salary or wages have been paid as before.
In the application of the collateral-source doctrine, it is generally recognized that damages cannot be mitigated
or reduced by the fact that plaintiff has received, or is entitled to, compensation or benefits under a workers'
compensation act 1 or Social Security benefits. 2 Thus, as a general rule, the damages that a person has sustained
are not to be reduced because of payments the person receives from a pension fund, 3 or because of payments he
or she receives as disability compensation, 4 or unemployment compensation. 5
The collateral-source doctrine applies to payments made under contracts of guaranty or indemnity, such as surety
bonds, and the wrongdoer is not entitled to claim the benefit of such payments in mitigation of damages. 6
Thus, where a bank has improperly paid out funds that are protected by a surety bond, and where the surety has
reimbursed the owner of the funds, in a suit against the bank, the bank may not claim the benefit of the payments
made by the surety on its bond. 7 Also, an amount that the injured person received as relief or assistance from a
governmental subdivision or agency is not to be considered in mitigation or reduction of damages. 8
Where the injuries for which damages are sought necessitated hospital and medical services, the general rule is
that it may not be shown in mitigation of damages that such services were rendered at very little cost to the injured
person, 9 or even gratuitously, 10 or that they were paid for by a third person as a gift, 11 or were supplied as a
result of a contract of employment. 12
Tax saving resulting from financial loss.
Although a financial loss caused by a wrongdoer may result in a tax saving to the person who sustained the loss,
the amount of the tax saving does not mitigate or reduce the loss for which the wrongdoer is liable. 13
Payment of salary or wages.

While there is authority that the wrongdoer, seeking to mitigate or reduce the damages, may show that the injured
person has been paid his or her wages or salary as before, 14 there is also authority that the wrongdoer may
not show in mitigation of damages that the injured person received his or her salary or wages as before. 15 The
wrongdoer may not show in mitigation of damages that the injured person received salary or wages where payment
of them was made because of annual leave or sick leave. 16
Cases:
Amounts written off by patient's health care providers were not funds from collateral source that by law must
seek subrogation, and thus, were not recoverable as damages, under Alaska law, in action brought against United
States under Federal Tort Claims Act (FTCA). 28 U.S.C.A. 1346, 2671 et seq.; AS 09.55.548(b). Liebsack v.
U.S., 540 Fed. Appx. 640 (9th Cir. 2013).
[END OF SUPPLEMENT]
Footnotes
Ariz.Miller v. Schafer, 102 Ariz. 457, 432 P.2d 585 (1967).
1
2
3
7
8
9
10
11
12
Cal.McQuillan v. Southern Pacific Co., 40 Cal. App. 3d 802, 115 Cal. Rptr. 418 (1st Dist. 1974).
IowaCarter v. Wiese Corp., 360 N.W.2d 122 (Iowa Ct. App. 1984).
U.S.Halek v. U.S., 178 F.3d 481 (7th Cir. 1999).
U.S.Amwest Sav. Ass'n v. Statewide Capital, Inc., 144 F.3d 885 (5th Cir. 1998).
Ill.Schmitt v. Chicago Transit Authority, 34 Ill. App. 2d 67, 179 N.E.2d 838 (1st Dist. 1962).
U.S.Feeley v. U.S., 337 F.2d 924, 12 A.L.R.3d 1228 (3d Cir. 1964).
Mich.Kurta v. Probelske, 324 Mich. 179, 36 N.W.2d 889 (1949).
N.Y.Napolitano v. Manhattan Savings Bank, 269 A.D. 563, 56 N.Y.S.2d 367 (1st Dep't 1945), judgment aff'd, 295
N.Y. 727, 65 N.E.2d 430 (1946).
Tex.Liberty Mut. Ins. Co. v. First Nat. Bank in Dallas, 151 Tex. 12, 245 S.W.2d 237 (1951).
N.Y.Napolitano v. Manhattan Savings Bank, 269 A.D. 563, 56 N.Y.S.2d 367 (1st Dep't 1945), judgment aff'd, 295
N.Y. 727, 65 N.E.2d 430 (1946).
Mo.Joshmer v. Fred Weber Contractors, Inc., 294 S.W.2d 576 (Mo. Ct. App. 1956).
Cal.Deshotel v. Atchison, T. & S. F. Ry. Co., 144 Cal. App. 2d 224, 300 P.2d 910 (1st Dist. 1956).
U.S.Rayfield v. Lawrence, 253 F.2d 209, 68 A.L.R.2d 868 (4th Cir. 1958).
13
14
15
16
Minn.Dyson v. Schmidt, 260 Minn. 129, 109 N.W.2d 262 (1961).

Tex.Morgan v. Woodruff, 208 S.W.2d 628 (Tex. Civ. App. Galveston 1948).
U.S.Wiesenberger v. W. E. Hutton & Co., 35 F.R.D. 556, 8 Fed. R. Serv. 2d 26B.31, Case 2 (S.D. N.Y. 1964).
Ill.Cereal Byproducts Co. v. Hall, 16 Ill. App. 2d 79, 147 N.E.2d 383 (1st Dist. 1958), judgment aff'd, 15 Ill. 2d
313, 155 N.E.2d 14 (1958).
U.S.Leon v. U.S., 193 F. Supp. 8 (E.D. N.Y. 1961).
La.Hebert v. Meibaum, 17 So. 2d 750 (La. Ct. App., Orleans 1944), opinion recalled on other grounds on reh'g, 19
So. 2d 629 (La. Ct. App., Orleans 1944), judgment aff'd, 209 La. 156, 24 So. 2d 297 (1945).
U.S.Pabon v. Cotton State Mut. Ins. Co., 196 F. Supp. 586 (D.P.R. 1961).
Mich.Canning v. Hannaford, 373 Mich. 41, 127 N.W.2d 851 (1964).
Wis.Ashley v. American Auto. Ins. Co., 19 Wis. 2d 17, 119 N.W.2d 359 (1963).
U.S.Beaty v. Buckeye Fabric Finishing Co., 179 F. Supp. 688 (E.D. Ark. 1959).
Cal.Lewis v. Contra Costa County, 130 Cal. App. 2d 176, 278 P.2d 756 (1st Dist. 1955).
Mo.Siemes v. Englehart, 346 S.W.2d 560 (Mo. Ct. App. 1961).
End of Document

Damages
Correlation Table
Summary
Scope:
Treated Elsewhere:
1 et seq.
97 to 133
Westlaw Databases
End of Document
Research References, 25A C.J.S. Damages V Refs.
25A C.J.S. Damages V Refs.

Damages
V. Liquidated Damages
Research References
A.L.R. Library
End of Document
Research References, 25A C.J.S. Damages V A Refs.
25A C.J.S. Damages V A Refs.

Damages
A. In General
Research References
A.L.R. Library
West's A.L.R. Digest, Damages 74 , 76 to 78 , 83 , 85 , 86 , 94
End of Document
192.Generally, 25A C.J.S. Damages 192
25A C.J.S. Damages 192

Damages
A. In General
1. In General
192. Generally
Liquidated damages are a specific sum stipulated to and agreed upon by the parties in advance or when
they enter into a contract to be paid to compensate for injuries in the event of a breach or nonperformance
of the contract.
"Liquidated damages" are a specific sum stipulated to and agreed upon by the parties in advance or when they
enter into a contract 1 to be paid to compensate for injuries in the event of a breach or nonperformance of the
contract. 2 A liquidated-damages clause in a contract is an advance settlement of the anticipated actual damages
arising from a future breach 3 and estimates in advance the just compensation to a party accruing from the failure
to perform certain contractual obligations. 4 The amount specified may exceed or fall short of actual damages. 5
Footnotes
Md.AGV Sports Group, Inc. v. Protus IP Solutions, Inc., 417 Md. 386, 10 A.3d 745 (2010).
1
2
3
4
5
Tex.Flores v. Millennium Interests, Ltd., 185 S.W.3d 427 (Tex. 2005).

IdahoIntermountain Eye and Laser Centers, P.L.L.C. v. Miller, 142 Idaho 218, 127 P.3d 121 (2005).
Ind.Time Warner Entertainment Co., L.P. v. Whiteman, 802 N.E.2d 886 (Ind. 2004).
Kan.Carrothers Const. Co., L.L.C. v. City of South Hutchinson, 288 Kan. 743, 207 P.3d 231 (2009).
S.C.Foreign Academic & Cultural Exchange Services, Inc. v. Tripon, 394 S.C. 197, 715 S.E.2d 331, 272 Ed. Law
Rep. 658 (2011).
Tex.Flores v. Millennium Interests, Ltd., 185 S.W.3d 427 (Tex. 2005).
Fair compensation
Conn.Bellemare v. Wachovia Mortg. Corp., 284 Conn. 193, 931 A.2d 916 (2007).
Tex.TXU Portfolio Management Co., L.P. v. FPL Energy, LLC, 328 S.W.3d 580 (Tex. App. Dallas 2010), reh'g
overruled, (Jan. 14, 2011) and rule 53.7(f) motion granted, (Mar. 11, 2011).
End of Document
193.Nature and purpose, 25A C.J.S. Damages 193

Damages
A. In General
1. In General
193. Nature and purpose
The term "liquidated damages" is a term of art originally derived from contract law. The purpose of a
liquidated-damages contract provision is to obviate the need for the nonbreaching party to prove actual
damages.
The term "liquidated damages" is a term of art originally derived from contract law. 1
A typical liquidated-damages provision provides for the forfeiture of a stated sum of money upon breach without
proof of damages. 2 Indeed, the purpose of a liquidated-damages contract provision is to obviate the need for the
nonbreaching party to prove actual damages 3 and to allow contracting parties to protect themselves against the
difficulty, uncertainty, and expenses that necessarily follow judicial proceedings when trying to ascertain actual
damages. 4
Footnotes
Pa.Pantuso Motors, Inc. v. Corestates Bank, N.A., 568 Pa. 601, 798 A.2d 1277 (2002).
1
2
3
4
Substitute for actual damages

UtahBair v. Axiom Design, L.L.C., 2001 UT 20, 20 P.3d 388 (Utah 2001).
End of Document
194.Validity, 25A C.J.S. Damages 194

Damages
A. In General
1. In General
194. Validity
Generally, liquidated-damages provisions are valid and enforceable provided that they satisfy certain
conditions.
Generally, liquidated-damages provisions are valid and enforceable, 1 at least if they satisfy certain conditions. 2
A contract provision that clearly and reasonably establishes liquidated damages should be enforced 3 provided
that the clause is not penal 4 or intended to deter or punish the breach. 5 A term in a contract calling for the
imposition of a penalty for the breach of the contract is contrary to public policy and invalid. 6
To be valid, a provision for liquidated damages may be required to be for a certain sum. 7 The provisions also
should not be a call for future action by the court to determine the amount. 8
Statute.
By statute, provisions for liquidated damages may be void except where it is impracticable or extremely difficult
to fix the actual damage. 9
Cases:
Yield maintenance premium that became payable upon acceleration of mortgage loan, based on difference between
outstanding principal balance at time of acceleration and total securities cost, was in amount sufficiently certain
to qualify as valid liquidated damages provision under New York law; once correct date of acceleration was
determined, determining proper yield maintenance premium would require a mere mechanical calculation based
upon known amounts that were due and upon published rates of interest. In re Doctors Hosp. of Hyde Park, Inc.,
508 B.R. 697 (Bankr. N.D. Ill. 2014).
Court is required to determine the enforceability of a liquidated damages clause through an evaluation of three
essential elements that ensure the clause's validity: first, such a clause must provide in clear and unambiguous terms
for a certain sum; second, the liquidated damages must reasonably be compensation for the damages anticipated
by the breach; and third, the damages called for in the clause may not be altered to correspond to actual damages
determined after the fact. CAS Severn, Inc. v. Awalt, 213 Md. App. 683, 75 A.3d 382 (2013).
Liquidated damages clauses are valid and enforceable, but penalty clauses are not. Ward v. West County Motor
Co., Inc., 403 S.W.3d 82 (Mo. 2013).
As a general matter parties are free to agree to a liquidated damages clause provided that the clause is neither
unconscionable nor contrary to public policy; however, liquidated damages that constitute a penalty violate public
policy, and are unenforceable. 172 Van Duzer Realty Corp. v. Globe Alumni Student Assistance Ass'n, Inc., 24
N.Y.3d 528, 25 N.E.3d 952 (2014).
A "liquidated-damages provision" arises under a contract that apportions damages in the event of default in a
set amount, and while not unenforceable on their face, such provisions are unenforceable when the stipulated
damages actually constitute a penalty. CosmetiCredit, L.L.C. v. World Fin. Network Natl. Bank, 2014-Ohio-5301,
24 N.E.3d 762 (Ohio Ct. App. 10th Dist. Franklin County 2014).
[END OF SUPPLEMENT]
Footnotes
AlaskaCarr-Gottstein Properties, Ltd. Partnership v. Benedict, 72 P.3d 308 (Alaska 2003).
1
Presumed enforceable
Mont.Highway Specialties, Inc. v. State, Dept. of Transp., 2009 MT 253, 351 Mont. 527, 215 P.3d 667 (2009).
2
3
4
Enforceable if valid
As to the requirements of a valid liquidated-damages agreement, see 196 to 204.
Mass.NPS, LLC v. Minihane, 451 Mass. 417, 886 N.E.2d 670 (2008).
Okla.McQueen, Rains & Tresch, LLP v. Citgo Petroleum Corp., 2008 OK 66, 195 P.3d 35 (Okla. 2008).
Excessive or usurious penalty
The court will not uphold a liquidated-damages clause that is actually an excessive or usurious penalty.
Me.Raisin Memorial Trust v. Casey, 2008 ME 63, 945 A.2d 1211 (Me. 2008).
5
6
7
8
9
Real estate contracts

Liquidated-damages provisions in real estate contacts are enforceable unless they are determined to be a penalty.
Ill.Berggren v. Hill, 401 Ill. App. 3d 475, 340 Ill. Dec. 628, 928 N.E.2d 1225 (1st Dist. 2010).
As to the determination of whether a liquidated-damages provision is a penalty, see 200 to 204.
IdahoSchroeder v. Partin, 151 Idaho 471, 259 P.3d 617 (2011).
Ill.Hamming v. Murphy, 83 Ill. App. 3d 1130, 39 Ill. Dec. 435, 404 N.E.2d 1026 (2d Dist. 1980).
OhioMidwest Properties Co. v. Renkel, 38 Ohio App. 503, 10 Ohio L. Abs. 153, 176 N.E. 665 (8th Dist. Cuyahoga
County 1930).
Cal.Silva & Hill Constr. Co. v. Employers Mut. Liab. Ins. Co., 19 Cal. App. 3d 914, 97 Cal. Rptr. 498 (2d Dist. 1971).
End of Document
195.Enforceability where provision is unconscionable, 25A C.J.S. Damages 195

Damages
A. In General
1. In General
195. Enforceability where provision is unconscionable
Under some authority, a liquidated-damages provision will be enforced unless the party opposing the
provision has established that it is unconscionable.
Under some authority, liquidated-damages provision will be enforced unless the party opposing the provision has
established that it is unconscionable as indicated by the nature of the bargaining process between the parties. 1
Thus, while courts respect parties' right to contract, a court in equity may find a liquidated-damages clause
unenforceable if it is unconscionable. 2
The proper method to analyze a liquidated-damages clause is from the perspective of whether or not the clause is
unconscionable. 3 Where both parties are sophisticated businesses and damages are economic, courts rarely find
that liability limitations are unconscionable. 4
When making a determination as to the unconscionability of a liquidated-damages provision, courts are not bound
by any specific type of evidence. 5 Rather, any relevant evidence may be considered. 6 Unless there are underlying
disputed issues of fact, the question of whether a liquidated-damages clause is unconscionable is purely a matter
of law for court to decide. 7
Footnotes
1
2
Mont.American Music Co. v. Higbee, 2004 MT 349, 324 Mont. 348, 103 P.3d 518 (2004).
3
Mo.Purcell Tire & Rubber Co., Inc. v. Executive Beechcraft, Inc., 59 S.W.3d 505 (Mo. 2001).
4
Arm's-length bargaining
When a liquidated-damages provision is the product of fair arm's-length bargaining, particularly between sophisticated
parties, common-law suspicions may be eased, and more latitude may be afforded the contracting parties to agree as
they wish on the remedies for breach.
195.Enforceability where provision is unconscionable, 25A C.J.S. Damages 195
5
6
7
D.C.District Cablevision Ltd. Partnership v. Bassin, 828 A.2d 714, 51 U.C.C. Rep. Serv. 2d 149 (D.C. 2003).
Law Rep. 915 (2003).
End of Document

Damages
A. In General
2. Basic Requirements of Liquidated-Damages Provision
a. In General
196. Generally
In examining whether a liquidated-damages provision is enforceable, courts consider whether the damages
stemming from a breach are difficult or impossible to estimate or calculate when the contract was entered
and whether the amount stipulated bears a reasonable relation to the damages reasonably anticipated.
In examining whether a liquidated-damages provision is enforceable, courts consider whether: (1) the damages
stemming from a breach are difficult or impossible to estimate or calculate when the contract was entered, and
(2) the amount stipulated bears a reasonable relation to the damages reasonably anticipated. 1 Some courts also
consider whether the parties reasonably intended or tried to fix their damages 2 rather than establish a penalty. 3
Cases:
Under Kansas law, three factors are relevant to whether a liquidated damages provision is an unenforceable
penalty: (1) whether the amount is reasonable in light of anticipated or actual harm; (2) the difficulty of
proving actual damages; and (3) the difficulty of obtaining an otherwise adequate remedy. K.S.A. 842718(1).
Wahlcometroflex, Inc. v. Westar Energy, Inc., 773 F.3d 223 (10th Cir. 2014).
When a purchase and sale agreement for land contains a provision awarding liquidated damages in the event of
a breach, that provision will be enforced so long as at the time the agreement was made, potential damages were
difficult to determine and the clause was a reasonable forecast of damages expected to occur in the event of a
breach. K.G.M. Custom Homes, Inc. v. Prosky, 468 Mass. 247, 10 N.E.3d 117 (2014).
A liquidated damages clause in a contract is enforceable under the following circumstances: first, the amount
of actual damages must be uncertain and difficult to prove; second, the amount of stipulated damages must be
reasonable and proportionate to the contract as a whole; and third, the parties' intent to stipulate to damages must
be clear and unambiguous. B & G Properties Ltd. Partnership v. Office Max, Inc., 2013-Ohio-5255, 3 N.E.3d 774
(Ohio Ct. App. 8th Dist. Cuyahoga County 2013).
To enforce a liquidated damages clause, the court must find that (1) the harm caused by the breach is incapable
or difficult of estimation and (2) the amount of liquidated damages called for is a reasonable forecast of just
compensation. Triton 88, L.P. v. Star Electricity, L.L.C., 411 S.W.3d 42 (Tex. App. Houston 1st Dist. 2013).
A party may challenge the enforceability of a liquidated damages clause only by pursuing one of the general
contractual remedies, such as mistake, fraud, duress, or unconscionability. Commercial Real Estate Inv., L.C. v.
Comcast of Utah II, Inc., 2012 UT 49, 285 P.3d 1193 (Utah 2012).
[END OF SUPPLEMENT]
Footnotes
AlaskaCarr-Gottstein Properties, Ltd. Partnership v. Benedict, 72 P.3d 308 (Alaska 2003).
1
Colo.Klinger v. Adams County School Dist. No. 50, 130 P.3d 1027, 207 Ed. Law Rep. 419 (Colo. 2006).
Ga.Noons v. Holiday Hospitality Franchising, Inc., 307 Ga. App. 351, 705 S.E.2d 166 (2010), cert. denied, (May
16, 2011).
Ill.People ex rel. Dept. of Public Health v. Wiley, 218 Ill. 2d 207, 300 Ill. Dec. 1, 843 N.E.2d 259 (2006).
N.H.Orr v. Goodwin, 157 N.H. 511, 953 A.2d 1190 (2008).
Md.Board of Educ. of Talbot County v. Heister, 392 Md. 140, 896 A.2d 342, 208 Ed. Law Rep. 819 (2006).
Me.Sisters of Charity Health System, Inc. v. Farrago, 2011 ME 62, 21 A.3d 110 (Me. 2011).
Neb.Berens and Tate, P.C. v. Iron Mountain Information Management, Inc., 275 Neb. 425, 747 N.W.2d 383 (2008).
N.D.Hendricks Property Management Corp. v. Birchwood Properties Ltd. Partnership, 2007 ND 181, 741 N.W.2d
461 (N.D. 2007).
Tex.BMG Direct Marketing, Inc. v. Peake, 178 S.W.3d 763 (Tex. 2005).
Wis.Rainbow Country Rentals and Retail, Inc. v. Ameritech Publishing, Inc., 2005 WI 153, 286 Wis. 2d 170, 706
N.W.2d 95 (2005).
16, 2011).
N.D.Hendricks Property Management Corp. v. Birchwood Properties Ltd. Partnership, 2007 ND 181, 741 N.W.2d
461 (N.D. 2007).
N.W.2d 95 (2005).
16, 2011).
N.W.2d 95 (2005).
End of Document
197.Uncertainty of actual damages, 25A C.J.S. Damages 197

Damages
A. In General
a. In General
197. Uncertainty of actual damages
A liquidated-damages clause is invalid when the actual damages contemplated at the time of the agreement
are shown to be certain and not difficult to determine.
A liquidated-damages clause is invalid when the actual damages contemplated at the time of the agreement are
shown to be certain and not difficult to determine. 1 Where the amount of actual damages is readily ascertainable
or can be made so, the courts will generally construe a stipulation for damages as being for a penalty. 2 Even if
the liquidated-damages sum is reasonable in light of the anticipated or presumable loss, the provision will not be
enforced if the actual loss to the party is minimal and easy to prove. 3
On the other hand, a provision is more readily construed as for liquidated damages, and not as for a penalty, where
the actual damages are difficult to ascertain or measure. 4 Still, the mere fact that expected damages resulting
from breach are uncertain in amount or difficult to prove does not justify enforcement of whatever amount the
contract includes as damages for breach. 5
Time of determination.
Whether damages are difficult to ascertain is to be determined from the status of the parties when the contract was
entered into. 6 The ability of the parties to ascertain the actual damages at the time of a breach is irrelevant. 7
Cases:
In construction contracts, damages can seldom be reasonably estimated in advance; thus, courts should not permit
a contractor to nullify a reasonable estimate of damages by inconclusive testimony. Boone Coleman Constr., Inc.
v. Village of Piketon, 2014-Ohio-2377, 13 N.E.3d 1190 (Ohio Ct. App. 4th Dist. Pike County 2014).
197.Uncertainty of actual damages, 25A C.J.S. Damages 197
[END OF SUPPLEMENT]
Footnotes
1
2
3
4
5
6
Va.Boots, Inc. v. Prempal Singh, 274 Va. 513, 649 S.E.2d 695 (2007).
Cal.Greenbach Bros. Inc. v. Burns, 245 Cal. App. 2d 767, 54 Cal. Rptr. 143 (1st Dist. 1966).
Fla.Hutchison v. Tompkins, 240 So. 2d 180 (Fla. Dist. Ct. App. 4th Dist. 1970).
Ga.Concrete Materials of Georgia, Inc. v. Smith & Plaster Co. of Georgia, 127 Ga. App. 817, 195 S.E.2d 219 (1973).
Kan.Unified School Dist. No. 315, Thomas County v. DeWerff, 6 Kan. App. 2d 77, 626 P.2d 1206 (1981).
Tex.American Nat. Ins. Co. v. Tri-Cities Const., Inc., 551 S.W.2d 106 (Tex. Civ. App. Houston 1st Dist. 1977).
As to the determination of whether a liquidated-damages clause is a penalty, generally, see 200 to 204.
U.S.In re United Merchants and Mfrs., Inc., 674 F.2d 134 (2d Cir. 1982).
Cal.Fox v. Federated Department Stores, Inc., 94 Cal. App. 3d 867, 156 Cal. Rptr. 893 (2d Dist. 1979).
Fla.Hutchison v. Tompkins, 259 So. 2d 129 (Fla. 1972).
Ill.M. I. G. Investments, Inc. v. Marsala, 92 Ill. App. 3d 400, 47 Ill. Dec. 265, 414 N.E.2d 1381 (2d Dist. 1981).
Ind.Zalewski v. Simpson, 435 N.E.2d 74 (Ind. Ct. App. 1982).
Kan.Unified School Dist. No. 315, Thomas County v. DeWerff, 6 Kan. App. 2d 77, 626 P.2d 1206 (1981).
Mass.Kelly v. Marx, 428 Mass. 877, 705 N.E.2d 1114 (1999).
N.Y.Truck Rent-A-Center, Inc. v. Puritan Farms 2nd, Inc., 41 N.Y.2d 420, 393 N.Y.S.2d 365, 361 N.E.2d 1015
(1977).
OhioAmerican Financial Leasing & Services Co. v. Miller, 41 Ohio App. 2d 69, 70 Ohio Op. 2d 64, 322 N.E.2d
149 (10th Dist. Franklin County 1974).
UtahRobbins v. Finlay, 645 P.2d 623 (Utah 1982).
N.W.2d 95 (2005).
Conn.American Car Rental, Inc. v. Commissioner of Consumer Protection, 273 Conn. 296, 869 A.2d 1198 (2005).
Ark.Phillips v. Ben M. Hogan Co., Inc., 267 Ark. 1104, 594 S.W.2d 39 (Ct. App. 1980).
Mass.TAL Financial Corp. v. CSC Consulting, Inc., 446 Mass. 422, 844 N.E.2d 1085 (2006).
N.D.Bowbells Public School Dist. No. 14, Bowbells v. Walker, 231 N.W.2d 173 (N.D. 1975).
UtahReliance Ins. Co. v. Utah Dept. of Transp., 858 P.2d 1363 (Utah 1993).
End of Document
198.Reasonable liquidated-damages sum, 25A C.J.S. Damages 198

Damages
A. In General
a. In General
198. Reasonable liquidated-damages sum
Liquidated damages must bear a reasonable relationship to actual damages, and a liquidated-damages
clause is invalid when the stipulated amount is out of all proportion to the actual damages.
Liquidated damages must bear a reasonable relationship to actual damages 1 in light of the circumstances. 2 Thus,
in evaluating the validity of a liquidated-damages clause, the focus is on whether the provision bears a reasonable
relation to the anticipated damages occasioned by a breach. 3
A liquidated-damages clause is invalid when the stipulated amount is out of all proportion to the actual damages 4
or is unreasonably and grossly disproportionate to the real damages. 5 A liquidated-damages clause that provides
for payment of a fixed sum without any reasonable relation to any probable damage that may follow a breach 6
or that is unreasonably large 7 will not be enforced as a matter of public policy. 8
Where the provision for liquidated damages is unreasonable or disproportionate as compared with the amount
of actual damages that will be sustained, the provision is to be regarded as a penalty 9 intended to force
performance. 10
Cases:
Courts should enforce a liquidated-damages agreement unless the proof clearly shows that according to the
circumstances existing at the time of the execution the amount was grossly disproportionate to the damage which
might flow from a breach. Patel v. Tuttle Properties, LLC, 392 S.W.3d 384 (Ky. 2013).
198.Reasonable liquidated-damages sum, 25A C.J.S. Damages 198
[END OF SUPPLEMENT]
Footnotes
IdahoIntermountain Eye and Laser Centers, P.L.L.C. v. Miller, 142 Idaho 218, 127 P.3d 121 (2005).
1
2
3
Va.Boots, Inc. v. Prempal Singh, 274 Va. 513, 649 S.E.2d 695 (2007).
4
5
7
8
9
10
N.H.Shallow Brook Associates v. Dube, 135 N.H. 40, 599 A.2d 132 (1991).
N.Y.BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 690 N.Y.S.2d 854, 712 N.E.2d 1220 (1999).
Rep. 658 (2011).
U.S.Red Sage Ltd. Partnership v. DESPA Deutsche Sparkassen Immobilien-Anlage-Gasellschaft mbH, 254 F.3d
1120 (D.C. Cir. 2001).
N.J.Rosen v. Smith Barney, Inc., 195 N.J. 423, 950 A.2d 205 (2008).
U.S.In re Trans World Airlines, Inc., 145 F.3d 124 (3d Cir. 1998).
U.S.XCO Intern. Inc. v. Pacific Scientific Co., 369 F.3d 998 (7th Cir. 2004) (applying Illinois law).
Ga.Adams v. D & D Leasing Co. of Georgia, Inc., 191 Ga. App. 121, 381 S.E.2d 94 (1989).
N.J.Rosen v. Smith Barney, Inc., 195 N.J. 423, 950 A.2d 205 (2008).
Rep. 658 (2011).
Tex.Ashton v. Bennett, 503 S.W.2d 392 (Tex. Civ. App. Waco 1973), writ refused n.r.e., (June 5, 1974).
Penal if not just compensation
Under New Jersey law, liquidated-damages provisions are stricken as penal if they are not a reasonable forecast of just
compensation for the actual injury resulting from the breach.
U.S.XCO Intern. Inc. v. Pacific Scientific Co., 369 F.3d 998 (7th Cir. 2004) (applying Illinois law).
End of Document
199.Determination of reasonableness, 25A C.J.S. Damages 199

Damages
A. In General
a. In General
199. Determination of reasonableness
The overall single test of validity of stipulated damages clause is whether the clause is reasonable under
the totality of circumstances.
There is no bright line separating an agreement to pay a reasonable measure of damages from an unenforceable
penalty clause. 1 The overall single test of validity of stipulated damages clause is whether the clause is reasonable
under the totality of circumstances, 2 a legal question that is heavily influenced by all the facts and circumstances
of the particular case. 3
Under some authority, the reasonableness of stipulated damages clause must be judged as of the time of formation
and at the time of breach. 4 However, some authority determines the validity of a liquidated-damages clause by
looking to the stipulated loss at the time of the contract's formation and not actual losses resulting from breach. 5
Footnotes
1
2
3
4
N.W.2d 95 (2005).
Wis.Putnam v. Time Warner Cable of Southeastern Wisconsin, Ltd. Partnership, 2002 WI 108, 255 Wis. 2d 447,
649 N.W.2d 626 (2002).
N.W.2d 95 (2005).
End of Document

Damages
A. In General
b. Distinguished from Penalty
200. Generally
A penalty is in effect a security for performance, while a provision for liquidated damages is for a sum to
be paid in lieu of performance.
A term in a contract calling for the imposition of a penalty for the breach of the contract is contrary to public
policy and invalid. 1 One distinction between a penalty and a provision for liquidated damages is that a penalty
is in effect a security for performance, while a provision for liquidated damages is for a sum to be paid in lieu of
performance. 2 Stated another way, a penalty is designed to punish for a breach of contract whereas liquidated
damages are intended as fair compensation for the breach. 3 A penalty, in contrast to liquidated damages, is fixed
not as a preestimate of probable actual damages but as a punishment, 4 the threat of which is designed to prevent
the breach. 5 Thus, when the sole purpose of a contractual clause is to secure performance of the contract, the
clause is an unenforceable penalty. 6
Cases:
Under Kansas law, liquidated damages clause in contract for manufacture and delivery of flue gas desulfurization
(FGD) dampers, which stated that manufacturer would be liable for damages in the event that delivery was
untimely, was not an unenforceable penalty, and was thus valid; clause was reasonable in light of the anticipated
damages at the time the contract was signed. K.S.A. 842718(1). Wahlcometroflex, Inc. v. Westar Energy, Inc.,
773 F.3d 223 (10th Cir. 2014).
When stipulated damages provision of contract is challenged as punitive, a court must view the provision in light of
what the parties knew at the time the contract was formed and in light of an estimate of the actual damages caused
by the breach. R.L.R. Invests., L.L.C. v. Wilmington Horsemens Group, L.L.C., 2014-Ohio-4757, 22 N.E.3d 233
(Ohio Ct. App. 12th Dist. Butler County 2014).
[END OF SUPPLEMENT]
Footnotes
1
Ala.Cook v. Brown, 408 So. 2d 143 (Ala. Civ. App. 1981).
2
4
5
Ariz.Aztec Film Productions, Inc. v. Quinn, 116 Ariz. 468, 569 P.2d 1366 (Ct. App. Div. 2 1977).
Ill.Donow v. Board of Trustees of Southern Illinois University, 21 Ill. App. 3d 139, 314 N.E.2d 704 (5th Dist. 1974).
Pa.Com., Dept. of Environmental Resources v. Hartford Acc. and Indem. Co., 40 Pa. Commw. 133, 396 A.2d 885
(1979).
Wash.Mahoney v. Tingley, 85 Wash. 2d 95, 529 P.2d 1068 (1975).
U.S.Lange v. Farmers Federation Co-op., Inc., 249 F. Supp. 544 (W.D. N.C. 1966); In re Holiday Mart, Inc., 9 B.R.
99 (Bankr. D. Haw. 1981).
Conn.Zalonski v. McMahon, 3 Conn. Cir. Ct. 533, 220 A.2d 35 (1966).
Tenn.Guiliano v. Cleo, Inc., 995 S.W.2d 88 (Tenn. 1999).
U.S.In re Plywood Co. of Pa., 425 F.2d 151 (3d Cir. 1970).
U.S.Checkers Eight Ltd. Partnership v. Hawkins, 241 F.3d 558 (7th Cir. 2001).
End of Document
201.Question of law or fact, 25A C.J.S. Damages 201

Damages
A. In General
201. Question of law or fact
The determination of whether a sum specified in a contract to be paid on its breach is to be considered as
liquidated damages or a penalty generally is a question of law for the court.
As a general rule, the determination whether a purported liquidated-damage clause is actually an impermissible or
unenforceable penalty clause is a question of law 1 for the court, 2 which depends upon the court's construction of
the contract. 3 However, where the facts and circumstances surrounding the contract are in dispute, the question
may be left to the jury. 4
Cases:
Under New York law, whether the payment of a fee after breach of contract is an enforceable liquidation of
damages or an unenforceable penalty is a question of law, giving due consideration to the nature of the contract and
the circumstances. Northern Shipping Funds I, L.L.C. v. Icon Capital Corp., 998 F. Supp. 2d 301 (S.D. N.Y. 2014).
[END OF SUPPLEMENT]
Footnotes
IowaCity of Davenport v. Shewry Corp., 674 N.W.2d 79 (Iowa 2004).
1
Md.Board of Educ. of Talbot County v. Heister, 392 Md. 140, 896 A.2d 342, 208 Ed. Law Rep. 819 (2006).
Law Rep. 915 (2003).
Tex.Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005).
201.Question of law or fact, 25A C.J.S. Damages 201
3
4
Determination of reasonableness question of law

The determination of whether a liquidated-damages provision is reasonable is a question of law for the court.
Vt.Renaudette v. Barrett Trucking Co., Inc., 167 Vt. 634, 712 A.2d 387 (1998).
As to the requirement that a liquidated-damages sum be reasonable, see 198.
Law Rep. 915 (2003).
Tex.Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005).
Or.Foster v. Peterson, 42 Or. App. 249, 600 P.2d 490 (1979) (disavowed on other grounds by, Illingworth v. Bushong,
297 Or. 675, 688 P.2d 379, 39 U.C.C. Rep. Serv. 903 (1984)).
End of Document
202.Intent of parties, 25A C.J.S. Damages 202

Damages
A. In General
202. Intent of parties
Whether a clause is a valid liquidated-damage provision, rather than an illegal penalty, is a matter of the
parties' intent. As a general rule, the intent of the parties will control as to whether a provision in a contract
is for a penalty or for liquidated damages.
Whether a clause is a valid liquidated-damage provision, rather than an illegal penalty, is a matter of the parties'
intent. 1 Thus, as a general rule, the intent of the parties will control as to whether a provision in a contract is for
a penalty or for liquidated damages. 2 In order for the amount provided to be considered as liquidated damages,
it is generally necessary for the parties to have so intended. 3
However, the intent of the parties is not conclusive, 4 and neither the intent of the parties nor their expression of
intent is necessarily the governing factor. 5
Time as of which intent determined.

The intent of the parties is to be determined as of when the contract was entered into. 6
Cases:
In considering the circumstances of the defendant's conduct and the harm to the plaintiff when calculating a
punitive damages award, the most important factor is the degree of reprehensibility of the misconduct, including:
(1) the harm caused was physical as opposed to economic; (2) the tortious conduct evinced an indifference to or
a reckless disregard of the health or safety of others; (3) the target of the conduct had financial vulnerability; (4)
the conduct involved repeated actions or was an insolated incident; and (5) the harm was the result of intentional
202.Intent of parties, 25A C.J.S. Damages 202
malice, trickery, or deceit, or mere accident. Estate of Overbey v. Chad Franklin National Auto Sales North, LLC,
361 S.W.3d 364 (Mo. 2012), petition for cert. filed (U.S. Apr. 30, 2012).
[END OF SUPPLEMENT]
Footnotes
Conn.HH East Parcel, LLC v. Handy and Harman, Inc., 287 Conn. 189, 947 A.2d 916 (2008).
1
U.S.PYCA Industries, Inc. v. Harrison County Waste Water Management Dist., 177 F.3d 351, 43 Fed. R. Serv. 3d
2
1258 (5th Cir. 1999).

Fla.Refram v. Porter, 343 So. 2d 1343 (Fla. Dist. Ct. App. 2d Dist. 1977).
Ga.Southeastern Land Fund, Inc. v. Real Estate World, Inc., 237 Ga. 227, 227 S.E.2d 340 (1976).
Ind.Melfi v. Griscer Industries, Inc., 141 Ind. App. 607, 231 N.E.2d 54 (1967).
S.D.Walter Motor Truck Co. v. State By and Through Dept. of Transp., 292 N.W.2d 321 (S.D. 1980).
U.S.Rockwood & Co. v. Adams, 486 F.2d 110 (10th Cir. 1973).
Colo.Sorenson v. Connelly, 36 Colo. App. 168, 536 P.2d 328 (App. 1975).
Conn.Zalonski v. McMahon, 3 Conn. Cir. Ct. 533, 220 A.2d 35 (1966).
Wis.Moritz v. Broadfoot, 35 Wis. 2d 343, 151 N.W.2d 142 (1967).
U.S.Connelly v. Zee, 366 F. Supp. 1229 (D.V.I. 1973).
Intent as factor to be considered
U.S.Plymouth Village Fire Dist. v. New Amsterdam Cas. Co., 130 F. Supp. 798 (D.N.H. 1955).
Pa.Britsch v. Allebach, 2 Bucks 248 (Pa. C.P. 1953).
Minn.Costello v. Johnson, 265 Minn. 204, 121 N.W.2d 70 (1963).
Tex.Loggins Const. Co. v. Stephen F. Austin State University Bd. of Regents, 543 S.W.2d 682 (Tex. Civ. App. Tyler
1976), writ refused n.r.e., (Apr. 27, 1977).
U.S.Manufacturers Cas. Ins. Co. v. Sho-Me Power Corp., 157 F. Supp. 681 (W.D. Mo. 1957).
Wis.McConnell v. L. C. L. Transit Co., 42 Wis. 2d 429, 167 N.W.2d 226 (1969).
End of Document
203.Form and language of provision, 25A C.J.S. Damages 203

Damages
A. In General
203. Form and language of provision
West's Key Number Digest, Damages 78, 78(1), 78(2)
In the determination of whether a contract provides for liquidated damages or a penalty, the form and
language of the instrument are considered but are not necessarily conclusive.
In general, the form and language of the instrument itself are considered in the determination of whether liquidated
damages or a penalty is provided for. 1 An express statement that a provision is for liquidated damages is entitled
to weight as indicative of the intent of the parties. 2
However, the determination of whether the agreement provides for a penalty or liquidated damages depends on
the substance rather than the form of the transaction. 3 Thus, the language of the contract is not conclusive 4 nor is
the designation given by the parties to the sum specified in the contract controlling as to whether it is a provision
for liquidated damages or for a penalty. 5 Thus, a sum denominated "liquidated damages" by the parties may
nevertheless be held to be a penalty. 6
Footnotes
U.S.Mobil Oil Corp. v. Tennessee Val. Authority, 387 F. Supp. 498 (N.D. Ala. 1974); Connelly v. Zee, 366 F. Supp.
1
2
3
1229 (D.V.I. 1973).

Colo.Connell v. Sun Oil Co., 42 Colo. App. 311, 596 P.2d 1215 (App. 1979).
Ga.Mariner Health Care Management Company v. Sovereign Healthcare, LLC, 306 Ga. App. 873, 703 S.E.2d 687
(2010), cert. denied, (Apr. 18, 2011).
Mo.Sides Const. Co. v. City of Scott City, 581 S.W.2d 443, 12 A.L.R.4th 884 (Mo. Ct. App. S.D. 1979).
Pa.Com., Dept. of Environmental Resources v. Hartford Acc. and Indem. Co., 40 Pa. Commw. 133, 396 A.2d 885
(1979).
U.S.Young Associates, Inc. v. U. S., 200 Ct. Cl. 438, 471 F.2d 618 (1973).
S.D.Walter Motor Truck Co. v. State By and Through Dept. of Transp., 292 N.W.2d 321 (S.D. 1980).
U.S.Rockwood & Co. v. Adams, 486 F.2d 110 (10th Cir. 1973).
203.Form and language of provision, 25A C.J.S. Damages 203
Tenn.Testerman v. Home Beneficial Life Ins. Co., 524 S.W.2d 664, 93 A.L.R.3d 1147 (Tenn. Ct. App. 1974).
Wash.Chandler v. Doran Co., 44 Wash. 2d 396, 267 P.2d 907 (1954).
Ariz.Aztec Film Productions, Inc. v. Quinn, 116 Ariz. 468, 569 P.2d 1366 (Ct. App. Div. 2 1977).
Colo.Grooms v. Rice, 163 Colo. 234, 429 P.2d 298 (1967).
Kan.White Lakes Shopping Center, Inc. v. Jefferson Standard Life Ins. Co., 208 Kan. 121, 490 P.2d 609 (1971).
U.S.United Order of American Bricklayers and Stone Masons Union No. 21 v. Thorleif Larsen & Son, Inc., 519
F.2d 331 (7th Cir. 1975).
Colo.Sorenson v. Connelly, 36 Colo. App. 168, 536 P.2d 328 (App. 1975).
Conn.HH East Parcel, LLC v. Handy and Harman, Inc., 287 Conn. 189, 947 A.2d 916 (2008).
Ill.M. I. G. Investments, Inc. v. Marsala, 92 Ill. App. 3d 400, 47 Ill. Dec. 265, 414 N.E.2d 1381 (2d Dist. 1981).
IowaEngel v. Vernon, 215 N.W.2d 506 (Iowa 1974).
Me.Dairy Farm Leasing Co., Inc. v. Hartley, 395 A.2d 1135 (Me. 1978).
Md.Traylor v. Grafton, 273 Md. 649, 332 A.2d 651 (1975).
N.Y.Truck Rent-A-Center, Inc. v. Puritan Farms 2nd, Inc., 41 N.Y.2d 420, 393 N.Y.S.2d 365, 361 N.E.2d 1015
(1977).
N.D.Circle B Enterprises, Inc. v. Steinke, 1998 ND 164, 584 N.W.2d 97 (N.D. 1998).
Mass.A-Z Servicenter, Inc. v. Segall, 334 Mass. 672, 138 N.E.2d 266 (1956).
Mo.Berger v. McBride & Son Builders, Inc., 447 S.W.2d 18 (Mo. Ct. App. 1969).
End of Document
204.Where intent doubtful, 25A C.J.S. Damages 204

Damages
A. In General
204. Where intent doubtful
Some authority holds that if there is doubt whether a contract provides for liquidated damages or a penalty,
the provision will be construed as a penalty. However, other authority holds that the burden is on the
party challenging the enforceability of the liquidated-damages clause to establish that it is an unenforceable
penalty.
Some courts lean against any interpretation of a contract that will make such a provision one for liquidated
damages. 1 If there is doubt whether a contract provides for liquidated damages or a penalty, the provision will
be construed as a penalty. 2
However, other authority holds that the burden is on the party challenging the enforceability of a liquidateddamages clause to establish that it is an unenforceable penalty clause. 3 Still, other authority holds that any
reasonable doubt as to whether a provision constitutes a penalty or a legitimate liquidated-damages clause should
be resolved in favor of the aggrieved party. 4
Footnotes
Ala.Milton Const. Co., Inc. v. State Highway Dept., 568 So. 2d 784 (Ala. 1990).
1
2
3
4
Doubtful intention
Ala.Milton Const. Co., Inc. v. State Highway Dept., 568 So. 2d 784 (Ala. 1990).
D.C.S. Brooke Purll, Inc. v. Vailes, 850 A.2d 1135 (D.C. 2004).
End of Document
205.Construction, 25A C.J.S. Damages 205

Damages
A. In General
3. Construction, Enforcement, and Recovery
205. Construction
The general rules governing the construction of contracts apply in construing a provision for liquidated
damages.
The general rules governing the construction of contracts apply in construing a provision for liquidated damages. 1
The construction of a provision for liquidated damages is a question of law for the court. 2
Effect of invalid provision.

An invalid provision for liquidated damages or for a penalty will not affect the validity of the other provisions of
the contract if the provision is separable from the other provisions. 3
Footnotes
Haw.Associated Engineers & Contractors, Inc. v. State, 58 Haw. 187, 567 P.2d 397 (1977).
1
N.D.Farmers Union Grain Terminal Ass'n v. Nelson, 223 N.W.2d 494, 16 U.C.C. Rep. Serv. 139 (N.D. 1974).
Wash.Pine Corp. v. Richardson, 12 Wash. App. 459, 530 P.2d 696 (Div. 1 1975).
As to the construction of contracts, generally, see C.J.S., Contracts 385 to 434.
U.S.Trans World Airlines, Inc. v. Travelers Indem. Co., 262 F.2d 321 (8th Cir. 1959).
Or.Harty v. Bye, 258 Or. 398, 483 P.2d 458 (1971) (disavowed on other grounds by, Illingworth v. Bushong, 297
Or. 675, 688 P.2d 379, 39 U.C.C. Rep. Serv. 903 (1984)).
U.S.Mellon Nat. Bank v. Citizens Bank & Trust Co. of Camden, 88 F.2d 128 (C.C.A. 8th Cir. 1937).
Cal.Buley v. Murdoff, 38 Cal. App. 2d 174, 100 P.2d 786 (3d Dist. 1940).
End of Document
206.Enforcement, 25A C.J.S. Damages 206

Damages
A. In General
206. Enforcement
A provision for liquidated damages for breach of a contract cannot be enforced unless there is a valid
contract. Further, in order for a provision for liquidated damages to be enforced, there must be a violation
of the principal contract by the party to be charged.
A provision for liquidated damages for breach of a contract cannot be enforced unless there is a valid contract. 1
When the principal obligation becomes null and void, a secondary obligation for a penalty for failure to perform
the principal obligation likewise becomes null and void. 2
In order for a provision for liquidated damages to be enforced, there must be a violation of the principal contract
by the party to be charged, 3 which must be the breach for which liquidated damages is provided. 4 No recovery of
liquidated damages will be allowed where there is a lawful excuse for nonperformance of the principal contract. 5
Injunctive relief.
A party cannot obtain enforcement of a contract by injunction and, at the same time, claim liquidated damages. 6
Cases:
Under Kansas law, electric company did not need to establish that manufacturer's late delivery of flue gas
desulfurization (FGD) dampers actually delayed company's production schedule in order to recover contractual
liquidated damages; contract for manufacture and delivery of dampers unambiguously required manufacturer to
pay liquidated damages in the event of late delivery, regardless of delay to the project, and contract language
amounted to a concession that manufacturer's failure to deliver on time would cause damages. Wahlcometroflex,
Inc. v. Westar Energy, Inc., 773 F.3d 223 (10th Cir. 2014).
206.Enforcement, 25A C.J.S. Damages 206
Courts should invalidate liquidated damages clauses only with great reluctance and when the facts clearly
demonstrate that it would be unconscionable to decree enforcement of the terms of the contract. Commercial Real
Estate Inv., L.C. v. Comcast of Utah II, Inc., 2012 UT 49, 285 P.3d 1193 (Utah 2012).
[END OF SUPPLEMENT]
Footnotes
U.S.Whitfield Const. Co., Inc. v. Commercial Development Corp., 392 F. Supp. 982 (D.V.I. 1975).
1
2
La.Richmond v. Krushevski, 243 La. 777, 147 So. 2d 212 (1962).

La.Richmond v. Krushevski, 243 La. 777, 147 So. 2d 212 (1962).
N.Y.Educational Beneficial, Inc. v. Reynolds, 67 Misc. 2d 739, 324 N.Y.S.2d 813, 9 U.C.C. Rep. Serv. 570 (N.Y.
City Civ. Ct. 1971).
As to collection of actual damages when a liquidated-damages provision is invalid, see 212.
U.S.Carolinas Cotton Growers Ass'n, Inc. v. Arnette, 371 F. Supp. 65 (D.S.C. 1974).
Tex.Blakeway v. National Credit Corp., 439 S.W.2d 155 (Tex. Civ. App. Austin 1969), writ refused n.r.e., (June
18, 1969).
Wis.Locke v. Bort, 10 Wis. 2d 585, 103 N.W.2d 555, 81 A.L.R.2d 1331 (1960).
Ill.Hayden v. Keepper-Nagel, Inc., 62 Ill. App. 3d 828, 19 Ill. Dec. 601, 379 N.E.2d 116 (2d Dist. 1978).
Tex.St. Joseph Professional Bldg. Co. v. New York Life Ins. Co., 449 S.W.2d 848 (Tex. Civ. App. Houston 14th
Dist. 1970), writ refused n.r.e., (Apr. 15, 1970).
U.S.McGovney & McKee, Inc. v. City of Berea, Ky., 448 F. Supp. 1049 (E.D. Ky. 1978), aff'd, 627 F.2d 1091
(6th Cir. 1980).
La.Hughes v. Breazeale, 240 La. 126, 121 So. 2d 510 (1960).
La.Termplan Arabi, Inc. v. Carollo, 299 So. 2d 831 (La. Ct. App. 4th Cir. 1974), writ denied, 302 So. 2d 29 (La.
1974).
End of Document
207.Mutual default, 25A C.J.S. Damages 207

Damages
A. In General
207. Mutual default
As a general rule, the party seeking to enforce a provision for liquidated damages must not be in default.
As a general rule, the party seeking to enforce a provision for liquidated damages must not be in default. 1 While
some courts hold that liquidated damages may be apportioned in the event that both parties are in default, 2 other
authority will not attempt to apportion liquidated damages in the case of mutual defaults in the absence of a
contract provision for apportionment. 3
Footnotes
Mont.Figgins v. Stevenson, 163 Mont. 425, 517 P.2d 735 (1973).
1
Wash.Baldwin v. National Safe Depository Corp., 40 Wash. App. 69, 697 P.2d 587, 41 U.C.C. Rep. Serv. 471 (Div.
3 1985).
Mutual blame for delay
A contract defendant is not entitled to liquidated damages where both the plaintiff and the defendant are to blame for
the plaintiff's delayed completion of the project.
Mass.Peabody N.E., Inc. v. Town of Marshfield, 426 Mass. 436, 689 N.E.2d 774 (1998).
Effect of anticipatory breach

A purchaser's letter to the vendors stating that he could not perform on the closing date and requesting a new
agreement constituted an anticipatory breach, precluding the purchaser from recovering payments forfeited pursuant
to a liquidated-damages clause.
Wash.Wallace Real Estate Inv., Inc. v. Groves, 124 Wash. 2d 881, 881 P.2d 1010 (1994).
U.S.U. S. ex rel. Thorleif Larsen & Son, Inc. v. B. R. Abbot Const. Co., 466 F.2d 712 (7th Cir. 1972).
Wash.Baldwin v. National Safe Depository Corp., 40 Wash. App. 69, 697 P.2d 587, 41 U.C.C. Rep. Serv. 471 (Div.
3 1985).
N.C.Terry's Floor Fashions, Inc. v. Crown General Contractors, Inc., 184 N.C. App. 1, 645 S.E.2d 810 (2007), aff'd,
362 N.C. 669, 669 S.E.2d 321 (2008) (mutual defaults causing delay in construction contract).
End of Document
208.Necessity of actual damages, 25A C.J.S. Damages 208

Damages
A. In General
208. Necessity of actual damages
As a general rule, proof of actual damage is unnecessary in order to recover a sum as liquidated damages.
As a general rule, proof of actual damage is unnecessary in order to recover a sum as liquidated damages. 1
However, if it appears that no damages have been sustained, a provision for liquidated damages may not be
enforced in some jurisdictions. 2
Footnotes
U.S.Southwest Engineering Co. v. U.S., 341 F.2d 998 (8th Cir. 1965).
1
Colo.Niccoli v. Denver Burglar Alarm, Inc., 490 P.2d 304 (Colo. App. 1971).
Conn.Litton Industries Credit Corp. v. Catanuto, 175 Conn. 69, 394 A.2d 191 (1978).
Md.Traylor v. Grafton, 273 Md. 649, 332 A.2d 651 (1975).
OhioUSS Great Lakes Fleet, Inc. v. Spitzer Great Lakes, Ltd., 85 Ohio App. 3d 737, 621 N.E.2d 461 (9th Dist.
Lorain County 1993).
Cal.Kenworthy v. State, 236 Cal. App. 2d 378, 46 Cal. Rptr. 396 (3d Dist. 1965).
Conn.Norwalk Door Closer Co. v. Eagle Lock & Screw Co., 153 Conn. 681, 220 A.2d 263 (1966).
Pa.Chanoff v. Fiala, 440 Pa. 424, 271 A.2d 285 (1970).
End of Document
209.Waiver, 25A C.J.S. Damages 209

Damages
A. In General
209. Waiver
A party may waive his or her claim to liquidated damages.
A party may waive his or her claim to liquidated damages. 1 Where there has been a waiver of the right to require
performance of the contract in the time and manner shown, there cannot be a recovery of a liquidated sum as
damages for its breach. 2
Footnotes
U.S.Johnson v. Childs, 407 F.2d 395 (3d Cir. 1969).
1
Nev.Walden v. Backus, 81 Nev. 634, 408 P.2d 712 (1965).
Factors considered
Me.Interstate Indus. Uniform Rental Service, Inc. v. Couri Pontiac, Inc., 355 A.2d 913 (Me. 1976).
La.Herron v. Sparkle Homes Corp., 225 So. 2d 700 (La. Ct. App. 4th Cir. 1969).
Me.Interstate Indus. Uniform Rental Service, Inc. v. Couri Pontiac, Inc., 355 A.2d 913 (Me. 1976).
No waiver shown
U.S.Vanderbilt University v. DiNardo, 174 F.3d 751, 134 Ed. Law Rep. 766, 1999 FED App. 0135P (6th Cir. 1999).
End of Document
210.Obligation to mitigate damages, 25A C.J.S. Damages 210

Damages
A. In General
210. Obligation to mitigate damages
Generally, a person seeking to enforce a provision for liquidated damages is not required to show that he
or she attempted to mitigate his or her damages.
A person seeking to enforce a provision for liquidated damages generally is not required to show that he or she
attempted to mitigate his or her damages. 1 However, in a particular jurisdiction, a person against whom a breach
has been committed may have an obligation to use such means as are reasonable under the circumstances to avoid
or minimize the damages. 2
Footnotes
1
Minn.Ramseth v. City Agency, Inc., 264 Minn. 147, 118 N.W.2d 219 (1962).
R.ICady v. IMC Mortg. Co., 862 A.2d 202 (R.I. 2004).
N.Y.Konner Rental Corp. v. Pedone, 50 Misc. 2d 69, 269 N.Y.S.2d 463 (Sup 1966).
Duty of attorney to mitigate damages upon termination of retainer agreement
Ga.AFLAC, Inc. v. Williams, 264 Ga. 351, 444 S.E.2d 314 (1994).
End of Document
211.Amount of recovery, 25A C.J.S. Damages 211

Damages
A. In General
211. Amount of recovery
Where a contract contains a provision for liquidated damages, the stipulation controls as to the rights of
the parties and must be given effect according to its terms.
Where a contract contains a provision for liquidated damages, the stipulation controls as to the rights of the
parties 1 and must be given effect according to its terms. 2 The injured party cannot disregard the provision as to
liquidated damages and recover general damages for the breach of the contract, measured by the actual damages
suffered. 3 The amount of recovery is limited by a valid liquidated-damages provision notwithstanding the fact
that the actual damages may be in excess of the stipulated sum 4 or less than that amount. 5
Mutually exclusive remedies; election.

Liquidated damages and actual damages are, absent express language permitting recovery of both, mutually
exclusive remedies. 6 Where an election is permitted, the election of one remedy bars pursuit of the other. 7
Cases:
Under Rhode Island law, hotel renovation project owner was not entitled to collect from general contractor under
liquidated damages clause in construction contract, absent evidence that general contractor caused delay in project,
and evidence regarding what losses, if any, it sustained as a result of such delay. Allstate Interiors & Exteriors,
Inc. v. Stonestreet Const., LLC, 907 F. Supp. 2d 216 (D.R.I. 2012).
Liquidated damages provision of agreement for the lease and then purchase of vendor's residence, which allowed
vendor to keep purchasers' $10,000 in earnest money "in full settlement of all claims" against purchasers, barred
vendor from seeking separate damages for breach of the lease; lease/purchase agreement referred to the attached
lease as being "made a part of this Agreement," and provided that breach of the lease would constitute breach of
the lease/purchase agreement, such that vendor's retention of the earnest money extinguished his claim under the
lease. Rumsey v. Gillis, 329 Ga. App. 488, 765 S.E.2d 665 (2014).
[END OF SUPPLEMENT]
Footnotes
U.S.Fletcher v. U.S., 303 F. Supp. 583 (N.D. Ind. 1967), aff'd and adopted, 436 F.2d 413 (7th Cir. 1971).
1
5
6
7
Colo.Fuels Research Corp. v. Roberts, 170 Colo. 46, 458 P.2d 751 (1969).
W.Va.Stonebraker v. Zinn, 169 W. Va. 259, 286 S.E.2d 911 (1982).
Colo.Carnes v. Arapahoe Vending, Inc., 487 P.2d 593 (Colo. App. 1971).
La.Elite Homes, Inc. v. Herrmann, 242 So. 2d 614 (La. Ct. App. 4th Cir. 1970), writ denied, 257 La. 984, 244 So.
2d 857 (1971).
Or.Weber v. Anspach, 256 Or. 479, 473 P.2d 1011 (1970) (disavowed on other grounds by, Illingworth v. Bushong,
297 Or. 675, 688 P.2d 379, 39 U.C.C. Rep. Serv. 903 (1984)).
Md.Guardian Const. Co., Inc. v. Dinkin, 267 Md. 325, 297 A.2d 242 (1972).
N.C.City of Kinston v. Suddreth, 266 N.C. 618, 146 S.E.2d 660 (1966).
Or.Heinkel v. City of Corvallis, 13 Or. App. 375, 510 P.2d 579 (1973).
Wash.Brower Co. v. Garrison, 2 Wash. App. 424, 468 P.2d 469 (Div. 1 1970).
Cal.Zurich Ins. Co. v. Kings Industries, Inc., 255 Cal. App. 2d 919, 63 Cal. Rptr. 585 (2d Dist. 1967).
Colo.Larson v. American Nat. Bank of Denver, 174 Colo. 424, 484 P.2d 1230 (1971).
Md.Kasten Const. Co. v. Anne Arundel County, 262 Md. 482, 278 A.2d 282 (1971).
N.M.Gruschus v. C. R. Davis Contracting Co., 75 N.M. 649, 409 P.2d 500, 2 U.C.C. Rep. Serv. 1080 (1965).
N.Y.Richter's Estate v. Novo Corp., 43 A.D.2d 1, 349 N.Y.S.2d 101 (1st Dep't 1973).
Recovery limited by clear and unambiguous liquidated-damages provision
U.S.Home Valu, Inc. v. Pep Boys, 213 F.3d 960 (7th Cir. 2000) (applying Wisconsin law).
End of Document
212.Amount of recoveryWhere liquidated-damages..., 25A C.J.S. Damages ...

Damages
A. In General
212. Amount of recoveryWhere liquidated-damages clause invalid
If a liquidated-damages clause in a contract is unenforceable, the nonbreaching party is entitled to
compensation for its actual damages.
If a liquidated-damages clause in a contract is unenforceable, as where the clause is held to be a penalty, 1 the
nonbreaching party is entitled to compensation for its actual damages. 2
Footnotes
1
2
Rep. 658 (2011).

Rep. 658 (2011).
End of Document
Research References, 25A C.J.S. Damages V B Refs.
25A C.J.S. Damages V B Refs.

Damages
B. Particular Matters
Research References
A.L.R. Library
West's A.L.R. Digest, Damages 76 , 78 , 78(4) , 81
End of Document
213.Retention of deposits and part payments, 25A C.J.S. Damages 213

Damages
213. Retention of deposits and part payments
A deposit or down payment is not to be treated as liquidated damages unless the parties have so agreed.
A deposit or down payment is not to be treated as liquidated damages unless the parties have so agreed. 1 However,
the designation of a deposit as "liquidated damages" evidences the parties' intention to limit the seller's recovery
to the stipulated amount. 2
A stipulation that an amount deposited by one party to be paid to, or retained by, the other party in case of default
generally evidences an intent to liquidate the damages. 3 On the other hand, a provision for the forfeiture of a
deposit in case of any breach, regardless of the extent thereof or the actual damages resulting from the breach,
may be considered a penalty. 4
Cases:
Auction sale purchase agreement for real property, providing that upon forfeiture of purchaser's earnest money
deposit, "the seller may sue for specific performance" did not render specific performance the vendor's exclusive
remedy, as could support argument that earnest money forfeiture clause was liquidated damages clause rather than
unenforceable penalty, even though agreement made no mention of remedies other than specific performance;
specific performance provision used permissive language, and providing vendor with remedy did not necessarily
make such remedy exclusive. Dean V. Kruse Foundation, Inc. v. Gates, 973 N.E.2d 583 (Ind. Ct. App. 2012).
[END OF SUPPLEMENT]
Footnotes
U.S.Blair Intern., Ltd. v. LaBarge, Inc., 675 F.2d 954, 33 U.C.C. Rep. Serv. 1242 (8th Cir. 1982).
1
Tex.C & W Manhattan Associates v. Lively, 588 S.W.2d 671 (Tex. Civ. App. Beaumont 1979).
UtahPark Valley Corp. v. Bagley, 635 P.2d 65 (Utah 1981).
213.Retention of deposits and part payments, 25A C.J.S. Damages 213

A.L.R. Library
Provision in land contract for liquidated damages upon default of purchaser as affecting right of vendor to maintain
action for damages for breach of contract, 39 A.L.R.5th 33.
Cal.Wade v. Lake County Title Co., 6 Cal. App. 3d 824, 86 Cal. Rptr. 182 (1st Dist. 1970).
Conn.Vines v. Orchard Hills, Inc., 181 Conn. 501, 435 A.2d 1022 (1980).
Fla.Salmon v. Rober Bros., Inc., 351 So. 2d 1105 (Fla. Dist. Ct. App. 4th Dist. 1977).
Ill.H. F. Philipsborn & Co. v. Suson, 59 Ill. 2d 465, 322 N.E.2d 45 (1974).
Kan.White Lakes Shopping Center, Inc. v. Jefferson Standard Life Ins. Co., 208 Kan. 121, 490 P.2d 609 (1971).
Ky.Uncle George Orphans Home, Inc. v. Landrum, 551 S.W.2d 582 (Ky. Ct. App. 1977).
La.Short v. Mossy Motors, Inc., 354 So. 2d 734 (La. Ct. App. 4th Cir. 1978).
Mass.Kelly v. Marx, 428 Mass. 877, 705 N.E.2d 1114 (1999).
Neb.Bando v. Cole, 197 Neb. 722, 250 N.W.2d 651, 4 A.L.R.4th 987 (1977).
N.Y.Joint Industry Bd. of Painting and Decorating Industry v. Kaplan, 66 Misc. 2d 427, 320 N.Y.S.2d 452 (N.Y.
City Civ. Ct. 1971).
Or.Huszar v. Certified Realty Co., 278 Or. 29, 562 P.2d 1184 (1977).
Tex.Dickey v. Johnson, 513 S.W.2d 876 (Tex. Civ. App. Eastland 1974), writ refused n.r.e., (Jan. 29, 1975).
UtahFoote v. Taylor, 635 P.2d 46 (Utah 1981).
Wash.Mahoney v. Tingley, 85 Wash. 2d 95, 529 P.2d 1068 (1975).
Ga.Budget-Luxury Inn of Dayton, Ltd. v. Kamash Enterprises, Inc., 194 Ga. App. 375, 390 S.E.2d 607 (1990).
End of Document
214.Delay in timely performance, 25A C.J.S. Damages 214

Damages
214. Delay in timely performance
West's Key Number Digest, Damages
78, 78(4)
A.L.R. Library
Liability of contractor who abandons building project before completion for liquidated damages for delay,
15 A.L.R.5th 376.
Contractual provision for per diem payments for delay in performance as one for liquidated damages or
penalty, 12 A.L.R.4th 891
Stipulations for stated amounts to be paid as damages for delay in performance are usually construed as
for liquidated damages.
Where a party has defaulted in the performance of some contract involving a stipulation of forfeiture in case of a
failure in timely performance, the courts as a general rule construe the stipulation as liquidated damages, 1 when
it is clear that the parties intended to authorize such damages in their contract, 2 unless it can be seen from the
evidence that the forfeiture is disproportionate to the breach. 3
A provision for a stipulated sum, computed in proportion to the duration of the default, will generally be upheld as
one for liquidated damages. 4 Liquidated-damages provisions that are meant to provide an honest and legitimate
estimate of damages in case of delay, to promote economic efficiency, and to provide for alternative resolution of
contract disputes are consistent with public policy as a means of inducing timely performance. 5
Footnotes
U.S.Hughes Bros. v. U. S., 133 Ct. Cl. 108, 134 F. Supp. 471 (1955).
1
Stipulation determined to be for liquidated damages

Mass.City of Boston v. New England Sales & Mfg. Corp., 386 Mass. 820, 438 N.E.2d 68 (1982).
As to such clauses in contracts for building, see 217.
214.Delay in timely performance, 25A C.J.S. Damages 214
N.J.218-220 Market Street Corp. v. Krich-Radisco, Inc., 124 N.J.L. 302, 11 A.2d 109 (N.J. Ct. Err. & App. 1940).
Stipulations determined to be for penalties
U.S.Hellenic Lines, Ltd. v. Embassy of Pakistan, 467 F.2d 1150 (2d Cir. 1972); S.O.G.-San Ore-Gardner v. Missouri
Pac. R. Co., 658 F.2d 562 (8th Cir. 1981).
Ind.Skendzel v. Marshall, 261 Ind. 226, 301 N.E.2d 641 (1973).
Excessive sum
U.S.Barnes v. Sind, 223 F. Supp. 572 (D. Md. 1963).
U.S.In re Lion Overall Co., 55 F. Supp. 789 (S.D. N.Y. 1943), order aff'd, 144 F.2d 75, 154 A.L.R. 1250 (C.C.A.
2d Cir. 1944).
Ga.Georgia Ports Authority v. Norair Engineering Corp., 127 Ga. App. 864, 195 S.E.2d 199 (1973).
UtahReliance Ins. Co. v. Utah Dept. of Transp., 858 P.2d 1363 (Utah 1993).
End of Document

Damages
C. Particular Classes of Contracts
215. Generally
West's Key Number Digest, Damages 78, 78(3), 78(5), 78(6)
The general rules as to whether a stipulation calls for a penalty or provides for liquidated damages have
been applied to contracts for the sale of real and personal property and to lease agreements.
The general rules as to whether a stipulation calls for a penalty or provides for liquidated damages 1 have been
applied to provisions in contracts for the sale or purchase of personal property 2 and real property 3 and to
provisions in lease agreements. 4
Cases:
Lease addendum providing for liquidated damages or an early termination fee, which was in the form prescribed
by statute for such an addendum, was enforceable against tenant, even though lease itself did not provide for
liquidated damages or an early termination fee; addendum was signed at the same time lease was signed and
as part of the same transaction, such that addendum became part of the lease, and thereby satisfying statutory
requirement that liquidated damages or an early termination fee be "as provided in the rental agreement." West's
F.S.A. 83.595(4). Wilson v. Terwillinger, 140 So. 3d 1122 (Fla. 5th DCA 2014).
Chargeback provisions in contract for purchase of lighted inflatable holiday snowmen were void as penalties
under the Uniform Commercial Code (UCC) in action by buyer against seller for breach of contract, where buyer
did not attempt to determine a chargeback amount that was reasonable in light of anticipated or actual harm,
buyer's employees testified that it suffered no actual damages as a result of seller's substitution of eight-foot banner
snowmen instead of nine-foot waving snowmen, and record showed that buyer suffered no actual damages, but
chargebacks assessed by buyer for unauthorized substitution totaled approximately $79,500. V.T.C.A., Bus. &
C. 2.718(a). Garden Ridge, L.P. v. Advance Intern., Inc., 403 S.W.3d 432, 80 U.C.C. Rep. Serv. 2d 548 (Tex.
App. Houston 14th Dist. 2013).
[END OF SUPPLEMENT]
Footnotes
As to the general rules concerning whether or not a contractual provision calls for liquidated damages or a penalty,
1
2
see 200 to 204.

Fla.Paradis v. Second Ave. Used Car Co., 61 So. 2d 919 (Fla. 1952).
Okla.Massey v. Love, 1970 OK 199, 478 P.2d 948 (Okla. 1970).
Contractual liquidated damages provisions under U.C.C. Article 2, 98 A.L.R.3d 586.
Cal.Behrendt v. Abraham, 64 Cal. 2d 182, 49 Cal. Rptr. 292, 410 P.2d 828 (1966).
La.Wendel v. Dixon Real Estate Co., 232 So. 2d 791 (La. Ct. App. 4th Cir. 1970).
W.Va.Stonebraker v. Zinn, 169 W. Va. 259, 286 S.E.2d 911 (1982).
Enforceable unless penalty
Liquidated-damages provisions in real estate contacts are enforceable unless they are determined to be a penalty.
Ill.Berggren v. Hill, 401 Ill. App. 3d 475, 340 Ill. Dec. 628, 928 N.E.2d 1225 (1st Dist. 2010).
A.L.R. Library
Provision in land contract for liquidated damages upon default of purchaser as affecting right of vendor to maintain
action for damages for breach of contract, 39 A.L.R.5th 33.
Ga.Concrete Materials of Georgia, Inc. v. Smith & Plaster Co. of Georgia, 127 Ga. App. 817, 195 S.E.2d 219 (1973).
Or.Ficker v. Diefenbach, 34 Or. App. 241, 35 Or. App. 829, 578 P.2d 467 (1978).
N.Y.Fairfield Lease Corp. v. 717 Pharmacy, Inc., 109 Misc. 2d 1072, 441 N.Y.S.2d 621 (N.Y. City Civ. Ct. 1981),
judgment aff'd, 117 Misc. 2d 304, 460 N.Y.S.2d 1023 (App. Term 1983).
Tex.Mayfield v. Hicks, 575 S.W.2d 571 (Tex. Civ. App. Dallas 1978), writ refused n.r.e., (June 6, 1979).
Unenforceability on public-policy grounds
U.S.In re Trans World Airlines, Inc., 145 F.3d 124 (3d Cir. 1998).
End of Document
216.Contracts for the payment of money, 25A C.J.S. Damages 216

Damages
216. Contracts for the payment of money
West's Key Number Digest, Damages 78, 78(3), 78(5), 78(6)
The ordinary rules as to liquidated damages generally are inapplicable to contracts for the payment of
only money.
The ordinary rules as to liquidated damages generally are inapplicable to contracts for the payment of only
money. 1 In such cases, the courts may construe a provision for the payment of a stipulated sum on default as a
penalty 2 on the theory that damages for the breach of contracts for the payment of money neither require nor are
susceptible of liquidation by the parties, interest being the legal measure of damages in all such cases. 3 However,
where the contract is not simply one for the payment of a definite sum of money and the facts and circumstances
of the case bring it within the application of the general rules as to when a provision will be deemed to be one
for liquidated damages, it will be so held. 4
Interest rate.
An agreement for a higher interest rate after maturity of a monetary obligation than before is not necessarily a
penalty provided that it is not higher than the lawful maximum. 5 However, stipulations for an excessive rate of
interest after maturity are ordinarily regarded as penalties and not liquidated damages. 6
Footnotes
R.I.Muirhead v. Fairlawn Enterprise, 72 R.I. 163, 48 A.2d 414 (1946).
1
N.Y.Manhattan Syndicate, Inc. v. Ryan, 14 A.D.2d 323, 220 N.Y.S.2d 337 (1st Dep't 1961).
2
3
4
5
UtahReed v. Armstrong, 6 Utah 2d 291, 312 P.2d 777 (1957).

Mo.Willis v. Community Developers, Inc., 563 S.W.2d 104 (Mo. Ct. App. 1978).
N.Y.Gilad Realty Corp. v. Ripley Pitkin Ave., Inc., 48 A.D.2d 683, 368 N.Y.S.2d 228 (2d Dep't 1975).
Ill.Pierce v. B & C Elec., Inc., 104 Ill. App. 3d 309, 60 Ill. Dec. 65, 432 N.E.2d 964 (1st Dist. 1982).
U.S.Ruskin v. Griffiths, 269 F.2d 827 (2d Cir. 1959).
N.M.First Nat. Bank in Albuquerque v. Energy Equities Inc., 91 N.M. 11, 569 P.2d 421, 22 U.C.C. Rep. Serv. 716
(Ct. App. 1977).
216.Contracts for the payment of money, 25A C.J.S. Damages 216
Interest in excess of legal rate

A provision for interest in excess of the permissible legal rate and in excess of the rate charged before default was
unenforceable as a penalty.
N.J.Lesser v. Strubbe, 56 N.J. Super. 274, 152 A.2d 409 (Ch. Div. 1959).
U.S.In re Tastyeast, Inc., 126 F.2d 879 (C.C.A. 3d Cir. 1942).
End of Document
217.Building and construction contracts, 25A C.J.S. Damages 217

Damages
217. Building and construction contracts
In contracts for building, the courts often have construed forfeiture clauses as liquidated damages rather
than as a penalty.
The question as to whether a contractual provision calls for liquidated damages or a penalty very frequently arises
under contracts for building, and the courts often have construed forfeiture clauses in case of a failure in timely
performance as liquidated damages rather than as a penalty 1 usually because of the uncertainty in calculating
the damages claimed. 2 However, where it can be determined from a consideration of the contract, and the intent
and circumstances of the parties, that the agreement was really intended or should be construed as a penalty, the
courts will not hesitate to construe it as such. 3
Footnotes
U.S.In re Phoenix Restoration Specialists, Inc., 14 B.R. 115 (Bankr. D. Mass. 1981).
1
Cal.Westinghouse Electric Corp. v. County of Los Angeles, 129 Cal. App. 3d 771, 181 Cal. Rptr. 332 (2d Dist. 1982).
La.Southern Const. Co. v. Housing Authority of City of Opelousas, 250 La. 569, 197 So. 2d 628 (1967).
Nev.Spinella v. B-Neva Inc., 94 Nev. 373, 580 P.2d 945 (1978).
As to the difficulty of measuring damages as a factor to be considered, see 197.
As to stipulations for stated amounts to be paid as damages for delay in performance as liquidated-damages clauses,
generally, see 214.
2
3
A.L.R. Library
Liability of contractor who abandons building project before completion for liquidated damages for delay, 15 A.L.R.5th
376.
Neb.Abel Const. Co. v. School Dist. of Seward, Seward County, 188 Neb. 166, 195 N.W.2d 744 (1972).
Wash.Lee v. Bergesen, 58 Wash. 2d 462, 364 P.2d 18 (1961).
Colo.Medema Homes, Inc. v. Lynn, 647 P.2d 664 (Colo. 1982).
S.D.Dave Gustafson & Co. v. State, 83 S.D. 160, 156 N.W.2d 185 (1968).
End of Document
218.Employment contracts, 25A C.J.S. Damages 218

Damages
218. Employment contracts
80, 80(1)
A.L.R. Library
Validity and enforceability of provision that employer shall be liable for stipulated damages on breach of
employment contract, 40 A.L.R.4th 285
What Constitutes "Willful" Violation under Age Discrimination in Employment Act (29 U.S.C.A. ss626 et
seq) Entitling Victim to Liquidated Damages, 165 A.L.R. Fed. 1
Right to jury trial in action by Secretary of Labor to recover back wages under 29 U.S.C.A. sec. 217 and
liquidated damages under 29 U.S.C.A. sec. 216(c) for violation of wage and hour provisions of Fair Labor
Standards Act, 95 A.L.R. Fed. 861
Liquidated damages for violation of wage and hour provisions of Fair Labor Standards Act, 26 A.L.R.
Fed. 607
Stipulations for specified amounts as damages for breach of employment contracts may be valid as for
liquidated damage, provided that they are reasonable.
Stipulations as to the damages for breach of a contract of employment are generally construed as providing for
liquidated damages in view of the difficulty of determining actual damages in such cases, 1 but the stipulation
must be reasonable and bear some proportion to the breach complained of. 2 A provision for payment to an
employee on discharge will more readily be upheld as liquidated damages where the sum to be paid is graduated
in accordance with the time when the employment contract has to run. 3 Where the employee's compensation is
based on commissions for sales, the difficulty of determining damages may support a provision for liquidated
damages on his or her discharge. 4
Footnotes
Cal.Bach v. Curry, 258 Cal. App. 2d 676, 66 Cal. Rptr. 220 (1st Dist. 1968).
1
Ga.Sanders v. Carney, 118 Ga. App. 576, 164 S.E.2d 856 (1968).
Or.Bramhall v. ICN Medical Laboratories, Inc., 284 Or. 279, 586 P.2d 1113 (1978).
Liquidated damages conditioned on employer's breach of contract
218.Employment contracts, 25A C.J.S. Damages 218
2
3
4

Ariz.Davis v. Tucson Arizona Boys Choir Soc., 137 Ariz. 228, 669 P.2d 1005 (Ct. App. Div. 2 1983).
S.D.Anderson v. Cactus Heights Country Club, 80 S.D. 417, 125 N.W.2d 491 (1963).
N.Y.Marvel v. Lilli Ann Corp., 28 Misc. 2d 979, 215 N.Y.S.2d 432 (Sup 1961), judgment aff'd, 15 A.D.2d 565, 223
N.Y.S.2d 122 (2d Dep't 1961), judgment aff'd, 11 N.Y.2d 938, 228 N.Y.S.2d 826, 183 N.E.2d 227 (1962).
End of Document
219.Noncompetition agreements, 25A C.J.S. Damages 219

Damages
219. Noncompetition agreements
West's Key Number Digest, Damages 78, 78(3), 78(5), 78(6), 79, 79(3)
A provision for stated damages for breach of an agreement not to engage in a particular business or
profession, within stated limits, will generally be construed as for liquidated damages.
Where a contract has been made not to engage in any particular profession or business within stated limits, the
courts generally construe such an agreement as for liquidated damages, rather than as for a penalty, 1 in the absence
of any evidence to show that the amount of damages claimed is unjust or oppressive. 2 The decisions in this class
of cases are usually based on the fact that the damages are uncertain and cannot be estimated. 3
However, where the damage resulting from a breach of a restrictive covenant in an employment contract is the
loss of a part or the whole of a specific client's business, and those damages are not sufficiently difficult to prove,
a liquidated-damages clause will be regarded as an unenforceable penalty. 4 Moreover, where the sum provided
is excessive, it constitutes a penalty. 5
Invalid covenant.
If the covenant not to compete is invalid, a provision for payment on its breach falls with it whether the provision
is viewed as calling for a penalty or liquidated damages. 6
Footnotes
U.S.USAchem, Inc. v. Goldstein, 512 F.2d 163 (2d Cir. 1975).
1
Colo.Grund v. Wood, 490 P.2d 955 (Colo. App. 1971).

Mich.Roland v. Kenzie, 11 Mich. App. 604, 162 N.W.2d 97, 62 A.L.R.3d 912 (1968).
N.Y.Beacon Plastic & Metal Products, Inc. v. Corn Products Co., 57 Misc. 2d 634, 293 N.Y.S.2d 429 (App. Term
1968).
Wash.Ashley v. Lance, 80 Wash. 2d 274, 493 P.2d 1242, 62 A.L.R.3d 962 (1972).
Cal.Farthing v. San Mateo Clinic, 143 Cal. App. 2d 385, 299 P.2d 977 (1st Dist. 1956).
Wash.Management, Inc. v. Schassberger, 39 Wash. 2d 321, 235 P.2d 293 (1951).
219.Noncompetition agreements, 25A C.J.S. Damages 219
4
5
Reasonable estimate of potential loss of revenue

A provision in a noncompetition agreement that required a former employee to pay his former employer was enforceable
where the sum specified was a reasonable estimate of the former employer's potential loss of revenue.
Me.Brignull v. Albert, 666 A.2d 82 (Me. 1995).
Mich.Roland v. Kenzie, 11 Mich. App. 604, 162 N.W.2d 97, 62 A.L.R.3d 912 (1968).
Sale of business
Wash.Mead v. Anton, 33 Wash. 2d 741, 207 P.2d 227, 10 A.L.R.2d 588 (1949).
N.H.Technical Aid Corp. v. Allen, 134 N.H. 1, 591 A.2d 262 (1991).
Fla.Cherry, Bekaert & Holland v. LaSalle, 413 So. 2d 436 (Fla. Dist. Ct. App. 3d Dist. 1982).
La.Gauthier v. Magee, 141 So. 2d 837 (La. Ct. App. 4th Cir. 1962).
Wash.Management, Inc. v. Schassberger, 39 Wash. 2d 321, 235 P.2d 293 (1951).
La.Gauthier v. Magee, 141 So. 2d 837 (La. Ct. App. 4th Cir. 1962).
Wis.Union Central Life Ins. Co. v. Balistrieri, 19 Wis. 2d 265, 120 N.W.2d 126 (1963).
End of Document
220.Government contracts, 25A C.J.S. Damages 220

Damages
220. Government contracts
West's Key Number Digest, Damages 76, 78, 78(3), 78(5), 78(6)
The general rules for determining whether a provision is for liquidated damages or for a penalty are applied
with respect to governments.
The general rules for determining whether a provision is for liquidated damages or for a penalty are applied
with respect to governments. 1 Liquidated-damages clauses in public contracts are not disfavored so long as they
constitute a fair and reasonable attempt to fix just compensation for an anticipated loss caused by a breach of
contract, and the harm from the breach is incapable or nearly incapable of accurate estimation. 2
Provisions for compensation for delay in performance generally are valid, 3 particularly where the amount is in
proportion to the duration of the default. 4 However, a liquidated-damages clause in a federal government contract
is an unenforceable penalty if there is no reasonable correlation between the amount of liquidated damages and
the probable loss to the government as a result of a delay in performance. 5
Footnotes
U.S.J. D. Streett & Co., v. U. S., 256 F.2d 557 (8th Cir. 1958); Taylor v. U.S., 138 Ct. Cl. 524, 150 F. Supp. 567
1
2
3
4
5
(1957).
U.S.DJ Mfg. Corp. v. U.S., 33 Fed. Cl. 357 (1995), aff'd, 86 F.3d 1130 (Fed. Cir. 1996).
U.S.Weldon Farm Products, Inc. v. Commodity Credit Corp., 214 F. Supp. 678 (D. Minn. 1963); Hughes Bros. v.
U. S., 133 Ct. Cl. 108, 134 F. Supp. 471 (1955).
As to stipulations concerning delay in performance, generally, see 214.
U.S.Broderick Wood Products Co. v. U.S., 195 F.2d 433 (10th Cir. 1952).
U.S.DJ Mfg. Corp. v. U.S., 33 Fed. Cl. 357 (1995), aff'd, 86 F.3d 1130 (Fed. Cir. 1996).
End of Document
Research References, 24 C.J.S. Damages VI Refs.
24 C.J.S. Damages VI Refs.

Damages
VI. Exemplary or Punitive Damages
Research References
A.L.R. Library
West's A.L.R. Digest, Damages 87 to 94.10, 181, 208(8)
End of Document
Research References, 25A C.J.S. Damages VI A Refs.
25A C.J.S. Damages VI A Refs.

Damages
A. In General
Research References
A.L.R. Library
West's A.L.R. Digest, Damages 87 , 208(8)
End of Document

Damages
A. In General
1. Nature and Theory
221. Generally
An award of punitive damages as a supplement to a compensatory damages award in egregious cases has
long been recognized.
General tort law provides plaintiffs with two types of monetary remedies: compensatory damages and exemplary
damages. 1 An award of punitive damages as a supplement to a compensatory damage award in egregious cases
has long been recognized. 2
Punitive damages are awarded on grounds of public policy 3 and serve important policy objectives. 4 Unlike
compensatory damages, 5 punitive damages serve the public interest by punishing, penalizing, and deterring the
wrongdoer. 6 Punitive or exemplary damages are concerned with the conduct of the tortfeasor rather than with
the damages of the victim and are regarded as a fine or penalty for the protection of the public interest. 7 They are
a tool to deter the wrongdoer and are for society's benefit, not the litigating party's. 8 Thus, an award of punitive
damages, though perhaps justified for societal reasons of deterrence, is a boon for the plaintiff, 9 and such damages
constitute a windfall. 10
Punitive damages and exemplary damages as synonymous.

Courts use the terms "punitive damages," "exemplary damages," 11 and "vindictive damages" 12 synonymously.
Not available in all states.

Only a few states do not provide generally for punitive damages. 13
Footnotes
1
2
3
4
5
6
7
8
9
10
11
12
13

Del.Estate of Farrell ex rel. Bennett v. Gordon, 770 A.2d 517 (Del. 2001).
N.C.Rhyne v. K-Mart Corp., 358 N.C. 160, 594 S.E.2d 1 (2004).
N.M.Akins v. United Steel Workers of America, AFL-CIO, CLC, Local 187, 2010-NMSC-031, 148 N.M. 442, 237
P.3d 744 (2010).
GA.Brown & Williamson Tobacco Corporation v. Gault, 280 Ga. 420, 627 S.E.2d 549 (2006).
Ga.Brown & Williamson Tobacco Corporation v. Gault, 280 Ga. 420, 627 S.E.2d 549 (2006).
La.Mosing v. Domas, 830 So. 2d 967 (La. 2002).
A.L.R.6th 749 (2003).
Ark.Union Pacific R.R. Co. v. Barber, 356 Ark. 268, 149 S.W.3d 325 (2004).
A.L.R.6th 749 (2003).
U.S.Alea London Ltd. v. American Home Services, Inc., 638 F.3d 768 (11th Cir. 2011), cert. denied, 132 S. Ct. 553
(2011) (applying Georgia law).
Conn.Harty v. Cantor Fitzgerald and Co., 275 Conn. 72, 881 A.2d 139 (2005).
W.Va.Peters v. Rivers Edge Min., Inc., 224 W. Va. 160, 680 S.E.2d 791 (2009).
Wash.McKee v. AT & T Corp., 164 Wash. 2d 372, 191 P.3d 845 (2008).
End of Document
222.For punishment and deterrence, 25A C.J.S. Damages 222

Damages
A. In General
222. For punishment and deterrence
Punitive damages are a form of punishment, allowed not because of any special merit in the injured party's
case but for retribution (or punishment) and to deter harmful conduct.
Punitive damages are a form of punishment. 1 They are allowed not because of any special merit in the injured
party's case 2 but for retribution (or punishment) and to deter harmful conduct. 3 It is similarly held that an award
of punitive damages is designed to punish or modify the behavior of a defendant 4 or to make an example of
him or her. 5
Some authority has identified deterrence of similar conduct from happening in the future as the primary 6 or
ultimate 7 purpose.
Not substitute for criminal punishment.

The purpose of punitive damages is to accomplish the public goal of punishing wrongdoing, thereby protecting the
public from future misconduct either by the same defendant or other potential wrongdoers. 8 However, punitive
damages are not imposed as a substitute for criminal punishment. 9
Cases:
While a punitive damages award should be painful enough to provide some retribution and deterrence, it should
not financially destroy a defendant. Young v. Becker & Poliakoff, P.A., 88 So. 3d 1002 (Fla. 4th DCA 2012),
reh'g granted, (May 23, 2012).
[END OF SUPPLEMENT]
Footnotes
D.C.Rosenthal v. Sonnenschein Nath & Rosenthal, LLP, 985 A.2d 443 (D.C. 2009), cert. denied, 131 S. Ct. 475,
1
2
3
4
5
6
7
8
178 L. Ed. 2d 290 (2010).

Kan.Allman v. Bird, 186 Kan. 802, 353 P.2d 216 (1960).
(2011).
AlaskaBrandner v. Hudson, 171 P.3d 83 (Alaska 2007).
Colo.Coors v. Security Life of Denver Ins. Co., 112 P.3d 59 (Colo. 2005).
Ga.May v. Crane Bros., Inc., 276 Ga. 280, 576 S.E.2d 286 (2003).
Haw.Kekona v. Abastillas, 113 Haw. 174, 150 P.3d 823 (2006).
Ill.Slovinski v. Elliot, 237 Ill. 2d 51, 340 Ill. Dec. 210, 927 N.E.2d 1221 (2010).
Ind.Crabtree ex rel. Kemp v. Estate of Crabtree, 837 N.E.2d 135 (Ind. 2005).
IowaHamilton v. Mercantile Bank of Cedar Rapids, 621 N.W.2d 401 (Iowa 2001).
Ky.Phelps v. Louisville Water Co., 103 S.W.3d 46 (Ky. 2003).
La.Ross v. Conoco, Inc., 828 So. 2d 546 (La. 2002).
Minn.Jensen v. Walsh, 623 N.W.2d 247 (Minn. 2001).
Miss.Hartford Underwriters Ins. Co. v. Williams, 936 So. 2d 888 (Miss. 2006).
Mo.Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758 (Mo. 2007).
Mont.Seltzer v. Morton, 2007 MT 62, 336 Mont. 225, 154 P.3d 561 (2007).
N.J.Tarr v. Bob Ciasulli's Mack Auto Mall, Inc., 194 N.J. 212, 943 A.2d 866 (2008).
N.M.Akins v. United Steel Workers of America, AFL-CIO, CLC, Local 187, 2010-NMSC-031, 148 N.M. 442, 237
P.3d 744 (2010).
Nev.Bongiovi v. Sullivan, 122 Nev. 556, 138 P.3d 433 (2006).
OhioNiskanen v. Giant Eagle, Inc., 122 Ohio St. 3d 486, 2009-Ohio-3626, 912 N.E.2d 595 (2009).
Pa.Hutchison ex rel. Hutchison v. Luddy, 582 Pa. 114, 870 A.2d 766 (2005).
S.C.O'Neill v. Smith, 388 S.C. 246, 695 S.E.2d 531 (2010).
S.D.Christians v. Christians, 2001 SD 142, 637 N.W.2d 377 (S.D. 2001).
Tenn.Goff v. Elmo Greer & Sons Const. Co., Inc., 297 S.W.3d 175 (Tenn. 2009), cert. denied, 130 S. Ct. 1910,
176 L. Ed. 2d 367 (2010).
Tex.Service Corp. Intern. v. Guerra, 348 S.W.3d 221 (Tex. 2011).
Va.Wilkins v. Peninsula Motor Cars, Inc., 266 Va. 558, 587 S.E.2d 581 (2003).
Vt.City of Burlington v. Arthur J. Gallagher & Co., 173 Vt. 484, 788 A.2d 18 (2001).
Punishment to wrongdoer and warning to others
Va.Frank Shop, Inc. v. Crown Cent. Petroleum Corp., 264 Va. 1, 564 S.E.2d 134 (2002).
Mont.Czajkowski v. Meyers, 2007 MT 292, 339 Mont. 503, 172 P.3d 94 (2007).
176 L. Ed. 2d 367 (2010).
IdahoVendelin v. Costco Wholesale Corp., 140 Idaho 416, 95 P.3d 34 (2004).
Tenn.Culbreath v. First Tennessee Bank Nat. Ass'n, 44 S.W.3d 518 (Tenn. 2001).
Products liability
Punitive damages should not encourage companies to ignore or disavow, rather than remedy, product defects.
Mo.State ex rel. Ford Motor Co. v. Messina, 71 S.W.3d 602 (Mo. 2002).
Cal.Adams v. Murakami, 54 Cal. 3d 105, 284 Cal. Rptr. 318, 813 P.2d 1348 (1991).
Kan.In re Smith's Estate, Guardianship of Smith, 211 Kan. 397, 507 P.2d 189 (1973).
End of Document
223.Not intended to compensate, 25A C.J.S. Damages 223

Damages
A. In General
223. Not intended to compensate
Compensatory and punitive damages serve distinct purposes. The consensus is that punitive damages are
not awarded as compensation.
Compensatory and punitive damages serve distinct purposes. 1 Indemnity for a plaintiff's losses is the function of
compensatory, not punitive, damages, 2 and the purposes that may make a punitive damages award appropriate
are not satisfied by an award of purely compensatory damages. 3
While there is contrary authority holding that punitive damages provides compensation for the reckless or
willful invasion of the plaintiff's private rights, 4 the consensus 5 is that punitive damages are not awarded as
compensation. 6
Footnotes
Fla.Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).
1
2
3
4
5
6
Vastly different purposes

176 L. Ed. 2d 367 (2010).
Va.Doe v. Isaacs, 265 Va. 531, 579 S.E.2d 174 (2003).
S.C.O'Neill v. Smith, 388 S.C. 246, 695 S.E.2d 531 (2010).
Ind.Cheatham v. Pohle, 789 N.E.2d 467 (Ind. 2003).
Miss.Gordon v. National States Ins. Co., 851 So. 2d 363 (Miss. 2003).
223.Not intended to compensate, 25A C.J.S. Damages 223

Va.Frank Shop, Inc. v. Crown Cent. Petroleum Corp., 264 Va. 1, 564 S.E.2d 134 (2002).
661 N.W.2d 789 (2003).
By definition
By definition, punitive damages are not intended to make the plaintiff whole by compensating for a loss suffered.
A.L.R.6th 749 (2003).
End of Document
224.Not favored, 25A C.J.S. Damages 224

Damages
A. In General
224. Not favored
Because they are penal, punitive damages are not favored in the law.
Punitive damages are extraordinary and harsh. 1 Because they are penal in nature, 2 punitive damages are not
favored in the law. 3 They should be rarely be awarded 4 and allowed only with caution, 5 and within narrow
limits 6 in the most egregious cases, 7 so that they are not improperly or unwisely awarded. 8
Footnotes
Mo.Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758 (Mo. 2007).
1
2
3
4
5
IdahoKuhn v. Coldwell Banker Landmark, Inc., 150 Idaho 240, 245 P.3d 992 (2010).
Miss.Warren v. Derivaux, 996 So. 2d 729 (Miss. 2008).
R.I.Shoucair v. Brown University, 917 A.2d 418, 217 Ed. Law Rep. 579 (R.I. 2007).
Va.Xspedius Management Co. of Virginia, L.L.C. v. Stephan, 269 Va. 421, 611 S.E.2d 385 (2005).
Wis.Groshek v. Trewin, 2010 WI 51, 325 Wis. 2d 250, 784 N.W.2d 163 (2010).
Ariz.Medasys Acquisition Corp. v. SDMS, P.C., 203 Ariz. 420, 55 P.3d 763 (2002).
IdahoBoll v. State Farm Mut. Auto. Ins. Co., 140 Idaho 334, 92 P.3d 1081 (2004).
224.Not favored, 25A C.J.S. Damages 224

Miss.AmSouth Bank v. Gupta, 838 So. 2d 205 (Miss. 2002).
176 L. Ed. 2d 367 (2010).
Most egregious conduct
End of Document
225.Not a matter of right, 25A C.J.S. Damages 225

Damages
A. In General
225. Not a matter of right
A plaintiff has no right or entitlement to award of punitive damages.
Although a plaintiff is entitled as of right to compensatory damages, 1 punitive damages do not compensate
plaintiff. 2 Thus, a plaintiff has no right or entitlement to award of punitive damages 3 unless awarded by statute. 4
Footnotes
1
2
3
A.L.R.6th 749 (2003).

224.
U.S.Harris v. L & L Wings, Inc., 132 F.3d 978 (4th Cir. 1997); Kyle v. Patterson, 196 F.3d 695 (7th Cir. 1999).
A.L.R.6th 749 (2003).
IowaBrokaw v. Winfield-Mt. Union Community School Dist., 788 N.W.2d 386, 259 Ed. Law Rep. 907 (Iowa 2010).
N.M.Peters Corp. v. New Mexico Banquest Investors Corp., 2008-NMSC-039, 144 N.M. 434, 188 P.3d 1185 (2008).
Not automatic
Punitive damages are never automatic.
Miss.Doe ex rel. Doe v. Salvation Army, 835 So. 2d 76 (Miss. 2003).
Ala.Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So. 2d 24 (1961).
Ariz.Downs v. Sulphur Springs Valley Elec. Co-op., Inc., 80 Ariz. 286, 297 P.2d 339 (1956).
End of Document
226.Not a separate cause of action, 25A C.J.S. Damages 226

Damages
A. In General
226. Not a separate cause of action
A claim for punitive damages is not a separate claim or cause of action but merely a remedy or an element
of a cause of action.
A claim for punitive damages is not a separate claim or cause of action 1 but merely a type of remedy 2 or an
element of a cause of action. 3 Thus, punitive damages cannot be pleaded as an independent cause of action 4 but
rather must be requested in conjunction with a cognizable cause of action. 5 In other words, before a plaintiff can
recover punitive damages, he or she must first be entitled to legal or equitable relief. 6
Availability in equity.
Under some authority, exemplary damages may not be awarded when the plaintiff is seeking to enforce an
equitable claim or a right originally created in or decided by equity courts. 7 Other authority holds that allowing
punitive damages in equity facilitates judicial administration, deters misconduct, and completely serves justice. 8
Cases:
Exemplary damages are not available unless a plaintiff establishes actual damages. Hancock v. Variyam, 400
S.W.3d 59 (Tex. 2013).
[END OF SUPPLEMENT]
Footnotes
U.S.PSG Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 417 F.2d 659 (9th Cir. 1969).
1
Ill.Vincent v. Alden-Park Strathmoor, Inc., 241 Ill. 2d 495, 350 Ill. Dec. 330, 948 N.E.2d 610 (2011).
226.Not a separate cause of action, 25A C.J.S. Damages 226
2
3
4
5
6
7
Wyo.Cook v. Shoshone First Bank, 2006 WY 13, 126 P.3d 886, 21 A.L.R.6th 919 (Wyo. 2006).
Ill.Vincent v. Alden-Park Strathmoor, Inc., 241 Ill. 2d 495, 350 Ill. Dec. 330, 948 N.E.2d 610 (2011).
Wyo.Cook v. Shoshone First Bank, 2006 WY 13, 126 P.3d 886, 21 A.L.R.6th 919 (Wyo. 2006).
Okla.Lierly v. Tidewater Petroleum Corp., 2006 OK 47, 139 P.3d 897 (Okla. 2006), as corrected, (June 27, 2006).
UtahNorman v. Arnold, 2002 UT 81, 57 P.3d 997 (Utah 2002).
IdahoLosser v. Bradstreet, 145 Idaho 670, 183 P.3d 758 (2008).
Colo.Peterson v. McMahon, 99 P.3d 594 (Colo. 2004).
A.L.R. Library
Punitive damages: power of equity court to award, 58 A.L.R.4th 844.
End of Document
227.State constitutional and statutory provisions, 25A C.J.S. Damages 227

Damages
A. In General
2. State and Federal Law
227. State constitutional and statutory provisions
State constitutional and statutory provisions govern punitive damages in some jurisdictions.
Some state constitutional provisions have been adopted on the subject of exemplary damages. 1 In some
jurisdictions, exemplary or punitive damages are governed by statute 2 and available only by statute. 3 Thus,
courts may require explicit statutory language to support an award of punitive damages. 4
In some jurisdictions, a punitive damages statute is intended to codify the common law on punitive damages. 5
However, state legislatures are free to eliminate punitive damages completely and have wide discretion in
modifying the sanction. 6 Thus, in some states, a statute governing award of punitive damages is intended to make
punitive damages less readily available. 7
Strict construction.
When a statute authorizes the imposition of punitive damages, it is subject to strict construction. 8
Cases:
In providing a private cause of action, Security of Communications Act appears to be punitive in nature, and Act
does not require proof of actual damages and expressly authorizes the award of punitive damages. West's F.S.A.
934.03. France v. France, 90 So. 3d 860 (Fla. 5th DCA 2012).
[END OF SUPPLEMENT]
227.State constitutional and statutory provisions, 25A C.J.S. Damages 227
Footnotes
Cal.Toole v. Richardson-Merrell Inc., 251 Cal. App. 2d 689, 60 Cal. Rptr. 398, 29 A.L.R.3d 988 (1st Dist. 1967).
1
2
3
Punitive damages governed by common-law and constitutional principles

Mass.Dartt v. Browning-Ferris Industries, Inc. (Mass.), 427 Mass. 1, 691 N.E.2d 526 (1998).
N.J.In re Estate of Stockdale, 196 N.J. 275, 953 A.2d 454 (2008).
N.H.Stewart v. Bader, 154 N.H. 75, 907 A.2d 931 (2006).
Allowed in accordance with statutes
Mont.Osman v. Cavalier, 2011 MT 60, 360 Mont. 17, 251 P.3d 686 (2011).
4
5
6
7
8
Allowed only when expressly authorized by the legislature

Mich.Gilbert v. DaimlerChrysler Corp., 470 Mich. 749, 685 N.W.2d 391, 14 A.L.R.6th 801 (2004).
Conn.Ames v. Commissioner Of Motor Vehicles, 267 Conn. 524, 839 A.2d 1250 (2004).
Wis.Roehl Transport, Inc. v. Liberty Mut. Ins. Co., 2010 WI 49, 325 Wis. 2d 56, 784 N.W.2d 542 (2010).
End of Document
228.Statute allocating share in award to State, 25A C.J.S. Damages 228

Damages
A. In General
228. Statute allocating share in award to State
Some states require the allocation of a portion of punitive damages to the State.
Some states require the allocation of a portion of punitive damages to the State. 1 Such statutes have generally
been upheld on review. 2
Footnotes
AlaskaState v. Carpenter, 171 P.3d 41 (Alaska 2007).
1
Or.Patton v. Target Corp., 349 Or. 230, 242 P.3d 611 (2010).
UtahSmith v. Price Development Co., 2005 UT 87, 125 P.3d 945 (Utah 2005).
No violation of substantive due-process rights
AlaskaEvans ex rel. Kutch v. State, 56 P.3d 1046 (Alaska 2002).
End of Document
229.Federal issues, 25A C.J.S. Damages 229

Damages
A. In General
229. Federal issues
The absence in a federal statute of general authorization to award exemplary damages does not preempt
state actions that permit the recovery of such damages. However, while states possess discretion over the
imposition of punitive damages, there are procedural and substantive constitutional limitations on these
awards.
The absence in a federal statute of general authorization to award exemplary damages does not preempt state
actions that permit the recovery of such damages. 1 Punitive damages may properly be imposed to further a State's
legitimate interests in punishing unlawful conduct and deterring its repetition. 2
However, while states possess discretion over the imposition of punitive damages, there are procedural and
substantive constitutional limitations on these awards. 3 Excessive awards may violate substantive federal dueprocess rights. 4 Further, a State generally has no legitimate concern in imposing punitive damages to punish a
defendant for unlawful acts committed outside of the State's jurisdiction. 5 Thus, no State may use the deterrent
of punitive damages as means of imposing its regulatory policies on the entire nation. 6
Footnotes
U.S.English v. General Elec. Co., 496 U.S. 72, 110 S. Ct. 2270, 110 L. Ed. 2d 65 (1990).
1
U.S.Mitchell, Jr. v. Fortis Ins. Co., 385 S.C. 570, 686 S.E.2d 176 (2009), cert. denied, (Mar. 22, 2010) and cert.
2
3
4
5
denied, 130 S. Ct. 1896, 176 L. Ed. 2d 366 (2010).

IdahoHall v. Farmers Alliance Mut. Ins. Co., 145 Idaho 313, 179 P.3d 276 (2008).
661 N.W.2d 789 (2003).
Serv. 1349, 1 A.L.R. Fed. 2d 739 (2003).
265, 266.
Serv. 1349, 1 A.L.R. Fed. 2d 739 (2003).
229.Federal issues, 25A C.J.S. Damages 229
Mitchell, Jr. v. Fortis Ins. Co., 385 S.C. 570, 686 S.E.2d 176 (2009), cert. denied, (Mar. 22, 2010) and cert. denied,
130 S. Ct. 1896, 176 L. Ed. 2d 366 (2010).
Cal.Bullock v. Philip Morris USA, Inc., 198 Cal. App. 4th 543, 131 Cal. Rptr. 3d 382 (2d Dist. 2011), review denied,
(Nov. 30, 2011).
U.S.BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996).
End of Document
230.Role of court, 25A C.J.S. Damages 230

Damages
A. In General
3. Role of Court and Jury
230. Role of court
The trial court makes the threshold determination whether a defendant's conduct is subject to civil
punishment and whether sufficient or adequate evidence warrants submission of the question of punitive
damages to the jury.
A trial court initially determines whether the particular facts of a case merit the submission of the issue of punitive
damages to a jury. 1 The trial court makes the threshold determination whether a defendant's conduct is subject to
civil punishment 2 and whether sufficient or adequate evidence warrants submission of the question of punitive
damages to the jury. 3 Thus, trial courts serve as gatekeepers before sending a question on punitive damages to
the jury. 4
Motion for judgment.

Under some authority, a motion for judgment as a matter of law on punitive damages is properly granted only
when there is a complete absence of any evidence that would justify submitting an issue to a jury. 5 Other authority
holds that when presented with a motion seeking a directed verdict on a punitive damages claim, a court must
determine whether there is sufficient evidence, using the clear and convincing evidence standard, to submit the
punitive damages claim to the jury. 6
Cases:
Under Missouri law, court only submits issue of punitive damages to jury if plaintiff prevails on his or her
underlying claim. Trickey v. Kaman Indus. Technologies Corp., 705 F.3d 788 (8th Cir. 2013).
230.Role of court, 25A C.J.S. Damages 230
When a plaintiff improperly introduces evidence probative of punitive damages, an appellate court finds reversible
error when that evidence materially prejudices the defendant. Estate of Gibson ex rel. Gibson v. Magnolia
Healthcare, Inc., 91 So. 3d 616 (Miss. 2012).
[END OF SUPPLEMENT]
Footnotes
Miss.Alpha Gulf Coast, Inc. v. Jackson, 801 So. 2d 709 (Miss. 2001).
1
2
3
4
5
6
R.I.Castellucci v. Battista, 847 A.2d 243 (R.I. 2004).

Wis.Roehl Transport, Inc. v. Liberty Mut. Ins. Co., 2010 WI 49, 325 Wis. 2d 56, 784 N.W.2d 542 (2010).
Wis.Strenke v. Hogner, 2005 WI 25, 279 Wis. 2d 52, 694 N.W.2d 296 (2005).
Miss.Franklin Corp. v. Tedford, 18 So. 3d 215 (Miss. 2009).
Mont.Marie Deonier & Associates v. Paul Revere Life Ins. Co., 2004 MT 297, 323 Mont. 387, 101 P.3d 742 (2004).
Tenn.Sanford v. Waugh & Co., Inc., 328 S.W.3d 836 (Tenn. 2010).
As to the clear and convincing standard of proof in this context, see 241.
End of Document
231.Role of courtQuestion of law, 25A C.J.S. Damages 231

Damages
A. In General
231. Role of courtQuestion of law
The sufficiency or adequacy of the evidence to justify an award of punitive damages is a question of law
within the sound discretion of the court.
The sufficiency or adequacy of the evidence to justify an award of punitive damages is a question of law, 1 and
the question of whether the plaintiff has established sufficient proof to submit exemplary or punitive damages to
a jury lies within the sound discretion of the trial court. 2 Some appellate courts review a lower court's decision
about whether punitive damages are available for an abuse of discretion 3 though others review the issue de novo
on appeal. 4
Cases:
Under Missouri law, whether there is sufficient evidence to support award for punitive damages is question of
law which is reviewed de novo. Trickey v. Kaman Indus. Technologies Corp., 705 F.3d 788 (8th Cir. 2013).
[END OF SUPPLEMENT]
Footnotes
1
Mo.Howard v. City of Kansas City, 332 S.W.3d 772 (Mo. 2011).
Nev.Winchell v. Schiff, 124 Nev. 938, 193 P.3d 946 (2008).
Whether punitive damages are available
Whether punitive damages are available is a question of law.
231.Role of courtQuestion of law, 25A C.J.S. Damages 231
Improper submission an error of law

IdahoRockefeller v. Grabow, 136 Idaho 637, 39 P.3d 577 (2001).
Nev.Winchell v. Schiff, 124 Nev. 938, 193 P.3d 946 (2008).
IdahoRockefeller v. Grabow, 136 Idaho 637, 39 P.3d 577 (2001).
No abuse of discretion
Miss.Franklin Corp. v. Tedford, 18 So. 3d 215 (Miss. 2009).
End of Document
232.Role of jury or trier of fact, 25A C.J.S. Damages 232

Damages
A. In General
232. Role of jury or trier of fact
Whether a plaintiff is entitled to punitive damages is usually a question of fact for the fact finder or jury.
In the context of a punitive damages award, one's successful presentation of a prima facie case for punitive damages
gets the issue of punitive damages to the jury. 1 That is, whether a plaintiff is entitled to punitive damages is
usually a question of fact 2 for the fact finder 3 or the jury. 4
Punitive or exemplary damages are not recoverable as of right. 5 Rather, the decision to award punitive damages, 6
along with the amount of the award, 7 are within the discretion of the jury or the trier of fact. Thus, a jury is at
perfect liberty, no matter how wanton or reckless the defendant has been, to refuse punitive damages. 8
Cases:
Statute that required any trier of fact who determined that punitive damages were warranted to also determine
amount of damages to award required fact-finder, on remand, when fact-finder was limited to solely making
determination regarding punitive damages, to first determine whether punitive damages were justified and then
to determine the amount of damages to award, rather than only determining the amount of damages; the phrase
"before the same trier of fact" indicated that a single judge or jury was required to determine both whether
punitive damages were to be assessed and, in a subsequent proceeding, the amount of such damages. West's NRSA
42.005(3). D.R. Horton, Inc. v. Betsinger, 335 P.3d 1230, 130 Nev. Adv. Op. No. 84 (Nev. 2014).
[END OF SUPPLEMENT]
Footnotes
1
232.Role of jury or trier of fact, 25A C.J.S. Damages 232
2
3
4
5
6

Or.Parrott v. Carr Chevrolet, Inc., 331 Or. 537, 17 P.3d 473 (2001).
Compliance with statutes
The jury has the burden of determining an amount of punitive damages based on State's statutory requirements and
interests.
Okla.Gilbert v. Security Finance Corp. of Oklahoma, Inc., 2006 OK 58, 152 P.3d 165 (Okla. 2006).
225.
U.S.Harris v. L & L Wings, Inc., 132 F.3d 978 (4th Cir. 1997).
Cal.Coats v. Construction & Gen. Laborers Local No. 185, 15 Cal. App. 3d 908, 93 Cal. Rptr. 639 (3d Dist. 1971).
R.I.Bourque v. Stop & Shop Companies, Inc., 814 A.2d 320 (R.I. 2003).
Untrammeled discretion
Vt.DeYoung v. Ruggiero, 185 Vt. 267, 2009 VT 9, 971 A.2d 627 (2009).
7
8
Moral judgment made by finder of fact

U.S.Kyle v. Patterson, 196 F.3d 695 (7th Cir. 1999).
255.
W.Va.Kocher v. Oxford Life Ins. Co., 216 W. Va. 56, 602 S.E.2d 499 (2004).
End of Document
233.Actual damages, 25A C.J.S. Damages 233

Damages
A. In General
4. Necessity of Other Damages
233. Actual damages
Actual damages generally must be shown in order that exemplary damages may be recoverable.
A claim for punitive damages is not a separate cause of action, and before a person may claim punitive damages, he
or she must generally be entitled to legal or equitable relief. 1 Similarly, it is generally held that punitive damages
can be awarded only when there is an award of compensatory or actual damages 2 or that a claim for compensatory
damages can be sustained only when accompanied by a viable claim for compensatory damages. 3 The plaintiff
therefore must allege, prove, and secure jury findings on the existence and amount of actual damages sufficient to
support an award of punitive damages. 4 However, other authority holds that an award of compensatory damages
is not a prerequisite to a finding of entitlement to punitive damages. 5
Reason for requirement of compensatory damages.

The requirement that in order to be entitled to an award of punitive damages a plaintiff must also receive some
measure of compensatory damages prevents the plaintiffs from bringing cases solely for an award of punitive
damages. 6 Other authority explains that the rule is premised on the fact that liability must be established before
a plaintiff can seek punitive damages. 7
Exception for libel and slander.

Some authority, while generally holding that compensatory damages are an indispensable predicate for punitive
damages, allows an exception in actions for libel and slander. 8
Cases:
233.Actual damages, 25A C.J.S. Damages 233
Punitive damages may not be recovered where there is no entitlement to compensatory damages. Carter v.
Progressive Mountain Ins., 761 S.E.2d 261 (Ga. 2014).
Wisconsin law allows awards of punitive damages when "compensatory damages" are imposed. Restatement
(Second) of Torts 903. Pro-Pac, Inc. v. WOW Logistics Co., 721 F.3d 781 (7th Cir. 2013) (applying Wisconsin
law).
[END OF SUPPLEMENT]
Footnotes
226.
1
U.S.Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138 (10th Cir. 2000).
2
Ark.Calvary Christian School, Inc. v. Huffstuttler, 367 Ark. 117, 238 S.W.3d 58, 227 Ed. Law Rep. 378 (2006).
Kan.Wendt v. University of Kansas Medical Center, 274 Kan. 966, 59 P.3d 325 (2002).
Md.Frazier v. Castle Ford, Ltd., 200 Md. App. 285, 27 A.3d 583 (2011), cert. granted (Md. Dec. 16, 2011).
Me.Zemero Corp. v. Hall, 2003 ME 111, 831 A.2d 413 (Me. 2003).
Miss.MIC Life Ins. Co. v. Hicks, 825 So. 2d 616 (Miss. 2002).
Mont.Jacobsen v. Allstate Ins. Co., 2009 MT 248, 351 Mont. 464, 215 P.3d 649 (2009).
S.D.Hoaas v. Griffiths, 2006 SD 27, 714 N.W.2d 61 (S.D. 2006).
UtahKilpatrick v. Wiley, Rein & Fielding, 2001 UT 107, 37 P.3d 1130 (Utah 2001).
Other damages
Punitive damages cannot be awarded absent other damages.
Wis.Musa v. Jefferson County Bank, 2001 WI 2, 240 Wis. 2d 327, 620 N.W.2d 797 (2001).
Generally not recoverable
Punitive damages generally are not recoverable in the absence of proof of actual damages.
S.C.Dykema v. Carolina Emergency Physicians, P.C., 348 S.C. 549, 560 S.E.2d 894 (2002).
3
4
5
6
7
8
A.L.R. Library
Sufficiency of showing of actual damages to support award of punitive damagesmodern cases, 40 A.L.R.4th 11.
Award of compensatory damages required
Punitive damages may not be awarded when the jury fails to award compensatory damages.
OhioMalone v. Courtyard by Marriott L.P., 74 Ohio St. 3d 440, 1996-Ohio-311, 659 N.E.2d 1242 (1996).
Fla.Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).
S.C.McGee v. Bruce Hosp. System, 344 S.C. 466, 545 S.E.2d 286 (2001).
Va.Syed v. ZH Technologies, Inc., 280 Va. 58, 694 S.E.2d 625 (2010).
End of Document
234.Nominal damages, 25A C.J.S. Damages 234

Damages
A. In General
234. Nominal damages
In some jurisdictions, an award of nominal damages is a sufficient basis for the recovery of exemplary
damages that are otherwise recoverable.
Punitive damages may be given, in a proper case, even though the actual damage is small. 1 Thus, some authority
holds that nominal damages may support a punitive award, 2 noting that the foundational requirement is merely
that some legally protected interest be invaded. 3
Cases:
While an award of punitive damages cannot stand alone, an award of nominal damages can support the assessment
of punitive damages in the case of an intentional tort. Chicago Title Land Trust Co. v. JS II, LLC, 2012 IL App
(1st) 063420, 364 Ill. Dec. 709, 977 N.E.2d 198 (App. Ct. 1st Dist. 2012).
[END OF SUPPLEMENT]
Footnotes
Mo.Coonis v. Rogers, 429 S.W.2d 709 (Mo. 1968).
1
U.S.Campos-Orrego v. Rivera, 175 F.3d 89 (1st Cir. 1999).
2
Ala.Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So. 2d 484 (1970).
Cal.Wetherbee v. United Ins. Co. of America, 265 Cal. App. 2d 921, 71 Cal. Rptr. 764 (1st Dist. 1968).
IdahoHarwood v. Talbert, 136 Idaho 672, 39 P.3d 612 (2001).
Actual or nominal
S.C.McGee v. Bruce Hosp. System, 344 S.C. 466, 545 S.E.2d 286 (2001).
Nominal actual damages sufficient
U.S.Klein v. Grynberg, 44 F.3d 1497, 31 Fed. R. Serv. 3d 1092 (10th Cir. 1995).
Ky.Roberie v. VonBokern, 2006 WL 2454647 (Ky. 2006), as modified, (Dec. 21, 2006).
IdahoHarwood v. Talbert, 136 Idaho 672, 39 P.3d 612 (2001).
End of Document
235.Under federal law, 25A C.J.S. Damages 235

Damages
A. In General
235. Under federal law
There is no established federal common-law rule that precludes an award of punitive damages in the
absence of an award of compensatory damages.
While most punitive-damage awards made under state law are insupportable without an award of either
compensatory or nominal damages, 1 there is no established federal common-law rule that precludes an award of
punitive damages in the absence of an award of compensatory damages. 2 However, an award of punitive damages
on a federal claim is improper where no compensatory damages are awarded, and there had not been a timely
request for nominal damages. 3
Footnotes
233, 234.
1
U.S.Louisiana ACORN Fair Housing v. LeBlanc, 211 F.3d 298 (5th Cir. 2000).
2
U.S.Kerr-Selgas v. American Airlines, Inc., 69 F.3d 1205 (1st Cir. 1995).
3
End of Document
Research References, 25A C.J.S. Damages VI B Refs.
25A C.J.S. Damages VI B Refs.

Damages
B. Injuries for Which Allowable
Research References
A.L.R. Library
End of Document
236.Breach of contract, 25A C.J.S. Damages 236

Damages
In the absence of statutory authority, exemplary damages generally are not recoverable in actions for the
breach of contracts.
In the absence of statutory authority, 1 punitive damages generally are not recoverable for breach of contract 2
or in a cause of action arising solely out of contract. 3 Other authority holds that the nature of the case, tort or
contract, does not control the issue of punitive damages. 4
Cases:
While punitive damages are generally not awarded in breach of contract claims, Nevada law provides punitive
damages in cases involving an insurer's breach of the implied covenant of good faith and fair dealing. USF Ins.
Co. v. Smith's Food and Drug Center, Inc., 921 F. Supp. 2d 1082 (D. Nev. 2013), as corrected, (Mar. 27, 2013).
New Mexico recognizes that, although punitive damages are not normally available for a breach of contract,
a plaintiff may recover punitive damages when a defendant's breach was malicious, fraudulent, oppressive, or
committed recklessly with a wanton disregard for the plaintiff's rights. Anderson Living Trust v. ConocoPhillips
Co., LLC, 952 F. Supp. 2d 979 (D.N.M. 2013).
Under Virgin Islands law, punitive damages generally are not awarded in connection with breach of contract
claim. Restatement (Second) of Torts 908. In re Pickel, 493 B.R. 258 (Bankr. D. N.M. 2013).
Under Georgia law, even in action for breach of contract, punitive damages may be awarded when there is evidence
in record of fraud. Ga. Code Ann. 13-6-10. In re Ladd, 516 B.R. 66 (Bankr. D. S.C. 2014).
Punitive damages may not be awarded as relief in a breach of contract claim. West's Ann.Cal.Civ.Code 3294.
Ginsberg v. Gamson, 205 Cal. App. 4th 873, 2012 WL 1495442 (2d Dist. 2012).
Although as a general matter, punitive damages are not available in a breach of contract case, punitive damages
may be awarded in such a case under certain circumstances. Rogers v. Louisville Land Co., 367 S.W.3d 196
(Tenn. 2012).
Punitive damages, while generally not available in a breach of contract case, may be awarded in breach of contract
action under certain circumstances. Riad v. Erie Ins. Exchange, 436 S.W.3d 256 (Tenn. Ct. App. 2013), appeal
denied, (Mar. 4, 2014).
Developer was not entitled to award of punitive damages for contractor's breach of contract occurring when
contractor removed sand from construction site without permission, since contractor did not act with malice;
contractor viewed the sand as excess materials that had to be moved for construction to continue, did not move
the sand to profit from its sale, and mostly lost money on it. Birchwood Land Co., Inc. v. Ormond Bushey & Sons,
Inc., 2013 VT 60, 82 A.3d 539 (Vt. 2013).
[END OF SUPPLEMENT]
Footnotes
U.S.Schwartz v. Victory Container Corp., 294 F. Supp. 866 (S.D. N.Y. 1969).
1
Cal.Mahon v. Berg, 267 Cal. App. 2d 588, 73 Cal. Rptr. 356 (1st Dist. 1968).
Ill.Illinois Sterling, Inc. v. KDI Corp., 33 Ill. App. 3d 666, 338 N.E.2d 51 (2d Dist. 1975).
Mo.Smith v. Piper, 423 S.W.2d 22 (Mo. Ct. App. 1967).
N.C.East Coast Development Corp. v. Alderman-250 Corp., 30 N.C. App. 598, 228 S.E.2d 72 (1976).
U.S.Barnes v. Gorman, 536 U.S. 181, 122 S. Ct. 2097, 153 L. Ed. 2d 230 (2002); Nicholas v. Pennsylvania State
University, 227 F.3d 133, 147 Ed. Law Rep. 485, 55 Fed. R. Evid. Serv. 1028 (3d Cir. 2000).
Ala.Exxon Mobil Corp. v. Alabama Dept. of Conservation and Natural Resources, 986 So. 2d 1093 (Ala. 2007).
AlaskaReeves v. Alyeska Pipeline Service Co., 56 P.3d 660 (Alaska 2002).
Cal.City of Hope Nat. Medical Center v. Genentech, Inc., 43 Cal. 4th 375, 75 Cal. Rptr. 3d 333, 181 P.3d 142 (2008).
Conn.Lydall, Inc. v. Ruschmeyer, 282 Conn. 209, 919 A.2d 421 (2007).
Okla.Lierly v. Tidewater Petroleum Corp., 2006 OK 47, 139 P.3d 897 (Okla. 2006), as corrected, (June 27, 2006).
S.D.Schipporeit v. Khan, 2009 SD 96, 775 N.W.2d 503 (S.D. 2009).
UtahSmith v. Grand Canyon Expeditions Co., 2003 UT 57, 84 P.3d 1154 (Utah 2003).
W.Va.Caperton v. A.T. Massey Coal Co., Inc., 225 W. Va. 128, 690 S.E.2d 322 (2009).
By statute
S.D.Biegler v. American Family Mut. Ins. Co., 2001 SD 13, 621 N.W.2d 592 (S.D. 2001).
3
4
A.L.R. Library
Recovery of punitive damages for breach of building or construction contract, 40 A.L.R.4th 110.
Nev.Insurance Co. of the West v. Gibson Tile Co., Inc., 122 Nev. 455, 134 P.3d 698 (2006).
IdahoMyers v. Workmen's Auto Ins. Co., 140 Idaho 495, 95 P.3d 977 (2004).
End of Document
237.Breach of contractContract cases involving tort, 25A C.J.S. Damages 237

Damages
237. Breach of contractContract cases involving tort
Exemplary damages may be allowed when a breach of contract amounts to a tort, or the plaintiff proves
a tort independent from the acts that breach the contract.
While courts generally will not allow punitive damages for breach of contract, 1 they may permit them when the
breach of contract amounts to an independent tort, 2 or where the conduct constituting breach is also a tort, 3 or
where the plaintiff proves a tort independent from the acts that breach the contract. 4 These situations may include
an action for deceit 5 or for a breach of the implied covenant of good faith and fair dealing. 6 Similarly, a claim
for tortious interference with contract is predicated on tort so that punitive damages may be recoverable. 7
Footnotes
236, 237.
1
2
3
5
6
7
Wyo.Cathcart v. State Farm Mut. Auto. Ins. Co., 2005 WY 154, 123 P.3d 579 (Wyo. 2005).
AlaskaReeves v. Alyeska Pipeline Service Co., 56 P.3d 660 (Alaska 2002).
Breach merges with tort
Only when an alleged breach of contract merges with, and assumes the character of, a willful tort will punitive damages
be available in a breach-of-contract action.
D.C.Choharis v. State Farm Fire and Cas. Co., 961 A.2d 1080 (D.C. 2008).
Fla.Ferguson Transp., Inc. v. North American Van Lines, Inc., 687 So. 2d 821 (Fla. 1996).
Tort arising independent of the contract obligation
Wyo.Cathcart v. State Farm Mut. Auto. Ins. Co., 2005 WY 154, 123 P.3d 579 (Wyo. 2005).
Okla.Wilspec Technologies, Inc. v. DunAn Holding Group, Co., Ltd., 2009 OK 12, 204 P.3d 69 (Okla. 2009).
End of Document
238.Tortious acts, 25A C.J.S. Damages 238

Damages
238. Tortious acts
Punitive damages are recoverable in actions for a tort where the essential aggravating circumstances enter
into the commission of the tort.
Punitive damages are recoverable for torts 1 or cases sounding in tort 2 or predicated on tort. 3 However, punitive
damages are not to be applied in the ordinary aggravated tort case 4 whether it be grounded on strict liability or
fault. 5
Intentional and unintentional torts.

Punitive damages against individuals usually are available only for intentional torts. 6 However, the fact that a tort
is intentional does not automatically authorize the award of punitive damages, 7 and exemplary damages are not
an element of recovery in every case involving an intentional tort. 8 Conversely, punitive damages may sometimes
be assessed in unintentional tort actions. 9
Particular torts.
In appropriate cases, punitive damages may be awarded for intentional infliction of emotional distress, 10 invasion
of privacy, 11 intentional damage to property, 12 and products-liability cases. 13
Cases:
Under Missouri law, in a strict liability case, punitive damages may be awarded if a plaintiff presents evidence
that the defendant placed in commerce an unreasonably dangerous product with actual knowledge of the product's
defect. In re NuvaRing Products Liability Litigation, 957 F. Supp. 2d 1110 (E.D. Mo. 2013).
Intentional torts ordinarily carry punitive damages, if the jury chooses to award them. Schaeffer v. Poellnitz, 154
So. 3d 979 (Ala. 2014).
Although the conduct of employees of company that operated corrections center, such as denying inmate access
to the law library, may have been in violation of the settlement agreement between Department of Corrections
(DOC) and class of inmates, which agreement was incorporated into contract between DOC and company that
operated corrections facility, that conduct did not, standing alone, constitute a separate tort upon which punitive
damages could be based. Perotti v. Corrections Corp. of America, 290 P.3d 403 (Alaska 2012).
Nebraska law does not permit a plaintiff to obtain punitive damages over and above full compensation for the
plaintiff's injuries, which means that, in a negligence case, evidence intended to punish a defendant's conduct or
deter similar conduct is not at issue. Golnick v. Callender, 290 Neb. 395, 860 N.W.2d 180 (2015).
[END OF SUPPLEMENT]
Footnotes
UtahSmith v. Grand Canyon Expeditions Co., 2003 UT 57, 84 P.3d 1154 (Utah 2003).
1
2
3
4
5
6
7
8
9
10
11
12
13
A.L.R. Library
Exemplary or Punitive Damages for Pharmacist's Wrongful Conduct in Preparing or Dispensing Medical Prescription
Cases Not Under Consumer Product Safety Act (15 U.S.C.A. s2072), 109 A.L.R.5th 397.
Recovery of punitive damages for injuries resulting from transport, handling, and storage of toxic or hazardous
substances, 39 A.L.R.5th 763.
U.S.Dietemann v. Time, Inc., 284 F. Supp. 925 (C.D. Cal. 1968), judgment aff'd, 449 F.2d 245 (9th Cir. 1971).
N.Y.James v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967).
Tex.Clements v. Withers, 429 S.W.2d 198 (Tex. Civ. App. Eastland 1968), writ granted, (Oct. 2, 1968) and judgment
aff'd, 437 S.W.2d 818 (Tex. 1969).
Wis.Entzminger v. Ford Motor Co., 47 Wis. 2d 751, 177 N.W.2d 899, 54 A.L.R.3d 317 (1970).
As to gross negligence as grounds for an award of exemplary damages, see 245.
U.S.Oxman v. Hellene Pessl Inc., 279 F. Supp. 65 (S.D. N.Y. 1968).
N.J.Berg v. Reaction Motors Division, Thiokol Chemical Corp., 37 N.J. 396, 181 A.2d 487 (1962).
U.S.Butera v. District of Columbia, 235 F.3d 637 (D.C. Cir. 2001).
U.S.Micro Data Base Systems, Inc. v. Dharma Systems, Inc., 148 F.3d 649, 35 U.C.C. Rep. Serv. 2d 747 (7th Cir.
1998).
U.S.Harris v. L & L Wings, Inc., 132 F.3d 978 (4th Cir. 1997).
Mont.Czajkowski v. Meyers, 2007 MT 292, 339 Mont. 503, 172 P.3d 94 (2007).
A.L.R. Library
Recovery of Damages for Emotional Distress Due to Treatment of Pets and Animals, 91 A.L.R.5th 545.
Vt.Pion v. Bean, 176 Vt. 1, 2003 VT 79, 833 A.2d 1248 (2003).
Ill.Townsend v. Sears, Roebuck and Co., 227 Ill. 2d 147, 316 Ill. Dec. 505, 879 N.E.2d 893 (2007).
A.L.R. Library
Liability of Cigarette Manufacturers for Punitive Damages, 108 A.L.R.5th 343.
Liability of successor corporation for punitive damages for injury caused by predecessor's product, 55 A.L.R.4th 166.
Allowance of punitive damages in products liability case, 13 A.L.R.4th 52.
End of Document
239.Acts in violation of statutory duty, 25A C.J.S. Damages 239

Damages
239. Acts in violation of statutory duty
Punitive damages ordinarily are recoverable under a statutory cause of action only by explicit statutory
authorization.
Punitive damages ordinarily are recoverable under a statutory cause of action only by explicit statutory
authorization. 1 Stated another way, there can be no award of punitive damages for violating a statutory duty that
did not exist at common law unless the award is expressly authorized by statute. 2 However, a willful and wanton
disregard for the rights of another that justifies punitive damages can be shown by the defendant's intentional
violation of a statutory right. 3
Footnotes
1
2
3
A.L.R. Library
Availability and scope of punitive damages under state employment discrimination law, 81 A.L.R.5th 367.
Availability of Punitive Damages in Action for Retaliatory Discharge Under s 16(b) of Fair Labor Standards Act (29
U.S.C.A. s 216(b)), 178 A.L.R. Fed. 15.
Punitive Damages in Actions for Violations of Title VII of the Civil Rights Act of 1964 (42 U.S.C.A. sec. 1981a; 42
U.S.C.A. secs. 2000e et seq.), 150 A.L.R. Fed. 601.
OhioRoe v. Planned Parenthood Southwest Ohio Region, 122 Ohio St. 3d 399, 2009-Ohio-2973, 912 N.E.2d 61
(2009).
IowaGibson v. ITT Hartford Ins. Co., 621 N.W.2d 388 (Iowa 2001).
End of Document
240.Acts punishable as crimes, 25A C.J.S. Damages 240

Damages
240. Acts punishable as crimes
As a general rule, the fact that an act is punishable criminally does not of itself authorize or prevent the
recovery of exemplary damages in a civil action.
In general, the fact that an act for which a recovery of damages is sought is punishable criminally will not alone
authorize a recovery of exemplary damages 1 nor will the fact that the underlying conduct is criminal in nature
ordinarily bar a recovery of punitive damages. 2 In some jurisdictions, however, punitive damages are denied
absolutely where the act complained of is punishable as a crime. 3
Footnotes
Tex.Graham v. Turner, 472 S.W.2d 831 (Tex. Civ. App. Waco 1971).
1
Wis.Fahrenberg v. Tengel, 96 Wis. 2d 211, 291 N.W.2d 516 (1980).
Punitive damages not allowed for all crimes

Wis.Entzminger v. Ford Motor Co., 47 Wis. 2d 751, 177 N.W.2d 899, 54 A.L.R.3d 317 (1970).
N.J.Security Aluminum Window Mfg. Corp. v. Lehman Associates, Inc., 108 N.J. Super. 137, 260 A.2d 248 (App.
Div. 1970).
Tenn.Coppinger Color Lab, Inc. v. Nixon, 698 S.W.2d 72 (Tenn. 1985).
A.L.R. Library
Assault: criminal liability as barring or mitigating recovery of punitive damages, 98 A.L.R.3d 870.
Ind.Moore v. Waitt, 157 Ind. App. 1, 298 N.E.2d 456 (1973).
End of Document
Research References, 24 C.J.S. Damages VI C Refs.
24 C.J.S. Damages VI C Refs.

Damages
C. Grounds for Award
Research References
A.L.R. Library
West's A.L.R. Digest, Damages 91.5
End of Document

Damages
241. Generally
91.5, 91.5(1)
A.L.R. Library
Standard of proof as to conduct underlying punitive damage awardsmodern status, 58 A.L.R.4th 878
Punitive damages are warranted when the defendant's conduct or wrongdoing was outrageous or egregious
and are recoverable under circumstances tending to aggravate the injury.
Whether or not punitive damages should be assessed depends largely on the circumstances of each individual
case. 1 Something more than the mere commission of a tort is always required for punitive damages. 2 An award
of punitive damages depends on whether the plaintiff is able to establish the requisite intersection of two factors:
a bad act and a bad state of mind. 3
Punitive damages are warranted when the defendant's conduct or wrongdoing was outrageous 4 or egregious. 5
They are recoverable under circumstances tending to aggravate the injury, 6 including acts done with insult, 7
malice, bad motive, oppression, or ill will. 8 Circumstances justifying an award of punitive damages also includes
wantonness or willful misconduct, 9 as well as acts done with reckless, 10 conscious, 11 or willful 12 indifference
or disregard to the interests or rights of another. Punitive damages are also warranted cases involving of fraud. 13
Clear and convincing evidence.

The circumstances or conduct justifying an award of punitive damages must ordinarily be shown by clear and
convincing evidence. 14
Cases:
Under New York law, the standard for conduct warranting an award of punitive damages essentially amounts to
conduct having a high degree of moral culpability which manifests a conscious disregard of the rights of others or
conduct so reckless as to amount to such disregard. In re Methyl Tertiary Butyl Ether (MTBE) Products Liability
Litigation, 725 F.3d 65 (2d Cir. 2013).
To recover punitive damages under California law, the plaintiffs must demonstrate that defendant acted with
knowledge of the probable dangerous consequences to plaintiff's interests and deliberately failed to avoid these
consequences. West's Ann.Cal.Civ.Code 3294. Rosa v. Taser Intern., Inc., 684 F.3d 941 (9th Cir. 2012).
In order to justify punitive damages there must be first a finding of failure to exercise reasonable care, and then
an additional finding that this negligence was accompanied by wanton or reckless disregard for the lives, safety,
or property of others. Gibson v. Fuel Transport, Inc., 410 S.W.3d 56 (Ky. 2013).
Punitive damages may be awarded only if a plaintiff proves malice, ill will, or intent to injure. Exxon Mobil Corp.
v. Albright, 432 Md. 67, 67 A.3d 1100 (2013), on reconsideration in part on other grounds, 432 Md. 199, 67
A.3d 1181 (2013).
To make a submissible case for punitive damages, there must be clear and convincing proof of a defendant's
culpable mental state; a plaintiff establishes a defendant's culpable mental state by showing either that the
defendant committed an intentional wanton, willful, and outrageous act without justification or acted with reckless
disregard for the plaintiff's rights and interest. Peel v. Credit Acceptance Corp., 408 S.W.3d 191 (Mo. Ct. App.
W.D. 2013), transfer denied, (June 25, 2013) and transfer denied, (Oct. 1, 2013).
Case is submissible for punitive damages if the record contains clear and convincing proof that the defendant
intentionally acted either by a wanton, willful or outrageous act, or reckless disregard for an act's consequences,
from which evil motive is inferred. Scott Salvage Yard, LLC v. Gifford, 382 S.W.3d 134 (Mo. Ct. App. E.D.
2012), transfer denied, (Nov. 20, 2012).
[END OF SUPPLEMENT]
Footnotes
U.S.Hannigan v. Sears, Roebuck & Co., 410 F.2d 285 (7th Cir. 1969).
1
3
4
5
6
7
8
9
Pa.Pittsburgh Outdoor Advertising Co. v. Virginia Manor Apartments, Inc., 436 Pa. 350, 260 A.2d 801 (1970).
Tex.Bank of North America v. Bell, 493 S.W.2d 633 (Tex. Civ. App. Houston 14th Dist. 1973).
Wis.Lisowski v. Chenenoff, 37 Wis. 2d 610, 155 N.W.2d 619 (1968).
Haw.Association of Apartment Owners of Newtown Meadows ex rel. its Bd. of Directors v. Venture 15, Inc., 115
Haw. 232, 167 P.3d 225 (2007), as corrected on denial of reconsideration, (Sept. 20, 2007).
As to mere negligence not supporting a punitive damages award, see 245.
Ill.Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218, 305 Ill. Dec. 584, 856 N.E.2d 389 (2006).
D.C.Caulfield v. Stark, 893 A.2d 970 (D.C. 2006).
Miss.Wise v. Valley Bank, 861 So. 2d 1029 (Miss. 2003).
242, 243.
10
11
12
13
14
Kan.Mynatt v. Collis, 274 Kan. 850, 57 P.3d 513 (2002).

Pa.Hutchison ex rel. Hutchison v. Luddy, 582 Pa. 114, 870 A.2d 766 (2005).
Miss.Neider v. Franklin, 844 So. 2d 433 (Miss. 2003).
Haw.Schefke v. Reliable Collection Agency, Ltd., 96 Haw. 408, 32 P.3d 52 (2001), as amended, (Oct. 11, 2001).
Va.Flippo v. CSC Associates III, L.L.C., 262 Va. 48, 547 S.E.2d 216 (2001).
246.
Me.Morgan v. Kooistra, 2008 ME 26, 941 A.2d 447 (Me. 2008).
Miss.Miller v. R.B. Wall Oil Co., Inc., 970 So. 2d 127 (Miss. 2007).
Mo.Gilliland v. Missouri Athletic Club, 273 S.W.3d 516 (Mo. 2009).
As to the weight and sufficiency of evidence to warrant exemplary or punitive damages, generally, see 365.
End of Document
242.Motive or intent, 25A C.J.S. Damages 242

Damages
242. Motive or intent
West's Key Number Digest, Damages 91.5, 91.5(1)
Exemplary damages are recoverable only when the wrongful act or conduct complained of is accompanied
by certain aggravating circumstances.
The motive and intent with which a wrongful act is done generally is to be considered in determining whether
exemplary damages will be awarded. 1 Imposition of punitive damages requires an individualized examination
of, among other factors, the conduct and state of mind of each defendant. 2 The justification of punitive damages
must be that the defendant acted with an extremely harmful state of mind regardless of the terms used to describe
it. 3 Consequently, the wrongdoer ordinarily must know when he or she commits the act that it is wrongful, 4 or
there must be such recklessness that conscious wrongdoing is necessarily implied. 5
Wantonness versus reckless conduct.

"Wilful or wanton conduct" supporting an award of punitive damages reflects conscious indifference to the
consequences or the rights of others. 6 "Wantonness," as basis for an award of punitive damages, requires some
degree of conscious culpability. 7 The knowledge of the defendant is the sine qua non of wantonness. 8 On other
hand, "reckless conduct" supporting a punitive damages award is not intentional or malicious but rather unheedful
of the risk of harming others as opposed to unheedful of it. 9
Cases:
Under Missouri law, direct evidence of intentional conduct is not required for punitive damages award; such
awards are evaluated on case-by-case basis and evil intent may be implied from reckless disregard of another's
rights and interests. Trickey v. Kaman Indus. Technologies Corp., 705 F.3d 788 (8th Cir. 2013).
242.Motive or intent, 25A C.J.S. Damages 242
Even where the defendant did not act with conscious indifference in creating the problem that led to the damage,
punitive damages may be justified if the defendant acted with such conscious indifference in failing to correct that
problem. Weller v. Blake, 315 Ga. App. 214, 726 S.E.2d 698 (2012).
Establishing wanton conduct pursuant to a punitive damages request is a two-step process; first, a plaintiff must
show that the act was performed with a realization of the imminence of danger, and, second, that the act was
performed with reckless disregard or complete indifference to the probable consequences of the act. West's K.S.A.
603702(c). Adamson v. Bicknell, 287 P.3d 274 (Kan. 2012).
A submissible case for punitive damages requires clear and convincing proof that the defendant intentionally acted
either by a wanton, willful or outrageous act, or reckless disregard for an act's consequences (from which evil
motive is inferred). Smith v. Brown & Williamson Tobacco Corp., 410 S.W.3d 623 (Mo. 2013).
[END OF SUPPLEMENT]
Footnotes
U.S.Dupont Galleries, Inc. v. International Magne-Tape, Limited, 300 F. Supp. 1179 (S.D. N.Y. 1969).
1
2
3
4
5
7
8
9
Or.Douglas v. Humble Oil & Refining Co., 251 Or. 310, 445 P.2d 590 (1968).
Pa.Focht v. Rabada, 217 Pa. Super. 35, 268 A.2d 157 (1970).
Tex.Morgan v. Arnold, 441 S.W.2d 897 (Tex. Civ. App. Dallas 1969), writ refused n.r.e., (Oct. 1, 1969).
U.S.Boguslavsky v. Kaplan, 159 F.3d 715, 186 A.L.R. Fed. 607 (2d Cir. 1998).
To justify an award of punitive damages, a positive element of conscious wrongdoing is always required.
Haw.Aquarian Foundation v. Association of Apartment Owners of Waikiki Park Heights, 98 Haw. 134, 44 P.3d
285 (2001).
U.S.Farias v. Instructional Systems, Inc., 259 F.3d 91, 57 Fed. R. Evid. Serv. 1327 (2d Cir. 2001).
Fla.Benson v. Florida Pub. Co., 262 So. 2d 196 (Fla. 1972).
N.M.Loucks v. Albuquerque Nat. Bank, 76 N.M. 735, 418 P.2d 191, 3 U.C.C. Rep. Serv. 709 (1966).
U.S.Phillip v. U.S. Lines Co., 240 F. Supp. 992 (E.D. Pa. 1965), judgment aff'd, 355 F.2d 25 (3d Cir. 1966).
Fla.Richards Co. v. Harrison, 262 So. 2d 258 (Fla. Dist. Ct. App. 1st Dist. 1972).
Kan.Augustine v. Hinnen, 201 Kan. 710, 443 P.2d 354 (1968).
Mo.Beggs v. Universal C. I. T. Credit Corp., 409 S.W.2d 719, 35 A.L.R.3d 1007 (Mo. 1966).
N.Y.Perlmuth v. Scappy & Peck, Inc., 73 Misc. 2d 927, 343 N.Y.S.2d 40 (Dist. Ct. 1973).
Pa.Focht v. Rabada, 217 Pa. Super. 35, 268 A.2d 157 (1970).
U.S.King v. McMillan, 594 F.3d 301 (4th Cir. 2010).
Del.Porter v. Turner, 954 A.2d 308 (Del. 2008).
IowaCawthorn v. Catholic Health Initiatives Iowa Corp., 743 N.W.2d 525 (Iowa 2007).
Ala.Cheshire v. Putman, 54 So. 3d 336 (Ala. 2010).
Ala.Southeast Environmental Infrastructures, L.L.C. v. Rivers, 12 So. 3d 32 (Ala. 2008).
End of Document
243.Malice, 24 C.J.S. Damages 243

Damages
243. Malice
West's Key Number Digest, Damages 91.5, 91.5(1), 91.5(2)
Punitive damages are allowed for acts done with malice, bad motive, oppression, or ill will.
Punitive damages are allowed for acts done with malice, bad motive, oppression, or ill will. 1 A showing of malice
may not be not required for an award of punitive damages if the defendant's conduct otherwise meets the standards
for a punitive damages award. 2 However, other authority holds that an award of punitive damages must be based
upon malice, 3 actual malice, 4 or either actual or implied malice. 5
"Actual malice" is defined as evil or wrongful motive, intent to injure, ill will, or fraud. 6
"Express malice" exists when conduct is motivated by ill will toward the plaintiff 7 or as being characterized by
such factors as personal spite, hatred, or ill will. 8 However, some authority holds that actual malice is not limited
to cases where the defendant can be shown to have had an "evil mind" and may include a callous and conscious
disregard for the rights of others or willful or wanton behavior. 9
Legal malice also is called implied malice 10 or presumed malice. 11 The intentional doing of a wrongful act
without just cause or excuse may constitute or show legal malice. 12 Legal malice is also shown by wrongful
conduct committed with a willful, wanton, or reckless disregard for another's rights 13 even if motivated by
something other than ill will toward any particular party. 14
Cases:
Under Ohio law, because it is rarely possible to prove actual malice supporting a punitive damages claim otherwise
than by conduct and surrounding circumstances, actual malice can be inferred from conduct and surrounding
circumstances which may be characterized as reckless, wanton, willful or gross. Freudeman v. Landing of Canton,
702 F.3d 318 (6th Cir. 2012).
To proceed on a claim for punitive damages for products liability under Kentucky law, plaintiffs must have some
evidence from which a reasonable jury could find malice or reckless disregard for a product user's safety. Dalton
v. Animas Corp., 913 F. Supp. 2d 370 (W.D. Ky. 2012).
Where there is no evidence that gives rise to an inference of actual malice or conduct sufficiently outrageous to be
deemed equivalent to actual malice, the trial court need not, and indeed should not, submit the issue of punitive
damages to the jury. Madonna v. Tamarack Air, Ltd., 298 P.3d 875 (Alaska 2013).
Asbestos supplier's culpability was so reprehensible as to warrant punitive damages in construction business
owner's products liability action for injuries he sustained due to exposure to asbestos in construction materials;
supplier acted with reprehensible indifference to the health and safety of others in that it was aware from an internal
report that asbestos exposure caused mesothelioma but continued to sell asbestos and chose not to warn customers
of the dangers. Izell v. Union Carbide Corporation, 179 Cal. Rptr. 3d 271 (Cal. App. 2d Dist. 2014).
If a tort is committed through mistake, ignorance, or mere negligence, the damages are limited to the actual injury
received, for vindictive or punitive damages are recoverable only when a defendant acts maliciously, wilfully,
or with a wanton disregard of the rights of others. Scapa Dryer Fabrics, Inc. v. Knight, 770 S.E.2d 334 (Ga. Ct.
App. 2015).
Implied malice that can support an award of punitive damages cannot be established by the defendant's mere
reckless disregard of the circumstances. Bratton v. McDonough, 2014 ME 64, 91 A.3d 1050 (Me. 2014).
"Actual malice," as could support an award of punitive damages, is: (1) that state of mind under which a person's
conduct is characterized by hatred, ill will, or a spirit of revenge, or (2) a conscious disregard for the rights and
safety of other persons that has a great probability of causing substantial harm. Universal Real Estate Solutions,
Inc. v. Snowden, 2014-Ohio-5813, 26 N.E.3d 1272 (Ohio Ct. App. 9th Dist. Summit County 2014).
Malice is an essential element of a claim for punitive damages. Bertelsen v. Allstate Ins. Co., 2013 SD 44, 833
N.W.2d 545 (S.D. 2013).
To justify award of punitive damages, a plaintiff must show actual malice on the defendants' part, as evidenced
by conduct exemplifying personal ill will or showing a reckless or wanton disregard for the plaintiff's rights, and
also that the defendants' actions were akin to a willful and wanton, or fraudulent, tort. Ring v. Carriage House
Condominium Owners' Ass'n, 2014 VT 127, 112 A.3d 754 (Vt. 2014).
[END OF SUPPLEMENT]
Footnotes
1
A.L.R.6th 749 (2003).
Md.Tierco Maryland, Inc. v. Williams, 381 Md. 378, 849 A.2d 504 (2004).
Me.Newbury v. Virgin, 2002 ME 119, 802 A.2d 413 (Me. 2002).
3
4
5
6
7
8
9
10
11
12
13
14
Vt.Wharton v. Tri-State Drilling & Boring, 175 Vt. 494, 2003 VT 19, 824 A.2d 531 (2003).
U.S.King v. McMillan, 594 F.3d 301 (4th Cir. 2010) (applying Virginia law)
AlaskaMaddox v. Hardy, 187 P.3d 486 (Alaska 2008).
As to conduct other than malice that may support a punitive damages award, see 241.
Vt.Wharton v. Tri-State Drilling & Boring, 175 Vt. 494, 2003 VT 19, 824 A.2d 531 (2003).
OhioBuckeye Union Ins. Co. v. New England Ins. Co., 87 Ohio St. 3d 280, 1999-Ohio-67, 720 N.E.2d 495 (1999).
Presumed malice
S.D.Bertelsen v. Allstate Ins. Co., 2011 SD 13, 796 N.W.2d 685 (S.D. 2011).
OhioBuckeye Union Ins. Co. v. New England Ins. Co., 87 Ohio St. 3d 280, 1999-Ohio-67, 720 N.E.2d 495 (1999).
Ala.Parker v. Sutton, 47 Ala. App. 352, 254 So. 2d 425 (Civ. App. 1971).
Fla.Richards Co. v. Harrison, 262 So. 2d 258 (Fla. Dist. Ct. App. 1st Dist. 1972).
Minn.Johnson v. Radde, 293 Minn. 409, 196 N.W.2d 478 (1972).
Mo.Beggs v. Universal C. I. T. Credit Corp., 409 S.W.2d 719, 35 A.L.R.3d 1007 (Mo. 1966).
N.M.Galindo v. Western States Collection Co., 82 N.M. 149, 477 P.2d 325 (Ct. App. 1970).
Or.McElwain v. Georgia-Pacific Corp., 245 Or. 247, 421 P.2d 957 (1966).
Implied malice
Presumed malice
End of Document
244.Act merely unlawful, 25A C.J.S. Damages 244

Damages
244. Act merely unlawful
The mere fact that the act complained of is unlawful is not, of itself, a ground for an award of exemplary
damages.
The fact that an act is unlawful is not, of itself, a ground for an award of exemplary or punitive damages. 1 The act
complained of not only must be unlawful but also must be of a wanton and malicious nature. 2 In any event, an
act will not be deemed malicious, so as to warrant punitive damages, merely because it is unlawful or wrongful. 3
Footnotes
Or.Harrell v. Ames, 265 Or. 183, 508 P.2d 211, 65 A.L.R.3d 649 (1973).
1
Tex.Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444 (Tex. 1996).
UtahAmoss v. Broadbent, 30 Utah 2d 165, 514 P.2d 1284 (1973).
N.Y.James v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967).
Tex.Kroger Food Co. v. Singletary, 438 S.W.2d 621 (Tex. Civ. App. Beaumont 1969).
UtahPalombi v. D & C Builders, 22 Utah 2d 297, 452 P.2d 325 (1969).
Tex.Kroger Food Co. v. Singletary, 438 S.W.2d 621 (Tex. Civ. App. Beaumont 1969).
End of Document
245.Negligence; gross negligence, 25A C.J.S. Damages 245

Damages
245. Negligence; gross negligence
Mere negligence is not a ground for an award of exemplary damages, but gross negligence is a basis for
such an award in some jurisdictions.
Courts generally hold that punitive damages may not be awarded for mere negligence. 1 Punitive damages
are not appropriate in circumstances involving inattention, inadvertence, thoughtlessness, mistake, 2 or, under
some authority, gross negligence. 3 However, in other jurisdictions, punitive damages may be awarded for gross
negligence, 4 at least under circumstances indicating a wanton disregard of the rights of others. 5
Cases:
A defendant's use of a cellular telephone while driving does not, alone, amount to reckless indifference warranting
award of punitive damages in action to recover for injuries sustained in traffic accident. Thompson v. Cooper,
290 P.3d 393 (Alaska 2012).
[END OF SUPPLEMENT]
Footnotes
U.S.Consolidated Edison Co. of New York, Inc. v. Pataki, 292 F.3d 338 (2d Cir. 2002).
1
2
3
Ala.Lafarge North America, Inc. v. Nord, 2011 WL 4425557 (Ala. 2011).

IowaVan Sickle Const. Co. v. Wachovia Commercial Mortg., Inc., 783 N.W.2d 684 (Iowa 2010).
Wis.Strenke v. Hogner, 2005 WI 25, 279 Wis. 2d 52, 694 N.W.2d 296 (2005).
245.Negligence; gross negligence, 25A C.J.S. Damages 245
Nev.Wyeth v. Rowatt, 244 P.3d 765, 126 Nev. Adv. Op. No. 44 (Nev. 2010), cert. denied, 131 S. Ct. 3028, 180
L. Ed. 2d 846 (2011).
U.S.Streber v. Hunter, 221 F.3d 701, 55 Fed. R. Evid. Serv. 376 (5th Cir. 2000); NRC Corp. v. Amoco Oil Co.,
205 F.3d 1007 (7th Cir. 2000).
Haw.Ditto v. McCurdy, 98 Haw. 123, 44 P.3d 274 (2002).
Tex.General Motors Corp. v. Sanchez, 997 S.W.2d 584 (Tex. 1999).
End of Document
246.Fraud, 25A C.J.S. Damages 246

Damages
246. Fraud
Fraud is a ground for awarding exemplary or punitive damages.
Punitive damages may be warranted cases involving of fraud. 1 However, the mental state necessary to justify an
award of punitive damages is not limited to instances of fraud. 2
Footnotes
1
A.L.R.6th 749 (2003).
A.L.R. Library
Recovery of punitive damages in action by purchasers of real property charging fraud or misrepresentation, 19
A.L.R.4th 801.
End of Document
247.Effect of good faith; actual or purported exercise of..., 25A C.J.S. Damages ...

Damages
247. Effect of good faith; actual or purported exercise of right; advice of counsel
Exemplary or punitive damages are not generally recoverable where the act complained of was done in
good faith although mere belief in the right to do the act does not necessarily prevent the award of such
damages, and an award may be grounded on the exercise of a right in an improper manner.
Where an act has been done in good faith, even though it may have resulted in injury to the plaintiff, there generally
cannot be a recovery of exemplary damages. 1 However, a mere belief in the right to do the act complained of
cannot shield a person where there is no reasonable ground for such belief. 2 Moreover, the fact that a person
believes that he or she has a right to do a certain act will not shield that person from punitive damages if the act is
done in a wanton and outrageous manner. 3 On the other hand, a person who exercises a legal right simply, and
does no more than he or she has a legal right to do, and acts without unnecessary wantonness and violence, cannot
be held liable in exemplary damages merely because his or her conduct was instigated by malice. 4
Advice of counsel.
Advice of counsel, if given in good faith, is a proper consideration for the jury in connection with the question of
exemplary damages. 5 Good-faith reliance on the advice of counsel is not an absolute defense to the imposition of
punitive damages 6 but may be sufficient to prevent an award of such damages. 7 However, the advice of counsel
that the defendant had the right to do the act complained of will not protect him or her from exemplary damages
if the act was done maliciously and in a wanton and offensive manner. 8
Footnotes
Md.Food Fair Stores, Inc. v. Hevey, 275 Md. 50, 338 A.2d 43 (1975).
1
2
3
Miss.Wood v. Mississippi Power Co., 245 Miss. 103, 146 So. 2d 546 (1962).
Mo.Swager v. Vogt, 435 S.W.2d 49 (Mo. Ct. App. 1968).
Tex.Scurlock Oil Co. v. Joffrion, 390 S.W.2d 526 (Tex. Civ. App. Tyler 1965).
Wyo.Hall Oil Co. v. Barquin, 33 Wyo. 92, 237 P. 255 (1925).
Miss.Capital Elec. Power Ass'n v. Hinson, 230 Miss. 311, 92 So. 2d 867 (1957).
247.Effect of good faith; actual or purported exercise of..., 25A C.J.S. Damages ...
4
5
7
8
Wyo.Hall Oil Co. v. Barquin, 33 Wyo. 92, 237 P. 255 (1925).

Tex.Smart v. U.S. Fidelity & Guaranty Co., 513 S.W.2d 291 (Tex. Civ. App. Waco 1974), writ refused n.r.e.
Ariz.Pre-Fit Door, Inc. v. Dor-Ways, Inc., 13 Ariz. App. 438, 477 P.2d 557 (Div. 2 1970).
S.D.Hannahs v. Noah, 83 S.D. 296, 158 N.W.2d 678 (1968).
Tex.Nueces Trust Co. v. White, 564 S.W.2d 798 (Tex. Civ. App. Corpus Christi 1978).
Jury instruction
A trial court's jury instruction on the "advice of counsel" defense on punitive damagesthat the advice of counsel did
not preclude punitive damages but was only factor to considerand that the defense required good-faith reliance on
the advice, was proper.
Vt.Cooper v. Cooper, 173 Vt. 1, 783 A.2d 430 (2001).
Fla.Barnett First Nat. Bank of Jacksonville v. Buie, 255 So. 2d 707 (Fla. Dist. Ct. App. 1st Dist. 1971), decision
quashed in part on other grounds, 266 So. 2d 657 (Fla. 1972).
U.S.Fizzell v. Meeker, 339 F. Supp. 624 (W.D. Mo. 1970).
End of Document
Research References, 25A C.J.S. Damages VI D Refs.
25A C.J.S. Damages VI D Refs.

Damages
D. Persons Entitled to or Liable for Damages
Research References
A.L.R. Library
End of Document
248.Persons entitled to recover, 25A C.J.S. Damages 248

Damages
248. Persons entitled to recover
Punitive damages generally inure only to the person damaged.
Punitive damages generally inure only to the person damaged. 1

The Due Process Clause of the Federal Constitution 2 forbids a State's use of punitive damages award to punish
the defendant for injury that it inflicts upon nonparties, that is, for injury upon those who are essentially strangers
to the litigation. 3
Assignee of cause of action.

The assignee of a cause of action generally may recover exemplary damages. 4 However, the right of a plaintiff
prosecuting a tort action solely as assignee of the right of action of the person injured to recover exemplary
damages has been denied. 5
Political subdivision.
A political corporation or subdivision, such as a school district, can recover punitive damages. 6
Cases:
Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it
inflicts upon nonparties. U.S.C.A. Const.Amend. 14. Westgate Resorts, Ltd. v. Consumer Protection Group, LLC,
Appellee, 2012 UT 55, 285 P.3d 1219 (Utah 2012).
248.Persons entitled to recover, 25A C.J.S. Damages 248
[END OF SUPPLEMENT]
Footnotes
Cal.Imperial Merchant Services, Inc. v. Hunt, 47 Cal. 4th 381, 97 Cal. Rptr. 3d 464, 212 P.3d 736 (2009).
1
U.S. Const. Amend. XIV, 1.
2
U.S.Philip Morris USA v. Williams, 549 U.S. 346, 127 S. Ct. 1057, 166 L. Ed. 2d 940 (2007).
3
4
Ala.Feazell v. Campbell, 358 So. 2d 1017 (Ala. 1978).
5
Kan.Unified School Dist. No. 490, Butler County v. Celotex Corp., 6 Kan. App. 2d 346, 629 P.2d 196 (1981).
6
A.L.R. Library
Validity, construction, and application of statutes requiring that percentage of punitive damages awards be paid directly
to state or court-administered fund, 16 A.L.R.5th 129.
End of Document
249.Persons entitled to recoverDeath of injured person, 25A C.J.S. Damages 249

Damages
249. Persons entitled to recoverDeath of injured person
As a general rule, exemplary damages are personal to the injured party and do not survive in favor of a
beneficiary. However, the representative of a decedent generally may recover exemplary damages where
the right of action survives.
As a general rule, exemplary damages are personal to the injured party and do not survive in favor of a
beneficiary. 1 In the case of a right of action that does not survive the death of the injured person, the incidental
right to exemplary or punitive damages does not survive, 2 and statutes sometimes prevent the assessment of such
damages in actions that do survive. 3 However, the representative of a decedent generally may recover exemplary
damages where the right of action survives. 4 Further, punitive damages may be recovered in an action for loss
of consortium. 5
Footnotes
Cal.People v. Superior Court, 9 Cal. 3d 283, 107 Cal. Rptr. 192, 507 P.2d 1400, 55 A.L.R.3d 191 (1973).
1
2
3
4
Mich.Ray v. City of Detroit, Dept. of St. Railways, 67 Mich. App. 702, 242 N.W.2d 494 (1976).
Nev.Summa Corp. v. Greenspun, 96 Nev. 247, 607 P.2d 569 (1980), on reh'g, 98 Nev. 528, 655 P.2d 513 (1982)
and (disapproved of on other grounds by, Sandy Valley Associates v. Sky Ranch Estates Owners Ass'n, 117 Nev. 948,
35 P.3d 964 (2001)).
Va.Worrie v. Boze, 198 Va. 891, 96 S.E.2d 799 (1957).
U.S.Burgess v. Clairol, Inc., 776 F. Supp. 1278 (N.D. Ill. 1991).
N.Y.Estrow v. Wilson, 30 A.D.2d 646, 291 N.Y.S.2d 46 (1st Dep't 1968).
Cal.Carr v. Progressive Casualty Ins. Co., 152 Cal. App. 3d 881, 199 Cal. Rptr. 835 (3d Dist. 1984).
Tex.Pace v. McEwen, 574 S.W.2d 792 (Tex. Civ. App. El Paso 1978), writ refused n.r.e., (May 9, 1979).
Wis.Wangen v. Ford Motor Co., 97 Wis. 2d 260, 294 N.W.2d 437, 13 A.L.R.4th 1 (1980).
Claim by representative of estate
OhioRubeck v. Huffman, 54 Ohio St. 2d 20, 8 Ohio Op. 3d 11, 374 N.E.2d 411 (1978).
S.D.Black v. Gardner, 320 N.W.2d 153 (S.D. 1982).
As to damages in actions that abate or survive, see C.J.S., Abatement and Revival 129 to 174.
As to exemplary or punitive damages in actions for wrongfully causing death, see C.J.S., Death 173.
249.Persons entitled to recoverDeath of injured person, 25A C.J.S. Damages 249
A.L.R. Library
Claim for punitive damages in tort action as surviving death of tortfeasor or person wronged, 30 A.L.R.4th 707.
Product-liability action
Punitive damages may be awarded to a spouse in connection with a loss of consortium claim in a products-liability
action.
Conn.Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 562 A.2d 1100 (1989).
A.L.R. Library
Spouse's or parent's right to recover punitive damages in connection with recovery of damages for medical expenses
or loss of services or consortium arising from personal injury to other spouse or to child, 25 A.L.R.3d 1416.
End of Document
250.Persons liable, 25A C.J.S. Damages 250

Damages
250. Persons liable
As a general rule, exemplary damages may be awarded only against a person who has participated in the
wrong of which the complaint is made.
Exemplary damages generally can be awarded only against a person who has participated in the wrong. 1 The
common law limits vicarious liability for punitive damages through agency principles. 2
Liability of public entities and officials.

Some authority holds that a municipal corporation cannot be liable for punitive damages as a matter of law. 3 Other
authority allows exemplary damages against a public official. 4 Under still other authority, exemplary damages
may be recovered against a municipality if the plaintiff can prove intentional, willful, or grossly negligent conduct
that shows entire want of care to his or her rights and that can be imputed directly to the municipality's governing
body. 5
Footnotes
U.S.Matter of GAC Corp., 681 F.2d 1295, 34 Fed. R. Serv. 2d 662 (11th Cir. 1982).
1
Del.Mancino v. Webb, 274 A.2d 711 (Del. Super. Ct. 1971).
Haw.Lauer v. Young Men's Christian Ass'n of Honolulu, 57 Haw. 390, 557 P.2d 1334 (1976).
Ill.Mattyasovszky v. West Towns Bus Co., 61 Ill. 2d 31, 330 N.E.2d 509 (1975).
Kan.In re Smith's Estate, Guardianship of Smith, 211 Kan. 397, 507 P.2d 189 (1973).
Tex.White v. Roy Roy Dairy, Inc., 524 S.W.2d 329 (Tex. Civ. App. Eastland 1974), writ refused n.r.e., (June 18,
1975).
Not against public policy to award punitive damages against church

Minn.Mrozka v. Archdiocese of St. Paul and Minneapolis, 482 N.W.2d 806 (Minn. Ct. App. 1992).
U.S.Romano v. U-Haul Intern., 233 F.3d 655 (1st Cir. 2000).
As to the liability of a principal for exemplary damages for acts of his or her agent, see 253.
250.Persons liable, 25A C.J.S. Damages 250
3
4
5
A.L.R. Library
Derivative liability of partner for punitive damages for wrongful act of copartner, 14 A.L.R.4th 1335.
Tex.City of Gladewater v. Pike, 727 S.W.2d 514 (Tex. 1987).
Cal.Runyon v. Superior Court, 187 Cal. App. 3d 878, 232 Cal. Rptr. 101 (4th Dist. 1986).
Tex.City of Gladewater v. Pike, 727 S.W.2d 514 (Tex. 1987).
End of Document
251.Persons liableJoint defendants, 25A C.J.S. Damages 251

Damages
251. Persons liableJoint defendants
In an action against several defendants, exemplary damages generally may be awarded only against those
who have participated in the malicious act or gross negligence involved.
In an action against several defendants, exemplary damages may be awarded against those, 1 and only against
those, 2 who have participated in, or contributed to, the malicious act or the gross negligence involved.
Footnotes
U.S.Breeding v. Massey, 378 F.2d 171, 11 Fed. R. Serv. 2d 47 (8th Cir. 1967); Ford Motor Credit Co. v. Hill, 245
1
F. Supp. 796 (W.D. Mo. 1965).

Tenn.Huckeby v. Spangler, 563 S.W.2d 555 (Tenn. 1978).
U.S.Davidson v. Dixon, 386 F. Supp. 482 (D. Del. 1974), aff'd, 529 F.2d 511 (3d Cir. 1975).
Mo.Fordyce v. Montgomery, 424 S.W.2d 746 (Mo. Ct. App. 1968).
End of Document
252.Effect of death of wrongdoer, 25A C.J.S. Damages 252

Damages
252. Effect of death of wrongdoer
A claim for punitive damages may survive the death of the tortfeasor.
Absent a specific statutory restriction, 1 a claim for punitive damages survives the death of a tortfeasor 2 and may
be pursued against his or her estate. 3 Other authority, however, does not permit recovery of punitive damages
from the estate of a deceased tortfeasor. 4
Footnotes
1
Ariz.Haralson v. Fisher Surveying, Inc., 201 Ariz. 1, 31 P.3d 114 (2001).
2
Pa.G.J.D. v. Johnson, 447 Pa. Super. 340, 669 A.2d 378 (1995), order aff'd, 552 Pa. 169, 713 A.2d 1127 (1998).
W.Va.Perry v. Melton, 171 W. Va. 397, 299 S.E.2d 8 (1982).
3
4
A.L.R. Library
Claim for punitive damages in tort action as surviving death of tortfeasor or person wronged, 30 A.L.R.4th 707.
Ariz.Haralson v. Fisher Surveying, Inc., 201 Ariz. 1, 31 P.3d 114 (2001).
Pa.G.J.D. v. Johnson, 447 Pa. Super. 340, 669 A.2d 378 (1995), order aff'd, 552 Pa. 169, 713 A.2d 1127 (1998).
IowaIn re Vajgrt, 801 N.W.2d 570 (Iowa 2011).
S.D.Olson-Roti v. Kilcoin, 2002 SD 131, 653 N.W.2d 254 (S.D. 2002).
End of Document
253.Liability of principal or employer for acts of agent or..., 25A C.J.S. Damages ...

Damages
253. Liability of principal or employer for acts of agent or employee
In some jurisdictions, a principal or employer is liable for exemplary damages because of the act of his or
her agent or employee only where he or she has authorized, participated in, or ratified the act of the agent
or employee, while in other jurisdictions, the courts recognize a somewhat broader rule of liability.
As to the liability of a principal or employer for exemplary damages because of the wrongful act of his or her agent
or employee, the authorities are in conflict. 1 In some jurisdictions, the principal or employer is liable only where
he or she has authorized, participated in, or ratified the act of the agent or employee. 2 The authorization may be
based on an express grant of authority or on a course of conduct indicating that the employee was empowered or
given the right or authority to engage in the questioned conduct. 3
However, a number of courts impose liability on the principal or employer where the wrongful act was committed
by the agent or employee in the course of his or her duties or employment regardless of any express authorization
or subsequent ratification. 4
Ratification or repudiation.
Even where an employer or principal is not liable for the acts of an employee or agent merely because they were
done in the line of his or her employment, the employer or principal generally may be liable as a result of a
subsequent ratification of those acts. 5 Retention of an employee who has committed a wrongful act may amount
to a ratification of that act by the employer. 6
Footnotes
Ariz.Western Coach Corp. v. Vaughn, 9 Ariz. App. 336, 452 P.2d 117 (1969).
1
A.L.R. Library
Right of Principal to Recover Punitive Damages for Agent's or Broker's Breach of Duty, 46 A.L.R.6th 185.
253.Liability of principal or employer for acts of agent or..., 25A C.J.S. Damages ...
Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent
or employee, 93 A.L.R.3d 826.
U.S.Parris v. St. Johnsbury Trucking Co., 395 F.2d 543 (2d Cir. 1968).
Cal.Weber v. Leuschner, 240 Cal. App. 2d 829, 50 Cal. Rptr. 86 (5th Dist. 1966).
U.S.Woodard v. City Stores Co., 334 A.2d 189 (D.C. 1975).
IdahoBoise Dodge, Inc. v. Clark, 92 Idaho 902, 453 P.2d 551 (1969).
Minn.City of Minneapolis v. Richardson, 307 Minn. 80, 239 N.W.2d 197, 85 A.L.R.3d 389 (1976).
N.J.Gray v. Serruto Builders, Inc., 110 N.J. Super. 297, 265 A.2d 404 (Ch. Div. 1970).
N.M.Fredenburgh v. Allied Van Lines, Inc., 79 N.M. 593, 446 P.2d 868 (1968).
Independent fault of employer required
Fla.Horizon Leasing, A Div. of Horizon Financial, F.A. v. Leefmans, 568 So. 2d 73 (Fla. Dist. Ct. App. 4th Dist.
1990).
By statute
U.S.Lowe v. Surpas Resource Corp., 253 F. Supp. 2d 1209 (D. Kan. 2003) (applying Kansas law).
Ariz.Western Coach Corp. v. Vaughn, 9 Ariz. App. 336, 452 P.2d 117 (1969).
Mo.Johnson v. Allen, 448 S.W.2d 265 (Mo. Ct. App. 1969).
N.J.Security Aluminum Window Mfg. Corp. v. Lehman Associates, Inc., 108 N.J. Super. 137, 260 A.2d 248 (App.
Div. 1970).
Reckless employment of unfit agent
U.S.Preston v. Income Producing Management, Inc., 871 F. Supp. 411 (D. Kan. 1994).
5
6
Drunken driving of employee

Fla.Carroll Air Systems, Inc. v. Greenbaum, 629 So. 2d 914 (Fla. Dist. Ct. App. 4th Dist. 1993).
Tex.K-Mart No. 4195 v. Judge, 515 S.W.2d 148 (Tex. Civ. App. Beaumont 1974), dismissed, (Feb. 26, 1975).
Cal.Coats v. Construction & Gen. Laborers Local No. 185, 15 Cal. App. 3d 908, 93 Cal. Rptr. 639 (3d Dist. 1971).
End of Document
Research References, 24 C.J.S. Damages VI E Refs.
24 C.J.S. Damages VI E Refs.

Damages
E. Amount and Elements
Research References
A.L.R. Library
West's A.L.R. Digest, Damages 94, 181, 208(8)
End of Document

Damages
1. In General
254. Generally
There is no fixed standard for the measurement of exemplary or punitive damages.
There is no fixed standard by which exemplary or punitive damages may be measured. 1 Rather, each case must
turn more or less on its own peculiar facts. 2
Cases:
Jury's award of $1.5 million in punitive damages to passenger who fell from personal watercraft and suffered
severe vaginal injuries from the watercraft's jet stream did not exceed federal maritime common law's limit on
punitive damages, in her products liability action based on the watercraft's defect in providing a warning not to
ride the watercraft without protective clothing only on the watercraft's front console where it was difficult for
passengers to see, even though the ratio of passenger's punitive damages award to her $396,827 compensatory
damages award against manufacturer exceeded 1:1. Colombo v. BRP US Inc., 230 Cal. App. 4th 1442, 179 Cal.
Rptr. 3d 580 (4th Dist. 2014).
[END OF SUPPLEMENT]
Footnotes
U.S.Oresman v. G. D. Searle & Co., 388 F. Supp. 1175 (D.R.I. 1975).
1
Colo.Mailloux v. Bradley, 643 P.2d 797 (Colo. App. 1982).
Fla.Bould v. Touchette, 349 So. 2d 1181 (Fla. 1977).
IowaNorthrup v. Miles Homes, Inc. of Iowa, 204 N.W.2d 850 (Iowa 1973).
Ky.Bisset v. Goss, 481 S.W.2d 71 (Ky. 1972).
Mo.Labrier v. Anheuser Ford, Inc., 621 S.W.2d 51 (Mo. 1981).
Mont.Butcher v. Petranek, 181 Mont. 358, 593 P.2d 743 (1979).
Va.Baldwin v. McConnell, 273 Va. 650, 643 S.E.2d 703 (2007).
Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases, 12 A.L.R.5th 195 (secs.
19(a), 19(b), 19(c), 19(d), 19(e) superseded in part by Recovery of Punitive Damages for Exposure to Asbestos, 24
A.L.R.6th 497).
Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in trades
and manual occupations, 47 A.L.R.4th 134.
Effect of plaintiff's comparative negligence in reducing punitive damages recoverable, 27 A.L.R.4th 318.
Ala.Gunite Contracting Co., Inc. v. Mize, 341 So. 2d 694 (Ala. 1977).
Cal.Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757, 174 Cal. Rptr. 348 (4th Dist. 1981).
Fla.Wackenhut Corp. v. Canty, 359 So. 2d 430 (Fla. 1978).
Mont.Shahrokhfar v. State Farm Mut. Auto. Ins. Co., 194 Mont. 76, 634 P.2d 653, 27 A.L.R.4th 309 (1981).
N.J.Leimgruber v. Claridge Associates, Ltd., 73 N.J. 450, 375 A.2d 652 (1977).
Tex.Seegers v. Spradley, 522 S.W.2d 951 (Tex. Civ. App. Beaumont 1975), writ refused n.r.e.
End of Document
255.Discretion of fact finder, 25A C.J.S. Damages 255

Damages
1. In General
255. Discretion of fact finder
The amount of an award for exemplary or punitive damages is a matter largely within the discretion of
the fact finder.
The size of a punitive damages award rests in the discretion of the fact finder. 1 Reviewing courts will not disturb
the award absent an abuse of discretion 2 and are reluctant to set aside an award merely because it is large, or
the court would have awarded less. 3
Cases:
Juries have considerable flexibility in determining the level of punitive damages. Ondrisek v. Hoffman, 698 F.3d
1020 (8th Cir. 2012).
[END OF SUPPLEMENT]
Footnotes
1
R.I.Bourque v. Stop & Shop Companies, Inc., 814 A.2d 320 (R.I. 2003).
Va.Baldwin v. McConnell, 273 Va. 650, 643 S.E.2d 703 (2007).
Vt.Pion v. Bean, 176 Vt. 1, 2003 VT 79, 833 A.2d 1248 (2003).
661 N.W.2d 789 (2003).
Considerable discretion
255.Discretion of fact finder, 25A C.J.S. Damages 255
2
3
Jury and trial judge

S.C.Jordan v. Holt, 362 S.C. 201, 608 S.E.2d 129 (2005).
As to review of awards, see 264 to 267.
661 N.W.2d 789 (2003).
End of Document
256.Joint defendants, 25A C.J.S. Damages 256

Damages
1. In General
256. Joint defendants
Exemplary damages may be awarded in different amounts against joint tortfeasors.
Multiple defendants are not necessarily liable in the same amount, 1 and exemplary damages may be awarded in
different amounts against joint tortfeasors. 2
Footnotes
Fla.Keyes Co. v. Sens, 382 So. 2d 1273 (Fla. Dist. Ct. App. 3d Dist. 1980).
1
Md.Embrey v. Holly, 293 Md. 128, 442 A.2d 966 (1982).
2
Mo.State ex rel. Hall v. Cook, 400 S.W.2d 39 (Mo. 1966).
Nev.Hotel Riviera, Inc. v. Short, 80 Nev. 505, 396 P.2d 855, 20 A.L.R.3d 648 (1964).
End of Document

Damages
2. Factors Considered
257. Generally
Courts consider varying factors in determining the amount of punitive damages.
The factors that should be considered in setting an award for punitive damages include the nature of the case
at bar, 1 the nature or character of the act, 2 the duration of the conduct and any intentional concealment of the
conduct, 3 the amount of financial gain that the defendant gained or expected to gain as a result of the defendant's
conduct, 4 and the motive for the act. 5 In setting the award, courts also consider the deterrent effect. 6
Cases:
If awarded, punitive damages are restricted to cost of litigation less taxable costs of the action. R.I. Pools, Inc. v.
Paramount Concrete, Inc., 149 Conn. App. 839, 89 A.3d 993 (2014).
Conduct that risks harm to many is likely more reprehensible than conduct that risks harm to only a few, and a jury
consequently may take this fact into account in determining reprehensibility for purposes of punitive damages
awards. Philip Morris USA Inc. v. Cohen, 102 So. 3d 11 (Fla. 4th DCA 2012).
The following factors are considered in determining whether an award of exemplary damages is too high or low:
(1) the nature and extent of the harm to the plaintiff; (2) the wealth or financial situation of the defendant; (3) the
character of the conduct involved; (4) the extent to which such conduct offends a sense of justice and propriety;
and (5) the amount necessary to deter similar conduct in the future. Rachal v. Brouillette, 111 So. 3d 1137 (La.
Ct. App. 3d Cir. 2013), writ denied, 2013-690 La. 5/3/13, 2013 WL 1890708 (La. 2013).
Punitive damages imposed on defendant should reflect the enormity of his offense. MCA 271220, 271221.
McCulley v. U.S. Bank of Montana, 2015 MT 100, 347 P.3d 247 (Mont. 2015).
The focus of a punitive damages award should be the defendant, and the consideration should be what it will
take to bring about the twin aims of punishment and deterrence as to that defendant. Whetstone v. Binner, 2014Ohio-3018, 15 N.E.3d 905 (Ohio Ct. App. 5th Dist. Fairfield County 2014).
[END OF SUPPLEMENT]
Footnotes
Mo.Beste v. Tadlock, 565 S.W.2d 789 (Mo. Ct. App. 1978).
1
2
3
4
5
Tenn.Booth v. Kirk, 53 Tenn. App. 139, 381 S.W.2d 312 (1963).

U.S.Adams v. Hunter, 343 F. Supp. 1284 (D.S.C. 1972), aff'd, 471 F.2d 648 (4th Cir. 1973).
Cal.Walker v. Signal Companies, Inc., 84 Cal. App. 3d 982, 149 Cal. Rptr. 119 (4th Dist. 1978).
Colo.Frick v. Abell, 198 Colo. 508, 602 P.2d 852 (1979).
Kan.Ayers v. Christiansen, 222 Kan. 225, 564 P.2d 458 (1977).
Miss.College Life Ins. Co. of America v. Byrd, 367 So. 2d 929 (Miss. 1979).
Wis.Anello v. Savignac, 116 Wis. 2d 246, 342 N.W.2d 440, 15 Ed. Law Rep. 556 (Ct. App. 1983).
Likelihood of serious harm
AlaskaAsher v. Alkan Shelter, LLC, 212 P.3d 772 (Alaska 2009) (abrogated on other grounds by, Shaffer v. Bellows,
260 P.3d 1064 (Alaska 2011)).
260 P.3d 1064 (Alaska 2011)).
260 P.3d 1064 (Alaska 2011)).
IdahoBoise Dodge, Inc. v. Clark, 92 Idaho 902, 453 P.2d 551 (1969).
Tenn.Booth v. Kirk, 53 Tenn. App. 139, 381 S.W.2d 312 (1963).
UtahPowers v. Taylor, 14 Utah 2d 152, 379 P.2d 380 (1963).
U.S.Modern Management Co. v. Wilson, 997 A.2d 37 (D.C. 2010), cert. denied, 132 S. Ct. 111, 181 L. Ed. 2d 36
(2011).
260 P.3d 1064 (Alaska 2011)).
Ala.Todd v. United Steelworkers of America, AFL-CIO-CLC, 441 So. 2d 889 (Ala. 1983).
Miss.Mississippi Power & Light Co. v. Cook, 832 So. 2d 474 (Miss. 2002).
S.D.Black v. Gardner, 320 N.W.2d 153 (S.D. 1982).
Tex.Carter v. Barclay, 476 S.W.2d 909 (Tex. Civ. App. Amarillo 1972).
End of Document
258.Relationship to actual damages, 25A C.J.S. Damages 258

Damages
258. Relationship to actual damages
Some authority rejects a fixed ratio, while other authority holds that an award for punitive damages should
not be disproportionate to the actual damages sustained.
In some states, the law does not prescribe 1 or expressly rejects 2 a fixed ratio, or range of ratios, between punitive
and compensatory damages. Rather, punitive-damage awards must be tailored to case-specific facts in order to
achieve optimal deterrence and punishment. 3 However, in the appropriate case, a comparison of the compensatory
damages and the punitive damages award is important. 4
Indeed, some authority holds that the award should not be disproportionate to the actual damages sustained 5
or that the award must bear a reasonable relation or proportion to the actual damages sustained 6 or awarded. 7
However, a large disparity between punitive- and actual-damages awards may be allowable since the amount of
a punitive damages award has more to do with the defendant's behavior than the plaintiff's loss. 8
Footnotes
AlaskaCasciola v. F.S. Air Service, Inc., 120 P.3d 1059 (Alaska 2005).
1
2
3
4
5
661 N.W.2d 789 (2003).

As to the ratio of actual damages to punitive damages in the due-process analysis, see 266.
661 N.W.2d 789 (2003).
N.M.Marler v. Allen, 93 N.M. 452, 601 P.2d 85 (Ct. App. 1979).
Pa.Golomb v. Korus, 261 Pa. Super. 344, 396 A.2d 430 (1978).
Tex.Pace v. McEwen, 574 S.W.2d 792 (Tex. Civ. App. El Paso 1978), writ refused n.r.e., (May 9, 1979).
W.Va.Addair v. Huffman, 156 W. Va. 592, 195 S.E.2d 739 (1973).
258.Relationship to actual damages, 25A C.J.S. Damages 258
7
8
IowaJacobson v. Benson Motors, Inc., 216 N.W.2d 396, 14 U.C.C. Rep. Serv. 359 (Iowa 1974).
Mo.Schmidt v. Central Hardware Co., 516 S.W.2d 556 (Mo. Ct. App. 1974).
UtahHoldaway v. Hall, 29 Utah 2d 77, 505 P.2d 295 (1973).
U.S.Matter of Kratzer, 9 B.R. 235 (Bankr. W.D. Mo. 1981).
UtahJensen v. Pioneer Dodge Center, Inc., 702 P.2d 98 (Utah 1985).
OhioWightman v. Consolidated Rail Corp., 86 Ohio St. 3d 431, 1999-Ohio-119, 715 N.E.2d 546 (1999).
End of Document
259.Financial condition of defendant, 25A C.J.S. Damages 259

Damages
259. Financial condition of defendant
As a general rule, the financial condition of the defendant may be considered in determining the amount
of exemplary damages.
A defendant's wealth, 1 financial condition, 2 financial position, 3 net worth, 4 or ability to pay 5 is usually
relevant to the issue of punitive damages. The function of deterrence will not be served if the wealth of the
defendant allows him or her to absorb the award with little or no discomfort, 6 and punitive-damage awards should
not be a routine cost of doing business. 7 Rather, a punitive damages award ought to sting in order to deter. 8
However, wealth or economic situation is only one of several factors that courts consider in setting the amount of
punitive damages. 9 Courts note, too, that the purpose of punitive damages is not served by financially destroying
a defendant. 10 On the other hand, a defendant's inability to pay does not prohibit a jury from awarding punitive
damages 11 nor, in some jurisdictions, is a jury is not required to consider ability to pay before it awards punitive
damages. 12
Joint defendants.
Where different amounts may be awarded as exemplary damages against different defendants, the financial
condition of the several defendants may be considered. 13
Cases:
Under Arizona law, there is no exact monetary standard for assessing punitive damages; however, one factor that
should be considered is the wealth of the person or entity against whom punitive damages are to be awarded.
Sandpiper Resorts Development Corp. v. Global Realty Investments, LLC, 904 F. Supp. 2d 971 (D. Ariz. 2012).
259.Financial condition of defendant, 25A C.J.S. Damages 259
The trier of fact is not permitted to solely consider the co-defendants' profits and ability to pay when awarding
punitive damages against a particular defendant. West's N.C.G.S.A. 1D35(2). Hien Nguyen v. Taylor, 723
S.E.2d 551 (N.C. Ct. App. 2012).
[END OF SUPPLEMENT]
Footnotes
AlaskaLaidlaw Transit, Inc. v. Crouse ex rel. Crouse, 53 P.3d 1093 (Alaska 2002).
1
S.C.Branham v. Ford Motor Co., 390 S.C. 203, 701 S.E.2d 5 (2010).
A.L.R. Library
Necessity of determination of showing of liability for punitive damages before discovery or reception of evidence of
defendant's wealth, 32 A.L.R.4th 432.
AlaskaFleegel v. Estate of Boyles, 61 P.3d 1267 (Alaska 2002).
Md.Darcars Motors of Silver Spring, Inc. v. Borzym, 379 Md. 249, 841 A.2d 828 (2004).
Essential factor in fixing amount
Cal.Simon v. San Paolo U.S. Holding Co., Inc., 35 Cal. 4th 1159, 29 Cal. Rptr. 3d 379, 113 P.3d 63 (2005).
3
4
5
6
7
8
9
10
11
12
13
A.L.R. Library
Punitive damages: relationship to defendant's wealth as factor in determining propriety of award, 87 A.L.R.4th 141.
Ala.Ross v. Rosen-Rager, 67 So. 3d 29 (Ala. 2010).
Miss.Mississippi Power & Light Co. v. Cook, 832 So. 2d 474 (Miss. 2002).
S.C.Frazier v. Badger, 361 S.C. 94, 603 S.E.2d 587, 192 Ed. Law Rep. 968 (2004).
Ala.Ex parte Vulcan Materials Co., 992 So. 2d 1252 (Ala. 2008).
La.Mosing v. Domas, 830 So. 2d 967 (La. 2002).
OhioDardinger v. Anthem Blue Cross & Blue Shield, 98 Ohio St. 3d 77, 2002-Ohio-7113, 781 N.E.2d 121 (2002).
Mo.State ex rel. Hall v. Cook, 400 S.W.2d 39 (Mo. 1966).
A.L.R. Library
Financial worth of one or more of several joint defendants as proper matter for consideration in fixing punitive damages,
9 A.L.R.3d 692.
End of Document
260.Financial condition of defendantEvidence of wealth, 25A C.J.S. Damages 260

Damages
260. Financial condition of defendantEvidence of wealth
Courts differ on whether evidence of the defendant's wealth is necessary to support a punitive damages
award.
According to some decisions, evidence of the defendant's worth is not indispensable to an award of punitive
damages. 1 However, other authority holds that a plaintiff seeking to recover punitive damages based upon the
wealth of the defendant must establish the defendant's net worth at the time of trial 2 and that proof of a defendant's
ability to pay is required to prevent an award of punitive damages so great as to exceed the boundaries of
punishment and lead to bankruptcy. 3 Under similar authority, in the absence of evidence of a defendant's wealth
or financial condition, an award of punitive damages cannot be sustained. 4 Still, other authority holds that a court
need not consider the defendant's net worth in confirming a jury's damages award where the defendant fails to
produce evidence of his or her financial condition. 5
Evidence of a defendant's financial condition beyond net worth.

Evidence of a defendant's financial condition beyond net worth may be inadmissible for the purposes of
determining the appropriate level of damages. 6
Cases:
Trial court was required to conduct evidentiary hearing to determine the viability of patient's exemplary damages
claim against physician and his employer arising out of their alleged failure to maintain the confidentiality
of patient's HIV test results, and could not simply strike the claim and stay discovery on the issue pending a
determination of liability, where patient sought disclosure, during the course of pretrial discovery, of information
relating to physician's personal finances, and physician objected to the discovery requests and moved to strike the
claim for exemplary damages. Gen.Laws 1956, 537.39. Sherman v. Ejnes, 111 A.3d 371 (R.I. 2015).
260.Financial condition of defendantEvidence of wealth, 25A C.J.S. Damages 260
[END OF SUPPLEMENT]
Footnotes
Fla.Rinaldi v. Aaron, 314 So. 2d 762, 79 A.L.R.3d 1132 (Fla. 1975).
1
Kan.Carrick v. McFadden, 216 Kan. 683, 533 P.2d 1249, 91 A.L.R.3d 708 (1975).
Wis.Fahrenberg v. Tengel, 96 Wis. 2d 211, 291 N.W.2d 516 (1980).
As to the weight and sufficiency of evidence to warrant exemplary or punitive damages, generally, see 365.
2
3
4
5
6
A.L.R. Library
Punitive damages: relationship to defendant's wealth as factor in determining propriety of award, 87 A.L.R.4th 141.
Discovery of defendant's sales, earnings, or profits on issue of punitive damages in tort action, 54 A.L.R.4th 998.
D.C.Chatman v. Lawlor, 831 A.2d 395 (D.C. 2003).
D.C.Daka, Inc. v. McCrae, 839 A.2d 682 (D.C. 2003).
Wyo.Adel v. Parkhurst, 681 P.2d 886 (Wyo. 1984).
Mont.Blue Ridge Homes, Inc. v. Thein, 2008 MT 264, 345 Mont. 125, 191 P.3d 374 (2008).
S.C.Branham v. Ford Motor Co., 390 S.C. 203, 701 S.E.2d 5 (2010) (holding that evidence of income, revenues,
cash flow, and salaries of corporate officers was inadmissible).
End of Document
261.Financial condition of plaintiff, 25A C.J.S. Damages 261

Damages
261. Financial condition of plaintiff
Authority differs on whether the financial condition of the plaintiff may be considered in fixing a punitive
damages award.
According to one view, where the circumstances authorize exemplary damages, the financial condition of the
plaintiff may be considered, and evidence in that regard may be admitted. 1 However, there is authority to the
contrary. 2
Footnotes
Mo.Wisner v. S. S. Kresge Co., 465 S.W.2d 666 (Mo. Ct. App. 1971).
1
Ky.Hensley v. Paul Miller Ford, Inc., 508 S.W.2d 759 (Ky. 1974).
2
Tenn.Suzore v. Rutherford, 35 Tenn. App. 678, 251 S.W.2d 129 (1952).
End of Document
262.Mitigation, 25A C.J.S. Damages 262

Damages
262. Mitigation
Matters in mitigation of exemplary damages may be shown.
Where the plaintiff has introduced evidence as to circumstances warranting an imposition of exemplary damages,
the defendant is entitled to introduce facts tending to rebut such evidence and in mitigation. 1 Thus, it is permissible
to consider and show matters such as provocation, 2 the absence of malice, 3 the presence of good faith, 4 or that
the defendant acted under the advice of counsel. 5
Footnotes
IowaPogge v. Fullerton Lumber Co., 277 N.W.2d 916 (Iowa 1979).
1
N.Y.Rupert v. Sellers, 48 A.D.2d 265, 368 N.Y.S.2d 904 (4th Dep't 1975).
Wis.Herrmeyer v. Kleeman, 76 Wis. 2d 410, 251 N.W.2d 445 (1977).
As to mitigation or reduction of compensatory damages, generally, see 184.
3
4
5
A.L.R. Library
Effect of plaintiff's comparative negligence in reducing punitive damages recoverable, 27 A.L.R.4th 318.
UtahOstertag v. La Mont, 9 Utah 2d 130, 339 P.2d 1022 (1959) (rejected on other grounds by, Lopez v. Southwest
Community Health Services, 114 N.M. 2, 833 P.2d 1183 (Ct. App. 1992)).
Md.Feinberg v. George Washington Cemetery, Inc., 226 Md. 393, 174 A.2d 72 (1961).
Md.Feinberg v. George Washington Cemetery, Inc., 226 Md. 393, 174 A.2d 72 (1961).
N.Y.Roberts v. Conde Nast Publications, 286 A.D. 729, 146 N.Y.S.2d 493 (1st Dep't 1955).
As to the effect of good faith or reliance on the advice of counsel on the propriety of an exemplary-damage award,
see 247.
End of Document
263.Statutory factors and limits, 25A C.J.S. Damages 263

Damages
263. Statutory factors and limits
Matters in mitigation of exemplary damages may be shown.
As a matter of federal law, state legislatures have broad discretion in authorizing and limiting award of
punitive damages just as they do in fashioning criminal sanctions. 1 Some statutes may specify factors for fact
finders to consider in awarding punitive damages. 2 Consideration of the factors may be mandatory rather than
discretionary. 3
A statute may limit or cap the amount of punitive or exemplary damages that may be awarded 4 to an amount
equal to the actual damages, 5 a multiple of the actual damages, 6 a maximum dollar amount, 7 a percentage of the
defendant's net worth, 8 or a combination of these. 9 These limits apply equally to bench and jury trials. 10 They
have been upheld on review on vagueness, 11 separation of powers, 12 due-process, 13 and equal-protection 14
grounds but have been held not to apply to tort claims that accrued before the particular statute's effective date. 15
Footnotes
1
2
3
4
5
6
7
260 P.3d 1064 (Alaska 2011)).

Or.Williams v. Philip Morris Inc., 344 Or. 45, 176 P.3d 1255 (2008).
Or.Williams v. Philip Morris Inc., 344 Or. 45, 176 P.3d 1255 (2008).
Colo.Sky Fun 1 v. Schuttloffel, 27 P.3d 361 (Colo. 2001).
263.Statutory factors and limits, 25A C.J.S. Damages 263
8
9
10
11
12
13
14
15
Mont.Blue Ridge Homes, Inc. v. Thein, 2008 MT 264, 345 Mont. 125, 191 P.3d 374 (2008).
Colo.Sky Fun 1 v. Schuttloffel, 27 P.3d 361 (Colo. 2001).
End of Document

Damages
3. Judicial Review of Award
264. Generally
Common law and constitutional principles may require that the courts review the amount of punitive
damages to ensure that it is reasonable and not simply a criminal penalty.
Common law and constitutional principles may require that the courts review the amount of a punitive damages
award to ensure that it is reasonable and not simply a criminal penalty. 1 As a general rule, an award of exemplary
damages by a jury will not be disturbed as excessive or inadequate unless its amount, considered in connection
with the facts, is indicative of passion, prejudice, or corruption on the part of the jury 2 or unless the award is
clearly or grossly excessive. 3
Cases:
A reviewing court engaged in determining whether an award of punitive damages is excessive should accord
substantial deference to legislative judgments concerning appropriate sanctions for the conduct at issue. Aleo v.
SLB Toys USA, Inc., 466 Mass. 398, 995 N.E.2d 740 (2013).
Supreme Court applies a de novo standard of review when reviewing district court's determination of the
constitutionality of punitive damages awards. McCulley v. U.S. Bank of Montana, 2015 MT 100, 347 P.3d 247
(Mont. 2015).
Even in defamation per se cases, appellate review of amounts awarded for non-economic damages is still required
to ensure that any recovery only compensates the plaintiff for actual injuries and is not a disguised disapproval
of the defendant. Oliva v. Davila, 373 S.W.3d 94 (Tex. App. San Antonio 2011), reh'g overruled, (Feb. 24, 2012)
and review denied, (July 13, 2012).
When a court reviews an award of punitive damages, the court must first evaluate whether the conduct of the
defendant toward the plaintiff entitled the plaintiff to a punitive damages award; if a punitive damages award was
justified, the court must then examine the amount of the award in light of aggravating and mitigating criteria and
the compensatory/punitive damages ratio. CSX Transp., Inc. v. Smith, 729 S.E.2d 151 (W. Va. 2012).
[END OF SUPPLEMENT]
Footnotes
Mass.Labonte v. Hutchins & Wheeler, 424 Mass. 813, 678 N.E.2d 853 (1997).
1
U.S.Wegner v. Rodeo Cowboys Ass'n, 290 F. Supp. 369 (D. Colo. 1968), judgment aff'd, 417 F.2d 881 (10th Cir.
2
1969); Sheats v. Bowen, 318 F. Supp. 640 (D. Del. 1970).

Ariz.Maxwell v. Aetna Life Ins. Co., 143 Ariz. 205, 693 P.2d 348 (Ct. App. Div. 1 1984).
Cal.Rosener v. Sears, Roebuck & Co., 110 Cal. App. 3d 740, 168 Cal. Rptr. 237 (1st Dist. 1980).
IowaTeam Central, Inc. v. Teamco, Inc., 271 N.W.2d 914 (Iowa 1978).
La.Cooksey v. Central Louisiana Elec. Co., Inc., 279 So. 2d 242 (La. Ct. App. 3d Cir. 1973).
Okla.Jones v. Lennington, 1981 OK CIV APP 19, 629 P.2d 805 (Ct. App. Div. 2 1981).
Or.Huston v. Trans-Mark Services, Inc., 45 Or. App. 801, 609 P.2d 848 (1980).
Tex.Prudential Corp. v. Bazaman, 512 S.W.2d 85 (Tex. Civ. App. Corpus Christi 1974).
265, 266.
End of Document
265.Constitutional limits, 24 C.J.S. Damages 265

Damages
265. Constitutional limits
While states possess discretion over the imposition of punitive damages, the Constitution imposes certain
limits in respect both to procedures for awarding punitive damages and to amounts forbidden as grossly
excessive.
While states possess discretion over the imposition of punitive damages, 1 the Constitution imposes certain limits
in respect both to procedures for awarding punitive damages and to amounts forbidden as grossly excessive. 2
Specifically, the Due Process Clause of the 14th Amendment 3 prohibits the imposition of grossly excessive or
arbitrary punishments on a tortfeasor. 4 To the extent that an award of punitive damages is grossly excessive, it
furthers no legitimate purpose and constitutes an arbitrary deprivation of property. 5 Thus, in awarding punitive
damages, courts must ensure that the measure of punishment is both reasonable and proportionate to the amount
of harm to the plaintiff and to the general damages recovered. 6
The due-process limitation on the amount of punitive damages is inexact and affords considerable discretion to the
trier of fact in making punitive damages awards. 7 However, the United States Supreme Court recognizes three
constitutional guideposts for review of the constitutionality of punitive damages: (1) the degree of reprehensibility
of the defendant's misconduct, (2) the disparity between the actual or potential harm suffered by the plaintiff and
the punitive damages award, and (3) the difference between the punitive damages awarded by the jury and the
civil penalties authorized or imposed in comparable cases. 8
Most important indicium.

The most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility
of the defendant's conduct. 9
Role of courts rather than jury.
The jury does not apply the Due Process Clause to punitive damages award to determine if the award is
unconstitutionally excessive. 10 Rather, that burden lies with the trial court and the appellate courts. 11 Analysis
of the ratio of punitive damages to actual damages for due-process purposes is a determination to be made by the
trial court in the first instance, subject to appellate review. 12
Cases:
Large punitive damages awards implicate constitutional due process principles; to the extent an award is
grossly excessive, it furthers no legitimate purpose and constitutes an arbitrary deprivation of property. U.S.C.A.
Const.Amend. 14. Turley v. ISG Lackawanna, Inc., 774 F.3d 140 (2d Cir. 2014).
In ADA failure to accommodate case, punitive damages award of $200,000, which magistrate judge had already
remitted to comply with statutory cap, was not so grossly excessive as to offend Fourteenth Amendment Due
Process Clause and would not be further remitted to $10,000, considering degree of reprehensibility of employer's
misconduct, ratio between punitive and compensatory damages or compensatory damages plus back pay, and
difference between punitive damages awarded by jury and civil penalties authorized or imposed in comparable
cases. U.S.C.A. Const.Amend. 14; 42 U.S.C.A. 1981a(b)(3)(D); Americans with Disabilities Act of 1990,
102(b)(5)(A), 42 U.S.C.A. 12112(b)(5)(A). E.E.O.C. v. AutoZone, Inc., 707 F.3d 824 (7th Cir. 2013).
Award of $30 million in punitive damages, in addition to award of $3 million in compensatory damages to each
of two religious group escapees, failed to comport with due process, and thus, punitive damages award would
be reduced to $12 million to each escapee in their action against religious group leader alleging battery, outrage
and conspiracy; 4:1 ratio for punitive to compensatory damages was appropriate, as leader's conduct in beating
escapees for years, while they were part of group, was more reprehensible than conduct in other cases where
ratio was 2:1 or 1:1, 4:1 ratio was appropriate given large award of compensatory damages to each escapee, and
punitive damages award was sufficient to achieve proper punishment and to deter similar reprehensible violence
against children in the future. U.S.C.A. Const.Amend. 14. Ondrisek v. Hoffman, 698 F.3d 1020 (8th Cir. 2012).
When determining the reprehensibility of defendant, as indicium of the reasonableness of a punitive damages
award, lower courts are to consider whether harm caused was physical as opposed to economic, tortious conduct
evinced an indifference to or a reckless disregard of the health or safety of others, target of the conduct had
financial vulnerability, conduct involved repeated actions or was an isolated incident, and harm was the result of
intentional malice, trickery, or deceit, or mere accident. MCA 271220, 271221. McCulley v. U.S. Bank of
Montana, 2015 MT 100, 347 P.3d 247 (Mont. 2015).
Standing alone, the wealth of a defendant cannot justify an otherwise unconstitutional punitive damages award
that is excessive under the due process clause. U.S.C.A. Const.Amend. 14; W.S.A. 895.043. Kimble v. Land
Concepts, Inc., 2014 WI 21, 353 Wis. 2d 377, 845 N.W.2d 395 (2014).
[END OF SUPPLEMENT]
Footnotes
1
2
3
Serv. 1349, 1 A.L.R. Fed. 2d 739 (2003).

U.S.Philip Morris USA v. Williams, 549 U.S. 346, 127 S. Ct. 1057, 166 L. Ed. 2d 940 (2007).
U.S. Const. Amend. XIV, 1.
6
7
8
10
11
12
Serv. 1349, 1 A.L.R. Fed. 2d 739 (2003);
In re Simon II Litigation, 407 F.3d 125, 7 A.L.R.6th 797 (2d Cir. 2005).
Serv. 1349, 1 A.L.R. Fed. 2d 739 (2003).
S.D.Roth v. Farner-Bocken Co., 2003 SD 80, 667 N.W.2d 651 (S.D. 2003).
Serv. 1349, 1 A.L.R. Fed. 2d 739 (2003).
Cal.Bullock v. Philip Morris USA, Inc., 198 Cal. App. 4th 543, 131 Cal. Rptr. 3d 382 (2d Dist. 2011), review denied,
(Nov. 30, 2011).
Serv. 1349, 1 A.L.R. Fed. 2d 739 (2003).
Ala.Shiv-Ram, Inc. v. McCaleb, 892 So. 2d 299 (Ala. 2003), as clarified on denial of reh'g, (Apr. 2, 2004).
Cal.Johnson v. Ford Motor Co., 35 Cal. 4th 1191, 29 Cal. Rptr. 3d 401, 113 P.3d 82 (2005).
Ky.Craig & Bishop, Inc. v. Piles, 247 S.W.3d 897 (Ky. 2008).
Mass.Clifton v. Massachusetts Bay Transp. Authority, 445 Mass. 611, 839 N.E.2d 314 (2005).
N.H.Madeja v. MPB Corp., 149 N.H. 371, 821 A.2d 1034 (2003).
N.M.Chavarria v. Fleetwood Retail Corp., 2006-NMSC-046, 140 N.M. 478, 143 P.3d 717 (2006), as revised, (Oct.
11, 2006).
Or.Hamlin v. Hampton Lumber Mills, Inc., 349 Or. 526, 246 P.3d 1121 (2011).
S.C.Mitchell, Jr. v. Fortis Ins. Co., 385 S.C. 570, 686 S.E.2d 176 (2009), cert. denied, (Mar. 22, 2010) and cert.
denied, 130 S. Ct. 1896, 176 L. Ed. 2d 366 (2010).
Serv. 1349, 1 A.L.R. Fed. 2d 739 (2003).
Ala.Ross v. Rosen-Rager, 67 So. 3d 29 (Ala. 2010).
(2011).
La.Wooley v. Lucksinger, 23 So.3d 953, 2009-0571 (La. 4/1/11).
Or.Parrott v. Carr Chevrolet, Inc., 331 Or. 537, 17 P.3d 473 (2001).
661 N.W.2d 789 (2003).
OhioBarnes v. Univ. Hosps. of Cleveland, 119 Ohio St. 3d 173, 2008-Ohio-3344, 893 N.E.2d 142 (2008).
End of Document
266.Constitutional limitsProportionality with compensatory..., 24 C.J.S. Damages ...

Damages
266. Constitutional limitsProportionality with compensatory damages
As a matter of fundamental fairness, the ratio between compensatory damages and punitive damages
awards must be reasonable. However, the United States Supreme Court has declined to impose a brightline ratio that a punitive damages award cannot exceed.
Proportionality between punitive damages and compensatory damages is a factor to be considered in evaluating
whether a punitive damage award is excessive. 1 As a matter of fundamental fairness, 2 the ratio between
compensatory damages and punitive damages awards must be reasonable. 3
The United States Supreme Court has declined to impose a bright-line ratio that a punitive damages award cannot
exceed. 4 However, the Court has indicated that in practice, few awards exceeding a single-digit ratio between
punitive and compensatory damages, to a significant degree, will satisfy due process. 5
Some authority suggests a constitutional comfort zone of a three- or four-to-one ratio of punitive damages to
compensatory damages. 6 However, that is a rule of thumb, a general prediction regarding what ratios will satisfy
due process. 7 Indeed, it has been held that for awards of punitive damages greater than $100,000, somewhat
lower ratio than three to one between awards of punitive and compensatory damages is usually appropriate. 8
When the amount of compensatory damages are substantial, a lesser ratio, perhaps only one to one, can reach the
outermost limit of the due-process guarantee. 9
A higher ratio may be justified in cases in which the harm to the plaintiff is hard to detect or the monetary value of
noneconomic harm is difficult to determine. 10 A higher ratio may also be justified when a particularly egregious
act has resulted in only a small amount of economic damages. 11
In particular cases, ratios of punitive to compensatory damages of five to one, 12 4.5 to one, 13 and eight to one 14
have been upheld after consideration of all factors present. However, ratios of 127 to one 15 and a 35 to one 16
have been found excessive on review.
Cases:
Ten-thousand-dollar minimum damages provision of Texas statute that prohibits the filing of false liens mandated
damages of a generally compensatory nature, even if not designed to compensate for any particular, actual harm
suffered by individual named in fraudulent lien, based on harm that the filing of fraudulent liens caused to
reliability of public records system; accordingly, damages awarded pursuant to this provision were not exemplary
damages, and were not subject to limitations imposed by the Civil Practice and Remedies Code on exemplary
damages awards. V.T.C.A., Civil Practice & Remedies Code 12.002(b)(1)(A), 41.004(a). Vanderbilt Mortg.
and Finance, Inc. v. Flores, 692 F.3d 358 (5th Cir. 2012).
The adequacy of the combined award of compensatory and punitive damages to motivate the prosecution of a
meritorious claim is the proper focus under the due process clause of the analysis of the ratio itself; if compensatory
damages are slight, a single-digit ratio is likely to be insufficient. U.S.C.A. Const.Amend. 14. Neuros Co., Ltd.
v. KTurbo, Inc., 698 F.3d 514 (7th Cir. 2012).
Punitive damages award of $18 million to estate of swimmer, who died from injuries she sustained when she
attempted to use inflatable slide for in-ground swimming pool and hit her head was not grossly excessive, and,
thus, did not violate Due Process Clause; seller of slide neglected to ensure that slide conformed with applicable
safety regulations before it sold slide to customers, even when it knew or should have known, based on instructions
with slide and warning label affixed thereon, that head-first use, such as swimmer had attempted, could result in
serious, if not catastrophic, injury or death, jury had awarded estate $2,640,000 in compensatory damages, which
meant a ratio of slightly less than seven to one between punitive and compensatory damages awards that was within
constitutional range, and seller potentially could have been subject to $1,250,000 in civil fines for importation of
slide. U.S.C.A. Const.Amend. 14. Aleo v. SLB Toys USA, Inc., 466 Mass. 398, 995 N.E.2d 740 (2013).
Ratio of punitive damages to compensatory damages awarded to purchaser weighed in favor of finding that
purchaser's punitive damages award of $5,000,000 was not grossly excessive under Due Process Clause in
her action against mortgagee, alleging that mortgagee defrauded purchaser by issuing, without notice, an 18month commercial loan, rather than 30-year residential property loan for which she had applied; ratio between
punitive and compensatory damages was 5:1, and award ratio was lower than previous award ratios upheld as not
unconstitutionally excessive. U.S.C.A. Const.Amend. 14; MCA 271220, 271221. McCulley v. U.S. Bank of
Montana, 2015 MT 100, 347 P.3d 247 (Mont. 2015).
The outer limit of the ratio of punitive damages to compensatory damages in cases in which the defendant has
acted with extreme negligence or wanton disregard but with no actual intention to cause harm and in which
compensatory damages are neither negligible nor very large is roughly 5 to 1; however, when the defendant has
acted with actual evil intention, much higher ratios are not per se unconstitutional. CSX Transp., Inc. v. Smith,
729 S.E.2d 151 (W. Va. 2012).
When compensatory damages are awarded, a court that is reviewing a punitive damages award to determine
whether it is excessive and thus violates the due process clause is to consider whether the punitive damages
award bears a reasonable relationship to the award of compensatory damages. U.S.C.A. Const.Amend. 14; W.S.A.
895.043. Kimble v. Land Concepts, Inc., 2014 WI 21, 353 Wis. 2d 377, 845 N.W.2d 395 (2014).
[END OF SUPPLEMENT]
Footnotes
1
W.Va.Rohrbaugh v. Wal-Mart Stores, Inc., 212 W. Va. 358, 572 S.E.2d 881 (2002).
2
Ala.Orkin Exterminating Co., Inc. v. Jeter, 832 So. 2d 25 (Ala. 2001).
3
4
5
6
7
8
9
10
11
12
13
14
15
16
UtahSmith v. Fairfax Realty, Inc., 2003 UT 41, 82 P.3d 1064 (Utah 2003).
Serv. 1349, 1 A.L.R. Fed. 2d 739 (2003).
U.S.Exxon Shipping Co. v. Baker, 554 U.S. 471, 128 S. Ct. 2605, 171 L. Ed. 2d 570 (2008); State Farm Mut. Auto.
Ins. Co. v. Campbell, 538 U.S. 408, 123 S. Ct. 1513, 155 L. Ed. 2d 585, 60 Fed. R. Evid. Serv. 1349, 1 A.L.R. Fed.
2d 739 (2003).
Serv. 1349, 1 A.L.R. Fed. 2d 739 (2003).
AlaskaOrkin Exterminating Co., Inc. v. Jeter, 832 So. 2d 25 (Ala. 2001).
Ill.International Union of Operating Engineers, Local 150 v. Lowe Excavating Co., 225 Ill. 2d 456, 312 Ill. Dec.
238, 870 N.E.2d 303 (2006).
Serv. 1349, 1 A.L.R. Fed. 2d 739 (2003).
238, 870 N.E.2d 303 (2006).
Mont.Marie Deonier & Associates v. Paul Revere Life Ins. Co., 2004 MT 297, 323 Mont. 387, 101 P.3d 742 (2004).
U.S.Eden Elec., Ltd. v. Amana Co., 370 F.3d 824 (8th Cir. 2004).
U.S.Craig Outdoor Advertising, Inc. v. Viacom Outdoor, Inc., 528 F.3d 1001 (8th Cir. 2008).
S.C.Atkinson v. Orkin Exterminating Co., Inc., 361 S.C. 156, 604 S.E.2d 385 (2004).
End of Document
267.Other factors, 25A C.J.S. Damages 267

Damages
267. Other factors
94, 208(8)
A.L.R. Library
Plaintiff's Rights to Punitive or Multiple Damages When Cause of Action Renders Both Available, 2
A.L.R.5th 449
In evaluating awards for excessiveness, courts consider other factors than the ratio of compensatory
damages to punitive damages, including the deterrent effect, criminal sanctions, litigation expenses, nature
of the wrong, and the defendant's motive.
In evaluating awards for excessiveness, courts consider other factors than the ratio of punitive damages to
compensatory damages, 1 such as the prospective deterrent effect of the award. 2 Courts may also consider any
criminal sanctions, 3 the amount of attorney's fees 4 and litigation costs. 5 Courts also consider the motives or
intent of the defendant, 6 the nature and enormity of the wrong, 7 and the extent of the defendant's disregard of
the rights of others. 8 Indeed, the reprehensibility of the misconduct provides the most important justification for
departing upward from the constitutional comfort zone of three or four to one. 9
Financial condition.
In evaluating a punitive damages award for excessiveness, courts consider a defendant's financial condition and
ability to pay. 10 However, wealthy defendants are entitled to due process, 11 and the wealth of a defendant cannot
justify an otherwise unconstitutional punitive damages award. 12
Information not available to the jury.

In evaluating the excessiveness of a punitive damages award, a court may consider information that was not
available to the jury because it was unduly prejudicial to the defendant. 13
267.Other factors, 25A C.J.S. Damages 267
Footnotes
266.
1
Colo.Qwest Services Corp. v. Blood, 252 P.3d 1071 (Colo. 2011), as modified on denial of reh'g, (June 20, 2011)
2
3
4
5
6
7
8
9
10
11
12
13
and cert. dismissed, 2012 WL 89969 (U.S. 2012).

W.Va.Perrine v. E.I. du Pont de Nemours and Co., 225 W. Va. 482, 694 S.E.2d 815 (2010).
238, 870 N.E.2d 303 (2006).
U.S.McElgunn v. Cuna Mut. Ins. Soc., 700 F. Supp. 2d 1141 (D.S.D. 2010) (applying South Dakota law).
Md.Darcars Motors of Silver Spring, Inc. v. Borzym, 379 Md. 249, 841 A.2d 828 (2004).
As to the financial condition of defendant as a basis for setting the amount of a punitive damages award in the first
instance, see 259, 260.
Serv. 1349, 1 A.L.R. Fed. 2d 739 (2003).
Ind.Stroud v. Lints, 790 N.E.2d 440 (Ind. 2003).
W.Va.Perrine v. E.I. du Pont de Nemours and Co., 225 W. Va. 482, 694 S.E.2d 815 (2010).
End of Document
Research References, 25A C.J.S. Damages VII Refs.
25A C.J.S. Damages VII Refs.

Damages
VII. Multiple Damages
Research References
A.L.R. Library
End of Document
268.Validity and construction of statutes, 25A C.J.S. Damages 268

Damages
268. Validity and construction of statutes
Under some statutes, the amount recoverable in certain classes of cases may be a multiple of the amount
of the actual loss sustained.
Although a double recovery of damages may generally not be permitted, 1 under some statutes, the amount
recoverable may be a multiple of the actual loss sustained usually either twice or three times the amount. 2 An
award of multiple damages is an extraordinary remedy 3 that is available only when the legislature expressly
provides for such damages by statute. 4
Option to recover punitive damages.

A plaintiff may have an option to recover punitive damages instead of the treble damages mandated by statute. 5
Footnotes
As to double recovery of damages, see 10.
1
Me.Michaud v. City of Bangor, 160 Me. 285, 203 A.2d 687 (1964).
2
3
4
5
A.L.R. Library
Right to prejudgment interest on punitive or multiple damages awards, 9 A.L.R.5th 63.
Plaintiff's Rights to Punitive or Multiple Damages When Cause of Action Renders Both Available, 2 A.L.R.5th 449.
Validity, Construction, and Application of 18 U.S.C.A. sec. 2333(a), Which Allows U.S. Nationals Who Have Been
Injured "By Reason of Act of International Terrorism" to Sue Therefor and Recover Treble Damages, 195 A.L.R. Fed.
217.
Mass.Goodrow v. Lane Bryant, Inc., 432 Mass. 165, 732 N.E.2d 289 (2000).
Tenn.Givens v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383 (Tenn. 2002).
A.L.R. Library
Plaintiff's Rights to Punitive or Multiple Damages When Cause of Action Renders Both Available, 2 A.L.R.5th 449.
268.Validity and construction of statutes, 25A C.J.S. Damages 268
End of Document
269.Penal nature of statutes, 25A C.J.S. Damages 269

Damages
269. Penal nature of statutes
Jurisdictions vary as to whether statutes allowing multiple recovery of damages are penal in nature.
Under some authority, the mere fact that damages are double, accumulative, or enhanced does not render them
penal or determine the statute to be penal. 1 Multiple-damages provisions may be enacted to serve remedial rather
than punitive purposes, 2 such as ensuring full compensation or encouraging private enforcement of the law. 3
Other authority, however, holds that that multiple 4 or treble 5 damages are essentially punitive in nature so that
a statute creating treble-damages remedy is regarded as punitive rather than remedial. 6
Footnotes
N.H.LaBarre v. Daneault, 123 N.H. 267, 461 A.2d 89 (1983).
1
2
3
Mass.Cormier v. Pezrow New England, Inc., 437 Mass. 302, 771 N.E.2d 158 (2002).
4
Cal.Imperial Merchant Services, Inc. v. Hunt, 47 Cal. 4th 381, 97 Cal. Rptr. 3d 464, 212 P.3d 736 (2009).
5
6
Mo.Carpenter v. Countrywide Home Loans, Inc., 250 S.W.3d 697 (Mo. 2008).
Wis.Tri-Tech Corp. of America v. Americomp Services, Inc., 2002 WI 88, 254 Wis. 2d 418, 646 N.W.2d 822 (2002).
Serving same purpose as punitive damages
Statutory provisions for double or treble damages often do serve the same penal purposes as punitive damages.
End of Document
270.Construction, 25A C.J.S. Damages 270

Damages
270. Construction
Jurisdictions vary as to whether statutes allowing multiple recovery of damages are penal in nature.
Under some authority, an award of treble damages does not require a finding of a culpable mental state. 1 It has
also been held that absent evidence of legislative intent to the contrary, the preponderance of evidence standard of
proof applies to statutes that provide for multiple damages. 2 Other authority holds that when the award of multiple
damages are awarded for penal purposes, proof requirements similar to punitive damages must be satisfied 3 but
not when multiple damages are awarded for remedial purposes. 4
Strict construction.
When a statute creating treble-damages remedy is regarded as punitive, it is strictly construed. 5
Footnotes
Mo.Carpenter v. Countrywide Home Loans, Inc., 250 S.W.3d 697 (Mo. 2008).
1
2
3
4
5
What constitutes willfulness or malice justifying landlord's collection of statutory multiple damages for tenant's
wrongful retention of possession, 7 A.L.R.4th 589.
Conn.Stuart v. Stuart, 297 Conn. 26, 996 A.2d 259 (2010).
Wis.Tri-Tech Corp. of America v. Americomp Services, Inc., 2002 WI 88, 254 Wis. 2d 418, 646 N.W.2d 822 (2002).
A.L.R. Library
Validity, Construction, and Application of 18 U.S.C.A. sec. 2333(a), Which Allows U.S. Nationals Who Have Been
Injured "By Reason of Act of International Terrorism" to Sue Therefor and Recover Treble Damages, 195 A.L.R. Fed.
217.
End of Document

Damages
Correlation Table
Summary
Scope:
Treated Elsewhere:
1 et seq.
97 to 133
Westlaw Databases
End of Document
Research References, 25A C.J.S. Damages VIII Refs.
25A C.J.S. Damages VIII Refs.

Damages
VIII. Pleading
Research References
A.L.R. Library
A.L.R. Index, Pleadings
End of Document
Research References, 25A C.J.S. Damages VIII A Refs.
25A C.J.S. Damages VIII A Refs.

Damages
VIII. Pleading
A. Declaration, Complaint, or Petition
Research References
A.L.R. Library
West's A.L.R. Digest, Pleading 279(1)
End of Document

Damages
VIII. Pleading
1. Allegation of Damages in General
271. Generally
Damages must be pled with reasonable certainty. A plaintiff's initial pleading in an action for damages
must state a cause of action and set out the amount of damage sustained or afford a basis on which the
damages may be estimated.
In accordance with the rule that a plaintiff's initial pleading must state a cause of action 1 and must ordinarily set
out the amount of damage sustained in a definite amount 2 or afford a basis on which damages may be estimated, 3
damages, like any other element of a plaintiff's case, must be pled 4 with reasonable certainty. 5
While a complaint that does not allege or ask damages is defective, 6 it is not necessary to allege in express terms
that the plaintiff was damaged 7 unless such averment is essential to the statement of the cause of action. 8
Breach of contract.
A plaintiff must plead damages resulting from an alleged breach of contract. 9
Footnotes
As to the rule that a plaintiff's initial pleading must state a cause of action, see C.J.S., Pleading 115 to 145.
1
U.S.Thomas v. Barton Lodge II, Ltd., 174 F.3d 636 (5th Cir. 1999).
2
Wyo.White v. Fisher, 689 P.2d 102 (Wyo. 1984).
3
4
S.D.In re Estate of Olson, 2008 SD 97, 757 N.W.2d 219 (S.D. 2008).
5
U.S.Decker v. Fillis, 306 F. Supp. 613 (D. Utah 1969).
6
Cal.Gallagher v. California Pacific Title & Trust Co., 13 Cal. App. 2d 482, 57 P.2d 195 (1st Dist. 1936).
7
U.S.B.F. Avery & Sons v. J.I. Case Plow Works, 174 F. 147 (C.C.A. 7th Cir. 1909).
8
U.S.Brader v. Allegheny General Hosp., 64 F.3d 869 (3d Cir. 1995).
9
End of Document
272.Prevention of damage, 25A C.J.S. Damages 272

Damages
VIII. Pleading
272. Prevention of damage
If a duty to reduce or prevent damages exists, the plaintiff may allege performance of that duty or show
facts excusing his or her failure so to do.
If the injured person is required to do all in his or her power to reduce or prevent accumulation of damages, 1
he or she may allege the performance of that duty or show facts excusing his or her failure so to do. 2 Where,
however, no such duty exists, no such effort need be alleged. 3 Where the failure of the plaintiff to mitigate the
damages may be invoked only by way of defense, 4 it may not be necessary that the plaintiff negative his or her
failure to mitigate the damages. 5
Footnotes
As to the requirement that the injured person must do all in his or her power to reduce or prevent the accumulation
1
2
3
4
5
of damages, see 44 to 50.

Mont.Borgeas v. Oregon Short Line R. Co., 73 Mont. 407, 236 P. 1069 (1925).
Ky.Black Mountain Corp. v. Parsons, 277 Ky. 486, 126 S.W.2d 874 (1939).
As to a defense for the failure of the plaintiff to mitigate damages, see 297.
Ga.Norris v. Johnson, 209 Ga. 293, 71 S.E.2d 540 (1952).
End of Document
273.Itemizing damages, 25A C.J.S. Damages 273

Damages
VIII. Pleading
273. Itemizing damages
In the absence of a statute to the contrary, it is not necessary to state separately the amounts claimed for
each of the particular items of actual damages alleged.
In the absence of a statute to the contrary, it is not necessary to state separately the amounts claimed for each of the
particular items of actual damages alleged. 1 However, under the circumstances of the case, lump-sum damages
may be insufficient, and damages may be required to be itemized. 2
Where the petition itemizes the damages, the recovery should be confined to the items alleged. 3
Footnotes
Wis.Olson v. Johnson, 267 Wis. 462, 66 N.W.2d 346 (1954).
1
La.Culps v. U. S. Fidelity & Guar. Co., 206 So. 2d 570 (La. Ct. App. 1st Cir. 1968).
2
Tex.Albaugh-Wright Lumber Co. v. Henderson, 33 S.W.2d 228 (Tex. Civ. App. San Antonio 1930).
3
End of Document
274.Damages accruing after commencement of action, 25A C.J.S. Damages 274

Damages
VIII. Pleading
274. Damages accruing after commencement of action
West's Key Number Digest, Pleading 279(1)
A supplemental pleading is ordinarily necessary to permit recovery of damages accruing after institution
of suit.
The assessment of damages is usually governed by the situation or condition of affairs existing at the time when
the action is brought. 1 To recover damages occurring after the complaint has been filed, the plaintiff should
amend or file a supplementary petition or pleading. 2 In some jurisdictions, however, this is rendered unnecessary
by statute. 3
Footnotes
452.
1
N.Y.Brinberg v. Oliver Typewriter Co., 174 A.D. 511, 161 N.Y.S. 226 (1st Dep't 1916).
2
OhioGeorge B. Scrambling Co. v. Tennant Drug Co., 25 Ohio App. 197, 5 Ohio L. Abs. 325, 158 N.E. 282 (8th
Dist. Cuyahoga County 1927).
Cal.Berry v. Bank of Bakersfield, 177 Cal. 206, 170 P. 415 (1918).
End of Document

Damages
VIII. Pleading
275. Nominal damages
A complaint disclosing the right to at least nominal damages is ordinarily good as against a demurrer or
motion to dismiss.
A complaint that discloses the right to a recovery of at least nominal damages is good as against a demurrer or
motion to dismiss 1 even though there is no allegation of compensatory damages. 2
A declaration stating a claim for compensatory or actual damages presents a right to recover at least nominal
damages. 3 However, where there is no allegation showing actual damage 4 and none authorizing punitive
damages, 5 only nominal damages are recoverable.
Footnotes
Fla.Rutig v. Lake Jem Land Co., 155 Fla. 420, 20 So. 2d 497 (1945).
1
N.M.Crawford v. Taylor, 58 N.M. 340, 270 P.2d 978 (1954).
2
N.C.Matthews v. Forrest, 235 N.C. 281, 69 S.E.2d 553 (1952).
3
Ala.McGill v. Varin, 213 Ala. 649, 106 So. 44 (1925).
4
Ala.Womack v. McDonald, 219 Ala. 75, 121 So. 57 (1929).
5
End of Document
276.General damages, 25A C.J.S. Damages 276

Damages
VIII. Pleading
2. Allegation of General or Special Damages
276. General damages
Damages are recoverable without being specially pleaded.
Damages may be pleaded generally. 1 General damages may be alleged in a lump sum, and the pleader need not
segregate or apportion the amount claimed for the separate elements of general damage 2 although the pleader
may set out with particularity the different items of injuries for which he or she claims damages. 3 The facts on
which the plaintiff relies for recovery are all that need be pleaded where general damages are claimed. 4
Footnotes
U.S.Karseal Corp. v. Richfield Oil Corp., 221 F.2d 358 (9th Cir. 1955).
1
2
3
4
As to the definitions of "general" and "special" damages, generally, see 7.

Pa.Creighton v. Media Troop No. 1, Boy Scouts of America, 38 Del. Co. 410 (Pa. C.P. 1951).
OhioSpencer v. Miller, 84 Ohio App. 190, 39 Ohio Op. 239, 52 Ohio L. Abs. 347, 82 N.E.2d 763 (2d Dist. Franklin
County 1948).
Pa.Scott v. Karpinski, 5 Bucks 280 (Pa. C.P. 1956).
End of Document
277.Necessity of alleging special damages, 25A C.J.S. Damages 277

Damages
VIII. Pleading
277. Necessity of alleging special damages
Special damages must be specially pleaded to warrant proof thereof or a recovery therefor.
Only the damages that are the necessary result of the acts complained of can be recovered under a plea of general
damages. 1 Special damages, which are the natural but not necessary result of the wrongful acts or injury, must
be particularly averred in the complaint to warrant proof thereof or a recovery therefore. 2 This is true whether
they result from tort 3 or breach of contract. 4
Special damages cannot be recovered unless alleged in the complaint or specified in a bill of particulars. 5 Indeed,
by rule in some jurisdictions, special damages must be specifically stated in the pleadings. 6 The purposes of such
a rule are met where the plaintiff states the nature of the injury and sets forth the specific elements of damages
for which he or she seeks judgment. 7 This permits the defendant to make a reasonably informed judgment as to
whether to actively defend the action. 8
Footnotes
1
UtahPrince v. Peterson, 538 P.2d 1325 (Utah 1975).
2
3
4
5
As to the definitions of "general" and "special" damages, generally, see 7.

Okla.McClanahan v. Hughes, 1949 OK 261, 202 Okla. 279, 212 P.2d 669 (1949).
Cal.Fellows v. National Enquirer, Inc., 42 Cal. 3d 234, 228 Cal. Rptr. 215, 721 P.2d 97, 57 A.L.R.4th 223 (1986).
A.L.R. Library
Necessity and manner, in personal injury or death action, of pleading special damages in the nature of medical, nursing,
and hospital expenses, 98 A.L.R.2d 746.
Haw.In re Genesys Data Technologies, Inc., 95 Haw. 33, 18 P.3d 895 (2001).
Nev.Horgan v. Felton, 123 Nev. 577, 170 P.3d 982 (2007).
As to this rule with respect to attorney's fees as special damages, see 290.
277.Necessity of alleging special damages, 25A C.J.S. Damages 277
7
8
End of Document
278.Sufficiency of special-damages allegations, 25A C.J.S. Damages 278

Damages
VIII. Pleading
278. Sufficiency of special-damages allegations
All of the essential elements necessary to be proved to establish special damages must be set forth, and such
damages must be so pleaded as to advise the defendant of what he or she may expect to meet at the trial.
In pleading special damages, all of the essential elements necessary to be proved to establish such damages must
be set forth 1 and must be so pleaded as to advise the defendant of what he or she may expect to meet at the
trial. 2 The facts showing the cause of injury must be stated, 3 and the facts showing how the special damages
claimed arose must be stated. 4
Amount.
In some jurisdictions, in pleading special damages, it is necessary to aver the amount thereof specifically. 5
Footnotes
Ky.Lee v. Stamper, 300 S.W.2d 251 (Ky. 1957).
1
2
3
4
A.L.R. Library
Ala.Crommelin v. Montgomery Independent Telecasters, Inc., 280 Ala. 391, 194 So. 2d 548 (1967).
N.Y.Zausner v. Fotochrome, Inc., 18 A.D.2d 649, 235 N.Y.S.2d 698 (1st Dep't 1962).
Cal.McCready v. Bullis, 59 Cal. App. 286, 210 P. 638 (2d Dist. 1922).
Ga.Darlington Corp. v. Evans, 88 Ga. App. 84, 76 S.E.2d 72 (1953).
Wis.Maxwell v. Stack, 246 Wis. 487, 17 N.W.2d 603 (1945).
Cal.Shook v. Pearson, 99 Cal. App. 2d 348, 221 P.2d 757 (4th Dist. 1950).
End of Document
279.Liquidated damages, 25A C.J.S. Damages 279

Damages
VIII. Pleading
3. Allegation of Liquidated, Punitive, and Multiple Damages
a. Liquidated and Multiple Damages
Liquidated damages may be recovered only on proper pleading although the pleading of actual damages
is unnecessary.
Liquidated damages may be recovered only on proper pleading. 1 In an action to recover liquidated damages
provided for in a contract, it is sufficient to show a breach of the contract by the defendant without pleading and
proving a specific injury or actual damages. 2
Footnotes
Ga.Bower v. Certain-Teed Products Corp., 216 Ga. 646, 119 S.E.2d 5 (1961).
1
2
As to liquidated damages, generally, see 192 to 212.

Tex.Ferguson v. Ferguson, 110 S.W.2d 1016 (Tex. Civ. App. Eastland 1937).
End of Document
280.Multiple or statutory damages, 25A C.J.S. Damages 280

Damages
VIII. Pleading
a. Liquidated and Multiple Damages
280. Multiple or statutory damages
Where the damages sought are determinable or augmented by reason of some statute, facts bringing the
cause within the statute must be alleged.
Statutory or multiple damages may be recovered only by proper pleading. 1 Where damages sought to be recovered
arise by virtue of statute, the complaint must allege facts sufficient to bring the case clearly within such statute. 2
A complaint alleging merely a common-law cause of action is not sufficient in such a case. 3
Demand for double or treble damages.

Ordinarily, double or treble damages sought to be recovered should be demanded in the declaration. 4
Nevertheless, according to some authorities, where circumstances are shown in which it is the duty of the court
to award double or treble damages, they should be awarded although not demanded. 5
Footnotes
OhioBell v. Northern Ohio Tel. Co., 149 Ohio St. 157, 36 Ohio Op. 501, 78 N.E.2d 42 (1948).
1
2
3
4
5
As to multiple damages, generally, see 268.

Neb.George Rose Sodding & Grading Co., Inc. v. City of Omaha, Douglas County, 190 Neb. 12, 205 N.W.2d 655
(1973).
Wis.Christian v. City of New London, 234 Wis. 123, 290 N.W. 621 (1940).
Conn.Dunbar v. Jones, 87 Conn. 253, 87 A. 787 (1913).
S.D.Bekker v. White River Valley Ry. Co., 28 S.D. 84, 132 N.W. 797 (1911).
End of Document

Damages
VIII. Pleading
b. Punitive or Exemplary Damages
281. Generally
Under some authority, punitive damages need not be pled in a complaint, but it has also been held that
where the pleading is framed strictly on the theory of compensatory damages, exemplary damages cannot
be recovered.
Under some authority, punitive damages need not be pled in a complaint. 1 However, where the pleading is framed
strictly on the theory of compensatory damages, exemplary damages cannot be recovered. 2 Further, in those
jurisdictions where exemplary damages can be recovered only when actual damages are shown, 3 a complaint
failing to allege actual damages, 4 or clearly negativing the right to actual damages, 5 fails to state a cause of
action for exemplary damages.
Notice through pretrial proceedings.

Where punitive damages are not sought in the pleadings, sufficiently early notification in course of pretrial
proceedings that punitive damages are being sought may give fair notice to opposing party. 6
Footnotes
AlaskaGreat Divide Ins. Co. v. Carpenter ex rel. Reed, 79 P.3d 599 (Alaska 2003).
1
2
3
4
5
6
As to punitive damages, generally, see 221 to 235.

Mich.Caradonna v. Thorious, 17 Mich. App. 41, 169 N.W.2d 179 (1969).
As to jurisdictions where exemplary damages can be recovered only when actual damages are shown, see 233.
Ill.Franks v. North Shore Farms, Inc., 115 Ill. App. 2d 57, 253 N.E.2d 45 (1st Dist. 1969).
U.S.Young v. Main, 72 F.2d 640 (C.C.A. 8th Cir. 1934).
End of Document
282.Not pleaded as special damages, 25A C.J.S. Damages 282

Damages
VIII. Pleading
282. Not pleaded as special damages
Exemplary damages need not be specially pleaded.
Since exemplary damages are not special damages, 1 exemplary or punitive damages need not be specially pleaded
or demanded by that name in the declaration. 2 In other words, such damages need not be pleaded as a separate
cause of action but may be recovered under a general claim for damages. 3
Cases:
While the ultimate inquiry is whether the plaintiff will probably prevail on the claim, the court considering a
request to amend complaint to add a claim for punitive damages must consider the clear and convincing evidentiary
standard the plaintiff will eventually need to meet at trial. West's K.S.A. 603702(c), 603703. Adamson v.
Bicknell, 287 P.3d 274 (Kan. 2012).
[END OF SUPPLEMENT]
Footnotes
S.C.Tucker v. Reynolds, 268 S.C. 330, 233 S.E.2d 402 (1977).
1
2
As to pleading for special damages, generally, see 277.

N.Y.Berkovits v. Hanley, 40 A.D.2d 921, 338 N.Y.S.2d 339 (3d Dep't 1972).
Amendment of complaint to add punitive damages claim
U.S.Olson v. Snap Products, Inc., 29 F. Supp. 2d 1027 (D. Minn. 1998).
IdahoHarrington v. Hadden, 69 Idaho 22, 202 P.2d 236 (1949).
As to pleading for general damages, see 276.
282.Not pleaded as special damages, 25A C.J.S. Damages 282
Insufficient notice
U.S.Anheuser-Busch, Inc. v. John Labatt Ltd., 89 F.3d 1339 (8th Cir. 1996).
End of Document
283.Facts supporting, 25A C.J.S. Damages 283

Damages
VIII. Pleading
283. Facts supporting
A complaint pursuing punitive damages should, at a minimum, allege conduct that meets legal standard
for award of punitive damages.
Generally, a plaintiff cannot pursue a claim for punitive damages where no hint of such a claim was contained
in the pleadings. 1 The complaint should, at a minimum, allege conduct that meets legal standard for award
of punitive damages. 2 It is necessary, as well as sufficient, that the facts or elements justifying a recovery of
such damages be pleaded. 3 The language contained in the pleadings must be sufficiently explicit to inform the
court and opposing counsel that such damages are being sought. 4 Generally, the complaint must allege acts or
circumstances indicating that the tort was committed either fraudulently, maliciously, willfully, or wantonly or
showing gross negligence or oppression. 5 Conclusory allegations of oppression, fraud, or malice may comply
with federal pleading standards for a claim for punitive damages 6 but may be insufficient under state law. 7
Footnotes
U.S.Seibert v. Nusbaum, Stein, Goldstein, Bronstein & Compeau, P.A., 167 F.3d 166 (3d Cir. 1999).
1
2
U.S.Gorman v. Saf-T-Mate, Inc., 513 F. Supp. 1028 (N.D. Ind. 1981).
3
Pleading insufficient
U.S.Anthony v. Security Pacific Financial Services, Inc., 75 F.3d 311 (7th Cir. 1996).
Conn.Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 852 A.2d 703 (2004).
By motion
To support a motion to add punitive damages, a plaintiff is required to establish a reasonable likelihood she could
prove by a preponderance of the evidence that the defendant acted oppressively, fraudulently, wantonly, maliciously,
or outrageously.
283.Facts supporting, 25A C.J.S. Damages 283
5
6
7
U.S.Guillen v. Kuykendall, 470 F.2d 745 (5th Cir. 1972).

Green v. Ingram, 269 Va. 281, 608 S.E.2d 917 (2005).
U.S.Clark v. State Farm Mut. Auto. Ins. Co., 231 F.R.D. 405, 63 Fed. R. Serv. 3d 57 (C.D. Cal. 2005).
U.S.Porter v. Ogden, Newell & Welch, 241 F.3d 1334 (11th Cir. 2001) (applying California law).
End of Document
284.Loss of time or earnings, 25A C.J.S. Damages 284

Damages
VIII. Pleading
4. Allegation of Particular Losses
a. Generally
284. Loss of time or earnings
The authorities are not in accord as to whether loss of time or earnings are special damages to be specially
pleaded.
In some jurisdictions, in order to permit proof of, or recovery for, loss of time, or loss of earnings for a time, 1 it
is required that the loss be specially pleaded. 2 However, in other jurisdictions, it would seem that proof of this
nature is admissible without a special allegation, 3 and loss of earnings may be recoverable under an allegation
of general damages. 4
Footnotes
Ky.Augustus v. Goodrum, 224 Ky. 558, 6 S.W.2d 703 (1928).
1
Neb.Siciunas v. Checker Cab Co., Inc., 191 Neb. 766, 217 N.W.2d 824 (1974).
2
Mass.Roselli v. Riseman, 280 Mass. 338, 182 N.E. 567 (1932).
3
Cal.Gersick v. Shilling, 97 Cal. App. 2d 641, 218 P.2d 583 (1st Dist. 1950).
4
End of Document
285.Impairment of earning capacity, 25A C.J.S. Damages 285

Damages
VIII. Pleading
a. Generally
285. Impairment of earning capacity
The authorities are not in agreement with respect to the necessity of pleading specially a loss or impairment
of earning powers.
The authorities are not in agreement with respect to the necessity of pleading specially a loss or impairment of
earning powers. 1 According to some authorities, damages resulting from loss or impairment of earning power
are special damages and must be pleaded specially, to be recoverable, 2 at least if the injuries pleaded are not of
such character as may be presumed to be permanent. 3 According to other authorities, loss of earning capacity, as
distinct from loss of earnings, wages, or salaries, is an item of general damages that need not be specially pleaded. 4
Footnotes
UtahClawson v. Walgreen Drug Co., 108 Utah 577, 162 P.2d 759 (1945).
1
Or.Conachan v. Williams, 266 Or. 45, 511 P.2d 392 (1973).
2
Okla.Fruechting v. Gilley, 1953 OK 217, 259 P.2d 530 (Okla. 1953).
3
UtahCohn v. J. C. Penney Co., Inc., 537 P.2d 306 (Utah 1975).
4
End of Document
286.Loss of profits, 25A C.J.S. Damages 286

Damages
VIII. Pleading
a. Generally
Whether or not recovery may be had for loss of profits under a general allegation of damage depends on
whether under the facts, such damage is considered general or special.
Although it has been broadly stated that, in order to be recoverable, lost profit must be specially claimed, 1
ordinarily, whether or not recovery may be had for, or proof made of, loss of profits under a general allegation of
damages depends on whether or not such damages are on the facts involved to be considered general or special. 2
In pleading special damages resulting from loss of profits, sufficient facts should be alleged to show definitely
that profits would have occurred except for the defendant's wrongful act. 3 A pleading that seeks as an item of
damage loss of profits that are uncertain or speculative is insufficient. 4
Footnotes
Ala.Bayliss Mach. & Welding Co. v. Huntsville Ice & Coal Co., 265 Ala. 383, 91 So. 2d 483 (1956).
1
Pa.Beaver v. Reisinger Bros., Inc., 8 Cumb. L.J. 165 (Pa. C.P. 1958).
2
Ga.Globe Motors, Inc. v. Noonan, 106 Ga. App. 486, 127 S.E.2d 320 (1962).
3
Pa.Desire Fashion, Inc. v. Int. Ladies Gar. Workers' Union, 50 Luz. L.R. 102 (Pa. C.P. 1960).
4
End of Document
287.Interest, 25A C.J.S. Damages 287

Damages
VIII. Pleading
a. Generally
287. Interest
Interest as damages is usually recoverable under general allegation of damages if the amount sought is
large enough to cover both the actual loss and damages.
Interest recoverable as damages has been regarded as an incident to the debt, and usually may be recovered under
the general allegation of damages without being specially claimed, 1 provided that the damages claimed are laid
in sufficient amount to cover the actual loss plus interest to the time of trial. 2 If the plaintiff is entitled to interest
as part of his or her damages as a matter of law or right, the court should allow it under a prayer for general relief. 3
Footnotes
Tex.Lone Star Gas Co. v. Mitchell, 407 S.W.2d 543 (Tex. Civ. App. Tyler 1966).
1
Fla.Southeastern Mobile Homes, Inc. v. Transit Homes, Inc., 192 So. 2d 53 (Fla. Dist. Ct. App. 2d Dist. 1966).
2
3
As to the necessity and mode of pleading interest, generally, see C.J.S., Interest and Usury; Consumer Credit 137.
Tex.Laredo Hides Co., Inc. v. H & H Meat Products Co., Inc., 513 S.W.2d 210, 16 U.C.C. Rep. Serv. 78 (Tex. Civ.
App. Corpus Christi 1974), writ refused n.r.e., (Feb. 5, 1975).
End of Document

Damages
VIII. Pleading
b. Expenses
288. Generally
Generally, expenses paid or incurred by reason of the wrongful acts are considered special damages to be
specially pleaded.
As a general rule, expenses paid or incurred by reason of the defendant's wrongful act are regarded as special
damages that must be alleged in order that they may be proved or recovered, 1 and the pleading must also set
forth facts showing the defendant's liability for such expense. 2 Ordinarily, such expenses must be alleged with
certainty and particularity. 3 Where they are stated in a gross sum, the opposing party may attack the pleading
by timely and appropriate objection. 4
Footnotes
La.Morein v. G. J. Deville Lumber Co., 215 So. 2d 208 (La. Ct. App. 3d Cir. 1968).
1
Tex.Owl Taxi Service v. Saludis, 122 S.W.2d 225 (Tex. Civ. App. Austin 1938), writ dismissed.
2
Ga.Smith v. Monroe, 82 Ga. App. 118, 60 S.E.2d 790 (1950).
3
4
Special demurrer
Ga.Smith v. Monroe, 82 Ga. App. 118, 60 S.E.2d 790 (1950).
End of Document
289.Medical, hospital, and nursing, 25A C.J.S. Damages 289

Damages
VIII. Pleading
b. Expenses
289. Medical, hospital, and nursing
Usually, in personal injury actions, medical and kindred expenses must be pleaded to be recoverable.
Usually, in personal injury actions, medical and kindred expenses must be specially pleaded to be recoverable, 1
and this is also true as to medical expenses that will be necessarily incurred in the future. 2 However, some
authority states that such expenses are considered as a reasonably necessary result of the injury and may be proved
under a general allegation of damages. 3
Future expenses.
Future medical expenses may, in a proper case, be recoverable under allegations setting up special medical
expenses as an element of damages without specifically referring to such future expenses. 4
Footnotes
Mo.Moore v. Parks, 458 S.W.2d 344 (Mo. 1970).
1
2
3
4
A.L.R. Library
Ind.Shown v. Taylor, 120 Ind. App. 154, 88 N.E.2d 783 (1949).
OhioAbrams v. Clark, 76 Ohio L. Abs. 49, 145 N.E.2d 358 (C.P. 1957).
End of Document
290.Litigation and attorney's fees, 25A C.J.S. Damages 290

Damages
VIII. Pleading
b. Expenses
290. Litigation and attorney's fees
As a general rule, in order to be recoverable as damages, litigation expenses, including attorney's fees, must
be properly claimed in the pleadings.
Litigation expenses, including attorney's fees, in order to be recoverable as items of damage 1 must be properly
claimed in the pleadings. 2 Under some of the authorities, attorney's fees, as special damages, must be specially
pleaded. 3 Under such authority, attorney's fees, not usually being a necessary or legally implied result of a
wrong, cannot be shown unless such expenditure is specially averred. 4 Further, the mention of attorney's fees in
a complaint's general prayer for relief is insufficient to meet the requirement that fees be specially pleaded. 5
Footnotes
As to the rules pertaining to compensation for expenses of litigation and attorney's fees, see 83 to 87.
1
2
3
4
5
Complaint sufficient
Ga.Bowman v. Poole, 212 Ga. 261, 91 S.E.2d 770 (1956).
Nev.Horgan v. Felton, 123 Nev. 577, 170 P.3d 982 (2007).
Pa.Pennsylvania R.R. v. Armco Steel Corp., 112 Pitts. L.J. 261 (Pa. C.P. 1964).
La.McGowan-Rigsby Supply, Inc. v. Charles Carter & Co., Inc., 268 So. 2d 716 (La. Ct. App. 1st Cir. 1972).
Nev.Sandy Valley Associates v. Sky Ranch Estates Owners Ass'n, 117 Nev. 948, 35 P.3d 964 (2001).
End of Document

Damages
VIII. Pleading
c. Personal Injuries
291. Generally
Personal injuries that are the natural and probable result of the injuries complained of or are reasonably
included therein need not be set out in detail. Effects that are not the natural and necessary result of the
injury complained of must be specially pleaded.
Damages for personal injuries may be recovered only by proper pleading. 1 While in actions for personal injuries,
the nature of the injuries sustained should be alleged with reasonable certainty so as to give the defendant notice, 2
where the injury is alleged, proof may be made of, and a recovery had for, the natural and probable consequences
thereof although such consequences are not set up in detail. 3 Where particular injuries are set forth in broad or
general terms, proof may be made of and recovery had for injuries that are reasonably included therein or of which
the defendant can be said to have had reasonable notice. 4
However, broad general statements as to the injuries suffered may be insufficient. 5 Further, all effects not the
natural and necessary result of the injury complained of constitute special damages and hence must be specially
averred. 6
Aggravation of preexisting condition.

The courts are not in accord as to whether the aggravation or recurrence of a previously existing condition must
be specially pleaded to justify proof of or recovery. 7 Some courts find that such a special allegation thereof is
essential, 8 while others find that it is not. 9
Footnotes
IowaStupka v. Scheidel, 244 Iowa 442, 56 N.W.2d 874 (1953).
1
Probable adverse results and medical possibility thereof
Ga.Mull v. Emory University, Inc., 114 Ga. App. 63, 150 S.E.2d 276 (1966).
Tenn.Grace v. Curley, 3 Tenn. App. 1, 1926 WL 2018 (1926).
Amount of loss stated secondary

N.Y.Douglas v. Latona, 61 Misc. 2d 859, 306 N.Y.S.2d 992 (Sup 1970).
N.C.Thacker v. Ward, 263 N.C. 594, 140 S.E.2d 23 (1965).
4
5
6
7
8
9
Corrective procedures
Okla.Gustin v. Meadows, 1974 OK CIV APP 12, 521 P.2d 429 (Ct. App. Div. 1 1974).
Okla.Gustin v. Meadows, 1974 OK CIV APP 12, 521 P.2d 429 (Ct. App. Div. 1 1974).
N.Y.Adair v. Young, 205 N.Y.S.2d 463 (Sup 1959).
Alternate allegations
Or.Russell v. Mount Hood R. Co., 267 Or. 335, 517 P.2d 276 (1973).
S.C.Crozier v. Charleston & W. C. Ry. Co., 222 S.C. 121, 71 S.E.2d 800 (1952).
N.Y.Roth v. Hudson Transit Lines, Inc., 72 Misc. 2d 999, 340 N.Y.S.2d 224 (Sup 1972).
Wash.Johnson v. Howard, 45 Wash. 2d 433, 275 P.2d 736 (1954).
End of Document
292.Pain, mental anguish, and suffering, 25A C.J.S. Damages 292

Damages
VIII. Pleading
292. Pain, mental anguish, and suffering
Although mental pain and suffering may properly be pleaded as an element of damages, pain and suffering
need not be specially pleaded where inseparable from, and a natural consequence of, the physical injury.
Although mental pain and suffering may properly be pleaded as an element of damages, 1 no allegation as of
special damage is necessary to recover for mental suffering where it is allowed as an element of damages since
such suffering is inseparably connected with and attends personal injuries. 2 Likewise, pain and suffering need
not be specially pleaded where inseparable from, and a natural consequence of, the physical injury. 3
Footnotes
Ga.Mull v. Emory University, Inc., 114 Ga. App. 63, 150 S.E.2d 276 (1966).
1
Md.Barrett v. Charlson, 18 Md. App. 80, 305 A.2d 166 (1973).
2
Better practice
Pa.Ziegenfus v. Reed, 62 Sch. L.R. 7 (Pa. C.P. 1966).
Special pleading required
OhioGennari v. Andres-Tucker Funeral Home, Inc., 21 Ohio St. 3d 102, 488 N.E.2d 174 (1986).
End of Document
293.Permanency of injury, 25A C.J.S. Damages 293

Damages
VIII. Pleading
293. Permanency of injury
Proof may not be made as to the permanency of injuries suffered without any allegation of permanent
injuries, but if it is expressly averred that injuries are permanent, proof thereof is admissible.
Proof may not be made as to the permanency of injuries suffered without any allegation of permanent injuries. 1 If
it is expressly averred that the injuries are permanent, proof thereof is admissible, 2 but such an express averment
is not necessary where facts from which the permanency of the injury will necessarily be implied are alleged. 3
Footnotes
Mo.Gurwell v. Jefferson City Lines, 239 Mo. App. 305, 192 S.W.2d 683 (1946).
1
Mich.Tregonning v. Castantini, 243 Mich. 233, 220 N.W. 171 (1928).
2
Allegations sufficient
Ga.Beavers v. Johnson, 112 Ga. App. 677, 145 S.E.2d 776 (1965).
Ga.Seaboard Air Line R. Co. v. Hollomon, 97 Ga. App. 16, 102 S.E.2d 185 (1958).
End of Document
Research References, 25A C.J.S. Damages VIII B Refs.
25A C.J.S. Damages VIII B Refs.

Damages
VIII. Pleading
B. Plea or Answer
Research References
A.L.R. Library
West's A.L.R. Digest, Damages 141 , 150 , 154 , 155 , 157 , 157(1)
End of Document

Damages
VIII. Pleading
B. Plea or Answer
294. Generally
West's Key Number Digest, Damages 141, 150, 154, 157, 157(1)
The defendant may plead in his or her plea or answer any fact that will defeat, in whole or in part, the cause
of action for damages set up in the plaintiff's pleadings.
In accordance with the general rules of pleading in civil cases, which apply to the plea or answer in an action for
damages, 1 the defendant may plead any fact that will defeat, in whole or in part, the claim for damages. 2
In a personal injury action, a general denial puts in issue the question whether the plaintiff has been injured. 3
However, a denial that the plaintiff has suffered damages in the exact sum alleged in the complaint is insufficient
to make an issue as to damages 4 unless, under some court rules, the defendant wishes to raise an issue as to the
amount of damages only. 5
A civil defendant's allegation that a plaintiff's damages are speculative or not supported by proof need not be
pleaded as an affirmative defense. 6 This is because the plaintiff's burden of proving damages necessarily puts at
issue whether the damages are speculative. 7
Release of cotortfeasor.
A reduction of damages award against a tortfeasor, pursuant to a statute governing the effect of the release of one
or more tortfeasors, must be pleaded as an affirmative defense. 8
Footnotes
S.C.Bailey v. Lyman Printing & Finishing Co., 245 S.C. 13, 138 S.E.2d 410 (1964).
1
2
As to pleas or answers, generally, see C.J.S., Pleading 158 to 166.

Tex.Brazos River Authority v. City of Graham, 335 S.W.2d 247 (Tex. Civ. App. Fort Worth 1960), writ refused
n.r.e., (Jan. 25, 1961) and writ granted, (Mar. 15, 1961) and aff'd in part, rev'd in part on other grounds, 163 Tex. 167,
354 S.W.2d 99 (1961).
Tex.Brown v. Poff, 387 S.W.2d 101 (Tex. Civ. App. El Paso 1965), writ refused n.r.e., 392 S.W.2d 113 (Tex. 1965).
4
5
6
7
8
Minn.Hartwig v. Loyal Order of Moose, Brainerd Lodge No. 1246, 253 Minn. 347, 91 N.W.2d 794, 75 A.L.R.2d
459 (1958).
Mich.Albert v. Chambers, 335 Mich. 111, 55 N.W.2d 752 (1952).
Nev.Clark County School Dist. v. Richardson Const., Inc., 123 Nev. 382, 168 P.3d 87, 224 Ed. Law Rep. 455 (2007).
Nev.Clark County School Dist. v. Richardson Const., Inc., 123 Nev. 382, 168 P.3d 87, 224 Ed. Law Rep. 455 (2007).
Mo.Norman v. Wright, 100 S.W.3d 783 (Mo. 2003).
End of Document

Damages
VIII. Pleading
B. Plea or Answer
A defense that a provision for liquidated damages set up in the complaint is void as constituting a penalty
must be pleaded.
A defense that a provision for liquidated damages set up in the complaint is void as constituting a penalty must
be pleaded 1 unless its illegality appears on the face of the contract or complaint. 2 Where the complaint seeking
liquidated damages contains an allegation of nonpayment, the defense of payment must be affirmatively pleaded. 3
Footnotes
Tex.Smith v. Waite, 424 S.W.2d 691 (Tex. Civ. App. Waco 1968), writ refused n.r.e., (Apr. 10, 1968).
1
2
3
Contention waived
Tex.LoBue v. United Services Planning Ass'n, 467 S.W.2d 574 (Tex. Civ. App. Fort Worth 1971), writ dismissed,
(Oct. 6, 1971).
Tex.Phillips v. Phillips, 820 S.W.2d 785 (Tex. 1991).
N.Y.Posner v. Rosenberg, 149 A.D. 272, 133 N.Y.S. 704 (2d Dep't 1912).
End of Document
296.Damages in affirmative defenses or counterclaim, 25A C.J.S. Damages 296

Damages
VIII. Pleading
B. Plea or Answer
296. Damages in affirmative defenses or counterclaim
Under some rules of practice and procedure, reference to damages should not appear in affirmative
defenses.
Under some rules of practice and procedure, reference to damages should not appear in affirmative defenses. 1
Counterclaim and recoupment.

Allegations of damages sought by the defendant in a counterclaim or recoupment should be as certain and definite,
and as clear, precise, and concise, as those required in the statement of claim or declaration. 2
Footnotes
N.Y.C & Z Diner Bar, Inc. v. 16 West Post Road Diner Bar, Inc., 226 N.Y.S.2d 550 (Sup 1962).
1
Ala.Lambert v. Jefferson, 251 Ala. 5, 36 So. 2d 594 (1948).
2
Allegations sufficient
Ariz.Bloch v. Bentfield, 1 Ariz. App. 412, 403 P.2d 559 (1965).
End of Document
297.Matters in mitigation, 25A C.J.S. Damages 297

Damages
VIII. Pleading
B. Plea or Answer
297. Matters in mitigation
Facts in mitigation may be pleaded in partial, but not full, defense. Such matters must be specially pleaded
according to some authority but not according to others.
As a partial defense in an action for damages, the defendant may plead facts in mitigation 1 provided that such
facts relate to matters that may be urged in reduction of damages. 2 Facts that are in mitigation of damages only
should not, however, be pleaded as a justification or full defense. 3
Failure to mitigate.
Failure to mitigate damages is an affirmative defense, 4 which must be raised and proven by the proponent. 5
Payment.
Payment received by the injured person may be pleaded in mitigation as an affirmative defense. 6
Footnotes
N.Y.Gill v. Montgomery Ward & Co., 284 A.D. 36, 129 N.Y.S.2d 288, 49 A.L.R.2d 1452 (3d Dep't 1954).
1
2
3
4
A.L.R. Library
Pleading matter in mitigation of damages in tort action other than libel and slander, 75 A.L.R.2d 473.
Pleading good faith or lack of malice in mitigation of damages in action for false arrest or imprisonment, 49 A.L.R.2d
1460.
Pleading mitigation of damages, or the like, in employee's action for breach of employment contract, 41 A.L.R.2d 955.
N.C.Girard Trust Bank v. Easton, 3 N.C. App. 414, 165 S.E.2d 252 (1969).
As to the rules for mitigation or reduction of loss, see 184 to 191.
N.Y.Hammond v. Crowell Pub. Co., 253 A.D. 205, 1 N.Y.S.2d 728 (1st Dep't 1938).
Me.Mill Pond Condominium Ass'n v. Manalio, 2006 ME 135, 910 A.2d 392 (Me. 2006).
297.Matters in mitigation, 25A C.J.S. Damages 297
5
6

N.C.Brown v. Griffin, 263 N.C. 61, 138 S.E.2d 823 (1964).
End of Document
Research References, 25A C.J.S. Damages VIII C Refs.
25A C.J.S. Damages VIII C Refs.

Damages
VIII. Pleading
C. Issues, Proof, and Variance
Research References
A.L.R. Library
End of Document

Damages
VIII. Pleading
298. Generally
West's Key Number Digest, Damages 156, 157, 157(1), 157(3) to 157(5), 158, 158(.5) to 158(7), 159, 159(1)
to 159(6), 160, 161
As a general rule, only such issues involving damages as are raised by the pleadings can be considered.
Only such matters and issues involving damages can be considered as are raised by the pleadings. 1 This rule has
been applied to the items and elements of damage, 2 exemplary damages, 3 future losses of pecuniary benefits, 4
aggravation of a preexisting injury, 5 and prior earning capacity. 6
Footnotes
U.S.Joiner Systems, Inc. v. AVM Corp., Inc., 517 F.2d 45 (3d Cir. 1975).
1
Tex.Southern Pac. Transp. Co. v. Allen, 525 S.W.2d 300 (Tex. Civ. App. Houston 14th Dist. 1975).
2
Va.Harrell v. Woodson, 233 Va. 117, 353 S.E.2d 770 (1987).
3
4
5
6
General prayer for punitive damages sufficient

Ariz.Tarnoff v. Jones, 17 Ariz. App. 240, 497 P.2d 60 (Div. 1 1972).
Mo.Lanasa v. Downey, 201 S.W.2d 179 (Mo. Ct. App. 1947).
OhioCuthbertson v. Cincinnati Union Terminal, 103 Ohio App. 385, 3 Ohio Op. 2d 411, 145 N.E.2d 467, 71 A.L.R.2d
1 (1st Dist. Hamilton County 1957).
Cal.Osterode v. Almquist, 89 Cal. App. 2d 15, 200 P.2d 169 (4th Dist. 1948).
End of Document
299.Burden, 25A C.J.S. Damages 299

Damages
VIII. Pleading
299. Burden
West's Key Number Digest, Damages 156, 157, 157(1), 157(3) to 157(5), 158, 158(.5) to 158(7), 159, 159(1)
to 159(6), 160, 161
In actions for damages, it is essential that the plaintiff prove all facts permitted by the pleadings and
necessary to establishment of the damages that he or she seeks.
In actions for damages, it is essential that the plaintiff prove all facts permitted by the pleadings and necessary
to establishment of the damages that he or she seeks, 1 and such proof as is warranted by the pleadings may be
made. 2 This rule has been applied to exemplary damages, 3 liquidated damages, 4 special damages, 5 and loss
of time or earnings. 6 Conversely, the defendant must prove an affirmative matter relating to the damages sought
to be recovered that he or she has placed in issue by his or her pleadings, such as, matters alleged in mitigation
of damages. 7
Footnotes
Wyo.Walton v. Atlantic Richfield Co., 501 P.2d 802 (Wyo. 1972).
1
Ind.Allied Engineering & Fabrication, Inc. v. Josam Mfg. Co., 150 Ind. App. 458, 276 N.E.2d 911 (1971).
2
Cal.Forte v. Nolfi, 25 Cal. App. 3d 656, 102 Cal. Rptr. 455 (1st Dist. 1972).
3
U.S.Thompson v. Goubert, 168 Cal. App. 2d 257, 335 P.2d 754 (4th Dist. 1959).
4
Pa.Thompson v. City of Philadelphia, 222 Pa. Super. 417, 294 A.2d 826 (1972).
5
Ky.Moore v. Wheeler, 425 S.W.2d 541 (Ky. 1968).
6
Tex.P. G. Lake, Inc. v. Sheffield, 438 S.W.2d 952 (Tex. Civ. App. Tyler 1969), writ refused n.r.e., (July 2, 1969).
7
End of Document
300.Correspondence between pleading and proof, 25A C.J.S. Damages 300

Damages
VIII. Pleading
300. Correspondence between pleading and proof
West's Key Number Digest, Damages 156, 157, 157(1), 158(.5) to 158(7), 159, 159(1) to 159(6), 162
As a general rule, the pleadings and proof must correspond, and the damages awarded must be warranted
by the pleadings and proof.
As a general rule, the pleadings and proof in actions involving damages must correspond 1 although substantial
correspondence between the pleading and proof as to damages may be sufficient. 2 Further, the damages recovered
must be warranted by the pleadings, 3 and the proof, 4 although under some rules of procedure where evidence
as to an item has been received without objection, the pleadings will be deemed enlarged in that respect. 5
Since a defendant is entitled to know from the plaintiff's pleading the character of the injury for which he or
she must answer, 6 proof must be confined to the injuries alleged or to injuries resulting from those alleged. 7
Evidence of damages for an injury not mentioned in the pleadings or for which no claim for damages is alleged
cannot be admitted where due objection. 8
Footnotes
Ariz.Eaton Fruit Co. v. California Spray-Chemical Corp., 103 Ariz. 461, 445 P.2d 437 (1968).
1
Cal.Carlotto, Ltd. v. County of Ventura, 47 Cal. App. 3d 931, 121 Cal. Rptr. 171 (2d Dist. 1975).
2
Ga.Bennett v. Associated Food Stores, Inc., 118 Ga. App. 711, 165 S.E.2d 581 (1968).
3
4
5
6
7
8
Breach of contract
Tex.Farris v. Smith Erectors, Inc., 516 S.W.2d 281 (Tex. Civ. App. Houston 1st Dist. 1974).
La.Saulter v. Cousin, 294 So. 2d 251 (La. Ct. App. 1st Cir. 1974).
La.Cheatham v. Lee, 277 So. 2d 513 (La. Ct. App. 1st Cir. 1973), writ denied, 279 So. 2d 696 (La. 1973).
As to the allegation of damages, generally, see 271 to 275.
Conn.Conti v. Brown, 149 Conn. 465, 181 A.2d 591 (1962).
Tex.Weingartens, Inc. v. Price, 461 S.W.2d 260 (Tex. Civ. App. Houston 14th Dist. 1970), writ refused n.r.e., (Feb.
17, 1971).
Aggravated injury
300.Correspondence between pleading and proof, 25A C.J.S. Damages 300
Mo.Rogers v. Spain, 388 S.W.2d 518 (Mo. Ct. App. 1965).

End of Document
301.Special damages, 25A C.J.S. Damages 301

Damages
VIII. Pleading
301. Special damages
Proof of special damages under a general averment of damages may constitute a fatal variance.
Since special damages must be specially pleaded, an attempt to introduce evidence of special damages under a
general averment of damages may be a fatal variance. 1 Thus, too, special damages must be proved as alleged. 2
Footnotes
1
N.Y.Zausner v. Fotochrome, Inc., 18 A.D.2d 649, 235 N.Y.S.2d 698 (1st Dep't 1962).
2
False-light invasion of privacy claim
Cal.Fellows v. National Enquirer, Inc., 42 Cal. 3d 234, 228 Cal. Rptr. 215, 721 P.2d 97, 57 A.L.R.4th 223 (1986).
Aggravation of preexisting condition
Under New York law, aggravation of a preexisting condition is an element of special damages that must be specially
pleaded and proven before recovery therefor can be allowed.
U.S.Hogan v. Wal-Mart Stores, Inc., 167 F.3d 781, 42 Fed. R. Serv. 3d 1270 (2d Cir. 1999).
End of Document
302.Measure of damages; value, 25A C.J.S. Damages 302

Damages
VIII. Pleading
302. Measure of damages; value
West's Key Number Digest, Damages 159, 159(7), (8)
The general rule that a variance is not fatal unless it is misleading is applicable in an action for damages.
Still, the pleading and proof in an action for damages must correspond.
The general rule that a variance is not fatal unless it is misleading is applicable in an action for damages. 1 Still,
the pleading and proof in an action for damages must correspond. 2
Footnotes
Pa.Moyer v. Dallago, 7 Pa. D. & C.2d 76, 1957 WL 6161 (C.P. 1957).
1
Prejudice must be proved

Wis.Zelof v. Capital City Transfer, Inc., 29 Wis. 2d 384, 139 N.W.2d 1 (1966).
Tex.Lone Star Gas Co. v. Holifield, 150 S.W.2d 282 (Tex. Civ. App. Fort Worth 1941).
End of Document
303.Plaintiff's effort to minimize damage, 25A C.J.S. Damages 303

Damages
VIII. Pleading
303. Plaintiff's effort to minimize damage
Where the plaintiff is under no duty to minimize his or her damages under the circumstances, he or she is
not required to plead or prove an effort on his or her part to do so.
Where the situation is not such as to impose a duty on a plaintiff to minimize his or her damages, he or she is not
required to plead or prove an effort on his or her part to do so. 1 On the other hand, on the breach of a contract, there
can be no recovery therefor unless the plaintiff alleges and proves that he or she did that which was reasonable
to minimize his or her damages. 2
Footnotes
IowaStauter v. Walnut Grove Products, 188 N.W.2d 305 (Iowa 1971).
1
Cal.Erler v. Five Points Motors, 249 Cal. App. 2d 560, 57 Cal. Rptr. 516 (4th Dist. 1967).
2
End of Document

Damages
VIII. Pleading
304. Amount of recovery
The amount of damages recoverable is limited by the pleadings and proof.
A plaintiff is entitled to recover as damages the amount that his or her pleading and evidence show that he or she
has lost by the wrong of the defendant. 1 Although there can be no recovery for elements of damage alleged but
not proved, 2 failure by the plaintiff to prove damages to the extent alleged by him or her in his or her complaint
is not fatal. 3
A general claim for damages will permit the recovery of nominal damages where the law implies such damages
for the wrong complained of 4 although it does not authorize proof or recovery of special damages. 5
The recovery must not exceed the sum fixed by specific proof, where such amount is determined with certainty,
regardless of the amount asked in the complaint. 6 Generally, special damages are recoverable to the maximum
amount shown by the evidence not exceeding the amount claimed in the petition. 7 Unless greater relief is
embraced within the issues raised by the pleadings, 8 a plaintiff is precluded from recovering, 9 but not from
proving, 10 a greater sum than that alleged in the petition or complaint.
Footnotes
Cal.Albrecht v. Broughton, 6 Cal. App. 3d 173, 85 Cal. Rptr. 659 (1st Dist. 1970).
1
Ky.Marlowe Const. Co. v. Jacobs, 302 S.W.2d 612 (Ky. 1957) (overruled in part on other grounds by, Lynn Min.
2
Co. v. Kelly, 394 S.W.2d 755 (Ky. 1965)).
Counterclaim
N.C.Carolina Equipment & Parts Co. v. Anders, 265 N.C. 393, 144 S.E.2d 252 (1965).
Pa.Volpe v. Atlantic Crushed Coke Co., 208 Pa. Super. 11, 220 A.2d 393 (1966).
Items of damage
Ga.Southern Ry. Co. v. Grogan, 113 Ga. App. 451, 148 S.E.2d 439 (1966).
Ala.Swedenburg v. Copeland, 263 Ala. 241, 82 So. 2d 227 (1955).
5
6
7
8
9
10
As to pleading of general and special damages, see 276 to 278.

Ala.Swedenburg v. Copeland, 263 Ala. 241, 82 So. 2d 227 (1955).
U.S.Eastern Federal Corp. v. Avco-Embassy Pictures Corp., 331 F. Supp. 1253 (N.D. Ga. 1971).
Cal.Lingren v. Nicholas, 51 Cal. App. 261, 196 P. 780 (1st Dist. 1921).
Fla.Roger Holler Chevrolet Co. v. Arvey, 314 So. 2d 633 (Fla. Dist. Ct. App. 4th Dist. 1975).
Medical expenses
La.Cambrice v. Fern Supply Co., Inc., 285 So. 2d 863 (La. Ct. App. 4th Cir. 1973) (abrogated on other grounds by,
Lejeune v. Rayne Branch Hosp., 556 So. 2d 559 (La. 1990)).
OhioMikula v. Balogh, 9 Ohio App. 2d 250, 38 Ohio Op. 2d 311, 224 N.E.2d 148 (2d Dist. Montgomery County
1965).
End of Document

Damages
Correlation Table
Summary
Scope:
Treated Elsewhere:
1 et seq.
97 to 133
Westlaw Databases
End of Document
Research References, 24 C.J.S. Damages IX Refs.
24 C.J.S. Damages IX Refs.

Damages
IX. Evidence
Research References
A.L.R. Library
A.L.R. Index, Collateral Source Rule
A.L.R. Index, Cost of Living or Purchasing Power
A.L.R. Index, Earning Capacity
A.L.R. Index, Emotional Distress
A.L.R. Index, Expert and Opinion Evidence
A.L.R. Index, Financial Condition and Responsibility
A.L.R. Index, Income Tax
A.L.R. Index, Intentional
A.L.R. Index, Loss of Profits or Earnings
A.L.R. Index, Malice
A.L.R. Index, Malingering
A.L.R. Index, Medical Expenses
A.L.R. Index, Paralysis
A.L.R. Index, Presumptions and Burden of Proof
A.L.R. Index, Psychic Trauma
A.L.R. Index, Recklessness
A.L.R. Index, Willful and Wanton Acts
West's A.L.R. Digest, Damages 6, 163 to 192
End of Document
Research References, 24 C.J.S. Damages IX A Refs.
24 C.J.S. Damages IX A Refs.

Damages
IX. Evidence
A. Presumptions and Burden of Proof
Research References
A.L.R. Library
A.L.R. Index, Loss of Profits or Earning
A.L.R. Index, Presumptions and Burden of Proof
End of Document

Damages
IX. Evidence
305. Generally
West's Key Number Digest, Damages 163, 163(.5), 163(1), 163(4)
The amount of pecuniary damages is not presumed, and the burden of proving such damages is on the
party claiming them.
Generally, the party claiming damages has the burden of establishing the existence of those damages 1 by
competent, 2 or probative, evidence 3 or a preponderance of the evidence. 4
Amount.
The plaintiff also has the burden of proving the amount of damages 5 with reasonable certainty. 6 Speculation
and conjecture cannot form the basis of the recovery. 7
Although damages may be presumed to result from the violation or infringement of a legal right, which damages
may be only nominal, the amount and items of pecuniary damage are not presumed. 8
The plaintiff's burden of proving damages does not shift to the defendant, 9 but when the plaintiff has made an
initial showing of damages, the defendant is required to overcome the evidence. 10
Interest.
A party who claims interest has the burden of establishing his or her right to interest. 11
Cases:
Plaintiff bears the burden of proving his damages. Niemi v. Lasshofer, 770 F.3d 1331 (10th Cir. 2014).
The burden of introducing additional damages evidence with respect to the proportionality of cost-of-repair
evidence more appropriately falls on the party who wishes to challenge the cost-of-repair evidence. Langlois v.
Town of Proctor, 2014 VT 130, 113 A.3d 44 (Vt. 2014).
The plaintiff bears the burden of proving with reasonable certainty the amount of damages and the cause
from which they resulted; speculation and conjecture cannot form the basis of the recovery. Manchester Oaks
Homeowners Ass'n, Inc. v. Batt, 732 S.E.2d 690 (Va. 2012).
[END OF SUPPLEMENT]
Footnotes
1
2
3
4
5
9
10
11
Mo.The Manors at Village Green Condominium, Inc. v. Webb, 341 S.W.3d 162 (Mo. Ct. App. E.D. 2011).
UtahStevens-Henager College v. Eagle Gate College, Provo College, Jana Miller, 2011 UT App 37, 248 P.3d 1025,
265 Ed. Law Rep. 774 (Utah Ct. App. 2011), cert. denied, 255 P.3d 684 (Utah 2011).
Ala.Jerkins v. Lincoln Elec. Co., 2011 WL 2573368 (Ala. 2011).
Ind.Belle City Amusements, Inc. v. Doorway Promotions, Inc., 936 N.E.2d 243 (Ind. Ct. App. 2010).
Md.Glynn v. Impact Science & Technology, Inc., 2011 WL 3792358 (D. Md. 2011).
U.S.Southern Wine and Spirits of Nevada v. Mountain Valley Spring Co., LLC, 646 F.3d 526, 80 Fed. R. Serv. 3d
298 (8th Cir. 2011).
Breach of contract
U.S.Dynegy Marketing and Trade v. Multiut Corp., 648 F.3d 506 (7th Cir. 2011).
La.Wooley v. Lucksinger, 61 So.3d 507, 2009-0571 (La. 4/1/11).
S.E.2d 163 (2011).
S.E.2d 163 (2011).
Ga.Coker v. Casey, 178 Ga. App. 682, 344 S.E.2d 662 (1986).
N.C.Chase Development Group v. Fisher, Clinard & Cornwell, PLLC, 710 S.E.2d 218 (N.C. Ct. App. 2011).
As to weight and sufficiency of evidence, see 361 to 388.
Tex.Minor v. Gross, 478 S.W.2d 597 (Tex. Civ. App. Tyler 1972), writ refused n.r.e., (May 31, 1972).
Tex.Nielson v. Okies, 503 S.W.2d 614 (Tex. Civ. App. El Paso 1973).
Cal.Mendoyoma, Inc. v. County of Mendocino, 8 Cal. App. 3d 873, 87 Cal. Rptr. 740 (1st Dist. 1970).
As to interest as element of damages, see 88 to 99.
End of Document
306.Causation, 25A C.J.S. Damages 306

Damages
IX. Evidence
306. Causation
The party claiming damages has the burden of establishing the causation of its injuries.
The party claiming damages has the burden of establishing the causation of its injuries. 1 The plaintiff bears the
burden of proving a causal relationship between the injury sustained and the accident that caused the injury. 2
If the defendant shows possible separate intervening causes for the plaintiff's injury, the plaintiff has the burden
of proving that the injuries were not the result of intervening causes. 3
Presumption of causation.
Plaintiff is entitled to a presumption of causation in a personal injury action if three elements are met: (1) the
person was in good health prior to the accident; (2) commencing with the accident, the symptoms of the disabling
condition appeared and continuously manifested themselves afterwards; and (3) there is a reasonable possibility
of a causal connection between the accident and the disabling condition. 4
Cases:
Expert testimony is required to establish medical causation. Reckis v. Johnson & Johnson, 28 N.E.3d 445 (Mass.
2015).
[END OF SUPPLEMENT]
Footnotes
Mont.Cheff v. BNSF Ry. Co., 2010 MT 235, 358 Mont. 144, 243 P.3d 1115 (2010).The plaintiff must prove that
1
the damage suffered was a result of the defendant's fault.
2
3
4
La.Broussard v. Oak Trace Apartments, 69 So.3d 1257, 2011-125 (La.App. 3 Cir. 7/13/11).
N.C.Chase Development Group v. Fisher, Clinard & Cornwell, PLLC, 710 S.E.2d 218 (N.C. Ct. App. 2011).
La.Simon v. State Farm Mut. Auto. Ins. Co., 43 So. 3d 990 (La. Ct. App. 3d Cir. 2010), writ denied, 48 So. 3d
1094 (La. 2010).
La.Munch v. Backer, 63 So.3d 181, 2010-1544 (La.App. 4 Cir. 3/23/11).
La.Munch v. Backer, 63 So.3d 181, 2010-1544 (La.App. 4 Cir. 3/23/11).
End of Document
307.Personal injuries, 25A C.J.S. Damages 307

Damages
IX. Evidence
307. Personal injuries
In cases involving personal injuries, the plaintiff has the burden of proving the nature, extent, and
permanency or probable duration of his or her injuries.
Damages are not presumed in an ordinary action for a negligently caused personal or bodily injury. 1 In cases
involving personal injuries, the plaintiff has the burden of proving the nature, extent, and permanency or probable
duration of his or her injuries. 2 The plaintiff has the burden of showing his or her good health at the time of
the accident. 3
The presence or absence of pain is an inherently subjective question for which the plaintiff in a negligence action
bears the burden of production and persuasion. 4 Wrongdoing that threatens a person's reputation is sufficient to
support an inference that the resulting injury was accompanied by mental anguish. 5
For purposes of tort of intentional infliction of emotional distress, it is possible to infer the existence of the intent
or recklessness element from the very outrageousness of the defendant's conduct. 6
Cases:
In personal injury cases, the plaintiff has the burden of proving the permanency or other likely duration of his or
her injuries. Battaglia v. United Parcel Service, Inc., 214 N.J. 518, 70 A.3d 602 (2013).
[END OF SUPPLEMENT]
Footnotes
OhioBuckeye Ranch, Inc. v. Northfield Ins. Co., 134 Ohio Misc. 2d 10, 2005-Ohio-5316, 839 N.E.2d 94 (C.P. 2005).
1
Tex.Bailey v. Whaples, 435 S.W.2d 626 (Tex. Civ. App. Waco 1968), writ refused n.r.e., (Mar. 19, 1969).
2
307.Personal injuries, 25A C.J.S. Damages 307
4
5
6
Proof of permanency not necessary to establish future disability

La.Thomas v. Comfort Center of Monroe, LA, Inc., 48 So. 3d 1228 (La. Ct. App. 1st Cir. 2010).
No prior disability
IowaFoggia v. Des Moines Bowl-O-Mat, Inc., 543 N.W.2d 889 (Iowa 1996).
Tex.Capps v. Nexion Health at Southwood, Inc., 349 S.W.3d 849 (Tex. App. Tyler 2011).
D.C.Kotsch v. District of Columbia, 924 A.2d 1040 (D.C. 2007).
End of Document

Damages
IX. Evidence
To recover in a breach-of-contract action, a plaintiff has the burden of proving that the defendant breached
the contract, that the plaintiff incurred actual economic damages as a result of the breach, and the amount
of the damages.
To recover in a breach-of-contract action, a plaintiff has the burden of proving that the defendant breached the
contract, that the plaintiff incurred actual economic damages as a result of the breach, and the amount of the
damages 1 unless such knowledge is peculiarly within the possession of the other contracting party who must, in
such case, bear the burden of producing it. 2 The burden of proving special damages or that special circumstances
were within the contemplation of the parties at the time of making a contract is on the party asserting the fact. 3
It will be presumed that each party to a contract has sought to give value to the other and that where the value
to one party of the other's undertaking is incapable of estimation, it will be presumed to be at least as much as
the other's cost of performance. 4
Footnotes
1
2
3
4
Wash.Columbia Park Golf Course, Inc. v. City of Kennewick, 160 Wash. App. 66, 248 P.3d 1067 (Div. 3 2011).
Ga.Bendle v. Ortho Mattress, Inc., 133 Ga. App. 575, 211 S.E.2d 618 (1974).
Neb.Kroeger v. Franchise Equities Inc., 190 Neb. 731, 212 N.W.2d 348 (1973).
Tex.Curry v. Texas Co., 18 S.W.2d 256 (Tex. Civ. App. Eastland 1929), writ dismissed, (Apr. 9, 1930).
End of Document

Damages
IX. Evidence
Loss of profits as an element of damages must be proved.
The plaintiff claiming damages for lost profits bears the burden of proving both the fact of lost profits 1 and
amount of such loss 2 by evidence that is competent 3 and of reasonable certainty. 4 The burden is on the plaintiff
to show that such loss of profits resulted from the act or omission of the defendant. 5
Footnotes
La.Cowley v. Lott, 291 So. 2d 446 (La. Ct. App. 2d Cir. 1974).
1
2
3
4
U.S.Muir v. Navy Federal Credit Union, 744 F. Supp. 2d 145 (D.D.C. 2010).
As to loss of profits as an element of damages, see 57 to 62.
As to weight and sufficiency of evidence necessary to prove loss of profits, see 369, 370.
U.S.Meaux Surface Protection, Inc. v. Fogleman, 607 F.3d 161 (5th Cir. 2010).
As to measuring loss of profits, see 166, 167.
U.S.Cole v. Homier Distributing Co., Inc., 599 F.3d 856 (8th Cir. 2010).
Ala.Intergraph Corp. v. Bentley Systems Inc., 58 So. 3d 63 (Ala. 2010), as modified on denial of reh'g, (Sept. 10,
2010).
AlaskaAzimi v. Johns, 254 P.3d 1054 (Alaska 2011).
Wash.Thompson v. Hanson, 6 Wash. App. 1, 491 P.2d 1065 (Div. 3 1971).
End of Document
310.Earnings and earning capacity, 25A C.J.S. Damages 310

Damages
IX. Evidence
310. Earnings and earning capacity
The plaintiff generally has the burden of proving loss of time and earnings.
In some jurisdictions, the law infers loss of time from the disabling effect of a personal injury. 1 However,
generally, the plaintiff bears the burden of proving a claim for lost earnings 2 or loss of time from work and that
it resulted in damage. 3 Furthermore, he or she has the burden of showing his or her loss of time or earnings with
reasonable certainty 4 by evidence that is competent and that furnishes a basis for its computation or assessment
in accordance with the measure of damages properly applicable. 5
Footnotes
Ga.Dodson v. Cobb, 92 Ga. App. 654, 89 S.E.2d 552 (1955).
1
La.Davis v. Foremost Dairies, 58 So.3d 977, 45,835 (La.App. 2 Cir. 2/16/11).
2
3
4
N.Y.Shubbuck v. Conners, 72 A.D.3d 1554, 899 N.Y.S.2d 514 (4th Dep't 2010).
As to loss of time and earnings as element of damage, see 52, 53.
As to weight and sufficiency of evidence necessary to prove loss of time and earnings, see 378.
La.Graham v. Offshore Specialty Fabricators, Inc., 37 So. 3d 1002 (La. Ct. App. 1st Cir. 2010).
N.Y.Shubbuck v. Conners, 72 A.D.3d 1554, 899 N.Y.S.2d 514 (4th Dep't 2010).
La.Radecker v. Phillips, 223 So. 2d 468 (La. Ct. App. 4th Cir. 1969).
As to measuring loss of time and earnings, see 156, 157.
End of Document
311.Earnings and earning capacityImpairment of power, 25A C.J.S. Damages 311

Damages
IX. Evidence
311. Earnings and earning capacityImpairment of power
West's Key Number Digest, Damages 163, 163(.5), 163(1)
The plaintiff has the burden of proving impairment of earning power.
The burden is on the plaintiff claiming damages for impairment of earning power to show that he or she has in fact
suffered such impairment. 1 He or she has the burden of showing such impairment with reasonable certainty 2
by evidence that is competent 3 and that furnishes a basis for its assessment in accordance with the measure of
damages properly applicable, 4 although that loss of earning power or future loss of earning capacity may be
inferred or implied from the nature of the physical injury, without proof of actual earnings or income either before
or after the injury or decrease in the plaintiff's earning capacity. 5
Footnotes
IowaStanley v. State, 197 N.W.2d 599 (Iowa 1972).
1
3
4
Economic horizons shortened

Pa.Riddle v. Anderson, 85 Pa. Commw. 271, 481 A.2d 382 (1984).
U.S.Bennett v. R & L Carriers Shared Services, LLC, 744 F. Supp. 2d 494 (E.D. Va. 2010).
(Fla. 2010).
U.S.Sirianni v. General Motors Corp., 325 F. Supp. 509 (W.D. Pa. 1971).
U.S.Sirianni v. General Motors Corp., 325 F. Supp. 509 (W.D. Pa. 1971).
AlaskaAlexander v. State, Dept. of Corrections, 221 P.3d 321 (Alaska 2009).
As to measure of damages for impairment of earning capacity, see 160 to 165.
Lost earning capacity of child
Tex.Durham Transp. Co., Inc. v. Beettner, 201 S.W.3d 859 (Tex. App. Waco 2006).
As to weight and sufficiency of evidence necessary to prove future loss of earnings capacity, see 379, 380.
End of Document
312.Expenses, 25A C.J.S. Damages 312

Damages
IX. Evidence
312. Expenses
A plaintiff seeking to recover expenses has the burden of proving that such expenses were attributable to
the act or omission of the defendant, the amount thereof, and that they were necessary and reasonable.
A plaintiff seeking to recover for expenses incurred has the burden of proving that such expenses were attributable
to the accident, or the act or omission of the defendant, 1 and the amount of such expenses. 2 A plaintiff also has
the burden of proving that such expenses were paid 3 and that they were necessary 4 and reasonable. 5
Footnotes
OhioVastine v. State Highway Patrol, 2003-Ohio-1681, 2003 WL 1735498 (Ohio Ct. Cl. 2003).
1
2
3
4
5
Mo.Sparks v. Ballenger, 373 S.W.2d 955 (Mo. 1964).

Wyo.Colorado Kenworth, Inc. v. Archie Meek Transp. Co., 495 P.2d 1183 (Wyo. 1972).
N.Y.Federal Waste Paper Corp. v. Garment Center Capitol, 185 Misc. 818, 57 N.Y.S.2d 200 (Sup 1945).
La.Illinois Cent. R. Co. v. Cullen, 235 So. 2d 154 (La. Ct. App. 4th Cir. 1970), writ denied, 256 La. 789, 239 So.
2d 172 (1970).
Ala.Alphonso v. Esfeller Oil Field Const., Inc., 380 Fed. Appx. 808 (11th Cir. 2010).
End of Document
313.ExpensesMedical, 25A C.J.S. Damages 313

Damages
IX. Evidence
313. ExpensesMedical
A party claiming medical expenses has the burden of proving that such expenses were attributable to the
accident or the act or omission of the defendant, the amount of such expenses, and that they were paid,
necessary, and reasonable.
A party claiming medical expenses has the burden of proving that such expenses were attributable to the accident
or the act or omission of the defendant, 1 the amount of such expenses, 2 and that they were paid, 3 necessary, 4
and reasonable. 5 However, where a defendant agrees to the admission into evidence of the amounts billed by
medical providers, the plaintiff is relieved of the burden of establishing the reasonableness of the amounts billed. 6
Future medical expenses.

It is a plaintiff's burden to establish by competent evidence 7 that future medical expenses will more probably
than not be incurred. 8
Footnotes
La.Breckenridge v. Parker, 310 So. 2d 124 (La. Ct. App. 4th Cir. 1975), writ refused, 313 So. 2d 828 (La. 1975).
1
La.Poche v. Frazier, 232 So. 2d 851 (La. Ct. App. 4th Cir. 1970).
2
Ala.Opelika Coca-Cola Bottling Co. v. McEachern, 242 Ala. 628, 7 So. 2d 570 (1942).
3
Ga.Barnes v. Cornett, 134 Ga. App. 120, 213 S.E.2d 703 (1975).
4
Fla.Columbia Hosp. (Palm Beaches) Ltd. Partnership v. Hasson, 33 So. 3d 148 (Fla. Dist. Ct. App. 4th Dist. 2010).
5
6
Ga.Bennett v. Moore, 312 Ga. App. 445, 718 S.E.2d 311 (2011).
7
Preponderance of the evidence

Fla.Montesinos v. Zapata, 43 So. 3d 97 (Fla. Dist. Ct. App. 3d Dist. 2010), review dismissed, 55 So. 3d 1288 (Fla.
2011).
313.ExpensesMedical, 25A C.J.S. Damages 313
Reasonable probability
Reasonable certainty
OhioKahn v. CVS Pharmacy, Inc., 165 Ohio App. 3d 420, 2006-Ohio-112, 846 N.E.2d 904 (1st Dist. Hamilton
County 2006), petition for discretionary review denied, 109 Ohio St. 3d 1506, 2006-Ohio-2998, 849 N.E.2d 1027
(2006).
End of Document
314.Exemplary damages, 25A C.J.S. Damages 314

Damages
IX. Evidence
314. Exemplary damages
The plaintiff ordinarily has the burden of establishing the aggravating circumstances warranting
exemplary damages.
The burden is on the plaintiff to establish such aggravating circumstances as warrant the imposition of exemplary
or punitive damages. 1 Generally, the willful, malicious, or wanton conduct claimed as a basis for punitive
damages must be shown. 2
Presumed malice.
In some cases, an award of punitive damages may be supported by a showing of presumed malice. 3 Simply doing
an unlawful or injurious act is not sufficient to constitute presumed malice. 4 An evil intent, as would support
award of punitive damages, may be inferred where a person recklessly disregards the rights and interests of another
person. 5
Financial condition of defendant.

The plaintiff has the burden of proof on the defendant's financial condition as a prerequisite for an award of
punitive damages. 6
The burden of presenting evidence of financial condition as a mitigating factor to punitive damages rests with
the party seeking mitigation. 7
Cases:
In order to recover punitive damages under Maine law, a plaintiff must prove malice by clear and convincing
evidence. American Aerial Services, Inc. v. Terex USA, LLC, 39 F. Supp. 3d 95, 84 U.C.C. Rep. Serv. 2d 384
(D. Me. 2014).
[END OF SUPPLEMENT]
Footnotes
1
2
3
4
5
6
7
U.S.Caston v. Butler, 718 F. Supp. 2d 87 (D.D.C. 2010).

Miss.United States Fidelity and Guar. Co. of Mississippi v. Martin, 998 So. 2d 956 (Miss. 2008).
As to grounds for award of exemplary damages, see 241 to 247.
Ga.Standard Oil Co. v. Mount Bethel United Methodist Church, 230 Ga. 341, 196 S.E.2d 869 (1973).
Me.Morin v. Eastern Maine Medical Center, 780 F. Supp. 2d 98 (D. Me. 2010).
S.D.Selle v. Tozser, 2010 SD 64, 786 N.W.2d 748 (S.D. 2010).
Mo.Brand v. Kansas City Gastroenterology and Hepatology, 2011 WL 135010 (Mo. Ct. App. W.D. 2011), reh'g
and/or transfer denied, (71061)(Mar. 1, 2011).
Tortfeasor acted so outrageously that malice can be implied
U.S.Shannon v. Sasseville, 684 F. Supp. 2d 169 (D. Me. 2010).
Cal.Green v. Laibco, LLC, 192 Cal. App. 4th 441, 121 Cal. Rptr. 3d 415 (2d Dist. 2011), review denied, (Apr. 13,
2011).
U.S.Paradigm Alliance, Inc. v. Celeritas Technologies, LLC, 722 F. Supp. 2d 1250 (D. Kan. 2010).
End of Document
315.Mitigation of damages, 25A C.J.S. Damages 315

Damages
IX. Evidence
315. Mitigation of damages
The party committing the wrong ordinarily has the burden of proof as to mitigation of damages.
Generally, the defendant bears burden of proof in establishing that the plaintiff failed to mitigate damages. 1 The
defendant must prove that the plaintiff failed to exercise reasonable care to mitigate postinjury damage 2 or that it
declined to conduct more reasonable mitigation efforts 3 and that the plaintiff's failure to exercise reasonable care
caused the plaintiff to suffer an identifiable item of harm not attributable to the defendant's negligent conduct. 4
As otherwise stated, the burden is on the defendant to show that some of the consequences of the injury might
have been lessened 5 or avoided by reasonable care, diligence, or proper efforts or acts on the part of the injured
party, 6 such as by obtaining other employment in the case of a breach of a contract of employment, 7 restoration
of the destroyed property, 8 or submission to medical treatment or surgical operation. 9
Cases:
Under Massachusetts law, the burden of proving a failure to mitigate damages falls upon the defendant. Lucas v.
Ultima Framingham LLC, 973 F. Supp. 2d 98 (D. Mass. 2013).
The failure to mitigate damages is an affirmative defense, and the burden of proof is on the party asserting the
defense. Lemoine v. Mike Munna, L.L.C., 148 So. 3d 205 (La. Ct. App. 1st Cir. 2014).
The failure to mitigate damages is an affirmative defense, and the burden of proof is on the party asserting the
defense. LSAC.C. art. 2002. Ciolino v. First Guar. Bank, 133 So. 3d 686 (La. Ct. App. 1st Cir. 2013).
[END OF SUPPLEMENT]
315.Mitigation of damages, 25A C.J.S. Damages 315
Footnotes
Cal.Binder v. Disability Group, Inc., 772 F. Supp. 2d 1172 (C.D. Cal. 2011).
1
3
4
5
6
7
8
9
N.C.Thermal Design, Inc. v. M & M Builders, Inc., 698 S.E.2d 516 (N.C. Ct. App. 2010).
N.J.Sean Wood, L.L.C. v. Hegarty Group, Inc., 422 N.J. Super. 500, 29 A.3d 1066 (App. Div. 2011).
As to mitigation of damages as a matter of affirmative defense, see 297.
Ind.Kinsel v. Schoen, 934 N.E.2d 133 (Ind. Ct. App. 2010).
Mich.Morris v. Clawson Tank Co., 459 Mich. 256, 587 N.W.2d 253 (1998).
Reasonable diligence
Ind.Hawa v. Moore, 947 N.E.2d 421 (Ind. Ct. App. 2011).
U.S.Arizona Public Service Co. v. U.S., 93 Fed. Cl. 384 (2010).
Ind.Kinsel v. Schoen, 934 N.E.2d 133 (Ind. Ct. App. 2010).
Aggravation of harm
La.Britt v. City of Shreveport, 55 So. 3d 76 (La. Ct. App. 2d Cir. 2010).
S.D.Arrowhead Ridge I, LLC v. Cold Stone Creamery, Inc., 800 N.W.2d 730, 2011 S.D. 38.
N.H.Eno Brick Corp. v. Barber-Greene Co., 109 N.H. 156, 245 A.2d 545 (1968).
AlaskaUniversity of Alaska v. Chauvin, 521 P.2d 1234 (Alaska 1974).
U.S.Stark v. Shell Oil Co., 450 F.2d 994 (5th Cir. 1971).
Failure to take medical treatment
La.Britt v. City of Shreveport, 55 So. 3d 76 (La. Ct. App. 2d Cir. 2010).
End of Document
316.Reduction or offset of damages, 25A C.J.S. Damages 316

Damages
IX. Evidence
316. Reduction or offset of damages
The party committing the wrong ordinarily has the burden of proof as to reduction or offset of damages.
The burden of proof is placed on the defendant to show various matters in reduction of the damages, 1 such as
that the damages claimed were incorrect or unfair 2 or that the amount paid as a compromise was excessive. 3
The burden of proving a setoff against damages falls on the defendant who asserts it. 4
Cases:
Under California law, a defendant seeking an offset against a money judgment has the burden of proving the
offset. C.B. v. City of Sonora, 769 F.3d 1005 (9th Cir. 2014).
While the plaintiff bears the initial burden of proof on a claim for damages for breach of contract, generally, it
is the party who has breached the contract who bears the burden of proof in establishing matters asserted by him
in mitigation or reduction of damages. Legacy Builders, LLC v. Andrews, 2014 WY 103, 335 P.3d 1063 (Wyo.
2014).
[END OF SUPPLEMENT]
Footnotes
U.S.Glazer v. Glazer, 278 F. Supp. 476 (E.D. La. 1968).
1
Financial ability to pay

La.Moore v. Johnson, 262 So. 2d 105 (La. Ct. App. 2d Cir. 1972).
U.S.Watsontown Brick Co. v. Hercules Powder Co., 265 F. Supp. 268 (M.D. Pa. 1967), judgment aff'd, 387 F.2d
99 (3d Cir. 1967).
316.Reduction or offset of damages, 25A C.J.S. Damages 316
3
4
Wash.Harmony at Madrona Park Owners Ass'n v. Madison Harmony Development, Inc., 160 Wash. App. 728, 253
P.3d 101 (Div. 1 2011).
U.S.In re Peterson, 452 B.R. 203 (Bankr. S.D. Tex. 2011).
Duplication of benefits
Fla.Florida Farm Bureau Cas. Ins. Co. v. Mathis, 33 So. 3d 94 (Fla. Dist. Ct. App. 1st Dist. 2010).
End of Document
317.Liquidated damages or penalty, 25A C.J.S. Damages 317

Damages
IX. Evidence
317. Liquidated damages or penalty
Generally speaking, the burden is on the party who defaults on the contract to prove that a liquidateddamages clause is unenforceable.
Generally speaking, the burden is on the party who defaults on the contract to prove that a liquidated-damages
clause is unenforceable. 1
In some jurisdictions, the burden is on the one claiming a sum as liquidated damages to show that the parties
intended the sum to be of that nature. 2 Generally, however, the party asserting that a liquidated-damages clause
is an unenforceable penalty bears the burden of proving the nature of the clause. 3
A breaching party seeking to nullify a contract clause that fixes an amount of damages for the breach bears the
burden of proving that the agreed-upon amount is not reasonably related to the actual damages sustained, and is
exorbitant and unconscionable, and thus a penalty. 4
An injured party claiming under a provision for liquidated damages does not have the burden of introducing
evidence to establish actual damages. 5 In some jurisdictions, however, the plaintiff must show that substantial
damages have been sustained. 6
The burden is on the person asserting the right to enforce a provision for liquidated damages to establish the breach
authorizing such enforcement. 7 On the other hand, the burden is on the defaulting party to establish a waiver of
performance or an excuse for nonperformance. 8
Effect of unequal bargaining power of parties.

In some jurisdictions, liquidated-damages clauses are presumed valid regardless of whether the parties had unequal
bargaining power. 9
317.Liquidated damages or penalty, 25A C.J.S. Damages 317
Where damages are speculative.

Where actual damages are speculative and uncertain, the presumption ordinarily is that the parties took that fact
into consideration in making a contract specifying a definite sum for breach thereof. 10
Cases:
Under Kansas law, the burden of proving that a liquidated damages clause is in fact a penalty falls on the party
challenging the provision. Wahlcometroflex, Inc. v. Westar Energy, Inc., 773 F.3d 223 (10th Cir. 2014).
[END OF SUPPLEMENT]
Footnotes
U.S.La Quinta Corp. v. Heartland Properties LLC, 603 F.3d 327 (6th Cir. 2010).
1
2
3
5
6
7
8
9
10
16, 2011).
Mass.Blay v. Zipcar, 716 F. Supp. 2d 115 (D. Mass. 2010).
Tex.In re Endeavour Highrise, L.P., 432 B.R. 583 (Bankr. S.D. Tex. 2010).
Okla.Waggoner v. Johnston, 1965 OK 192, 408 P.2d 761 (Okla. 1965).
Tex.GPA Holding, Inc. v. Baylor Health Care System, 344 S.W.3d 467 (Tex. App. Dallas 2011), reh'g overruled,
(Aug. 9, 2011) and petition for review filed, (Nov. 2, 2011).
Wyo.Marcam Mortg. Corp. v. Black, 686 P.2d 575 (Wyo. 1984).
As to determination of character of stipulation as liquidated damages or penalty, see 200 to 204.
U.S.XCO Intern. Inc. v. Pacific Scientific Co., 369 F.3d 998 (7th Cir. 2004).
Conn.Kovacs Const. Corp. v. Water Pollution and Control Authority of City of New Haven, 120 Conn. App. 646,
992 A.2d 1157 (2010), certification denied, 297 Conn. 912, 995 A.2d 639 (2010).
N.Y.L & L Wings, Inc. v. Marco-Destin Inc., 756 F. Supp. 2d 359 (S.D. N.Y. 2010).
Fla.Murray v. Hidden Lake Development Corp., 281 So. 2d 537 (Fla. Dist. Ct. App. 3d Dist. 1973).
Fla.Paradis v. Second Ave. Used Car Co., 61 So. 2d 919 (Fla. 1952).
U.S.Trinity Universal Ins. Co. v. Smithwick, 222 F.2d 16 (8th Cir. 1955).
N.J.Ferber Const. Co. v. Board of Education of Borough of Hasbrouck Heights, 90 N.J.L. 193, 100 A. 329 (N.J.
Ct. Err. & App. 1917).
U.S.In re DirecTV Early Cancellation Litigation, 738 F. Supp. 2d 1062 (C.D. Cal. 2010).
Or.Title & Trust Co. v. U.S. Fidelity & Guaranty Co., 138 Or. 467, 7 P.2d 805 (1932).
End of Document
318.Liquidated damages or penaltyUnder statutes..., 25A C.J.S. Damages ...

Damages
IX. Evidence
318. Liquidated damages or penaltyUnder statutes invalidating provision
Under statutes generally invalidating liquidated-damages clauses, the burden is on the party claiming such
liquidated damages to bring him- or herself within any exception.
Under statutes providing that a provision in a contract fixing in advance damages for a breach thereof is void
except when from the nature of the case, it would be impracticable or extremely difficult to fix the actual damages,
the impracticability or difficulty of determining actual damages will not be presumed, 1 and the burden is on the
party claiming such fixed damages to bring him- or herself within the exception by proving such impracticability
or difficulty. 2 Furthermore, the party claiming such fixed damages must prove that the sum agreed on represented
a reasonable endeavor to ascertain what such damages would be 3 and that a breach of the contract had occurred. 4
Consumer contracts.
Where statutes provide that liquidated-damages clauses in consumer contracts are presumed void, the burden is
on the proponent of the clause to rebut that presumption. 5
Footnotes
N.D.Bowbells Public School Dist. No. 14, Bowbells v. Walker, 231 N.W.2d 173 (N.D. 1975).
1
Cal.McCarthy v. Tally, 46 Cal. 2d 577, 297 P.2d 981 (1956).
2
3
4
Cal.In re Cellphone Fee Termination Cases, 193 Cal. App. 4th 298, 122 Cal. Rptr. 3d 726 (1st Dist. 2011), review
5
denied, (June 15, 2011) and cert. denied, 132 S. Ct. 555 (2011).
End of Document
319.Injuries to motor vehicles, 25A C.J.S. Damages 319

Damages
IX. Evidence
319. Injuries to motor vehicles
A plaintiff seeking damages for injury to his or her motor vehicle has the burden of proving the amount
and cause of his or her loss.
Generally, the burden is on a plaintiff suing for injuries to his or her motor vehicle to establish the amount of his
or her pecuniary loss, and that it resulted from the acts of the defendant, in order to recover substantial damages. 1
Where the motor vehicle can be restored to its former condition by reasonable expenditures, the plaintiff must
prove the causal connection between the injury and the necessity for the repairs made, 2 the costs of such repairs, 3
and the reasonableness of the cost of the repairs. 4
The burden of establishing the vehicle as a total loss is on the party claiming such loss. 5
The plaintiff is not required to prove payment for repairs. 6
Loss of use.
One seeking to recover damages for the loss of the use of a motor vehicle must show that the vehicle was not so
badly damaged that it could not reasonably be repaired and that such repairs could be made within a reasonable
time after the accident. 7 The plaintiff has the burden of showing the actual charges made for the hire of a substitute
vehicle and the reasonableness of such charges. 8
Footnotes
Ill.Snyder v. Tanner, 18 Ill. App. 3d 456, 309 N.E.2d 758 (2d Dist. 1974).
1
Miss.Bryan Bros. Packing Co. v. Grubbs, 251 Miss. 52, 168 So. 2d 289 (1964).
2
D.C.Varga v. Resolute Ins. Co., 166 A.2d 263 (Mun. Ct. App. D.C. 1960).
3
Miss.Bryan Bros. Packing Co. v. Grubbs, 251 Miss. 52, 168 So. 2d 289 (1964).
4
N.Y.Cecere v. Harquail, 104 A.D.2d 6, 481 N.Y.S.2d 533 (4th Dep't 1984).
5
319.Injuries to motor vehicles, 25A C.J.S. Damages 319
6
7
8
As to burden of proving payment, generally, see C.J.S., Payment 73 to 75.
La.Nolan v. Liuzza, 301 So. 2d 892 (La. Ct. App. 4th Cir. 1974).
La.Wartell v. Hartford Ins. Co., 219 So. 2d 221 (La. Ct. App. 1st Cir. 1969).
End of Document
Research References, 24 C.J.S. Damages IX B Refs.
24 C.J.S. Damages IX B Refs.

Damages
IX. Evidence
B. Admissibility
Research References
A.L.R. Library
A.L.R. Index, Collateral Source Rule
A.L.R. Index, Emotional Distress
A.L.R. Index, Expert and Opinion Evidence
A.L.R. Index, Financial Condition and Responsibility
A.L.R. Index, Loss of Profits or Earning
A.L.R. Index, Malice
West's A.L.R. Digest, Damages 164 to 179, 181, 182, 185(2)
End of Document

Damages
IX. Evidence
B. Admissibility
1. In General
320. Generally
All competent testimony tending to establish or disprove damages is generally admissible.
In actions for damages, the general and well-settled rules of evidence apply in that the testimony must be
responsive to the issue 1 and be relevant to the nature or kind of damages claimed. 2 Evidence that is directly
related to damages is generally relevant and admissible. 3 Evidence pertaining to matters for which a recovery
cannot be had is inadmissible. 4
All competent evidence tending to establish a legitimate item of damage is, under proper pleadings, relevant and
admissible. 5 Evidence tending to show the extent of the damages as a matter of just and reasonable inference is
admissible where the fact of damage has been proved. 6
Prior claims or settlements.

The amount for which a plaintiff settled a claim against an accident insurance company is not admissible unless
it is shown that such amount was increased or reduced because of representations made by the plaintiff as to the
fact, character, or extent of the injuries. 7
Footnotes
Neb.Gardner v. Metropolitan Utilities Dist., 134 Neb. 163, 278 N.W. 137 (1938).
1
Fla.Dixie-Bell Oil Co., Inc. v. Gold, 275 So. 2d 19 (Fla. Dist. Ct. App. 3d Dist. 1973).
2
Colo.Silva v. Wilcox, 223 P.3d 127 (Colo. App. 2009).
3
4
5
U.S.Har-Pen Truck Lines, Inc. v. Mills, 378 F.2d 705 (5th Cir. 1967).
Evidence of financial worth
6
7
Fla.Rinaldi v. Aaron, 314 So. 2d 762, 79 A.L.R.3d 1132 (Fla. 1975).

U.S.Luria Bros. & Co. v. U. S., 177 Ct. Cl. 676, 369 F.2d 701 (1966).
As to uncertainty as to measure or extent of damages as not barring recovery, see 39.
Colo.Bruckman v. Pena, 29 Colo. App. 357, 487 P.2d 566 (App. 1971).
As to admissibility of evidence of facts tending to reduce damages, see 323, 324.
End of Document

Damages
IX. Evidence
B. Admissibility
1. In General
321. Exemplary damages
On an issue of exemplary damages, evidence is admissible to establish or disprove aggravating
circumstances surrounding an injury, such as malice, gross negligence, or wrongful intent.
Where exemplary damages may be awarded, it is proper to introduce competent evidence of the circumstances
surrounding the injury or wrong complained of, 1 such as the motive, 2 purpose, or intent of the defendant 3 and
the existence of malice. 4
In awarding punitive damages, evidence of actual harm to nonparties may help to show the reprehensibility of
the defendant's conduct. 5
Evidence supporting exemplary damages need not be admissible on the issue of compensatory damages. 6
On the other hand, evidence on behalf of the defendant explaining the circumstances, or tending to show a
justification and the absence of gross negligence, malice, or bad faith, is admissible. 7 Thus, the defendant may
testify in person as to what his or her intent was. 8 The defendant is entitled to show his or her good character
to overcome proof offered by the plaintiff tending to establish a criminal intent in the acts complained of as
constituting a ground for the recovery of punitive damages. 9
Cases:
Evidence collateral to all other issues in the case nevertheless may be admissible to prove punitive damages.
McEwen v. MCR, LLC, 2012 MT 319, 291 P.3d 1253 (Mont. 2012).
[END OF SUPPLEMENT]
Footnotes
Ark.Yeakley v. Doss, 370 Ark. 122, 257 S.W.3d 895 (2007).
1
2
3
4
5
6
7
8
9
Haw.Udac v. Takata Corp., 121 Haw. 143, 214 P.3d 1133 (Ct. App. 2009), cert. rejected, 2010 WL 219307 (Haw.
2010).
Ga.Imm v. Chaney, 287 Ga. App. 606, 651 S.E.2d 855 (2007).
Ga.F. N. Roberts Corp. v. Southern Bell Tel. & Tel. Co., 132 Ga. App. 800, 209 S.E.2d 138 (1974).
N.Y.Roberts v. Conde Nast Publications, 286 A.D. 729, 146 N.Y.S.2d 493 (1st Dep't 1955).
U.S.Alaniz v. Zamora-Quezada, 591 F.3d 761 (5th Cir. 2009).
U.S.Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 54 Fed. R. Evid. Serv. 1050 (10th Cir. 2000).
Adherence to government and industry warning standards
U.S.Cooley v. Lincoln Elec. Co., 693 F. Supp. 2d 767 (N.D. Ohio 2010).
Tex.Manning v. Sunshine Bus Lines, 205 S.W.2d 636 (Tex. Civ. App. Fort Worth 1947).
W.Va.Hess v. Marinari, 81 W. Va. 500, 94 S.E. 968 (1918).
A.L.R. Library
Evidence of defendant's rehabilitation or reformation as relevant on issue of punitive damages, 39 A.L.R.4th 1122.
End of Document
322.Exemplary damagesFinancial condition of defendant, 25A C.J.S. Damages 322

Damages
IX. Evidence
B. Admissibility
1. In General
322. Exemplary damagesFinancial condition of defendant
Evidence of a defendant's financial worth is relevant and admissible for the purpose of evaluating the
amount of punitive damages that should be awarded.
Evidence of a defendant's financial worth is relevant 1 and admissible for the purpose of evaluating the amount
of punitive damages 2 to ensure that the award carries the proper punishment and deterrent effect. 3
Where the defendant is a company, introduction of evidence regarding the company's financial condition is not
limited to its finances within the state where the injury occurred; the appropriate consideration is the company's
net worth, not merely its in-state wealth. 4 The wealth of a company's stockholders is not, however, relevant and
admissible to a claim for punitive damages against the company. 5
The defendants have the opportunity to offer mitigating evidence of worth. 6 A defendant who cannot pay a large
award of punitive damages can point this out to the jury so that they will not waste their time and that of the
bankruptcy courts by awarding an amount that exceeds his or her ability to pay. 7
Cases:
Evidence of a defendant's financial condition is relevant and admissible in assessing punitive damages, but is only
admissible in the bifurcated phase of the trial devoted to determining the amount of punitive damages; during the
phase of the trial pertaining to liability or the amount of compensatory damages, proof of the defendant's financial
affairs, financial condition, or net worth is not admissible. In re Estate of Smallman, 398 S.W.3d 134 (Tenn. 2013).
[END OF SUPPLEMENT]
322.Exemplary damagesFinancial condition of defendant, 25A C.J.S. Damages 322
Footnotes
U.S.Bassi v. Patten, 592 F. Supp. 2d 77 (D.D.C. 2009).
1
3
4
5
6
7
Or.Hayes Oyster Co. v. Dulcich, 199 Or. App. 43, 110 P.3d 615 (2005).
Tex.In re Islamorada Fish Co. Texas, L.L.C., 319 S.W.3d 908 (Tex. App. Dallas 2010).
Mo.Smith v. Brown & Williamson Tobacco Corp., 275 S.W.3d 748 (Mo. Ct. App. W.D. 2008).
Va.Matarese v. Archstone Pentagon City, 795 F. Supp. 2d 402 (E.D. Va. 2011).
Wis.Staskal v. Symons Corp., 287 Wis. 2d 511, 2005 WI App 216, 706 N.W.2d 311, 203 Ed. Law Rep. 811 (Ct.
App. 2005).
A.L.R. Library
N.Y.Rose v. Brown & Williamson Tobacco Corp., 10 Misc. 3d 680, 809 N.Y.S.2d 784 (Sup 2005).
N.Y.Rose v. Brown & Williamson Tobacco Corp., 10 Misc. 3d 680, 809 N.Y.S.2d 784 (Sup 2005).
U.S.GSI Group, Inc. v. Sukup Mfg., Co., 641 F. Supp. 2d 732 (C.D. Ill. 2008).
Va.Matarese v. Archstone Pentagon City, 795 F. Supp. 2d 402 (E.D. Va. 2011).
U.S.Betts v. City of Chicago, Ill., 784 F. Supp. 2d 1020 (N.D. Ill. 2011).
End of Document
323.Aggravation and mitigation of loss, 25A C.J.S. Damages 323

Damages
IX. Evidence
B. Admissibility
1. In General
323. Aggravation and mitigation of loss
In general, the defendant may show any facts tending to reduce damages, and the plaintiff may show his
or her own efforts at mitigation.
A party charged with tort 1 or breach of contract 2 generally may adduce, in mitigation or reduction of damages,
competent evidence of any fact tending to reduce the amount required for just compensation. Thus, he or she may
show that the injured party failed to make such efforts as were required under the circumstances to minimize his
or her losses or damages. 3 Evidence tending to show that the condition of an injured person was aggravated by
his or her conduct since the injury is also admissible. 4
Evidence constituting only partial proof of a defense operating to mitigate damages, 5 or which would merely
inject collateral matters into the case, 6 is inadmissible.
Evidence of contributory negligence showing that the plaintiff is to some degree responsible for the injury or
damages claimed is relevant and admissible for reduction of damages in cases involving injury to persons or
property. 7
The injured party may show his or her own efforts to mitigate the damages. 8
Discretion of court.
The latitude permitted with respect to evidence in mitigation or reduction of damages rests in the sound discretion
of the trial court. 9
Footnotes
Fla.Griffin v. Ellis Aluminum & Screen, Inc., 30 So. 3d 714 (Fla. Dist. Ct. App. 3d Dist. 2010).
1
323.Aggravation and mitigation of loss, 25A C.J.S. Damages 323
2
3
4
5
6
7
8
9
La.Nolan v. Liuzza, 301 So. 2d 892 (La. Ct. App. 4th Cir. 1974).
As matters of mitigation or reduction, generally, see 184 to 191.
Minn.Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 715 F. Supp. 2d 871 (D. Minn. 2010).
Ga.Bailey v. Annistown Road Baptist Church, Inc., 301 Ga. App. 677, 689 S.E.2d 62 (2009), cert. denied, (May
17, 2010).
As to avoidable consequences, see 44 to 50.
U.S.Fullerton v. Monongahela Connecting R. Co., 240 F. Supp. 472 (W.D. Pa. 1965).
Ill.New York, C. & St. L. R. Co. v. American Transit Lines, 408 Ill. 336, 97 N.E.2d 264 (1951).
N.Y.Rutzen v. Monroe County Long Term Care Program, Inc., 104 Misc. 2d 1000, 429 N.Y.S.2d 863 (Sup 1980).
Evidence of failure to use seat belts
U.S.Dillinger v. Caterpillar, Inc., 959 F.2d 430 (3d Cir. 1992).
Ga.Kingston Pencil Corp. v. Jordan, 115 Ga. App. 333, 154 S.E.2d 650 (1967).
End of Document
324.Payments from collateral sources, 24 C.J.S. Damages 324

Damages
IX. Evidence
B. Admissibility
1. In General
324. Payments from collateral sources
Generally, evidence that a plaintiff has received compensation for injuries from any other third-party
collateral source is inadmissible in mitigation of damages.
Generally, under the collateral-source rule, evidence that a plaintiff has received compensation for injuries from
insurance or any other third-party collateral source is inadmissible in mitigation of damages. 1 This is so because
of the danger that the jury may be prejudiced, 2 inclined to find no liability, or to reduce a damage award when it
learns that the plaintiff's loss is entirely or partially covered, 3 thereby giving the tortfeasor a windfall. 4
Medicaid is a collateral source that should not be disclosed in a personal injury action. 5
The collateral-source rule not only precludes admission of evidence of payments made to the plaintiff but it also
precludes admission of evidence of gratuitous services provided by a collateral source. 6
On the other hand, evidence of the receipt by the injured person of benefits or payments from a collateral source
wholly independent of the wrongdoer may be admissible for some legitimate purpose other than for the purpose
of mitigating or reducing damages, 7 in which event such evidence should be admitted and its purpose explained
to the jury so that its effect is strictly limited. 8 Under some circumstances, evidence showing that the injured
person obtained a workers'-compensation award that was satisfied may be admissible where the suppression of
such evidence would have the effect of improperly permitting him or her to obtain a double recovery. 9
In some jurisdictions, the collateral-source rule has been altered by statute. 10
Cases:
Evidence of a plaintiff's receipt of collateral source benefits is not only inadmissible to mitigate damages, but also
involves a substantial likelihood of prejudicial impact if admitted for other purposes because evidence of collateral
benefits is readily subject to misuse by a jury. Smith v. Jeppsen, 2012 CO 32, 277 P.3d 224 (Colo. 2012).
Evidence of a plaintiff's receipt of collateral source benefits is not only inadmissible to offset or mitigate damages,
but also involves a substantial likelihood of prejudicial impact if admitted for other purposes because evidence
of collateral benefits is readily subject to misuse by a jury; thus, Colorado's common law collateral source rule
completely bars the admission of collateral source evidence. Wal-Mart Stores, Inc. v. Crossgrove, 2012 CO 31,
276 P.3d 562 (Colo. 2012).
Payments made by insurers to satisfy medical providers' billings were a "collateral source," and therefore trial
court's grant of pre-trial motion to exclude evidence of amounts actually billed by providers, and to admit only
evidence of amounts insurers paid to providers, for medical care provided to business patron during time period
between patron's fall at business premises and patron's death, violated statute requiring that a jury determine its
award without consideration of any collateral source, in patron's estate's wrongful death action against business
and other defendants. MCA 271308. Meek v. Montana Eighth Judicial Dist. Court, 2015 MT 130, 379 Mont.
150, 349 P.3d 493 (2015).
In daughter's medical negligence action alleging university hospital and hospital trustees failed to diagnose mother
with preeclampsia, resulting in daughter being born with severe birth defects, overall effect of trustees' counsel's
comments to jury, suggesting that daughter's medical costs were being covered by Medicaid and the Affordable
Care Act, and that she did not require, and accordingly could not properly seek, any additional compensation, was
a patent violation of collateral source rule, requiring remand for new trial. Deeds v. University of Pennsylvania
Medical Center, 2015 PA Super 21, 110 A.3d 1009 (2015).
Ruling of trial court, in a medical-malpractice action that proceeded to trial against two defendant health care
providers after patient had settled with two other defendant health care providers, that any party could introduce
evidence of the settlement at the trial was a misapplication of the statute governing evidence of a plaintiff's
compensation from another source; statute generally allowed any party to introduce evidence of compensation
received by a plaintiff from any source but, in a proviso at the end of the statute, stated that "evidence of
compensation by a defendant health care provider may be offered only by that provider," and the health care
providers that settled did not, by settling, cease being defendants for purposes of the proviso. West's RCWA
7.70.080. Diaz v. State, 285 P.3d 873 (Wash. 2012).
[END OF SUPPLEMENT]
Footnotes
1
2
3
Ga.Andrews v. Ford Motor Co., 310 Ga. App. 449, 713 S.E.2d 474 (2011).
Vt.Melo v. Allstate Ins. Co., 800 F. Supp. 2d 596 (D. Vt. 2011).
As to compensation from collateral sources is discussed generally in 189.
Del.Miller v. State Farm Mut. Auto. Ins. Co., 993 A.2d 1049 (Del. 2010).
OhioRoss v. Nappier, 185 Ohio App. 3d 548, 2009-Ohio-6995, 924 N.E.2d 916 (11th Dist. Geauga County 2009).
U.S.Porchia v. Design Equipment Co., a Div. of Griffith Laboratories, 113 F.3d 877, 46 Fed. R. Evid. Serv. 1535
(8th Cir. 1997).
Settlement agreement inadmissible
Ind.Manns v. State, Dept. of Highways, 541 N.E.2d 929 (Ind. 1989).
OhioRoss v. Nappier, 185 Ohio App. 3d 548, 2009-Ohio-6995, 924 N.E.2d 916 (11th Dist. Geauga County 2009).
5
6
7
8
9
10
Mo.Lampe v. Taylor, 338 S.W.3d 350 (Mo. Ct. App. S.D. 2011).
Free repairs
N.D.Ostmo v. Tennyson, 70 N.D. 558, 296 N.W. 541 (1941).
U.S.Fitzgerald v. Expressway Sewerage Const., Inc., 177 F.3d 71, 51 Fed. R. Evid. Serv. 1129 (1st Cir. 1999).
Miss.Wright v. Royal Carpet Services, 29 So. 3d 109 (Miss. Ct. App. 2010).
U.S.Page v. St. Louis Southwestern Ry. Co., 312 F.2d 84, 98 A.L.R.2d 639 (5th Cir. 1963).
Action to recover for aggravation of prior injury
Neb.Zimmerman v. Lindblad, 154 Neb. 453, 48 N.W.2d 415 (1951).
U.S.Turnbull v. USAir, Inc., 133 F.3d 184 (2d Cir. 1998).
Ala.Crocker v. Grammer, 2011 WL 3963008 (Ala. Civ. App. 2011).
Colo.Crossgrove v. Wal-Mart Stores, Inc., 2010 WL 2521744 (Colo. App. 2010), certiorari granted in part, 2011
WL 882451 (Colo. 2011).
OhioJaques v. Manton, 125 Ohio St. 3d 342, 2010-Ohio-1838, 928 N.E.2d 434 (2010).
End of Document

Damages
IX. Evidence
B. Admissibility
2. Injuries to Person
a. In General
325. Generally
In personal injury actions, great latitude is allowed in the introduction of evidence to aid in determining
the extent of the damages.
In personal injury actions, great latitude is allowed in the introduction of evidence to aid in determining the extent
of the damages. 1 However, the latitude permitted rests largely in the sound discretion of the trial court. 2
Competent evidence of symptomatic conditions resulting from the injury is admissible, 3 and it is proper for
the injured person to testify as to his or her subjective symptoms. 4 Competent evidence showing the pain and
suffering proximately resulting to a plaintiff by reason of the injury usually is admissible, 5 and ordinarily, the
injured person may describe his or her pain and suffering. 6
Evidence may be objectionable because of its vagueness 7 or remoteness from the time of injury. 8 Some
jurisdictions prohibit the introduction of any evidence of seat belt usage or nonusage in a personal injury action
arising from a motor vehicle accident. 9
Evidence in defense.
Evidence, either in rebuttal or sought to be elicited on cross-examination, tending to show that the injuries are
not so serious or extensive as claimed 10 or that they were not caused by the accident complained of 11 ordinarily
is relevant and should be admitted.
Footnotes
N.C.Jackson v. Carland, 192 N.C. App. 432, 665 S.E.2d 553 (2008).
1
Ill.LeMaster v. Chicago R. I. & P. R. Co., 35 Ill. App. 3d 1001, 343 N.E.2d 65 (1st Dist. 1976).
2
3
4
5
6
7
8
9
10
11
Ark.Arkansas Power & Light Co. v. Cummins, 181 Ark. 1145, 182 Ark. 1, 28 S.W.2d 1077 (1930).
Minn.Schuman v. Minneapolis St. Ry. Co., 209 Minn. 334, 296 N.W. 174 (1941).
Miss.Baxter v. Rounsaville, 193 So. 2d 735 (Miss. 1967).
U.S.Piamba Cortes v. American Airlines, Inc., 177 F.3d 1272 (11th Cir. 1999).
IowaDaniels v. Bloomquist, 258 Iowa 301, 138 N.W.2d 868 (1965).
Ill.Alpe v. Superior Coal Co., 208 Ill. App. 67, 1917 WL 2821 (3d Dist. 1917), cert. denied.
Ind.Burks v. Walters, 127 Ind. App. 358, 141 N.E.2d 872 (1957).
Minn.Burck v. Pederson, 704 N.W.2d 532 (Minn. Ct. App. 2005).
A.L.R. Library
Nonuse of seatbelt as reducing amount of damages recoverable, 62 A.L.R.5th 537.
Failure to use of misuse of automobile child safety seat or restraint system as affecting recovery for personal injury
or death, 46 A.L.R.5th 557.
N.C.Potts v. Howser, 274 N.C. 49, 161 S.E.2d 737 (1968).
Ga.Gordon v. Gordon, 133 Ga. App. 520, 211 S.E.2d 374 (1974).
End of Document
326.Evidence of subsequent accident, 25A C.J.S. Damages 326

Damages
IX. Evidence
B. Admissibility
a. In General
326. Evidence of subsequent accident
Evidence as to a later accident and the results thereof is admissible on the plaintiff's behalf if the later
accident resulted from conditions created by, and was a natural consequence of, the earlier one.
Evidence as to a later accident and the results thereof is admissible on the plaintiff's behalf if the later accident
resulted from conditions created by, and was a natural consequence of, the earlier one 1 or if there is a question
for the jury as to whether the later accident resulted from injuries sustained in the earlier one. 2 Later negligent
acts that aggravated existing injuries is not admissible in an action for the original injuries. 3
A defendant may properly be permitted to introduce evidence of a later accident or injury for the purpose of
showing that the plaintiff sustained the injury complained of not as a result of the defendant's wrong but as a result
of an unrelated occurrence or accident. 4 A defendant may also be permitted to introduce such evidence for the
purpose of showing how much of the plaintiff's disability arose from the injury sued for and how much resulted
from the subsequent injury. 5
Amount recovered by reason of subsequent injury.

Evidence showing the amount recovered by a plaintiff by reason of subsequent injury, 6 or showing that the
plaintiff's claim for injuries arising out of a subsequent accident has been paid or settled and the amount and basis
for such payment or settlement, 7 ordinarily is inadmissible on behalf of the defendant since it is immaterial and
irrelevant to the inquiry.
Footnotes
Haw.Loui v. Oakley, 50 Haw. 260, 50 Haw. 272, 438 P.2d 393 (1968).
1
S.C.Merrill v. Barton, 250 S.C. 193, 156 S.E.2d 862 (1967).
2
326.Evidence of subsequent accident, 25A C.J.S. Damages 326
3
4
5
6
7
U.S.Mavity v. MTD Products, Inc., 714 F. Supp. 2d 577 (W.D. Va. 2010).
Wis.Fitzwilliams v. O'Shaughnessy, 40 Wis. 2d 123, 161 N.W.2d 242 (1968).
Okla.Hobbs v. Reed, 1970 OK CIV APP 5, 465 P.2d 780 (Ct. App. 1970).
Mich.Mancuso v. Yellow Taxicab Co., 231 Mich. 189, 203 N.W. 875 (1925).
Ill.Adkins v. Blue Bird Coach Lines, Inc., 27 Ill. App. 2d 34, 169 N.E.2d 368 (1st Dist. 1960).
End of Document
327.Medical attention, 25A C.J.S. Damages 327

Damages
IX. Evidence
B. Admissibility
a. In General
327. Medical attention
Evidence as to hospital, surgical, or other medical treatment is admissible to establish the extent of the
plaintiff's injuries.
It is proper, as bearing on the extent of a person's injuries, to show that he or she received medical treatment. 1
Evidence as to hospital treatment, 2 necessary surgical operations, 3 or other treatment and care received by an
injured person 4 is admissible to show such person's injuries, physical condition, pain and suffering, or the effect
of his or her injuries.
Testimony by a layperson purporting to show the attending physician's findings, the illness for which he or she
treated the injured person, the method and duration of the treatment, and the relation between the alleged cause
of the injury and the illness is inadmissible as being incompetent. 5
Footnotes
Ark.St. Louis-San Francisco Ry. Co. v. Britton, 182 Ark. 437, 31 S.W.2d 756 (1930).
1
2
3
4
5
Ill.Estate of Oglesby v. Berg, 408 Ill. App. 3d 655, 349 Ill. Dec. 220, 946 N.E.2d 414 (1st Dist. 2011).
As to necessity of procuring medical attention, see 49, 50.
Miss.Ford v. Moore, 253 Miss. 314, 174 So. 2d 716 (1965).
Ill.Budek v. City of Chicago, 279 Ill. App. 410, 1935 WL 3537 (1st Dist. 1935).
N.C.Fisher v. Rogers, 251 N.C. 610, 112 S.E.2d 76 (1960).
N.J.Migliozzi v. Safeway Stores, Inc., 51 N.J. Super. 313, 144 A.2d 1 (App. Div. 1958).
End of Document
328.Medical attentionEvidence that plaintiff did not..., 25A C.J.S. Damages ...

Damages
IX. Evidence
B. Admissibility
a. In General
328. Medical attentionEvidence that plaintiff did not properly seek medical treatment
Evidence that the plaintiff did not properly seek medical treatment may be relevant to determine the
severity of an injury.
Evidence that the plaintiff did not properly seek medical treatment may be relevant to determine the severity of
an injury. 1 Thus, for example, it may be shown that the plaintiff did not seek treatment immediately after the
accident involved 2 or refused recommended physical therapy. 3
It may be shown that, because of the peculiar nature of the injury, the plaintiff was not to be expected at once to
realize fully its gravity, 4 and evidence of the plaintiff's financial condition may be introduced to show a reason
for his or her failure to procure medical attention or to procure medical attention of a high grade. 5
Footnotes
La.Pfefferle v. Haynes Best Western of Alexandria, 38 So. 3d 1189 (La. Ct. App. 3d Cir. 2010), writ denied, 48
1
2
3
4
5
So. 3d 1094 (La. 2010).

OhioSuggs v. Looby, 2011 WL 3930302 (Ohio App. 5 Dist.), 2011 -Ohio- 4533 (2011).
La.Young v. Joy, 30 So. 3d 1116 (La. Ct. App. 3d Cir. 2010).
Mich.Beauerle v. Michigan Cent. R. Co., 152 Mich. 345, 116 N.W. 424 (1908).
U.S.Washington v. Washington, Virginia & Maryland Coach Co., 250 F. Supp. 888 (D. D.C. 1966).
End of Document
329.Injured party's good character and habits, 25A C.J.S. Damages 329

Damages
IX. Evidence
B. Admissibility
b. Evidence of Personal Characteristics and Situation
329. Injured party's good character and habits
There is authority that the plaintiff may show his or her character and standing.
The view has been taken that a jury, when estimating the plaintiff's loss from an injury, should be advised of his
or her character 1 and his or her standing in the community where he or she lives. 2 Likewise, the plaintiff in an
action for personal injury is entitled to show his or her previous habits of sobriety and industry as bearing on the
question of earning capacity, 3 but there is also authority to the contrary. 4
Evidence as to the plaintiff's moral character is not admissible on his or her behalf except in rebuttal of impeaching
evidence. 5
Where the defendant's evidence raises the issue that the plaintiff is malingering, the plaintiff may show that his
or her general reputation is good. 6
Footnotes
AlaskaTransamerica Title Ins. Co. v. Ramsey, 507 P.2d 492 (Alaska 1973).
1
U.S.Chicago, B. & Q.R. Co. v. Conway, 29 F.2d 551 (C.C.A. 8th Cir. 1928).
2
Ark.Biddle v. Riley, 118 Ark. 206, 176 S.W. 134 (1915).
3
4
5
6
As to admissibility of evidence as to loss of earnings or impairment of earning capacity, see 343.

Ala.Davis v. Kornman, 141 Ala. 479, 37 So. 789 (1904).
Ky.Ratliff v. Line, 451 S.W.2d 391 (Ky. 1970).
Tex.Quanah, A. & P. Ry. Co. v. Johnson, 159 S.W. 406 (Tex. Civ. App. Amarillo 1913), writ refused, (Mar. 4, 1914).
End of Document
330.Injured party's bad character and habits, 25A C.J.S. Damages 330

Damages
IX. Evidence
B. Admissibility
330. Injured party's bad character and habits
Evidence of the plaintiff's bad character is admissible when relevant to the plaintiff's injuries.
Whether or not the vicious or immoral habits or character of a plaintiff can be shown by the defendant depends
largely on the nature of the damages claimed in the complaint and the certainty of the resultant physical effect
of the wrong. 1 Such evidence, to be admissible, must clearly show the connection or relation between the habit
and the injury. 2
The plaintiff's alcohol consumption prior to being injured is admissible as relevant to the issue of damages. 3
Evidence as to the plaintiff's habitual use of intoxicants is admissible as bearing on the cause of the plaintiff's
physical condition. 4 A plaintiff's drug use may be introduced to aid the jury in determining whether the plaintiff's
cognitive and mental deficiencies were attributable to the accident as alleged or to some other cause. 5 A plaintiff's
drug use may also be relevant to his or her expectancy of life. 6
Where a plaintiff claims damages for loss of earnings, evidence of the plaintiff's periodic intoxication is admissible
for the purpose of refuting evidence adduced on the plaintiff's behalf showing that, prior to the accident, he or
she worked regularly. 7
Evidence of a plaintiff's criminal and drug history prior to his injury was admissible on behalf of the defendant
where the plaintiff sought to use drug prescriptions history as circumstantial evidence of pain and suffering. 8
Evidence for purposes of mitigation.

The intemperate habits of a plaintiff prior to an injury is inadmissible for the purpose of mitigation unless a proper
foundation is laid therefor 9 as by showing that such habits have affected his or her ability to work. 10
330.Injured party's bad character and habits, 25A C.J.S. Damages 330
Footnotes
Cal.Rousseau v. West Coast House Movers, 256 Cal. App. 2d 878, 64 Cal. Rptr. 655 (2d Dist. 1967).
1
Mo.Glasgow v. Metropolitan St. Ry. Co., 191 Mo. 347, 89 S.W. 915 (1905).
2
Tex.Fitz v. San Antonio Hospitality Investments, Inc., 2004 WL 840609 (Tex. App. San Antonio 2004).
3
Tex.Carothers v. Cameron, 93 S.W.2d 455 (Tex. Civ. App. Waco 1936), writ dismissed.
4
Mich.Guerrero v. Smith, 280 Mich. App. 647, 761 N.W.2d 723 (2008).
5
332.
6
Pa.Musgrave v. Novak, 379 Pa. 184, 108 A.2d 808 (1954).
7
Kan.Barnhart v. Capper, 130 P.3d 148 (Kan. Ct. App. 2006), unpublished.
8
OhioShellock v. Klempay Bros., 167 Ohio St. 279, 4 Ohio Op. 2d 318, 148 N.E.2d 57, 75 A.L.R.2d 900 (1958).
9
10
As to admissibility of evidence of facts tending to reduce damages, generally, see 323.

OhioShellock v. Klempay Bros., 167 Ohio St. 279, 4 Ohio Op. 2d 318, 148 N.E.2d 57, 75 A.L.R.2d 900 (1958).
End of Document
331.Domestic relations of person injured, 25A C.J.S. Damages 331

Damages
IX. Evidence
B. Admissibility
331. Domestic relations of person injured
Generally, evidence of an injured plaintiff's domestic relations is irrelevant and immaterial on the question
of damages although there is some authority to the contrary.
Generally, evidence of an injured plaintiff's domestic relations is irrelevant and immaterial on the question of
damages. 1 Thus, although there is some authority to the contrary, 2 as a general rule, evidence as to the size,
composition, or condition of the family of the person injured is not admissible. 3 Evidence that the plaintiff is
married 4 or that he or she has a family or children 5 is generally inadmissible. Evidence showing the names 6
or ages 7 of the injured person's children ordinarily is inadmissible as is also evidence showing that the injured
person has the burden of caring for or supporting other members of his or her family or that he or she is the sole
support of his or her family. 8
However, the general rule that evidence as to an injured person's domestic relations is inadmissible is subject to
the exception that, under some circumstances, such evidence may be admissible as being relevant and pertinent
to the inquiry. 9
When is admission reversible error.

Evidence of a party's family status is generally calculated to appeal to the sympathy of the jury, and even though
such evidence is inadmissible, it does not always constitute reversible error; admission of such evidence will only
be considered reversible error where it appears that such evidence affected the merits of the case. 10
Footnotes
Ill.Pearson v. Ford Motor Co., 32 Ill. App. 3d 188, 336 N.E.2d 528 (1st Dist. 1975).
1
Mo.Brown v. Poetz, 201 S.W.3d 76 (Mo. Ct. App. E.D. 2006).
331.Domestic relations of person injured, 25A C.J.S. Damages 331
2
3
4
5
6
7
8
9
10
Ill.Hardin v. City of Moline, 179 Ill. App. 101, 1912 WL 3052 (2d Dist. 1912).
U.S.Lebrecht v. Bethlehem Steel Corp., 402 F.2d 585, 37 A.L.R.3d 1072 (2d Cir. 1968).
Ill.McKasson v. Zimmer Mfg. Co., 12 Ill. App. 3d 429, 299 N.E.2d 38 (2d Dist. 1973).
Okla.Midland Val. R. Co. v. Manios, 1956 OK 324, 307 P.2d 545 (Okla. 1956).
Mo.Donze v. Swofford, 368 S.W.2d 917 (Mo. Ct. App. 1963).
Mo.Donze v. Swofford, 368 S.W.2d 917 (Mo. Ct. App. 1963).
Minn.Ulrich v. Minneapolis Boxing & Wrestling Club, Inc., 268 Minn. 328, 129 N.W.2d 288, 14 A.L.R.3d 982
(1964).
Ill.LeMaster v. Chicago R. I. & P. R. Co., 35 Ill. App. 3d 1001, 343 N.E.2d 65 (1st Dist. 1976).
Mo.Brown v. Poetz, 201 S.W.3d 76 (Mo. Ct. App. E.D. 2006).
End of Document
332.Expectancy of life, 25A C.J.S. Damages 332

Damages
IX. Evidence
B. Admissibility
332. Expectancy of life
Competent testimony of life expectancy is admissible.
A person acquainted with the life-insurance business, and the mortality tables on which such business is based,
may testify as to the probable duration of lives. 1 Furthermore, a physician familiar with life expectancy tables
and with life expectancy generally may testify as to the life expectancy of the plaintiff in an injury action and, for
the purpose of refreshing his or her memory, may use or refer to a recognized and properly identified table of life
expectancies. 2 However, mortality tables are not admissible in the absence of evidence of permanent injury. 3
Generally, evidence as to the plaintiff's chronic substance abuse is admissible as bearing on the plaintiff's
expectancy of life. 4 However, some courts have barred such evidence where its potential for prejudicial effect
outweighs its probative value. 5
Footnotes
IowaEhlinger v. State, 237 N.W.2d 784 (Iowa 1976).
1
2
3
4
As to consideration of mortality and annuity tables and life expectancy in fixing damages, see 139 to 143.
W.Va.Crum v. Ward, 146 W. Va. 421, 122 S.E.2d 18 (1961).
Fla.Miami-Dade County School Bd. v. A.N., Sr., 905 So. 2d 203, 199 Ed. Law Rep. 1003 (Fla. Dist. Ct. App. 3d
Dist. 2005).
Ark.Oxford v. Hamilton, 297 Ark. 512, 763 S.W.2d 83 (1989).
Pa.Callahan v. National R.R. Passenger Corp., 2009 PA Super 132, 979 A.2d 866 (2009), appeal denied, 608 Pa.
651, 12 A.3d 750 (2010).
A.L.R. Library
Admissibility of evidence, in action for personal injury or death, of injured party's use of intoxicants or illegal drugs
on issue of life expectancy, 86 A.L.R.4th 1135.
Ill.Fultz v. Peart, 144 Ill. App. 3d 364, 98 Ill. Dec. 285, 494 N.E.2d 212 (5th Dist. 1986).
Okla.Fritts v. McKinne, 1996 OK CIV APP 132, 934 P.2d 371 (Div. 2 1996).
332.Expectancy of life, 25A C.J.S. Damages 332
End of Document
333.Pecuniary condition of parties, 25A C.J.S. Damages 333

Damages
IX. Evidence
B. Admissibility
333. Pecuniary condition of parties
Interjection of the wealth or poverty of any party is irrelevant to the issue of compensatory damages.
Interjection of the wealth or poverty of any party is irrelevant to the issue of compensatory damages in a personal
injury case based on negligence, 1 highly prejudicial because it diverts the jury from a fair assessment of damages,
and a basis for reversal. 2 Evidence of a plaintiff's poverty and financial distress caused by medical bills is
inadmissible. 3 However, evidence of money received by a personal injury plaintiff from proceedings in another
court concerning spinal injuries was admissible on the issue of damages where the plaintiff testified that she did
not undergo tooth implant surgery that she claimed to have required after a dog attack giving rise to the action
because she could not afford it. 4
Evidence as to the financial responsibility of a person not a party to the action and against whom no recovery
is sought is inadmissible. 5
Footnotes
U.S.Van Bumble v. Wal-Mart Stores, Inc., 407 F.3d 823 (7th Cir. 2005).
1
2
3
4
5
Fla.Samuels v. Torres, 29 So. 3d 1193 (Fla. Dist. Ct. App. 5th Dist. 2010).
Fla.Samuels v. Torres, 29 So. 3d 1193 (Fla. Dist. Ct. App. 5th Dist. 2010).
Colo.Garcia v. Mekonnen, 156 P.3d 1171 (Colo. App. 2006).
As to financial condition of plaintiff as affecting compensatory damages, see 139 to 143.
As to financial condition of plaintiff as affecting exemplary damages, see 261.
La.Reeves v. Grove, 72 So. 3d 1010 (La. Ct. App. 4th Cir. 2011).
R.I.Sroka v. Halliday, 39 R.I. 119, 97 A. 965 (1916).
End of Document

Damages
IX. Evidence
B. Admissibility
c. Previous and Subsequent Health
334. Generally
West's Key Number Digest, Damages 168, 168(.5) to 168(2)
Generally, evidence as to the conduct, health, and condition of an injured person before and after his or
her injury is admissible to show the extent of the injury.
Generally, evidence as to the conduct, general health, and physical condition of the person injured before 1 or
after 2 the injury is admissible to show the extent, nature, and probable effect of the injury except where the change
in condition is not shown to have resulted from the defendant's wrongful act and the injuries caused thereby. 3
Competent evidence may properly be introduced to show that, subsequent to the accident or injury, the injured
person suffered from loss of natural sleep or rest, 4 from coughing spells, 5 or from nervousness or nervous
shock. 6
Testimony of physicians showing their physical examination of the plaintiff after the accident in question and the
plaintiff's complaints made to them in the course of such examination is proper for the purpose of corroborating
other evidence showing that the injuries sued for resulted from such accident. 7
Competent evidence of the plaintiff's physical condition subsequent to the alleged injury is admissible on the
defendant's behalf to show that the plaintiff did not, in fact, sustain the injury that he or she claims to have
suffered. 8
Footnotes
U.S.Herbert v. Mobil Oil Corp., 480 F.2d 1209 (9th Cir. 1973).
1
Substantial similarity to present injuries must be shown

Ga.Kilday v. Kennestone Physicians Center, L.P., 296 Ga. App. 818, 676 S.E.2d 271 (2009).
Ind.Flores v. Gutierrez, 951 N.E.2d 632 (Ind. Ct. App. 2011).
3
4
5
6
7
8
Ill.Vander Veen v. Yellow Cab Co., 89 Ill. App. 2d 91, 233 N.E.2d 68 (1st Dist. 1967).
As to necessity that consequences be the natural and proximate result of defendant's wrong, see 34, 35.
Ga.Brewer v. Henson, 96 Ga. App. 501, 100 S.E.2d 661 (1957).
Pa.De Marco v. Frommyer Brick Co., 203 Pa. Super. 486, 201 A.2d 234 (1964).
Mo.Hoffman v. St. Louis Public Service Co., 255 S.W.2d 736 (Mo. 1953).
U.S.Lieberthal v. Glens Falls Indem. Co., 174 F.2d 638 (7th Cir. 1949).
Mo.Boehmer v. Boggiano, 412 S.W.2d 103 (Mo. 1967).
End of Document
335.Previous health, 25A C.J.S. Damages 335

Damages
IX. Evidence
B. Admissibility
335. Previous health
Evidence concerning a plaintiff's prior injuries may be admissible to show that the injuries currently at
issue are not the result of the defendant's alleged negligence.
Evidence concerning a plaintiff's prior injuries may be admissible to show that the injuries currently at issue are
not the result of the defendant's alleged negligence 1 or were caused wholly or partially by an earlier injury. 2
Evidence of prior injuries may be admitted to show that the damages sought by the plaintiff resulted from the
prior, rather than current, injury. 3
If a defendant wishes to introduce evidence of a prior injury, the defendant must introduce expert evidence
demonstrating why the prior injury is relevant to causation, damages, or some other issue of consequence unless
the trial court determines that a layperson can readily appraise the relationship between those injuries. 4
The existence of preexisting conditions may be relevant and admissible for the purpose of determining to what
extent claimed limitations of activities 5 and loss of ability to enjoy life 6 are the result of the injury at issue as
opposed to the preexisting condition. However, without competent evidence of a causal relationship between a
plaintiff's injuries and a preexisting condition, evidence of other injuries is inadmissible on damages; such evidence
would only invite the trier of fact to speculate without an appropriate factual basis. 7
Medical records and treatment.

An entire preaccident treatment record is not per se relevant or admissible with regards to personal injuries merely
because a physician consults that treatment record. 8 The periodic use of chiropractic services before an accident,
without more, is not relevant to the issue of damages. 9 Prescription drug records may be relevant and admissible
to the issues of the severity and chronic nature of preexisting conditions. 10 The plaintiff's visit to an emergency
335.Previous health, 25A C.J.S. Damages 335
room prior to sustaining an injury is relevant to the issue of whether the conditions complained of may have been
aggravated by the accident in the current case but were not new injuries. 11
Footnotes
1
2
3
4
5
6
7
8
9
10
11
Ind.Reliable Development Corp. v. Berrier, 851 N.E.2d 983 (Ind. Ct. App. 2006).
Fla.JVA Enterprises, I, LLC v. Prentice, 48 So. 3d 109 (Fla. Dist. Ct. App. 4th Dist. 2010).
Retirement as firefighter due to previous injury
Mont.Neal v. Nelson, 2008 MT 426, 347 Mont. 431, 198 P.3d 819 (2008).
Ill.Ford v. Grizzle, 398 Ill. App. 3d 639, 338 Ill. Dec. 325, 924 N.E.2d 531 (5th Dist. 2010), as corrected, (Mar. 4,
2010) and appeal denied, 236 Ill. 2d 552, 342 Ill. Dec. 568, 932 N.E.2d 1029 (2010).
Miss.Brooks v. Purvis, 70 So. 3d 1166 (Miss. Ct. App. 2011).
Wash.Little v. King, 160 Wash. 2d 696, 161 P.3d 345 (2007), as amended on denial of reconsideration, (Oct. 3, 2007).
Wash.Hoskins v. Reich, 142 Wash. App. 557, 174 P.3d 1250 (Div. 2 2008).
Wash.Hoskins v. Reich, 142 Wash. App. 557, 174 P.3d 1250 (Div. 2 2008).
Tenn.McPeek v. Lockhart, 174 S.W.3d 751 (Tenn. Ct. App. 2005).
Wash.Tsao v. Widger, 135 Wash. App. 1036, 2006 WL 3185571 (Div. 1 2006).
End of Document
336.Evidence of prior suit or settlement, 25A C.J.S. Damages 336

Damages
IX. Evidence
B. Admissibility
336. Evidence of prior suit or settlement
Evidence as to prior suits or settlements for injuries is admissible when relevant as to the injuries
complained of.
Evidence showing that prior to the injury in question the plaintiff sued for personal injuries sustained by him
or her in a previous accident is generally inadmissible 1 since it involves the danger of undue prejudice and of
a time-wasting confusion of issues. 2 However, evidence that the plaintiff filed a Social Security 3 or workers'compensation claim, 4 or sued for personal injuries sustained prior to the injury complained of, 5 may be
admissible for the purpose of showing whether the condition currently complained of resulted from the defendant's
wrongful act or of showing how much of such condition resulted from such wrongful act and how much resulted
from the prior accident or occurrence. Such evidence is also admissible for the purpose of establishing whether
and to what extent the injuries sued for are only aggravations of earlier injuries or whether and to what extent
they are new injuries. 6
Evidence showing that the plaintiff accepted a certain sum of money for personal injuries sustained by him or
her prior to the injury in question is inadmissible where the circumstances are such that it is clearly irrelevant
and immaterial and has no probative value in that it sheds no light on the nature, extent, or cause of the injury
in question. 7 However, under some circumstances, such evidence may be admissible for the limited purpose of
establishing whether or how much of the condition complained of resulted from the defendant's wrongful act. 8
Footnotes
1
Cal.Brown v. Affonso, 185 Cal. App. 2d 235, 8 Cal. Rptr. 156 (1st Dist. 1960).
2
OhioSims v. Dibler, 172 Ohio App. 3d 486, 2007-Ohio-3035, 875 N.E.2d 965 (7th Dist. Jefferson County 2007).
3
Fla.JVA Enterprises, I, LLC v. Prentice, 48 So. 3d 109 (Fla. Dist. Ct. App. 4th Dist. 2010).
4
OhioPesic v. Pezo, 2008 WL 4811395 (Ohio App. 8 Dist.), 2008 -Ohio- 5738 (2008).
336.Evidence of prior suit or settlement, 25A C.J.S. Damages 336
5
6
7
8
Md.Patras v. Syphax, 166 Md. App. 67, 887 A.2d 84 (2005).

OhioPesic v. Pezo, 2008 WL 4811395 (Ohio App. 8 Dist.), 2008 -Ohio- 5738 (2008).
D.C.Bill's Auto Rental, Inc. v. Bonded Taxi Co., Inc., 72 A.2d 254 (Mun. Ct. App. D.C. 1950).
Wash.Worthington v. Caldwell, 65 Wash. 2d 269, 396 P.2d 797 (1964).
Denial by plaintiff of previous eye trouble
Cal.Le Blanc v. Browne, 78 Cal. App. 2d 63, 177 P.2d 347 (2d Dist. 1947).
End of Document
337.Disease, 25A C.J.S. Damages 337

Damages
IX. Evidence
B. Admissibility
337. Disease
Evidence of the plaintiff's diseased condition is inadmissible absent evidence connecting such condition with
the injury in question.
Evidence of the diseased condition of the plaintiff is immaterial in the absence of evidence connecting such
condition with the injury. 1 However, such condition may be considered on behalf of the defendant as showing
that it would tend to retard the plaintiff's recovery, 2 or shorten his or her probable period of life and diminish his
or her earning capacity, 3 or as showing that the plaintiff's diseased condition, and not the injury complained of,
was the cause of his or her disability and pain. 4
Footnotes
Pa.McCrosson v. Philadelphia Rapid Transit Co., 283 Pa. 492, 129 A. 568 (1925).
1
2
3
4
Multiple sclerosis
Wash.Gray v. Robinson, 134 Wash. App. 1066, 2006 WL 2664239 (Div. 1 2006).
Ga.Fett v. Alderman, 117 Ga. App. 677, 161 S.E.2d 350 (1968).
Pa.Bunting v. Hogsett, 139 Pa. 363, 21 A. 33 (1891).
End of Document
338.Discretion of trial court, 25A C.J.S. Damages 338

Damages
IX. Evidence
B. Admissibility
338. Discretion of trial court
The latitude permitted as to evidence of an injured person's health, condition, and appearance before the
accident rests largely in the sound discretion of the trial court.
The latitude permitted as to evidence of an injured person's health, condition, and appearance before the accident
rests largely in the sound discretion of the trial court. 1 Thus, the court did not abuse its discretion by admitting
evidence concerning a plaintiff's prior injuries where medical experts testified that the prior injuries were relevant
to the current injuries. 2 Also, on the other hand, where medical records showing a preexisting condition were
relevant to the issue of damages, the court abused its discretion by refusing to admit such records into evidence. 3
However, the court may bar arguably relevant evidence sought to be introduced by the defense to challenge a
plaintiff's testimony if it decides that there are other preferable ways to challenge such testimony. 4
The latitude permitted as to evidence of an injured person's health and physical condition subsequent to the
accident, 5 including his or her physical condition at the time of the trial, 6 rests largely in the sound discretion
of the trial court.
Footnotes
U.S.Myrtle v. Checker Taxi Co., 279 F.2d 930, 3 Fed. R. Serv. 2d 982 (7th Cir. 1960).
1
Ill.Ford v. Grizzle, 398 Ill. App. 3d 639, 338 Ill. Dec. 325, 924 N.E.2d 531 (5th Dist. 2010), as corrected, (Mar. 4,
2
3
4
2010) and appeal denied, 236 Ill. 2d 552, 342 Ill. Dec. 568, 932 N.E.2d 1029 (2010).
Miss.Fred's Stores of Tennessee, Inc. v. Pratt, 67 So. 3d 820 (Miss. Ct. App. 2011).
Evidence of prior emotional and psychiatric conditions barred
N.J.Yeomans v. Gibson, 2005 WL 3981217 (N.J. Super. Ct. App. Div. 2006).
AlaskaDavis v. Chism, 513 P.2d 475 (Alaska 1973).
Letter from chiropractor admissible
338.Discretion of trial court, 25A C.J.S. Damages 338
U.S.Breeden v. ABF Freight System, Inc., 115 F.3d 749 (10th Cir. 1997).
N.J.Schwartau v. Miesmer, 50 N.J. Super. 399, 142 A.2d 675 (App. Div. 1958).
End of Document

Damages
IX. Evidence
B. Admissibility
d. Permanency of Injury and Future Consequences
339. Generally
West's Key Number Digest, Damages 166, 166(1), 166(2), 168, 168(.5) to 168(2), 185(2)
Evidence of the plaintiff's condition before and after the injury is admissible to show the permanency
thereof.
Evidence of the condition of the plaintiff both before and after the injury is admissible to show the probable
permanency of the injury. 1
Testimony of a physician as to the probable effect of the injury is admissible. 2 While some courts have declared
that this testimony should show that such result is reasonably certain or reasonably probable and not a mere
likelihood or possibility, 3 other courts have stated that a physician's testimony as to the future consequences
of the injury need not contain a statement that such consequences are reasonably certain to occur in order to be
admissible. 4
A physician may be permitted to testify as to his or her estimate of the plaintiff's permanent disability resulting
from the injury. 5 The physician may estimate future disability in terms of a percentage. 6
Testimony of a physician pertaining to the future consequences or effect of the plaintiff's injury must be confined
to the particular injury in question. 7 Testimony of a physician as to the proportion of persons with the plaintiff's
affliction who ultimately recover their health is competent on this point. 8 Where a permanent impairment is
alleged, it is proper to admit evidence of the possibility of removing such impairment by a surgical operation. 9
Discretion of trial court.

The latitude permitted as to evidence tending to show the permanency of the injuries proximately resulting from
the defendant's wrongful act or conduct rests largely in the sound discretion of the trial court. 10
Footnotes
W.Va.Buck v. Hathaway, 116 W. Va. 585, 182 S.E. 673 (1935).
1
Tenn.Reserve Life Ins. Co. v. Whittemore, 59 Tenn. App. 495, 442 S.W.2d 266 (1969).
2
Necessity of future surgery
Fla.Greenberg v. Schindler Elevator Corp., 47 So. 3d 901 (Fla. Dist. Ct. App. 3d Dist. 2010).
3
4
5
6
7
8
9
10
Necessity of future treatment

La.Savage v. State Farm Mut. Ins. Co., 33 So. 3d 919 (La. Ct. App. 5th Cir. 2010).
As to competency of expert medical testimony, generally, see C.J.S., Evidence 858 to 868.
Conn.Madsen v. Gates, 85 Conn. App. 383, 857 A.2d 412 (2004).
Tenn.Maryland Cas. Co. v. Young, 211 Tenn. 1, 362 S.W.2d 241 (1962).
Cal.Bauman v. City and County of San Francisco, 42 Cal. App. 2d 144, 108 P.2d 989 (1st Dist. 1940).
Okla.Thompson v. Walton, 1956 OK 173, 297 P.2d 1084 (Okla. 1956).
La.Savage v. State Farm Mut. Ins. Co., 33 So. 3d 919 (La. Ct. App. 5th Cir. 2010).
Tex.Lentz v. City of Dallas, 96 Tex. 258, 72 S.W. 59 (1903).
UtahBudd v. Salt Lake City R. Co., 23 Utah 515, 65 P. 486 (1901).
Kan.Joseph Schlitz Brewing Co. v. Duncan, 6 Kan. App. 178, 51 P. 310 (1897).
OhioHall v. Burkert, 117 Ohio App. 527, 24 Ohio Op. 2d 322, 193 N.E.2d 167 (7th Dist. Mahoning County 1962).
End of Document
340.Pain and suffering, 25A C.J.S. Damages 340

Damages
IX. Evidence
B. Admissibility
340. Pain and suffering
West's Key Number Digest, Damages 166, 166(2), 168, 168(2)
Competent evidence tending to show the pain and suffering that the injured person is reasonably certain
to undergo in the future as a proximate result of the injury ordinarily is admissible.
Competent evidence tending to show the pain and suffering that the injured person is reasonably certain to undergo
in the future as a proximate result of the injury ordinarily is admissible. 1 However, such evidence should be
restricted to such pain and suffering as will reasonably and probably result to the plaintiff from the injury, 2
and evidence showing merely that pain and suffering may, in the future, result to the plaintiff from the injury
is inadmissible. 3 The plaintiff's testimony that he or she has suffered and still is suffering from headaches and
dizziness is not competent on the question of his or her future pain and suffering. 4
Footnotes
U.S.Sears, Roebuck & Co. v. Hartley, 160 F.2d 1019 (C.C.A. 9th Cir. 1947).
1
2
3
4
As to admissibility of evidence of plaintiff's pain and suffering, generally, see 340.

Tex.Fisher v. Coastal Transport Co., 149 Tex. 224, 230 S.W.2d 522 (1950).
Fear of future medical treatment
OhioHaase v. Ryan, 100 Ohio App. 285, 60 Ohio Op. 251, 136 N.E.2d 406 (6th Dist. Lucas County 1955).
Nev.Gutierrez v. Sutton Vending Service, Inc., 80 Nev. 562, 397 P.2d 3 (1964).
End of Document
341.Mental suffering, 25A C.J.S. Damages 341

Damages
IX. Evidence
B. Admissibility
341. Mental suffering
Where mental suffering is a proper element of damage, any evidence that is otherwise competent is generally
admissible to show the existence, nature, and extent of such suffering.
Where mental suffering is a proper element of damage, any evidence that is otherwise competent is generally
admissible to show the existence, nature, and extent of such suffering. 1
When emotional-distress and mental anguish damages are asserted, the victim's state of mind at the time of the
tort is relevant to allegations of harm. 2 Furthermore, evidence of mental suffering occasioned by reasonable
apprehension of future disability or deformity resulting from an injury is admissible. 3
Evidence concerning a plaintiff's loss of enjoyment of life is relevant and admissible as a factor to be considered
in assessing damages for pain and suffering. 4
Once a plaintiff makes claims of emotional distress, the defendant is allowed to explore any alternative or
contributing causes to that emotional distress; in short, a plaintiff seeking damages for emotional distress
essentially opens the door to intense scrutiny of his or her psychological status and history. 5 Nevertheless,
evidence offered on the defendant's behalf for the purpose of rebutting or refuting the plaintiff's evidence showing
his or her mental suffering by reason of his or her injury is not admissible unless it is competent, relevant, and
material. 6
Change of occupation.
Whether or not a plaintiff should be permitted to introduce evidence showing his or her loss of enjoyment of life
because he or she was forced to change his or her occupation by reason of his or her injury rests largely in the
sound discretion of the trial court. 7
Footnotes
Kan.Dawson v. Associates Financial Services Co. of Kansas, Inc., 215 Kan. 814, 529 P.2d 104 (1974).
1
2
3
4
5
6
7
As to mental suffering as element of compensation, see 106 to 117.

U.S.Tompkins v. Cyr, 202 F.3d 770, 53 Fed. R. Evid. Serv. 1424, 46 Fed. R. Serv. 3d 319 (5th Cir. 2000).
Or.Porter v. Headings, 270 Or. 281, 527 P.2d 403 (1974).
N.Y.Hoberg v. Shree Granesh, LLC, 85 A.D.3d 965, 926 N.Y.S.2d 578 (2d Dep't 2011).
U.S.Kakeh v. United Planning Organization, Inc., 587 F. Supp. 2d 125 (D.D.C. 2008).
N.Y.Kotiadis v. Gristede Bros., Inc., 20 A.D.2d 689, 246 N.Y.S.2d 662 (1st Dep't 1964).
End of Document
342.Mental sufferingMental condition before and after injury, 25A C.J.S. Damages ...

Damages
IX. Evidence
B. Admissibility
342. Mental sufferingMental condition before and after injury
On the question as to the effect of the injury on a plaintiff's mind, evidence of his or her mental status or
condition before the injury, and also continuously from and after the injury, ordinarily is admissible.
On the question as to the effect of an injury on the mind of the plaintiff, it is competent to show his or her mental
status or condition before the injury 1 and also to show his or her mental status or condition continuously from
and after the injury. 2 Evidence showing a change in the plaintiff's personality and attitude toward others after
the injury may properly be introduced. 3
A physician may be permitted to give testimony showing that certain changes in the plaintiff's personality,
temperament, disposition, or nature that occurred after the injury are symptomatic of a brain injury where such
evidence is relevant and material to the inquiry. 4
Evidence showing that the plaintiff has filed suits for injuries flowing from another accident is admissible on behalf
of the defendant as bearing on the plaintiff's mental condition subsequent to the injury complained of where there
is evidence in the case that the plaintiff's worry about such suits has contributed to his or her mental condition. 5
Provided that such evidence is competent, relevant, and material to the inquiry, evidence showing that the plaintiff
suffered from amnesia some time after the injury is admissible. 6
Footnotes
Or.Mays v. Carner, 257 Or. 113, 476 P.2d 794 (1970).
1
Preaccident psychiatric diagnosis of bipolar disorder

Colo.Gonzales v. Mascarenas, 190 P.3d 826 (Colo. App. 2008).
Fla.Griffin v. Ellis Aluminum & Screen, Inc., 30 So. 3d 714 (Fla. Dist. Ct. App. 3d Dist. 2010).
Ga.Oliver v. Strickland, 116 Ga. App. 150, 156 S.E.2d 557 (1967).
342.Mental sufferingMental condition before and after injury, 25A C.J.S. Damages ...
3
4
5
6
Minn.Fjellman v. Weller, 213 Minn. 457, 7 N.W.2d 521 (1942).

Tex.Louisiana & A. Ry. Co. v. Mullins, 326 S.W.2d 263 (Tex. Civ. App. Texarkana 1959), writ refused n.r.e., (Oct.
14, 1959).
Tex.Marange v. Lew Williams Chevrolet, Inc., 371 S.W.2d 900 (Tex. Civ. App. San Antonio 1963), writ refused
n.r.e., (Jan. 15, 1964).
N.C.Lockwood v. McCaskill, 262 N.C. 663, 138 S.E.2d 541 (1964).
End of Document
343.Loss of earnings or impairment of earning capacity, 25A C.J.S. Damages 343

Damages
IX. Evidence
B. Admissibility
e. Losses and Expenses, Generally
343. Loss of earnings or impairment of earning capacity
West's Key Number Digest, Damages 172 to 173(2)
Competent evidence as to loss of earnings or impairment of earning capacity is admissible.
Any evidence that is otherwise competent and that is relevant to the questions that may properly be considered
as bearing on the measure of damages for loss of earnings or impairment of earning capacity is admissible. 1
Consequently, merely speculative, remote, or uncertain evidence of the loss of future earnings is not admissible. 2
Nevertheless, evidence about what employment an injured plaintiff would have pursued but for his or her injuries
is admissible so long as it is supported by competent evidence. 3 Evidence of a plaintiff's retirement plans are
also admissible. 4
Evidence concerning the immigration status of a plaintiff is admissible as having bearing on the amount of recovery
for lost wages. 5
Footnotes
Ariz.Martinez v. Jordan, 27 Ariz. App. 254, 553 P.2d 1239 (Div. 1 1976).
1
3
4
5
As to the questions that may properly be considered as bearing on the measure of damages for loss of earnings or
impairment of earning capacity are considered in 156, 157, 160 to 165.
Mo.Richardson v. Sherwood, 337 S.W.3d 58 (Mo. Ct. App. W.D. 2011), reh'g and/or transfer denied, (Mar. 29,
2011) and as modified, (Mar. 29, 2011) and transfer denied, (May 31, 2011).
N.C.Dunn v. Custer, 162 N.C. App. 259, 591 S.E.2d 11 (2004).
Mo.Burrows v. Union Pacific R. Co., 218 S.W.3d 527 (Mo. Ct. App. E.D. 2007).
Colo.Silva v. Wilcox, 223 P.3d 127 (Colo. App. 2009).
Fla.Villasenor v. Martinez, 991 So. 2d 433 (Fla. Dist. Ct. App. 5th Dist. 2008).
Miss.Meka v. Grant Plumbing & Air Conditioning Co., 67 So. 3d 18 (Miss. Ct. App. 2011).
Wash.Salas v. Hi-Tech Erectors, 168 Wash. 2d 664, 230 P.3d 583 (2010).
End of Document

Damages
IX. Evidence
B. Admissibility
The rule of evidence to establish lost profits, when recoverable, is a liberal one.
Evidence of past profits may be highly relevant and, therefore, can be included. 1 When lost profits are recoverable,
the rule of evidence to establish them is a liberal one. 2 However, incompetent, irrelevant, and immaterial evidence
of profits, 3 and evidence of profits that is too remote 4 or speculative, 5 should be excluded.
Footnotes
U.S.Fitzgerald v. Mountain States Tel. and Tel. Co., 68 F.3d 1257 (10th Cir. 1995).
1
U.S.DeVries v. Starr, 393 F.2d 9 (10th Cir. 1968).
2
3
4
5
As to evidence of loss of profits from breach of contract, generally, see 358.

Ariz.Rollette v. Myers, 13 Ariz. App. 72, 474 P.2d 196, 45 A.L.R.3d 336 (Div. 1 1970).
U.S.Universal Airline v. Eastern Air Lines, 188 F.2d 993 (D.C. Cir. 1951).
U.S.Hillside Enterprises v. Carlisle Corp., 69 F.3d 1410 (8th Cir. 1995).
Estimates of future sales
Conn.Message Center Management, Inc. v. Shell Oil Products Co., 85 Conn. App. 401, 857 A.2d 936 (2004).
End of Document
345.Expenses incurred, 25A C.J.S. Damages 345

Damages
IX. Evidence
B. Admissibility
345. Expenses incurred
Competent evidence showing the reasonableness or necessity of expenses following an injury is admissible.
Competent evidence tending accurately to show the actual or reasonable amount 1 or the necessity 2 of expenses
incurred as a natural and proximate result of a wrong or injury is admissible under proper averments, and under
this rule, competent evidence ordinarily is admissible to show the actual or reasonable amount or the necessity
of medical, hospital, nursing, and similar expenses that naturally and proximately flow from the wrong or injury
at issue. 3
Evidence pertaining to medical and similar expenses may consist in the testimony of the physicians rendering
the services 4 or in the bills presented for their services or for hospital treatment. 5 Records of medical treatment
received by a plaintiff who seeks to recover for a particular type of injury may be admissible even though some
of the records contain bills for treatment of related injuries that are not compensable. 6
It has been held that bills for hospital treatment or for the services of physicians and nurses are inadmissible where
there is no proof of the necessity or reasonable value thereof. 7 However, there is also authority for the view that
the admission of such bills in evidence under such circumstances rests in the sound discretion of the court 8 and
that they are admissible even in the absence of direct evidence that the charges were reasonable. 9
Evidence of the amount accepted in satisfaction of a bill for medical services provided to an injured plaintiff is of
relevance in determining the reasonable value of those services and thus admissible. 10
Defendants in an action for personal injuries are permitted to present evidence that the amount billed for medical
expenses is not reasonable. 11
345.Expenses incurred, 25A C.J.S. Damages 345
Statutory regulation.
Admissibility of evidence of medical and hospital services may in some jurisdictions be governed by statute. 12
Future medical expenses.

Evidence of future medical expenses is admissible if it is shown to be reasonably probable that the plaintiff will
require such treatment in the future as a result of the defendant's conduct. 13 Accordingly, where evidence showing
that it will be necessary for the plaintiff to undergo a surgical operation has been properly adduced, competent
evidence showing the cost of such an operation is admissible. 14 Evidence of future expenses that is speculative
will, however, be excluded. 15
Footnotes
IowaState v. Urbanek, 177 N.W.2d 14 (Iowa 1970).
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
As to measure of recovery for expenses, see 168 to 170.

U.S.Galard v. Johnson, 504 F.2d 1198 (7th Cir. 1974).
Ga.Georgia Power Co. v. Edwards, 136 Ga. App. 135, 220 S.E.2d 460 (1975).
Tex.Owl Taxi Service v. Saludis, 122 S.W.2d 225 (Tex. Civ. App. Austin 1938), writ dismissed.
U.S.Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d 1515, 46 Fed. R. Evid. Serv. 1521 (10th Cir. 1997).
Md.Wolf v. Levitt & Sons, Inc., 267 Md. 623, 298 A.2d 374 (1973).
Colo.Briola v. Roy, 170 Colo. 97, 459 P.2d 288 (1969).
Ga.Waldrop v. White, 120 Ga. App. 607, 171 S.E.2d 758 (1969).
Ill.Gilliam v. Agar Packing Co., 67 Ill. App. 2d 235, 216 N.E.2d 504 (1st Dist. 1966).
Need for pain medication
N.Y.Hixson v. Cotton-Hanlon, Inc., 60 A.D.3d 1297, 875 N.Y.S.2d 361 (4th Dep't 2009).
End of Document
346.Expenses incurredExpenses not paid for by injured..., 25A C.J.S. Damages ...

Damages
IX. Evidence
B. Admissibility
346. Expenses incurredExpenses not paid for by injured party
Generally, evidence pertaining to the medical, hospital, nursing, and similar expenses incurred as a result
of the injury complained of may be admissible even where it appears that one other than the plaintiff has
or will pay them.
Generally, evidence pertaining to the medical, hospital, nursing, and similar expenses incurred as a result of the
injury complained of may be admissible even where it appears that one other than the plaintiff has or will pay
them 1 or that some expenses were written off by the medical providers. 2 Because a debt for medical expenses
is merely evidence of a plaintiff's damages in a negligence case, once incurred, the subsequent discharge of the
debt in bankruptcy does not prohibit a plaintiff from offering proof of those past medical expenses as evidence
of a component element of damages. 3
Evidence of such medical expenses may be admissible even though medical services were rendered gratuitously. 4
Thus, it is proper to admit competent evidence having a legitimate tendency to show the reasonable value of
nursing services rendered to the plaintiff by members of the plaintiff's family. 5
On the other hand, in some jurisdictions, evidence of the amount of a plaintiff's medical expenses paid for by
third parties and any amount discounted or written off is not admissible even to show the reasonable value of the
services rendered. 6 This includes amounts paid by insurers. 7
Cases:
Evidence of the full amount billed for a plaintiff's medical care is not relevant to the determination of a plaintiff's
damages for past medical expenses, and therefore is inadmissible for that purpose if the plaintiff's medical
providers, by prior agreement, had contracted to accept a lesser amount as full payment for the services provided.
Corenbaum v. Lampkin, 215 Cal. App. 4th 1308, 156 Cal. Rptr. 3d 347 (2d Dist. 2013).
346.Expenses incurredExpenses not paid for by injured..., 25A C.J.S. Damages ...
[END OF SUPPLEMENT]
Footnotes
Fla.Nationwide Mut. Fire Ins. Co. v. Harrell, 53 So. 3d 1084 (Fla. Dist. Ct. App. 1st Dist. 2010), review denied,
1
3
4
5
6
7
67 So. 3d 1050 (Fla. 2011).

Okla.J. C. Penney Co. v. Barrientez, 1965 OK 166, 411 P.2d 841 (Okla. 1965).
As to collateral-source rule as barring evidence of medical expenses paid by others for purposes of mitigating or
reducing damages, see 324.
U.S.Reed v. National Council of Boy Scouts of America, Inc., 706 F. Supp. 2d 180, 2010 DNH 18 (D.N.H. 2010).
Cal.Olsen v. Reid, 164 Cal. App. 4th 200, 79 Cal. Rptr. 3d 255 (4th Dist. 2008).
Write-off for benefit of insurer does not constitute payment to insured
Tex.Tate v. Hernandez, 280 S.W.3d 534 (Tex. App. Amarillo 2009).
R.I.Oddo v. Cardi, 100 R.I. 578, 218 A.2d 373 (1966).
Ga.Harris v. Hardman, 133 Ga. App. 941, 212 S.E.2d 883 (1975).
Colo.Crossgrove v. Wal-Mart Stores, Inc., 2010 WL 2521744 (Colo. App. 2010), certiorari granted in part, 2011
WL 882451 (Colo. 2011).
Ga.Andrews v. Ford Motor Co., 310 Ga. App. 449, 713 S.E.2d 474 (2011).
Vt.Melo v. Allstate Ins. Co., 800 F. Supp. 2d 596 (D. Vt. 2011).
End of Document
347.Expenses incurredEmployment of assistance in..., 25A C.J.S. Damages ...

Damages
IX. Evidence
B. Admissibility
347. Expenses incurredEmployment of assistance in ordinary duties or business
The expense incurred by the plaintiff in the employment of assistance in his or her ordinary duties or
business constitutes a proper item of damage, and competent evidence of such may be admitted.
Where the expense incurred by the plaintiff in the employment of assistance in his or her ordinary duties or
business constitutes a proper item of damage, competent evidence showing the actual or reasonable cost of the
help that he or she was compelled to employ as a result of his or her injury may be admitted. 1 However, such
evidence is inadmissible where it is too vague and uncertain, and it fails properly to show that the expense incurred
was both reasonable and necessary. 2
Footnotes
Ind.Benson v. Warble, 146 Ind. App. 307, 255 N.E.2d 230 (1970).
1
As to expense incurred by plaintiff in employment of assistance in ordinary duties or business as recoverable expense,
see 67, 68.
End of Document
348.Evidence of property damage, generally, 25A C.J.S. Damages 348

Damages
IX. Evidence
B. Admissibility
3. Injuries to Property
a. In General
348. Evidence of property damage, generally
To determine the damages to property, competent evidence relating to the injury is admissible.
On an issue of damages to property, it is generally proper to consider any evidence that is otherwise competent as
to all the facts and circumstances connected with the injury bearing on items of damages. 1 If there are questions
regarding the reliability of the evidence presented to support an award of damages, such questions should go to
the weight of the evidence and generally should not be grounds for exclusion of the evidence. 2
Ordinarily, the evidence should be confined to the property involved in the action; 3 however, under the proper
circumstances, similar property damages suffered by others may be admissible as relevant to the cause of the
damage. 4
Where special damages are recoverable, competent evidence showing the special damages suffered by the plaintiff
as a necessary and proximate result of the loss of, or injury to, his or her property is admissible. 5
Footnotes
N.C.Huff v. Thornton, 287 N.C. 1, 213 S.E.2d 198 (1975).
1
U.S.In re Brokers, Inc., 407 B.R. 693 (Bankr. M.D. N.C. 2009).
2
Md.Baltimore Belt R. Co. v. Sattler, 100 Md. 306, 59 A. 654 (1905).
3
4
Damage to farms by herbicide

U.S.Dawson Farms, LLC v. BASF Corp., 2008 WL 5351998 (W.D. La. 2008).
N.J.Paguio v. Evening Journal Ass'n, 127 N.J.L. 144, 21 A.2d 667 (N.J. Sup. Ct. 1941).
Loss of use of machine
U.S.Finkel v. Challenger Marine Corp., 316 F. Supp. 549 (S.D. Fla. 1970).
348.Evidence of property damage, generally, 25A C.J.S. Damages 348
End of Document
349.Expenses or cost of repairs, 24 C.J.S. Damages 349

Damages
IX. Evidence
B. Admissibility
a. In General
349. Expenses or cost of repairs
In an action in which the expenses incurred by the plaintiff as a result of the injury to his or her property
are a proper subject of inquiry, competent evidence having a legitimate tendency to prove such expenses
is admissible.
In an action in which the expenses incurred by the plaintiff as a result of the injury to his or her property are a
proper subject of inquiry, competent evidence having a legitimate tendency to prove such expenses is admissible. 1
Evidence as to expenses must be confined to those that are the consequence of the defendant's wrongful act. 2
Competent evidence showing the cost of repairs necessary to restore the property to its condition immediately
before the injury may be admissible. 3
Repair bills.
Receipted bills are admissible to show what the injured party actually paid for repairs 4 as is the testimony of
the person who paid the bill. 5
A paid bill for repairs is inadmissible for the purpose of establishing either the extent of the repairs made to the
property as a result of the injury 6 or the reasonable value of such repairs. 7 Competent evidence showing that
a repair bill has been paid is, however, admissible as constituting some evidence of the reasonable value of the
repair work done. 8
Cases:
349.Expenses or cost of repairs, 24 C.J.S. Damages 349
Evidence was sufficient to support trial court's finding that after truck repair shop breached repair contract, trucking
company failed to mitigate its damages through reasonable exertion at an expense it was obligated to pay repair
shop under its repairman's lien; owner of trucking company testified that if he needed to pay for half of the repairs
for repair shop to finish the job, he could have gotten the money, and further, that he decided not to take the truck
somewhere else to finish the repairs after repair shop demanded he pay half of the completed repairs before it
would finish the job because he was "fed up." NDCC 320309. Peterbilt of Fargo, Inc. v. Red River Trucking,
LLC, 2015 ND 140, 864 N.W.2d 276 (N.D. 2015).
[END OF SUPPLEMENT]
Footnotes
N.C.Triad Const. Co. v. Morris, 25 N.C. App. 647, 214 S.E.2d 209 (1975).
1
2
3
4
5
6
7
8
As to expense as element of damage, see 63 to 87.

Ky.Davis v. Fischer Single Family Homes, Ltd., 231 S.W.3d 767 (Ky. Ct. App. 2007).
W.Va.Steinbrecher v. Jones, 151 W. Va. 462, 153 S.E.2d 295 (1967).
La.Mut v. Newark Ins. Co., 289 So. 2d 237 (La. Ct. App. 1st Cir. 1973), writ denied, 290 So. 2d 910 (La. 1974)
and writ denied, 290 So. 2d 912 (La. 1974).
Tex.Foxx v. DeRobbio, 224 S.W.3d 263 (Tex. App. El Paso 2005).
S.C.Barnett v. Charleston & W. C. Ry. Co., 230 S.C. 525, 96 S.E.2d 555 (1957).
N.Y.Branker v. Castle Coal Co., 63 N.Y.S.2d 262 (App. Term 1946).
N.Y.Branker v. Castle Coal Co., 63 N.Y.S.2d 262 (App. Term 1946).
Cal.Plonley v. Reser, 178 Cal. App. 2d Supp. 935, 3 Cal. Rptr. 551, 80 A.L.R.2d 911 (App. Dep't Super. Ct. 1960).
End of Document
350.Value, 25A C.J.S. Damages 350

Damages
IX. Evidence
B. Admissibility
a. In General
350. Value
Evidence is admissible to establish the value or depreciation in value of property destroyed or injured.
Evidence is admissible to establish the value or depreciation in value of property destroyed or injured 1 provided
that such evidence is relevant and material. 2 Testimony based on speculation and conjecture is not admissible. 3
Evidence is admissible for the purpose of showing the market value or the fair market value of the property
affected. 4 In some jurisdictions, evidence showing the cost of, or the price paid for, property injured, lost, or
destroyed is not admissible in ascertaining its market value; 5 in other jurisdictions, such evidence is admissible. 6
A defendant may introduce evidence to challenge the plaintiff's claims as to the market value of the damaged
property prior to the loss. 7
Competent evidence showing that the property injured had a special value may be admissible. 8
Under some circumstances, competent evidence showing the cost of replacing destroyed property is admissible
for the purpose of establishing its fair market value. 9
Depreciation in value.
In establishing the depreciation in the value of property as the result of an injury, it is proper to introduce evidence
of the condition of the property before and after the injury 10 and of the cost of repairs necessary to restore
the property to its former condition. 11 Evidence of damage to the market value of a residence due another
homeowner's construction of a home in violation of a property owner's association's rules is admissible. 12
Assemblage.
If applicable, the doctrine of assemblage allows a property owner to introduce evidence showing that the fair
market value of his real estate is enhanced by its probable assemblage with other parcels. 13
Footnotes
Neb.American Tel. & Tel. Corp. v. Thompson, 193 Neb. 327, 227 N.W.2d 7 (1975).
1
2
3
4
5
6
7
As to value of property, generally, see C.J.S., Evidence 326 to 337.

Ga.Georgia R. & Banking Co. v. Flynt, 89 Ga. App. 315, 79 S.E.2d 377 (1953).
Decision of stockholders not to invest in corporation
U.S.CardioVention, Inc. v. Medtronic, Inc., 483 F. Supp. 2d 830 (D. Minn. 2007).
Fla.Fidelity Warranty Services, Inc. v. Firstate Ins. Holdings, Inc., 74 So. 3d 506 (Fla. Dist. Ct. App. 4th Dist. 2011).
Fla.McDonald Air Conditioning, Inc. v. John Brown, Inc., 285 So. 2d 697 (Fla. Dist. Ct. App. 4th Dist. 1973).
Ala.Parker v. Muse, 47 Ala. App. 84, 250 So. 2d 688 (Civ. App. 1971).
Lack of firesafety features

Pa.Com., Dept. of General Services v. U.S. Mineral Products Co., 598 Pa. 331, 956 A.2d 967 (2008).
Suited to production of certain crop

Cal.Sacchi v. Bayside Lumber Co., 13 Cal. App. 72, 108 P. 885 (3d Dist. 1910).
Wyo.South Cheyenne Water and Sewer Dist. v. Stundon, 483 P.2d 240 (Wyo. 1971).
10
11
12
13
Equipment destroyed by fire

U.S.Great Plains Equipment, Inc. v. Koch Gathering Systems, Inc., 45 F.3d 962 (5th Cir. 1995).
Ariz.City of Globe v. Rabogliatti, 24 Ariz. 392, 210 P. 685 (1922).
Mo.DeArmon v. City of St. Louis, 525 S.W.2d 795 (Mo. Ct. App. 1975).
OhioMartin v. Lake Mohawk Property Owner's Ass'n, 2005-Ohio-7062, 2005 WL 3610352 (Ohio Ct. App. 7th Dist.
Carroll County 2005).
Conn.Ferrigno v. Cromwell Development Associates, 93 Conn. App. 799, 892 A.2d 291 (2006).
End of Document
351.ValueCrops, trees, and pastures, 25A C.J.S. Damages 351

Damages
IX. Evidence
B. Admissibility
a. In General
351. ValueCrops, trees, and pastures
Competent evidence is admissible to establish the value of crops, trees, and pastures.
Considerable latitude should be allowed with respect to evidence admissible to prove the value of a crop that has
been injured or destroyed. 1 The evidence must have a legitimate tendency to prove the value of the crop as of
the time when, and the place where, it was injured or destroyed. 2
In an action to recover for injuries to, or the destruction of, nut- or fruit-bearing trees, any evidence that is otherwise
competent is admissible to prove the value of the trees. 3 Where the value of the trees is to be measured by their
reasonable value as growing trees, evidence as to their original cost or as to their replacement cost is inadmissible. 4
In establishing the damage to meadows and pastures, any competent evidence that would tend to shed light on
the question is admissible. 5
Footnotes
Tex.International Harvester Co. v. Kesey, 507 S.W.2d 195 (Tex. 1974).
1
Minn.Poynter v. Otter Tail County, 223 Minn. 121, 25 N.W.2d 708 (1947).
2
UtahBrereton v. Dixon, 20 Utah 2d 64, 433 P.2d 3 (1967).
3
Ky.City of Marion v. Nunn, 292 Ky. 251, 166 S.W.2d 298 (1942).
4
N.D.Beck v. Lind, 235 N.W.2d 239 (N.D. 1975).
5
End of Document
352.ValueAnimals, 25A C.J.S. Damages 352

Damages
IX. Evidence
B. Admissibility
a. In General
352. ValueAnimals
The value of an animal killed or injured must be shown by the best evidence attainable.
Evidence of facts constituting elements making up the market value of an animal is properly admitted. 1 Where
the action is for the wrongful or negligent killing of, or injury to, an animal, the plaintiff may, on the question
of damages, show its pedigree 2 and breed. 3 The purchase price of dog is relevant to the question of the dog's
fair market value, for the purpose of the dog owner's negligence action, 4 but the dog's sentimental value is not
admissible. 5
Footnotes
Ala.Alabama Great Southern R. Co. v. Sheffield, 213 Ala. 15, 104 So. 222 (1925).
1
2
3
4
5
Ind.Lachenman v. Stice, 838 N.E.2d 451 (Ind. Ct. App. 2005).

Tenn.Citizens' Rapid-Transit Co. v. Dew, 100 Tenn. 317, 45 S.W. 790 (1898).
Tex.Missouri, K. & T. Ry. Co. of Texas v. Lane, 80 S.W. 534 (Tex. Civ. App. 1904).
End of Document
353.Absence of true market value, 25A C.J.S. Damages 353

Damages
IX. Evidence
B. Admissibility
a. In General
353. Absence of true market value
Wide latitude in the evidence is permissible in establishing the actual or intrinsic value of property that
has no market value or that is of such a character that its market value does not afford due compensation
to the owner.
In establishing the actual or intrinsic value of property that has no market value or that is of such a character that
its market value does not afford due compensation to the owner, wide latitude in the evidence is permissible, 1
and resort may be had to any facts that fairly tend to show such actual value 2 at the time 3 and place 4 of loss,
destruction, or injury.
In determining the actual or intrinsic value of property that does not have a market value, or its value to the
owner, it is proper to admit evidence showing the original cost, 5 the cost of restoration or replacement, 6 and
its condition. 7
Footnotes
IowaState v. Urbanek, 177 N.W.2d 14 (Iowa 1970).
1
2
3
4
5
6
7
As to the value of property having no market value or whose market value does not afford due compensation to owner,
see 158.
U.S.Rhoades, Inc. v. United Air Lines, Inc., 224 F. Supp. 341 (W.D. Pa. 1963), judgment aff'd, 340 F.2d 481 (3d
Cir. 1965).
N.Y.Bastian v. Larsil Realty Corp., 205 Misc. 854, 131 N.Y.S.2d 118 (City Ct. 1954).
U.S.Missouri, K. & T. Ry. Co. v. Jackson, 174 F.2d 297 (10th Cir. 1949).
IowaSchiltz v. Cullen-Schiltz & Associates, Inc., 228 N.W.2d 10 (Iowa 1975).
R.I.DeSpirito v. Bristol County Water Co., 102 R.I. 50, 227 A.2d 782, 34 A.L.R.3d 809 (1967).
End of Document

Damages
IX. Evidence
B. Admissibility
b. Motor Vehicles
354. Generally
Generally, competent testimony tending to establish items of damage to a motor vehicle is admissible.
All competent testimony tending to establish a legitimate item of damage to a motor vehicle is, under proper
pleadings, relevant and admissible. 1 In determining the amount of damage to a motor vehicle, it is proper to
show its age and when it was bought, 2 the amount paid for it, 3 and its condition immediately before and after
the injury. 4
Evidence of the amount paid for a motor vehicle and of the amount received for it after an accident when traded
in for another vehicle is incompetent to prove the amount of damages. 5 Likewise, evidence as to the amount that
would have been received for a motor vehicle on a trade-in if it had not been damaged is also inadmissible. 6
Evidence that improperly injects the subject of insurance into the case should not be introduced. 7
Footnotes
IowaJacobson v. Benson Motors, Inc., 216 N.W.2d 396, 14 U.C.C. Rep. Serv. 359 (Iowa 1974).
1
N.J.Nixon v. Lawhon, 32 N.J. Super. 351, 108 A.2d 480 (App. Div. 1954).
2
Md.Checkpoint Foreign Car Service, Inc. v. Sweeney, 250 Md. 251, 242 A.2d 148 (1968).
3
N.J.Brodsky v. Red Raven Rubber Co., 111 N.J.L. 453, 168 A. 440 (N.J. Ct. Err. & App. 1933).
4
Ill.Cunningham v. Crane Co., 255 Ill. App. 373, 1930 WL 2959 (1st Dist. 1930).
5
Ga.Camp v. Mapp, 95 Ga. App. 262, 97 S.E.2d 623 (1957).
6
Ky.Howard v. Adams, 246 S.W.2d 1002 (Ky. 1952).
7
End of Document
355.Cost of repairs, 25A C.J.S. Damages 355

Damages
IX. Evidence
B. Admissibility
b. Motor Vehicles
355. Cost of repairs
Competent evidence of the cost of repairs of a damaged motor vehicle may be admitted.
While a receipted bill for repairs to a motor vehicle is competent evidence of the amount of damage, 1 generally,
a bill for repairs may be admitted to prove the reasonable cost when there is evidence showing that the repairs
indicated by the bill were necessary, that the items contained therein are correct, and that the charges therefor are
just, proper, and reasonable 2 but not in the absence thereof. 3 The rules as to admissibility of repair estimates
may be governed by statute. 4
Evidence as to the cost of repairs other than those shown to be due to the injuries complained of is inadmissible. 5
Footnotes
Ill.Smith v. Champaign Urbana City Lines, Inc., 116 Ill. App. 2d 289, 252 N.E.2d 381 (4th Dist. 1969).
1
Mo.King v. Furry, 317 S.W.2d 690 (Mo. Ct. App. 1958).
2
Pa.Eisenberg v. Lesher, 66 Dauph. 154 (Pa. C.P. 1954).
3
N.Y.Miller v. Sanchez, 6 Misc. 3d 479, 789 N.Y.S.2d 850 (N.Y. City Civ. Ct. 2004).
4
Ill.Shell Oil Co. v. Valentine Transfer & Storage Co., 335 Ill. App. 339, 81 N.E.2d 753 (2d Dist. 1948).
5
End of Document

Damages
IX. Evidence
B. Admissibility
b. Motor Vehicles
356. Value
Expert and other testimony is admissible on an issue as to the market value of a vehicle and its depreciation
in value as a result of injury.
The market value of a motor vehicle may be shown by circumstances 1 or by the testimony of experts. 2
Evidence showing what the plaintiff received for his or her damaged vehicle on a trade-in for another vehicle
is inadmissible for the purpose of establishing its market value after the injury. 3 Also, the value of the vehicle
cannot be established by evidence showing the amount received by the plaintiff by way of settlement with his or
her insurance company for the damage. 4
Testimony giving the estimated market value of a motor vehicle before an accident as being within a stated price
bracket is not incompetent provided that the price bracket used is sufficiently definite and does not cover too wide
a range. 5 Testimony as to the estimated salvage value of a damaged motor vehicle may be admissible where it
is pertinent to the inquiry. 6
Restoration and repairs.

In determining the depreciation in value of a motor vehicle as the result of an injury, evidence is admissible as
to the reasonable cost of the repairs made necessary thereby 7 and the reasonable market value of the vehicle as
repaired. 8 This rule is applicable where there is no other competent evidence in the case showing the difference
in the value of the vehicle before and after the injury. 9
Footnotes
Tex.Wagner & Chisholm v. Dunham, 246 S.W. 1044 (Tex. Civ. App. Beaumont 1923).
1
2
3
4
5
6
7
8
9
Ga.Olliff v. Howard, 33 Ga. App. 778, 127 S.E. 821 (1925).

Ga.Camp v. Mapp, 95 Ga. App. 262, 97 S.E.2d 623 (1957).
Ga.Royal Crown Bottling Co. of Gainesville v. Stiles, 82 Ga. App. 254, 60 S.E.2d 815 (1950).
Ky.Louisville & N.R. Co. v. Blanton, 304 Ky. 127, 200 S.W.2d 133 (1947).
S.C.Newman v. Brown, 228 S.C. 472, 90 S.E.2d 649, 55 A.L.R.2d 929 (1955).
Ark.Stipp v. Jenkins, 239 Ark. 15, 386 S.W.2d 695 (1965).
N.C.Smith v. White, 712 S.E.2d 717 (N.C. Ct. App. 2011).
Vt.Kinney v. Cloutier, 125 Vt. 109, 211 A.2d 246 (1965).
N.Y.Glazer v. Quittman, 84 Misc. 2d 561, 377 N.Y.S.2d 913 (J. Ct. 1975).
End of Document
357.Loss of use, 25A C.J.S. Damages 357

Damages
IX. Evidence
B. Admissibility
b. Motor Vehicles
357. Loss of use
Any competent evidence having a legitimate tendency to prove damages by reason of the loss of use of a
motor vehicle is admissible.
Where a plaintiff is entitled to recover for the loss of use of a damaged motor vehicle, he or she has the right to
introduce any competent evidence having a legitimate tendency to prove such damages. 1 The rental value of the
vehicle, although not in itself furnishing a measure of damages, may be shown as one of the facts to be considered
in determining the extent of the plaintiff's injury. 2 Likewise, evidence showing the rental value of a similar or
comparable vehicle may also be introduced. 3
Evidence of the amount that might have been made by the use of the motor vehicle during the period of deprivation
thereof may properly be considered. 4 However, evidence of loss of profits that is too remote in character should
be excluded. 5
Where the plaintiff seeks to show the value of the use by the cost of hiring another vehicle, the proof of such cost
must be definite and not mere conjecture. 6
Evidence that an owner has not used a damaged car is admissible on issue of loss of use damages. 7
Delay in making repairs.

In ascertaining the damages for the loss of use of a motor vehicle, competent evidence showing a necessary delay
in procuring the parts required for making the repairs necessitated by the injury ordinarily is admissible as bearing
on the question of what constituted a reasonable time to repair the vehicle under the circumstances. 8
357.Loss of use, 25A C.J.S. Damages 357
Footnotes
Ala.Thomas v. Ware, 44 Ala. App. 157, 204 So. 2d 501 (1967).
1
Ky.Columbia Gas of Kentucky, Inc. v. Maynard, 532 S.W.2d 3 (Ky. 1975).
2
Fla.American Motors Sales Corp. v. Connell, 283 So. 2d 368 (Fla. Dist. Ct. App. 2d Dist. 1973).
3
4
N.C.Roberts v. Pilot Freight Carriers, Inc., 273 N.C. 600, 160 S.E.2d 712 (1968).
5
N.J.Hintz v. Roberts, 98 N.J.L. 768, 121 A. 711 (N.J. Ct. Err. & App. 1923).
6
7
Classic automobile
Cal.Metz v. Soares, 142 Cal. App. 4th 1250, 48 Cal. Rptr. 3d 743 (3d Dist. 2006).
Cal.Pfingsten v. Westenhaver, 39 Cal. 2d 12, 244 P.2d 395 (1952).
End of Document

Damages
IX. Evidence
B. Admissibility
4. Breach of Contract
358. Generally
In an action for breach of contract, any evidence bearing directly on the damage occasioned by the breach,
and tending to establish a legitimate element of damage, is generally admissible.
In an action for breach of contract, any evidence bearing directly on the damage occasioned by the breach, and
tending to establish a legitimate element of damage, is generally admissible, 1 and evidence is admissible as to
all damages that the parties can reasonably be presumed to have contemplated as the probable consequence of the
breach. 2 Competent evidence that the parties knew, 3 or did not know, 4 that certain damages would result from
a breach of the contract is admissible. Evidence may be excluded on the basis that the damages sought were not
foreseeable or within the parties' contemplation at time of contracting. 5
Once it has been established that a loss has occurred by reason of a breach of contract, considerable latitude is
permitted in proving the amount of the loss. 6 However, only competent, relevant, and material evidence should
be admitted for the purpose of establishing the damages sustained by reason of a breach of contract. 7 Evidence
as to such damages must not be too remote 8 and must bear on a proper item, or the proper measure, of damages 9
and on matters relevant to the contract in suit. 10
While a defendant is entitled to introduce competent evidence showing that the plaintiff did not, in fact, suffer
the damages that he or she claims to have sustained by reason of the breach, 11 the defendant is not entitled to
introduce evidence that is not relevant and material to the inquiry and that has no legitimate tendency to show that
the plaintiff is not entitled to recover the damages claimed by him or her. 12
Evidence of other contracts.

Evidence of previous contractual relations between the parties ordinarily cannot be shown for the purpose of
estimating the damages, 13 nor can an agreement between the plaintiff and a third person concerning the subject
matter of the contract be shown for such purpose. 14
Failure to perform work.

In determining damages for failure to perform work as agreed, evidence is admissible as to specific defects 15 and
as to the cost of removing and replacing defective materials or completing the work. 16
Cases:
Evidence regarding cost of adding additional boiler to custom energy system that designer of system installed
for purchaser of system was relevant to determining damages in purchaser's claim for breach of contract against
designer; although contract did not provide for such a boiler, boiler may have been necessary to make system
work as intended, and cost of installation of boiler did not make costs to repair system disproportionate to loss in
value of system. Wellons, Inc. v. Langboard, Inc., 726 S.E.2d 673 (Ga. Ct. App. 2012).
[END OF SUPPLEMENT]
Footnotes
Ill.Franzen v. Dunbar Builders Corp., 132 Ill. App. 2d 701, 270 N.E.2d 118 (1st Dist. 1971).
1
Kan.Jim Mahoney, Inc. v. Galokee Corp., 214 Kan. 754, 522 P.2d 428 (1974).
2
N.Y.James E. Cashman, Inc., v. Spellman, 233 A.D. 45, 251 N.Y.S. 240 (3d Dep't 1931).
3
Ariz.Higgins v. Arizona Sav. and Loan Ass'n, 90 Ariz. 55, 365 P.2d 476 (1961).
4
U.S.Mooring Capital Fund, LLC v. Knight, 388 Fed. Appx. 814 (10th Cir. 2010), cert. denied, 131 S. Ct. 1701, 179
5
6
7
8
9
L. Ed. 2d 619 (2011).

Or.Western Feed Co. v. Heidloff, 230 Or. 324, 370 P.2d 612 (1962).
Flexible approach
U.S.Shearon v. Boise Cascade Corp., 478 F.2d 1111 (8th Cir. 1973).
Wis.Hope Acres, Inc. v. Harris, 27 Wis. 2d 285, 134 N.W.2d 462 (1965).
Pa.Morrow v. Weaver, 16 Pa. D. & C. 94, 1930 WL 7703 (C.P. 1930).
U.S.Vancouver Plywood Co. v. Godley Const. Co., 393 F.2d 295 (4th Cir. 1968).
Evidence of fair market value
U.S.M.M. Silta, Inc. v. Cleveland-Cliffs, Inc., 544 F. Supp. 2d 828, 76 Fed. R. Evid. Serv. 297 (D. Minn. 2008).
10
11
12
13
14
15
16
Evidence relating to the value of surface rights of property

Ala.Pitts v. Jim Walter Resources, Inc., 994 So. 2d 924 (Ala. Civ. App. 2007).
Pa.Wolfe v. Pickell, 204 Pa. Super. 541, 205 A.2d 634 (1964).
Fla.R. K. Cooper Builders, Inc. v. Free-Lock Ceilings, Inc., 219 So. 2d 87 (Fla. Dist. Ct. App. 3d Dist. 1969).
U.S.United Intern. Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207, 41 U.C.C. Rep. Serv. 2d 645 (10th Cir.
2000), judgment aff'd, 532 U.S. 588, 121 S. Ct. 1776, 149 L. Ed. 2d 845, 44 U.C.C. Rep. Serv. 2d 569 (2001).
Mo.Trident Group, LLC v. Mississippi Valley Roofing, Inc., 279 S.W.3d 192 (Mo. Ct. App. E.D. 2009).
Pa.Addams v. Tutton, 39 Pa. 447, 1861 WL 5839 (1861).
N.Y.Zippert v. Acme Advertising, Engraving & Printing Co., 113 N.Y.S. 998 (App. Term 1909).
Ark.Leifer Mfg. Co. v. Gross, 93 Ark. 277, 124 S.W. 1039 (1910).
La.Nichols Ford Co., Inc. v. Hughes, 292 So. 2d 345 (La. Ct. App. 2d Cir. 1974).
End of Document

Damages
IX. Evidence
B. Admissibility
Evidence of the actual damages suffered is inadmissible in an action on a contract specifying liquidated
damages.
In an action on a contract specifying liquidated damages, while evidence as to the conditions that made for
stipulating such damages may be admissible, 1 evidence purporting to show that the question of damages was
never discussed by the parties before the contract was executed is irrelevant and inadmissible where the contract
is clear and unambiguous, and the provision for liquidated damages is plain. 2
Evidence of the actual damages suffered is inadmissible in an action on a contract specifying liquidated damages. 3
Likewise, evidence showing that no damages actually flowed from the breach is inadmissible. 4
Footnotes
U.S.Fidelity & Deposit Co. of Maryland v. Walker, 75 F.2d 115 (C.C.A. 5th Cir. 1935).
1
2
3
4
As to whether contract may properly contain provision for liquidated damages, see 192.
Tex.Zucht v. Stewart Title Guaranty Co., 207 S.W.2d 414 (Tex. Civ. App. San Antonio 1947), writ dismissed.
Pa.Mammarella v. Rugeriis, 102 Pa. Super. 132, 156 A. 549 (1931).
U.S.Byron Jackson Co. v. U.S., 35 F. Supp. 665 (S.D. Cal. 1940).
End of Document

Damages
IX. Evidence
B. Admissibility
If profits lost as a result of a breach of contract constitute a proper item of damage, competent evidence
having a legitimate tendency to prove such loss is admissible.
Where profits lost from a breach of contract constitute a relevant element of damage, 1 competent evidence having
a legitimate tendency to prove such loss is admissible. 2
Where a business having an established earning capacity has been interrupted and there is no other practical way
of estimating the damages caused thereby, evidence showing the prior and subsequent earnings of the business
may be admitted in order to permit an intelligent estimate of the amount of earnings lost as a result of the breach 3
although the rule is otherwise where a new business has been interrupted by reason of a breach of contract since
the earnings of a new business are speculative and dependent on too many contingencies. 4 New businesses may
demonstrate lost profits through the use of such evidence as expert testimony, economic and financial data, market
surveys and analyses, business records of similar enterprises, and any other relevant facts. 5
In order to furnish a reasonable basis for estimating the amount of profits lost by the plaintiff, he or she may, under
some circumstances, introduce evidence showing the profits earned by a similar business or enterprise. 6
A party claiming to have been wrongfully prevented from proceeding with the performance of a contract or from
completing performance of a contract may, in connection with loss of profits, introduce evidence as to the probable
cost to him or her of performing or completing performance of the contract. 7 The plaintiff may show the actual
profits and receipts realized in the past in the particular business or enterprise in order to furnish a reasonable basis
for estimating the amount of profits lost. 8 Estimates of future lost profits based on predictions of future sales lost
rather than on actual past sales statistics may be too speculative to be admitted. 9
Evidence offered by the defendant to show that the plaintiff did not, in fact, suffer the loss of profits claimed
to have been sustained as a result of a breach of contract must have a legitimate tendency to prove such fact in
order to be admissible. 10
Footnotes
OhioZusman v. Parker, 80 Ohio L. Abs. 97, 157 N.E.2d 669 (Ct. App. 7th Dist. Mahoning County 1957).
1
2
3
4
5
6
7
8
9
10
As to admissibility of evidence showing loss of profits, generally, see 344.

U.S.Out-A-Sight Pet Containment, Inc. v. Radio Systems Corp., 330 F. Supp. 2d 536 (E.D. Pa. 2004).
Letter discussing proposed pricing structure
U.S.Multimatic, Inc. v. Faurecia Interior Systems USA, Inc., 358 Fed. Appx. 643 (6th Cir. 2009).
Va.E. I. Du Pont De Nemours & Co. v. Universal Moulded Products Corp., 191 Va. 525, 62 S.E.2d 233 (1950).
Vt.Berlin Development Corp. v. Vermont Structural Steel Corp., 127 Vt. 367, 250 A.2d 189 (1968).
859 (1990).
Cal.Steelduct Co. v. Henger-Seltzer Co., 26 Cal. 2d 634, 160 P.2d 804 (1945).
N.J.De Ponte v. Mutual Contracting Co., 18 N.J. Super. 142, 86 A.2d 785 (App. Div. 1952).
U.S.Fitzgerald v. Mountain States Tel. and Tel. Co., 68 F.3d 1257 (10th Cir. 1995).
Fla.Talisman Sugar Corp. v. Farmland Development Co., 156 So. 2d 392 (Fla. Dist. Ct. App. 2d Dist. 1963).
End of Document
Research References, 24 C.J.S. Damages IX C Refs.
24 C.J.S. Damages IX C Refs.

Damages
IX. Evidence
C. Weight and Sufficiency
Research References
A.L.R. Library
West's A.L.R. Digest, Damages 6, 163, 183 to 192
End of Document

Damages
IX. Evidence
1. In General
a. Overview
361. Generally
West's Key Number Digest, Damages 183, 184, 188, 188(.5), 188(1), 188(3)
To warrant damages, the evidence must be sufficient to establish the fact, extent, and cause of injury.
Uncertainty as to the exact amount of damages is not fatal where some damage is shown.
The evidence to warrant damages must show that the plaintiff has sustained a legal injury 1 and must establish
sufficient data from which the court or jury can properly estimate the amount of damages. 2
A damages award cannot be based on mere guesswork, speculation, 3 or subjective opinion. 4 It must be supported
by evidence. 5 Expert testimony is not required to establish damages. 6
Cases:
Substantial and competent evidence supported jury's award of $990,000 in damages to printing business, which
occupied a building in industrial park, for fraudulent misrepresentation by utility, which provided water and
sewer services to the industrial park and which failed to disclose limitations of sewer system to business; utility's
nondisclosure caused business to enter into a lease that it would not otherwise have executed, and business
provided evidence of the costs it incurred moving into the industrial park, the value of the lease over its 10year
term, and the cost of common-area maintenance at the industrial park. Printcraft Press, Inc. v. Sunnyside Park
Utilities, Inc., 283 P.3d 757 (Idaho 2012).
[END OF SUPPLEMENT]
Footnotes
U.S.Park v. Shiflett, 250 F.3d 843 (4th Cir. 2001).
1
Wyo.McCreary v. Weast, 971 P.2d 974 (Wyo. 1999).
2
4
5
Ill.Diaz v. Legat Architects, Inc., 397 Ill. App. 3d 13, 336 Ill. Dec. 373, 920 N.E.2d 582 (1st Dist. 2009), appeal
denied, 236 Ill. 2d 503, 341 Ill. Dec. 198, 930 N.E.2d 408 (2010).
Conn.DuBaldo Elec., LLC v. Montagno Const., Inc., 119 Conn. App. 423, 988 A.2d 351 (2010).
Ariz.Pompeneo v. Verde Valley Guidance Clinic, 226 Ariz. 412, 249 P.3d 1112 (Ct. App. Div. 1 2011), review
denied, (Sept. 20, 2011).
Mont.McKay v. Wilderness Development, LLC, 2009 MT 410, 353 Mont. 471, 221 P.3d 1184 (2009).
Tex.U.S. Renal Care, Inc. v. Jaafar, 345 S.W.3d 600 (Tex. App. San Antonio 2011), review denied, (Dec. 16, 2011).
Probative evidence
Ind.Farah, LLC v. Architura Corp., 952 N.E.2d 328 (Ind. Ct. App. 2011).
U.S.DSPT Intern., Inc. v. Nahum, 624 F.3d 1213 (9th Cir. 2010).
End of Document
362.Degree of proof required, 25A C.J.S. Damages 362

Damages
IX. Evidence
1. In General
a. Overview
362. Degree of proof required
Damages should be proved with all the certainty that the case permits. Absolute certainty is not required
and reasonable certainty is ordinarily sufficient, but an award cannot be based on conjecture.
Damages cannot be allowed where not supported by the required degree of proof. 1 They must be proved with all
the certainty that the case permits. 2 Generally, a party seeking to recover damages must prove the existence of
injuries and resulting damages with reasonable certainty. 3 The evidence must give rise to a reasonable probability
that the plaintiff suffered damage. 4
The amount of damages need not be proved with precision; 5 mathematical certainty is not required. 6 The amount
of damages must be proved only with reasonable certainty. 7 There must be a reasonable basis in the record from
which the amount of damages can be inferred or approximated. 8 The plaintiff must produce sufficient evidence
of loss to allow the fact finder to calculate damages without operating from guesswork. 9 It is not necessary for the
plaintiff to submit exact figures. 10 However, estimates of damages based entirely on statistics and assumptions
may be too remote and speculative to permit an intelligent and probable estimate of damages. 11
Although a plaintiff's claims do not fail if there is uncertainty about the measure of damages, they fail if there is
no evidence regarding the measure of damages. 12
Where damages are susceptible of definite or precise proof, or of estimation by those having knowledge, 13 or are
capable of proof with certainty, 14 such proof must be adduced. If, however, the plaintiff's inability to prove his
or her damages with certainty is due to the defendant's actions, the law does not generally require such proof. 15
Special damages must be proved by a preponderance of the evidence. 16
Cases:
Burden of proof as to damages is lower than that for causation, and the factfinder is afforded a greater deal of
freedom to estimate damages where the defendant has created the risk of uncertainty. In re Neurontin Marketing
and Sales Practices Litigation, 712 F.3d 21 (1st Cir. 2013).
Under Maryland law, it is the general rule that one may recover only those damages that are affirmatively proved
with reasonable certainty to have resulted as the natural, proximate and direct effect of the injury. SG Homes
Associates, LP v. Marinucci, 718 F.3d 327 (4th Cir. 2013).
To warrant recovery of damages in a negligence action, there must be some reasonable basis for computation
which will enable the trier of fact to arrive at an estimate of the amount of loss. Miller v. Johnson, 289 P.3d 1098
(Kan. 2012).
Tort plaintiff bears the burden to prove the damages sought by a preponderance of the evidence. Hannay v.
Department of Transp., 497 Mich. 45, 860 N.W.2d 67 (2014).
For purposes of the specificity required to support a damages award, the best evidence the circumstances will
permit is all the law requires. SolarBee, Inc. v. Walker, 2013 ND 110, 833 N.W.2d 422 (N.D. 2013).
Damages must be reasonable and must be proved with reasonable certainty; reasonable certainty requires proof
of a rational basis for measuring loss, without requiring the trier of fact to speculate. Kreisers Inc. v. First Dakota
Title Ltd. Partnership, 2014 SD 56, 852 N.W.2d 413 (S.D. 2014).
[END OF SUPPLEMENT]
Footnotes
U.S.Nat Harrison Associates, Inc. v. Gulf States Utilities Co., 491 F.2d 578 (5th Cir. 1974).
1
Cal.Clemente v. State of California, 40 Cal. 3d 202, 219 Cal. Rptr. 445, 707 P.2d 818 (1985).
2
U.S.Mosley v. Titus, 762 F. Supp. 2d 1298 (D.N.M. 2010).
3
4
5
6
7
Mo.Evans v. FirstFleet, Inc., 345 S.W.3d 297 (Mo. Ct. App. S.D. 2011).
UtahStevens-Henager College v. Eagle Gate College, Provo College, Jana Miller, 2011 UT App 37, 248 P.3d 1025,
265 Ed. Law Rep. 774 (Utah Ct. App. 2011), cert. denied, 255 P.3d 684 (Utah 2011).
D.C.Washington Inv. Partners of Delaware, LLC v. Securities House, K.S.C.C., 28 A.3d 566 (D.C. 2011).
Neb.Dutton-Lainson Co. v. Continental Ins. Co., 279 Neb. 365, 778 N.W.2d 433 (2010).
Reasonable estimate
N.Y.Barton Group, Inc. v. NCR Corp., 796 F. Supp. 2d 473 (S.D. N.Y. 2011).
U.S.Boyd v. Tornier, Inc., 656 F.3d 487 (7th Cir. 2011).
Alaska3-D & Co. v. Tew's Excavating, Inc., 258 P.3d 819 (Alaska 2011).
IowaPavone v. Kirke, 801 N.W.2d 477 (Iowa 2011).
Minn.DeRosier v. Utility Systems of America, Inc., 780 N.W.2d 1 (Minn. Ct. App. 2010).
Wash.Clayton v. Wilson, 168 Wash. 2d 57, 227 P.3d 278 (2010).
9
10
11
12
13
14
15
16
Ala.In re Sharpe, 425 B.R. 620 (Bankr. N.D. Ala. 2010).

Ga.Tucker Nursing Center, Inc. v. Mosby, 303 Ga. App. 80, 692 S.E.2d 727 (2010).
Ga.Tucker Nursing Center, Inc. v. Mosby, 303 Ga. App. 80, 692 S.E.2d 727 (2010).
Va.Vasquez v. Mabini, 269 Va. 155, 606 S.E.2d 809 (2005).
Colo.Club Matrix, LLC v. Nassi, 2011 WL 2899643 (Colo. App. 2011).
Me.Degenhardt v. EWE Ltd. Partnership, 2011 ME 23, 13 A.3d 790 (Me. 2011).
Ill.Lovewell v. Schlick, 28 Ill. App. 2d 138, 171 N.E.2d 99 (1st Dist. 1960).
Ill.Leon v. Thorlief Larsen & Son, Inc., 133 Ill. App. 2d 911, 272 N.E.2d 799 (1st Dist. 1971).
U.S.Brown v. Presbyterian Healthcare Services, 101 F.3d 1324 (10th Cir. 1996).
La.Daigle v. City of Shreveport, 78 So. 3d 753 (La. Ct. App. 2d Cir. 2011), writ denied, 79 So. 3d 1027 (La. 2012).
End of Document
363.Uncertainty as to amount of damages only, 25A C.J.S. Damages 363

Damages
IX. Evidence
1. In General
a. Overview
363. Uncertainty as to amount of damages only
Where it clearly appears that a party has suffered damage, uncertainty as to the exact amount thereof will
not bar recovery.
A more liberal rule should be applied in allowing a court or jury to determine the amount of damage where it
clearly appears that a party has suffered damage than should be applied in determining whether there was any
damage at all. 1 Where the existence of damages has been established, the plaintiff will not be denied damages
merely because a measure of speculation and conjecture is required in determining the amount 2 or that the amount
is difficult to ascertain, 3 uncertain, 4 or contingent, 5 at least where the damages are impossible of calculation
by any fixed and certain rule. 6
Footnotes
Mo.Sparks v. Ballenger, 373 S.W.2d 955 (Mo. 1964).
1
Del.Beard Research, Inc. v. Kates, 8 A.3d 573 (Del. Ch. 2010), judgment aff'd, 11 A.3d 749 (Del. 2010).
2
3
4
5
6
Kan.Byers v. Snyder, 44 Kan. App. 2d 380, 237 P.3d 1258 (2010).

U.S.Boyd v. Tornier, Inc., 656 F.3d 487 (7th Cir. 2011).
N.J.Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 922 A.2d 710 (2007).
Cal.Dillingham-Ray Wilson v. City of Los Angeles, 182 Cal. App. 4th 1396, 106 Cal. Rptr. 3d 691 (2d Dist. 2010),
as modified on denial of reh'g, (Apr. 16, 2010) and review denied, (June 30, 2010).
U.S.Dale Const. Co. v. U.S., 168 Ct. Cl. 692, 1964 WL 8611 (1964).
No specific formula to show value of name and likeness
U.S.King v. Ames, 179 F.3d 370 (5th Cir. 1999).
End of Document
364.Cause of damage, 25A C.J.S. Damages 364

Damages
IX. Evidence
1. In General
a. Overview
364. Cause of damage
The cause of damage must generally be shown with reasonable certainty and damages that are clearly
attributable to causes other than the defendant's act cannot be allowed.
The plaintiff must show a causal connection between the defendant's wrongful conduct and the damages asserted. 1
As a general rule, such cause must be shown with reasonable certainty 2 or by a preponderance of the evidence. 3
Absolute certainty is not required. 4 However, it is not sufficient for a plaintiff to prove that his or her injuries
might have been caused by the defendant's breach of duty; instead, the plaintiff must prove that the breach probably
caused the injuries. 5
Damages that are clearly attributable to causes other than the defendant's act cannot be allowed. 6 Moreover,
damages cannot be allowed where resort must be had to speculation or conjecture to determine whether they
proximately 7 resulted 8 from the wrongful act complained of or from some other cause.
Cases:
In a negligence action, recovery may be had only where there is evidence showing with reasonable certainty the
damage was sustained as a result of the negligence. Miller v. Johnson, 289 P.3d 1098 (Kan. 2012).
[END OF SUPPLEMENT]
Footnotes
364.Cause of damage, 25A C.J.S. Damages 364
2
3
4
5
6
7
8
U.S.Signature Flight Support Corp. v. Landow Aviation Ltd. Partnership, 698 F. Supp. 2d 602 (E.D. Va. 2010),
aff'd, 442 Fed. Appx. 776 (4th Cir. 2011).
Fla.Reitano v. Peninsular Bldg. Supply Co., 262 So. 2d 710 (Fla. Dist. Ct. App. 2d Dist. 1972).
La.Davis v. Foremost Dairies, 58 So. 3d 977 (La. Ct. App. 2d Cir. 2011), writ denied, 62 So. 3d 98 (La. 2011) and
writ denied, 62 So. 3d 97 (La. 2011).
Md.Glynn v. Impact Science & Technology, Inc., 2011 WL 3792358 (D. Md. 2011).
U.S.Howard v. Missouri Bone and Joint Center, Inc., 615 F.3d 991 (8th Cir. 2010).
Ariz.Surowiec v. Capital Title Agency, Inc., 790 F. Supp. 2d 997 (D. Ariz. 2011).
Cal.Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 79 Fed. R. Serv. 3d 533 (9th Cir. 2011).
Wis.Lopez v. Prestige Cas. Co., 53 Wis. 2d 25, 191 N.W.2d 908 (1971).
U.S.Mann v. Taser Intern., Inc., 588 F.3d 1291 (11th Cir. 2009).
La.Johnson v. Kennedy, 235 La. 212, 103 So. 2d 93 (1958).
Or.Allen v. McCormick, 193 Or. 604, 238 P.2d 220 (1951).
End of Document

Damages
IX. Evidence
1. In General
a. Overview
365. Exemplary or punitive damages
To warrant exemplary damages, the evidence must show the aggravating circumstances justifying such
damages, but an award of such damages may be based either on direct evidence of wrongful intent or on
proper inferences from other evidence.
An award of exemplary damages cannot be based on mere speculation but requires a definite showing of the
requisite facts. 1 Courts presume that a plaintiff has been made whole for his or her injuries by compensatory
damages, so punitive damages should only be awarded if the defendant's culpability, after having paid
compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment
or deterrence. 2 Ordinarily, to authorize punitive or exemplary damages, the evidence must show wantonness, 3
malice, 4 willful misconduct, 5 fraud, 6 oppression, 7 gross negligence, 8 recklessness, 9 or egregious conduct, 10
at least where the wrongful intent or malice is not inherent in the act and manifest therefrom. 11
Malice as an element of exemplary damages may be proven by direct or circumstantial evidence. 12
In some jurisdictions, a preponderance of evidence is all that is necessary to establish circumstances justifying an
award of exemplary damages; 13 other jurisdictions have applied the clear and convincing standard 14 or require
proof beyond a reasonable doubt that the defendant acted wilfully and wantonly. 15 There is also authority that
the conduct at issue need be proved only by substantial evidence 16 and also that a reasonable evidentiary basis
is necessary. 17
To recover double or treble damages under a statute providing therefor, the proof should indicate that the verdict
was necessarily founded on a violation of such statute, 18 but such a statute should not be enforced except on a
clear showing. 19
Cases:
Under Virginia law, punitive damages are only available if a plaintiff shows, by clear and convincing evidence,
that a defendant acted or made a decision that was wanton, willful, malicious, or in conscious disregard of the
rights of others; this standard for establishing a right to punitive damages requires evidence beyond even gross
negligence. Healey v. I-Flow, LLC, 853 F. Supp. 2d 868 (D. Minn. 2012).
Under Nevada law, punitive damages claims require clear and convincing evidence, but a civil tort requires only
proof by preponderance. Wright v. Watkins and Shepard Trucking, Inc., 968 F. Supp. 2d 1092 (D. Nev. 2013).
Punitive damages are recoverable under Kentucky law only if there is clear and convincing evidence that defendant
acted with oppression, fraud, or malice. KRS 411.184. In re P & J Resources, Inc., 475 B.R. 838 (Bankr. E.D.
Ky. 2012).
Hydraulic cylinder purchaser's conduct in failing to disclose that it was going to replace supplier was reprehensible,
warranting punitive damages in fraudulent suppression action; the months-long duration of the suppression
combined with an active appreciation from the start of the damage the resourcing strategy would have on supplier
coupled with the decision to go forward with the plan of trickery and deceit practiced on supplier through false
responses to questions posed coupled with weekly reinforcements of the suppressed facts contained in orders
for cylinders provided by purchaser to supplier was evidence of reprehensibility. CNH America, LLC v. Ligon
Capital, LLC, 160 So. 3d 1195 (Ala. 2013).
Without competent evidence of manufacturer's net worth or financial condition, an award of punitive damages
against manufacturer could not stand. Cal. Civ. Code 3294. I-CA Enterprises, Inc. v. Palram Americas, Inc.,
235 Cal. App. 4th 257, 185 Cal. Rptr. 3d 24 (2d Dist. 2015).
Jury's finding by a preponderance of the evidence that personal watercraft manufacturer's conduct in providing
a warning not to ride the watercraft without protective clothing only on the watercraft's front console where
it was difficult for passengers to see manifested a reckless or callous disregard for the rights of others, gross
negligence, actual malice, or criminal indifference, in awarding punitive damages under federal maritime law
to two passengers who suffered vaginal and rectal injuries, was supported by substantial evidence, including
manufacturer's product safety manager's testimony that manufacturer knew passengers could fall off the back of
a personal watercraft and be severely injured by the jet-thrust if they were not wearing protective clothing, and
that manager had already testified on behalf of manufacturer in nine or 10 cases involving similar injuries, and a
product safety expert's testimony that for years manufacturer's competitor had provided far better warnings which
were more visible to passengers. Colombo v. BRP US Inc., 2014 WL 5472421 (Cal. App. 4th Dist. 2014).
The clear and convincing evidence standard that is applied to all claims for punitive damages requires that degree
of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought
to be established, and requires the existence of a fact be highly probable. Kekona v. Bornemann, 135 Haw. 254,
349 P.3d 361 (2015).
[END OF SUPPLEMENT]
Footnotes
U.S.Klingbiel v. Commercial Credit Corp., 439 F.2d 1303, 8 U.C.C. Rep. Serv. 1099 (10th Cir. 1971).
1
2
3
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
U.S.E.E.O.C. v. Sterling Jewelers Inc., 788 F. Supp. 2d 83 (W.D. N.Y. 2011).

Cal.Amerigraphics, Inc. v. Mercury Cas. Co., 182 Cal. App. 4th 1538, 107 Cal. Rptr. 3d 307 (2d Dist. 2010).
U.S.Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 48 Fed. R. Serv. 3d 700 (11th Cir. 2000).
N.J.In re Estate of Stockdale, 196 N.J. 275, 953 A.2d 454 (2008).
Tex.Bagby Elevator Co., Inc. v. Schindler Elevator Corp., 609 F.3d 768 (5th Cir. 2010).
N.J.Smith v. Whitaker, 160 N.J. 221, 734 A.2d 243 (1999).
Ind.USA Life One Ins. Co. of Indiana v. Nuckolls, 682 N.E.2d 534 (Ind. 1997).
Ind.Lawyers Title Ins. Corp. v. Pokraka, 595 N.E.2d 244 (Ind. 1992).
Ind.USA Life One Ins. Co. of Indiana v. Nuckolls, 682 N.E.2d 534 (Ind. 1997).
Tex.Bagby Elevator Co., Inc. v. Schindler Elevator Corp., 609 F.3d 768 (5th Cir. 2010).
U.S.Essroc Cement Corp. v. CTI/D.C., Inc., 740 F. Supp. 2d 131 (D.D.C. 2010).
Minn.Johnson v. Radde, 293 Minn. 409, 196 N.W.2d 478 (1972).
Level of blood alcohol concentration insufficient
Minn.Nhep v. Roisen, 446 N.W.2d 425 (Minn. Ct. App. 1989).
Me.Shannon v. Sasseville, 684 F. Supp. 2d 169 (D. Me. 2010).
Tex.Seber v. Union Pacific R. Co., 350 S.W.3d 640 (Tex. App. Houston 14th Dist. 2011).
Conn.Bridgeport Harbour Place I, LLC v. Ganim, 131 Conn. App. 99, 30 A.3d 703 (2011), certification granted,
303 Conn. 904, 31 A.3d 1179 (2011) and certification granted, 303 Conn. 905, 31 A.3d 1180 (2011).
A.L.R. Library
Standard of proof as to conduct underlying punitive damage awardsmodern status, 58 A.L.R.4th 878.
U.S.In re Genetically Modified Rice Litigation, 666 F. Supp. 2d 1004 (E.D. Mo. 2009), adhered to on reconsideration,
2011 WL 5024548 (E.D. Mo. 2011).
N.M.Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, 127 N.M. 47, 976 P.2d 999 (1999).
Fla.Endacott v. International Hospitality, Inc., 910 So. 2d 915 (Fla. Dist. Ct. App. 3d Dist. 2005).
Conn.Tillinghast v. Leppert, 93 Conn. 247, 105 A. 615 (1919).
Tenn.Lichter v. Fulcher, 22 Tenn. App. 670, 125 S.W.2d 501 (1938).
End of Document
366.Mitigation or reduction of damages, 25A C.J.S. Damages 366

Damages
IX. Evidence
1. In General
a. Overview
366. Mitigation or reduction of damages
The evidence must be of sufficient weight to establish matters with respect to the mitigation or reduction
of damages.
A party seeking to invoke the rule as to the necessity of an injured party mitigating his or her damages must present
facts calling for application of the rule; 1 it must establish that the injured party failed to make diligent efforts to
mitigate its damages 2 and must offer sufficient data to permit a reasonable estimate as to how much the damages
could have been mitigated. 3 A carrier sued for conversion of goods, and claiming a reduction in damages by
reason of deterioration of the goods, must establish clearly and convincingly that the goods had deteriorated. 4
Cases:
Proof that a plaintiff had an ability to mitigate damages requires more than a mere suggestion that a means of
mitigation exists. McCormick Intern. USA, Inc. v. Shore, 152 Idaho 920, 277 P.3d 367 (2012).
[END OF SUPPLEMENT]
Footnotes
Ky.Carney v. Scott, 325 S.W.2d 343 (Ky. 1959).
1
N.Y.Eskenazi v. Mackoul, 72 A.D.3d 1012, 905 N.Y.S.2d 169 (2d Dep't 2010).
2
Failure to use ordinary care in reducing or avoiding damages

U.S.Crompton Greaves, Ltd. v. Shippers Stevedoring Co., 776 F. Supp. 2d 375 (S.D. Tex. 2011).
Ga.National Health Services, Inc. v. Townsend, 130 Ga. App. 700, 204 S.E.2d 299 (1974).
N.Y.Eskenazi v. Mackoul, 72 A.D.3d 1012, 905 N.Y.S.2d 169 (2d Dep't 2010).
La.Orange Nat. Bank v. Southern Pac. Co., 162 La. 223, 110 So. 329, 56 A.L.R. 1167 (1926).
End of Document

Damages
IX. Evidence
1. In General
b. Particular Losses
367. Expenses
West's Key Number Digest, Damages 183, 184, 188, 188(.5), 188(1), 188(3)
A plaintiff seeking to recover damages for expenses incurred by reason of the defendant's wrongful act
must establish, by sufficient evidence, the amount of the expenses and their reasonableness and that they
were sustained as a direct result of the defendant's wrong.
Where a plaintiff seeks to recover as damages the expenses incurred by him or her by reason of the defendant's
wrongful act, he or she must establish, by sufficient evidence, the amount of the expenses and their reasonableness
and that they were sustained as a direct result of the defendant's wrong. 1 Where the plaintiff seeks to recover
the expense of an attempt to avoid a loss, it is facially sufficient for him or her ordinarily to establish the fact of
payment. 2 An agreement to pay a certain amount is some evidence of reasonable value, 3 and a receipted bill
constitutes sufficient facial proof of the amount, fairness, and reasonableness of charges. 4 However, a repair bill
is not sufficient evidence to establish the necessity for the repair. 5
Footnotes
N.Y.Sinskey v. Nadler, 38 A.D.2d 904, 329 N.Y.S.2d 490 (1st Dep't 1972), order aff'd, 34 N.Y.2d 585, 354 N.Y.S.2d
1
2
3
4
947, 310 N.E.2d 543 (1974).

La.Madden v. Mill Engineers, Inc., 236 So. 2d 552 (La. Ct. App. 2d Cir. 1970).
Cal.Plonley v. Reser, 178 Cal. App. 2d Supp. 935, 3 Cal. Rptr. 551, 80 A.L.R.2d 911 (App. Dep't Super. Ct. 1960).
Ark.Blissett v. Frisby, 249 Ark. 235, 458 S.W.2d 735 (1970).
Rule applied where expense matter of common knowledge
Ala.Union Springs Telephone Co. v. Green, 47 Ala. App. 427, 255 So. 2d 896 (Civ. App. 1971).
Miss.National Fire Ins. Co. of Hartford v. Slayden, 227 Miss. 285, 85 So. 2d 916 (1956).
End of Document
368.Losses to property, 25A C.J.S. Damages 368

Damages
IX. Evidence
1. In General
368. Losses to property
Where the value of property lost or the extent of its depreciation by injury is in issue, evidence with respect
thereto should be as specific as possible.
The value of property lost or the extent of its depreciation by injury must be ascertained by a money standard from
evidence 1 and cannot be based on speculation. 2 Proof of the value of property that has been damaged should be
as specific as possible, 3 and should reflect a reasonable certainty as to the value of the lost assets, 4 but absolute
exactness is not required. 5
Proof of value is sufficient if there is testimony, by persons having knowledge of such value, from which a
jury might reasonably draw a conclusion as to such value 6 or if the evidence furnishes a basis for a reasonable
approximation of the amount of damages. 7 The current listing price of real property is not substantial and
competent evidence of its fair market value; the current listing price could be more or less than the land's fair
market value. 8
Expert testimony may be required where costs at issue are matters of specialized and technical nature 9 beyond
the experience of laypersons. 10
Permanent damage.
Permanent damages to land may not be recovered without showing actual damages. 11 Proof that damage to real
estate would continue for an indefinite time is sufficient to support a judgment for permanent damage. 12 To
warrant an assessment for permanent damages to land, the evidence must show with reasonable certainty the value
of the land before and after the event that gives rise to the action. 13
368.Losses to property, 25A C.J.S. Damages 368
Personal property.
Expert testimony is not required to establish the value of damaged goods that are indisputably common household
goods. 14
Footnotes
La.Gascon v. State Through Dept. of Public Safety, 263 So. 2d 81 (La. Ct. App. 1st Cir. 1972).
1
2
3
4
5
6
7
8
9
10
11
12
13
14
Costs must be netted from revenues to determine actual loss

U.S.Micro Data Base Systems, Inc. v. Dharma Systems, Inc., 148 F.3d 649, 35 U.C.C. Rep. Serv. 2d 747 (7th Cir.
1998).
S.C.Winters v. Fiddie, 394 S.C. 629, 716 S.E.2d 316 (Ct. App. 2011).
Wash.Jacqueline's Washington, Inc. v. Mercantile Stores Co., 80 Wash. 2d 784, 498 P.2d 870 (1972).
Pa.Burgis v. Philadelphia County, 169 Pa. Super. 23, 82 A.2d 561 (1951).
Ill.Behrens v. W. S. Bills & Sons, Inc., 5 Ill. App. 3d 567, 283 N.E.2d 1 (3d Dist. 1972).
U.S.Alamo Water Transp. Co. v. U.S., 404 F.2d 54 (5th Cir. 1968).
Comparable piece of equipment
U.S.Great Plains Equipment, Inc. v. Koch Gathering Systems, Inc., 45 F.3d 962 (5th Cir. 1995).
Tex.Wortham Bros., Inc. v. Haffner, 347 S.W.3d 356 (Tex. App. Eastland 2011).
Expert evidence as to cost of repair
La.Demery v. City of Shreveport, 55 So. 3d 37 (La. Ct. App. 2d Cir. 2010), writ not considered, 56 So. 3d 982
(La. 2011).
Pa.Pennsylvania Dept. of General Services v. U.S. Mineral Products Co., 587 Pa. 236, 898 A.2d 590 (2006).
Mo.Carpenter v. City of Versailles, 65 S.W.2d 957 (Mo. Ct. App. 1933).
Kan.Berry v. Shell Petroleum Co., 140 Kan. 94, 33 P.2d 953 (1934).
Neb.Meister v. Krotter, 131 Neb. 35, 267 N.W. 161 (1936).
U.S.Maryland Cas. Co. v. Therm-O-Disc, Inc., 137 F.3d 780, 48 Fed. R. Evid. Serv. 780 (4th Cir. 1998).
La.Vollenweider v. Helwig Const. Co., Inc., 40 So. 3d 185 (La. Ct. App. 5th Cir. 2010), writ denied, 45 So. 3d
1048 (La. 2010).
Mich.Genna v. Jackson, 286 Mich. App. 413, 781 N.W.2d 124 (2009), appeal denied, 486 Mich. 1043, 783 N.W.2d
350 (2010).
End of Document

Damages
IX. Evidence
1. In General
West's Key Number Digest, Damages 188, 188(1), 190
Where lost profits are recoverable as consequential damages, evidence must be presented both as to their
occurrence and their extent.
Where lost profits are recoverable as consequential damages, evidence must be presented both as to their
occurrence and their extent 1 and that they were reasonably foreseeable. 2 Lost profits must be proven with
reasonable certainty, and the evidence must afford sufficient data from which the court or jury may properly
estimate the amount of damages. 3
Contrasting revenue from a time period immediately before the period at issue is an established method of proving
revenue for a lost profit damages calculation. 4 Evidence of prior profits in the same business, at least in the case
of a business that was established and making a profit when the contract was breached or the tort committed,
furnishes a basis, together with other facts and circumstances, for the computation of loss of profits. 5
Casual connection between lost profits and wrong.

There must be evidence to show that lost profits were the proximate consequence of the wrong. 6 Proof of a decline
in sales combined with evidence tending to discount the importance of other market factors, such as the evidence
of positive business conditions and the success of similar businesses not subject to the defendant's tortious conduct,
can be sufficient to establish a causal connection between the plaintiff's decline in sales and the misconduct of
the defendant. 7
Amount.
The amount of lost profits must be substantiated by objective, facts, figures, or data. 8 Loss of profits cannot be
established by conjecture, 9 mere estimates, 10 or speculation. 11 The ultimate test is whether the evidence on
lost profits provides enough information under the circumstances to permit the fact finder to reach a reasonably
certain determination of the amount of gains prevented. 12
In cases involving lost profits, less certainty is required to prove the amount of loss than is required to prove the
fact that profits were in truth lost. 13 The plaintiff is not required to prove the amount of loss with absolute or
mathematical certainty or exactness. 14 Where the tort itself precludes the ascertainment of the amount of damages
with certainty, a plaintiff seeking to recover lost profits can prove the amount of damages based on a reasonable
estimate. 15
Expert testimony.
Lost profits may be proved by means other than the value given by a willing buyer; expert testimony, alone,
may be sufficient if it is supported by substantial evidence and is not speculative. 16 However, unless the issues
concerning lost profits are highly technical, expert testimony is not required. 17
Cases:
To measure lost profits under Louisiana law for a breach of contract, a trier of fact should consider net loss, or
gross profit minus expenses; such damages may not be based on speculation or conjecture, but must be proven
with reasonable certainty. Arthur J. Gallagher & Co. v. Babcock, 703 F.3d 284 (5th Cir. 2012).
Proof of lost profits is speculative when based upon projected sales, and thus insufficient to warrant an award of
lost profits in a breach-of-contract action, if there are too many variables to make an accurate projection. Boellner
v. Clinical Study Centers, LLC, 2011 Ark. 83, 378 S.W.3d 745 (2011).
A party seeking to recover lost profits as damages is not required to obtain the testimony of the customers allegedly
lost as a result of the wrongdoer's conduct. Saint Alphonsus Diversified Care, Inc. v. MRI Associates, LLP, 334
P.3d 780 (Idaho 2014).
Lost profits are an appropriate measure of damages when the anticipated profits can be proven to a reasonable,
although not necessarily absolute, certainty. Mattson Ridge, LLC v. Clear Rock Title, LLP, 824 N.W.2d 622
(Minn. 2012).
To ensure that the nonbreaching party is not put in a better position than if the contract had been performed,
damages for lost future profits must be proved with reasonable certainty and should reflect net profits as opposed
to gross profits. Jackson HMA, LLC v. Morales, 130 So. 3d 493 (Miss. 2013).
A new business may establish lost profits with reasonable certainty, as would allow recovery of such profits in
a breach of contract claim, through the use of such evidence as expert testimony, economic and financial data,
market surveys and analyses, business records of similar enterprises, and any other relevant facts. Andrew v.
Power Marketing Direct, Inc., 2012-Ohio-4371, 978 N.E.2d 974 (Ohio Ct. App. 10th Dist. Franklin County 2012).
Wellness program provider was not entitled to lost profit damages, in breach of contract action against biometric
testing service, as provider did not provide any objective facts, figures, or data from which lost profits could
have been determined with reasonable certainty; provider did not provide expert testimony regarding lost profits,
provider did not provide a damages model to the jury, provider calculated damages partially based on the difference
in pricing between two agreements with a customer, one which was executed when provider used biometric testing
service and a subsequent agreement executed with the same customer for a reduced price because of alleged testing
issues, but the provisions of the two agreements were not identical and contained differences in overhead costs.
Examination Management Services, Inc. v. Kersh Risk Management, Inc., 367 S.W.3d 835 (Tex. App. Dallas
2012).
Evidence supported a finding that contractor, absent former subcontractor's breach of a noncompetition agreement,
would have continued to bill and be compensated for work performed by former subcontractor for competitor
of contractor, as required for an award of lost profits to contractor as compensatory damages for the breach;
contractor provided evidence of a track record of its own purchase orders with former subcontractor for certain
work and then provided a year's worth of former subcontractor's bills to competitor for work of a similar nature
with similar billing titles, and contractor's corporate representative testified that, prior to former subcontractor's
move to competitor, contractor had a business expectancy of continued work to be billed through contractor to
former subcontractor. Preferred Systems Solutions, Inc. v. GP Consulting, LLC, 732 S.E.2d 676 (Va. 2012).
[END OF SUPPLEMENT]
Footnotes
Cal.Greenwich S.F., LLC v. Wong, 190 Cal. App. 4th 739, 118 Cal. Rptr. 3d 531 (1st Dist. 2010).
1
U.S.Arlington Industries, Inc. v. Bridgeport Fittings, Inc., 692 F. Supp. 2d 487 (M.D. Pa. 2010).
2
3
4
5
6
7
8
10
11
12
13
14
Wash.Spradlin Rock Products, Inc. v. Public Utility Dist. No. 1 of Grays Harbor County, 164 Wash. App. 641, 2011
WL 5161848 (Div. 2 2011).
Mass.Linkage Corp. v. Trustees of Boston University, 425 Mass. 1, 679 N.E.2d 191, 118 Ed. Law Rep. 449 (1997).
Pa.Quinn v. Bupp, 2008 PA Super 161, 955 A.2d 1014 (2008).
Competent substantial evidence
Fla.James Crystal Licenses, LLC v. Infinity Radio Inc., 43 So. 3d 68 (Fla. Dist. Ct. App. 4th Dist. 2010), review
denied, 69 So. 3d 277 (Fla. 2011).
U.S.DSPT Intern., Inc. v. Nahum, 624 F.3d 1213 (9th Cir. 2010).
U.S.Meaux Surface Protection, Inc. v. Fogleman, 607 F.3d 161 (5th Cir. 2010).
Great specificity
Ga.Kitchen v. Hart, 307 Ga. App. 145, 704 S.E.2d 452 (2010).
2011 WL 6046244 (Fla. 2011).
La.Safeguard Storage Properties, L.L.C. v. Donahue Favret Contractors, Inc., 60 So. 3d 110 (La. Ct. App. 4th Cir.
2011).
U.S.Capitol Justice LLC v. Wachovia Bank, N.A., 706 F. Supp. 2d 23 (D.D.C. 2009).
Cal.Citri-Lite Co. v. Cott Beverages, Inc., 721 F. Supp. 2d 912 (E.D. Cal. 2010).
Tex.Simpson v. Baronne Veterinary Clinic, Inc., 2011 WL 1100263 (S.D. Tex. 2011).
U.S.Glynn v. Impact Science & Technology, Inc., 2011 WL 3792358 (D. Md. 2011).
Ind.Lees Inns of America, Inc. v. William R. Lee Irrevocable Trust, 924 N.E.2d 143 (Ind. Ct. App. 2010), transfer
denied, 940 N.E.2d 821 (Ind. 2010).
U.S.Smart Marketing Group v. Publications Intern. Ltd., 624 F.3d 824 (7th Cir. 2010).
15
16
17
Ariz.County of La Paz v. Yakima Compost Co., Inc., 224 Ariz. 590, 233 P.3d 1169 (Ct. App. Div. 1 2010), review
denied, (Nov. 30, 2010).
U.S.National R.R. Passenger Corp. v. Veolia Transp. Services, Inc., 791 F. Supp. 2d 33 (D.D.C. 2011).
Cal.Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes, 191 Cal. App. 4th 435, 120 Cal. Rptr.
3d 797 (3d Dist. 2010), review denied, (Mar. 23, 2011).
Tex.Meaux Surface Protection, Inc. v. Fogleman, 607 F.3d 161 (5th Cir. 2010).
End of Document
370.Loss of profitsNew business, 25A C.J.S. Damages 370

Damages
IX. Evidence
1. In General
370. Loss of profitsNew business
West's Key Number Digest, Damages 188, 188(1), 190
Evidence of lost profits from new business ventures are subject to greater scrutiny.
Evidence of lost profits from new business ventures receives greater scrutiny because there is no track record upon
which to base estimates. 1 In order to recover lost profits in a case arising out of a new or speculative venture,
the plaintiff generally must present persuasive evidence that the new or speculative business venture had a good
chance of succeeding. 2 There is no per se rule barring new enterprises from recovering lost profits so long as lost
profits may be established with reasonable certainty. 3
Footnotes
U.S.J & B Entertainment v. City of Jackson, Miss., 720 F. Supp. 2d 757 (S.D. Miss. 2010).
1
2
3
Tex.Meaux Surface Protection, Inc. v. Fogleman, 607 F.3d 161 (5th Cir. 2010).
End of Document

Damages
IX. Evidence
371. Generally
The proof in an action for damages for breach of contract must establish the fact that damages were
sustained and a reasonable basis for their computation.
In an action for damages for breach of contract, the evidence, to be sufficient, must establish that an agreement
existed, there was a breach, 1 the damages sustained were the direct result of the breach 2 and were such as would
naturally and ordinarily result from the breach 3 or were reasonably foreseeable 4 and within the contemplation
of the parties at the time when they made the contract. 5
Generally, in an action for breach of contract, the plaintiff must establish both the cause 6 and the amount of
his or her damages with reasonable certainty. 7 Reasonable certainty for purposes of damages in a breach-ofcontract action does not mean that damages need to be proven with mathematical exactitude, 8 but it does require
a plaintiff to prove that damages are not merely speculative. 9 The evidence must enable fact finder to make fair
and reasonable approximation. 10 A nonbreaching party need only provide a stable foundation for a reasonable
estimate of damages. 11
Once the fact of loss has been shown, the difficulty of proving its amount will not preclude recovery. 12 If some
doubt persists on the certainty of damages for a breach of contract, it is to be resolved against the breaching
party; 13 breaching parties cannot complain when the task of computing damages is made more difficult by their
own acts. 14 Thus, victims of contractual breach may be relieved of the obligation of identifying actual damages
with reasonable certainty, so long as they can demonstrate that they were in fact injured, but a plaintiff still must
produce evidence that establishes, with a fair degree of probability, a basis for assessing damages. 15
Courts have some leeway in calculating damages, and a lesser degree of certainty is required to prove tort damages
as compared to contract damages. 16
In awarding damages for breach of contract, the jury may act on probable and inferential proof, as well as on
direct and positive proof. 17
Nominal damages.
In some cases, however, although the evidence of actual damages may be insufficient, a recovery of nominal
damages may be warranted. 18
Footnotes
U.S.Gemini Investors Inc. v. AmeriPark, Inc., 643 F.3d 43 (1st Cir. 2011).
1
Ind.Belle City Amusements, Inc. v. Doorway Promotions, Inc., 936 N.E.2d 243 (Ind. Ct. App. 2010).
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

Tex.In re Perry, 423 B.R. 215 (Bankr. S.D. Tex. 2010).
U.S.Jay Dee/Mole Joint Venture v. Mayor and City Council of Baltimore, 725 F. Supp. 2d 513 (D. Md. 2010).
IdahoBelle City Amusements, Inc. v. Doorway Promotions, Inc., 936 N.E.2d 243 (Ind. Ct. App. 2010).
Mo.Cason v. King, 327 S.W.3d 543 (Mo. Ct. App. S.D. 2010).
IdahoHarris, Inc. v. Foxhollow Const. & Trucking, Inc., 151 Idaho 761, 264 P.3d 400 (2011).
Mo.Martha's Hands, LLC v. Rothman, 328 S.W.3d 474 (Mo. Ct. App. E.D. 2010).
U.S.Advertising Specialty Institute v. Hall-Erickson, Inc., 601 F.3d 683 (7th Cir. 2010).
Mich.Lawrence M. Clarke, Inc. v. Richco Const., Inc., 489 Mich. 265, 803 N.W.2d 151 (2011).
N.C.Majewski Enterprises, Inc. v. Park at Langston, Inc., 711 S.E.2d 454 (N.C. Ct. App. 2011).
Va.Tattoo Art, Inc. v. TAT Intern., LLC, 794 F. Supp. 2d 634 (E.D. Va. 2011).
UtahCook Associates, Inc. v. Utah School and Institutional Trust Lands Admin., 2010 UT App 284, 243 P.3d 888,
262 Ed. Law Rep. 647 (Utah Ct. App. 2010).
U.S.Precision Pine & Timber, Inc. v. U.S., 596 F.3d 817 (Fed. Cir. 2010), cert. denied, 131 S. Ct. 997, 178 L. Ed.
2d 826 (2011).
U.S.In re Indesco Intern., Inc., 451 B.R. 274, 74 U.C.C. Rep. Serv. 2d 339 (Bankr. S.D. N.Y. 2011).
U.S.Children's Broadcasting Corp. v. Walt Disney Co., 245 F.3d 1008, 56 Fed. R. Evid. Serv. 1013 (8th Cir. 2001).
U.S.John E. Smith's Sons Co. v. Lattimer Foundry & Mach. Co., 19 F.R.D. 379 (M.D. Pa. 1956), order aff'd, 239
F.2d 815 (3d Cir. 1956).
Ill.Landolt v. Stratmann, 87 Ill. App. 2d 81, 230 N.E.2d 498 (5th Dist. 1967).
Ill.Brewer v. Custom Builders Corp., 42 Ill. App. 3d 668, 1 Ill. Dec. 377, 356 N.E.2d 565 (5th Dist. 1976).
La.Fiesta Foods, Inc. v. Ogden, 159 So. 2d 577 (La. Ct. App. 1st Cir. 1963).
End of Document

Damages
IX. Evidence
A contract providing for liquidated damages is facial evidence that the parties have agreed on the actual
amount of damages.
Where a contract provides for liquidated damages, such a contract is facial evidence that the parties have agreed
on the actual amount of damages, and in the absence of evidence to the contrary, the damages will be declared
to be liquidated damages. 1 Thus, proof of actual damages at the time of the breach is not required to recover
liquidated damages for breach of public works contracts. 2
Footnotes
Ill.Ed Keim Builders, Inc. v. Hartley, 132 Ill. App. 2d 119, 268 N.E.2d 49 (2d Dist. 1971).
1
2
Okla.Waggoner v. Johnston, 1965 OK 192, 408 P.2d 761 (Okla. 1965).

U.S.Information Systems and Networks Corp. v. City of Kansas City, Mo., 147 F.3d 711 (8th Cir. 1998).
End of Document

Damages
IX. Evidence
3. Injuries to Motor Vehicles
373. Generally
To warrant a recovery of damages by reason of injuries to a motor vehicle, there must be sufficient proof
of the necessary facts on which an opinion as to such damages can be based.
While the plaintiff need not prove the precise value of the vehicle or the precise amount of damages, 1 he or
she must prove all the necessary facts on which the jury can base an opinion. 2 The proof should be of a clear
character. 3
Ordinarily, there must be proper and sufficient proof of the value of the vehicle in question. 4 A vehicle owner
seeking compensation for diminution of value following an automobile accident is not required to sell, exchange,
or otherwise dispose of the damaged and subsequently repaired vehicle in order to demonstrate an actual and
provable loss in value; instead, the loss could be established through other competent means, such as expert
appraisal of the preloss and postrepair values. 5
The nature and extent of damages to a motor vehicle must be proved by testimony of persons competent to judge
of such matters, 6 and it must be shown, by sufficient evidence, that the damages to the motor vehicle were caused
by the defendant's wrongful act. 7
Footnotes
OhioFleischmann Transp. Co. v. Bishop, 12 Ohio App. 293, 1919 WL 929 (1st Dist. Hamilton County 1919).
1
Ga.Leggett v. Brewton, 104 Ga. App. 580, 122 S.E.2d 469 (1961).
2
3
4
5
6
La.Mintz Furniture, Inc. v. Audubon Ins. Co., 159 So. 2d 719 (La. Ct. App. 4th Cir. 1964).
La.Holliday v. Hartford Acc. & Indem. Co., 38 So. 2d 235 (La. Ct. App. 2d Cir. 1949).
IowaSlabaugh v. Eldon Miller, Inc., 244 Iowa 29, 55 N.W.2d 528 (1952).
Ariz.Oliver v. Henry, 260 P.3d 314 (Ariz. Ct. App. Div. 1 2011), review denied, (Jan. 10, 2012).
La.Dyer v. Miller Buick Co., 230 So. 2d 113 (La. Ct. App. 1st Cir. 1969).
Ill.Wright & Wagner Dairy Co. v. Norris, 338 Ill. App. 211, 86 N.E.2d 857 (2d Dist. 1949).
End of Document
374.Cost of repairs and loss of use, 25A C.J.S. Damages 374

Damages
IX. Evidence
3. Injuries to Motor Vehicles
374. Cost of repairs and loss of use
Proof of the cost of repairs, including evidence that repairs were necessary and their cost reasonable, is
generally sufficient, facially, to establish the amount of damage.
Proof of the cost of repairs, including evidence that repairs were necessary and their cost reasonable, is generally
sufficient, facially, to establish the amount of damage. 1
Evidence as to the cost of repairs is not necessary if the vehicle cannot be restored to its former good condition or
if such cost exceeded the difference in value of the vehicle before and after the accident. 2
According to some authorities, as to substantial or compensatory damages, evidence of the actual or probable cost
of repairs and replacements made on the motor vehicle, or of the contract price therefore, is insufficient to sustain
a recovery in the absence of evidence of the necessity of the repairs and of the reasonableness of their cost or
that such cost represented the difference in the market value of the motor vehicle immediately before and after
the injury. 3 According to other authorities, however, the price paid is sufficient, at least facially, to establish the
reasonable cost of the repairs and replacements 4 in the absence of objection to such evidence 5 or of a showing
that the bill was not rendered and paid in good faith. 6
While estimates of the cost of repairs may have some weight as evidence, and be sufficient to establish damages, 7
factors affecting their reliability should be taken into consideration in evaluating the evidence, 8 and under some
circumstances, they may be insufficient to support a recovery of damages. 9
Loss of use.
A verdict for the rental or use value of a motor vehicle pending repairs cannot be sustained in the absence of any
evidence of the necessary time for making the repairs and of the value of the use. 10
374.Cost of repairs and loss of use, 25A C.J.S. Damages 374
Footnotes
Ill.Smith v. Champaign Urbana City Lines, Inc., 116 Ill. App. 2d 289, 252 N.E.2d 381 (4th Dist. 1969).
1
2
3
4
5
6
7
8
9
10
La.Bellow v. New York Fire & Marine Underwriters, Inc., 215 So. 2d 350 (La. Ct. App. 3d Cir. 1968).
N.D.Intlehouse v. Rose, 153 N.W.2d 810 (N.D. 1967).
La.Ducote v. Allstate Ins. Co., 242 So. 2d 103 (La. Ct. App. 1st Cir. 1970), writ refused, 257 La. 618, 243 So. 2d
532 (1971).
Pa.Mackiw v. Pennsylvania Threshermen & Farmers Mut. Cas. Ins. Co., 201 Pa. Super. 626, 193 A.2d 745 (1963).
Ill.Morrissey v. Ward, 9 Ill. App. 3d 241, 292 N.E.2d 110 (1st Dist. 1972).
Tex.Berryman v. Texas Dept. of Public Safety, 555 S.W.2d 539 (Tex. Civ. App. Corpus Christi 1977).
Ill.Morrissey v. Ward, 9 Ill. App. 3d 241, 292 N.E.2d 110 (1st Dist. 1972).
D.C.Cade v. Great American Ins. Co., 142 A.2d 151 (Mun. Ct. App. D.C. 1958).
La.Anselmo v. U. S. Fire Ins. Co., 169 So. 2d 550 (La. Ct. App. 4th Cir. 1964).
Neb.Burney v. Ehlers, 185 Neb. 51, 173 N.W.2d 398 (1970).
Wyo.Hamilton Drilling Co. v. Tomlin Transp. Co., 365 P.2d 52 (Wyo. 1961).
La.Veillon v. Southern Farm Bureau, 254 So. 2d 130 (La. Ct. App. 3d Cir. 1971).
Neb.Burney v. Ehlers, 185 Neb. 51, 173 N.W.2d 398 (1970).
La.Lawton v. Abernathy, 253 So. 2d 104 (La. Ct. App. 2d Cir. 1971).
Minn.Branch v. Boyer & Gilfillan Motor Co., 273 Minn. 544, 142 N.W.2d 727 (1966).
End of Document

Damages
IX. Evidence
a. In General
375. Generally
The evidence must establish the nature, extent, and probable duration of injuries, as well as the amount to
be awarded therefore, with the required degree of proof.
Generally, in a suit for personal injuries, the plaintiff must show his or her injuries including the nature, extent,
and probable duration with reasonable certainty or by a preponderance of the evidence. 1 The evidence must be
of a substantial character, 2 but a reasonable degree of certainty in view of the nature of the case is all that is
required. 3 Expert testimony is not always essential to establish personal injuries. 4
The amount to be awarded for personal injuries must also be established by some substantial testimony, or by a
preponderance, or the greater weight, of the evidence, and cannot be left to surmise or speculation. 5 Nevertheless,
the plaintiff need not show his or her loss with mathematical accuracy. 6 Triers of fact are presumed to be capable
of converting such losses into monetary equivalents on the basis of their own experiences and knowledge. 7
Subjective symptoms only.

A recovery for injuries resulting from fright or nervous shock without visible external marks on the plaintiff's
person should not be sustained on dubious evidence of actual physical injury. 8 No considerable verdict should
be allowed to stand on proof of subjective symptoms only, 9 but courts will not declare one to be a malingerer
unless such fact is clearly and conclusively shown. 10
Special damages.
An award of damages in a personal injury action should include special damages alleged to have been incurred by
the plaintiff on the basis of uncontradicted testimony. 11 Special damages, unlike general damages, are susceptible
of being established with reasonable mathematical certainty 12 and thus require specific proof of a set dollar
amount of damages. 13
Footnotes
La.Mouton v. Old Republic Ins. Co., 74 So.3d 1245, 2011-458 (La.App. 3 Cir. 10/5/11).
1
2
3
4
5
6
7
8
9
10
11
12
13
Cal.Pannu v. Land Rover North America, Inc., 191 Cal. App. 4th 1298, 120 Cal. Rptr. 3d 605 (2d Dist. 2011).
N.C.Littleton v. Willis, 695 S.E.2d 468 (N.C. Ct. App. 2010).
OhioLooker v. Martin, 61 Ohio L. Abs. 373, 104 N.E.2d 698 (Ct. App. 2d Dist. Franklin County 1951).
D.C.Jones v. Miller, 290 A.2d 587 (D.C. 1972).
La.Winzer v. Lewis, 251 So. 2d 650 (La. Ct. App. 2d Cir. 1971), writ refused, 259 La. 934, 253 So. 2d 379 (1971).
La.Caracci v. Christiana Bros. Poultry Co. of Gretna, Inc., 212 So. 2d 509 (La. Ct. App. 4th Cir. 1968).
La.Pardue v. General Acc. Fire & Life Assur. Corp., 257 So. 2d 777 (La. Ct. App. 1st Cir. 1972).
La.Nash v. Solvay Process Co., 189 So. 493 (La. Ct. App. 2d Cir. 1939).
La.Talbot v. Eusea, 151 So. 2d 531 (La. Ct. App. 4th Cir. 1963).
La.McDonald v. AIG Nat. Ins. Co., Inc., 63 So.3d 240, 10-751 (La.App. 5 Cir. 3/29/11).
U.S.Blanke v. Alexander, 152 F.3d 1224, 49 Fed. R. Evid. Serv. 1441 (10th Cir. 1998).
End of Document
376.Causal connection, 25A C.J.S. Damages 376

Damages
IX. Evidence
a. In General
376. Causal connection
The evidence must sufficiently establish that the plaintiff's injuries resulted from the act complained of.
The plaintiff must prove by legally sufficient evidence that all the injuries for which he or she claims damages
are properly attributable, in a medical sense, to the accident. 1 The causal connection must be proved by
a preponderance of the evidence, 2 with reasonable certainty, 3 or within a reasonable medical probability
based upon competent expert testimony. 4 It is unnecessary for a plaintiff to conclusively demonstrate a causal
connection, 5 but a mere possibility alone is insufficient. 6
The difficulty in establishing the proximate cause of an injury should not prompt the court to dispense with proof
thereof, 7 but the cause of an injury may be inferred from the facts proved. 8 A mere guess or conjecture on the
subject, expert or otherwise, is not sufficient. 9
When a plaintiff seeks damages for a disease or condition that did not appear until many months after the accident,
strong testimony is required to connect the disease or condition with the accident. 10
Expert testimony.
The general rule is that expert testimony is necessary in a personal injury action to establish causation as to medical
conditions outside the common knowledge and experience of jurors. 11 However, no expert testimony is required
to permit a conclusion on causation on medical matters that are within the common experience, observation, or
knowledge of laymen. 12
376.Causal connection, 25A C.J.S. Damages 376
Cases:
In a personal injury action, causation must be proven within a reasonable medical probability based upon
competent expert testimony. Chakalis v. Elevator Solutions, Inc., 205 Cal. App. 4th 1557, 141 Cal. Rptr. 3d 362
(2d Dist. 2012).
Evidence was sufficient to support finding that motorist injured her neck and suffered from headaches as a result
of particular motor vehicle accident for which motorist brought action against other motorist, rather than as result
of later motor vehicle accident in which plaintiff motorist was involved; medical records showed that plaintiff
motorist had told physician about her neck pain and headaches prior to second accident, and physician's notes
stated that motorist attributed neck pain and headaches to first accident. Turner v. Escobedo, 89 So. 3d 537 (La.
Ct. App. 3d Cir. 2012).
[END OF SUPPLEMENT]
Footnotes
U.S.Black v. Food Lion, Inc., 171 F.3d 308, 51 Fed. R. Evid. Serv. 1165 (5th Cir. 1999).
1
2
3
4
5
6
7
8
9
10
11
12
Del.Perry v. Berkley, 996 A.2d 1262 (Del. 2010).

La.Thomas v. Comfort Center of Monroe, LA, Inc., 48 So. 3d 1228 (La. Ct. App. 1st Cir. 2010).
U.S.Wintz By and Through Wintz v. Northrop Corp., 110 F.3d 508, 46 Fed. R. Evid. Serv. 1081 (7th Cir. 1997).
Cal.Miranda v. Bomel Const. Co., Inc., 187 Cal. App. 4th 1326, 115 Cal. Rptr. 3d 538 (4th Dist. 2010), review
denied, (Oct. 27, 2010).
Fla.Hood v. Matrixx Initiatives, Inc., 50 So. 3d 1166 (Fla. Dist. Ct. App. 4th Dist. 2010), review denied, 66 So. 3d
303 (Fla. 2011).
denied, (Oct. 27, 2010).
IowaSauer v. Scott, 238 N.W.2d 339 (Iowa 1976).
Ill.Vilardo v. Public Taxi Service, Inc., 118 Ill. App. 2d 62, 254 N.E.2d 653 (1st Dist. 1969).
La.Manning v. Herrin Transp. Co., 201 So. 2d 314 (La. Ct. App. 4th Cir. 1967).
Mass.Imbimbo v. Ahrens, 360 Mass. 847, 274 N.E.2d 349 (1971).
La.Belson v. Subsurface Completion Service, 253 So. 2d 686 (La. Ct. App. 3d Cir. 1971).
U.S.Brown v. Eli Lilly and Co., 654 F.3d 347 (2d Cir. 2011).
UtahLadd v. Bowers Trucking, Inc., 2011 UT App 355, 264 P.3d 752 (Utah Ct. App. 2011).
Cumulative trauma
U.S.Myers v. Illinois Central R. Co., 629 F.3d 639 (7th Cir. 2010).
Ind.Flores v. Gutierrez, 951 N.E.2d 632 (Ind. Ct. App. 2011).
La.Williams v. Stewart, 46 So. 3d 266 (La. Ct. App. 4th Cir. 2010), writ denied, 52 So. 3d 905 (La. 2011).
End of Document
377.Causal connectionInjury resulting from more than..., 25A C.J.S. Damages ...

Damages
IX. Evidence
a. In General
377. Causal connectionInjury resulting from more than one cause
There can be no recovery for an injury or condition that the evidence shows might have resulted from two
or more causes, for only one of which the defendant is responsible.
There can be no recovery for an injury or condition that the evidence shows might have resulted from two or more
causes, for only one of which the defendant is responsible. 1 Thus, too, it is not sufficient for one seeking damages
for a condition claimed to have resulted from an accident or injury to show that such accident or injury might or
could have caused the condition; 2 other causes should be excluded. 3 On the question of whether the plaintiff's
condition was caused by the injury received or by a prior ailment or injury, it is not sufficient for the plaintiff to
make his or her case probable and that he or she must prove it with reasonable certainty. 4
Footnotes
R.I.Rusoff v. O'Brien, 99 R.I. 153, 206 A.2d 209 (1965).
1
2
3
4
Wash.Ugolini v. States Marine Lines, 71 Wash. 2d 404, 429 P.2d 213 (1967).
denied, (Oct. 27, 2010).
Minn.Caspers v. Kalpin, 290 Minn. 555, 188 N.W.2d 887 (1971).
Mont.Allers v. Willis, 197 Mont. 499, 643 P.2d 592 (1982).
U.S.Fuchstadt v. U.S., 442 F.2d 400 (2d Cir. 1971).
End of Document
378.Loss of earnings, 25A C.J.S. Damages 378

Damages
IX. Evidence
b. Losses
(1) In General
378. Loss of earnings
To warrant recovery for loss of earnings, the evidence must establish the fact, cause, and extent thereof by
a sufficient degree of proof.
A claim for loss of time or earnings must be supported by the evidence and can be allowed only in such amount
as is so supported. 1 A party asserting such claim must establish a reasonable probability that his or her injury
brought about the loss 2 and must afford a basis for a reasonable estimate of the amount of such loss. 3
Specific data on which to rest recovery 4 must be given.
Although the amount of backpay awarded may not be merely speculative, 5 the evidence need not show the loss of
earnings with mathematical accuracy. 6 Damages for lost wages may be established by any proof that reasonably
establishes the claim, 7 including the plaintiff's detailed and uncorroborated testimony. 8
Footnotes
Ark.Lewis v. Pearson, 262 Ark. 350, 556 S.W.2d 661 (1977).
1
2
3
4
5
La.Young v. Employers' Liability Assur. Corp., 254 So. 2d 921 (La. Ct. App. 1st Cir. 1971).
Pa.Paustenbaugh v. Ward Baking Co., 374 Pa. 418, 97 A.2d 816 (1953).
Tex.Rubner v. Kennedy, 417 S.W.2d 860 (Tex. Civ. App. San Antonio 1967), writ refused n.r.e., (Nov. 22, 1967).
Conn.Panaroni v. Johnson, 158 Conn. 92, 256 A.2d 246 (1969).
La.Veillon v. Southern Farm Bureau, 254 So. 2d 130 (La. Ct. App. 3d Cir. 1971).
Colo.City of Pueblo v. Ratliff, 131 Colo. 381, 281 P.2d 1021 (1955).
La.Laville v. Hartford Acc. & Indem. Co., 178 So. 2d 464 (La. Ct. App. 1st Cir. 1965).
U.S.McCoy v. Department of Army, 789 F. Supp. 2d 1221 (E.D. Cal. 2011).
Vt.Kerr v. Rollins, 128 Vt. 507, 266 A.2d 804 (1970).
378.Loss of earnings, 25A C.J.S. Damages 378
6
7
Unsupported suggestion of attorney not sufficient

U.S.Mayne v. Omega Protein Inc., 370 Fed. Appx. 510 (5th Cir. 2010).
La.Moffitt v. Sewerage & Water Bd. of New Orleans, 40 So. 3d 336 (La. Ct. App. 4th Cir. 2010).
Mo.McDonald v. Missouri-Kansas-Texas R. Co., 401 S.W.2d 465 (Mo. 1966).
La.Broussard v. Oak Trace Apartments, 69 So.3d 1257, 2011-125 (La.App. 3 Cir. 7/13/11).
N.Y.Ferguson v. City of New York, 73 A.D.3d 649, 901 N.Y.S.2d 609 (1st Dep't 2010).
Taxi driver's handwritten trip logs inadequate
La.Shubert v. Tonti Development Corp., 30 So. 3d 977 (La. Ct. App. 5th Cir. 2009), writ denied, 31 So. 3d 393
(La. 2010).
End of Document

Damages
IX. Evidence
b. Losses
(1) In General
Impairment of earning capacity must be sufficiently established by the evidence to warrant recovery
therefore.
A claim of damages for lost or diminished earning capacity must be supported by satisfactory proof of the fact
of such impairment, the extent thereof, and, in the case of a claim for permanent impairment of earning power,
by satisfactory evidence of the permanency of the injury. 1 Proof with certainty or mathematical exactness is
not required, 2 but the plaintiff must produce evidence that will permit the jury to arrive at a pecuniary value of
the loss. 3 Damages cannot be left to speculation 4 or conjecture. 5 They must be established with reasonable
certainty 6 or probability. 7
There should be more evidence than that which merely shows the nature of plaintiff's injuries and vocation. 8
However, the extent to which earning capacity has been diminished may be established by proof showing the
extent of impairment and its probable effect on the work that the plaintiff is equipped to do. 9
In order to form a reliable basis for a calculation of loss of earning capacity, the evidence must be grounded upon
facts specific to the individual whose loss is being calculated; estimates of damages based entirely upon statistics
and assumptions are too remote and speculative. 10
Evidence of life expectancy is not always required, 11 and where mortality tables are introduced in evidence, they
are not conclusive. 12
Expert testimony.
The testimony of an expert witness on the subject of future earning ability ordinarily is unnecessary. 13 The
testimony of an economist is entitled to great weight, but since it is necessarily based on uncertain future events,
it is not conclusive. 14
Minor plaintiffs.
Where the plaintiff is a minor and it is claimed that he or she will sustain loss of earnings after reaching majority,
the absence of opinion evidence estimating the amount of such loss will not bar a recovery therefore. 15
Cases:
Evidence supported verdict that motorist did not incur loss of future earning capacity due to motor vehicle accident,
despite argument that accident left motorist with disability to her left hand; while motorist's hands suffered some
impairment, there was medical testimony that she could supervise landscaping and do physical types of work that
she had done in past, there was no proof of income from type of work that motorist testified she had done in the
ten years before the accident, and motorist was able to resume similar work approximately three months after
accident. Sloan v. Mouton, 82 So. 3d 364 (La. Ct. App. 3d Cir. 2011), writ denied, 2012-48 La. 3/9/12, 2012
WL 1026684 (La. 2012).
[END OF SUPPLEMENT]
Footnotes
Ind.Scott v. Nabours, 156 Ind. App. 317, 296 N.E.2d 438 (1973).
1
2
3
4
5
6
7
8
9
10
11
12
13
N.J.Donelson v. DuPont Chambers Works, 206 N.J. 243, 20 A.3d 384 (2011).
N.J.Haywood v. Harris, 414 N.J. Super. 204, 997 A.2d 1098 (App. Div. 2010), certification denied, 204 N.J. 38,
6 A.3d 441 (2010).
U.S.Pallis v. U.S., 369 Fed. Appx. 538 (5th Cir. 2010).
La.Hoagboon v. Cannon, 54 So.3d 802, 2010-0909 (La.App. 1 Cir. 12/29/10).
(Fla. 2010).
IowaCarradus v. Lange, 203 N.W.2d 565 (Iowa 1973).
Franchise owner and vice president of businesses
Cal.Pannu v. Land Rover North America, Inc., 191 Cal. App. 4th 1298, 120 Cal. Rptr. 3d 605 (2d Dist. 2011).
Mo.Prince v. Kansas City Southern Ry. Co., 360 Mo. 580, 229 S.W.2d 568 (1950).
14
15
La.Davis v. Foremost Dairies, 58 So.3d 977, 45,835 (La.App. 2 Cir. 2/16/11).

U.S.Detroit Taxicab & Transfer Co. v. Pratt, 2 F.2d 193 (C.C.A. 6th Cir. 1924).
Mich.Sadlowski v. Meeron, 240 Mich. 306, 215 N.W. 422 (1927), on reh'g, 243 Mich. 602, 220 N.W. 680 (1928).
End of Document
380.Impairment of earning capacityEvidence of injured..., 25A C.J.S. Damages ...

Damages
IX. Evidence
b. Losses
(1) In General
380. Impairment of earning capacityEvidence of injured person's actual earnings
Evidence of the injured person's actual earnings can be employed in calculating loss of earning power but
is not essential.
Proof of the plaintiff's actual earnings, either before or after the injury, is not essential to the establishment of
the value of the plaintiff's decreased earning capacity. 1 In fact, awards cannot be based simply on the difference
between the plaintiff's earnings before and after. 2 There must nevertheless appear some evidence, either direct
or circumstantial, tending to show what the plaintiff was capable of earning both before and after the injury. 3
It is not essential to establish that there were actual earnings prior to the injury, 4 and the fact that the actual
earnings after the injury were the same, 5 or higher, 6 is not conclusive proof that there was no loss of earning
power.
Footnotes
1
2
3
U.S.Hrabak v. Hummel, 55 F. Supp. 775 (E.D. Pa. 1943), judgment aff'd, 143 F.2d 594 (C.C.A. 3d Cir. 1944).
4
5
6
U.S.Frankel v. Todd, 393 F.2d 435 (3d Cir. 1968).
Ky.Hurst v. Sanders, 399 S.W.2d 470 (Ky. 1966).
AlaskaChugach Elec. Ass'n v. Lewis, 453 P.2d 345 (Alaska 1969).
Ill.Buckler v. Sinclair Refining Co., 68 Ill. App. 2d 283, 216 N.E.2d 14 (5th Dist. 1966).
End of Document
381.Loss of services or consortium, 25A C.J.S. Damages 381

Damages
IX. Evidence
b. Losses
(1) In General
381. Loss of services or consortium
Generally, a claim for loss of services or consortium must be substantiated by evidence.
Generally, a claim for loss of services of the injured person must be substantiated by a preponderance of the
evidence. 1 Definite proof of value is not required. 2
To support an award for loss of consortium, the evidence must show a change in relationship between parent and
child 3 or between spouses. 4 The parents of a minor child are not entitled to damages for loss of consortium
absent evidence of their inability to share in the activities and enjoyment of life experiences with the child that
are normally shared by parents and children; evidence of trauma that the parents suffered, wages that they lost,
and care that they gave is insufficient. 5
The jury is under no obligation to accept a plaintiff's uncorroborated testimony as to damages suffered. 6
Footnotes
La.Mitchell v. Roy, 51 So. 3d 153 (La. Ct. App. 3d Cir. 2010), writ denied, 56 So. 3d 957 (La. 2011).
1
Ga.Shepherd Const. Co. v. Vaughn, 88 Ga. App. 285, 76 S.E.2d 647 (1953).
2
3
4
Mo.Riggs v. Metcalf, 315 S.W.2d 791 (Mo. 1958).

La.Mitchell v. Roy, 51 So. 3d 153 (La. Ct. App. 3d Cir. 2010), writ denied, 56 So. 3d 957 (La. 2011).
So. 3d 1094 (La. 2010).
Affidavits detailing changes in marriage
U.S.House v. Kent Worldwide Machine Works, Inc., 359 Fed. Appx. 206 (2d Cir. 2010).
OhioWhite v. Bannerman, 2010 WL 3852354 (Ohio App. 5 Dist.), 2010 -Ohio- 4846.
381.Loss of services or consortium, 25A C.J.S. Damages 381
OhioMartin v. Am. Natl. Property & Cas. Co., 2010-Ohio-3370, 2010 WL 2807940 (Ohio Ct. App. 12th Dist. Butler
County 2010).
End of Document
382.Medical expenses, 25A C.J.S. Damages 382

Damages
IX. Evidence
b. Losses
(1) In General
382. Medical expenses
The evidence must establish liability or expenditure for medical expenses and their necessity and
reasonableness.
To recover medical expenses, a plaintiff must show both the existence of the injury 1 and a causal connection
between the injuries and the incident of which the plaintiff complained. 2
No recovery can ordinarily be allowed for medical, hospital, or similar expenses where there is no sufficient proof
of the necessity of, and expenditure or liability for, such expenses 3 and of their reasonableness. 4 Such matters
must be proved with reasonable certainty. 5
In some jurisdictions, the amounts paid or agreed to be paid for medical treatment and attention are some
evidence of the reasonable value thereof 6 and are sufficient where there is no showing to the contrary 7 although
not conclusive. 8 A plaintiff makes out a facial case with respect to such expenses by proving the necessary
professional services rendered and the amount of the bill paid or incurred. 9 In other jurisdictions, evidence of the
amount or payment of such bills does not establish the reasonable value of the services for which the bills were
rendered or justify recovery therefore. 10
Failure by the plaintiff to offer proof of the precise amount of past medical expenses will not preclude recovery
where the evidence indicates that such expenses have in fact been incurred. 11
Cases:
382.Medical expenses, 25A C.J.S. Damages 382
Passenger in automobile that was struck by another vehicle whose driver admitted liability for the accident was
entitled to at least some damages for past medical expenses in her personal injury action against driver, despite
jury's finding that the accident was not the legal cause of passenger's alleged injuries; passenger went to hospital
for pain in her neck and back within a few hours after the accident, and the diagnostic tests and treatments she
received were reasonable or necessary after the accident. Martin v. Brubaker, 87 So. 3d 797 (Fla. 2d DCA 2012).
[END OF SUPPLEMENT]
Footnotes
1
U.S.Burke v. Zurich American Ins. Co., 394 Fed. Appx. 24 (5th Cir. 2010).
2
3
5
6
7
8
9
10
11
U.S.Fried v. Sungard Recovery Services Inc., 936 F. Supp. 310 (E.D. Pa. 1996).
IowaStanley v. State, 197 N.W.2d 599 (Iowa 1972).
As to sufficiency of evidence as to future medical expenses, see 387.
U.S.Alphonso v. Esfeller Oil Field Const., Inc., 380 Fed. Appx. 808 (11th Cir. 2010).
Ind.Smith v. Syd's, Inc., 598 N.E.2d 1065 (Ind. 1992).
As to measure of award for medical expenses, see 170.
La.Bodan v. American Emp. Ins. Co., 160 So. 2d 410 (La. Ct. App. 2d Cir. 1964).
Miss.Mills v. Balius, 254 Miss. 353, 180 So. 2d 914 (1965).
La.Marshall v. Boydston, 33 So. 3d 438 (La. Ct. App. 3d Cir. 2010), writ denied, 38 So. 3d 339 (La. 2010).
U.S.Spurr v. LaSalle Const. Co., 385 F.2d 322 (7th Cir. 1967).
La..Marshall v. Boydston, 33 So. 3d 438 (La. Ct. App. 3d Cir. 2010), writ denied, 38 So. 3d 339 (La. 2010).
Fla.Crowe v. Overland Hauling, Inc., 245 So. 2d 654 (Fla. Dist. Ct. App. 4th Dist. 1971).
OhioWagner v. McDaniels, 9 Ohio St. 3d 184, 459 N.E.2d 561 (1984).
Ala.Harden v. Alabama Great Southern R. Co., 45 Ala. App. 301, 229 So. 2d 803 (Civ. App. 1969).
Wis.Lautenschlager v. Hamburg, 41 Wis. 2d 623, 165 N.W.2d 129 (1969).
Cal.Sanchez v. U.S., 2011 WL 1155481 (C.D. Cal. 2011).
End of Document

Damages
IX. Evidence
b. Losses
(2) Pain and Suffering
383. Generally
To justify a recovery for pain and suffering, the evidence must show either the actual existence thereof or
else such injuries that pain and suffering would presumably follow.
A jury must award damages for pain and suffering if the record contains substantial and uncontradicted evidence
that the plaintiff did experience pain and suffering. 1 To justify a recovery for pain and suffering, the evidence must
show either the actual existence thereof or else such injuries that pain and suffering would presumably follow. 2
Such damages may be established by either a lay witness or an expert medical witness. 3
Physical pain and suffering may often be inferred from the plaintiff's condition or from the nature of the injury
without direct evidence. 4 Upon proof of an objective injury from which it is apparent that the injured person
must of necessity continue to undergo pain and suffering in the future, the jury may award damages for permanent
injury without the necessity of expert testimony. 5
The fact that a plaintiff has been prescribed pain medication may be proof of pain and suffering. 6 On the other
hand, a showing that the plaintiff was taking medication 7 or undergoing treatment 8 for pain prior to the accident
in question may tend to prove that his or her pain is due to a previous condition rather than the accident, and thus,
no damages are warranted.
Medical tests showing no injury 9 or evidence that the plaintiff's activities were not altered after the accident 10
may also negate the plaintiff's complaints of pain.
Cases:
Under Maine law, award of $30,000 in damages for past pain and suffering to motorist, who sustained neck
and back injuries when driver of another vehicle negligently struck passenger side of motorist's vehicle, was
appropriate in personal injury action; motorist's injuries caused some modest modifications in his activities of
daily living and lifestyle, for example, need for increased stretch breaks and home physical therapy exercises,
purchase of lighter outdoor gear to avoid strain on his back, and diminishment of his enjoyment of and engagement
in kayaking, however, with such modifications, motorist was able to engage in essentially full range of home and
leisure activities that he did prior to accident. Rix v. Normand, 2011 WL 6004276 (D. Me. 2011).
Jury verdict awarding motorist zero dollars in damages for alleged neck injury sustained in automobile accident
was not against manifest weight of evidence, despite parties' stipulation that defendant driver was at fault in
causing accident and concession by motorist's and underinsured motorist insurer's experts that motorist suffered
muscle strain, where jury heard motorist's expert concede on cross-examination that he lacked any knowledge
about accident itself, and photographic evidence showed that accident was of such minimal impact that it had
resulted in no more property damage than scratched paint. Loyacono v. Travelers Ins. Co., 163 So. 3d 932 (Miss.
2014).
Evidence was sufficient to support award of damages for permanent injury and future pain and suffering to motorist
whose vehicle was rear-ended by a taxicab; motorist testified that, following accident, she continued to suffer pain
from accident, had trouble standing or sitting for long periods of time, described the pain as "dull because it just
feels like my back is going to give out," and that she had not suffered any similar symptoms before the accident.
Wilder v. Blue Ribbon Taxicab Corp., 396 S.C. 139, 719 S.E.2d 703 (Ct. App. 2011).
[END OF SUPPLEMENT]
Footnotes
1
Pa.Schiele v. Motor Freight Exp., 35 Berks 284 (Pa. C.P. 1943).
2
Mo.Livingston v. Baxter Health Care Corp., 313 S.W.3d 717 (Mo. Ct. App. W.D. 2010).
3
S.D.Koenig v. Weber, 84 S.D. 558, 174 N.W.2d 218 (1970).
4
5
6
7
8
9
10
Tex.English v. Hegi, 337 S.W.2d 860 (Tex. Civ. App. Amarillo 1960).
IowaFoster v. Schares, 766 N.W.2d 649 (Iowa Ct. App. 2009).
Ill.Estate of Oglesby v. Berg, 408 Ill. App. 3d 655, 349 Ill. Dec. 220, 946 N.E.2d 414 (1st Dist. 2011).
Epidural injections
So. 3d 1094 (La. 2010).
N.J.Kozma v. Starbucks Coffee Co., 412 N.J. Super. 319, 990 A.2d 679 (App. Div. 2010).
Ohio-Perry v. Carter, 2011-Ohio-4214, 2011 WL 3672072 (Ohio Ct. App. 5th Dist. Richland County 2011).
La.Davenport v. Giles, 80 So. 3d 492 (La. Ct. App. 2d Cir. 2011).
Plaintiff never missed work
La.Cattles v. Allstate Ins. Co., 45 So. 3d 627 (La. Ct. App. 4th Cir. 2010), writ denied, 51 So. 3d 733 (La. 2010).
End of Document

Damages
IX. Evidence
b. Losses
384. Mental suffering
There need not be direct evidence of the existence of mental suffering, but it may be inferred from the
surrounding circumstances.
A recovery for mental suffering may be supported by direct evidence 1 or damages be inferred from circumstantial
evidence, 2 particularly where based on personal experience alone, a jury could reasonably find that the
circumstances described caused the plaintiff emotional distress. 3
The proof must be reasonable 4 and sufficient. 5 Evidence based on conjecture 6 or mere conclusory statements 7
will not support recovery. 8
Neither harm nor causation need be proved with precision; a preponderance of the evidence is sufficient. 9
Direct evidence in support an award of mental anguish damages may be in the form of the parties' own
testimony, 10 that of third parties, 11 or experts. 12
Causation.
The plaintiff must present evidence that the action complained of was the cause of his or her emotional distress. 13
The defendant may defeat the plaintiff's claim by presenting evidence showing that the emotional distress was
likely caused by something other than the defendant's actions. 14
Amount of damages.
To merit any award greater than nominal damages, emotional distress damages must be supported by competent
evidence concerning injury. 15 Even so, general compensatory damages for emotional distress are not pecuniarily
measurable, they defy a fixed rule of quantification, and may be awarded without proof of pecuniary loss. 16
A plaintiff seeking damages for emotional distress need not prove the exact measurement of damages for the
harm suffered. 17
Fear of cancer.
A toxic exposure plaintiff is required to establish the reasonableness of his or her fear of cancer in order to recover
for damages for that fear, and reasonableness is not established by the mere fact of exposure or a significant
increase in the risk of cancer. 18
Cases:
Expert medical testimony was not required to support award of mental anguish damages to seaman who was
injured in crane accident in his Jones Act action against his employer, where seaman's testimony regarding his
mental anguish was supported by the testimony of his wife, his visits to doctors and social workers, and his
prescription use of an anti-depressant drug following the accident. 46 U.S.C.A. 30104 et seq. Naquin v. Elevating
Boats, L.L.C., 744 F.3d 927 (5th Cir. 2014).
[END OF SUPPLEMENT]
Footnotes
Mich.Birkhill v. Todd, 20 Mich. App. 356, 174 N.W.2d 56 (1969).
1
2
3
4
5
6
7
8
9
10
11
12
13
14
Wis.D. R. W. Corp. v. Cordes, 65 Wis. 2d 303, 222 N.W.2d 671 (1974).

U.S.Alston v. King, 231 F.3d 383 (7th Cir. 2000).
Mass.Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 925 N.E.2d 513 (2010).
Mo.Harrison v. Weller, 423 S.W.2d 226 (Mo. Ct. App. 1967).
U.S.Ross v. F.D.I.C., 625 F.3d 808 (4th Cir. 2010), cert. denied, 131 S. Ct. 2991, 180 L. Ed. 2d 824 (2011).
U.S.Durley v. APAC, Inc., 236 F.3d 651 (11th Cir. 2000).
Wash.Carlton v. Vancouver Care LLC, 155 Wash. App. 151, 231 P.3d 1241 (Div. 2 2010), as amended, (June 22,
2010).
OhioFord Motor Credit Co. v. Ryan, 189 Ohio App.3d 560, 939 N.E.2d 891, 72 U.C.C. Rep.Serv.2d 977, 2010 Ohio- 4601.
Tex.Hancock v. Variyam, 345 S.W.3d 157 (Tex. App. Amarillo 2011), reh'g overruled, (Aug. 17, 2011) and rule
53.7(f) motion granted, (Sept. 29, 2011).
Tex.Hancock v. Variyam, 345 S.W.3d 157 (Tex. App. Amarillo 2011), reh'g overruled, (Aug. 17, 2011) and rule
53.7(f) motion granted, (Sept. 29, 2011).
U.S.French v. Allstate Indem. Co., 637 F.3d 571 (5th Cir. 2011), cert. denied, 132 S. Ct. 420 (2011).
U.S.Nolan v. Memphis City Schools, 589 F.3d 257, 251 Ed. Law Rep. 533 (6th Cir. 2009).
Mother's disapproval of plaintiff's upcoming marriage
15
16
Conn.Szekeres v. Szekeres, 126 Conn. App. 829, 16 A.3d 713 (2011), appeal denied, 300 Conn. 939, 17 A.3d 475
(2011) and appeal denied, 300 Conn. 939, 17 A.3d 475 (2011) and appeal denied, 300 Conn. 940, 17 A.3d 475 (2011).
U.S.Giles v. General Elec. Co., 245 F.3d 474 (5th Cir. 2001).
17
Cal.Walnut Creek Manor v. Fair Employment & Housing Com., 54 Cal. 3d 245, 284 Cal. Rptr. 718, 814 P.2d 704
(1991).
Me.Graham v. Brown, 2011 ME 93, 26 A.3d 823 (Me. 2011).
18
General damage due to abuse

Me.Graham v. Brown, 2011 ME 93, 26 A.3d 823 (Me. 2011).
End of Document
385.Mental sufferingNecessity of expert medical testimony, 25A C.J.S. Damages ...

Damages
IX. Evidence
b. Losses
385. Mental sufferingNecessity of expert medical testimony
To prove mental distress, it is usually, but not always, necessary for a plaintiff to submit medical testimony.
According to some courts, emotional distress damages need not be supported by medical testimony. 1 A plaintiff
claiming emotional distress damages can, in certain circumstances, testify about the emotional reactions resulting
from the defendants' conduct without presenting any medical evidence and that testimony alone may suffice to
sustain the claim. 2
On the other hand, it has been held that to prevail on an intentional infliction of emotional-distress claim, there
must be objective proof with competent medical evidence. 3 In most instances, proof of the objective symptoms
necessary to establish the severity of the emotional distress suffered by a plaintiff requires expert testimony to
establish that the plaintiff's injury qualifies for a diagnosis such as shock, post-traumatic stress disorder, or some
other recognized medical or psychological disease or disorder. 4 Such conditions would not be apparent to the
average layperson. 5
In some cases, in lieu of expert testimony, the plaintiff has been allowed to submit the testimony of lay witnesses
who testify as to any marked changes in the emotional or habitual makeup that they discern in the plaintiff. 6
Lack of physical injury.

A plaintiff who has suffered only emotional distress, with no related physical injury, can only support a claim
of negligent infliction of emotional distress by submitting expert medical or scientific proof of severe emotional
injury. 7
385.Mental sufferingNecessity of expert medical testimony, 25A C.J.S. Damages ...
Cases:
Evidence of medical attention is not required to establish damages for emotional distress. Zeno v. Pine Plains
Cent. School Dist., 702 F.3d 655 (2d Cir. 2012).
Where a plaintiff's mental anguish testimony is corroborated by other witnesses, circumstances, and facts, expert
medical testimony is not necessarily required. Naquin v. Elevating Boats, L.L.C., 744 F.3d 927 (5th Cir. 2014).
Plaintiff seeking damages for emotional distress must present evidence of the recognized elements of a common
law negligence claim and must also show, by presenting expert medical or scientific proof, a severe or serious
emotional injury, i.e., one that a reasonable person, normally constituted, would not be expected to endure.
Osborne v. Keeney, 399 S.W.3d 1 (Ky. 2012).
[END OF SUPPLEMENT]
Footnotes
U.S.Myers v. Central Florida Investments, Inc., 592 F.3d 1201 (11th Cir. 2010), cert. denied, 131 S. Ct. 299, 178 L.
1
2
3
4
5
6
7
Ed. 2d 143 (2010) and cert. denied, 131 S. Ct. 392, 178 L. Ed. 2d 137 (2010).
U.S.Flowers v. Owens, 274 F.R.D. 218 (N.D. Ill. 2011).
U.S.Stewart v. Moll, 717 F. Supp. 2d 454 (E.D. Pa. 2010).
Me.Lyman v. Huber, 2010 ME 139, 10 A.3d 707 (Me. 2010).
Kan.Lovitt ex rel. Bahr v. Board of County Com'rs of Shawnee County, 43 Kan. App. 2d 4, 221 P.3d 107 (2009).
OhioFord Motor Credit Co. v. Ryan, 189 Ohio App.3d 560, 939 N.E.2d 891, 72 U.C.C. Rep.Serv.2d 977, 2010 Ohio- 4601.
U.S.Freeman v. Wal-Mart Stores East, LP, 781 F. Supp. 2d 661 (E.D. Tenn. 2011).
End of Document

Damages
IX. Evidence
b. Losses
(3) Future or Permanent Consequences of Injury
386. Generally
Future consequences of an injury must be established with reasonable certainty; mere possibility is
insufficient.
Future consequences of an injury must be established with reasonable certainty 1 or with reasonable probability. 2
Although a mere conjecture or possibility of future consequences is insufficient to justify a recovery, 3 the plaintiff
is not required to prove the future effects of his or her injury beyond a reasonable doubt 4 or with absolute
certainty. 5
To authorize a recovery for permanent injuries, there must be positive and satisfactory evidence of permanency, 6
and even a probability of permanency is not sufficient. 7
The jury may refuse to award damages where evidence as to the permanency of the injury is conflicting 8 but
cannot fail to make an award where the evidence goes unrefuted. 9
Life expectancy tables may provide evidence of the amount of future damages for permanent injuries, 10 but such
tables are not essential. 11
Cases:
Jury's finding that motorist suffered a permanent injury in motor vehicle collision did not require jury to award
motorist future noneconomic damages, and thus jury's failure to award such damages did not entitle motorist, as
a matter of law, to new trial on the issue of future noneconomic damages. Buitrago v. Feaster, 157 So. 3d 318
(Fla. 2d DCA 2014).
[END OF SUPPLEMENT]
Footnotes
Mich.Larson v. Johns-Manville Sales Corp., 427 Mich. 301, 399 N.W.2d 1 (1986).
1
U.S.Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 42 Fed. R. Evid. Serv. 1013 (5th Cir. 1995).
2
3
4
5
6
7
8
9
10
11
Mass.Timmons v. Massachusetts Bay Transp. Authority, 412 Mass. 646, 591 N.E.2d 667 (1992).
Neb.Caster v. Moeller, 176 Neb. 30, 125 N.W.2d 89 (1963).
Okla.Kansas City Southern Ry. Co. v. Norwood, 1961 OK 238, 367 P.2d 722 (Okla. 1961).
Tenn.Williams v. Daniels, 48 Tenn. App. 112, 344 S.W.2d 555 (1960).
Tex.Verhalen v. Nash, 330 S.W.2d 676 (Tex. Civ. App. Texarkana 1959), writ refused n.r.e., (Mar. 30, 1960).
N.M.Morris v. Rogers, 80 N.M. 389, 456 P.2d 863 (1969).
Customer was still bald four years after negligent hairweaving
Mass.Duvivier v. Kay's Oasis Enterprises, Inc., 2010 Mass. App. Div. 31, 2010 WL 1139331 (2010), aff'd, 79 Mass.
App. Ct. 1106, 944 N.E.2d 632 (2011), review denied, 460 Mass. 1103, 949 N.E.2d 924 (2011).
U.S.American Fire & Cas. Co. v. Jackson, 187 F.2d 379 (5th Cir. 1951).
Ark.Midwest Bus Lines, Inc. v. Williams, 243 Ark. 854, 422 S.W.2d 869 (1968).
N.Y.Olmsted v. Pizza Hut of America, Inc., 81 A.D.3d 1223, 917 N.Y.S.2d 742 (3d Dep't 2011).
N.Y.Vogel v. Cichy, 53 A.D.3d 877, 862 N.Y.S.2d 401 (3d Dep't 2008).
U.S.House v. Kent Worldwide Machine Works, Inc., 359 Fed. Appx. 206 (2d Cir. 2010).
S.C.Hall v. Palmetto Enterprises II, Inc., of Clinton, 282 S.C. 87, 317 S.E.2d 140 (Ct. App. 1984).
End of Document
387.Future medical expenses, 25A C.J.S. Damages 387

Damages
IX. Evidence
b. Losses
387. Future medical expenses
A plaintiff seeking to recover damages based on the cost of future medical treatment must furnish legally
adequate proof that he or she will require such treatment and of its cost.
A plaintiff seeking to recover damages based on the cost of future medical treatment must furnish legally adequate
proof that he or she will require such treatment and of its cost. 1 Such expenses cannot be based on speculation; 2
they must be proved with "reasonable certainty," which is to say that the plaintiff must prove that he or she will,
more probably than not, need the claimed medical service. 3 Where testimony as to future expenses is undisputed,
the plaintiff is entitled to damages. 4
Past medical expenses, alone, are not evidence that the expenses will continue. 5
An award of future medical costs must be supported by competent evidence to guide the jury in arriving at a
reasonable value for such expenses. 6 However, the plaintiff need not show an exact amount. 7 A plaintiff's failure
to present evidence of life expectancy does not preclude an award of future medical costs. 8
Cases:
Wyoming law prescribes a "reasonable degree of medical probability" standard for expert testimony on future
medical expenses. Prager v. Campbell County Memorial Hosp., 731 F.3d 1046 (10th Cir. 2013).
Before a jury can award a plaintiff damages for future medical expenses, there must be an evidentiary basis upon
which the jury can, with reasonable certainty, determine the amount of those expenses. GEICO Indem. Co. v.
DeGrandchamp, 102 So. 3d 685 (Fla. 2d DCA 2012).
387.Future medical expenses, 25A C.J.S. Damages 387
In meeting his burden of proving special damages for future medical expenses, the plaintiff must show that, more
probably than not, that these expenses will be incurred and must present medical testimony that they are indicated
and the probable cost of these expenses. Caskey v. Merrick Const. Co., Inc., 86 So. 3d 186 (La. Ct. App. 2d Cir.
2012).
In meeting burden of proof as to special damages such as future medical expenses, plaintiff in personal injury
action must show, more probably than not, that these expenses will be incurred, and she must present medical
testimony that they are indicated and the probable cost of these expenses. Guidry v. Allstate Ins. Co., 83 So. 3d
91 (La. Ct. App. 3d Cir. 2011), writ denied, 2012-225 La. 3/30/12, 2012 WL 1224195 (La. 2012).
While the preferred practice is to establish future medical expenses through expert medical testimony, the
"reasonable probability" rule does not require this; instead, a jury can make an award for future medical expenses
based on the nature of the plaintiff's injuries, medical care rendered to a plaintiff before trial, and the condition of
the plaintiff at the time of trial. Saeco Elec. & Utility, Ltd. v. Gonzales, 392 S.W.3d 803 (Tex. App. San Antonio
2012), review denied, (Feb. 8, 2013).
Due to the inherently speculative nature of awards for future medical expenses, the factfinder may award future
medical damages based on the nature of the injury, the medical care rendered prior to trial, and the condition of
the injured party at the time of trial. Scott's Marina at Lake Grapevine Ltd. v. Brown, 365 S.W.3d 146 (Tex. App.
Amarillo 2012), reh'g overruled, (Feb. 22, 2012) and petition for review filed, (Apr. 3, 2012).
A party seeking damages for future medical expenses bears the burden of proving damages by a preponderance
of the evidence; the amount of damages needs to be proven only to such a degree that the finder of fact can make
a reasonable estimate. Bolding v. Kindel Concrete, LLC, 2014 WY 132, 336 P.3d 144 (Wyo. 2014).
[END OF SUPPLEMENT]
Footnotes
Conn.Jerz v. Humphrey, 160 Conn. 219, 276 A.2d 884 (1971).
1
2
3
4
5
6
7
8
A.L.R. Library
Sufficiency of evidence to prove future medical expenses as result of injury to back, neck, or spine, 26 A.L.R.5th 401.
N.Y.Haleemeh M.S. ex rel. Mohammad S.F. v. MRMS Realty Corp., 28 Misc. 3d 443, 904 N.Y.S.2d 862 (Sup 2010).
Fla.Fasani v. Kowalski, 43 So. 3d 805 (Fla. Dist. Ct. App. 3d Dist. 2010).
N.Y.Haleemeh M.S. ex rel. Mohammad S.F. v. MRMS Realty Corp., 28 Misc. 3d 443, 904 N.Y.S.2d 862 (Sup 2010).
UtahFlorez v. Schindler Elevator Corp., 2010 UT App 254, 240 P.3d 107 (Utah Ct. App. 2010).
La.Moody v. Cummings, 37 So. 3d 1054 (La. Ct. App. 4th Cir. 2010), writ denied, 44 So. 3d 686 (La. 2010).
Fla.Parrish v. City of Orlando, 53 So. 3d 1199 (Fla. Dist. Ct. App. 5th Dist. 2011).
IdahoCole v. Esquibel, 145 Idaho 652, 182 P.3d 709 (2008).
La.Warden v. Richoux, 40 So. 3d 139 (La. Ct. App. 5th Cir. 2010), writ denied, 38 So. 3d 340 (La. 2010).
UtahFlorez v. Schindler Elevator Corp., 2010 UT App 254, 240 P.3d 107 (Utah Ct. App. 2010).
End of Document
388.Necessity of expert testimony, 25A C.J.S. Damages 388

Damages
IX. Evidence
b. Losses
388. Necessity of expert testimony
Direct expert evidence is not always essential to establish the permanency or future effects of an injury.
Direct expert evidence is not always essential to establish the permanency or future effects of an injury. 1 Future
pain and suffering, or the permanency of injuries, may in some cases be inferred from the nature of the injury
alone, 2 and the permanency of an injury that is objective in character may be established by the testimony of
laypeople where the injury is exhibited to the jury, and its permanency is clearly obvious and of such severity that
its permanency is beyond doubt. 3 Thus, expert testimony is not always necessary, 4 and sufficient weight must
be given to the plaintiff's own testimony as to the permanency of the injuries that he or she sustained. 5
However, where there is nothing from which a layperson can form any well-grounded opinion as to the
permanency of the injury, 6 or where the injury is purely subjective, 7 expert evidence as to the apprehended
consequences must be introduced and especially is expert testimony necessary to establish future pain where it
appears both that the injury is subjective and also that it is of such a nature that laypeople cannot with reasonable
certainty know whether such pain will ensue. 8
Cases:
It is not required for a doctor to testify that he is reasonably certain that the plaintiff would be disabled in the
future in order for a jury to award damages for future disability; all that is required to establish future disability
is that from all the evidence, including the expert testimony, if there be any, it satisfactorily appears that such
disability will occur with reasonable certainty. J.P. v. Carlsbad Unified School District, 232 Cal. App. 4th 323,
181 Cal. Rptr. 3d 286 (4th Dist. 2014).
388.Necessity of expert testimony, 25A C.J.S. Damages 388
[END OF SUPPLEMENT]
Footnotes
R.I.Oliveira v. Jacobson, 846 A.2d 822 (R.I. 2004).
1
Tex.SunBridge Healthcare Corp. v. Penny, 160 S.W.3d 230 (Tex. App. Texarkana 2005).
2
3
4
5
6
7
A.L.R. Library
Necessity of expert testimony on issue of permanence of injury and future pain and suffering, 20 A.L.R.5th 1.
Colo.Sours v. Goodrich, 674 P.2d 995 (Colo. App. 1983).
Haw.Johnson v. Sartain, 46 Haw. 112, 375 P.2d 229 (1962).
Child's testimony
Tex.Durham Transp. Co., Inc. v. Beettner, 201 S.W.3d 859 (Tex. App. Waco 2006).
Wis.Ianni v. Grain Dealers Mut. Ins. Co., 42 Wis. 2d 354, 166 N.W.2d 148 (1969).
OhioKahn v. CVS Pharmacy, Inc., 165 Ohio App. 3d 420, 2006-Ohio-112, 846 N.E.2d 904 (1st Dist. Hamilton
County 2006), petition for discretionary review denied, 109 Ohio St. 3d 1506, 2006-Ohio-2998, 849 N.E.2d 1027
(2006).
Wis.Bourassa v. Gateway Erectors, Inc., 54 Wis. 2d 176, 194 N.W.2d 602 (1972).
End of Document

Damages
Correlation Table
Summary
Scope:
Treated Elsewhere:
1 et seq.
97 to 133
Westlaw Databases
End of Document
Research References, 24 C.J.S. Damages X A Refs.
24 C.J.S. Damages X A Refs.

Damages
X. Proceedings for Assessment
A. Assessment on Default or Interlocutory Judgment
Research References
A.L.R. Library
West's A.L.R. Digest, Damages 193.1 to 204, 210(1)
End of Document

Damages
389. Generally
West's Key Number Digest, Damages 193.1 to 195
A default does not concede the amount of damages; further proceedings are required to determine the
amount of the judgment.
A default does not concede the amount of damages. 1 Thus, where the damages are not for a sum certain, nor
can they be ascertained by mere mathematical calculation, the entry of judgment is not automatically the sum
represented by plaintiff's counsel as the appropriate amount of damages, 2 and the defendant is entitled to a
proceeding to establish the plaintiff's real damages. 3 On the other hand, where the cause of action is such that the
plaintiff is entitled to recover a fixed sum, if anything, 4 or if the amount of his or her damages is ascertainable
by mere calculation, 5 judgment may be entered for the sum demanded or so ascertained.
Unless otherwise controlled by statutes, 6 as, for example, by those provisions of the practice acts and codes
permitting a default to be entered without proof on a verified complaint, 7 evidence must be taken or inquiry made
as to the quantum of damages where the defendant fails to appear, or is in default in pleading, except in those
cases in which the defendant's default admits the amount of the judgment to be taken against him or her. 8 The
mere fact that the defendant is defaulted does not give the plaintiff a right or claim to an assessment of damages
unrelated to liability, 9 and it is improper to allow the plaintiff to assess his or her own unliquidated damages
without reference to any standard or definite basis as would be required by a court. 10
Cases:
That a judgment is entered by default does not abrogate the requirement that the damages awarded be reasonable
and clearly ascertainable. Kraft v. High Country Motors, Inc., 2012 MT 83, 276 P.3d 908 (Mont. 2012).
As a general rule, a defaulted defendant has the right to participate in a trial on damages when the plaintiff's
damages are unliquidated. Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177 (Tex. 2012).
An evidentiary hearing on the issue of damages is not always required in the context of a motion for default
judgment if the damages are liquidated, but where the damages claim is for other than a sum certain, the district
court has an obligation to conduct such hearings and take such evidence as it deems advisable for determining the
damages. Rules Civ.Proc., Rule 55(b)(2). Sewell v. Xpress Lube, 2013 UT 61, 321 P.3d 1080 (Utah 2013).
[END OF SUPPLEMENT]
Footnotes
Mass.Bissanti Design/Build Group v. McClay, 32 Mass. App. Ct. 469, 590 N.E.2d 1169 (1992).
1
Mass.Shafnacker v. Raymond James & Associates, Inc., 425 Mass. 724, 683 N.E.2d 662 (1997).
2
U.S.DirecTV v. Haskell, 344 F. Supp. 2d 761 (D. Me. 2004); Buttnugget Publishing v. Radio Lake Placid, Inc., 2011
3
Copr. L. Dec. P 30112, 2011 WL 3439162 (N.D. N.Y. 2011).
N.Y.Curiale v. Ardra Ins. Co., Ltd., 88 N.Y.2d 268, 644 N.Y.S.2d 663, 667 N.E.2d 313 (1996).
Further proceedings to determine the amount of the judgment, see 397.
Unliquidated damages
Fla.Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So. 2d 662 (Fla. Dist. Ct. App. 3d Dist. 2007).
Ind.Allstate Ins. Co. v. Love, 944 N.E.2d 47 (Ind. Ct. App. 2011).
5
6
7
8
9
10
No supporting documentation
Ark.Volunteer Transport, Inc. v. House, 357 Ark. 95, 162 S.W.3d 456 (2004).
Ark.Rice v. Kroeck, 2 Ark. App. 223, 619 S.W.2d 691 (1981).
Ga.Copelan v. O'Dwyer, 159 Ga. App. 750, 285 S.E.2d 216 (1981).
Double damages
Me.Boucher v. Paradis, 244 A.2d 69 (Me. 1968).
As to the assessment of damages on default or interlocutory judgment by the court or by the clerk or other officer,
see 390, 391.
Ind.Teegardin v. Maver's, Inc., 622 N.E.2d 530 (Ind. Ct. App. 1993).
Waiver
Conn.Bridgeport Singer Emp. Federal Credit Union v. Piczko, 3 Conn. Cir. Ct. 621, 222 A.2d 749 (App. Div. 1966).
Ill.Dewar v. Loy, 248 Ill. App. 396, 1927 WL 4286 (2d Dist. 1927).
Fla.Calder v. McNess, 427 So. 2d 393 (Fla. Dist. Ct. App. 4th Dist. 1983).
Ill.Goczeski v. Horizon Development Corp., 102 Ill. App. 3d 6, 57 Ill. Dec. 500, 428 N.E.2d 1180 (2d Dist. 1981).
Tex.Fitch v. Wilkins Properties, 635 S.W.2d 661 (Tex. App. Fort Worth 1982).
Burden of proving damages, see 398.
N.M.Gallegos v. Franklin, 89 N.M. 118, 547 P.2d 1160 (Ct. App. 1976).
Tex.Harrison v. Dallas Court Reporting College, Inc., 589 S.W.2d 813 (Tex. Civ. App. Dallas 1979).
Ark.Rice v. Kroeck, 2 Ark. App. 223, 619 S.W.2d 691 (1981).
Nev.Kelly Broadcasting Co., Inc. v. Sovereign Broadcast, Inc., 96 Nev. 188, 606 P.2d 1089 (1980).
End of Document
390.Assessment by court, 25A C.J.S. Damages 390

Damages
390. Assessment by court
By virtue of statutory authorization or customary practice, the court may assess damages on the defendant's
default ordinarily where the action is brought for a sum certain.
In many jurisdictions, the court is authorized by statute to assess damages in case of the defendant's default. 1
Either by force of statute or by customary practice, such a procedure is valid ordinarily where the action is brought
for a sum certain or for a sum that may be made certain by computation. 2 In the application of this rule, the court
has dispensed with the jury and assessed the damages in actions on promissory notes. 3
Upon a default judgment being entered, even where the damages are not for a sum certain and cannot be ascertained
by mathematical computation, the judge may be entitled to consider the evidence at trial and the jury's verdict to
determine the appropriate amount of damages. 4
Assessment by court with intervention of jury.

In some jurisdictions, statutes provide that, on rendition of a default judgment, damages shall be assessed by the
court with the intervention of the jury unless cause is shown why there should be no intervention. 5 Such statutes
have been held mandatory and require the intervention of a jury unless cause is shown why there should be no
intervention, and an assessment of damages by the court is invalid where there is nothing to indicate any cause
for the failure of the court to call a jury before making the assessment. 6
Footnotes
Ga.Henry v. Adair Realty Co., 141 Ga. App. 182, 233 S.E.2d 39 (1977).
1
2
Tex.Hughes v. Jones, 543 S.W.2d 885 (Tex. Civ. App. El Paso 1976).
Tex.Freeman v. Leasing Associates, Inc., 503 S.W.2d 406 (Tex. Civ. App. Houston 14th Dist. 1973).
Liquidated claim
Tex.Bluebonnet Financial Assets v. Miller, 324 S.W.3d 603 (Tex. App. El Paso 2010).
390.Assessment by court, 25A C.J.S. Damages 390
4
5
6
Ky.Morehead v. Prather, 2 Ky. 135, Sneed 135, 1802 WL 809 (1802).

Attorney's fees
Although attorney's fees are ordinarily in the nature of unliquidated damages, where a suit was for the principal sum
of a note, interest, and attorney's fees of 15% of the principal and interest as expressly provided in the note, attorney's
fees were a liquidated claim within a statute providing that where a case is in default for more than 15 days, plaintiff's
claim may be tried without a jury unless the suit is for unliquidated damages.
Ga.Young v. John Deere Plow Co., 102 Ga. App. 132, 115 S.E.2d 770 (1960).
Mass.Shafnacker v. Raymond James & Associates, Inc., 425 Mass. 724, 683 N.E.2d 662 (1997).
R.I.Pettis v. Henderson, 91 R.I. 191, 162 A.2d 540 (1960).
R.I.Pettis v. Henderson, 91 R.I. 191, 162 A.2d 540 (1960).
Assessment of damages by jury, generally, see 393.
End of Document
391.Assessment by clerk or other officer, 25A C.J.S. Damages 391

Damages
391. Assessment by clerk or other officer
In various jurisdictions and under certain circumstances, damages may be assessed by a clerk,
prothonotary, auditor, or master.
In many jurisdictions, where the contract provides a definite fixed amount of damages, 1 or where the amount is
for a sum certain or may be determined by mere computation, 2 an assessment may be made by the clerk of the
court or, in some jurisdictions, by the prothonotary. 3 Where the claim is not one for a sum certain or for a sum
that can by computation be made certain, a default judgment cannot properly be entered by the clerk. 4
Where the practice is founded on a statutory provision, it cannot be pursued in cases where the authority is not
given. 5
Assessment by commissioner or auditor.

In some jurisdictions, damages may be assessed by an auditor, assessor, or master appointed by the court. 6
Footnotes
Cal.Landwehr v. Gillette, 174 Cal. 654, 163 P. 1018 (1917).
1
N.Y.Pikulin v. Mikshakov, 258 A.D.2d 450, 684 N.Y.S.2d 598 (2d Dep't 1999).
2
Pa.Watkins v. Phillips, 2 Whart. 209, 1837 WL 3158 (Pa. 1837).
3
4
5
6
Where damages unliquidated

Pa.Fitzpatrick v. Rogers, 75 Pa. Super. 273, 1920 WL 1636 (1920).
Mass.Jackson v. Corley, 1997 Mass. App. Div. 25, 1997 WL 123017 (1997).
Fla.Douglass v. Oemler, 98 Fla. 497, 124 So. 19 (1929).
U.S.Schiedt v. Dimick, 70 F.2d 558 (C.C.A. 1st Cir. 1934), aff'd, 293 U.S. 474, 55 S. Ct. 296, 79 L. Ed. 603, 95
A.L.R. 1150 (1935).
391.Assessment by clerk or other officer, 25A C.J.S. Damages 391
End of Document
392.Assessment by referee, 25A C.J.S. Damages 392

Damages
392. Assessment by referee
In some jurisdictions, the amount of damages may be determined by a referee.
In some jurisdictions, a referee may determine the amount of damages. 1 In the absence of statutory regulations
to the contrary, a referee appointed to assess damages should be treated as a referee to hear and determine rather
than a referee merely to hear and report. 2
Footnotes
Ind.Reilly v. Robertson, 266 Ind. 29, 360 N.E.2d 171 (1977).
1
As to reference to ascertain damages from injunction, see C.J.S., Injunctions 449, 450.
Factual issue precluding reference
N.Y.Dittman v. Martin P. Andrews Inc., 37 A.D.2d 914, 325 N.Y.S.2d 351 (4th Dep't 1971).
Not binding on court

Cal.Cyrus v. Haveson, 65 Cal. App. 3d 306, 135 Cal. Rptr. 246 (2d Dist. 1976).
N.Y.Frank v. Wolfe, 166 Misc. 415, 2 N.Y.S.2d 548 (Sup 1938).
End of Document
393.Assessment by jury, 25A C.J.S. Damages 393

Damages
393. Assessment by jury
Where an assessment of damages involves a controverted question of fact or requires the introduction of
evidence, the assessment ordinarily is to be made by a jury.
Although some courts deny a defendant's continued right to a trial by jury on damages after a default, 1 where
an assessment of damages involves a controverted question of fact or requires the introduction of evidence, it
is ordinarily to be made by a jury. 2 Where the demand is for unliquidated damages and the amount cannot be
determined without passing on and adjudging questions of fact, it is the usual, and in some jurisdictions the
necessary, practice to have the amount determined and assessed by a jury. 3 It is also a well-established practice
in many jurisdictions that the assessment will be made either by a jury or by the court at the option of the plaintiff,
who may state his or her preference by motion at the rendition of the interlocutory judgment. 4 On the other hand,
by statute in some jurisdictions, the defendant may insist on an assessment by a jury. 5 In still other jurisdictions,
a jury trial is required when either party makes an application to the court for such a hearing or on motion of either
party 6 so long as the request is made in due time. 7
Under some authority, the right of either of the parties to demand a jury to assess the damages may be waived
by them and the matter left to the court. 8
Footnotes
U.S.Matter of Dierschke, 975 F.2d 181, 24 Fed. R. Serv. 3d 588 (5th Cir. 1992); Adriana Intern. Corp. v. Thoeren,
1
913 F.2d 1406, 17 Fed. R. Serv. 3d 1006 (9th Cir. 1990); Benz v. Skiba, Skiba & Glomski, 164 F.R.D. 115, 34 Fed.
R. Serv. 3d 765 (D. Me. 1995).
As to constitutional right to jury trial, see C.J.S., Juries 5, 49, 50, 118.
Right only where provided by statute
U.S.Applied Capital, Inc. v. Gibson, 558 F. Supp. 2d 1189 (D.N.M. 2007).
No statutory right
393.Assessment by jury, 25A C.J.S. Damages 393
U.S.Mwani v. Bin Ladin, 244 F.R.D. 20, 69 Fed. R. Serv. 3d 146 (D.D.C. 2007); Manno v. Tennessee Production
Center, Inc., 657 F. Supp. 2d 425 (S.D. N.Y. 2009).
No constitutional right
U.S.Olcott v. Delaware Flood Co., 327 F.3d 1115, 55 Fed. R. Serv. 3d 1235 (10th Cir. 2003).
Ind.Kirk v. Harris, 173 Ind. App. 445, 364 N.E.2d 145 (1977).
Md.Kaplan v. Bach, 36 Md. App. 152, 373 A.2d 71 (1977).
Assessment by court with intervention of jury, see 390.
Answer explicitly disputing plaintiff's claim for damages required
Ga.Diaz v. Wills, 286 Ga. App. 357, 649 S.E.2d 353 (2007).
Ga.Singleton v. Varnedoe, 141 Ga. App. 311, 234 S.E.2d 86 (1977).
Writ of inquiry, see 396.
Statute precluding submission on default
Ga.Tallman Pools of Georgia, Inc. v. Napier, 137 Ga. App. 500, 224 S.E.2d 426 (1976).
4
5
7
8
(1) When plaintiff demands a jury trial, defendant is entitled to a jury trial on unliquidated damages, regardless of
whether a default judgment has been entered against him or her.
U.S.Loos v. Club Paris, LLC, 684 F. Supp. 2d 1328 (M.D. Fla. 2010), on reconsideration in part, (Feb. 16, 2010).
(2) The only time the right to trial by jury hinges on whether damages are liquidated or unliquidated is when a default has
been entered, because a default admits a defendant's liability for liquidated damages, but not for unliquidated damages.
Fla.O'Neal v. Florida A & M University ex rel. Bd. of Trustees for Florida A & M University, 989 So. 2d 6, 236
Ed. Law Rep. 1107 (Fla. Dist. Ct. App. 1st Dist. 2008).
Mo.Sumpter v. J. E. Sieben Const. Co., 492 S.W.2d 150 (Mo. Ct. App. 1973).
S.C.Howard v. Holiday Inns, Inc., 271 S.C. 238, 246 S.E.2d 880 (1978).
Mich.Wood v. Detroit Auto. Inter-Insurance Exchange, 413 Mich. 573, 321 N.W.2d 653 (1982) (holding modified
on other grounds by, Smith v. Khouri, 481 Mich. 519, 751 N.W.2d 472 (2008)).
Contest of amount, generally, see 397.
N.H.Lewellyn v. Follansbee, 94 N.H. 111, 47 A.2d 572 (1946).
Request by defendant
Mo.Picerno v. Nichols-Fox, 205 S.W.3d 883 (Mo. Ct. App. W.D. 2006).
N.H.Lewellyn v. Follansbee, 94 N.H. 111, 47 A.2d 572 (1946).
U.S.Gulf Oil Corp. v. Bill's Farm Center, Inc., 52 F.R.D. 114 (W.D. Mo. 1970).
As to waiver of jury trial, generally, see C.J.S., Juries 169 to 193.
End of Document
394.Condition of cause and time for assessment, 25A C.J.S. Damages 394

Damages
394. Condition of cause and time for assessment
Assessment of damages on a default should not be made while an issue of fact is pending or before the
proper disposition of any pleas made.
It is erroneous to assess the damages, as though on default, while an issue of fact is pending or before the
proper disposition of any pleas made. 1 Where the action is against several jointly, some only of whom plead,
the assessment should also be made against the defaulting parties by the court or jury who tried the issue. 2 The
default of one defendant should be entered before the rendition of judgment against the nondefaulting defendant,
and then on the trial, the judgment, if any, should be entered against both defendants in the first place. 3 If the
parties answering absolve themselves from all liability, damages cannot be assessed against a joint defendant who
has defaulted. 4
Where a defendant does not show either a meritorious defense or an acceptable excuse for default, the plaintiff
is entitled to leave to take an inquest 5 without prejudice to a timely application by the defendant to open the
default on a proper showing. 6
Default in appearance at pretrial hearing.

A plaintiff is not required to move to amend the complaint as a prerequisite to his or her right to take an inquest
where the defendant's answer is struck for failure to appear on a pretrial examination, but he or she may elect
to stand on the original complaint and to proceed with the inquest and recover damages provable under the
allegations of the original complaint. 7 On the other hand, under the particular circumstances of the case, it may be
an improvident exercise of discretion for the court, on its own motion, to direct an inquest because of a defendant's
default in appearing at a pretrial hearing. 8
Time of assessment.
394.Condition of cause and time for assessment, 25A C.J.S. Damages 394
Generally, the entry of default does not prohibit the trial judge from immediately determining the amount of
damages. 9 However, where an assessment of damages is obtained on a default judgment against a garnishee
only a short time after an order of a court dismissing the plaintiff's action is reversed on appeal, in which action
the garnishee appeared but had no opportunity to file its report because of the dismissal, good faith requires the
plaintiff not only to notify the garnishee of the plaintiff's appeal, and of the disposition on appeal, but also to
permit the garnishee a reasonable time thereafter to file its report before proceeding to judgment and assessment
of damages. 10
Cases:
In conjunction with entry of default judgment against Port Authority of New York and New Jersey in action
alleging that worker was injured by exposure to asbestos while working on Port Authority building, trial court
properly awarded damages to plaintiffs without benefit of an inquest on damages, where jury selection had
proceeded as scheduled and trial began, but Port Authority did not appear because its summary judgment motion
was still pending and it believed that court lacked subject matter jurisdiction. McKinney's CPLR 3215(b), (g)(1).
In re New York City Asbestos Litigation, 124 A.D.3d 454, 2015 WL 176236 (1st Dep't 2015).
[END OF SUPPLEMENT]
Footnotes
Ill.Klein v. Wells, 82 Ill. 201, 1876 WL 10171 (1876).
1
2
3
4
5
6
7
8
9
10
Assessment permitted on a severance

N.Y.Gallivan v. Pucello, 38 A.D.2d 876, 329 N.Y.S.2d 211 (4th Dep't 1972).
Mo.Electrolytic Chlorine Co. v. Wallace & Tiernan Co., 328 Mo. 782, 41 S.W.2d 1049, 78 A.L.R. 930 (1931).
As to judgment by default against codefendants, see C.J.S., Judgments 258.
N.Y.Silverberg v. Campana, 5 A.D.2d 848, 170 N.Y.S.2d 952 (2d Dep't 1958).
C.J.S., Judgments 522.
N.Y.Dejmek v. Lite-Vent, Inc., 18 A.D.2d 1107, 239 N.Y.S.2d 855 (2d Dep't 1963).
As to pretrial proceedings, generally, see C.J.S., Trial 31 to 59.
N.Y.Posner v. Cortlandt Recreation Center, Inc., 17 A.D.2d 640, 230 N.Y.S.2d 412 (2d Dep't 1962).
N.C.Ruiz v. Mecklenburg Utilities, Inc., 189 N.C. App. 123, 657 S.E.2d 432 (2008).
Pa.Best TV, Inc. v. Simberg, 390 Pa. 142, 134 A.2d 886 (1957).
End of Document
395.Notice to defendant, 24 C.J.S. Damages 395

Damages
395. Notice to defendant
In some jurisdictions, either by virtue of statute or by rules of practice, notice to the defendant of the
assessment proceedings is necessary though generally, in the absence of statute or rule of court, a defaulting
defendant is not entitled to notice of the assessment of damages.
In the absence of statute or rule of court, 1 and at least where damages are liquidated, 2 a defendant who is in
default for lack of appearance generally is not entitled to notice of assessment of damages 3 or notice of the time
when a writ of inquiry as to damages will be executed. 4 The practice rests on the theory that a defendant who
has not entered an appearance must keep watch and make it his or her business to appear on the assessment of
damages if the defendant would contest the amount thereof. 5
In some jurisdictions, either by virtue of statute or by rules of practice, notice to the defendant of the assessment
proceedings is necessary. 6 In such jurisdictions, a default judgment is limited to the damages of which the
defendants had notice. 7 Thus, where the plaintiff does not give specific notice of the amount of special and general
damages sought to be recovered in the action, the plaintiff is not entitled to default judgment in the amount of
the damages sought. 8 Moreover, by statute, the defendant's insurer may also be entitled to notice prior to any
assessment of damages. 9
Where the defendant is defaulted after an appearance, he or she is generally entitled to notice of the assessment
of damages. 10 However, in some jurisdictions, where the defendant appears but a default judgment is entered
against such defendant for a failure to plead, the plaintiff is not required to provide separate notice to the defendant
of the hearing on damages. 11
Cases:
395.Notice to defendant, 24 C.J.S. Damages 395
When the damages sought by a plaintiff involve damages other than a sum certain or a sum which can by
computation be made certain, a defaulting party who has appeared in the action must be provided notice of the
hearing to determine the amount of unliquidated damages to be assessed. Rules Civ.Proc., Rule 55(b)(2). Lexon
Ins. Co. v. County Council of Berkeley County, 770 S.E.2d 547 (W. Va. 2015).
[END OF SUPPLEMENT]
Footnotes
IowaHansman v. Gute, 215 N.W.2d 339 (Iowa 1974).
1
Fla.Krueger v. Ponton, 6 So. 3d 1258 (Fla. Dist. Ct. App. 5th Dist. 2009).
2
4
5
7
8
9
10
11
Defendant entitled to notice where damages unliquidated

Fla.Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So. 2d 662 (Fla. Dist. Ct. App. 3d Dist. 2007).
Kan.First Nat. Bank in Belleville v. Sankey Motors, Inc., 41 Kan. App. 2d 629, 204 P.3d 1167 (2009).
S.C.Lewis v. Congress of Racial Equality and/or C. O. R. E., Inc., 275 S.C. 556, 274 S.E.2d 287 (1981).
Md.Kaplan v. Bach, 36 Md. App. 152, 373 A.2d 71 (1977).
Tex.Olivares v. Cauthorn, 717 S.W.2d 431 (Tex. App. San Antonio 1986), dismissed, (Dec. 17, 1986).
Foreclosure action
Fla.Zumpf v. Countrywide Home Loans, Inc., 43 So. 3d 764 (Fla. Dist. Ct. App. 2d Dist. 2010).
Ala.Cleveland v. Cleveland, 262 Ala. 90, 77 So. 2d 343 (1955).
Fla.Wilhelm v. South Indian River Co., 98 Fla. 970, 124 So. 729 (1929).
As to presence of parties and attorneys at trial, see C.J.S., Trial 94.
As to right to notice of, and participation in, further proceedings after default, see C.J.S., Judgments 275.
Cal.Van Sickle v. Gilbert, 196 Cal. App. 4th 1495, 127 Cal. Rptr. 3d 542 (3d Dist. 2011).
Tex.Bass v. Duffey, 620 S.W.2d 847 (Tex. Civ. App. Houston 14th Dist. 1981).
A.L.R. Library
Defaulting defendant's right to notice and hearing as to determination of amount of damages, 15 A.L.R.3d 586.
Cal.Schwab v. Rondel Homes, Inc., 53 Cal. 3d 428, 280 Cal. Rptr. 83, 808 P.2d 226 (1991).
Cal.Schwab v. Rondel Homes, Inc., 53 Cal. 3d 428, 280 Cal. Rptr. 83, 808 P.2d 226 (1991).
Mo.Barney v. Suggs, 688 S.W.2d 356 (Mo. 1985).
Fla.Stevenson v. Arnold, 250 So. 2d 270 (Fla. 1971).
Ill.Kaput v. Hoey, 124 Ill. 2d 370, 125 Ill. Dec. 202, 530 N.E.2d 230 (1988).
Mo.Barney v. Suggs, 688 S.W.2d 356 (Mo. 1985).
End of Document
396.Writ of inquiry, 25A C.J.S. Damages 396

Damages
396. Writ of inquiry
The practice in some jurisdictions after default by the defendant is to issue a writ of inquiry to ascertain
unliquidated damages.
A writ of inquiry has been defined as a writ that issues after judgment by default has been entered on an
unliquidated claim, directing the jury to inquire into the amount of the plaintiff's demand and assess his or her
damages. 1 In some jurisdictions, if the cause of action is unliquidated or not proved by an instrument in writing,
the court must hear evidence as to damages and render judgment therefor unless the defendant demands and is
entitled to a trial by jury in which case the judgment by default is noted, a writ of inquiry awarded, and the cause
entered on the jury docket. 2
In some jurisdictions, a procedure substantially similar to the English practice 3 has been followed. 4 Under such
procedure, after judgment is given that the plaintiff recover his or her damages to be assessed, the next step is
the issuance of a writ of inquiry directing that a jury be summoned to ascertain the amount of damages. 5 The
hearing is before the sheriff, 6 and the jury is a special one of 12 men summoned by the sheriff for that particular
purpose. 7 In other jurisdictions, the jury is taken from the regular panel, 8 or an alternative practice is permitted 9
in the discretion of the court. 10
In further variance from the English practice, in some jurisdictions, although a writ of inquiry issues, 11 the inquiry
is made by a jury under instructions from the court, and the verdict is returned into court. 12 Thus, in some
jurisdictions, in the discretion of the court, an application may be granted to have the writ of inquiry executed
before the judge of the court, 13 especially where important questions of law are likely to arise, or the questions of
law and fact are mixed. 14 Such an application will not be granted merely because large damages are claimed. 15
The mere fact that an order awarding inquiry to fix the amount of damages contains surplusage does not affect
the validity of the final judgment. 16
In some jurisdictions, the writ of inquiry has been abolished and replaced by a motion for assessment of
damages. 17
396.Writ of inquiry, 25A C.J.S. Damages 396
Footnotes
Ala.McGowin v. Dickson, 182 Ala. 161, 62 So. 685 (1913).
1
Necessity for writ of inquiry, see 389.
2
3
5
6
7
8
9
10
11
12
13
14
15
16
17
Other definitions
Ill.O'Brien v. Brown, 403 Ill. 183, 85 N.E.2d 685 (1949).
Tex.Bradley Motors, Inc. v. Mackey, 878 S.W.2d 140 (Tex. 1994).
English practice
W.Va.Hickman v. Baltimore & O.R. Co., 30 W. Va. 296, 4 S.E. 654 (1887) (overruled in part on other grounds by,
Richmond v. Henderson, 48 W. Va. 389, 37 S.E. 653 (1900)).
Pa.De Coursey v. Cosner, 103 Pa. Super. 229, 156 A. 544 (1931).
Codification of common law
Kan.Becker v. Roothe, 184 Kan. 830, 339 P.2d 292 (1959).
Assessment usually performed by sheriff
Ill.O'Brien v. Brown, 403 Ill. 183, 85 N.E.2d 685 (1949).
Tenn.Warren v. Kennedy, 48 Tenn. 437, 1 Heisk. 437, 1870 WL 2686 (1870).
N.H.Chase v. Lovering, 27 N.H. 295, 1853 WL 4928 (1853).
Ill.Aetna Ins. Co. v. Phelps, 27 Ill. 71, 1862 WL 3147 (1862).
N.Y.Elsey v. International Ry. Co., 93 A.D. 115, 87 N.Y.S. 28 (4th Dep't 1904).
Tenn.Warren v. Kennedy, 48 Tenn. 437, 1 Heisk. 437, 1870 WL 2686 (1870).
Wis.Lacher v. Will, 6 Wis. 282, 1857 WL 2130 (1857).
Conn.Lennon v. Rawitzer, 57 Conn. 583, 19 A. 334 (1889).
Assessment by court, see 390.
N.Y.Bornstein v. Faden, 84 Misc. 256, 145 N.Y.S. 758 (Sup 1914).
N.J.Dunkel v. Cramer Hill Ferry Co., 61 N.J.L. 208, 41 A. 676 (N.J. Sup. Ct. 1897).
Tenn.Hunter v. Sheppard, 187 Tenn. 99, 213 S.W.2d 19 (1948).
Miss.Journey v. Long, 585 So. 2d 1268 (Miss. 1991).
End of Document
397.Hearing and verdict or finding, 25A C.J.S. Damages 397

Damages
397. Hearing and verdict or finding
Where the claim is not one for a sum certain or for a sum that can by computation be made certain, a
hearing for the assessment of damages is ordinarily required.
A defendant's default in appearing in civil court and answering is generally held to be a default only as to the
issue of liability and not an admission by the defendant that the amount claimed due and owing is correct. 1
Upon default, a question remains as to the amount of damages to which a plaintiff is entitled, 2 and so, a hearing
for the assessment of damages is required 3 at least where the claim is not one for a sum certain or for a sum
that can by computation be made certain. 4 Although there is contrary authority with respect to default as a
discovery sanction, 5 on the hearing of an assessment of damages after default, the court is generally precluded
from reconsidering the issue of liability, 6 and so, the defendant may make no defense to the action, 7 although
he or she has a right to be heard on the matter of damages, 8 and may contest the amount. 9
The defendant may introduce proof to reduce the claim to nominal damages. 10 The defendant may object
to evidence, 11 cross-examine the opposite party's witnesses 12 although not for the purpose of interposing a
defense, 13 and unless statutes prohibit, in most jurisdictions, the defendant may introduce witnesses in his or her
own behalf, 14 ask instructions of the court concerning the law, 15 participate in selecting a jury, 16 and move for
a new trial and by a bill of exceptions reserve any questions affecting the damages. 17
Where the defendant refrains from offering evidence at the hearing, the risk of uncertainty as to the amount of
damages to be awarded is cast on him or her as the wrongdoer. 18
Cases:
Defendant against whom default judgment on liability was entered as death-penalty sanction for discovery
violations had right to participate in trial of plaintiff's unliquidated damages claims; barring defaulted defendant
from participation in damages trial served no purpose other than punishment and thus was more severe sanction
than necessary. Vernon's Ann.Texas Rules Civ.Proc., Rule 215.2(b)(5). Paradigm Oil, Inc. v. Retamco Operating,
Inc., 372 S.W.3d 177 (Tex. 2012).
[END OF SUPPLEMENT]
Footnotes
D.C.Luna v. A.E. Engineering Services, LLC, 938 A.2d 744 (D.C. 2007).
1
N.Y.Collins Financial Services v. Vigilante, 30 Misc. 3d 908, 915 N.Y.S.2d 912 (N.Y. City Civ. Ct. 2011).
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
When damages are unliquidated, a default is not an admission of the amount of damages claimed, which then becomes
a matter of proof.
Mo.Court of 5 Gardens Condominium Ass'n v. 10330 Old Drive, LLC, 326 S.W.3d 834 (Mo. Ct. App. E.D. 2010).
Ark.Jones v. McGraw, 374 Ark. 483, 288 S.W.3d 623 (2008).
N.C.Luke v. Omega Consulting Group, LC, 194 N.C. App. 745, 670 S.E.2d 604 (2009).
Inquiry of plaintiff's counsel; testimony of plaintiff
The trial court erred, when entering a default judgment in an action arising from a boundary dispute, in simply endorsing
plaintiff's motion to assess damages as "allowed in the (amounts) set forth in (plaintiff's) affidavit" and was required
instead to conduct some type of hearing on damages at least to the extent of an inquiry of the plaintiff's counsel
concerning the basis for the damages claimed and perhaps to hear testimony from plaintiff herself.
Mass.Hermanson v. Szafarowicz, 457 Mass. 39, 927 N.E.2d 982 (2010).
N.Y.Pikulin v. Mikshakov, 258 A.D.2d 450, 684 N.Y.S.2d 598 (2d Dep't 1999).
Fundamental defect
When the defaulting party, following the entry of a default as a discovery sanction, identifies a fundamental defect in
the nonoffending party's case, it would be an abuse of discretion for the district court at the prove-up hearing to preclude
the defaulting party from presenting evidence to challenge the claim, especially when the nonoffending party seeks
monetary damages without demonstrating entitlement to the relief sought or that the damages award is reasonable and
accords with the principles of due process.
Nev.Foster v. Dingwall, 227 P.3d 1042, 126 Nev. Adv. Op. No. 6 (Nev. 2010).
Md.Sullivan v. Miller, 26 Md. App. 189, 337 A.2d 185 (1975).
N.C.Decker v. Homes, Inc./Construction Management & Financial Group, 187 N.C. App. 658, 654 S.E.2d 495
(2007).
As to operation and effect of default and judgment, see C.J.S., Judgments 272 to 275.
Conn.Kloter v. Carabetta Enterprises, Inc., 186 Conn. 460, 442 A.2d 63 (1982).
S.C.McEachern v. Poston, 273 S.C. 122, 254 S.E.2d 796 (1979).
Ga.Morgan v. Consolidated Credit Corp., 117 Ga. App. 89, 159 S.E.2d 483 (1968).
Tex.Helfman Motors, Inc. v. Stockman, 616 S.W.2d 394 (Tex. Civ. App. Fort Worth 1981), writ refused n.r.e., (Oct.
28, 1981).
Ind.Stewart v. Hicks, 182 Ind. App. 308, 395 N.E.2d 308 (1979).
Va.Chappell v. Smith, 208 Va. 272, 156 S.E.2d 572 (1967).
N.Y.Glove City Amusement Co. v. Smalley Chain Theatres, 167 Misc. 603, 4 N.Y.S.2d 397 (Sup 1938).
Va.Chappell v. Smith, 208 Va. 272, 156 S.E.2d 572 (1967).
Ga.Williams v. Linn, 108 Ga. App. 629, 133 S.E.2d 892 (1963).
Ind.Carson v. Perkins, 217 Ind. 543, 29 N.E.2d 772 (1940).
18
N.J.Interchemical Corp. v. Uncas Printing & Finishing Co., 39 N.J. Super. 318, 120 A.2d 880 (App. Div. 1956).
End of Document
398.Hearing and verdict or findingEvidence, 25A C.J.S. Damages 398

Damages
398. Hearing and verdict or findingEvidence
On a hearing of an assessment of damages after default, the general rules relating to evidence ordinarily
control.
In connection with the assessment of damages after default, while there is authority for a more liberal rule, 1
the weight of authority is that both parties must confine themselves to such questions of damage and matters of
aggravation or mitigation as are authorized by the pleadings; 2 since the default admits a cause of action, proof
thereof need not be offered, 3 and the plaintiff ordinarily is entitled to nominal damages without introducing
evidence. 4 The plaintiff's petition is not, however, to be taken as true, and if he or she would recover an amount
larger than nominal damages, the plaintiff must prove it. 5
Since an allegation of damage is not a traversable allegation, a defaulting defendant who admits all traversable
allegations in the complaint does not admit the plaintiff's conclusion of damages and may, at the damages
inquest, offer proof in mitigation of damages involving circumstances intrinsic to the transactions at issue in the
complaint. 6 Indeed, the plaintiff and the defendant both have the right to introduce evidence as to the amount of
damages and both have the right to except to the amount thereof. 7 Generally speaking, all evidence conforming to
the pleadings and tending to show the amount of the demand or matters in aggravation of the injury is admissible. 8
Evidence of matters that would have constituted a good plea in bar to the cause of action is generally held to be
inadmissible 9 while under like limitations, evidence tending to mitigate or reduce the damages is admissible on
behalf of the defendant. 10 He or she may introduce proof to reduce the claim to nominal damages. 11 It may
happen that evidence that might, if used, have been available to prevent a judgment may after judgment be available
to reduce the damages to a mere nominal sum. 12 Evidence in support of a setoff pleaded is inadmissible. 13
There must be evidence to support an award of damages in a default judgment. 14 Conduct sufficient to warrant
punitive damages is not regarded as admitted by default. 15
Footnotes
1
Defendant not precluded from raising defense

The entry of default does not preclude a defendant from raising a defense at the hearing in damages; if timely written
notice is furnished to the plaintiff, the defendant may offer evidence contradicting any allegation of the complaint, or
the defendant may also challenge the right of the plaintiff to maintain the action or prove any matter of defense.
Conn.Peterson v. Woldeyohannes, 111 Conn. App. 784, 961 A.2d 475 (2008).
Vt.Lyman v. James, 87 Vt. 486, 89 A. 932 (1914).
Allegations of complaint taken as at least undenied
N.Y.James v. Powell, 26 A.D.2d 525, 270 N.Y.S.2d 789 (1st Dep't 1966).
Evidence to defeat cause of action not admissible
Ark.Vent v. Johnson, 2009 Ark. 92, 303 S.W.3d 46, 254 Ed. Law Rep. 411 (2009).
Evidence going to proximate causation not admissible
Ark.Jones v. McGraw, 374 Ark. 483, 288 S.W.3d 623 (2008).
4
5
6
7
8
9
10
Measure of damages
A defendant legally in default is precluded from offering evidence to prove that the measure of damages elected by
plaintiffs is erroneous.
Ga.Hester v. Love, 84 Ga. App. 765, 67 S.E.2d 481 (1951).
IowaHallett Const. Co. v. Iowa State Highway Commission, 261 Iowa 290, 154 N.W.2d 71 (1967).
As to operation and effect of default, see C.J.S., Judgments 272 to 275.
Evidence of cause of injury not required
Mont.Delaney & Co. v. City of Bozeman, 2009 MT 441, 354 Mont. 181, 222 P.3d 618 (2009).
Ark.Clark v. Collins, 213 Ark. 386, 210 S.W.2d 505 (1948).
Nominal damages in absence of proof of actual damage, generally, see 24.
Ga.Ben Hyman & Co. v. Solow, 101 Ga. App. 249, 113 S.E.2d 489 (1960).
OhioAmerican Bankers Ins. Co. of Fla. v. Leist, 117 Ohio App. 20, 22 Ohio Op. 2d 455, 189 N.E.2d 456 (4th Dist.
Pike County 1962).
Necessity for assessment of damages on default, see 389.
Past medical expenses
Tex.Whitaker v. Rose, 218 S.W.3d 216 (Tex. App. Houston 14th Dist. 2007).
N.Y.Amusement Business Underwriters, a Div. of Bingham & Bingham, Inc. v. American Intern. Group, Inc., 66
N.Y.2d 878, 498 N.Y.S.2d 760, 489 N.E.2d 729 (1985).
Ga.Ben Hyman & Co. v. Solow, 101 Ga. App. 249, 113 S.E.2d 489 (1960).
Tex.Maywald Trailer Co. v. Perry, 238 S.W.2d 826 (Tex. Civ. App. Galveston 1951), writ refused n.r.e.
Ark.Kohlenberger, Inc. v. Tyson's Foods, Inc., 256 Ark. 584, 510 S.W.2d 555, 14 U.C.C. Rep. Serv. 1281 (1974).
Ill.612 North Michigan Ave. Bldg. Corp. v. Factsystem, Inc., 54 Ill. App. 3d 749, 12 Ill. Dec. 613, 370 N.E.2d 236
(1st Dist. 1977).
Ark.Ferri v. Braun, 236 Ark. 329, 366 S.W.2d 286 (1963).
Fla.Ries v. Ries, 984 So. 2d 612 (Fla. Dist. Ct. App. 4th Dist. 2008).
Right to introduce mitigation evidence
Ark.Vent v. Johnson, 2009 Ark. 92, 303 S.W.3d 46, 254 Ed. Law Rep. 411 (2009).
11
Comparative negligence
U.S.In re Game Tracker, Inc., 799 F. Supp. 2d 102 (D. Me. 2011), aff'd, 2011 WL 4025710 (D. Me. 2011).
Conn.Cardona v. Valentin, 160 Conn. 18, 273 A.2d 697 (1970).
N.Y.23rd St. Properties v. New York Merchandise Co., Inc., 51 A.D.2d 703, 380 N.Y.S.2d 17 (1st Dep't 1976).
12
13
14
15
IowaHallett Const. Co. v. Iowa State Highway Commission, 261 Iowa 290, 154 N.W.2d 71 (1967).
Mass.Barnes v. Squier, 193 Mass. 21, 78 N.E. 731 (1906).
Ark.Ferri v. Braun, 236 Ark. 329, 366 S.W.2d 286 (1963).
U.S.Matter of Gober, 100 F.3d 1195 (5th Cir. 1996).
End of Document
399.Hearing and verdict or findingInstructions, 25A C.J.S. Damages 399

Damages
399. Hearing and verdict or findingInstructions
Instructions to the jury are properly limited to the issue of damages suffered.
Where an assessment of damages is ordered, the court must limit instructions to the jury to the issue of damages
suffered. 1 The court may properly charge the jury that they are not to be concerned with questions relating to
the defendant's liability. 2
Footnotes
N.J.Smith v. White, 125 N.J.L. 498, 16 A.2d 628 (N.J. Ct. Err. & App. 1940).
1
Measure of damages
Tenn.Walker v. Decora, Inc., 225 Tenn. 504, 471 S.W.2d 778, 9 U.C.C. Rep. Serv. 1205 (1971).
Conn.Automotive Twins, Inc. v. Klein, 138 Conn. 28, 82 A.2d 146 (1951).
End of Document
Research References, 25A C.J.S. Damages X B Refs.
25A C.J.S. Damages X B Refs.

Damages
B. Physical or Mental Examination of Person Injured
Research References
A.L.R. Library
West's A.L.R. Digest, Damages 206(.5) to 206(8)
End of Document
400.Power to order; judicial discretion, 25A C.J.S. Damages 400

Damages
400. Power to order; judicial discretion
West's Key Number Digest, Damages 206(.5), 206(1)
Generally, the courts are regarded as having inherent power to order a physical examination of an injured
person for the purpose of determining the nature and extent of personal injuries although there is some
authority to the contrary.
Generally, it is within the inherent power of the court, in an action for damages for personal injuries, to require
the injured person to submit to a physical examination for the purpose of determining the extent of the injury, 1
especially in the case of latent injuries the extent of which can be correctly ascertained only through an examination
by experts. 2 On the other hand, some courts have held that, in the absence of a statutory requirement to the
contrary, an injured litigant cannot be compelled to submit to an examination by his or her adversary or even by
an impartial examiner 3 unless the plaintiff consents thereto 4 or unless the authority is conferred by statute or by
rules of procedure. The inherent power of the court to order an examination is not necessarily excluded by a statute
conferring power, especially where the statute differs in essential respects from the rule of inherent power. 5
While there is some authority to the effect that an examination must be awarded as a matter of right, 6 the weight
of authority is to the effect that, in the absence of statute, the matter rests in the sound discretion of the trial court
that is to be exercised in the furtherance of justice, 7 and each case is governed largely by its own facts. 8
Statutory regulations and court rules.

The question of physical or mental examination of the plaintiff in actions for damages is the subject of specific
statutory enactment, rule of court, or rule of civil procedure in various jurisdictions, 9 including some jurisdictions
in which the inherent power of the court to order an examination has been recognized. 10 In the federal courts,
the practice is permitted by the Federal Rules of Civil Procedure. 11 Such statutes and rules have been held to
be constitutional. 12
Statutes and rules providing for physical or mental examination of the plaintiff in actions for damages are not
mandatory, 13 and whether an order for an examination shall be granted or denied is within the discretion of the
court, 14 taking into consideration the individual facts and circumstances of each case. 15 This discretion must
be reasonably exercised. 16 Where the power to order an examination is statutory only, such power may not be
extended beyond the terms of the statute. 17
Examination after voluntary exhibition to jury.

Where the plaintiff may exhibit the injured portion or members of his or her body to the jury for the purpose of
showing the extent of his or her injuries, 18 by voluntarily doing so, the plaintiff may confer on the defendant a
right to require a further physical examination of them. 19
Footnotes
Fla.Gasparino v. Murphy, 352 So. 2d 933 (Fla. Dist. Ct. App. 2d Dist. 1977).
1
Ill.Morrison v. Pickett, 103 Ill. App. 3d 643, 59 Ill. Dec. 636, 432 N.E.2d 2 (1st Dist. 1981).
N.Y.Lapera v. Shafron, 159 A.D.2d 614, 552 N.Y.S.2d 668 (2d Dep't 1990).
As to physical examination, generally, see C.J.S., Discovery 160 to 162.
As to examination of person or demonstration of injuries during trial, see C.J.S., Trial 115.
As to physical examination in federal courts, see C.J.S., Federal Civil Procedure 733 to 736.
Mental examination
Cal.Whitfield v. Superior Court for Los Angeles County, 246 Cal. App. 2d 81, 54 Cal. Rptr. 505 (2d Dist. 1966).
Minn.Haynes v. Anderson, 304 Minn. 185, 232 N.W.2d 196 (1975).
2
3
4
5
6
7
Actions in contract
Mo.State ex rel. St. Louis Public Service Co. v. McMullan, 297 S.W.2d 431, 62 A.L.R.2d 1281 (Mo. 1956).
Okla.Witte v. Fullerton, 1962 OK 211, 376 P.2d 244 (Okla. 1962).
Tex.Gragg v. Williams, 310 S.W.2d 394 (Tex. Civ. App. Fort Worth 1958).
Tex.Texas & N. O. R. Co. v. Broadway, 345 S.W.2d 814 (Tex. Civ. App. Beaumont 1961).
IowaBowman v. City of Davenport, 243 Iowa 1135, 53 N.W.2d 249, 63 A.L.R.2d 853 (1952).
Cal.Reuter v. Superior Court, 93 Cal. App. 3d 332, 155 Cal. Rptr. 525 (4th Dist. 1979).
Fla.Chorak v. Naughton, 409 So. 2d 35 (Fla. Dist. Ct. App. 2d Dist. 1981).
IowaMcQuillen v. City of Sioux City, 306 N.W.2d 789 (Iowa 1981).
Examination properly denied
Minn.Ossenfort v. Associated Milk Producers, Inc., 254 N.W.2d 672 (Minn. 1977).
N.J.Duprey v. Wager, 186 N.J. Super. 81, 451 A.2d 416 (Law Div. 1982).
8
9
Examination improperly denied

Minn.Wasmund v. Nunamaker, 277 Minn. 52, 151 N.W.2d 577 (1967).
N.Y.Rothberg v. Justus, 31 A.D.2d 845, 298 N.Y.S.2d 113 (2d Dep't 1969).
N.Y.Bilhorn v. Lipman, 69 A.D.2d 1018, 416 N.Y.S.2d 450 (4th Dep't 1980).
Ill.Krasnow v. Bender, 78 Ill. 2d 42, 34 Ill. Dec. 315, 397 N.E.2d 1381 (1979).
N.Y.Schussheim v. Beam's Drug Corp., 45 A.D.2d 1047, 358 N.Y.S.2d 30 (2d Dep't 1974).
Intention of Supreme Court
Tex.C. E. Duke's Wrecker Service, Inc. v. Oakley, 526 S.W.2d 228 (Tex. Civ. App. Houston 1st Dist. 1975), writ
refused n.r.e.
Scope of examination
10
11
12
13
14
15
16
17
18
19
N.Y.Jakubowski v. Lengen, 86 A.D.2d 398, 450 N.Y.S.2d 612 (4th Dep't 1982).
Cal.Harabedian v. Superior Court In and For Los Angeles County, 195 Cal. App. 2d 26, 15 Cal. Rptr. 420, 89
A.L.R.2d 994 (2d Dist. 1961).
Use of procedure discretionary with counsel
Ga.Bradford v. Parrish, 111 Ga. App. 167, 141 S.E.2d 125 (1965).
C.J.S., Federal Civil Procedure 733 to 736.
U.S.Falstaff Brewing Corp. v. Iowa Fruit & Produce Co., 112 F.2d 101 (C.C.A. 8th Cir. 1940).
Ark.Mallet v. Brannon, 243 Ark. 898, 423 S.W.2d 880 (1968).
Ga.Everett v. Goodloe, 268 Ga. App. 536, 602 S.E.2d 284 (2004).
La.Daigle v. City of Shreveport, 46-429 La. App. 2 Cir. 10/5/11, 2011 WL 4580557 (La. Ct. App. 2d Cir. 2011).
N.Y.Chaudhary v. Gold, 83 A.D.3d 477, 921 N.Y.S.2d 219 (1st Dep't 2011).
La.Granger v. Montgomery Ward & Co., Inc., 408 So. 2d 320 (La. Ct. App. 3d Cir. 1981), writ denied, 412 So.
2d 1097 (La. 1982).
N.Y.Oakman v. Memmoli, 129 N.Y.S.2d 31 (Sup 1954).
Interference with medical decision not authorized
La.Viator v. Sonnier, 355 So. 2d 1091 (La. Ct. App. 3d Cir. 1978).
C.J.S., Evidence 1063, 1064.
Miss.Reid v. Middleton, 241 Miss. 324, 130 So. 2d 554 (1961).
As to examination of person or demonstration of injuries during trial, see C.J.S., Trial 115.
End of Document
401.Purpose and grounds, 25A C.J.S. Damages 401

Damages
401. Purpose and grounds
The purpose of a physical examination of the person injured is to supply reliable evidence at the trial and
to enable the court to obtain, as nearly as possible, the exact and full truth concerning the matter.
The practice in personal injury cases is to attempt to narrow down the areas of medical dispute, 1 and the aim is,
ultimately, with the assistance of the medical profession, to eliminate most of the controversy 2 or uncertainty 3
concerning the medical aspects of the case, prevent fraud and imposition, 4 and permit the preparation of an
intelligent and informed defense; 5 this reveals the exact and full truth concerning matters in controversy in order
that the court may bestow on litigants equal and exact justice. 6
For a physical examination to be appropriate, the physical condition of the party must be in controversy, 7 and
there must be good cause to issue such an order 8 as where the plaintiff brings a negligence action and asserts
a physical injury 9 or alleges unusually severe emotional distress giving rise to physical manifestations. 10 Such
an examination ordinarily should be allowed where the ends of justice seem to demand it. 11 The application for
an examination should be refused where it would be calculated to impair the plaintiff's health 12 or to injure him
or her or to cause serious pain. 13 An examination of the plaintiff in a personal injury case cannot be allowed
merely to obtain cumulative evidence. 14 The purpose of such examination is not to provide the defendant with a
quantity of evidence or of witnesses 15 or to give the defendant a tactical advantage or to place the plaintiff at any
disadvantage. 16 Moreover, it is not the purpose of the examination procedure needlessly to harass a litigant, 17
to create a final arbiter of medical disputes, 18 or to provide a new way of settling conflicts between medical
witnesses. 19
On the other hand, an order directing an examination should be denied only where compulsion would be
unreasonable. 20 Where an injury is not apparent and its existence in fact is disputed, it is an abuse of discretion
to allow the plaintiff to testify to the injury and to its permanent character without allowing other competent and
specially skilled witnesses to make an examination and to demonstrate, if they are able, that there is in fact no
injury. 21
Severity of mental injury required for mental examination.

A mere routine allegation of damages for emotional distress does not place the party's mental condition in
controversy for purposes of a rule allowing a party to be compelled to submit to a mental examination as part of
discovery; the plaintiff must assert or the defendant must show a mental injury that exceeds the common emotional
reaction to an injury or loss. 22
Cases:
Constitutionally-based privacy concerns require that psychological examinations be ordered only when the party
to be examined has put his or her physical or mental condition at issue, and when there is good cause for the
examination. Rules Civ.Proc., Rule 35; Const. Art. 2, 10. Lewis v. Montana Eighth Judicial Dist. Court, 2012
MT 200, 366 Mont. 217, 286 P.3d 577 (2012).
[END OF SUPPLEMENT]
Footnotes
N.Y.Jenkins v. 312 West 121st St. Inc., 30 A.D.2d 937, 293 N.Y.S.2d 875 (1st Dep't 1968).
1
N.Y.Milam v. Mitchell, 51 Misc. 2d 948, 274 N.Y.S.2d 326 (Sup 1966).
2
3
4
5
6
7
9
10
11
Tex.C. E. Duke's Wrecker Service, Inc. v. Oakley, 526 S.W.2d 228 (Tex. Civ. App. Houston 1st Dist. 1975), writ
refused n.r.e.
Mo.State ex rel. Carter v. City of Independence, 272 S.W.3d 371 (Mo. Ct. App. W.D. 2008).
Del.Bowing v. Delaware Rayon Co., 38 Del. 206, 190 A. 567 (Super. Ct. 1937).
Ill.Washburn v. Terminal R. R. Ass'n of St. Louis, 114 Ill. App. 2d 95, 252 N.E.2d 389 (5th Dist. 1969).
Mo.Ratcliff v. Sprint Missouri, Inc., 261 S.W.3d 534 (Mo. Ct. App. W.D. 2008).
Levelling the playing field
Fla.GEICO General Ins. Co. v. Berner, 971 So. 2d 929 (Fla. Dist. Ct. App. 3d Dist. 2007).
Ky.Metropolitan Property & Cas. Ins. Co. v. Overstreet, 103 S.W.3d 31 (Ky. 2003).
Mo.State ex rel. Carter v. City of Independence, 272 S.W.3d 371 (Mo. Ct. App. W.D. 2008).
Fla.Dominique v. Yellow Freight System, Inc., 642 So. 2d 594 (Fla. Dist. Ct. App. 4th Dist. 1994).
Ky.Combs v. Stortz, 276 S.W.3d 282 (Ky. Ct. App. 2009).
Required showing
For purposes of the good-cause requirement of the discovery rule governing orders to submit to physical or mental
examination, "good cause" requires a showing that the examination could adduce specific facts relevant to the cause
of action and is necessary to defendant's case.
Ind.Stuff v. Simmons, 838 N.E.2d 1096 (Ind. Ct. App. 2005).
Discrimination
U.S.Green v. Michigan Dept. of Natural Resources, 2009 WL 1883532 (E.D. Mich. 2009).
12
13
14
15
16
17
18
19
20
21
22
Ky.Conley v. Jennings, 296 Ky. 652, 178 S.W.2d 185 (1944).

Surgical examination
Courts in personal injury cases should exercise discretion in granting only ordinary physical examinations as
distinguished from surgical examinations.
OhioRoskovics v. Ashtabula Water Works Co., 16 Ohio Op. 2d 297, 86 Ohio L. Abs. 251, 174 N.E.2d 295 (C.P.
1961).
Or.Carnine v. Tibbetts, 158 Or. 21, 74 P.2d 974 (1937).
Tenn.Richardson v. Johnson, 60 Tenn. App. 129, 444 S.W.2d 708 (1969).
1961).
La.Granger v. Montgomery Ward & Co., Inc., 408 So. 2d 320 (La. Ct. App. 3d Cir. 1981), writ denied, 412 So.
2d 1097 (La. 1982).
Wash.Titus v. City of Montesano, 106 Wash. 608, 181 P. 43 (1919).
N.Y.Adlerstein v. South Nassau Communities Hospital, 109 Misc. 2d 158, 439 N.Y.S.2d 605 (Sup 1981).
Va.Virginia Linen Service, Inc. v. Allen, 198 Va. 700, 96 S.E.2d 86 (1957).
Ark.Mutual Life Ins. Co. of New York v. Phillips, 200 Ark. 77, 137 S.W.2d 910 (1940).
Ind.Stuff v. Simmons, 838 N.E.2d 1096 (Ind. Ct. App. 2005).
End of Document
402.Persons who may be examined, 25A C.J.S. Damages 402

Damages
402. Persons who may be examined
Persons not parties to the action may be required, under certain circumstances, to submit to a physical
examination.
In a proper case, the court, under its inherent power, may order that a person who is not a party to the action submit
to a physical examination. 1 In a husband's suit for consequential damages resulting from personal injuries to the
wife, the court, under its inherent power, may order the physical examination of the wife. 2
Various statutes and rules of court have been construed as allowing an injured person, not a party to the action,
to be examined. 3
Footnotes
1
2
3
Inherent power of court to order examination, generally, see 400.

N.Y.Commissioners of State Ins. Fund v. Shirley Herman Co., 10 Misc. 2d 67, 171 N.Y.S.2d 336 (Sup 1958).
Father's action for injuries to child
Under rule of court, a father, suing for medical and hospital expenses and loss of services and earnings of an infant
allegedly resulting from an automobile accident, was required on defendant's motion to submit the child for examination
by a neurologist even though the infant was not a party to the action.
N.J.Friedrichsen v. Niemotka, 71 N.J. Super. 398, 177 A.2d 58 (Law Div. 1962).
End of Document
403.Successive examinations, 25A C.J.S. Damages 403

Damages
403. Successive examinations
Where the court is authorized to order a physical examination of the person injured, a second or further
examination may be ordered if necessary.
Where the court is empowered to order a physical examination of the person injured, 1 it may order further
examinations if it deems them advisable. 2 However, repetitive and harassing physical examinations are to be
discouraged. 3 An application for a second or further examination may be properly refused in the absence of a
showing of the necessity therefor 4 as where the circumstances do not indicate that the previous examination was
inadequate 5 or that additional expert testimony will be materially helpful. 6 The trial court is not obliged to order
a reexamination whenever there is an alleged change in the plaintiff's condition or every time a case is retried. 7
A second or further examination may be permitted in unusual circumstances 8 as where a single examination may
not be sufficient adequately to inform the defendant of the permanency of the disease or injury. 9 An additional
examination should be granted where it appears that the nature of the claimed injury is such that the results of
an additional examination may be of great assistance in reaching a just disposition of the cause 10 and where the
plaintiff would not be unduly burdened 11 or prejudiced 12 thereby.
The defendant may be entitled to a physical examination of the plaintiff notwithstanding the fact that his or her
codefendant has already been afforded the same relief and that the codefendant's physician's report will be made
available to the defendant. 13
Footnotes
400.
1
2
Okla.Farr v. VanMeter, 1970 OK 231, 478 P.2d 896 (Okla. 1970).
After amendment of complaint
403.Successive examinations, 25A C.J.S. Damages 403
N.Y.Streit v. Parker, 94 Misc. 2d 295, 404 N.Y.S.2d 308 (Sup 1978).
3
4
5
6
7
8
9
10
11
12
13
Party seeking further examination must demonstrate necessity

N.Y.Rinaldi v. Evenflo Co., Inc., 62 A.D.3d 856, 881 N.Y.S.2d 104 (2d Dep't 2009).
N.Y.Habersham v. Grimaldi, 18 A.D.2d 615, 234 N.Y.S.2d 599 (1st Dep't 1962).
Ariz.Dykeman v. Ashton, 8 Ariz. App. 327, 446 P.2d 26 (1968).
Fla.LeFave v. Bordonaro, 975 So. 2d 470 (Fla. Dist. Ct. App. 2d Dist. 2007).
N.Y.Tucker v. Bay Shore Storage Warehouse, Inc., 69 A.D.3d 609, 893 N.Y.S.2d 138 (2d Dep't 2010).
N.Y.Tucker v. Bay Shore Storage Warehouse, Inc., 69 A.D.3d 609, 893 N.Y.S.2d 138 (2d Dep't 2010).
Colo.Hildyard v. Western Fasteners, Inc., 33 Colo. App. 396, 522 P.2d 596 (App. 1974).
Ill.Taylor v. City of Chicago, 28 Ill. App. 3d 962, 329 N.E.2d 506 (1st Dist. 1975).
Ga.Southern Grocery Stores v. Cain, 54 Ga. App. 48, 187 S.E. 250 (1936).
Ark.Mallet v. Brannon, 243 Ark. 898, 423 S.W.2d 880 (1968).
N.Y.Muscolino v. Protective Loan Corp., 68 Misc. 2d 994, 328 N.Y.S.2d 463 (Sup 1971).
1961).
N.Y.Arroyo v. City of New York, 86 A.D.2d 521, 445 N.Y.S.2d 753 (1st Dep't 1982).
N.Y.Habersham v. Grimaldi, 18 A.D.2d 615, 234 N.Y.S.2d 599 (1st Dep't 1962).
N.Y.Horowitz v. Paneth, 219 N.Y.S.2d 286 (Sup 1961).
N.Y.Rivers v. Duncan, 202 Misc. 549, 116 N.Y.S.2d 615 (Sup 1952).
End of Document
404.Persons making examination, 25A C.J.S. Damages 404

Damages
404. Persons making examination
Unless otherwise controlled by statute or rule, the selection of a particular physician to conduct an
examination of the injured person is within the discretion of the court.
Unless a statute, rule of court, or rule of civil procedure otherwise expressly provides, 1 as a rule, the selection
of the physicians by whom the examination shall be made is within the discretion of the trial judge. 2 While
neither party has any right by suggestion, motion, or otherwise to control the judge's discretion in any degree, 3
the physicians suggested by the plaintiff or defendant may be selected if they are, in the opinion of the court,
proper persons to make the examination. 4 Some authority goes further, stating that the choice of the examining
physician generally belongs to the defendant 5 and that a defendant wishing to conduct a mental examination of
a plaintiff whose mental condition is in controversy has the right to choose its own examiner. 6
The court, however, should appoint disinterested experts. 7 They should be selected from within the territorial
limits of the jurisdiction of the court 8 at least where the circumstances of the case and the injuries involved therein
are of such a nature that competent physicians and surgeons are available within the jurisdiction of the court. 9
Where the selection of a physician is within the discretion of the trial court, the plaintiff cannot be compelled to
submit to an examination by a physician selected by the defendant. 10 A personal injury plaintiff's objection to a
particular physician must be honored even in the absence of a good reason. 11 A court rule permitting a court to
compel an individual to submit to an independent medical examination when that party puts his or her physical or
mental condition at issue does not empower a defendant to seek out and employ the most favorable "hired gun"
available no matter the inconvenience to the plaintiff and without regard to the plaintiff's rights. 12
Although a plaintiff may challenge a defendant's choice of an examining physician, the challenge must be based
upon a claim of bias against the plaintiff or his or her attorney by the designated examining physician or prejudice
against the plaintiff if that examining physician is allowed to testify at trial. 13
Status of physician appointed.

A physician appointed by the court to make an examination is an officer thereof, 14 and not an agent of either
party, 15 notwithstanding that the defendant is ordered to pay for the examination. 16 However, it has been held
that when the physician gives evidence for the defendant, he or she becomes a witness for the defendant. 17
Second examination.
Where a second examination is allowed, the court may require that such examination be conducted by the same
doctor who conducted the first one. 18
Footnotes
1
No examination by someone other than physician

N.Y.D'Amico v. Manufacturers Hanover Trust Co., 182 A.D.2d 462, 581 N.Y.S.2d 790 (1st Dep't 1992).
Cal.Edwards v. Superior Court, 16 Cal. 3d 905, 130 Cal. Rptr. 14, 549 P.2d 846 (1976).
Mo.State ex rel. McCloud v. Seier, 567 S.W.2d 127 (Mo. 1978).
Discretion held abused
OhioMobberly v. Sears, Roebuck & Co., 4 Ohio App. 2d 126, 33 Ohio Op. 2d 188, 211 N.E.2d 839 (5th Dist. Stark
County 1965).
3
4
Rehabilitation counselor not physician

La.Webb v. Insurance Co. of North America, 396 So. 2d 508 (La. Ct. App. 3d Cir. 1981).
Ariz.Martin v. Superior Court In and For Maricopa County, 104 Ariz. 268, 451 P.2d 597, 33 A.L.R.3d 1005 (1969).
N.Y.Davis v. S. Klein on the Square, Inc., 35 Misc. 2d 981, 231 N.Y.S.2d 460 (Sup 1962).
Or.Bridges v. Webb, 253 Or. 455, 455 P.2d 599 (1969).
Suggestion by plaintiff
Colo.Timpte v. District Court In and For City and County of Denver, 161 Colo. 309, 421 P.2d 728 (1966).
Suggestion by defendant
Objection of adverse party
Ariz.Martin v. Superior Court In and For Maricopa County, 104 Ariz. 268, 451 P.2d 597, 33 A.L.R.3d 1005 (1969).
5
6
7
8
9
10
11
Appointment refused
N.Y.Miocic v. Winters, 75 A.D.2d 887, 428 N.Y.S.2d 44 (2d Dep't 1980).
Cal.Pratt v. Union Pacific R. Co., 168 Cal. App. 4th 165, 85 Cal. Rptr. 3d 321 (3d Dist. 2008), as modified, (Nov.
19, 2008).
U.S.Newman v. San Joaquin Delta Community College Dist., 272 F.R.D. 505, 266 Ed. Law Rep. 404, 84 Fed. R.
Evid. Serv. 943 (E.D. Cal. 2011).
N.Y.Davis v. S. Klein on the Square, Inc., 35 Misc. 2d 981, 231 N.Y.S.2d 460 (Sup 1962).
N.Y.Genevose v. Wheatality Bakery, Inc., 27 Misc. 2d 325, 207 N.Y.S.2d 307 (App. Term 1960).
Place of examination, see 410.
OhioSteele v. True Temper Corp., 16 Ohio Op. 2d 196, 86 Ohio L. Abs. 276, 174 N.E.2d 298 (C.P. 1961).
N.Y.Munz v. Peters, 57 Misc. 2d 22, 291 N.Y.S.2d 521 (Dist. Ct. 1968).
Conn.Sherman v. Axelrod, 49 Conn. Supp. 265, 873 A.2d 277 (Super. Ct. 2005).
12
13
14
15
16
17
18
Mont.Simms v. Montana Eighteenth Judicial Dist. Court, 2003 MT 89, 315 Mont. 135, 68 P.3d 678 (2003).
N.Y.Lewis v. John, 87 A.D.3d 564, 928 N.Y.S.2d 78 (2d Dep't 2011).
N.Y.Swiatlowski v. Kasprzyk, 2 Misc. 2d 707, 154 N.Y.S.2d 543 (Sup 1956), order rev'd on other grounds, 3 A.D.2d
261, 160 N.Y.S.2d 362 (4th Dep't 1957).
Equally available to both parties as witness
Ill.Washburn v. Terminal R. R. Ass'n of St. Louis, 114 Ill. App. 2d 95, 252 N.E.2d 389 (5th Dist. 1969).
Mo.Boggs v. Gosser, 55 S.W.2d 722 (Mo. Ct. App. 1932).
1961).
End of Document
405.Refusal to submit to examination, 25A C.J.S. Damages 405

Damages
405. Refusal to submit to examination
The plaintiff may be penalized where he or she refuses to submit to a physical examination on the
defendant's request, and this refusal may be brought to the attention of the jury for their consideration.
Although the court may be without authority to order a physical examination of the plaintiff, 1 on the failure of the
plaintiff to submit to an examination on the defendant's request, the court may nevertheless exclude the testimony
of the plaintiff's physicians. 2
Where the court is empowered to order a physical examination of the plaintiff, its order may be enforced by
various means, such as by a stay of proceedings or by a dismissal of the action. 3 However, the circumstances
may be such as to justify the plaintiff's refusal to submit to the examination. 4
As affecting plaintiff's credibility.

Even where the court lacks the power to compel an examination, the defendant may prove the plaintiff's refusal to
submit to a physical examination 5 and may ask the plaintiff on the witness stand if he or she will submit to such
an examination. 6 The plaintiff's refusal is pertinent as bearing on the credibility and sufficiency of the testimony
on which he or she seeks to recover. 7
The same rule has been followed where the power to compel an examination exists, 8 and the defendant may
prove the plaintiff's refusal to submit to an examination. 9 Such refusal may be commented on in the argument. 10
Of course, where the court determines that an independent medical examination is not safe, will generate
substantial discomfort, or will not provide relevant information, such that a failure or refusal to undergo the
examination is justified, the defendant may not comment to the jury or make inquiry of a medical expert regarding
the plaintiff's failure or refusal to submit to the procedure. 11
405.Refusal to submit to examination, 25A C.J.S. Damages 405
Footnotes
400.
1
La.Vaughn v. Commercial Union Ins. Co. of New York, 263 So. 2d 50 (La. Ct. App. 4th Cir. 1972), writ denied,
2
3
4
5
6
7
8
9
10
11
262 La. 1107, 266 So. 2d 425 (1972).

Enforcement of order for a physical examination, see 408.
La.Purnell v. Travelers Ins. Co., 205 So. 2d 628 (La. Ct. App. 1st Cir. 1967).
Tex.Jacobs v. Mayhugh, 411 S.W.2d 439 (Tex. Civ. App. Waco 1967), writ refused n.r.e., (June 21, 1967).
Haw.Choy v. Otaguro, 32 Haw. 543, 1932 WL 2558 (1932) (overruled in part on other grounds by, Gilliam v.
Gerhardt, 34 Haw. 466, 1938 WL 6796 (1938)).
La.Arnold v. Patterson, 224 So. 2d 820 (La. Ct. App. 4th Cir. 1969), writ refused, 254 La. 845, 227 So. 2d 591 (1969).
U.S.Union Pac. R. Co. v. Botsford, 141 U.S. 250, 11 S. Ct. 1000, 35 L. Ed. 734 (1891).
Cal.Lumerman v. Dikoff, 203 Cal. App. 2d 490, 21 Cal. Rptr. 402 (2d Dist. 1962).
Rule inapplicable where defendant could secure examination
La.Arnold v. Patterson, 224 So. 2d 820 (La. Ct. App. 4th Cir. 1969), writ refused, 254 La. 845, 227 So. 2d 591 (1969).
Tenn.Williams v. Chattanooga Iron Works, 131 Tenn. 683, 176 S.W. 1031 (1915).
N.J.Il Grande v. DiBenedetto, 366 N.J. Super. 597, 841 A.2d 974 (App. Div. 2004).
End of Document
406.Time for application, 25A C.J.S. Damages 406

Damages
406. Time for application
Application for a physical examination must be timely and, in the absence of a good excuse for the delay,
ordinarily is too late if made after the commencement of the trial.
Application for a physical examination to determine the nature and extent of the plaintiff's injury must be timely, 1
or the right to conduct the examination may be waived. 2 Any objection based on untimeliness is addressed to
the sound discretion of the court. 3
The request should be submitted at such a time that the granting of it will not retard the administration of justice,
or work an injustice to the plaintiff in the presentation of his or her case, and in the absence of a good excuse
for the delay, it will rarely be complied with when it is made after the commencement of the trial. 4 However,
an application for an examination after the commencement of the trial is addressed to the sound discretion of the
court, 5 and circumstances may exist where the court may permit the physical examination of the plaintiff after
the trial has started. 6
Footnotes
N.Y.Roberson v. Fordham Rent-A-Car Corp., 38 A.D.2d 535, 326 N.Y.S.2d 844 (1st Dep't 1971).
1
As to physical examination, generally, see C.J.S., Discovery 160 to 162.
Effect of dilatory conduct
N.Y.Remy v. Syosset Hospital, 38 A.D.2d 860, 330 N.Y.S.2d 166 (2d Dep't 1972).
Application after filing certificate of readiness
N.Y.De Francesco v. Pelham Bay General Hospital, 44 A.D.2d 660, 354 N.Y.S.2d 121 (1st Dep't 1974).
Motion not timely
N.Y.Forman v. Rochdale Village, Inc., 45 A.D.2d 972, 359 N.Y.S.2d 577 (2d Dep't 1974).
Extension of time
406.Time for application, 25A C.J.S. Damages 406
A.L.R. Library
Timeliness of application for compulsory physical examination of injured party in personal injury action, 9 A.L.R.3d
1146.
N.Y.Spano v. Omni Engineering, LLC, 69 A.D.3d 922, 893 N.Y.S.2d 259 (2d Dep't 2010).
No waiver where delay caused by plaintiff
N.Y.Bermel v. Dagostino, 50 A.D.3d 303, 855 N.Y.S.2d 73 (1st Dep't 2008).
Right held not waived
N.Y.Fiore v. Bay Ridge Sanitarium, Inc., 48 Misc. 2d 318, 264 N.Y.S.2d 421 (Sup 1965).
Relief from waiver

N.Y.Jones v. Grand Opal Const. Corp., 64 A.D.3d 543, 883 N.Y.S.2d 253 (2d Dep't 2009).
Cal.Lumerman v. Dikoff, 203 Cal. App. 2d 490, 21 Cal. Rptr. 402 (2d Dist. 1962).
Ind.Walker v. Cuppett, 808 N.E.2d 85 (Ind. Ct. App. 2004).
Ill.Crown v. Village of Elmwood Park, 118 Ill. App. 2d 278, 255 N.E.2d 47 (1st Dist. 1969).
After note of issue and ready statement

N.Y.Calvo v. Peros, 49 A.D.2d 744, 372 N.Y.S.2d 702 (2d Dep't 1975).
Minn.Hill v. Hietala, 268 Minn. 296, 128 N.W.2d 745, 9 A.L.R.3d 1141 (1964).
Good-cause and delay considerations

Wash.Tietjen v. Department of Labor and Industries, 13 Wash. App. 86, 534 P.2d 151 (Div. 2 1975).
Minn.Hill v. Hietala, 268 Minn. 296, 128 N.W.2d 745, 9 A.L.R.3d 1141 (1964).
End of Document
407.Application, 25A C.J.S. Damages 407

Damages
407. Application
An application for a physical examination of the plaintiff must be sufficient in form and substance.
Either the plaintiff or the defendant may demand a physical examination. 1

The application for a physical examination of the plaintiff must be in proper form. 2 It must show that the
examination is material and necessary for the purposes of the trial, 3 that the plaintiff has been requested to submit
to the examination and has refused, 4 and that the examination can be made without any serious pain or danger to
the plaintiff. 5 The application must be based on an affidavit, 6 which will be found insufficient if merely vague
and conclusory. 7
A party's failure to object to the form or content of a motion for a physical examination constitutes a waiver of
any deficiency in the form. 8
Notice.
Where required by statute, notice of the application must be given to the plaintiff 9 in the manner prescribed by
the statute 10 unless such notice is waived. 11
Footnotes
N.Y.Koump v. Smith, 29 A.D.2d 981, 289 N.Y.S.2d 667 (2d Dep't 1968), order aff'd, 25 N.Y.2d 287, 303 N.Y.S.2d
1
2
858, 250 N.E.2d 857 (1969).

Ark.Reed v. Marley, 230 Ark. 135, 321 S.W.2d 193, 71 A.L.R.2d 965 (1959).
Mont.Pumphrey v. Empire Lath and Plaster, 2006 MT 99, 332 Mont. 116, 135 P.3d 797 (2006).
Oral motion for physical examination permitted
A.L.R.2d 994 (2d Dist. 1961).
407.Application, 25A C.J.S. Damages 407
4
5
6
7
8
9
10
11
Tenn.Williams v. Chattanooga Iron Works, 131 Tenn. 683, 176 S.W. 1031 (1915).
Good cause must be shown
Ill.Thompson v. Palos Community Hosp., 254 Ill. App. 3d 836, 194 Ill. Dec. 123, 627 N.E.2d 239 (1st Dist. 1993).
N.Y.Esposito v. New York Hosp., 114 Misc. 2d 756, 452 N.Y.S.2d 499 (Sup 1982).
N.Y.Brown v. Cook, 45 Misc. 2d 866, 258 N.Y.S.2d 32 (City Ct. 1965).
N.Y.Rinaldi v. Evenflo Co., Inc., 62 A.D.3d 856, 881 N.Y.S.2d 104 (2d Dep't 2009).
Ark.Reed v. Marley, 230 Ark. 135, 321 S.W.2d 193, 71 A.L.R.2d 965 (1959).
N.Y.Bloom v. Brooklyn & Queens Transit Corp., 151 Misc. 136, 272 N.Y.S. 511 (Mun. Ct. 1934).
Notice of availability
N.Y.Roundsman v. Skinner, 39 A.D.2d 595, 331 N.Y.S.2d 807 (2d Dep't 1972).
A.L.R.2d 994 (2d Dist. 1961).
A.L.R.2d 994 (2d Dist. 1961).
Waiver of objections as to adequacy of notice
N.Y.Fiore v. Bay Ridge Sanitarium, Inc., 48 Misc. 2d 318, 264 N.Y.S.2d 421 (Sup 1965).
End of Document
408.Order, 25A C.J.S. Damages 408

Damages
408. Order
An order for the physical examination of the plaintiff must be directed to him or her and should contain
directions that will safeguard the plaintiff's rights.
Where the court is authorized to compel a physical examination of the plaintiff, the order must be directed to the
party concerned. 1 The order should contain such directions as to the conduct of the examination as will protect
the plaintiff's rights. 2 The order should provide for other matters relating to the examination that may arise 3 and
may provide that the examination be so conducted as to cause the plaintiff as little inconvenience as possible and
not unnecessarily delay the trial of the case. 4 The order should also provide that the expense of such examination
be borne by the party requesting it. 5
The scope of the examination of the plaintiff on oath should be confined to questions touching the nature and
extent of the injuries, including the manner in which the injuries were received. 6
Enforcement of order.
An order directing the plaintiff to submit to a physical examination may be enforced by staying the proceedings, 7
or dismissing the action, 8 or refusing to permit any evidence to establish the injury until compliance with the
order. 9
The refusal of the plaintiff on request to submit to a physical examination may entail certain consequences even
though the court is without authority to compel a physical examination. 10
Cases:
408.Order, 25A C.J.S. Damages 408
Treating doctor's notes and plaintiff's pleadings together provided necessary nexus between claimed injury and
independent medical examination requested by defendant, and therefore supported finding of good cause for the
examination in personal injury action, notwithstanding defendant's alleged failure to describe what the actual
physical examination would entail or what it would be expected to reveal; examination notes observed that plaintiff
was experiencing pain from incision at site of post-accident surgery, which were matters that plaintiff claimed
were a direct consequence of his injury and basis for his claims for damages and losses, including claims for the
physical pain, with regard both to the past and the future. Vernon's Ann.Texas Rules Civ.Proc., Rule 204.1. In re
Ten Hagen Excavating, Inc., 435 S.W.3d 859 (Tex. App. Dallas 2014).
[END OF SUPPLEMENT]
Footnotes
N.Y.Remy v. Syosset Hospital, 38 A.D.2d 860, 330 N.Y.S.2d 166 (2d Dep't 1972).
1
2
3
4
5
6
7
8
Order not considered defective

Cal.Bittle v. Superior Court, 55 Cal. App. 3d 489, 127 Cal. Rptr. 574 (2d Dist. 1976).
Colo.Braxton v. Luff, 38 Colo. App. 451, 558 P.2d 444 (App. 1976).
Colo.Timpte v. District Court In and For City and County of Denver, 161 Colo. 309, 421 P.2d 728 (1966).
N.Y.Karg v. H.C. Bohack Co., 19 Misc. 2d 211, 194 N.Y.S.2d 235 (Sup 1959).
Mich.Zawacki v. Detroit Harvester Co., 310 Mich. 415, 17 N.W.2d 234 (1945).
N.Y.Bannell v. Liggett Drug Co., 151 N.Y.S.2d 347 (Sup 1956).
Or.Mestas v. Peters, 280 Or. 447, 571 P.2d 888 (1977).
Mo.Stockmann v. Frank, 239 S.W.3d 650 (Mo. Ct. App. E.D. 2007).
Personal injury claim barred
N.Y.Reyes-Peralta v. Ngernak, 30 Misc. 3d 168, 909 N.Y.S.2d 901 (Sup 2010).
Dismissal denied when defendant not prejudiced
N.Y.Jongerius v. Good Samaritan Hospital, 44 A.D.2d 719, 355 N.Y.S.2d 156 (2d Dep't 1974).
9
10
Dismissal denied when reason for failure to appear not established

N.Y.Mazzuca v. Warren P. Wielt Trust, 59 A.D.3d 907, 875 N.Y.S.2d 291 (3d Dep't 2009).
OhioS.S. Kresge Co. v. Trester, 123 Ohio St. 383, 9 Ohio L. Abs. 349, 175 N.E. 611 (1931).
405.
End of Document
409.Conduct of examination, 25A C.J.S. Damages 409

Damages
409. Conduct of examination
The physical or mental examination of the plaintiff must be conducted in such manner as not to subject
him or her to danger or indignities.
The trial court possesses the power of determining and fixing reasonable conditions under which the plaintiff
should be examined. 1 The examination should be held under conditions that are most conducive to an authentic
appraisal of the plaintiff's condition. 2 It should be conducted in such a manner as not to subject the party to danger
of his or her life, pain of the body, or indignity to his or her person. 3 A surgical examination may not be had, 4
and the use of anesthetics, opiates, or drugs of any kind is ordinarily prohibited 5 but has been permitted subject
to the condition that it does not produce serious discomforts or any deleterious consequences. 6
The physician conducting the examination may ask the person examined any questions necessary to enable the
physician to ascertain the nature and extent of the injuries complained of, 7 but the physician should not be allowed
to make inquiries into matters not reasonably related to the legitimate scope of the examination. 8
According to some courts, both the party subject to a court-ordered medical examination as well as the examiner
may record, by electronic means, all aspects of the examination. 9 According to other authority, a plaintiff who
has been ordered by the court to submit to a medical examination by the defendant's doctor may tape-record the
proceeding but only with prior court approval. 10 However, at least one other court, interpreting the Federal Rules
of Civil Procedure, 11 has held that the plaintiff's counsel is not entitled to be present during the patient's physical
examination by government's expert witness, nor is the plaintiff entitled to have his or her physical examination
recorded even by an unattended videotape machine. 12
X-ray examination.
Where the court has inherent authority to order a physical examination of the plaintiff 13 or is authorized to do
so by statute, 14 it is discretionary with the court whether the plaintiff shall be compelled to submit to an X-
ray examination. 15 A statute expressly authorizing the court to direct the taking of X-ray pictures has been held
constitutional. 16
CAT scans and magnetic resonance imaging (MRI).

A court may order submission to a CAT scan or MRI as a part of discovery and inspection in the exercise of its
discretion as a relatively safe, noninvasive, and conventionally accepted method of diagnosis and determining
medical damage. 17 However, some methods of MRI have been characterized as both painful and invasive due
to the use of dye and injections of anesthesia. 18
Expense of examination.
Where the examination is ordered pursuant to statutory authority, the expense is to be borne by the defendant, 19
and if the physician and the defendant cannot agree on the fee, the court will fix it. 20
Footnotes
Cal.Edwards v. Superior Court, 16 Cal. 3d 905, 130 Cal. Rptr. 14, 549 P.2d 846 (1976).
1
OhioKelley v. Smith & Oby Co., 70 Ohio L. Abs. 202, 129 N.E.2d 106 (C.P. 1954).
2
In accordance with current medical practice

U.S.Little v. Howey, 32 F.R.D. 322 (W.D. Mo. 1963).
Minn.Haynes v. Anderson, 304 Minn. 185, 232 N.W.2d 196 (1975).
Semen test; blood tests

Okla.Phillips Petroleum Co. v. Myers, 1949 OK 93, 202 Okla. 151, 210 P.2d 944 (1949).
5
6
7
Spinal tap or puncture

1961).
Tex.Mackay Telegraph-Cable Co. v. Armstrong, 241 S.W. 795 (Tex. Civ. App. San Antonio 1922), writ dismissed
w.o.j., (Oct. 11, 1922).
1961).
Cal.Sharff v. Superior Court of City and County of San Francisco, 44 Cal. 2d 508, 282 P.2d 896, 64 A.L.R.2d 494
(1955).
Refusal of information
La.Simon v. Castille, 174 So. 2d 660 (La. Ct. App. 3d Cir. 1965).
Medical history
N.Y.Allen v. State, 228 A.D.2d 1001, 644 N.Y.S.2d 843 (3d Dep't 1996).
Cal.Sharff v. Superior Court of City and County of San Francisco, 44 Cal. 2d 508, 282 P.2d 896, 64 A.L.R.2d 494
(1955).
Preservation and production of recordings made during examination
La.Robin v. Associated Indem. Co., 297 So. 2d 427 (La. 1973).
9
10
11
12
13
14
15
16
17
18
Ind.Jacob v. Chaplin, 639 N.E.2d 1010 (Ind. 1994).

Okla.McCullough v. Mathews, 1995 OK 90, 918 P.2d 25 (Okla. 1995).
Cal.Ebel v. Superior Court, 39 Cal. App. 3d 934, 114 Cal. Rptr. 722 (5th Dist. 1974).
Fed. R. Civ. P. 35.
U.S.Holland v. U.S., 182 F.R.D. 493 (D.S.C. 1998).
400.
N.Y.Goldman v. Linkoff, 45 A.D.2d 709, 356 N.Y.S.2d 101 (2d Dep't 1974).
N.J.Golden v. Public Service Coordinated Transport, 9 N.J. Misc. 1337, 157 A. 651 (Sup. Ct. 1931).
N.Y.Thomas by Thomas v. John T. Mather Memorial Hosp., 162 A.D.2d 521, 556 N.Y.S.2d 720 (2d Dep't 1990).
19
Protective order not granted

U.S.Rathgeber By and Through Rathgeber v. Kiowa Dist. Hosp., 131 F.R.D. 195, 17 Fed. R. Serv. 3d 677 (D. Kan.
1990).
Va.Virginia Linen Service, Inc. v. Allen, 198 Va. 700, 96 S.E.2d 86 (1957).
20
Third-party defendant
Where a third-party defendant obtains an order directing plaintiff in a personal injury action to submit to a physical
examination by a physician appointed by the court, the physician's fee will be paid by the third-party defendant.
N.Y.Sorrentino v. City of New York, 14 Misc. 2d 78, 178 N.Y.S.2d 500 (Sup 1958).
U.S.Mitchell v. Pure Oil Co., 20 F. Supp. 1021 (E.D. N.Y. 1937).
A.L.R. Library
Recovery of damages for expense of medical monitoring to detect or prevent future disease or condition, 17 A.L.R.5th
327.
Recoverability from tortfeasor of cost of diagnostic examinations absent proof of actual bodily injury, 46 A.L.R.4th
1151.
End of Document
410.Conduct of examinationLocation, 25A C.J.S. Damages 410

Damages
410. Conduct of examinationLocation
A good and valid reason must be shown to justify an examination at a considerable distance from the
plaintiff's residence.
The court should require the examination to be made in such proximity to the court that the plaintiff can appeal to
it for protection if necessary. 1 The examination should be done in the resident county or state of the plaintiff, or
any other place where he or she may be found, 2 and in a place convenient to the plaintiff, where the trip to another
city may be injurious to his or her health. 3 A good and valid reason must be shown to justify an examination
at a considerable distance from the plaintiff's residence. 4 Thus, an order directing the plaintiff to submit to an
examination is not necessarily an abuse of discretion because the plaintiff is directed to go outside the state for it. 5
Footnotes
OhioCarroll v. Burchett, 10 Ohio Misc. 123, 39 Ohio Op. 2d 218, 226 N.E.2d 353 (C.P. 1967).
1
OhioRecord v. Elking, 83 Ohio L. Abs. 92, 167 N.E.2d 540 (C.P. 1960).
2
3
1961).
4
5
Discretion not abused

N.Y.Soltau v. Koeppel, 54 A.D.2d 588, 387 N.Y.S.2d 165 (2d Dep't 1976).
OhioCarroll v. Burchett, 10 Ohio Misc. 123, 39 Ohio Op. 2d 218, 226 N.E.2d 353 (C.P. 1967).
Physicians selected within jurisdiction of court, see 404.
N.Y.Weisgold v. Kiamesha Concord, Inc., 51 Misc. 2d 456, 273 N.Y.S.2d 279 (Sup 1966).
Out-of-state plaintiff
(1) A request that an out-of-state injured plaintiff submit to an independent medical examination in the distant
forum state was not unreasonable. The injured party filed three sets of expert disclosures with the court, identifying
approximately 16 medical providers, including 11 providers from the forum state. She did not object to the particular
doctors but only the place of the medical examinations. It would have been unfair to require the defendants to locate
doctors in the plaintiff's state willing to perform the examination, possibly submit to an out-of-state deposition, and
attend trial in the forum state.
410.Conduct of examinationLocation, 25A C.J.S. Damages 410
Conn.Hansen v. Harrison, 46 Conn. L. Rptr. 473, 2008 WL 4740036 (Conn. Super. Ct. 2008).
(2) The trial court did not abuse its discretion in a patient's medical malpractice action by compelling the patient, who
resided in another state, to submit to a compulsory medical examination (CME) in the forum state where the CME was
ordered to be conducted during the same trip as a deposition the patient was ordered to attend, and defendants were
ordered to contribute to the cost of the patient's trip.
Fla.Goeddel v. Davis, 993 So. 2d 99 (Fla. Dist. Ct. App. 5th Dist. 2008).
A.L.R. Library
Court's power to order physical examination of personal injury plaintiff as affected by distance or location of place
of examination, 71 A.L.R.2d 973.
End of Document
411.Conduct of examinationPresence of witness, 25A C.J.S. Damages 411

Damages
411. Conduct of examinationPresence of witness
There is a conflict among the courts as to whether a party may have an attorney or a third party present
during an examination by a physician.
Some authority favors the exclusion of the plaintiff's attorney from a medical examination absent a compelling
reason. 1 In a similar vein, it has been held that the party who is being examined, while generally not having the
right to have his or her own attorney present during the examination, may properly ask that his or her own doctor
be present to insure that the examination follows the specified procedures or specified conditions. 2
According to other courts, a party in a civil action has the right to have his or her attorney present during a physical
examination by a physician hired by his or her opponent. 3 There is also authority that parties are entitled to have
an attorney present at physical examinations conducted pursuant to the discovery rules unless the party seeking
to prevent the attorney's presence establishes (1) a case-specific reason why the attorney's presence would disrupt
the examination and (2) that no other qualified individual in the area would be willing to conduct the examination
with the attorney present. 4 Still, other courts hold that an injured litigant is entitled to have his or her lawyer
present at an examination by a physician selected by the adverse party although the trial court has the discretion
in determining the request of the plaintiff's attorney to be present. 5
Some courts have held that allowing the attendance of a third party at a court-ordered medical examination is
governed by the trial court's informed judicial discretion, 6 absent an agreement by the parties. 7 If, for good cause
shown, the trial judge, in his or her discretion, decides that a particular doctor may act improperly, he or she may,
among other available courses of action, require as a condition that plaintiff's counsel be present. 8 It has also
been held that whether a plaintiff may have a third party present at a medical examination in each case must be
reviewed on its own facts, and there should be no presumption either way. 9
Among these courts holding that the attendance of a third party at a medical examination is up to the discretion of
the trial court, there is a further split, with some of the courts holding that the burden of proof rests with the party
opposing the third party's attendance at a court-ordered medical examination to show why the examinee's right to
411.Conduct of examinationPresence of witness, 25A C.J.S. Damages 411
have counsel, a physician, or another representative present should be denied 10 and other courts stating that the
party seeking the presence of a third party or recording device must carry the burden of convincing the court. 11
Psychiatric examinations.
As to psychiatric examinations, there is authority stating that a plaintiff should not have counsel present at such
examinations although he or she may be permitted to have a court reporter present. 12 It has also been held that in
the absence of a preponderance of proof that the best psychiatric practice requires or rejects the exclusion of third
persons, such as the plaintiff's counsel, from a psychiatric examination, the examining psychiatrist's wishes that the
plaintiff's counsel be excluded from the examination will be upheld unless such wish is patently unreasonable. 13
However, there is also authority that parties are entitled to have an attorney present at psychiatric or psychological
examinations conducted pursuant to the discovery rules unless the party seeking to prevent the attorney's presence
establishes (1) a case-specific reason why the attorney's presence would disrupt the examination 14 and (2) that
no other qualified individual in the area would be willing to conduct the examination with the attorney present. 15
Footnotes
U.S.Wheat v. Biesecker, 125 F.R.D. 479 (N.D. Ind. 1989).
1
Minn.Wood v. Chicago, Milwaukee, St. Paul and Pacific R. Co., 353 N.W.2d 195 (Minn. Ct. App. 1984).
2
AlaskaLangfeldt-Haaland v. Saupe Enterprises, Inc., 768 P.2d 1144, 84 A.L.R.4th 547 (Alaska 1989).
3
4
5
6
7
8
9
10
11
12
13
14
15
Cal.Pratt v. Union Pacific R. Co., 168 Cal. App. 4th 165, 85 Cal. Rptr. 3d 321 (3d Dist. 2008), as modified, (Nov.
19, 2008).
Okla.McCullough v. Mathews, 1995 OK 90, 918 P.2d 25 (Okla. 1995).
Fla.Byrd v. Southern Prestressed Concrete, Inc., 928 So. 2d 455 (Fla. Dist. Ct. App. 1st Dist. 2006).
La.Robin v. Associated Indem. Co., 297 So. 2d 427 (La. 1973).
Fla.Bartell v. McCarrick, 498 So. 2d 1378 (Fla. Dist. Ct. App. 4th Dist. 1986).
Colo.Hayes v. District Court In and For City and County of Denver, 854 P.2d 1240 (Colo. 1993).
La.Simon v. Castille, 174 So. 2d 660 (La. Ct. App. 3d Cir. 1965).
U.S.Galieti v. State Farm Mut. Auto. Ins. Co., 154 F.R.D. 262, 29 Fed. R. Serv. 3d 183 (D. Colo. 1994).
Fla.Bartell v. McCarrick, 498 So. 2d 1378 (Fla. Dist. Ct. App. 4th Dist. 1986).
N.Y.A.W. v. County of Oneida, 34 A.D.3d 1236, 827 N.Y.S.2d 790 (4th Dep't 2006).
U.S.Galieti v. State Farm Mut. Auto. Ins. Co., 154 F.R.D. 262, 29 Fed. R. Serv. 3d 183 (D. Colo. 1994).
La.Henry v. Barlow, 937 So. 2d 895 (La. Ct. App. 3d Cir. 2006), writ denied, 948 So. 2d 153 (La. 2007).
Colo.Hayes v. District Court In and For City and County of Denver, 854 P.2d 1240 (Colo. 1993).
N.Y.Di Bari v. Incaica Cia Armadora, S.A., 126 F.R.D. 12, 14 Fed. R. Serv. 3d 1362 (E.D. N.Y. 1989).
Cal.Whitfield v. Superior Court for Los Angeles County, 246 Cal. App. 2d 81, 54 Cal. Rptr. 505 (2d Dist. 1966).
No impairment of validity and effectiveness of neuropsychological examination
N.Y.Jessica H. ex rel. Arp v. Spagnolo, 41 A.D.3d 1261, 839 N.Y.S.2d 638 (4th Dep't 2007).
End of Document
412.Physician's report, 25A C.J.S. Damages 412

Damages
412. Physician's report
West's Key Number Digest, Damages 206(.5)
Depending on the jurisdiction, the examining physician's report is subject to various rules as to its
inspection, filing, and exchange by the parties.
In some jurisdictions, the examining physician appointed by the trial court under its inherent power to conduct an
examination of the injured person should file a report stating in detail the result of the examination. The report
is open to the inspection of counsel for both parties but not for use as evidence except for the purposes of crossexamination of the physician. 1
Under some statutes regulating physical examination of the plaintiff, the physician cannot be required to file a
report but is to be examined at the trial. 2 The physician should, however, freely and fully impart to the defendant
the results of the examination. 3 Under statute, rule of court, or rule of civil procedure, the plaintiff may obtain,
or be entitled to, a copy of the report of the examining physician. 4
Some statutes and rules call for reciprocal exchanges of reports of physical examinations between the party causing
the examination to be made and the party examined with respect to the same mental or physical condition. 5 Under
such statutes and rules, copies of reports of any examination by the plaintiff's treating physician must be furnished
the defendant in the absence of a showing that the reports of the treating physician were obtained by the plaintiff's
counsel for purposes other than preparing for trial. 6 The production of the report of the treating physician of
the plaintiff may be compelled if such report has been submitted to the plaintiff's attorney in preparation for
trial. 7 Such statutes and rules prescribe the procedure and the penalties for noncompliance, 8 and the absence of
a requested report may justify exclusion of the physician's testimony. 9 The defendant need not examine, or serve
a report of an examination, if he or she chooses to rely only on cross-examination and to refrain from introducing
independent medical proof. 10
Footnotes
1
412.Physician's report, 25A C.J.S. Damages 412
3
4
5
6
7
8
9
Mutual discovery
Cal.Queen of Angels Hospital v. Superior Court, 57 Cal. App. 3d 370, 129 Cal. Rptr. 282 (2d Dist. 1976).
N.Y.Freiman v. Miller, 28 A.D.2d 1126, 284 N.Y.S.2d 225 (2d Dep't 1967).
A.L.R. Library
Right to copy of physician's report of pretrial examination where there is no specific statute or rule providing therefor,
70 A.L.R.2d 384.
Ill.Harris v. Minardi, 74 Ill. App. 2d 262, 220 N.E.2d 39 (2d Dist. 1966).
N.Y.Morano v. Thompson, 66 Misc. 2d 42, 319 N.Y.S.2d 777 (Sup 1971).
As to delivery of reports of physician under Federal Rules of Civil Procedure, see C.J.S., Federal Civil Procedure 735.
Rule limited
Colo.Palmer Park Gardens, Inc. v. Potter, 162 Colo. 178, 425 P.2d 268 (1967).
Mo.Cash v. Bolle, 423 S.W.2d 743 (Mo. 1968).
N.Y.Spillan v. Avis Rent A Car, Inc., 74 Misc. 2d 616, 344 N.Y.S.2d 652 (Sup 1973).
N.J.Morris v. Platnik, 85 N.J. Super. 121, 204 A.2d 29 (Law Div. 1964).
Production held not required
IowaBarnard v. Cedar Rapids City Cab Co., 257 Iowa 734, 133 N.W.2d 884 (1965).
Colo.Houser v. Eckhardt, 506 P.2d 751 (Colo. App. 1972).
Ill.Harris v. Minardi, 74 Ill. App. 2d 262, 220 N.E.2d 39 (2d Dist. 1966).
N.Y.Power v. Jofan Taxi Co., 66 Misc. 2d 130, 320 N.Y.S.2d 384 (N.Y. City Civ. Ct. 1970).
N.Y.Cohen v. American Soc. for Prevention of Cruelty to Animals, 20 A.D.2d 922, 249 N.Y.S.2d 737 (2d Dep't
1964).
Failure to exclude held improper
N.Y.Kritz v. Manufacturers Hanover Trust Co., 33 A.D.2d 753, 305 N.Y.S.2d 887 (1st Dep't 1969).
Failure to exclude held not improper
Ill.Lilegdon v. Hanuska, 85 Ill. App. 2d 262, 229 N.E.2d 314 (1st Dist. 1967).
10
Exclusionary rule inapplicable

Ariz.City of Scottsdale v. Kokaska, 17 Ariz. App. 120, 495 P.2d 1327 (Div. 1 1972).
N.Y.Dana v. Von Pichl, 39 A.D.2d 744, 332 N.Y.S.2d 368 (2d Dep't 1972).
N.Y.Anonymous v. Anonymous, 41 A.D.2d 636, 341 N.Y.S.2d 132 (1st Dep't 1973).
End of Document
Research References, 25A C.J.S. Damages X C Refs.
25A C.J.S. Damages X C Refs.

Damages
C. Questions of Law and Fact
Research References
A.L.R. Library
West's A.L.R. Digest, Damages 208(1) to 208(7) , 208(9)
End of Document

Damages
413. Generally
Determination of the question of damages is primarily for the jury but determination of questions of law
relating to damages is for the court.
The determination of damages is a question primarily for the jury or other trier of the facts 1 unless the evidence is
insufficient to warrant the submission of the question. 2 Indeed, the jury is entitled to reject any and all evidence up
until the point at which the verdict is so disproportionate to the uncontested evidence as to defy common sense and
logic. 3 Thus, also, the weight of the evidence and the credibility of witnesses are for the jury or other fact finder. 4
Questions of law relating to damages are for determination by the court. 5 Where the facts are not in dispute and
no more than one reasonable inference may be drawn therefrom, a question of law for the court is presented. 6
The question of what elements of damage are proper to be considered is one of law for the court 7 although the
existence of such elements in a particular case presents, where the evidence is conflicting, a question of fact for
the jury. 8 The legal effect of a finding of damages is a law question with which the jury have no concern. 9
Footnotes
U.S.Wallner v. Kitchens of Sara Lee, Inc., 419 F.2d 1028 (7th Cir. 1969).
1
Ala.Ex parte Courtney, 937 So. 2d 1060 (Ala. 2006).
Ill.Richardson v. Chapman, 175 Ill. 2d 98, 221 Ill. Dec. 818, 676 N.E.2d 621 (1997).
Mixed question
Md.A. B. Corp. v. Futrovsky, 259 Md. 65, 267 A.2d 130 (1970).
Action on contract
Colo.Barnett v. Clouse, 167 Colo. 562, 448 P.2d 959 (1969).
U.S.J. F. White Contracting Co. v. New England Tank Industries of N. H., 393 F.2d 449 (1st Cir. 1968); Howard
v. Mercury Record Corp., 178 F.2d 449 (5th Cir. 1949).
Neb.Midlands Transp. Co. v. Apple Lines, Inc., 188 Neb. 435, 197 N.W.2d 646 (1972).
Pa.Neison v. Hines, 539 Pa. 516, 653 A.2d 634 (1995).
Ind.Weinberger v. Boyer, 956 N.E.2d 1095 (Ind. Ct. App. 2011).

Miss.Thompson v. Dung Thi Hoang Nguyen, 2002 WL 34591654 (Miss. Ct. App. 2011), cert. granted, 73 So. 3d
1168 (Miss. 2011).
Evaluating or weighing evidence
La.Miller v. Central Mut. Ins. Co., 174 So. 2d 280 (La. Ct. App. 3d Cir. 1965).
Resolving conflicts in evidence
6
7
Evaluating credibility of witnesses

La.McCarthy v. Entergy Gulf States, Inc., 2011-600 La. App. 3 Cir. 12/7/11, 2011 WL 6059222 (La. Ct. App. 3d
Cir. 2011).
U.S.Sprint Communications Co. v. Western Innovations, Inc., 618 F. Supp. 2d 1124 (D. Ariz. 2009); Trump Intern.
Hotel & Tower v. Carrier Corp., 524 F. Supp. 2d 302 (S.D. N.Y. 2007); In re Buffalo Coal Co., Inc., 418 B.R. 878
(Bankr. N.D. W. Va. 2009), leave to appeal denied, 2010 WL 114008 (N.D. W. Va. 2010) and decision aff'd, 2011
WL 917717 (N.D. W. Va. 2011).
OhioBadillo v. Mid Century Ins. Co., 2005 OK 48, 121 P.3d 1080 (Okla. 2005), as corrected, (June 22, 2005).
W.Va.Coakley v. Marple, 152 W. Va. 68, 159 S.E.2d 378 (1968).
Instructions as to damages, see 423 to 445.
Ill.Algonquin Manor Bldg. Corp. v. Waters, 79 Ill. App. 2d 486, 224 N.E.2d 21 (2d Dist. 1967).
Tex.Minor v. Gross, 478 S.W.2d 597 (Tex. Civ. App. Tyler 1972), writ refused n.r.e., (May 31, 1972).
U.S.Rhynard v. Filori, 315 F.2d 176 (8th Cir. 1963); Schirra v. Delaware, L. & W. R. Co., 103 F. Supp. 812 (M.D.
Pa. 1952).
Tex.Cree v. Miller, 255 S.W.2d 565 (Tex. Civ. App. Eastland 1953), writ refused n.r.e.
Ala.Fuller v. Martin, 41 Ala. App. 160, 125 So. 2d 4 (1960).
Ill.Board of Ed., School Dist. No. 90, Cook County, for Use and Benefit of Fenestra, Inc. v. U. S. Fidelity & Guaranty
Co., 115 Ill. App. 2d 416, 253 N.E.2d 663 (1st Dist. 1969).
Loss of use of motor vehicle, see 422.
Tex.Robinson v. Lovell, 238 S.W.2d 294 (Tex. Civ. App. Galveston 1951), writ refused n.r.e.
End of Document
414.Measure and amount of damages, 25A C.J.S. Damages 414

Damages
414. Measure and amount of damages
The question of the measure of damages is one of law while, ordinarily, the amount of damages is a question
for the jury.
The question of the measure of damages is a question of law 1 for the court, 2 but in cases tried before a jury, where
an issue is made by the pleadings and evidence, the estimation or determination of the amount of the damages
sustained is usually a question of fact for the jury or trier of fact, 3 particularly where the award is for pain and
suffering. 4 In other words, although the calculation of the amount of damages is a factual determination, the
formula used in making that calculation is a question of law. 5 Juries have the same right to pass on the question
of the amount to be awarded as compensation for an injury that they have to pass on the question of liability for
the injury. 6
Where the amount of recovery, if any, is a mere matter of computation, the jury may be told to find in a specific
sum if they find for the plaintiff, 7 and where the competent evidence as to the amount of the loss is uncontradicted,
the jury may be told the amount that they may find if they find for the plaintiff. 8 However, in cases in which the
amount of the award is not a mere matter of calculation or of reference to a fixed and determined sum, it rests
primarily within the sound judgment or discretion of the jury. 9
The jury must base their ascertainment of the amount of damages on the evidence submitted, 10 and although
they may act on probable and inferential proof as well as that which is direct and positive, 11 where there is no
evidence on which a determination as to damages, or as to certain elements of damages, can legally rest, it is the
right and duty of the court to take that issue from the jury. 12 If nominal damages 13 or damages in any amount 14
are shown, the granting of a nonsuit or a peremptory instruction for the defendant is improper.
The jury must follow the rules of law that have been established for measurement of damages. 15 If they find
liability, they must award damages commensurate with the nature and extent of injuries 16 and must award more
than nominal damages for substantial injuries. 17
Where payments have been made to the plaintiff, or a covenant not to sue has been received from the plaintiff, by
one other than the defendant, it is the function of the jury to assess the total damages 18 and the function of the
court to determine by what amount the total damages should be reduced by reason of the payments or covenant. 19
Cases:
Issue as to whether former girlfriend of radio disc jockey established at least nominal damages as a result of disc
jockey disparaging her in on-air broadcasts following their break-up was for jury, on former girlfriend's claim
against owners and operators of radio station for invasion of privacy. Doe v. Beasley Broadcast Group, Inc., 105
So. 3d 1 (Fla. 2d DCA 2012).
[END OF SUPPLEMENT]
Footnotes
Mo.Comens v. SSM St. Charles Clinic Medical Group, Inc., 335 S.W.3d 76 (Mo. Ct. App. E.D. 2011).
1
N.Y.Credit Suisse First Boston v. Utrecht-America Finance Co., 84 A.D.3d 579, 923 N.Y.S.2d 482 (1st Dep't 2011).
N.C.Majewski Enterprises, Inc. v. Park at Langston, Inc., 711 S.E.2d 454 (N.C. Ct. App. 2011).
Mo.Comens v. SSM St. Charles Clinic Medical Group, Inc., 335 S.W.3d 76 (Mo. Ct. App. E.D. 2011).
Tenn.GSB Contractors, Inc. v. Hess, 179 S.W.3d 535 (Tenn. Ct. App. 2005).
U.S.Creek v. Village of Westhaven, 144 F.3d 441 (7th Cir. 1998).
Mich.Kelly v. Builders Square, Inc., 465 Mich. 29, 632 N.W.2d 912 (2001).
N.J.Willis v. Ashby, 353 N.J. Super. 104, 801 A.2d 442 (App. Div. 2002).
Okla.B-Star, Inc. v. Polyone Corp., 2005 OK 8, 114 P.3d 1082 (Okla. 2005), as corrected, (Feb. 18, 2005).
Excessive or inadequate damages, see 457 to 460.
Function of jury or trier of fact
Colo.Huffman v. Westmoreland Coal Co., 205 P.3d 501 (Colo. App. 2009).
Ill.Dienstag v. Margolies, 396 Ill. App. 3d 25, 335 Ill. Dec. 496, 919 N.E.2d 17 (1st Dist. 2009), appeal denied, 236
Ill. 2d 503, 341 Ill. Dec. 198, 930 N.E.2d 408 (2010).
N.D.Rittenour v. Gibson, 2003 ND 14, 656 N.W.2d 691 (N.D. 2003).
4
5
6
7
8
9
Province of jury
Ariz.In re Estate of Hanscome, 227 Ariz. 158, 254 P.3d 397 (Ct. App. Div. 1 2011).
Colo.Averyt v. Wal-Mart Stores, Inc., 2011 WL 5325525 (Colo. 2011).
Miss.Rhodes v. Raffeo, 74 So. 3d 915 (Miss. Ct. App. 2011).
Mich.Bosak v. Hutchinson, 422 Mich. 712, 375 N.W.2d 333 (1985).
U.S.Vermont Microsystems, Inc. v. Autodesk, Inc., 138 F.3d 449 (2d Cir. 1998).
Ark.Phillips Motor Co. v. Rouse, 202 Ark. 641, 151 S.W.2d 994 (1941).
Ariz.Craviolini v. Scholer & Fuller Associated Architects, 101 Ariz. 33, 415 P.2d 456 (1966).
N.Y.Harris v. Sisk, 33 A.D.2d 584, 304 N.Y.S.2d 294 (3d Dep't 1969).
Okla.Noble Homes, Inc. v. Kalman, 1967 OK 92, 428 P.2d 241 (Okla. 1967).
Ky.Wiser Oil Co. v. Conley, 380 S.W.2d 217 (Ky. 1964).
Colo.Hotchkiss v. Preble, 33 Colo. App. 431, 521 P.2d 1278 (App. 1974).
Punitive damages
Ala.Crum v. McGhee, 289 Ala. 244, 266 So. 2d 855 (1972).
10
Power to be generous or penurious

In awarding damages, it is within the power of the jury to be as generous or penurious as it sees fit as long as it remains
within the pleadings and proof.
Or.Chance v. Alexander, 255 Or. 136, 465 P.2d 226 (1970).
U.S.Virginian Ry. Co. v. Armentrout, 166 F.2d 400, 4 A.L.R.2d 1064 (C.C.A. 4th Cir. 1948); State Farm Mut. Auto.
Ins. Co. v. Smoot, 381 F.2d 331 (5th Cir. 1967).
Tex.Texas & P. Ry. Co. v. Salazar, 458 S.W.2d 116 (Tex. Civ. App. El Paso 1970), writ refused n.r.e.
Undisputed evidence not to be ignored
Ill.McCormick v. Piper, 76 Ill. App. 2d 24, 220 N.E.2d 651 (3d Dist. 1966).
Substantial evidence
Mont.Sanders v. Mount Haggin Livestock Co., 160 Mont. 73, 500 P.2d 397 (1972).
11
12
13
14
15
16
17
18
19
Jury may disregard amount of damages requested by a party

U.S.Carter v. Chicago Police Officers, 165 F.3d 1071 (7th Cir. 1998).
U.S.Loew's, Inc. v. Cinema Amusements, Inc., 210 F.2d 86 (10th Cir. 1954).
U.S.Burks v. Sinclair Refining Co., 183 F.2d 239 (3d Cir. 1950); Classic Bowl, Inc. v. A M F Pinspotters, Inc., 403
F.2d 463 (7th Cir. 1968).
Tex.Electrical Contracting & Maintenance Co. v. Perry Distributors, Inc., 432 S.W.2d 543 (Tex. Civ. App. Dallas
1968), writ refused n.r.e., (Nov. 20, 1968).
Evidence affording means of intelligent estimate sufficient for jury
U.S.West v. Jutras, 456 F.2d 1222 (2d Cir. 1972).
Ariz.Craviolini v. Scholer & Fuller Associated Architects, 101 Ariz. 33, 415 P.2d 456 (1966).
Mo.Auffenberg v. Hafley, 457 S.W.2d 929 (Mo. Ct. App. 1970).
Nominal damages, see 17 to 24.
N.C.Lee v. Stevens, 251 N.C. 429, 111 S.E.2d 623 (1959).
Cal.Haskins v. Holmes, 252 Cal. App. 2d 580, 60 Cal. Rptr. 659 (2d Dist. 1967).
Mo.Smugala v. Campana, 404 S.W.2d 713 (Mo. 1966).
S.D.Lanning v. Schulte, 82 S.D. 528, 149 N.W.2d 765 (1967).
Tenn.Loftis v. Finch, 491 S.W.2d 370 (Tenn. Ct. App. 1972).
Ill.Haupt v. Golick, 57 Ill. App. 2d 481, 206 N.E.2d 542 (3d Dist. 1965).
S.C.McCombs v. Stephens, 252 S.C. 442, 166 S.E.2d 814 (1969).
Ill.Haupt v. Golick, 57 Ill. App. 2d 481, 206 N.E.2d 542 (3d Dist. 1965).
S.C.McCombs v. Stephens, 252 S.C. 442, 166 S.E.2d 814 (1969).
End of Document
415.Existence and character of injury or damage, 25A C.J.S. Damages 415

Damages
415. Existence and character of injury or damage
Questions of whether the plaintiff has sustained an injury, damage, or pain, and, if so, the nature and extent
thereof, are, on conflicting evidence, questions of fact for determination by the jury or other trier of the
facts.
Questions of whether the plaintiff has, in fact, sustained an injury or damage, 1 or any pain, 2 and, if he or she
has, the nature 3 and extent 4 of the injury, damage, or pain are, on conflicting evidence, questions of fact for
determination by the jury or other trier of the facts.
The question of the permanency and future consequences of the injury, 5 including the question whether the
physical condition of the plaintiff will become worse, 6 is ordinarily for the determination of the jury unless there
is a lack of competent evidence to raise the issue. 7 The evidence that is required to sustain a submission of this
question to the jury must show a reasonable certainty, 8 or, at least, a reasonable probability, 9 that the injury will
be permanent, and evidence tending to show only a possibility of permanency is not sufficient. 10 However, it is
not necessary that the evidence be so positive and conclusive as to establish the permanency of the injury beyond
any shadow of doubt, 11 and the evidence is sufficient if it reasonably tends to establish such fact. 12
Expert testimony as to permanency of personal injuries has been held to be necessary for submission of that
question to the jury, 13 but other authority is to the effect that expert testimony is not necessary if the evidence is
otherwise sufficient to justify a finding of permanency. 14 Even where a jurisdiction holds that expert testimony
must be made as to the permanency of the injury for the jury to consider the issue, if the injury is objective, and
it is plainly apparent from the nature of the injury that the injured person must of necessity undergo pain and
suffering in the future, the jury may infer that fact from proof of such injury alone. 15
Footnotes
Ga.Williams v. Capitol Corporate Cleaning, Inc., 2011 WL 5529852 (Ga. Ct. App. 2011).
1
IdahoCrowley v. Critchfield, 145 Idaho 509, 181 P.3d 435 (2007).
Ill.Poliszczuk v. Winkler, 387 Ill. App. 3d 474, 326 Ill. Dec. 464, 899 N.E.2d 1115 (1st Dist. 2008).
Miss.Harrison v. Walker, 2011 WL 2547964 (Miss. Ct. App. 2011).
Evidence sufficient for jury
Miss.Mercier v. Davis, 234 So. 2d 902 (Miss. 1970).
Tex.Freitas v. Twin City Fisherman's Co-op. Ass'n, 430 S.W.2d 579 (Tex. Civ. App. Waco 1968), writ refused n.r.e.,
(Oct. 23, 1968).
2
3
Evidence insufficient for jury

Mo.Jack L. Baker Companies v. Pasley Mfg. & Distributing Co., 413 S.W.2d 268 (Mo. 1967).
Pa.Davis v. Mullen, 565 Pa. 386, 773 A.2d 764 (2001).
U.S.Obediencia v. Liberty Mut. Ins. Co., 403 F.2d 654 (5th Cir. 1968).
Fla.Soden v. Starkman, 218 So. 2d 763 (Fla. Dist. Ct. App. 3d Dist. 1969).
Ill.Perfect v. Kaley, 130 Ill. App. 2d 61, 264 N.E.2d 430 (1st Dist. 1970).
Mass.Weinberg v. Massachusetts Bay Transp. Authority, 348 Mass. 669, 205 N.E.2d 5 (1965).

Vt.Kinney v. Cloutier, 125 Vt. 109, 211 A.2d 246 (1965).
La.Baker v. D. H. Holmes Co., Ltd., 285 So. 2d 282 (La. Ct. App. 4th Cir. 1973).
N.H.Thomson v. Cash, 119 N.H. 371, 402 A.2d 651 (1979).
Wash.Baltzelle v. Doces Sixth Ave., Inc., 5 Wash. App. 771, 490 P.2d 1331 (Div. 1 1971).
U.S.Mills v. Penn Cent. Co., 329 F. Supp. 530 (D.D.C. 1971).
N.C.Jones v. Satterfield Development Co., 16 N.C. App. 80, 191 S.E.2d 435 (1972).
Tex.Badger v. Symon, 661 S.W.2d 163 (Tex. App. Houston 1st Dist. 1983), writ refused n.r.e., (Mar. 14, 1984).
Instructions as to future consequences, see 438.
Prospective and anticipated consequences, see 40 to 43.
Question of future pain and suffering, see 419.
Permanency
OhioStephens v. Vick Express, Inc., 2003-Ohio-1611, 2003 WL 1689602 (Ohio Ct. App. 12th Dist. Butler County
2003).
Or.McCormick v. City of Portland, 191 Or. App. 383, 82 P.3d 1043 (2004).
N.M.McNeill v. Burlington Resource Oil & Gas Co., 141 N.M. 212, 2007-NMCA-024, 153 P.3d 46 (Ct. App. 2006),
aff'd, 2008-NMSC-022, 143 N.M. 740, 182 P.3d 121 (2008).
Future damage
OhioHewitt v. L.E. Myers Co., 2011-Ohio-5413, 2011 WL 5009758 (Ohio Ct. App. 8th Dist. Cuyahoga County
2011).
U.S.Widder v. New York, C. & St. L.R. Co., 142 F. Supp. 830 (W.D. Pa. 1955), judgment aff'd, 235 F.2d 752 (3d
Cir. 1956).
Future onset of cancer as result of injuries
N.J.Lorenc v. Chemirad Corp., 37 N.J. 56, 179 A.2d 401 (1962).
Loss of vision
U.S.Taylor v. Monongahela Ry. Co., 155 F. Supp. 601 (W.D. Pa. 1957), aff'd, 256 F.2d 751 (3d Cir. 1958).
OhioPowell v. Montgomery, 27 Ohio App. 2d 112, 56 Ohio Op. 2d 279, 272 N.E.2d 906 (4th Dist. Scioto County
1971).
Ala.Louisville & N. R. Co. v. Richardson, 285 Ala. 281, 231 So. 2d 316 (1970).
8
9
10
11
12
13
14
15

U.S.Harrington v. Alston, 267 F. Supp. 505 (D. D.C. 1967).
Ill.Rapp v. Hiemenz, 107 Ill. App. 2d 382, 246 N.E.2d 77 (2d Dist. 1969).
Mo.Glowczwski v. Foster, 359 S.W.2d 406 (Mo. Ct. App. 1962).
Certainty as to permanent injuries in tort actions, see 42, 43.
Mich.Kokkonen v. Wausau Homes, Inc., 94 Mich. App. 603, 289 N.W.2d 382 (1980).
Md.Craig v. Chenoweth, 232 Md. 397, 194 A.2d 78 (1963).
Okla.Austin Bridge Co. v. Christian, 1968 OK 138, 446 P.2d 46 (Okla. 1968).
IowaMcClenahan v. Des Moines Transit Co., 257 Iowa 293, 132 N.W.2d 471 (1965).
Mich.Howard v. City of Melvindale, 27 Mich. App. 227, 183 N.W.2d 341 (1970).
Or.Howerton v. Pfaff, 246 Or. 341, 425 P.2d 533 (1967).
Neb.Yount v. Seager, 181 Neb. 665, 150 N.W.2d 245 (1967).
End of Document

Damages
416. Causation
Whether the plaintiff's injuries or damages were caused by the defendant's wrongful act is ordinarily a
question for the jury or other trier of facts. Incidental questions of fact relating to the causal connection
are also ordinarily best reserved for the trier of the facts.
Whether the plaintiff's injuries or damages were caused by, or were the natural and proximate consequences of,
the defendant's wrongful act is ordinarily a question of fact for the jury or other trier of the facts; 1 however, the
trial court may make a legal ruling on this issue if (1) there is no evidence to establish a causal connection, thus
leaving causation to jury speculation, 2 or (2) reasonable persons could not differ on the inferences to be derived
from the evidence on proximate causation. 3 A substantial conflict in the evidence as to the cause of an illness or
disease will ordinarily carry the question to the jury. 4
Incidental questions of fact relating to the causal connection between the plaintiff's injury and the defendant's
wrongful act are, when based on sufficient competent evidence, for the determination of the jury or other trier of
the facts, 5 including such questions as whether the present physical condition of the plaintiff is due to injuries
received in the accident or is due to his or her prior physical condition or other factors; 6 whether the accident
aggravated an existing injury, disease, or impaired physical condition; 7 whether the physical impact of a collision
between motor vehicles was strong enough to be the proximate cause of the injury claimed by the plaintiff; 8 and,
where the plaintiff has been involved in several accidents, whether his or her injuries resulted from the accident
for which the defendant is responsible. 9 Where damages are occasioned by a combination of causes originating
from different sources, it is for the jury to determine the extent to which the damages are attributable to the cause
for which the defendant is responsible, 10 and this rule is applicable where the plaintiff's physical condition is due
to injuries received in more than one accident 11 or is due, in part, to his or her preexisting physical condition. 12
Cases:
Jury is entrusted to resolve all relevant questions of fact presented to the court, including apportionment of damages
between plaintiff's pre-existing condition and defendant's negligence, but jury must have a reasonable basis for
apportioning damages, and apportionment may not be based on pure speculation. Harris v. ShopKo Stores, Inc.,
2013 UT 34, 308 P.3d 449 (Utah 2013).
[END OF SUPPLEMENT]
Footnotes
U.S.Paradigm Alliance, Inc. v. Celeritas Technologies, LLC, 722 F. Supp. 2d 1250 (D. Kan. 2010); Entergy Nuclear
1
Vermont Yankee, LLC v. U.S., 95 Fed. Cl. 160 (2010).
Fla.Jackson Hewitt, Inc. v. Kaman, 2011 WL 3962886 (Fla. Dist. Ct. App. 2d Dist. 2011).
Whether a breach of duty caused damages
Mo.Tom's Agspray, LLC v. Cole, 308 S.W.3d 255 (Mo. Ct. App. W.D. 2010).
Particular consequences
(1) Loss of crop from herbicide spray.
Miss.Council v. Duprel, 250 Miss. 269, 165 So. 2d 134 (1964).
(2) Heart attack or heart injury.
Ill.Carter v. Winter, 50 Ill. App. 2d 467, 200 N.E.2d 528 (4th Dist. 1964), judgment aff'd, 32 Ill. 2d 275, 204 N.E.2d
755 (1965).
(3) Miscarriage.
Tex.Greene v. Anders, 473 S.W.2d 622 (Tex. Civ. App. Waco 1971), writ refused n.r.e., (Mar. 22, 1972).
(4) Back injury.
N.Y.Garlick v. Vitale, 25 A.D.2d 917, 270 N.Y.S.2d 64 (3d Dep't 1966).
(5) Emotional disturbance.
Mich.Daley v. LaCroix, 384 Mich. 4, 179 N.W.2d 390 (1970).
Ky.Miller v. Watts, 436 S.W.2d 515 (Ky. 1969).
OhioDarnell v. Eastman, 23 Ohio St. 2d 13, 52 Ohio Op. 2d 76, 261 N.E.2d 114 (1970).
Mere possibility alone, of causal relation, insufficient
Or.Stubbs v. Mason, 252 Or. 547, 450 P.2d 773 (1969).
Where court can see from undisputed facts that injury is remote
4
5
6
Decision left to fact finder where reasonable people could differ

Fla.Olson v. Crowell Plumbing & Heating Co., Inc., 48 So. 3d 139 (Fla. Dist. Ct. App. 5th Dist. 2010).
Ill.Walaite v. Chicago, R. I. & P. Ry. Co., 306 Ill. App. 5, 28 N.E.2d 149 (1st Dist. 1940), judgment rev'd on other
grounds, 376 Ill. 59, 33 N.E.2d 119 (1941).
Miss.Council v. Duprel, 250 Miss. 269, 165 So. 2d 134 (1964).
Haw.Bachran v. Morishige, 52 Haw. 61, 469 P.2d 808 (1970).
Ill.McCormick v. Piper, 76 Ill. App. 2d 24, 220 N.E.2d 651 (3d Dist. 1966).
Minn.Smith v. Rekucki, 287 Minn. 149, 177 N.W.2d 410 (1970).
Arthritis
Wis.Vandenack v. Crosby, 6 Wis. 2d 292, 94 N.W.2d 621 (1959).
U.S.Teti v. Firestone Tire & Rubber Co., 392 F.2d 294, 16 Ohio Misc. 80, 44 Ohio Op. 2d 276, 45 Ohio Op. 2d
75 (6th Cir. 1968).
Del.Debernard v. Reed, 277 A.2d 684 (Del. 1971).
Or.Stubbs v. Mason, 252 Or. 547, 450 P.2d 773 (1969).

Back injury
Or.DeSpain v. Bohlke, 259 Or. 320, 486 P.2d 545 (1971).
Arthritic condition
Colo.Mayer v. Sampson, 157 Colo. 278, 402 P.2d 185 (1965).
Heart condition
La.Theunissen v. Guidry, 151 So. 2d 499 (La. Ct. App. 3d Cir. 1962), judgment aff'd, 244 La. 631, 153 So. 2d 869
(1963).
Pa.Nitch v. Moon, 405 Pa. 474, 176 A.2d 627 (1961).
Grazing collision
Wash.Fannin v. Roe, 62 Wash. 2d 239, 382 P.2d 264 (1963).
10
11
12
Slight impact
Pa.Calabria v. Brentwood Motor Coach Co., 412 Pa. 486, 194 A.2d 918 (1963).
N.Y.Walker v. Feldman, 24 A.D.2d 667, 261 N.Y.S.2d 101 (3d Dep't 1965).
Tenn.Crafton v. Edwards, 58 Tenn. App. 606, 435 S.W.2d 486 (1968).
Whiplash injury
Mo.Brantley v. Couch, 383 S.W.2d 307 (Mo. Ct. App. 1964).
Mass.Delfino v. Torosian, 354 Mass. 395, 237 N.E.2d 694 (1968).
Minn.Mathews v. Mills, 288 Minn. 16, 178 N.W.2d 841 (1970).
N.J.Hill v. Macomber, 103 N.J. Super. 127, 246 A.2d 731 (App. Div. 1968).
U.S.Kinney v. Glass, 418 F.2d 1262 (3d Cir. 1969); Bihm v. Lykes Bros. S. S. Co., 213 F. Supp. 899 (S.D. N.Y.
1963).
Me.Fossett v. Durant, 150 Me. 413, 113 A.2d 620 (1955).
Cal.Anderson v. Southern Pac. Co., 231 Cal. App. 2d 233, 41 Cal. Rptr. 743 (3d Dist. 1964).
Mo.Thompson v. Healzer Cartage Co., 287 S.W.2d 791 (Mo. 1956).
End of Document
417.Impairment of earning capacity; loss of earnings, 25A C.J.S. Damages 417

Damages
417. Impairment of earning capacity; loss of earnings
Generally, the question of impairment of the plaintiff's earning capacity and the question of loss of earnings
as an element of damages are, on conflicting evidence, for the determination of the jury or other trier of
the facts.
Generally, the question of impairment of the plaintiff's earning capacity or his or her loss of earning power due to
injuries, 1 and incidental questions of fact involved therein, 2 such as whether the plaintiff's disability will prevent
the plaintiff from performing the duties of his or her usual work or occupation, 3 are, on conflicting evidence,
for the determination of the jury or other trier of the facts. However, the jury cannot properly determine on mere
speculation or conjecture the extent to which earning capacity is impaired, 4 and in the absence of sufficient
evidence, the question of impairment of earning capacity or loss of earning power may not be submitted to the
jury. 5 The appearance of the plaintiff on the witness stand and the plaintiff's testimony as to the nature of his or her
injuries and their duration are sufficient to take the question of impaired earning capacity to the jury. 6 Evidence
that the plaintiff's actual earnings have not decreased, 7 or that they have increased, 8 after the injury may show
conclusively that there was no impairment of earning capacity so that the question must not be submitted to the
jury, but dependent on the circumstances of the case, such evidence does not necessarily have this effect. 9
Failure of the evidence to show past earnings of the plaintiff has been held to render the evidence insufficient for
submission to the jury of the question of impairment of earning capacity, 10 but there is other authority that holds
that evidence of the plaintiff's past earnings is unnecessary for submission of this question. 11 Generally, where
the person injured is a minor, proof of past earnings is unnecessary, and a showing of the permanence of the injury
and its ill effects is sufficient to justify submission to the jury of the question of impairment of earning capacity
after the minor reaches majority. 12 Thus, evidence that a minor has permanent injuries to mental and motor
functioning, impairing the minor's ability to do work involving manual dexterity or reading a book, is evidence
demonstrating a reasonable probability that the injuries impair the minor's future earning capacity so as to create
a jury question on lost income-earning capacity as an element of damages. 13
The question of loss of time or earnings as an element of damages 14 and incidental questions of fact 15 are
ordinarily for the determination of the jury unless the evidence is insufficient for submission to the jury. 16
However, the jury may not withhold lost earnings when the evidence uncontradictedly establishes loss of earnings
as a result of the defendant's wrongful act. 17
The amount of compensation for loss of earning power or for future loss of earnings ordinarily is for the jury 18 as
is the amount of compensation for loss of earnings to the date of the trial. 19 Moreover, reducing future earnings
to present value lies within the province of the jury. 20
Footnotes
U.S.Learmonth v. Sears, Roebuck and Co., 631 F.3d 724, 84 Fed. R. Evid. Serv. 698 (5th Cir. 2011).
1
La.Ryan v. Zurich American Ins. Co., 988 So. 2d 214 (La. 2008).
Tex.Clayton v. Wisener, 190 S.W.3d 685 (Tex. App. Tyler 2005).
Lost time, earnings, services, and impairment of earnings as elements of damage, see 52 to 56, 156, 157, 160 to 165.
2
3
4
6
7
8
9
10
11
12
13
14
Sufficiency of evidence for jury

Del.Beck v. Haley, 239 A.2d 699 (Del. 1968).
Ill.Smith v. Joy Marvin, M.D., 377 Ill. App. 3d 562, 317 Ill. Dec. 31, 880 N.E.2d 1023 (3d Dist. 2007).
Ky.Reece v. Nationwide Mut. Ins. Co., 217 S.W.3d 226 (Ky. 2007).
U.S.Fort Worth & D. Ry. Co. v. Janski, 223 F.2d 704 (5th Cir. 1955); Baker v. Baltimore & Ohio R. Co., 502 F.2d
638 (6th Cir. 1974).
U.S.Hayes v. Baltimore & O. R. Co., 112 F. Supp. 605 (W.D. Pa. 1953).
Mo.Knowles v. Goswick, 476 S.W.2d 563 (Mo. 1972).
1971).
(July 22, 1964).
Colo.Walton v. Kolb, 31 Colo. App. 95, 500 P.2d 149 (App. 1972).
1971).
(1998).
Tex.Amberson v. Woodul, 108 S.W.2d 852 (Tex. Civ. App. San Antonio 1937), writ dismissed.
Tex.Jarbet Co. v. Hengst, 260 S.W.2d 88 (Tex. Civ. App. Austin 1953).
U.S.Kaffana v. Pennsylvania R. Co., 217 F. Supp. 362 (W.D. Pa. 1963).
Pa.Holton v. Gibson, 402 Pa. 37, 166 A.2d 4 (1960).
Mo.Guiley v. Lowe, 314 S.W.2d 232 (Mo. 1958).
Tex.Rubner v. Kennedy, 417 S.W.2d 860 (Tex. Civ. App. San Antonio 1967), writ refused n.r.e., (Nov. 22, 1967).
Ga.Hughes v. Brown, 109 Ga. App. 578, 136 S.E.2d 403 (1964).
Wis.Felde v. Kohnke, 50 Wis. 2d 168, 184 N.W.2d 433 (1971).
N.J.Lesniak v. County of Bergen, 117 N.J. 12, 563 A.2d 795 (1989).
Ga.Dossie v. Sherwood, 308 Ga. App. 185, 707 S.E.2d 131 (2011).
Ind.Cox v. Winklepleck, 149 Ind. App. 319, 271 N.E.2d 737 (1971).
Or.Brannan v. Slemp, 260 Or. 336, 490 P.2d 979 (1971).
Minn.Edwards v. Engen, 288 Minn. 1, 178 N.W.2d 731 (1970).
15
Or.Howerton v. Pfaff, 246 Or. 341, 425 P.2d 533 (1967).

U.S.Mayer v. Illinois Northern Ry., 324 F.2d 154, 7 Fed. R. Serv. 2d 745 (7th Cir. 1963).
Or.McVaigh v. Sandberg, 266 Or. 409, 513 P.2d 801 (1973).
16
Whether payment of wages was gratuity

U.S.Morris v. Gimbel Bros., Inc., 394 F.2d 143 (3d Cir. 1968).
Ill.Rapp v. Hiemenz, 107 Ill. App. 2d 382, 246 N.E.2d 77 (2d Dist. 1969).
Va.Basham v. Pate, 212 Va. 772, 188 S.E.2d 198 (1972).
Pa.Todd v. Bercini, 371 Pa. 605, 92 A.2d 538 (1952).
17
18
19
20
U.S.Shepard v. General Motors Corp., 423 F.2d 406 (1st Cir. 1970); Vickers v. Tumey, 290 F.2d 426 (5th Cir. 1961).
Ill.Elizer v. Louisville & N. R. Co., 128 Ill. App. 2d 249, 261 N.E.2d 827 (5th Dist. 1970).
S.D.Nepstad v. Randall, 82 S.D. 615, 152 N.W.2d 383 (1967).
Present value of future lost earnings under the Federal Employers' Liability Act
U.S.Monessen Southwestern Ry. Co. v. Morgan, 486 U.S. 330, 108 S. Ct. 1837, 100 L. Ed. 2d 349 (1988).
Ala.Summerlin v. Robinson, 42 Ala. App. 116, 154 So. 2d 685 (1963).
OhioSahrbacker v. Lucerne Products, Inc., 52 Ohio St. 3d 179, 556 N.E.2d 497 (1990).
End of Document

Damages
418. Expenses
Ordinarily, questions as to whether expenses incurred as a result of the defendant's wrongful act were
necessary and reasonable are, on conflicting evidence, for determination by the jury.
On conflicting evidence, questions of fact relating to expenses incurred or paid as a result of the defendant's
wrongful act are for the jury or other trier of the facts. 1 Ordinarily, the question whether expenses were
necessary, 2 the question whether they were reasonable, 3 and the question of the amount of expenses incurred 4
are, on conflicting evidence, for determination by the jury, but where there is no conflict in the evidence on such
matters, and no more than one reasonable inference may be drawn therefrom, a question of law for the court is
presented. 5 Where there is no evidence as to the amount that the plaintiff has expended, or as to the expenses that
he or she has incurred, such item should not be submitted to the jury. 6 It is also improper to submit to the jury an
item of expense that includes matters free from any claim of defendant's negligence. 7
Medical, hospital, and nursing expenses.

Generally, issues relating to medical, hospital, and nursing expenses, 8 such as the necessity 9 and
reasonableness 10 of such expenses, and whether they were connected with the injury caused by the defendant 11
are for the determination of the jury. The amount that should be allowed therefor is also for the jury, 12 but there
must be competent evidence of the reasonable value of the services. 13 Proof of the amount charged or paid has
been held to be sufficient evidence of reasonableness to carry the issue to the jury, 14 but there is also other
authority to the contrary. 15 When medical treatment expenses are paid from a collateral source at a discounted
rate, determining the reasonable value of the medical services becomes an issue for the finder of fact. 16 While
the question whether expenses are reasonable and reasonably necessary is generally one of fact for the jury, if it
can be said with certainty that an expense was both reasonable and necessary, the court may make the decision as
a matter of law after viewing the evidence in the light most favorable to the nonmoving party. 17
Questions of future medical, hospital, or nursing expenses, 18 including the amount to be allowed for such
expenses, 19 are for the determination of the jury unless the evidence does not show with reasonable certainty
that such expenses will be incurred 20 or is insufficient to form a basis on which the jury may reasonably estimate
the amount that should be allowed. 21
Attorney's fees.
The amount of attorney's fees to be allowed is a question of fact, 22 which may be determined by the jury 23 or,
where a statute so provides, by the trial judge. 24 The determination of reasonable attorney's fees cannot be made
in the absence of proof as to what constitutes a reasonable fee. 25
Cases:
Jury's award of $10,000 for past medical expenses of plaintiff who slipped and fell in icy parking lot was
unsupported by competent evidence to extent that it exceeded sum of $5,000, the amount that plaintiff testified
had been paid by her in out-of-pocket medical expenses. Nieves v. Riverbay Corp., 95 A.D.3d 458, 944 N.Y.S.2d
51 (1st Dep't 2012).
[END OF SUPPLEMENT]
Footnotes
Mo.Beuc v. Morrissey, 463 S.W.2d 851 (Mo. 1971).
1
2
3
4
5
6
7
8
10
Wash.Cowan v. Jensen, 79 Wash. 2d 844, 490 P.2d 436 (1971).

Ill.Starac v. Corsale, 22 Ill. App. 2d 142, 159 N.E.2d 384 (2d Dist. 1959).
Expenses as element of damage, see 63 to 87, 168 to 170.
Cost plus contract
Ga.Mabry v. Henley, 123 Ga. App. 561, 181 S.E.2d 884 (1971).
Colo.Palmer Park Gardens, Inc. v. Potter, 162 Colo. 178, 425 P.2d 268 (1967).
Mich.Walton v. Gallbraith, 15 Mich. App. 490, 166 N.W.2d 605 (1969).
Pa.Payne v. Wheeler, 207 Pa. Super. 25, 215 A.2d 316 (1965).
Vt.Kerr v. Rollins, 128 Vt. 507, 266 A.2d 804 (1970).
Cost of repairs, see 422.
U.S.Fuhrman v. Reading Co., 439 F.2d 10 (3d Cir. 1971).
Tex.Craver-Hicks Bldg. Maintenance, Inc. v. Vanlandingham, 444 S.W.2d 663 (Tex. Civ. App. El Paso 1969).
Ga.American Liberty Ins. Co. v. Sanders, 122 Ga. App. 407, 177 S.E.2d 176 (1970).
Kan.Furstenberg v. Wesley Medical Center, 200 Kan. 277, 436 P.2d 369 (1968).
Mo.Cobb v. Cosby, 416 S.W.2d 222 (Mo. Ct. App. 1967).
Submission held error in absence of proof
N.Y.Womble v. Michelson, 22 A.D.2d 815, 254 N.Y.S.2d 861 (2d Dep't 1964).
U.S.Obediencia v. Liberty Mut. Ins. Co., 403 F.2d 654 (5th Cir. 1968).
Ga.Allen v. Spiker, 301 Ga. App. 893, 689 S.E.2d 326 (2009), cert. denied, (May 17, 2010).
Or.Ellington v. Garrow, 213 Or. App. 490, 162 P.3d 328 (2007).
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Ga.Allen v. Spiker, 301 Ga. App. 893, 689 S.E.2d 326 (2009), cert. denied, (May 17, 2010).
Or.Ellington v. Garrow, 213 Or. App. 490, 162 P.3d 328 (2007).
Cal.Miller v. San Diego Gas & Elec. Co., 212 Cal. App. 2d 555, 28 Cal. Rptr. 126 (4th Dist. 1963).
Wis.Perlson v. Dairyland Mut. Ins. Co., 23 Wis. 2d 391, 127 N.W.2d 69 (1964).
Tex.Greyhound Lines, Inc. v. Craig, 430 S.W.2d 573 (Tex. Civ. App. Houston 14th Dist. 1968), writ refused n.r.e.,
(Oct. 9, 1968).
Wis.Seitz v. Seitz, 35 Wis. 2d 282, 151 N.W.2d 86 (1967) (overruled on other grounds by, Matter of Stromsted's
Estate, 99 Wis. 2d 136, 299 N.W.2d 226, 20 A.L.R.4th 185 (1980)).
Ala.Foodtown Stores, Inc. v. Patterson, 282 Ala. 477, 213 So. 2d 211 (1968).
Tex.Pelham Mfg. Co. v. Ridlehuber, 356 S.W.2d 502 (Tex. Civ. App. Waco 1962), writ refused n.r.e., (July 26,
1962).
Mich.Nasser v. Auto Club Ins. Ass'n, 435 Mich. 33, 457 N.W.2d 637 (1990).
Colo.CeBuzz, Inc. v. Sniderman, 171 Colo. 246, 466 P.2d 457 (1970).
La.Augustine v. SAFECO Nat. Ins. Co., 18 So. 3d 761 (La. Ct. App. 3d Cir. 2009).
Tex.National Freight, Inc. v. Snyder, 191 S.W.3d 416 (Tex. App. Eastland 2006).
Right of plaintiff to determination notwithstanding difficulty
S.C.Kelly v. Brazell, 253 S.C. 564, 172 S.E.2d 304 (1970).
Ill.Kacena v. George W. Bowers Co., 63 Ill. App. 2d 27, 211 N.E.2d 563 (1st Dist. 1965).
Ariz.City of Kingman v. Havatone, 14 Ariz. App. 585, 485 P.2d 574 (Div. 1 1971).
Cal.Niles v. City of San Rafael, 42 Cal. App. 3d 230, 116 Cal. Rptr. 733 (1st Dist. 1974).
Fla.Minisall v. Krysiak, 242 So. 2d 756 (Fla. Dist. Ct. App. 4th Dist. 1970).
1971).
Va.Minnix v. Hall, 211 Va. 512, 178 S.E.2d 519 (1971).
Or.State By and Through State Highway Commission v. Kendrick, 227 Or. 608, 363 P.2d 1078 (1961).
Attorney's fees as element of damages, see 83 to 87.
Fla.Riess v. Goldman, 196 So. 2d 184 (Fla. Dist. Ct. App. 3d Dist. 1967).
Ga.Townsend and Ghegan Enterprises v. W. R. Bean & Son, Inc., 117 Ga. App. 109, 159 S.E.2d 776 (1968)
(disapproved of on other grounds by, Colquitt v. Rowland, 265 Ga. 905, 463 S.E.2d 491 (1995)).
Improper submission under circumstances
Tex.Forest Park Lanes, Limited v. Keith, 441 S.W.2d 920 (Tex. Civ. App. Fort Worth 1969).
U.S.Pan Am. World Airways, Inc. v. Ramos, 357 F.2d 341 (1st Cir. 1966).
Or.State By and Through State Highway Commission v. Kendrick, 227 Or. 608, 363 P.2d 1078 (1961).
Ariz.Crouch v. Pixler, 83 Ariz. 310, 320 P.2d 943 (1958).
End of Document
419.Physical pain and suffering, 25A C.J.S. Damages 419

Damages
419. Physical pain and suffering
Matters concerning physical pain and suffering as an element of damages for personal injuries, including
the issue of future pain and suffering, are ordinarily questions of fact for the determination of the jury or
other trier of the facts.
Matters or questions concerning physical pain and suffering as an element of damages for personal injuries, 1
including the existence, 2 amount or intensity, 3 and duration 4 of pain and suffering; whether the pain and
suffering originated from the injury caused by the defendant; 5 and whether the plaintiff's evidence with respect
to pain and suffering is true, 6 are ordinarily questions of fact for the determination of the jury or other trier of
the facts. However, the jury may not eliminate pain as an element of damages where, because of the nature of the
injury, all experience proves the existence of pain. 7
The issue of future pain and suffering is also for the determination of the jury or other trier of the facts 8 where
there is sufficient competent evidence to enable the trier of the facts to make the determination with reasonable
certainty and without indulging in mere speculation or conjecture. 9 The submission of the question of future pain
and suffering to the jury is error where the nature of the injury is not such that a layman can with reasonable
certainty know whether there will be future pain and suffering, and expert testimony on that point is lacking. 10
The amount to be allowed as compensation for pain and suffering, 11 whether for past pain and suffering 12 or for
future pain and suffering, 13 is likewise a question of fact for the determination of the jury or other trier of the facts.
Cases:
Substantial evidence supported jury's conclusion that passenger who sought $250,000 in damages from driver
of car involved in collision, for shoulder injuries allegedly sustained in collision, was only entitled to $27,000;
there was conflicting evidence as to whether passenger suffered any significant injury from collision at all, and
whether passenger's subsequent injury while bow-hunting was related. Murray v. Whitcraft, 2012 MT 298, 291
P.3d 587 (Mont. 2012).
Award of $75,000 for plaintiff's past pain and suffering from injuries sustained in motor vehicle accident, including
two bulging discs in her neck, which severely restricted her range of motion, was appropriate, but $150,000 award
for future pain and suffering deviated materially from what would be reasonable compensation, rather, maximum
award for the 53yearold plaintiff's future pain and suffering was $100,000. Sulich v. City of New York, 94
A.D.3d 634, 943 N.Y.S.2d 453 (1st Dep't 2012).
[END OF SUPPLEMENT]
Footnotes
U.S.Meyers v. Wal-Mart Stores, East, Inc., 257 F.3d 625, 50 Fed. R. Serv. 3d 1598, 2001 FED App. 0233P (6th
1
Cir. 2001).
Conn.Saleh v. Ribeiro Trucking, LLC, 117 Conn. App. 821, 982 A.2d 178 (2009), judgment aff'd, 303 Conn. 276,
2011 WL 6307884 (2011).
4
5
6
7
8
10
11
12
Inherently subjective inquiry

N.Y.Leto v. Amrex Chemical Co., Inc., 85 A.D.3d 1509, 926 N.Y.S.2d 697 (3d Dep't 2011).
Fla.Holiday v. Holbrook, 168 So. 2d 752 (Fla. Dist. Ct. App. 1st Dist. 1964).
La.Cattles v. Allstate Ins. Co., 45 So. 3d 627 (La. Ct. App. 4th Cir. 2010), writ denied, 51 So. 3d 733 (La. 2010).
Inference by trier of fact
U.S.Sanchez v. U.S., 2011 WL 1155481 (C.D. Cal. 2011).
Ill.Romine v. Scott, 130 Ill. App. 2d 649, 264 N.E.2d 537 (2d Dist. 1970).
Va.Brown v. Huddleston, 213 Va. 146, 191 S.E.2d 234 (1972).
Extent
U.S.Learmonth v. Sears, Roebuck and Co., 631 F.3d 724, 84 Fed. R. Evid. Serv. 698 (5th Cir. 2011).
U.S.Tabor v. Miller, 269 F. Supp. 647 (E.D. Pa. 1967), judgment aff'd, 389 F.2d 645 (3d Cir. 1968).
Ark.Belford v. Humphrey, 244 Ark. 211, 424 S.W.2d 526 (1968).
D.C.Jones v. Miller, 290 A.2d 587 (D.C. 1972).
Cal.Butler v. Peluso, 154 Cal. App. 2d 624, 317 P.2d 57 (2d Dist. 1957).
Refusal to allow damages where the evidence is in doubt
Pa.Lesoon v. Yellow Cab Co. of Pittsburgh, 195 Pa. Super. 470, 171 A.2d 877 (1961).
Pa.Feeney v. Shook, 196 Pa. Super. 270, 175 A.2d 107 (1961).
Minn.Pagett v. Northern Elec. Supply Co., 283 Minn. 228, 167 N.W.2d 58 (1969).
Miss.APAC Mississippi, Inc. v. Johnson, 15 So. 3d 465 (Miss. Ct. App. 2009).
Pa.Connolly v. Philadelphia Transp. Co., 420 Pa. 280, 216 A.2d 60, 18 A.L.R.3d 1 (1966).
Ark.Bailey v. Bradford, 244 Ark. 8, 423 S.W.2d 565 (1968).
IowaMabrier v. A. M. Servicing Corp. of Raytown, 161 N.W.2d 180 (Iowa 1968).
Neb.Jindra v. S. M. S. Trucking Co., 187 Neb. 502, 192 N.W.2d 139 (1971).
Okla.Griffin v. Asbury, 1945 OK 111, 196 Okla. 484, 165 P.2d 822 (1945).
U.S.Dwyer v. Deutsche Lufthansa, AG, 686 F. Supp. 2d 216 (E.D. N.Y. 2010).
Ind.Lumbermens Mut. Cas. Co. v. Combs, 873 N.E.2d 692 (Ind. Ct. App. 2007).
Tex.Ruiz v. Guerra, 293 S.W.3d 706 (Tex. App. San Antonio 2009).
Amount as within sound judgment or discretion of jury, see 180.
Ill.Kacena v. George W. Bowers Co., 63 Ill. App. 2d 27, 211 N.E.2d 563 (1st Dist. 1965).
Mich.Stevens v. Edward C. Levy Co., 376 Mich. 1, 135 N.W.2d 414 (1965).
13
Neb.LeMieux v. Sanderson, 180 Neb. 311, 142 N.W.2d 557 (1966).

Tex.Millers Cas. Ins. Co. of Tex. v. Fowler, 472 S.W.2d 863 (Tex. Civ. App. Beaumont 1971).
End of Document
420.Mental pain and suffering, 25A C.J.S. Damages 420

Damages
420. Mental pain and suffering
The issue of mental pain and suffering and the amount of compensation to be awarded for mental pain and
suffering are ordinarily questions of fact for the determination of the jury or other trier of the facts.
The issue of mental pain and suffering 1 and incidental questions involved therein, such as questions concerning
the amount of mental suffering endured by the plaintiff, 2 whether there was a causal connection between the
plaintiff's mental condition and the defendant's wrongful act, 3 whether the plaintiff will suffer mental pain or
anguish in the future, 4 whether the plaintiff suffered an emotional trauma as a result of being involved in an
impact that fatally injured a relative, 5 and whether the plaintiff sustained physical injury as a result of mental pain
or anguish, 6 are ordinarily for the jury or other trier of the facts where there is sufficient competent evidence. 7
Likewise, the amount of compensation for mental pain and suffering ordinarily is for the jury. 8
In an action against the defendant for intentional infliction of emotional distress, if the reasonableness of the
defendant's belief that his or her objective is legitimate arises, the court, not the jury, must determine the
reasonableness of this belief by interpreting and applying the rule of law though if the inquiry is a mixed question of
law and fact, the jury should resolve the factual issues under proper instructions from the court. 9 Where damages
are sought for intentional and outrageous conduct with respect to a breach of contract that proximately causes
severe, foreseeable emotional distress, the court decides whether severe, foreseeable emotional distress can be
found, and the jury decides whether it in fact has been proved. 10
The distress experienced by the plaintiffs over a breach of contract may, as a matter of law, be insufficient to state
a cause of action for intentional infliction of emotional distress where the plaintiffs' anger is consistent with that
which accompanies a breach of a contractual obligation, but there is no evidence of grief, depression, disruption
of lifestyle, or of treatment for anxiety or depression. 11
Direct proof of mental suffering accompanying a physical injury need not be offered in order for the jury to
consider mental suffering as an element of damages. 12 Testimony by the plaintiff that he or she suffered mental
pain or anguish may be sufficient evidence to justify submission of the issue, 13 but where there is a question as to
the cause of the plaintiff's alleged psychiatric involvement or mental state, expert testimony may be necessary. 14
Cases:
Issue whether truck driver was entitled to emotional-distress damages was for jury in personal-injury action
arising from motor-vehicle accident; truck driver's boss testified that truck driver was rattled, rambling, and pale at
accident scene, motorist negligently caused accident, truck driver was traumatized when he learned that motorist
had died, and truck driver's doctor testified that truck driver's post-traumatic stress disorder was caused by his
involvement in fatal accident. Estate of Miles v. Burcham, 127 So. 3d 213 (Miss. 2013).
[END OF SUPPLEMENT]
Footnotes
U.S.Bishop v. Byrne, 265 F. Supp. 460, 11 Fed. R. Serv. 2d 59 (S.D. W. Va. 1967).
1
Tex.Floyd v. Organ, 359 S.W.2d 190 (Tex. Civ. App. Austin 1962), writ refused n.r.e., (Oct. 31, 1962).
Weighing of evidence and credibility of the witnesses
Ind.Weinberger v. Boyer, 956 N.E.2d 1095 (Ind. Ct. App. 2011).
Necessarily speculative
Tex.Ruiz v. Guerra, 293 S.W.3d 706 (Tex. App. San Antonio 2009).
2
3
4
5
6
7
Future pain and suffering

Miss.APAC Mississippi, Inc. v. Johnson, 15 So. 3d 465 (Miss. Ct. App. 2009).
Fla.Kraus v. Osteen, 135 So. 2d 885 (Fla. Dist. Ct. App. 2d Dist. 1961).
Mass.Skelton v. Massachusetts Elec. Co., 358 Mass. 807, 263 N.E.2d 465 (1970).
N.Y.Callarama v. Associates Discount Corp. of Del., 69 Misc. 2d 287, 329 N.Y.S.2d 711 (Sup 1972).
Minn.Edwards v. Engen, 288 Minn. 1, 178 N.W.2d 731 (1970).
Ind.Shuamber v. Henderson, 579 N.E.2d 452 (Ind. 1991).
Cal.Espinosa v. Beverly Hospital, 114 Cal. App. 2d 232, 249 P.2d 843 (2d Dist. 1952).
Cal.Fletcher v. Western National Life Ins. Co., 10 Cal. App. 3d 376, 89 Cal. Rptr. 78, 47 A.L.R.3d 286 (4th Dist.
1970).
Mich.Mulcahy v. Argo Steel Const. Co., 4 Mich. App. 116, 144 N.W.2d 614 (1966).
9
10

Or.Pakos v. Clark, 253 Or. 113, 453 P.2d 682 (1969).
Ark.Eisele v. Beaudoin, 240 Ark. 227, 398 S.W.2d 676 (1966).
Amount as within discretion of jury, see 181.
Mental suffering as element of damage, see 106 to 117, 181.
Arbitrary judgment
W.Va.Keiffer v. Queen, 155 W. Va. 868, 189 S.E.2d 842 (1972).
Ill.McGrath v. Fahey, 126 Ill. 2d 78, 127 Ill. Dec. 724, 533 N.E.2d 806 (1988).
N.J.Picogna v. Board of Educ. of Tp. of Cherry Hill, 143 N.J. 391, 671 A.2d 1035, 107 Ed. Law Rep. 859 (1996).
11
12
13
Mich.Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 374 N.W.2d 905 (1985).
Tex.Griffith v. Casteel, 313 S.W.2d 149 (Tex. Civ. App. Houston 1958), writ refused n.r.e.
Or.Fehely v. Senders, 170 Or. 457, 135 P.2d 283, 145 A.L.R. 1092 (1943).
Complaints of nervousness and fright
Pa.Richardson v. Wilkes-Barre Transit Corp., 172 Pa. Super. 636, 95 A.2d 365 (1953).
14
Refusal to assess damages on subjective elements

N.H.Gomes v. Roy, 99 N.H. 233, 108 A.2d 552 (1954).
Okla.Barnett v. Richardson, 1966 OK 101, 415 P.2d 987 (Okla. 1966).
End of Document
421.Aggravation, mitigation, and reduction of loss, 25A C.J.S. Damages 421

Damages
421. Aggravation, mitigation, and reduction of loss
Whether the plaintiff's actions aggravated his or her injury and whether the plaintiff violated the duty to
take measures to prevent or reduce his or her loss, such as by failing to take proper medical treatment, are,
on conflicting evidence, questions of fact for the determination of the jury.
Assertions by a defendant that the plaintiff's actions forestall all or at least some of the plaintiff's damages, or an
assertion that the plaintiff's recovery should be reduced by the percentage of plaintiff's damages that are attributable
to the plaintiff's action or inactions, are customarily addressed by the fact finder at trial. 1 Thus, whether the
plaintiff's actions subsequent to the injury caused by the defendant aggravated the injury 2 and whether the plaintiff
violated his or her duty to take measures to prevent or reduce loss 3 are, on conflicting evidence, questions of fact
for the determination of the jury or other trier of the facts. In other words, whether the injured party violated his
or her duty to mitigate damages is a question for the trier of fact when there is conflicting evidence. 4 Incidental
questions of fact involved in these matters are also for determination by the jury, 5 such as whether losses sustained
by the plaintiff could have been prevented by reasonable efforts on the plaintiff's part, 6 whether the plaintiff
exercised reasonable care and diligence 7 or did all he or she reasonably could 8 to minimize the damages, and
whether the plaintiff acted in good faith in an attempt to reduce damages. 9 However, the defense of failure to
mitigate damages will not be presented to the jury unless the trial court determines that there is sufficient evidence
to support it. 10
Whether the plaintiff acted as a reasonably prudent person in the matter of medical treatment for his or her
injuries in order to minimize damages 11 and whether certain medical treatment advocated to minimize damages
is reasonable 12 are, on conflicting evidence, questions of fact for the jury. Accordingly, whether the plaintiff
should submit to a surgical operation in order to mitigate damages is a question for the jury, 13 but it should not
be submitted to the jury in the absence of evidence showing the extent of hazards of death or injury and of pain
and suffering involved. 14
Where there is no conflict in the evidence as to the facts imposing a duty to mitigate damages, such question
should not be, or need not be, submitted to the jury. 15 Thus, where there is no evidence that the plaintiff failed
to obtain adequate medical treatment or to follow medical advice, the issue of mitigation of damages is properly
withdrawn from the jury. 16
A parent's decision not to submit an infant to remedial medical treatment or surgery and concomitant failure to
mitigate damages cannot be attributed to an infant plaintiff and, therefore, cannot be presented to the jury. 17
Offset.
The issue of whether a subcontractor was entitled to any offset from damages for future payments made by the
Department of Health and Environmental Control to the contractor on groundwater remediation contracts was for
the jury in the contractor's breach-of-contract action. 18
Cases:
Whether it is reasonable to expect a plaintiff to perform specific acts of mitigation is a question of fact. McCormick
Intern. USA, Inc. v. Shore, 152 Idaho 920, 277 P.3d 367 (2012).
[END OF SUPPLEMENT]
Footnotes
Tex.In re Texas Mut. Ins. Co., 2011 WL 3435738 (Tex. App. Austin 2011).
1
U.S.Hughes v. Mobil Oil Corp., 421 F.2d 1248 (5th Cir. 1970).
2
Del.Aleardi v. Tiberi, 269 A.2d 404 (Del. 1970).
5
6
7

N.M.Rutledge v. Johnson, 81 N.M. 217, 465 P.2d 274 (1970); Martin v. Darwin, 77 N.M. 200, 420 P.2d 782 (1966).
Ariz.Fairway Builders, Inc. v. Malouf Towers Rental Co., Inc., 124 Ariz. 242, 603 P.2d 513 (Ct. App. Div. 1 1979).
Colo.Powell v. Brady, 30 Colo. App. 406, 496 P.2d 328 (App. 1972), judgment aff'd, 181 Colo. 218, 508 P.2d 1254
(1973).
Tex.Hertz Equipment Rental Corp. v. Barousse, 2011 WL 3207793 (Tex. App. Houston 1st Dist. 2011), review
denied, (Dec. 16, 2011).
Damages arising from breach of contract
U.S.In re Sportsman's Warehouse, Inc., 457 B.R. 372 (Bankr. D. Del. 2011).
U.S.Sellers v. State Farm Mut. Auto. Ins. Co., 314 F. Supp. 78 (S.D. Ga. 1970).
Minn.Marshall v. Marvin H. Anderson Const. Co., 283 Minn. 320, 167 N.W.2d 724 (1969).
Cal.Stiner v. Travelers Indem. Co., 226 Cal. App. 2d 128, 37 Cal. Rptr. 813 (4th Dist. 1964).
Pa.Kinee v. Gellar, 435 Pa. 387, 257 A.2d 554 (1969).
Reasonable diligence
Wyo.M & M Auto Outlet v. Hill Inv. Corp., 2010 WY 56, 230 P.3d 1099 (Wyo. 2010).
Whether a plaintiff acted reasonably to minimize damage
Va.Evans v. Evans, 280 Va. 76, 695 S.E.2d 173 (2010).
8
9
10
11
12
13
14
15
16
17
18
Whether a party's mitigation efforts were reasonable

U.S.BP Amoco Chemical Co. v. Flint Hills Resources, LLC, 697 F. Supp. 2d 1001 (N.D. Ill. 2010).
Ky.Smith v. Ward, 256 S.W.2d 385 (Ky. 1953).
Tenn.Tennessee Packers, Inc. v. Tennessee Cent. Ry. Co., 45 Tenn. App. 57, 319 S.W.2d 502 (1958).
Okla.Murduck v. City of Blackwell, 1946 OK 365, 198 Okla. 171, 176 P.2d 1002 (1946).
U.S.Garcia v. Wal-Mart Stores, Inc., 209 F.3d 1170, 46 Fed. R. Serv. 3d 441 (10th Cir. 2000).
Haw.Franco v. Fujimoto, 47 Haw. 408, 390 P.2d 740 (1964) (overruled in part on other grounds by, Barretto v.
Akau, 51 Haw. 383, 51 Haw. 461, 463 P.2d 917 (1969)).
U.S.Ambrose v. Norfolk Dredging Co., 284 F.2d 802 (4th Cir. 1960).
Wash.Martin v. Foss Launch & Tug Co., 59 Wash. 2d 302, 367 P.2d 981 (1962).
N.J.Budden v. Goldstein, 43 N.J. Super. 340, 128 A.2d 730 (App. Div. 1957) (overruled in part on other grounds
by, Botta v. Brunner, 26 N.J. 82, 138 A.2d 713, 60 A.L.R.2d 1331 (1958)).
IdahoBratton v. Slininger, 93 Idaho 248, 460 P.2d 383 (1969).
Ky.Wagers v. Frantz, Inc., 445 S.W.2d 453 (Ky. 1969).
Tex.Polasek v. Quinius, 438 S.W.2d 828 (Tex. Civ. App. Austin 1969), writ refused n.r.e., (July 2, 1969).
U.S.Greyhound Corp. v. Blakley, 262 F.2d 401 (9th Cir. 1958).
N.Y.Favier by Favier v. Winick, 151 Misc. 2d 910, 583 N.Y.S.2d 907 (Sup 1992).
S.C.V.E. Amick & Associates, LLC v. Palmetto Environmental Group, Inc., 394 S.C. 538, 716 S.E.2d 295 (Ct.
App. 2011).
End of Document
422.Other questions, 25A C.J.S. Damages 422

Damages
422. Other questions
On conflicting evidence, various questions of fact concerning damages have been held to be for
determination by the jury or other trier of the facts.
On conflicting evidence, various questions of fact concerning damages, in addition to those already enumerated,
have been held to be for determination by the jury or other trier of the facts, including questions concerning the
value of property 1 or services performed, 2 loss of profits, 3 ownership of property, 4 the cost of repairs, 5 the
proper method of repair, 6 loss of the use of a vehicle for the period during which it was being repaired, 7 loss
of a wife's services and consortium, 8 loss of a husband's consortium, 9 loss of a minor's services to his or her
parents, 10 and the life expectancy of the injured person. 11
Interest and attorney's fees.

Like other elements of damages, prejudgment interest must be ascertained and assessed by the trier of fact. 12
When the only issues in a contract case are damages in the form of interest and attorney's fees, the trial court
may calculate those amounts and enter judgment accordingly and need not call a jury to calculate the interest or
to award attorney's fees. 13 Moreover, the determination of whether interest should be awarded as damages for
detention of money after it becomes payable is a question for the trier of fact. 14 In a case tried without a jury,
the determination to allow interest as an element of damages is primarily an equitable matter lying within the
trial court's discretion. 15
Special damages from breach of contract.

Where the plaintiff seeks to recover damages arising out of special circumstances surrounding the contract and
different from those that would naturally and probably flow from the breach, whether the special circumstances
were within the contemplation of the parties at the time of making the contract is, on conflicting evidence, a
question of fact for the jury. 16 However, where the question is so clear to the mind of the judge that he or she
believes that a contrary view would be unreasonable, the judge is to find the fact or apply the standard. 17
422.Other questions, 25A C.J.S. Damages 422
Footnotes
U.S.Watsontown Brick Co. v. Hercules Powder Co., 387 F.2d 99 (3d Cir. 1967); J. A. Jones Const. Co. v. Greenbriar
1
2
3
4
5
6
7
8
Shopping Center, 332 F. Supp. 1336 (N.D. Ga. 1971), judgment aff'd, 461 F.2d 1269 (5th Cir. 1972).
Mass.Medford Housing Authority v. Marinucci Bros. & Co., 354 Mass. 699, 241 N.E.2d 834 (1968).
IowaShriver v. Cook, 256 Iowa 271, 127 N.W.2d 102 (1964).
Ariz.Harris Cattle Co. v. Paradise Motors, Inc., 104 Ariz. 66, 448 P.2d 866 (1968).
Mich.Uganski v. Little Giant Crane & Shovel, Inc., 35 Mich. App. 88, 192 N.W.2d 580, 10 U.C.C. Rep. Serv. 57
(1971).
Tex.Murrah v. Lopez, 279 S.W.2d 159 (Tex. Civ. App. Austin 1955).
Colo.Simpson v. Digiallonardo, 29 Colo. App. 556, 488 P.2d 208 (App. 1971).
U.S.Tupper v. Continental Oil Co., 73 F. Supp. 4 (W.D. La. 1947).
Ga.Darrah v. Womack, 123 Ga. App. 766, 182 S.E.2d 518 (1971).
Only testimony that of husband and wife
Kan.Briscoe v. Ehrlich, 9 Kan. App. 2d 191, 674 P.2d 1064 (1984).
10
11
12
13
14
15
16
17

OhioBauer v. Pullman Co., 15 Ohio App. 2d 69, 44 Ohio Op. 2d 165, 239 N.E.2d 226 (10th Dist. Franklin County
1968).
Colo.Nichols v. Montgomery Ward Co., 489 P.2d 351 (Colo. App. 1971).
Ga.Welsh v. Fowler, 124 Ga. App. 369, 183 S.E.2d 574 (1971).
Mo.Boland v. Jando, 414 S.W.2d 560 (Mo. 1967).
Ill.Tjaden v. Moses, 94 Ill. App. 2d 361, 237 N.E.2d 562 (3d Dist. 1968).
Ark.Eisele v. Beaudoin, 240 Ark. 227, 398 S.W.2d 676 (1966).
Fla.Minisall v. Krysiak, 242 So. 2d 756 (Fla. Dist. Ct. App. 4th Dist. 1970).
Tex.Chemical Exp. v. Cole, 342 S.W.2d 773 (Tex. Civ. App. Dallas 1961), writ refused n.r.e., (May 10, 1961).
Fla.Department of Transp. v. Hawkins Bridge Co., 457 So. 2d 525 (Fla. Dist. Ct. App. 1st Dist. 1984).
Interest as element of damage, see 88 to 99, 171, 172.
Questions of law and fact in actions to recover interest as interest, see C.J.S., Interest and Usury; Consumer Credit 142.
Mo.Bydalek v. Brines, 29 S.W.3d 848 (Mo. Ct. App. S.D. 2000).
Conn.Foley v. Huntington Co., 42 Conn. App. 712, 682 A.2d 1026 (1996).
Conn.Keppel v. BaRoss Builders, Inc., 7 Conn. App. 435, 509 A.2d 51 (1986).
N.Y.Bright-Top Inc. v. Verrico, Inc., 32 A.D.2d 758, 300 N.Y.S.2d 877 (1st Dep't 1969).
D.C.Morfessis v. Sterling Metalware Co., 193 A.2d 66 (D.C. 1963).
End of Document
Research References, 25A C.J.S. Damages X D Refs.
25A C.J.S. Damages X D Refs.

Damages
D. Instructions
Research References
A.L.R. Library
West's A.L.R. Digest, Damages 210(1) , 210(2) , 210(4) , 211 , 213 , 214 , 215(1) to 215(3) , 216(1) to 216(10)
, 217 , 218
End of Document
423.Duty of court to instruct, 25A C.J.S. Damages 423

Damages
D. Instructions
1. In General
423. Duty of court to instruct
Generally, it is the duty of the court to instruct the jury regarding the elements, measure, and assessment
of damages, and in this connection, it should limit the jury's consideration to facts that are properly a part
of the damages allowable.
Ordinarily, it is the duty of the court to instruct the jury as to the proper basis on which damages are to be estimated,
so that the matter may not be left to their uncontrolled discretion, 1 as by furnishing them with a proper criterion, 2
guide, 3 rule, 4 method, 5 or standard 6 by which to assess or determine damages. In those jurisdictions holding
that it is not compulsory to give instructions in a civil action, 7 instructions are not erroneous for omitting reference
to the measure of damages. 8
The court's charge to the jury must be sufficiently instructive to enable the jury to make an award of damages on
the proper grounds and the correct principles of the law. 9 The proper measure of damages is a question of law
for the court, and the court's charge should limit the jury's consideration to facts that are properly a part of the
damages allowable. 10 The court should instruct as to the elements, items, and factors to be considered in assessing
damages. 11 The defendant may be entitled to an instruction as to the items that are not to be considered. 12
However, a negative instruction describing what does not constitute an element of damages is not normally
appropriate unless there is something in the proof that tends to cast the question into doubt. 13 In an action
involving several different elements of damage, the court should charge with respect to each element. 14 Likewise,
courts should provide separate jury instructions for each theory of liability that clearly explain the elements of each
claim, thus enabling the jury to consider whether the plaintiff has met its burden of proof with respect to each. 15
Where separate actions against several defendants are tried together, the plaintiff is entitled to a full and accurate
statement of the law applicable to the liability of each defendant. 16 Similarly, in an action by several plaintiffs
against the same defendant, separate instructions as to the damage to each plaintiff are proper. 17 If distinct causes
produce distinct harms, or if distinct causes produce a single harm and the evidence presented at trial provides
a reasonable basis for determining the contribution of each cause to the single harm, a trial court should instruct
the jury to apportion the damages to the distinct causes without resorting to comparative fault; if, however, the
evidence does not permit apportionment of the damage between separate causes, then comparative fault principles
apply, and the trial court should instruct the jury to apportion damages according to the proportionate fault of
the parties. 18
Speculative or quotient verdicts.

Although the practice of giving such instructions has been commended, 19 it is not error to refuse to give a
cautionary instruction relative to quotient verdicts 20 or to tell the jury that a damage verdict could not be
speculative. 21 This is a matter resting in the discretion of the trial court. 22
Footnotes
Ala.Cunningham v. Lowery, 45 Ala. App. 700, 236 So. 2d 709 (Civ. App. 1970).
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Md.Montgomery Ward & Co., Inc. v. Cliser, 267 Md. 406, 298 A.2d 16 (1972).
Vt.Smith v. State Highway Bd., 128 Vt. 336, 262 A.2d 486 (1970).
Limitation of recovery to amount claimed in pleadings, see 425.
As to the duty of the court to instruct the jury of its own motion and without request of either party concerning damages,
or to give further and more explicit instructions without request, see C.J.S., Trial 685, 688, 689.
Ky.Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705 (Ky. 2009).
U.S.Stentor Electric Mfg. Co. v. Klaxon Co., 115 F.2d 268 (C.C.A. 3d Cir. 1940), judgment rev'd on other grounds,
313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941).
Miss.A & F Properties, LLC v. Lake Caroline, Inc., 775 So. 2d 1276 (Miss. Ct. App. 2000).
Insufficient guidance
Miss.Mississippi State Highway Commission v. Engell, 251 Miss. 855, 171 So. 2d 860 (1965).
Ga.Homasote Co. v. Stanley, 104 Ga. App. 636, 122 S.E.2d 523 (1961).
Ga.Mayor and Council of Americus v. Brightwell, 90 Ga. App. 341, 82 S.E.2d 732 (1954).
Neb.Benedict v. Eppley Hotel Co., 159 Neb. 23, 65 N.W.2d 224 (1954).
Or.Buck v. Mueller, 221 Or. 271, 351 P.2d 61 (1960).
C.J.S., Trial 547.
Mo.Mayor, Councilmen and Citizens of City of Liberty v. Boggess, 321 S.W.2d 677 (Mo. 1959) (disapproved of
on other grounds by, Bueche v. Kansas City, 492 S.W.2d 835 (Mo. 1973)).
Tex.Browning Oil Co., Inc. v. Luecke, 38 S.W.3d 625 (Tex. App. Austin 2000).
Tex.Browning Oil Co., Inc. v. Luecke, 38 S.W.3d 625 (Tex. App. Austin 2000).
Ala.Bearden v. LeMaster, 284 Ala. 588, 226 So. 2d 647 (1969).
Ga.Jones v. Spindel, 122 Ga. App. 390, 177 S.E.2d 187 (1970).
Md.Sullivan v. Miller, 26 Md. App. 189, 337 A.2d 185 (1975).
Miss.Edelen v. Jackson Coca-Cola Bottling Co., 782 So. 2d 1256 (Miss. Ct. App. 2001).
Neb.Main v. Sorgenfrei, 174 Neb. 523, 118 N.W.2d 648 (1962).
Jury instructions stating varying rules governing differing elements
Ga.Porter v. Bland, 105 Ga. App. 703, 125 S.E.2d 713 (1962).
Tenn.Concrete Spaces, Inc. v. Sender, 2 S.W.3d 901 (Tenn. 1999).
Cal.Gaskill v. Pacific Hospital of Long Beach, 272 Cal. App. 2d 128, 77 Cal. Rptr. 373 (2d Dist. 1969).
Colo.Alexander v. White, 488 P.2d 1120 (Colo. App. 1971).
17
18
19
20
21
22
Instruction as to apportionment held erroneous

Ky.Davis v. Johnson, 436 S.W.2d 492 (Ky. 1969).
S.C.Rourk v. Selvey, 252 S.C. 25, 164 S.E.2d 909 (1968).
Ill.Thomas v. Meyer, 345 Ill. App. 84, 101 N.E.2d 626 (2d Dist. 1951).
Ky.Owens Corning Fiberglas Corp. v. Parrish, 58 S.W.3d 467 (Ky. 2001), as modified, (Nov. 7, 2001).
Mont.Thomas v. Whiteside, 148 Mont. 394, 421 P.2d 449 (1966).
S.C.Bunton v. South Carolina State Highway Dept., 186 S.C. 463, 196 S.E. 188 (1938).
Mo.Ritchie v. State Board of Agriculture, 297 S.W. 435 (Mo. Ct. App. 1927).
Or.Forrest v. Turlay, 125 Or. 251, 266 P. 229 (1928).
End of Document
424.Form and requisites, generally, 25A C.J.S. Damages 424

Damages
D. Instructions
1. In General
424. Form and requisites, generally
Instructions relative to damages should comply with the general rules governing the form and requisites of
instructions in civil actions and should correctly state the applicable law.
The form and requisites of instructions to the jury concerning damages should comply with those applicable to
instructions generally. 1
It is proper for the court to instruct the jury as a matter of law on the measure of damages. 2 Instructions to the
jury concerning damages should correctly state the applicable law. 3 In other words, instructions should correctly
state the substantive rules of damages, 4 and it is proper to refuse requested instructions that fail to state such
rules correctly. 5 The propriety of any particular charge as to damages should be determined in the light of the
attendant circumstances. 6
Instructions on the subject of damages should not be ambiguous, 7 or too broad, general, and indefinite, 8
nor should the charge as to damages be confusing, 9 contradictory, 10 or misleading. 11 Further, the charge or
instruction as to damages should not be vague and uncertain. 12 The instructions should contain no irrelevant
statements, especially such as may be construed as an intimation of the court adverse to either litigant, respecting
the merits of the case on the facts. 13
The fact that the measure of damages has been correctly stated in one portion of the charge will not cure the error
in employing language in another portion of the charge sufficiently broad to amount to an intimation that the
damages are to be assessed without the application of any rule of law whatever. 14 A request for an instruction
that does not disclose the theory on which it is to be given may be properly refused as misleading. 15
Directing an award of damages.
An instruction as to an award of exemplary damages should ordinarily be permissive and not mandatory. 16
Moreover, it is proper to charge that the question of damages should not be considered until the issue of liability
is first determined. 17 It is not error, where the wrong is clearly established or admitted, to instruct the jury to
ascertain the amount of damages. 18 Where damages for both personal injuries and property damage are sought,
the court has the duty to instruct the jury that it shall state amount awarded in respect of each, including none
if such be the case. 19
Alternative instructions.
The court may give different ways for estimating damages where they are consistent with each other and would
each produce the same result. 20 In a case where nominal damages may be recovered, it is proper to state that in a
certain contingency, actual damages may be recovered and that in a certain other contingency, nominal damages
only are recoverable. 21
Footnotes
U.S.Dugas v. Kansas City Southern Ry. Lines, 473 F.2d 821 (5th Cir. 1973).
1
Conn.Terminal Taxi Co. v. Flynn, 156 Conn. 313, 240 A.2d 881 (1968).
Mo.Homm v. Oakes, 453 S.W.2d 679 (Mo. Ct. App. 1970).
As to form and requisites of instructions, generally, see C.J.S., Trial 577 to 595.
Monetary examples avoided

N.Y.Devine v. Keller, 32 A.D.2d 34, 299 N.Y.S.2d 249 (3d Dep't 1969).
Ark.Beggs v. Stalnaker, 237 Ark. 281, 372 S.W.2d 600 (1963).
Cal.Hom v. Clark, 221 Cal. App. 2d 622, 35 Cal. Rptr. 11 (1st Dist. 1963).
Converse instructions
Mo.Aubuchon v. LaPlant, 435 S.W.2d 648 (Mo. 1968).
IdahoEvans v. Small, 94 Idaho 448, 489 P.2d 1404 (1971).
Mo.Moore v. Huff, 429 S.W.2d 1 (Mo. Ct. App. 1968).
N.Y.Williams v. Long Island R. R., 41 A.D.2d 940, 343 N.Y.S.2d 700 (2d Dep't 1973).
Instructions where law provides definite measure of damages
Neb.White v. Longo, 190 Neb. 703, 212 N.W.2d 84 (1973).
"Golden Rule" instruction
A "Golden Rule" instruction that if a defendant was found liable, jury should award such damages "as you yourself
would want to be awarded if you were the plaintiff and were entitled to have damages awarded" was erroneous.
U.S.McNamara v. Dionne, 298 F.2d 352, 5 Fed. R. Serv. 2d 798 (2d Cir. 1962).
4
5
6
7
8
A.L.R. Library
Instructions in a personal injury action which, in effect, tell jurors that in assessing damages they should put themselves
in injured person's place, 96 A.L.R.2d 760.
Neb.Enterprise Co. v. Sanitary Dist. No. One of Lancaster County, 176 Neb. 271, 125 N.W.2d 712 (1964).
Ill.Raines v. New York Cent. R. Co., 51 Ill. 2d 428, 283 N.E.2d 230 (1972).
Instruction either confusing or incorrect
Va.Honsinger v. Egan, 266 Va. 269, 585 S.E.2d 597 (2003).
Ala.Tennessee Corp. v. Barnett, 269 Ala. 450, 114 So. 2d 135 (1959).
IdahoGonzales v. Hodsdon, 91 Idaho 330, 420 P.2d 813 (1966).
N.C.North Carolina State Highway Commission v. Thomas, 2 N.C. App. 679, 163 S.E.2d 649 (1968).
Tex.City of Fort Worth v. Satterwhite, 329 S.W.2d 899 (Tex. Civ. App. Fort Worth 1959).
9
10
11
12
13
14
15
16
17
Mere generality not error

U.S.Harris v. Norfolk Southern Ry., 319 F.2d 493 (4th Cir. 1963).
Va.Honsinger v. Egan, 266 Va. 269, 585 S.E.2d 597 (2003).
Mo.Baker v. Fortney, 299 S.W.2d 563 (Mo. Ct. App. 1957).
W.Va.West Virginia Dept. of Highways v. Bartlett, 156 W. Va. 431, 194 S.E.2d 383 (1973).
Instructions held not misleading
U.S.Harris v. Norfolk Southern Ry., 319 F.2d 493 (4th Cir. 1963).
Fla.Raffel v. Magarian, 165 So. 2d 249 (Fla. Dist. Ct. App. 3d Dist. 1964).
Mo.DeLong v. Broadston, 272 S.W.2d 493 (Mo. Ct. App. 1954).
Miss.Atwood v. Lever, 274 So. 2d 146 (Miss. 1973).
OhioJarvis v. Hall, 3 Ohio App. 2d 321, 32 Ohio Op. 2d 429, 210 N.E.2d 414 (4th Dist. Scioto County 1964).
Or.Horner v. Wagy, 173 Or. 441, 146 P.2d 92 (1944).
Tex.Crain v. West Tex. Utilities Co., 218 S.W.2d 512 (Tex. Civ. App. Eastland 1949), writ refused n.r.e.
230, 231.
Conn.Warren v. City of Bridgeport, 129 Conn. 355, 28 A.2d 1 (1942).
Assumption that elements of damages not considered absent finding liability
U.S.Nice v. Chesapeake & O. Ry. Co., 305 F. Supp. 1167 (W.D. Mich. 1969).
18
19
20
21
Additional language indicating doubt of liability improper

Ill.Logue v. Williams, 111 Ill. App. 2d 327, 250 N.E.2d 159 (5th Dist. 1969).
Ga.Housing Authority of Savannah v. Savannah Iron & Wire Works, Inc., 91 Ga. App. 881, 87 S.E.2d 671 (1955).
Md.Richardson v. Boato, 207 Md. 301, 114 A.2d 49 (1955).
Awards for each must be stated separately
Mo.Cobb v. Cosby, 416 S.W.2d 222 (Mo. Ct. App. 1967).
Mo.Crews v. Illinois Terminal R. Co., 260 S.W.2d 765 (Mo. Ct. App. 1953).
Miss.Wells v. Branscome, 222 Miss. 1, 74 So. 2d 743 (1954).
End of Document
425.Limitation of recovery to amount claimed in pleadings, 25A C.J.S. Damages 425

Damages
D. Instructions
1. In General
425. Limitation of recovery to amount claimed in pleadings
Instructions relative to damages should conform to the pleadings and should limit recovery to the amount
claimed.
The charge as to damages should conform to the pleadings, 1 limiting the damages to those sought in the
complaint. 2 Thus, an instruction submitting an item of damages, recovery of which is not sought in the complaint,
is error, 3 and although there is some authority to the contrary, 4 it is ordinarily error to charge that the jury may
award damages in an amount greater than that asked for in the complaint. 5
It has been held that, regardless of the amount of damages that the evidence submitted would justify, an instruction
that does not clearly limit the recovery of damages to the amount claimed in the petition is erroneous; 6 however,
it has also been held that an instruction is not objectionable as leading the jury to believe that they must award the
full amount claimed unless so mistakenly phrased as to indicate that such is the case 7 and that where the damages
as shown by the evidence are within the limits of those pleaded, it is unnecessary to instruct the jury to assess
damages within the amount claimed by the pleadings. 8
Where evidence has been introduced concerning items not pleaded, the jury should be instructed not to allow
damages therefor. 9
In an action against an insurance company and another, the latter is entitled on request to have the jury advised
that the liability of the company is limited to a specified sum. 10
Footnotes
U.S.Union Oil Co. of California v. Hunt, 111 F.2d 269 (C.C.A. 9th Cir. 1940); Pure Oil Pipe Line Co. v. Ross, 51
1
F.2d 925 (C.C.A. 10th Cir. 1931).
Conn.Panaroni v. Johnson, 158 Conn. 92, 256 A.2d 246 (1969).
Minn.Wallace v. Nelson, 287 Minn. 438, 178 N.W.2d 698 (1970).
425.Limitation of recovery to amount claimed in pleadings, 25A C.J.S. Damages 425
3
4
5
6
7
8
9
10
Colo.Liber v. Flor, 160 Colo. 7, 415 P.2d 332, 35 A.L.R.3d 1165 (1966).
Va.State Farm Mut. Auto. Ins. Co. v. Futrell, 209 Va. 266, 163 S.E.2d 181 (1968).
Personal injury cases, see 434.
Instructions upheld
Kan.Ketner v. Atchison, T. & S. F. Ry. Co., 212 Kan. 453, 510 P.2d 1220 (1973).
Ala.Revel v. Prince, 37 Ala. App. 457, 69 So. 2d 470 (1954).
Ala.Louisville & N.R. Co. v. Sturdivant, 21 Ala. App. 24, 104 So. 868 (1925).
U.S.Smith v. Brady, 390 F.2d 176 (4th Cir. 1968).
Ariz.Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444 (1962).
Ky.Pape v. Sutherland, 310 Ky. 199, 220 S.W.2d 372 (1949).
D.C.Evening Star Newspaper Co. v. Gray, 179 A.2d 377 (Mun. Ct. App. D.C. 1962).
Mo.Irle v. Irle, 284 S.W.2d 44 (Mo. Ct. App. 1955).
Mo.Kelly v. Kiel, 117 S.W.2d 1086 (Mo. Ct. App. 1938).
Wash.Field v. North Coast Transp. Co., 164 Wash. 123, 2 P.2d 672, 76 A.L.R. 1114 (1931).
End of Document
426.Restriction of jury to damages proximately caused..., 25A C.J.S. Damages ...

Damages
D. Instructions
1. In General
426. Restriction of jury to damages proximately caused
by defendant's wrong, as shown by admitted evidence
Instructions to the jury should confine recovery to those damages proximately resulting from the wrong.
The charge of the court must be based upon the evidence and should confine the jury to such damages as
are shown by evidence.
Instructions should confine the jury to such damages as are shown by the evidence to have proximately resulted
from the act complained of 1 and should be so worded as to prevent the jury from considering damages that are
too remote or speculative. 2
The charge of the court must be based upon the evidence 3 and should confine the jury to such damages as are
shown by evidence 4 even though the pleadings may aver greater damages. 5 Indeed, the instructions should
conform to the circumstances in proof and must not be so framed as to allow the jury to assess damages without
regard to the evidence in the case. 6 According to some authority, the instructions as to damages must limit the
jury to a consideration of the evidence and must do so expressly. 7
It has been held that unless the admission of settlement evidence is relevant for some other purpose, no evidence of
a settlement or the amount of a settlement is admissible, and the judge shall instruct the jury to determine damages
that the defendant substantially caused, the judge making the appropriate reduction in the amount to be awarded
to the plaintiff if the jury returns a plaintiff's verdict. 8
Footnotes
U.S.Willmore v. Hertz Corp., 322 F. Supp. 444 (W.D. Mich. 1969), judgment aff'd, 437 F.2d 357 (6th Cir. 1971).
1
Ill.Scheck v. Evanston Cab Co., 93 Ill. App. 2d 220, 236 N.E.2d 258 (1st Dist. 1968).
Instructions held sufficient
S.D.Wieting v. Ball Air Spray, Inc., 84 S.D. 493, 173 N.W.2d 272 (1969).
426.Restriction of jury to damages proximately caused..., 25A C.J.S. Damages ...
Instructions held erroneous

U.S.Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205, 7 U.C.C. Rep. Serv. 81 (3d Cir. 1970).
Tex.Beck v. Craven, 360 S.W.2d 827 (Tex. Civ. App. Houston 1962).
U.S.May Department Stores Co. v. Bell, 61 F.2d 830 (C.C.A. 8th Cir. 1932).
Cal.Deibler v. Wright, 119 Cal. App. 277, 6 P.2d 344 (1st Dist. 1931).
Fluctuations in value of the dollar
U.S.Murphy v. Eaton, Yale & Towne, Inc., 444 F.2d 317, 9 U.C.C. Rep. Serv. 805 (6th Cir. 1971).
3
4
Loss of scholarship
N.J.Angel v. Rand Exp. Lines, Inc., 66 N.J. Super. 77, 168 A.2d 423 (App. Div. 1961).
Mich.Klanseck v. Anderson Sales & Service, Inc., 426 Mich. 78, 393 N.W.2d 356 (1986).
Facts that are properly a part of the damages allowable
5
6
Liquidated damages neither alleged nor mentioned to the jury

U.S.Creative Waste Management, Inc. v. Capitol Environmental Services, Inc., 495 F. Supp. 2d 353 (S.D. N.Y.
2007).
Ky.Moorman Mfg. Co. v. Harris, 280 Ky. 845, 134 S.W.2d 936 (1939).
Ill.Marut v. Costello, 53 Ill. App. 2d 340, 202 N.E.2d 853 (1st Dist. 1964), judgment aff'd, 34 Ill. 2d 125, 214 N.E.2d
768 (1965).
Mo.Kramer v. May Lumber Co., 432 S.W.2d 617 (Mo. Ct. App. 1968).
OhioBauer v. Pullman Co., 15 Ohio App. 2d 69, 44 Ohio Op. 2d 165, 239 N.E.2d 226 (10th Dist. Franklin County
1968).
Instructions sustained
Ind.Northern Indiana Public Service Co. v. Otis, 145 Ind. App. 159, 250 N.E.2d 378 (1969).
Minn.Northwestern State Bank, Osseo v. Foss, 293 Minn. 171, 197 N.W.2d 662 (1972).
7
8
Request properly refused under evidence

W.Va.Humphrey v. Armenakis, 149 W. Va. 607, 142 S.E.2d 883 (1965).
Ark.J. Foster & Co. v. Wooldridge, 199 Ark. 551, 134 S.W.2d 526 (1939).
Mass.Morea v. Cosco, Inc., 422 Mass. 601, 664 N.E.2d 822 (1996).
End of Document
427.Avoiding double recovery, 25A C.J.S. Damages 427

Damages
D. Instructions
1. In General
427. Avoiding double recovery
Instructions to the jury should exclude double recovery as compensation for a single loss although mere
enumeration of elements of damage, even if redundant, will not condemn an instruction where so phrased
that a reasonable construction of the charge excludes double damages.
The instructions must be so framed as not to mislead the jury into a duplication of the elements of recovery
or, where multiple damages are not authorized by statute, into an award of damages twice for the same loss 1
although instructions enumerating different items of recovery, even if redundant or repetitive in character, are not
objectionable if so worded that no reasonable jury would construe them as permitting double or duplicate recovery
for single items 2 as where the alleged duplicating language is used merely in apposition to, and in explanation
of, what preceded. 3
If the choice between alternative measures of damages depends upon a factual determination and alternative
measures are submitted to the jury, care should be taken to instruct the jury to apply only one measure depending
upon how it resolves the underlying factual issue. 4
An instruction that the plaintiff may recover for the personal injuries sustained, followed by an enumeration of
the elements of damage that may be considered, is not objectionable 5 unless it is such as to induce the jury to
allow both for the personal injuries and for the elements of damage enumerated. 6 Moreover, it is ordinarily not
objectionable to charge that in estimating the damages, the jury may consider, if it is proved, the plaintiff's loss
of time and his or her diminished capacity for labor as such expressions are usually so used that a jury could not
be supposed to understand them as referring to one and the same period or loss 7 although an instruction of this
nature may be so worded that the objection is tenable. 8
Where the jury is instructed that they may consider the nature and extent of the plaintiff's injury, a plaintiff is not
entitled to an instruction that the jury should consider a loss of enjoyment of life as a separate element of damages
because terms like loss of "quality and enjoyment of life" and loss of "personal enjoyment" are vague and openended and carry with them the potential for double recovery for the same damages. 9
427.Avoiding double recovery, 25A C.J.S. Damages 427
Footnotes
Mo.Stewart v. Sioux City & New Orleans Barge Lines, Inc., 431 S.W.2d 205 (Mo. 1968).
1
Tex.Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. 2003).
Ga.Munday v. Brissette, 113 Ga. App. 147, 148 S.E.2d 55 (1966), judgment rev'd on other grounds, 222 Ga. 162,
149 S.E.2d 110 (1966).
2
3
4
5
6
7
8
9
Instructions held not erroneous

Ga.Baxter v. Bryan, 122 Ga. App. 817, 178 S.E.2d 724 (1970).
UtahElmer v. Mortensen, 20 Utah 2d 256, 436 P.2d 1018 (1968).
Mo.Killinger v. Kansas City Public Service Co., 259 S.W.2d 391 (Mo. 1953).
Mo.Parrinello v. Rulo Inv. Co., 349 S.W.2d 416 (Mo. Ct. App. 1961).
Mo.Parrinello v. Rulo Inv. Co., 349 S.W.2d 416 (Mo. Ct. App. 1961).
Ill.Powers v. Illinois Cent. Gulf R. Co., 91 Ill. 2d 375, 63 Ill. Dec. 414, 438 N.E.2d 152 (1982).
Ga.Hunt v. Williams, 104 Ga. App. 442, 122 S.E.2d 149 (1961).
Ind.Canfield v. Sandock, 563 N.E.2d 1279 (Ind. 1990).
End of Document
428.Nominal or substantial damages, 25A C.J.S. Damages 428

Damages
D. Instructions
1. In General
428. Nominal or substantial damages
In the absence of a showing of substantial damages, the court properly restricts the jury's award to nominal
damages although no such mandatory instruction should be given where the evidence would be sufficient
to support recovery of substantial damages.
If a party is seeking nominal damages, it is permissible to ask for a jury instruction on that issue, 1 and where
an award of only nominal damages would be proper, the court may instruct on nominal damages. 2 A nominal
damages jury instruction is applicable only when the plaintiffs have failed to establish any evidence of damages. 3
Where there is evidence that might sustain a finding of substantial damages proximately due to the defendant's
default, the court should not restrict the jury to an award of nominal damages. 4
Where at least nominal damages would be due, it is error for the instructions to exclude them. 5
Since actual damages include nominal damages, 6 a charge is erroneous that assumes that nominal damages rest
on a basis separate and distinct from compensatory or actual damages. 7
Footnotes
Mo.Hadley v. Burton, 265 S.W.3d 361 (Mo. Ct. App. S.D. 2008).
1
First Circuit procedure

In the First Circuit, plaintiff may request the judge to instruct the jury on nominal damages or, in the absence of such
an instruction, may ask the trial court for nominal damages on the occasion of, or immediately after, the return of the
verdict.
Me.Azimi v. Jordan's Meats, Inc., 456 F.3d 228 (1st Cir. 2006).
Ga.Davidson v. Consolidated Quarries Corp., 99 Ga. App. 359, 108 S.E.2d 495 (1959).
Instruction on nominal damages warranted
428.Nominal or substantial damages, 25A C.J.S. Damages 428
Ga.Brock v. King, 279 Ga. App. 335, 629 S.E.2d 829 (2006), judgment aff'd, 282 Ga. 56, 646 S.E.2d 206 (2007).
3
4
5
6
7
Duty to give instruction

N.C.Smith v. Hamrick, 159 N.C. App. 696, 583 S.E.2d 676 (2003).
Wash.Bracy v. United Retail Merchants, 189 Wash. 162, 63 P.2d 491 (1937).
Instruction on substantial damages held proper
OhioHoush v. Peth, 99 Ohio App. 485, 59 Ohio Op. 330, 135 N.E.2d 440 (2d Dist. Montgomery County 1955).
Ala.Alabama Power Co. v. Ray, 249 Ala. 568, 32 So. 2d 219 (1947).
3.
Tex.Warren v. Hill, 77 S.W.2d 322 (Tex. Civ. App. Amarillo 1934).
End of Document
429.Aggravation of damages, 25A C.J.S. Damages 429

Damages
D. Instructions
1. In General
429. Aggravation of damages
Where the evidence raises such issue, the court should instruct the jury relative to any aggravation of
damages caused by the defendant.
Where the issue that the damages have been aggravated or increased is involved, it is the duty of the court to
instruct the jury that the plaintiff must have used prudence and reasonable care and diligence not to augment the
damages 1 and that the defendant is not liable for increased injuries due to an intervening cause not chargeable to
him or her, 2 or for preexisting defects or prior injuries, 3 but that the defendant's liability is limited to aggravation
of damages arising from his or her wrong. 4 The court should also instruct the jury as to what damages can and
cannot be recovered where the plaintiff has been negligent. 5
Aggravation chargeable to defendant.

Where there is sufficient proof of aggravation, the court should under proper instructions commit to the jury's
discretion computation of the amount of damages caused by aggravation 6 as where injuries received have been
aggravated by subsequent negligence or other wrong 7 or preexisting ailments have been made worse by the
defendant's wrongful act or omission, 8 and a refusal so to instruct is error. 9
Footnotes
U.S.McClendon v. Reynolds Elec. and Engineering, 432 F.2d 320 (5th Cir. 1970).
1
Haw.Tabieros v. Clark Equipment Co., 85 Haw. 336, 944 P.2d 1279, 73 A.L.R.5th 675 (1997).
Evidence held to justify or require instruction
Haw.Gibo v. City and County of Honolulu, 51 Haw. 299, 459 P.2d 198 (1969).
Or.Skultety v. Humphreys, 247 Or. 450, 431 P.2d 278 (1967).
Evidence held not to require instruction
429.Aggravation of damages, 25A C.J.S. Damages 429
Colo.Powell v. Brady, 30 Colo. App. 406, 496 P.2d 328 (App. 1972), judgment aff'd, 181 Colo. 218, 508 P.2d 1254
(1973).
Ky.Nall v. Larkin, 421 S.W.2d 74 (Ky. 1967).
Instructions held sufficient
U.S.Marcantel v. Southwestern Pipe, Inc., 271 F. Supp. 199 (W.D. La. 1965), judgment aff'd, 380 F.2d 12 (5th Cir.
1967).
Wash.Stone v. City of Seattle, 64 Wash. 2d 166, 391 P.2d 179 (1964).
Instructions held inadequate

Mich.Smith v. Jones, 382 Mich. 176, 169 N.W.2d 308 (1969).
Pa.Boushell v. J. H. Beers, Inc., 215 Pa. Super. 439, 258 A.2d 682 (1969).
U.S.Baranek v. Reese, 299 F.2d 784 (7th Cir. 1962).
Fla.Great Atlantic & Pac. Tea Co. v. Lanteri, 221 So. 2d 158 (Fla. Dist. Ct. App. 3d Dist. 1969).
Instruction held erroneous
Tex.Moulton v. Alamo Ambulance Service, Inc., 414 S.W.2d 444 (Tex. 1967).
Instruction held sufficient

Tex.King v. Skelly, 452 S.W.2d 691 (Tex. 1970).
Conn.DeFelice v. Barberino Rental Corp., 157 Conn. 231, 253 A.2d 37 (1968).
Md.Jones v. Federal Paper Bd. Co., 252 Md. 475, 250 A.2d 653 (1969).
Instructions held proper or not erroneous
U.S.Akers v. Norfolk & W. Ry. Co., 417 F.2d 632 (4th Cir. 1969).
Ky.Langnehs v. Parmelee, 427 S.W.2d 223 (Ky. 1967).
4
5
7
8
Instruction not required by pleadings or evidence

Ill.Marut v. Costello, 34 Ill. 2d 125, 214 N.E.2d 768 (1965).
Va.Ragsdale v. Jones, 202 Va. 278, 117 S.E.2d 114 (1960).
W.Va.Crum v. Ward, 146 W. Va. 421, 122 S.E.2d 18 (1961).
Wash.Vaughan v. Bartell Drug Co., 56 Wash. 2d 162, 351 P.2d 925 (1960).
Instruction held insufficient
Tex.Moulton v. Alamo Ambulance Service, Inc., 414 S.W.2d 444 (Tex. 1967).
Tenn.Holt v. McCann, 58 Tenn. App. 248, 429 S.W.2d 441 (1968).
Tex.J. M. Dellinger, Inc. v. McMillon, 461 S.W.2d 471 (Tex. Civ. App. Corpus Christi 1970), writ refused n.r.e.,
(Mar. 24, 1971).
Wash.O'Donoghue v. Riggs, 73 Wash. 2d 814, 440 P.2d 823 (1968).
Fla.Seaboard Coast Line R. Co. v. McDaniel, 254 So. 2d 15 (Fla. Dist. Ct. App. 1st Dist. 1971).
Instruction held proper
Ill.Greim v. Sharpe Motor Lines, 101 Ill. App. 2d 142, 242 N.E.2d 282 (3d Dist. 1968).
Fla.Winn-Dixie Stores, Inc. v. Nafe, 222 So. 2d 765 (Fla. Dist. Ct. App. 3d Dist. 1969).
Instruction warranted by evidence
Fla.Byrd v. Felder, 197 So. 2d 554 (Fla. Dist. Ct. App. 3d Dist. 1967).
Instructions held erroneous or properly refused

Md.Straughan v. Tsouvalos, 246 Md. 242, 228 A.2d 300 (1967).
Tex.J. M. Dellinger, Inc. v. McMillon, 461 S.W.2d 471 (Tex. Civ. App. Corpus Christi 1970), writ refused n.r.e.,
(Mar. 24, 1971).
Conn.Fleischer v. Kregelstein, 150 Conn. 158, 187 A.2d 241 (1962).
End of Document

Damages
D. Instructions
1. In General
430. Mitigation or reduction of damages
Where the evidence raises such issue, the court should instruct the jury relative to the plaintiff's duty to
minimize or reduce damages.
Where appropriate, the court should instruct as to the duty of the injured person to minimize damages, 1 but
instructions as to the duty to minimize damages are properly refused where the issue is not presented by the
pleadings and evidence 2 or not addressed by plaintiff's counsel on summation. 3 However, even scant evidence
of the plaintiff's failure to mitigate damages may support an instruction where it raises an issue for the jury's
decision. 4
Instructions that frame the general principles of mitigation within the context of the specific case at hand are
preferable so long as they can be given without undue prejudice or confusion. 5 The instructions should also
apprise the jury of the potential consequences, with respect to a jury award, of any failure on the plaintiff's part to
use reasonable diligence under the circumstances to mitigate or minimize his or her damages. 6
While such instructions must not absolve the plaintiff from acts clearly negligent, 7 requiring of him or her conduct
befitting a reasonably prudent person under like circumstances is sufficient, 8 and no particular course of conduct
can be mapped out as the only proper one unless it can be shown that such course would be the only one pursued
by a reasonably prudent and diligent person. 9
When both comparative negligence and mitigation theories are presented to the jury, the instructions should be
clear so as to avoid an improper double reduction of damages for the same action. 10
Reduction to reflect other compensation for same injury or loss.

Where warranted by the facts and the law, the court properly instructs the jury relative to the reduction of damages
to reflect other compensation for the same injury or loss. 11 Under a statute permitting the plaintiff in an action for
personal injury or wrongful death arising out of the ownership, operation, use, or maintenance of a motor vehicle to
a claim for damages, but instructing the jury to subtract any collateral-source payments from the damage verdict,
the statute bars double recovery in that the plaintiff claims full damages, but the jury is instructed to subtract any
collateral-source payments from its damages verdict. 12
Cases:
Under Iowa law, an instruction on failure to mitigate damages is appropriate only where there is substantial
evidence that there was something that the plaintiff could do to mitigate his loss and that requiring the plaintiff to
do so was reasonable under the circumstances; the plaintiff must have acted unreasonably in failing to follow the
advice of her physician, and there must be proof of a causal connection between the plaintiff's failure to mitigate
and her damages. Two Rivers Bank & Trust v. Atanasova, 686 F.3d 554 (8th Cir. 2012).
Plaintiff driver's automobile insurer was a collateral source because it was wholly independent of defendant driver,
an alleged tortfeasor, and it paid for plaintiff's medical expenses after accident, and thus, statutory provision
that barred the admission of evidence of any collateral source payment or benefits in any action against a thirdparty tortfeasor applied to exclude evidence of amounts paid by plaintiff driver's automobile insurer for medical
expenses. West's C.R.S.A. 101135(10)(a), 1321111.6. Smith v. Jeppsen, 2012 CO 32, 277 P.3d 224 (Colo.
2012).
[END OF SUPPLEMENT]
Footnotes
Conn.Drake v. Bingham, 131 Conn. App. 701, 27 A.3d 76 (2011), certification denied, 303 Conn. 910, 2011 WL
1
6934427 (2011).
N.D.Cartier v. Northwestern Elec., Inc., 2010 ND 14, 777 N.W.2d 866 (N.D. 2010).
Tex.Block v. Mora, 314 S.W.3d 440 (Tex. App. Amarillo 2009).
N.J.Zensen v. D'Elia, 94 N.J. Super. 164, 227 A.2d 343 (App. Div. 1967).
Or.Bohle v. Matson Nav. Co., 243 Or. 196, 412 P.2d 367 (1966).
Burden of proof
The jury should have been told that the burden to prove that plaintiff failed to minimize damages rested on defendant.
Conn.Lynch v. Granby Holdings, Inc., 37 Conn. App. 846, 658 A.2d 592 (1995).
Ill.Schomer v. Madigan, 120 Ill. App. 2d 107, 255 N.E.2d 620 (4th Dist. 1970).
Kan.Kelty v. Best Cabs, Inc., 206 Kan. 654, 481 P.2d 980 (1971).
Evidence of causation required
Ind.Buhring v. Tavoletti, 905 N.E.2d 1059 (Ind. Ct. App. 2009).
3
4
5
6
7
Insufficient evidence presented

U.S.Magical Farms, Inc. v. Land O'Lakes, Inc., 356 Fed. Appx. 795 (6th Cir. 2009).
N.Y.Kabalan v. Hoghooghi, 77 A.D.3d 1350, 908 N.Y.S.2d 299 (4th Dep't 2010).
Mich.Klanseck v. Anderson Sales & Service, Inc., 426 Mich. 78, 393 N.W.2d 356 (1986).
Neb.City of Crete v. Childs, 11 Neb. 252, 9 N.W. 55 (1881).
8
9
10
11
Refusal to submit issue of contributory negligence held error

Minn.Nelson v. Anderson, 245 Minn. 445, 72 N.W.2d 861 (1955).
U.S.McClendon v. Reynolds Elec. and Engineering, 432 F.2d 320 (5th Cir. 1970).
Cal.Burkett v. Dental Perfection Co., 140 Cal. App. 2d 106, 294 P.2d 992 (2d Dist. 1956).
Duty to secure medical attention
Haw.Franco v. Fujimoto, 47 Haw. 408, 390 P.2d 740 (1964) (overruled in part on other grounds by, Barretto v.
Akau, 51 Haw. 383, 51 Haw. 461, 463 P.2d 917 (1969)).
Nev.Shuette v. Beazer Homes Holdings Corp., 121 Nev. 837, 124 P.3d 530 (2005).
N.C.Waden v. McGhee, 274 N.C. 174, 161 S.E.2d 542 (1968).
UtahPhillips v. Bennett, 21 Utah 2d 1, 439 P.2d 457 (1968).
N.D.Stetson v. Investors Oil, Inc., 140 N.W.2d 349 (N.D. 1966).
R.I.Aldcroft v. Fidelity & Cas. Co. of New York, 106 R.I. 311, 259 A.2d 408 (1969).
U.S.Cummings v. Boston & M.R.R., 212 F.2d 133 (1st Cir. 1954); Shannon v. Southern Pac. Transport Co., 427
F.2d 545 (5th Cir. 1970).
OhioChambers v. Pinson, 6 Ohio App. 2d 66, 35 Ohio Op. 2d 163, 216 N.E.2d 394 (10th Dist. Franklin County 1966).
Settlement with another
N.Y.Mulligan v. Wetchler, 39 A.D.2d 102, 332 N.Y.S.2d 68 (1st Dep't 1972).
Sick-leave pay
OhioThompson v. Hauer, 30 Ohio App. 2d 110, 59 Ohio Op. 2d 216, 283 N.E.2d 180 (1st Dist. Hamilton County
1971).
12
Collateral-source doctrine
Neb.Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006).
R.I.Gelsomino v. Mendonca, 723 A.2d 300, 132 Ed. Law Rep. 156 (R.I. 1999).
Wis.Lagerstrom v. Myrtle Werth Hos.-Mayo Health System, 2005 WI 124, 285 Wis. 2d 1, 700 N.W.2d 201 (2005).
Fla.Blue Cross and Blue Shield of Florida, Inc. v. Matthews, 498 So. 2d 421 (Fla. 1986).
End of Document
431.Damages for injuries to property, 25A C.J.S. Damages 431

Damages
D. Instructions
1. In General
431. Damages for injuries to property
Where the issue is raised, the court should clearly and correctly state the measure of damages applicable
for injuries to property. Moreover, such instructions must conform to the pleadings and evidence.
Instructions to the jury with respect to the measure of damages for injury to property should conform to the
pleadings 1 and find support in the evidence 2 as in the case of damage to motor vehicles. 3
Furthermore, the instructions should correctly state applicable rules for computing the damages 4 as in the case
of injuries to animals, 5 crops, 6 and trees. 7 The applicable rules for computing the damages should be stated
with respect to injury to motor vehicles, 8 including the particular elements of damage, such as the loss of use
of the vehicle 9 and repairs. 10
The instructions on property damages should not invade the province of the jury, 11 should avoid the allowance
of double damages, 12 and, in compliance with the form and requisites of damage instructions, 13 should clearly,
certainly, and comprehensively state the applicable rules so that the jury will not become confused or misled. 14
Cases:
Trial court was required to instruct jury to determine whether property owner's damages were temporary or
permanent, in owner's action alleging that pipeline company had committed trespass and breached contract
governing right of way easement by destroying trees during preparation of easement area for construction of
pipeline; owner could not recover damages for cost of replacement of trees without a finding that owner's damages
were temporary, and owner could not recover damages for diminution of value without a finding that damages
were permanent. Vernon's Ann.Texas Rules Civ.Proc., Rules 277, 278. Enbridge Pipelines (East Texas), L.P. v.
Gilbert Wheeler, Inc., 393 S.W.3d 921 (Tex. App. Tyler 2013), petition for review filed, (Mar. 28, 2013).
[END OF SUPPLEMENT]
Footnotes
Tex.South Plains Ready-Mix, Inc. v. McDermett, 278 S.W.2d 575 (Tex. Civ. App. Amarillo 1954).
1
Instructions held improper

Miss.Copiah Dairies, Inc. v. Addkison, 247 Miss. 327, 153 So. 2d 689 (1963).
Ga.Georgia R. & Banking Co. v. Flynt, 89 Ga. App. 315, 79 S.E.2d 377 (1953).
Instructions sustained under evidence
Ark.Felton Oil Co., L.L.C. v. Gee, 357 Ark. 421, 182 S.W.3d 72 (2004).
Wash.Songstad v. Municipality of Metropolitan Seattle, 2 Wash. App. 680, 472 P.2d 574 (Div. 2 1970).
Requested instructions properly refused

Ky.Mountain Water Dist. v. Smith, 314 S.W.3d 312 (Ky. Ct. App. 2010).
Tex.South Plains Ready-Mix, Inc. v. McDermett, 278 S.W.2d 575 (Tex. Civ. App. Amarillo 1954).
Instructions sustained under evidence
Okla.Complete Auto Transit, Inc. v. Reese, 1967 OK 73, 425 P.2d 465 (Okla. 1967).
Loss of use of motor vehicle

Ga.Ohio Southern Exp. Co. v. Beeler, 110 Ga. App. 867, 140 S.E.2d 235 (1965).
Miss.Mississippi Tank Co. v. Roan, 254 Miss. 671, 182 So. 2d 582 (1966).
Mo.Epperson v. Nolan, 452 S.W.2d 263 (Mo. Ct. App. 1970).
Measure of damages for injury to property, see 144 to 155.
IdahoBratton v. Slininger, 93 Idaho 248, 460 P.2d 383 (1969).
Vt.Bean v. Sears, Roebuck & Co., 129 Vt. 278, 276 A.2d 613 (1971).
Incorrect instructions
Tex.Stafford v. Thornton, 420 S.W.2d 153 (Tex. Civ. App. Amarillo 1967), writ refused n.r.e., (Dec. 13, 1967).
Wis.Nashban Barrel & Container Co. v. G. G. Parsons Trucking Co., 49 Wis. 2d 591, 182 N.W.2d 448 (1971).
Requested instruction properly refused
Wash.Falcone v. Perry, 68 Wash. 2d 909, 416 P.2d 690 (1966).
5
6
Requested instruction improperly refused

Ga.Ryder Truck Rental, Inc. v. Gianotos, 113 Ga. App. 81, 147 S.E.2d 448 (1966).
Wash.Dillon v. O'Connor, 68 Wash. 2d 184, 412 P.2d 126 (1966).
S.D.Wieting v. Ball Air Spray, Inc., 84 S.D. 493, 173 N.W.2d 272 (1969).
Wash.Chase v. Hinen, 2 Wash. App. 71, 466 P.2d 529 (Div. 3 1970).
7
8
Incorrect instructions
Ariz.Eaton Fruit Co. v. California Spray-Chemical Corp., 103 Ariz. 461, 445 P.2d 437 (1968).
Mo.Jurgeson v. Romine, 442 S.W.2d 176 (Mo. Ct. App. 1969).
UtahBrereton v. Dixon, 20 Utah 2d 64, 433 P.2d 3 (1967).
Colo.Callaham v. Slavsky, 153 Colo. 291, 385 P.2d 674 (1963).
Complete destruction of motor vehicle
Ark.Fryar v. Sanders, 301 Ark. 379, 784 S.W.2d 168 (1990).
Instructions as to value sustained

Ga.Fuels, Inc. v. Rutland, 123 Ga. App. 23, 179 S.E.2d 290 (1970).
Ky.U. S. Fidelity & Guaranty Co. v. Fyffe, 471 S.W.2d 23 (Ky. 1971).
Instructions as to value not sustained

OhioPettijohn v. Clark, 28 Ohio App. 2d 312, 57 Ohio Op. 2d 479, 277 N.E.2d 455 (1st Dist. Hamilton County 1971).
Conn.Noonan v. Wagner, 109 Conn. 730, 144 A. 894 (1929).
Neb.Caves v. Barnes, 178 Neb. 103, 132 N.W.2d 310 (1964).
10

Wash.McCurdy v. Union Pac. R. Co., 68 Wash. 2d 457, 413 P.2d 617 (1966).
IowaGay v. Shadle, 176 N.W. 635 (Iowa 1920).
Instruction properly refused
Mo.Stamm v. Reuter, 432 S.W.2d 784 (Mo. Ct. App. 1968).
U.S.Champion Home Builders v. Shumate, 388 F.2d 806 (10th Cir. 1967).
Ga.Southern Ry. Co. v. Grogan, 113 Ga. App. 451, 148 S.E.2d 439 (1966).
11

S.C.Wilson v. Glock, 252 S.C. 309, 166 S.E.2d 207 (1969).
Ill.New York, C. & St. L. R. Co. v. American Transit Lines, 408 Ill. 336, 97 N.E.2d 264 (1951).
12

N.D.Ackerman v. Fischer, 79 N.D. 51, 54 N.W.2d 734 (1952).
Fla.Atlantic Coast Line R. Co. v. Saffold, 130 Fla. 598, 178 So. 288 (1938).
U.S.Lanfranconi v. Tidewater Oil Co., 376 F.2d 91, 11 Fed. R. Serv. 2d 1320 (2d Cir. 1967).
13
14
Instructions held not to permit double damages

An instruction authorizing recovery by homeowners for discomfort and annoyance resulting when raw sewage backed
up from defendant city's line and overflowed in their home and authorizing recovery for loss of use of the premises
was not improper because it also authorized recovery for permanent damage.
Okla.City of New Cordell v. Lowe, 1963 OK 265, 389 P.2d 103 (Okla. 1963).
424.
IowaLooney v. Parker, 210 Iowa 85, 230 N.W. 570 (1930).
Ga.Georgia R. R. & Banking Co. v. Flynt, 93 Ga. App. 514, 92 S.E.2d 330 (1956).
Miss.Copiah Dairies, Inc. v. Addkison, 247 Miss. 327, 153 So. 2d 689 (1963).
End of Document
432.Damages for breach of contract, 25A C.J.S. Damages 432

Damages
D. Instructions
1. In General
432. Damages for breach of contract
The court should charge the jury with respect to the proper measure of damages for breach of contract in
conformity with the pleadings and evidence.
In charging the jury with respect to damages for breach of contract, the court should correctly state the applicable
rules 1 governing the measure of damages for such breach 2 in conformity with the pleading and proof. 3 In
compliance with the form and requisites of instructions with respect to damages, 4 the court should set forth the
measure of damages for breach of contract with such degree of clarity and certainty that the jury will not be
confused or misled. 5 Generally, directing the jury to award such damages as they find from the evidence will
reasonably compensate the plaintiff is not precluded in contract cases where the defendant does not request more
specific instructions on the measure of damages. 6
An instruction on the measure of damages for breach of contract should be restricted to such items as are supported
by sufficient evidence to permit for a reasonably accurate estimation by the jury. 7 The instructions should not
invade the province of the jury. 8 Where the parties have submitted computations, as to the amount of the loss,
which are conflicting, the court has the duty to apprise the jury that the computations are not binding on them. 9
An instruction permitting a recovery on a particular theory as to the measure of damages is not improper where
the case is tried on that theory although that measure of damages may not be correct. 10
A jury instruction that lost profits must have been within the reasonable contemplation of the defendant when the
contract was formed is improper where the plaintiff's lost profits are a direct and foreseeable consequence, as a
matter of law, of the defendant's breach of contract. 11
Footnotes
Measure of damages in breach-of-contract cases, see 122 to 136.
1
Mo.Boten v. Brecklein, 452 S.W.2d 86 (Mo. 1970).
2
432.Damages for breach of contract, 25A C.J.S. Damages 432
Tex.Securities Inv. Co. of St. Louis v. Finance Acceptance Corp., 474 S.W.2d 261 (Tex. Civ. App. Houston 1st Dist.
1971), writ refused n.r.e., (Apr. 5, 1972).
Failure to limit to contract theory not error
Cal.Kuchta v. Allied Builders Corp., 21 Cal. App. 3d 541, 98 Cal. Rptr. 588 (4th Dist. 1971).
Ga.Commercial & Military Systems Company, Inc. v. Sudimat, C.A., 267 Ga. App. 32, 599 S.E.2d 7 (2004).
Wash.Park Avenue Condominium Owners Ass'n v. Buchan Developments, L.L.C., 117 Wash. App. 369, 71 P.3d
692 (Div. 1 2003), on reconsideration in part, 75 P.3d 974 (Wash. Ct. App. Div. 1 2003).
Instructions not sustained
Ky.Goheen v. DiLaura, 2008 WL 1991621 (Ky. Ct. App. 2008).
OhioDaniels v. Albert J. Corey Co., 2 Ohio App. 2d 297, 31 Ohio Op. 2d 460, 208 N.E.2d 150 (6th Dist. Lucas
County 1965).
Instructions held to conform

U.S.Koufakis v. Carvel, 425 F.2d 892, 14 Fed. R. Serv. 2d 1 (2d Cir. 1970); Peter Kiewit Sons' Co. v. Summit Const.
Co., 422 F.2d 242, 13 Fed. R. Serv. 2d 45 (8th Cir. 1969).
Ark.Farmers Co-op. Ass'n, Inc., of Rogers v. Phillips, 241 Ark. 28, 405 S.W.2d 939 (1966).
Tex.Inwood Const. Co. v. Huntington Corp., 400 S.W.2d 372 (Tex. Civ. App. Texarkana 1965), writ refused n.r.e.,
(May 4, 1966).
Requested instructions properly refused
Vt.Sheldon v. Northeast Developers, Inc., 127 Vt. 15, 238 A.2d 775 (1968).
4
5
Failure to instruct on reliance damages not error

Mass.Lord's & Lady's Enterprises, Inc. v. John Paul Mitchell Systems, 46 Mass. App. Ct. 262, 705 N.E.2d 302 (1999).
424.
Mo.Hough v. Jay-Dee Realty & Inv., Inc., 401 S.W.2d 545 (Mo. Ct. App. 1966).
Instructions held ambiguous
Wash.Jorgensen v. D. K. Barnes, Inc., 69 Wash. 2d 579, 420 P.2d 689 (1966).
6
7
U.S.Mattern & Associates, L.L.C. v. Seidel, 678 F. Supp. 2d 256, 76 Fed. R. Serv. 3d 415 (D. Del. 2010).
Mo.Hotchner v. Liebowits, 341 S.W.2d 319 (Mo. Ct. App. 1960).
Mo.Norman v. McLelland, 354 S.W.2d 906 (Mo. Ct. App. 1962).
Ky.Bugg & Franks v. Jones, 183 Ky. 500, 209 S.W. 514 (1919).
Instructions held proper
Fla.Niagara Therapy Mfg. Corp. v. Niagara Cyclo Massage of Miami, Inc., 196 So. 2d 474 (Fla. Dist. Ct. App. 3d
Dist. 1967).
9
10
11
Instruction held properly refused

Va.Greenbrier Farms, Inc. v. Clarke, 193 Va. 891, 71 S.E.2d 167 (1952).
U.S.Continental Distributing Co. v. Reading Co., 168 F.2d 967 (C.C.A. 3d Cir. 1948).
Neb.Jacobs v. Korst, 175 Neb. 639, 122 N.W.2d 760 (1963).
Ill.Midland Hotel Corp. v. Reuben H. Donnelley Corp., 118 Ill. 2d 306, 113 Ill. Dec. 252, 515 N.E.2d 61 (1987).
End of Document
433.Instructions as to interest and inflation, 25A C.J.S. Damages 433

Damages
D. Instructions
1. In General
433. Instructions as to interest and inflation
Instructions relative to the allowance of interest should comply with the rules of substantive law applicable
to the case.
Where the prevailing party is entitled to any interest, the court should instruct as to that fact 1 and as to the rate of
interest that the jury may assess in their verdict, 2 pointing out differences, if any, as to the allowance of interest
on different elements of damage, 3 and where the allowance of interest rests in the discretion of the jury, they
may and should be expressly so advised. 4
On the other hand, the court should not in an improper case instruct the jury that they must add interest, 5 and
where interest is not recoverable, it is improper to instruct the jury that they may take the matter of interest into
consideration. 6
Where there is an issue of fact as to the date from which interest should run, it is error for the court to instruct
on such issue as a matter of law. 7
Inflation.
A trial court may properly refuse to instruct the jury in a negligence action to adjust a verdict according to the
specific inflation rate, particularly where the plaintiffs' counsel is allowed to make extensive argument on the fact
and effect of inflation, and the jury is free to apply inflationary considerations when fashioning the award. 8
Footnotes
Mich.Vannoy v. City of Warren, 26 Mich. App. 283, 182 N.W.2d 65 (1970), judgment aff'd, 386 Mich. 686, 194
1
N.W.2d 304 (1972).
Award of interest as damages, see 171 to 179.
433.Instructions as to interest and inflation, 25A C.J.S. Damages 433
2
3
4
5
6
7
8

D.C.Matthew A. Welch & Sons, Inc. v. Bird, 193 A.2d 736 (D.C. 1963).
Ga.Cook v. Carr, 98 Ga. App. 306, 105 S.E.2d 795 (1958).
Ga.Mills v. Mangum, 111 Ga. App. 396, 141 S.E.2d 773 (1965).
Discretion of jury
Ga.Smith v. Maples, 114 Ga. App. 529, 151 S.E.2d 815 (1966).
Ga.Smith v. Maples, 114 Ga. App. 529, 151 S.E.2d 815 (1966).
Ga.Southern Ry. Co. v. Groover, 41 Ga. App. 746, 154 S.E. 706 (1930).
Ky.Coy v. Griesenbroker, 295 Ky. 329, 174 S.W.2d 400 (1943).
Mich.Bosak v. Hutchinson, 422 Mich. 712, 375 N.W.2d 333 (1985).
End of Document

Damages
D. Instructions
2. Damages for Injuries to Person
a. In General
434. Generally
Where recovery is sought for personal injuries, the court should fully and fairly charge the jury as to the
measure of damages and the items or elements thereof.
In compliance with its general duty to advise the jury relative to damages, 1 the court in a personal injury case
should charge the jury relative to the rules for measuring damages arising in cases of this character 2 and should
fully and fairly inform them as to the items or elements of damage that they may consider. 3 Trial courts should
also instruct juries in personal injury cases that they may consider nature and extent of the plaintiff's injury and
the effect of the injury itself on the plaintiff's ability to function as a whole person. 4
An instruction authorizing recovery of such damages as the plaintiff may have sustained is not erroneous as
authorizing speculative, uncertain, or future damages. 5
It is generally proper and not erroneous to warn the jury as to the maximum verdict that may be returned, 6 but
there is also authority that holds such an instruction is error or improper 7 and that it is not error to fail so to
charge. 8 Another view is that this is a matter that rests largely within the discretion of the trial court. 9
The repetition in the instructions of a specific sum as the limit of recovery may be improper, and such sum should
be mentioned, if at all, only in connection with an instruction that the award should not be in excess of the amount
sued for. 10
Successive tort liability.

A successive tort liability instruction is appropriate only when there are two separate discernible injuries. 11
Footnotes
Duty of the court to instruct as to damages, see 423.
1
Wash.Adams v. State, 71 Wash. 2d 414, 429 P.2d 109 (1967).
2
3
Instructions as to purchasing power of money, see 443.

Fla.Powell v. Hegney, 239 So. 2d 599 (Fla. Dist. Ct. App. 4th Dist. 1970).
Ky.Hetrick v. Willis, 439 S.W.2d 942 (Ky. 1969).
Matters to be excluded from jury's consideration
Mo.Immekus v. Quigg, 406 S.W.2d 298 (Mo. Ct. App. 1966).
4
5
6
7
8
9
10
11
Apportionment between separate injuries

Haw.Loui v. Oakley, 50 Haw. 260, 50 Haw. 272, 438 P.2d 393 (1968).
Ind.Canfield v. Sandock, 563 N.E.2d 1279 (Ind. 1990).
Neb.Remmenga v. Selk, 152 Neb. 625, 42 N.W.2d 186 (1950).
N.M.Jackson v. Southwestern Public Service Co., 66 N.M. 458, 349 P.2d 1029 (1960).
Tex.Cullinan v. Hare, 181 S.W.2d 594 (Tex. Civ. App. Eastland 1944).
U.S.Macartney v. Compagnie Generale Transatlantique, 253 F.2d 529 (9th Cir. 1958).
Cal.Buswell v. City and County of San Francisco, 89 Cal. App. 2d 123, 200 P.2d 115 (1st Dist. 1948).
Va.Simmons v. Adams, 202 Va. 926, 121 S.E.2d 379 (1961).
N.Y.Panzarino v. Jeffrey A. Weisberg, M.D., P.C., 257 A.D.2d 483, 684 N.Y.S.2d 208 (1st Dep't 1999).
End of Document
435.Physical and mental suffering, generally, 25A C.J.S. Damages 435

Damages
D. Instructions
a. In General
435. Physical and mental suffering, generally
An instruction authorizing the jury to consider pain and suffering in their deliberations in actions for
personal injury is ordinarily proper where physical pain or mental suffering was caused by the injury.
Where physical pain and mental suffering are legitimate items of damage when caused by an injury, an instruction
authorizing the jury to consider such pain and suffering in their deliberations in actions for personal injury is
ordinarily proper 1 and necessary. 2
The instructions should correctly state the law as to the right to recover for mental suffering where there is no
physical injury 3 and should limit recovery for such pain and suffering as are the proximate result of the defendant's
wrong. 4
It is the duty of the judge to charge the jury that damages for pain and suffering must be limited to compensation, 5
but as suffering and dollars are not interchangeable units and no yardstick can be fashioned exactly to measure
the reasonable compensation for pain and suffering, it is proper to instruct the jury that there is no fixed standard
of compensation and to leave the matter to their sound discretion or common sense. 6
Where the plaintiff may be entitled to recover for mental pain and suffering, the defendant may not have
instructions so restricted as to exclude the mental phase of the matter. 7 Such a charge may be sustained even
where the only evidence of mental suffering was indirect or inferential. 8 In some jurisdictions, mental suffering
is an element of pain and suffering experienced by the injured parties and should not be submitted to the jury as a
separate category of damage. 9 In such jurisdictions, the jury may not be instructed to consider and may not award
damages for loss of enjoyment of life separately from damages for pain and suffering. 10
On the other hand, where there is neither allegation nor proof of mental suffering, 11 the instructions should
not submit such issue and, in a proper case, should affirmatively withdraw this item of damages from the jury's
435.Physical and mental suffering, generally, 25A C.J.S. Damages 435
consideration. 12 Where the law clearly precludes recovery for mental pain and anguish under the circumstances
disclosed, the court should instruct the jury against allowance. 13
An instruction that an emotionally and physically injured plaintiff is required to prove severe and debilitating
emotional distress in order to recover for negligently inflicted emotional distress is incorrect in a jurisdiction where
an emotional injury need not be severe and debilitating to be compensable. 14
Footnotes
U.S.Hamilan Corp. v. O'Neill, 273 F.2d 89 (D.C. Cir. 1959).
1
2
3
4
5
6
7
Conn.Villa v. Rios, 88 Conn. App. 339, 869 A.2d 661 (2005).

Ga.Canada Dry Bottling Co. v. Campbell, 112 Ga. App. 56, 143 S.E.2d 785 (1965).
Tex.Sutton Motor Co. v. Crysel, 289 S.W.2d 631 (Tex. Civ. App. Beaumont 1956).
Mental pain and suffering as independent ground of recovery, see 107.
Cal.Fletcher v. Western National Life Ins. Co., 10 Cal. App. 3d 376, 89 Cal. Rptr. 78, 47 A.L.R.3d 286 (4th Dist.
1970).
OhioFeterle v. Huettner, 28 Ohio St. 2d 54, 57 Ohio Op. 2d 213, 275 N.E.2d 340 (1971).
Wis.Mixis v. Wisconsin Public Service Co., 26 Wis. 2d 488, 132 N.W.2d 769 (1965).
N.J.Lewis v. Read, 80 N.J. Super. 148, 193 A.2d 255 (App. Div. 1963).
Cal.Beagle v. Vasold, 65 Cal. 2d 166, 53 Cal. Rptr. 129, 417 P.2d 673 (1966).
N.C.King v. Britt, 267 N.C. 594, 148 S.E.2d 594 (1966).
Recovery for mental pain and suffering, see 106 to 117.
Effect of miscarriage
Miss.Occhipinti v. Rheem Mfg. Co., 252 Miss. 172, 172 So. 2d 186 (1965).
8
9
10
11
12
13
14
Pain that would have been suffered in any event

A grocery store sued for negligence by a customer who slipped and fell in the store was not entitled to a model jury
instruction that instructed the jury that it could not award plaintiff "damages for any pain, mental anguish or disability
which she would have suffered even though the accident had not occurred," absent evidence that plaintiff would have
experienced pain and suffering without the fall and that the fall produced no lasting effects.
U.S.Kudabeck v. Kroger Co., 338 F.3d 856, 61 Fed. R. Evid. Serv. 1433 (8th Cir. 2003).
Mo.Mullendore v. Gentry, 377 S.W.2d 494 (Mo. Ct. App. 1964).
N.Y.Lamot v. Gondek, 163 A.D.2d 678, 558 N.Y.S.2d 284 (3d Dep't 1990).
N.Y.McDougald v. Garber, 73 N.Y.2d 246, 538 N.Y.S.2d 937, 536 N.E.2d 372 (1989).
Ariz.Tucson Rapid Transit Co. v. Tocci, 3 Ariz. App. 330, 414 P.2d 179 (1966).
OhioBinns v. Fredendall, 32 Ohio St. 3d 244, 513 N.E.2d 278 (1987).
End of Document
436.Medical expenses and the like, 25A C.J.S. Damages 436

Damages
D. Instructions
a. In General
436. Medical expenses and the like
The court should instruct the jury relative to an award of damages for medical, hospital, and similar
expenses resulting from personal injuries where the pleadings and evidence so warrant.
Where such matters are properly raised by the pleadings 1 and sufficiently shown by the evidence, 2 the court
should charge the jury with respect to awarding damages for medical, hospital, and similar expenses. 3
Generally, an instruction authorizing a recovery for expenditures for medical attention, nursing, and the like as
elements of damage is erroneous in the absence of evidence of the incurring of such liabilities 4 and of their
necessity and reasonableness. 5 However, there is some authority that the jury may be instructed to consider
medical expenses that have been paid although there is no direct evidence as to their reasonableness. 6
The instructions should limit the recovery for medical expenses to such as were proximately caused by the
defendant's wrong 7 and should not permit double recovery for the same expenses 8 or otherwise permit a recovery
that is excessive under the facts. 9
Footnotes
Ind.Shown v. Taylor, 120 Ind. App. 154, 88 N.E.2d 783 (1949).
1
Ark.Long v. Henderson, 249 Ark. 367, 459 S.W.2d 542 (1970).
2
IdahoBailey v. Sanford, 139 Idaho 744, 86 P.3d 458 (2004).
3
4
Future medical expenses

Colo.Perry v. Cagg, 496 P.2d 1066 (Colo. App. 1972).
N.Y.Plusch v. City of New York, 278 A.D. 571, 101 N.Y.S.2d 737 (2d Dep't 1951).
N.D.Dassinger v. Kuhn, 87 N.W.2d 720 (N.D. 1958).
Ill.Johanneson v. Ring, 82 Ill. App. 2d 340, 226 N.E.2d 291 (2d Dist. 1967).
Va.Oak Knolls Realty Corp. v. Thomas, 212 Va. 396, 184 S.E.2d 809 (1971).
436.Medical expenses and the like, 25A C.J.S. Damages 436
OhioMotorist Mut. Ins. Co. v. Cook, 31 Ohio App. 2d 1, 60 Ohio Op. 2d 25, 285 N.E.2d 389 (1st Dist. Hamilton
County 1971).
Evidence held sufficient to support instruction
D.C.Albano v. Yee, 219 A.2d 567 (D.C. 1966).
6
7
8
9
Future medical expense

Haw.Kometani v. Heath, 50 Haw. 89, 431 P.2d 931 (1967).
Ga.Limbert v. Bishop, 96 Ga. App. 652, 101 S.E.2d 148 (1957).
Mo.Joly v. Wippler, 449 S.W.2d 565 (Mo. 1970).
Tenn.Transports, Inc. v. Perry, 220 Tenn. 57, 414 S.W.2d 1 (1967).
Okla.FFE Transp. Services, Inc. v. Pilot Travel Centers, L.L.C., 2010 OK CIV APP 7, 228 P.3d 535 (Div. 2 2009),
cert. denied, (Jan. 19, 2010).
Discounted amount actually paid
Medical expenses paid by automobile insurer
N.J.Espinal v. Arias, 391 N.J. Super. 49, 916 A.2d 1081 (App. Div. 2007).
End of Document
437.Tax consequences of award, 25A C.J.S. Damages 437

Damages
D. Instructions
a. In General
437. Tax consequences of award
The courts are not in agreement as to whether the jury in a personal injury action should be instructed,
upon request, that a damage award is not subject to federal income tax or state income tax.
In some jurisdictions, the courts have stated that it is the better practice where jury awards are excluded from
taxation to instruct the jury that such awards are not subject to income taxes and that it should not consider the
tax consequences when figuring the amount of damages, if any. 1 Some courts go further, stating that the jury in
personal injury actions must be instructed, upon request, that a damage award is not subject to federal income tax
or state income tax. 2 However, in other jurisdictions, the trial court does not abuse its discretion in refusing the
defendant's requested instruction telling the jury not to consider taxes when arriving at the amount of the verdict
in a personal injury action, 3 especially where the subject of taxes on the verdict is not seriously brought to the
jury's attention, 4 counsel for the parties do not introduce the subject in their argument to the jury, and the jury
does not make any inquiry on the subject. 5 Still, other courts have held that it is improper for a trial court to give
a nontaxability instruction in a personal injury case. 6
Footnotes
U.S.In re Air Crash Disaster Near Chicago, Ill., On May 25, 1979, 803 F.2d 304, 21 Fed. R. Evid. Serv. 1092 (7th
1
Cir. 1986).
D.C.Psychiatric Institute of Washington v. Allen, 509 A.2d 619 (D.C. 1986).
N.Y.Lanzano v. City of New York, 71 N.Y.2d 208, 524 N.Y.S.2d 420, 519 N.E.2d 331 (1988).
Instruction not misleading
U.S.Van Bumble v. Wal-Mart Stores, Inc., 407 F.3d 823 (7th Cir. 2005).
A.L.R. Library
Propriety of taking income tax into consideration in fixing damages in personal injury or death action, 16 A.L.R.4th 589.
N.J.Ruff v. Weintraub, 105 N.J. 233, 519 A.2d 1384 (1987).
437.Tax consequences of award, 25A C.J.S. Damages 437
5
6
Colo.Davis v. Fortino & Jackson Chevrolet Co., 32 Colo. App. 222, 510 P.2d 1376 (App. 1973).
Fla.Gray Drugfair, Inc. v. Heller, 478 So. 2d 1159 (Fla. Dist. Ct. App. 3d Dist. 1985).
Tenn.Spencer v. A-1 Crane Service, Inc., 880 S.W.2d 938 (Tenn. 1994).
Tax-related special circumstances
Nev.Otis Elevator Co. v. Reid, 101 Nev. 515, 706 P.2d 1378 (1985).
IowaStover v. Lakeland Square Owners Ass'n, 434 N.W.2d 866 (Iowa 1989).
Nev.Otis Elevator Co. v. Reid, 101 Nev. 515, 706 P.2d 1378 (1985).
Va.Vazquez v. Ceballos, M.D., 36 Va. Cir. 181, 1995 WL 1055823 (1995).
Taxation issues not discussed during trial
U.S.Melo v. Allstate Ins. Co., 800 F. Supp. 2d 596 (D. Vt. 2011).
Mass.Leibovich v. Antonellis, 410 Mass. 568, 574 N.E.2d 978 (1991).
Colo.Rego Co. v. McKown-Katy, 801 P.2d 536 (Colo. 1990).
Prohibited by collateral-source rule
S.C.Giannini v. South Carolina Dept. of Transp., 378 S.C. 573, 664 S.E.2d 450 (2008).
Hopeless quagmire of confusion and conjecture
Miss.Blake v. Clein, 903 So. 2d 710 (Miss. 2005).
End of Document
438.Generally; pain and suffering, 25A C.J.S. Damages 438

Damages
D. Instructions
b. Future Consequences
438. Generally; pain and suffering
Where the issue of damages for future consequences of a personal injury, such as future pain and suffering,
is duly raised, the court should charge the jury permitting recovery therefor.
When there is evidence in the case showing a reasonable certainty 1 that there will be future effects from an injury,
an instruction that justifies an inclusion of them in an award of damages is proper 2 as, for example, an instruction
permitting a recovery for future pain and suffering. 3 In the absence of evidence showing reasonable certainty of
future damages, such as pain and suffering, the instructions should not permit an award thereof. 4
Under some circumstances, medical testimony is required to support an instruction as to future pain and
suffering, 5 but under other circumstances, the testimony of a physician is not essential to warrant an instruction
submitting the issue of damages for future pain and suffering. 6
Form of instruction as excluding recovery for speculative consequences.

An instruction relative to future damages, such as damages for future pain and suffering, must be so framed as
to exclude recovery for mere speculative consequences. 7 Instructions have been sustained where they allowed
recovery for future damages, such as future pain and suffering, which were "reasonably certain" to occur 8 or which
the plaintiff "will reasonably be expected to suffer in the future." 9 Where the injury is indisputably permanent, an
instruction is not objectionable where it authorizes a recovery for such suffering as the plaintiff "may endure" in
the future. 10 A charge allowing a consideration of the probable future effects, without limiting the consideration
to the reasonably probable future effects, of the injury is error. 11
While the courts may differ as to the proper construction of various phrases, the essence of the rule is that the
instructions should be so framed as to permit award of future damages, as for future pain and suffering, where
there is a belief that they will ensue based on substantial evidence and not on conjecture. 12
438.Generally; pain and suffering, 25A C.J.S. Damages 438
Footnotes
1
Mere possibility insufficient

Ill.Stift v. Lizzadro, 362 Ill. App. 3d 1019, 298 Ill. Dec. 983, 841 N.E.2d 126 (1st Dist. 2005).
Reasonable certainty or probability of future:
Consequences, see 42, 43.
Pain and suffering, see 104, 105.
Colo.City of Aurora v. Woolman, 165 Colo. 377, 439 P.2d 364 (1968).
Pa.Murphy v. Taylor, 440 Pa. 186, 269 A.2d 486 (1970).
Instruction should have been given
N.Y.Hughes v. Webb, 40 A.D.3d 1035, 837 N.Y.S.2d 698 (2d Dep't 2007).
4
5
6
7
A.L.R. Library
Sufficiency of evidence, in personal injury action, to prove future pain and suffering and to warrant instructions to
jury thereon, 18 A.L.R.3d 10.
Mo.Jones v. Allen, 473 S.W.2d 763 (Mo. Ct. App. 1971).
Instruction held erroneous or properly refused
Tex.Yellow Cab & Baggage Co. v. Green, 268 S.W.2d 519 (Tex. Civ. App. Fort Worth 1954), judgment aff'd, 154
Tex. 330, 277 S.W.2d 92 (1955).
Vt.Benoit v. Marvin, 120 Vt. 201, 138 A.2d 312 (1958).
N.C.Brown v. Neal, 283 N.C. 604, 197 S.E.2d 505 (1973).
UtahBrown v. Johnson, 24 Utah 2d 388, 472 P.2d 942 (1970).
Sufficiency of evidence to establish future pain and suffering, see 383, 386.
Ga.Malcolm v. Cotton, 128 Ga. App. 699, 197 S.E.2d 760 (1973).
Mo.Jones v. Allen, 473 S.W.2d 763 (Mo. Ct. App. 1971).
Mo.Brown v. St. Louis Public Service Co., 421 S.W.2d 255 (Mo. 1967).
OhioJohnson v. English, 5 Ohio App. 2d 109, 34 Ohio Op. 2d 229, 214 N.E.2d 254 (10th Dist. Franklin County 1966).
9
10
11
12

Mo.Zoeller v. Terminal R. R. Ass'n of St. Louis, 407 S.W.2d 73 (Mo. Ct. App. 1966).
Mo.Brown v. Campbell, 240 Mo. App. 182, 219 S.W.2d 661 (1949).
Medical certainty
Neb.LeMieux v. Sanderson, 180 Neb. 311, 142 N.W.2d 557 (1966).
OhioKnotts v. Valocchi, 2 Ohio App. 2d 188, 31 Ohio Op. 2d 282, 207 N.E.2d 379 (7th Dist. Lake County 1963).
IowaSmith v. Pine, 234 Iowa 256, 12 N.W.2d 236 (1943).
Tex.Fisher v. Coastal Transport Co., 149 Tex. 224, 230 S.W.2d 522 (1950).
OhioJohnson v. English, 5 Ohio App. 2d 109, 34 Ohio Op. 2d 229, 214 N.E.2d 254 (10th Dist. Franklin County 1966).
End of Document
439.Permanent injuries, 25A C.J.S. Damages 439

Damages
D. Instructions
439. Permanent injuries
Where there is evidence sufficient to show permanency of injury, the court should charge the jury with
respect to damages therefor.
Instructions may and should permit recovery of damages for permanent injury where the issue of permanent injury
is properly raised by the pleadings, 1 and there is evidence from which a conclusion of such injury may properly be
drawn 2 although where there is no sufficient evidence of the permanency of the injury the instructions should not
permit recovery of damages therefor. 3 The instruction should furnish the jury with a guide as to how to measure
damages for permanent injury and not leave the matter to their undirected discretion. 4
There is a difference between evidence that will justify an instruction allowing an award for future damages and
that warranting a charge permitting an award for permanent injuries, and to support the latter, the evidence must
show the permanency of the injury with reasonable certainty. 5 While absolute certainty of the permanence of
the injury need not be shown to support an instruction thereon, 6 no such instruction should be given where the
evidence with respect to permanency is purely speculative or conjectural. 7 Evidence as to impaired earning power
or pecuniary loss is not a prerequisite to an instruction on damages for a permanent injury. 8
Jury instructions, stating that the jury should consider and allow a sum for "any permanent condition" in assessing
damages in a personal injury action, do not impermissibly require that the jury find permanency but set a standard
for assessing damages for any permanent condition the jury does find. 9
The trial court must instruct the jury that if it awards damages for loss of ability to perform usual activities, which
will also encompass permanency of disability suffered, the jury must not award additional damages for that same
loss when considering any other element of damages, such as physical and mental pain and suffering, as such an
additional award would be duplicative. 10
439.Permanent injuries, 25A C.J.S. Damages 439
Footnotes
Ga.Baxter v. Bryan, 122 Ga. App. 817, 178 S.E.2d 724 (1970).
1
2
IowaSchnebly v. Baker, 217 N.W.2d 708 (Iowa 1974).

Refusal to charge injuries not permanent
Md.Baltimore Transit Co. v. Smith, 252 Md. 430, 250 A.2d 228 (1969).
3
4
5
6
7
8
9
10
A.L.R. Library
Sufficiency of evidence, in personal injury action, to prove permanence of injuries and to warrant instructions to jury
thereon, 18 A.L.R.3d 170.
Va.Oak Knolls Realty Corp. v. Thomas, 212 Va. 396, 184 S.E.2d 809 (1971).
Ky.Bybee v. Shanks, 253 S.W.2d 257 (Ky. 1952).
Or.Creel v. Shadley, 266 Or. 494, 513 P.2d 755 (1973).
Medical testimony not required
Minn.Carpenter v. Nelson, 257 Minn. 424, 101 N.W.2d 918 (1960).
Ky.Lobred v. Mann, 395 S.W.2d 778 (Ky. 1965).
Ky.Siler v. Williford, 375 S.W.2d 262 (Ky. 1964).
N.M.Jackson v. Southwestern Public Service Co., 66 N.M. 458, 349 P.2d 1029 (1960).
Mass.Duvivier v. Kay's Oasis Enterprises, Inc., 2010 Mass. App. Div. 31, 2010 WL 1139331 (2010), aff'd, 79 Mass.
App. Ct. 1106, 944 N.E.2d 632 (2011), review denied, 460 Mass. 1103, 949 N.E.2d 924 (2011).
OhioFantozzi v. Sandusky Cement Prod. Co., 64 Ohio St. 3d 601, 1992-Ohio-138, 597 N.E.2d 474 (1992).
End of Document

Damages
D. Instructions
440. Loss of time or earnings
Where the pleadings and evidence sufficiently raise such issue, the court in a personal injury case should
properly instruct the jury concerning damages for loss of time or earnings.
The court may and should instruct the jury of its right to award damages for lost time or earnings resulting from
personal injuries where the pleadings 1 and evidence 2 are found by the court to support such an instruction
but should conform its instructions, if any, on such matter to the pleadings. 3 The court should by appropriate
instructions withdraw or omit such items of damage where the evidence is insufficient to show loss of time or
earnings 4 or the value of such time. 5 It has been held, however, that although the amount lost by the plaintiff is
not shown, yet if no request is made to instruct that the award therefor be limited to nominal damages, and there is
nothing to show that the damages awarded for this item exceeded a nominal sum, the defendant cannot complain. 6
Instructions with respect to damages for time or earnings lost should correctly state the applicable substantive
principles of the law of damages, 7 as with respect to the period for which recovery of lost earnings may be
granted, 8 and the matter of proximate cause. 9
The jury should be properly instructed as to whether, in computing compensation for lost earnings, deductions
are to be made for insurance benefits, salary payments, and the like. 10
Footnotes
Ga.Sheridan v. Haggard, 95 Ga. App. 792, 99 S.E.2d 163 (1957).
1
2

U.S.Wells v. Colorado College, 478 F.2d 158 (10th Cir. 1973).
Ill.Halloran v. Sisters of St. Joseph of Third Order, 11 Ill. App. 3d 897, 298 N.E.2d 382 (1st Dist. 1973).
Sufficient evidence of future loss of income
3
4
5
6
7
8
9
10
Instruction on future lost earnings unwarranted by evidence

N.Y.O'Brien v. Barretta, 44 A.D.3d 731, 843 N.Y.S.2d 399 (2d Dep't 2007).
1957).
Minn.Berg v. Gunderson, 275 Minn. 420, 147 N.W.2d 695 (1966).
Mo.Hutchison v. Moerschel Products Co., 234 Mo. App. 518, 133 S.W.2d 701 (1939).
Fla.Smith v. Tantlinger, 102 So. 2d 840 (Fla. Dist. Ct. App. 2d Dist. 1958).
N.H.Pepin v. Beaulieu, 102 N.H. 84, 151 A.2d 230 (1959).
U.S.Taylor v. Denver & R. G. W. R. Co., 438 F.2d 351, 14 Fed. R. Serv. 2d 1590 (10th Cir. 1971).
Ga.Ferrence v. Lacy, 114 Ga. App. 692, 152 S.E.2d 605 (1966).
1957).
Mo.Kelly v. Kiel, 117 S.W.2d 1086 (Mo. Ct. App. 1938).
Instruction held proper or not erroneous
Mo.Brandock v. Atchison, T. & S. F. R. Co., 269 S.W.2d 93 (Mo. 1954).
Fla.Greyhound Corp. v. Ford, 157 So. 2d 427 (Fla. Dist. Ct. App. 2d Dist. 1963).
Mich.Blacha v. Gagnon, 47 Mich. App. 168, 209 N.W.2d 292 (1973).
End of Document

Damages
D. Instructions
Where the issue is duly raised, the court should advise the jury that it may award damages for impaired
earning capacity, and the jury should be instructed to compute the present value of loss of future earnings
in assessing damages.
The court may and should charge the jury that they may award damages for impairment of earning capacity
resulting from personal injuries where the plaintiff has duly pleaded such item 1 and adduced evidence sufficient
to support an instruction thereon 2 as where there is evidence sufficient to sustain instructions allowing damages
for impairment of earning capacity arising from sundry particular injuries. 3 Not only must there be an evidentiary
basis in order for a court to give a jury instruction on future disability and lost wages but that evidence must also
be reliable and grounded in more than mere possibilities. 4 The court may properly instruct the jury that they
may consider impairment of the plaintiff's "capacity to earn money" even though there is no evidence of loss of
actual earnings. 5
Instructions with respect to decreased earning power should, however, conform to the pleadings 6 and should omit
or deny recovery therefor where the evidence is insufficient to support a charge allowing damages for impairment
of earning power 7 as where the evidence is insufficient to show the amount of the earning capacity, 8 or to show
the fact of impairment, 9 or to permit the jury to estimate the pecuniary value of the loss. 10 To be entitled to an
instruction for the loss of future earnings, the plaintiff must present reasonably certain proof that such a loss will
occur. 11 However, if the plaintiff was not employed at a fixed wage, he or she may plead in general terms that as a
result of the injury his or her earning capacity has been impaired or that the plaintiff has incurred medical expenses,
in unstated amounts, and any such recovery would then necessarily be included in the claimed damages. 12
Instructions relative to damages for impairment of earning capacity should comply with the form and requisites
of damage instructions generally 13 and should correctly state the substantive law of damages applicable to the
case 14 as with respect to recovery for impaired earning capacity by injured minors, 15 elimination of speculative
damages, 16 and the period for which recovery may be allowed with respect to impairment of earning capacity. 17
The jury should be properly instructed as to whether deductions are to be made on account of insurance benefits,
pension rights, and the like in computing the award for loss of future earnings. 18 The jury must also be instructed,
upon request, that the proper measure of damages for lost future earnings is net, rather than gross, income. 19
For an infant plaintiff to merit an instruction on impaired future earning capacity, the plaintiff must introduce
evidence showing that there is a reasonable probability that his or her injuries will impair the plaintiff's future
earning capacity and sufficient factual matter upon which the quantum of diminishment can reasonably be
determined. 20
Present value.
In estimating prospective future damages from diminished earning capacity, the jury should be instructed to reduce
such damages to their present worth 21 and in this connection may and should charge the jury with respect to the
effect of age on future earning capacity 22 although where the matter is otherwise sufficiently covered, the court
need not specifically charge as to reduction to present value in connection with impairment of earning capacity. 23
The court should not, however, so word its charge as to reduction of damages for loss of future earning capacity
as improperly to lead the jury to assume that they must award damages for such item where the evidence does
not require such an award. 24 Where actuarial evidence is introduced in this connection, the court should instruct
as to the use of such evidence. 25
Footnotes
1
Mich.Blacha v. Gagnon, 47 Mich. App. 168, 209 N.W.2d 292 (1973).
Pleading held sufficient to justify instruction

Tex.Gray v. Newberry, 380 S.W.2d 22 (Tex. Civ. App. Texarkana 1964), writ refused n.r.e., (Oct. 7, 1964).
Ark.Graftenreed v. Seabaugh, 100 Ark. App. 364, 268 S.W.3d 905 (2007).
Permanent injury as basis
Ky.Reece v. Nationwide Mut. Ins. Co., 217 S.W.3d 226 (Ky. 2007).
4
5
Basis lacking
There is no basis for an instruction on a future impairment of earning capacity claim where there is evidence of a
permanent injury but no suggestion of how the injury would or could affect the plaintiff's power to earn money.
Ky.Louisville and Jefferson County Bd. of Health v. Mulkins, 445 S.W.2d 849 (Ky. 1969).
Mont.Strong v. Williams, 154 Mont. 65, 460 P.2d 90 (1969).
Knee
Tex.Gaskin v. Perritt, 472 S.W.2d 211 (Tex. Civ. App. Texarkana 1971).
(1998).
Mo.Vaccaro v. Moss, 410 S.W.2d 329 (Mo. Ct. App. 1966).

1957).

Ga.City of Summerville v. Woodard, 97 Ga. App. 662, 104 S.E.2d 507 (1958).
Colo.Kirkeby v. Lauro, 483 P.2d 393 (Colo. App. 1971).
Ga.Robinson v. Allen, 124 Ga. App. 404, 184 S.E.2d 58 (1971).
Mo.Kagan v. St. Louis Public Service Co., 334 S.W.2d 379 (Mo. Ct. App. 1960).
8
9
10
11
12
13
14
Ga.Smith v. Burtts, 116 Ga. App. 649, 158 S.E.2d 702 (1967).
Wash.O'Donoghue v. Riggs, 73 Wash. 2d 814, 440 P.2d 823 (1968).
Ga.Atlanta Metallic Casket Co. v. Hollingsworth, 107 Ga. App. 594, 131 S.E.2d 61 (1963).
Charge on work expectancy or willingness to work held not necessary
N.H.Valliere v. Filfalt, 110 N.H. 331, 266 A.2d 843 (1970).
Ariz.Snethen v. Gomez, 6 Ariz. App. 366, 432 P.2d 914 (1967).
Form and requisites of damage instructions, generally, see 424.
Burden of proof
IowaAnthes v. Anthes, 258 Iowa 260, 139 N.W.2d 201 (1965).
N.D.Spalding v. Loyland, 132 N.W.2d 914 (N.D. 1964).
Fla.Smith v. Tantlinger, 102 So. 2d 840 (Fla. Dist. Ct. App. 2d Dist. 1958).
Decrease of earning capacity with age
Pa.Fish v. Gosnell, 316 Pa. Super. 565, 463 A.2d 1042 (1983).
15
16
17

U.S.Shepard v. General Motors Corp., 423 F.2d 406 (1st Cir. 1970).
Wis.Carlson v. Drews of Hales Corners, Inc., 48 Wis. 2d 408, 180 N.W.2d 546 (1970).
U.S.Virginian Ry. Co. v. Armentrout, 158 F.2d 358 (C.C.A. 4th Cir. 1946).
Instructions as to minors sustained
Ga.Thomas v. Barnett, 107 Ga. App. 717, 131 S.E.2d 818 (1963).
U.S.Yodice v. Koninklijke Nederlandsche Stoomboot Maatschappij, 443 F.2d 76 (2d Cir. 1971); Smith v. Bowater
S.S. Co., 339 F. Supp. 399 (E.D. Pa. 1972).
Plaintiff's personal traits
18
19
20
21
22
Reduction of loss by rehabilitation

U.S.Houlihan v. Turner Const. Co., 139 F. Supp. 88 (D.R.I. 1956), judgment aff'd, 240 F.2d 435 (1st Cir. 1957).
No speculation permitted as to engineer's unknown pension rights
U.S.Murray v. New York, N H & H R Co, 255 F.2d 42 (2d Cir. 1958).
N.J.Ruff v. Weintraub, 105 N.J. 233, 519 A.2d 1384 (1987).
N.J.Lesniak v. County of Bergen, 117 N.J. 12, 563 A.2d 795 (1989).
Mich.Coger v. Mackinaw Products Co., 48 Mich. App. 113, 210 N.W.2d 124 (1973).
Interest
Ga.Kitchens v. Hall, 116 Ga. App. 41, 156 S.E.2d 920 (1967).
Ga.Thomas v. Barnett, 107 Ga. App. 717, 131 S.E.2d 818 (1963).
23
24
25
Charge not age discrimination

Ga.Ellis v. Cameron & Barkley Co., 171 Ga. App. 211, 319 S.E.2d 38 (1984).
Okla.Missouri-Kansas-Texas R. Co. v. Edwards, 1961 OK 92, 361 P.2d 459 (Okla. 1961).
Neb.Nownes v. Hillside Lounge, Inc., 179 Neb. 157, 137 N.W.2d 361 (1965).
Ala.Southern Ry. Co. v. Stallings, 268 Ala. 463, 107 So. 2d 873 (1958).
End of Document
442.Life expectancy and use of mortality tables, 25A C.J.S. Damages 442

Damages
D. Instructions
442. Life expectancy and use of mortality tables
Where the probable duration of the plaintiff's life becomes pertinent to the estimation of damages, the court
should charge the jury fully and correctly concerning life expectancy and all factors in evidence bearing
thereon, including mortality tables.
Where the matter becomes pertinent, the court should clearly and correctly charge the jury as to the effect of the
plaintiff's life expectancy on the amount of his or her recovery and concerning proper computation of such life
expectancy. 1 Thus, it is not error to instruct the jury that they may consider the injured person's life expectancy
in fixing compensation for future pain and suffering. 2 However, in the absence of pleading and evidence of
permanent injury or impairment of earning capacity, an instruction as to life expectancy is improper. 3
Whenever mortality tables are introduced, it is the duty of the court fully to instruct the jury concerning the use
of and weight that should be accorded such evidence. 4 The term "life expectancy" is sufficiently accurate as a
description of what is shown by mortality tables. 5
Where there is evidence that the injuries are permanent in their nature and that the plaintiff's earning capacity will
be impaired, it is proper to instruct the jury as to the use of annuity tables. 6 Where the court charges as to the use
of annuity tables, it should, in a case where the evidence as to whether the injury is permanent or temporary is
conflicting, instruct them that before making use of the tables, they must find that the injury is permanent. 7
Footnotes
Conn.Acampora v. Ledewitz, 159 Conn. 377, 269 A.2d 288 (1970).
1
Work expectancy tables
U.S.Golden v. Sommers, 56 F.R.D. 3 (M.D. Pa. 1972), aff'd, 481 F.2d 1398 (3d Cir. 1973).
442.Life expectancy and use of mortality tables, 25A C.J.S. Damages 442
3
4
5
6
7
Ga.Graham v. Clark, 114 Ga. App. 825, 152 S.E.2d 789 (1966).
Refusal of instruction held error
Wash.Mills v. Park, 67 Wash. 2d 717, 409 P.2d 646 (1966).
IowaDaniels v. Bloomquist, 258 Iowa 301, 138 N.W.2d 868 (1965).
Or.Skultety v. Humphreys, 247 Or. 450, 431 P.2d 278 (1967).
Cal.Murphy v. National Ice Cream Co., 114 Cal. App. 482, 300 P. 91 (1st Dist. 1931).
Distinction between life expectancy and work expectancy
Pa.Brodie v. Philadelphia Transp. Co., 415 Pa. 296, 203 A.2d 657 (1964).
Ill.Martin v. Kralis Poultry Co., Inc., 12 Ill. App. 3d 453, 297 N.E.2d 610 (5th Dist. 1973).
Ga.Mathis v. Patrick, 109 Ga. App. 376, 136 S.E.2d 166 (1964).
End of Document
443.Reduction of award to present value; effect of inflation, 25A C.J.S. Damages 443

Damages
D. Instructions
443. Reduction of award to present value; effect of inflation
West's Key Number Digest, Damages 216(1), 216(7), 216(8)
Where future damages must be reduced to present worth, appropriate instructions should be given to
the jury. Generally, it is proper for the court to instruct the jury that they may consider the diminished
purchasing power of the dollar in assessing damages.
Where future damages must be reduced to present worth, appropriate instructions should be given to the jury. 1
A charge as to future damages should distinguish between those types of future damage that should be reduced
to present cash value and those that need not be so reduced. 2
It may be proper to instruct the jury that in awarding damages for future pain and suffering, they should bear in
mind that the plaintiff is receiving a present cash consideration for damages that have not as yet been sustained 3
although it has also been held improper to charge the jury that compensation for future pain and suffering should
be reduced to its present worth. 4 Other authorities, however, hold that the instructions should limit recovery to
the present worth of future pain and suffering. 5
Inflation; purchasing power of dollar.

Generally, it is proper for the court to instruct the jury that they may consider the diminished purchasing power
of the dollar in assessing damages. 6 On the other hand, it is not error to refuse such an instruction, 7 particularly
where there is no basis in the evidence for the charge. 8
It is proper to refuse to instruct the jury to disregard the present purchasing power of the dollar in computing
damages. 9
Footnotes
443.Reduction of award to present value; effect of inflation, 25A C.J.S. Damages 443
2
3
4
5
6
N.C.Moss v. Southern Ry. Co., 2 N.C. App. 50, 162 S.E.2d 633 (1968).
Reduction to present worth, generally, see 139 to 143.
Recommended methods of calculating cannot preempt jury's function
U.S.Monessen Southwestern Ry. Co. v. Morgan, 486 U.S. 330, 108 S. Ct. 1837, 100 L. Ed. 2d 349 (1988).
Ga.Southern Ry. Co. v. Gale, 103 Ga. App. 87, 118 S.E.2d 742 (1961).
Ga.Southern Ry. Co. v. Bottoms, 35 Ga. App. 804, 134 S.E. 824 (1926).
U.S.Texas & Pac. Ry. Co. v. Buckles, 232 F.2d 257 (5th Cir. 1956); Taylor v. Denver & R. G. W. R. Co., 438 F.2d
351, 14 Fed. R. Serv. 2d 1590 (10th Cir. 1971).
Ga.Parrott v. Edwards, 113 Ga. App. 422, 148 S.E.2d 175 (1966).
N.C.Lamont v. Highsmith Hospital, 206 N.C. 111, 173 S.E. 46 (1934).
Ind.Colonial Discount Corp. v. Berkhardt, 435 N.E.2d 65 (Ind. Ct. App. 1982).
La.Rains v. Diamond M. Co., 396 So. 2d 306 (La. Ct. App. 3d Cir. 1981), writ denied, 399 So. 2d 623 (La. 1981).
Tex.Texas Const. Service Co. of Austin, Inc. v. Allen, 635 S.W.2d 810 (Tex. App. Corpus Christi 1982), writ refused
n.r.e., (Sept. 15, 1982).
Total-offset rule erroneously applied

U.S.Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S. Ct. 2541, 76 L. Ed. 2d 768 (1983).
U.S.Capella v. Zurich General Acc. Liability Ins. Co., 194 F.2d 558 (5th Cir. 1952).
Rationale
It is hardly necessary to remind a jury of the diminished purchasing power of the dollar since jurors are reminded of
it almost daily when they purchase the necessaries of life.
Nev.Porter v. Funkhouser, 79 Nev. 273, 382 P.2d 216 (1963).
Conn.Quednau v. Langrish, 144 Conn. 706, 137 A.2d 544 (1957).
Loss of earnings and medical bills

In an action for injuries, a request to charge the jury as to the depreciated dollar was inapplicable where the evidence
disclosed loss of earnings and medical bills incurred within the past two to three years.
Conn.Cooley v. Crispino, 21 Conn. Supp. 150, 147 A.2d 497 (Super. Ct. 1958).
N.J.Hannon v. Delaware, L. & W.R. Co., 98 N.J.L. 191, 119 A. 86 (N.J. Ct. Err. & App. 1922).
Purchasing power as properly governing
U.S.Doca v. Marina Mercante Nicaraguense, S. A., 634 F.2d 30 (2d Cir. 1980).
D.C.District of Columbia v. Barriteau, 399 A.2d 563 (D.C. 1979).
Pa.Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027, 21 A.L.R.4th 1 (1980).
End of Document

Damages
D. Instructions
3. Punitive Damages
444. Generally
Where the allegations and the evidence raise the issue of exemplary or punitive damages, the court may
and should instruct the jury with respect to such damages.
Where the allegations and the evidence raise the issue of exemplary or punitive damages, the court may and
should instruct the jury with respect to such damages. 1 On the other hand, the instructions should not permit an
award of exemplary damages where they are not in issue 2 as where the plaintiff does not demand an award of
exemplary damages in his or her pleadings, 3 or there is no evidence tending to show circumstances warranting the
infliction of exemplary damages. 4 In such circumstances, the court should not refuse an appropriate instruction
withdrawing such question from the jury's consideration 5 except where no exemplary damages are claimed. 6
An instruction requiring the jury to find the compensation to which the plaintiff is entitled for an injury does not
authorize an award of exemplary damages. 7
Cases:
An instruction for punitive damages may be given when there is evidence that a party likely knew or ought to have
known, in light of the surrounding circumstances, that his conduct would naturally or probably result in injury,
and that he continued such conduct in reckless disregard of the consequences from which malice could be inferred.
Ford Motor Co. v. Washington, 2013 Ark. 510, 431 S.W.3d 210 (2013).
[END OF SUPPLEMENT]
Footnotes
Ala.Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So. 2d 484 (1970).
1
2
3
4
5
6
7
OhioCabe v. Lunich, 70 Ohio St. 3d 598, 1994-Ohio-4, 640 N.E.2d 159, 33 A.L.R.5th 825 (1994).
Circumstances warranting assessment of exemplary or punitive damages, see 221 to 247.
Miss.Placid Oil Co. v. Byrd, 217 So. 2d 17 (Miss. 1968).
Fla.Martin v. Story, 97 So. 2d 343 (Fla. Dist. Ct. App. 2d Dist. 1957).
Ky.Com., Dept. of Highways v. Stephens, 428 S.W.2d 605 (Ky. 1968).
Miss.Shell Oil Co. v. Pou, 204 So. 2d 155 (Miss. 1967).
Miss.Boyd Const. Co. v. Bilbro, 210 So. 2d 637 (Miss. 1968).
Wash.Conrad v. Lakewood General Hospital, 67 Wash. 2d 934, 410 P.2d 785, 10 A.L.R.3d 1 (1966).
Kan.Mecartney v. Smith, 10 Kan. App. 580, 62 P. 540 (1900).
End of Document
445.Form and sufficiency of instructions, 25A C.J.S. Damages 445

Damages
D. Instructions
3. Punitive Damages
445. Form and sufficiency of instructions
Instructions relating to exemplary or punitive damages should clearly state the conditions under which
their assessment is authorized and correctly advise the jury with respect to the criteria essential to render
the defendant liable for such damages.
Instructions concerning a recovery of punitive damages need not be couched in any particular phraseology,
although they should clearly state the conditions under which such damages are authorized, 1 and furnish the jury
with a statement of the principles that should guide them to a correct and proper determination of the question
of exemplary or punitive damages. 2 A jury must not be left to determine of their own volition whether the
defendant should be punished by an infliction of exemplary damages without being informed as to what facts
and circumstances would render him or her liable for such damages or without any other rules to govern them
in the application of the evidence. 3 Thus, juries must be made aware that punitive damages are reserved for
cases involving more than mere negligence, specifically those cases involving intentional, fraudulent, reckless,
or malicious conduct. 4 Jury instructions that enlighten the jury as to the punitive damages' nature and purpose,
identify the damages as punishment for civil wrongdoing of the kind involved, and explain that their imposition
is not compulsory reasonably accommodate the defendant's interest in rational decision-making and the State's
interest in meaningful individualized assessment of appropriate deterrence and retribution, and as long as the jury
acts within its discretion, the defendant's due-process rights are satisfied. 5 When the evidence and arguments
submitted in the case create a risk of improper punishment, the trial court must, upon request, properly instruct
the jury on the constitutional limits of punitive damages. 6
When the trial court instructs the jury on punitive damages, the court should, at a minimum, carefully explain
the factors to be considered in awarding punitive damages. 7 The standards for any available enhanced damages
should be explained in conjunction with the instructions for each underlying theory of recovery. 8 Care should be
taken to instruct the jury as to the necessary intent or motive of the defendant, 9 to charge it correctly with respect
to malice, 10 and as to the degree of wantonness, negligence, or misconduct necessary to render the defendant
liable to such damages. 11 Complete instructions on the punitive damages issue may consist of telling the jury
that it can award punitive damages if clear and convincing evidence indicate that the defendant acted with malice,
fraud, gross negligence, or oppressiveness that did not result from mistake of fact or law, honest error or judgment,
overzealousness, mere negligence, or other human failing. 12 A punitive damages instruction is in error where
it does not apprise the jury of the fact that, in addition to the net worth of the defendant, the circumstances and
degree of wantonness or culpability should also be considered in determining the award. 13
A jury must be informed that it has the right to punish each tortfeasor to the extent of his or her participation in
the wrongful act and, if one is more guilty than the other, to punish that tortfeasor more severely. 14
When the defendant introduces evidence of other punitive damage awards already assessed against it and paid
by it, its own financial status, and the effect a punitive award would have on it, the trial court should instruct the
jury to consider whether the defendant has been sufficiently punished, keeping in mind that punitive damages are
meant to punish and deter defendants for the benefit of society, not to compensate individual plaintiffs. 15
Compensatory and exemplary damages.

Whether its instructions should separate the issues of compensatory and punitive damages may be addressed to
the discretion of the court. 16 The question of compensatory and exemplary damages may be submitted in the
same instruction, 17 and authorizing the jury to find in an aggregate sum for compensatory and punitive damages,
without separation of one from the other, is not necessarily erroneous. 18 On the other hand, under some state
statutes, there should be bifurcated proceedings when punitive damages are sought in products-liability actions. 19
Moreover, jury instructions on punitive damages, given in two stages, will adequately inform the jury that it has
to award actual damages for the tort before awarding punitive damages. 20
Footnotes
Ky.Neely v. Strong, 186 Ky. 540, 217 S.W. 898 (1920).
1
S.C.Hollis v. Stonington Development, LLC, 394 S.C. 383, 714 S.E.2d 904 (Ct. App. 2011).
Instructions not vague
U.S.Izzarelli v. R.J. Reynolds Tobacco Co., Prod. Liab. Rep. (CCH) P 18711, 2011 WL 3803900 (D. Conn. 2011).
N.J.Jiorle v. Mupo, 2009 WL 2601632 (N.J. Super. Ct. App. Div. 2009).
N.Y.Frankson v. Brown & Williamson Tobacco Corp., 67 A.D.3d 213, 886 N.Y.S.2d 714 (2d Dep't 2009).
2
3
4
5
6
7
Proposed instructions properly refused

Or.Estate of Schwarz ex rel. Schwarz v. Philip Morris Inc., 348 Or. 442, 235 P.3d 668 (2010), adhered to on
reconsideration, 349 Or. 521, 246 P.3d 479 (2010).
Kan.Brewer v. Home-Stake Production Co., 200 Kan. 96, 434 P.2d 828, 30 A.L.R.3d 1435 (1967).
Mo.Simmons v. Jones, 361 S.W.2d 860 (Mo. Ct. App. 1962).
176 L. Ed. 2d 367 (2010).
U.S.Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991).
S.C.Duncan v. Ford Motor Co., 385 S.C. 119, 682 S.E.2d 877 (Ct. App. 2009).
8
9
10
Tenn.Concrete Spaces, Inc. v. Sender, 2 S.W.3d 901 (Tenn. 1999).

Md.Drug Fair of Md., Inc. v. Smith, 263 Md. 341, 283 A.2d 392 (1971).
11
Malice in driving while drunk

OhioCabe v. Lunich, 70 Ohio St. 3d 598, 1994-Ohio-4, 640 N.E.2d 159, 33 A.L.R.5th 825 (1994).
Ky.W.T. Sistrunk & Co. v. Meisenheimer, 205 Ky. 254, 265 S.W. 467 (1924).
12
Proper definition of gross negligence

Tex.Higginbotham v. O'Keeffe, 340 S.W.2d 350 (Tex. Civ. App. Amarillo 1960), writ refused n.r.e., (Mar. 29, 1961).
Ind.Bud Wolf Chevrolet, Inc. v. Robertson, 519 N.E.2d 135 (Ind. 1988).
13
14
15
16
17
18
19
20
Preponderance of the evidence standard employed instead

N.J.Jadlowski v. Owens-Corning Fiberglas Corp., 283 N.J. Super. 199, 661 A.2d 814 (App. Div. 1995).
Fla.Bankers Multiple Line Ins. Co. v. Farish, 464 So. 2d 530 (Fla. 1985).
Ky.Bacigalupi v. Mucker, 486 S.W.2d 52 (Ky. 1972).
N.J.Fischer v. Johns-Manville Corp., 103 N.J. 643, 512 A.2d 466 (1986).
N.C.Cottle v. Johnson, 179 N.C. 426, 102 S.E. 769 (1920).
Approved practice is separate submission of the issues
N.C.Hinson v. Dawson, 244 N.C. 23, 92 S.E.2d 393, 62 A.L.R.2d 806 (1956).
Cal.Kuchta v. Allied Builders Corp., 21 Cal. App. 3d 541, 98 Cal. Rptr. 588 (4th Dist. 1971).
N.J.Gallichio v. Gumina, 35 N.J. Super. 442, 114 A.2d 447 (App. Div. 1955).
N.J.Herman v. Sunshine Chemical Specialties, Inc., 133 N.J. 329, 627 A.2d 1081 (1993) (the punitive damages
hearing itself need not be bifurcated for separate hearings on the issues of whether punitive damages should be awarded
and the amount of damages).
U.S.Okland Oil Co. v. Conoco Inc., 144 F.3d 1308, 49 Fed. R. Evid. Serv. 644 (10th Cir. 1998).
End of Document
Research References, 25A C.J.S. Damages X E Refs.
25A C.J.S. Damages X E Refs.

Damages
E. Verdict and Findings
Research References
A.L.R. Library
West's A.L.R. Digest, Damages 219.1 , 220 , 222
End of Document

Damages
446. Generally
A verdict for damages should be supported by the findings and must conform to the pleadings and the
evidence.
Proof of damage is essential to support a verdict awarding it. 1 Furthermore, the verdict should be supported by
the findings 2 and must conform to the pleadings, 3 the evidence, 4 and the instructions. 5 However, a court is not
required to make a finding on an immaterial matter. 6
While the trial court should state the basis on which damages are assessed, 7 the court is not necessarily required
to set forth the computations showing by what method it determined the amount of damages. 8 The trial court is
not required to itemize every component of its damages decision. 9
Construction of verdict or finding.

General rules govern the construction of a verdict or finding awarding damages. 10 A verdict based on a count
charging simple negligence will be considered as awarding only compensatory damages where punitive damages
are not allowed for simple negligence. 11 A failure on the part of the jury to award any damages for pain and
suffering that has been clearly proved is, in effect, a finding of no liability. 12 Where the trial court withdraws the
issue of exemplary damages from the jury and fails to instruct thereon, a verdict awarding damages for mental
anguish must be considered as awarding compensatory damages only. 13
Nominal damages.
A finding for plaintiffs without the award of any sum of money is tantamount to an award of nominal damages, and
in such case, the court may direct the entry of a verdict for the usual sum given as nominal damages. 14 A nominal
award for personal injury constitutes a finding that the accident resulted solely from the defendant's negligence
but that the plaintiff suffered no injury attributable thereto. 15
Footnotes
OhioHanes v. Block, 78 Ohio App. 394, 34 Ohio Op. 137, 44 Ohio L. Abs. 503, 65 N.E.2d 86 (2d Dist. Franklin
1
County 1945).
Okla.Rollins v. Rayhill, 1948 OK 83, 200 Okla. 192, 191 P.2d 934 (1948).
Issues, proof, and variance, see 298.
Nominal damages in absence of proof as to actual damage, see 24.
As to correction of errors as to amount of recovery by court, see C.J.S., Trial 912 to 916.
Cal.Dallman Co. v. Southern Heater Co., 262 Cal. App. 2d 582, 68 Cal. Rptr. 873 (1st Dist. 1968).
Finding of liability required
Wis.Lopez v. Prestige Cas. Co., 53 Wis. 2d 25, 191 N.W.2d 908 (1971).
Neb.Schmidt v. Richman Gordman, Inc., 191 Neb. 345, 215 N.W.2d 105 (1974).
Award may exceed demand in proper cases
Wis.Schmidt v. Mueller, 53 Wis. 2d 311, 193 N.W.2d 161 (1972).
Or.Brannan v. Slemp, 260 Or. 336, 490 P.2d 979 (1971).
Tex.Holland v. Lovelace, 352 S.W.3d 777 (Tex. App. Dallas 2011), reh'g overruled, (Dec. 7, 2011).
Absolute exactness not necessary
Fla.Niagara Therapy Mfg. Corp. v. Niagara Cyclo Massage of Miami, Inc., 196 So. 2d 474 (Fla. Dist. Ct. App. 3d
Dist. 1967).
5
6
7
9
10
11
12
13
14
15
Punitive damages
Ga.Infinite Energy, Inc. v. Cottrell, 295 Ga. App. 306, 671 S.E.2d 294 (2008).
Ga.Jones v. Spindel, 122 Ga. App. 390, 177 S.E.2d 187 (1970).
N.M.Callaway v. Olguin, 83 N.M. 767, 497 P.2d 978 (Ct. App. 1972).
IdahoAnderson v. Michel, 88 Idaho 228, 398 P.2d 228 (1965).
Cal.Macmorris Sales Corp. v. Kozak, 263 Cal. App. 2d 430, 69 Cal. Rptr. 719 (2d Dist. 1968).
Mich.Dierickx v. Vulcan Industries, 10 Mich. App. 67, 158 N.W.2d 778 (1968).
N.M.Alvillar v. Hatfield, 82 N.M. 565, 484 P.2d 1275 (Ct. App. 1971).
U.S.Pritchett v. U.S., 425 F.2d 663 (5th Cir. 1970).
Cal.City of Salinas v. Souza & McCue Const. Co., 66 Cal. 2d 217, 57 Cal. Rptr. 337, 424 P.2d 921 (1967) (overruled
in part on other grounds by, Helfend v. Southern Cal. Rapid Transit Dist., 2 Cal. 3d 1, 84 Cal. Rptr. 173, 465 P.2d
61, 77 A.L.R.3d 398 (1970)).
Mass.Anthony's Pier Four, Inc. v. HBC Associates, 411 Mass. 451, 583 N.E.2d 806 (1991).
U.S.Buono Sales, Inc. v. Chrysler Motors Corp., 449 F.2d 715 (3d Cir. 1971); U.S. v. Varner, 400 F.2d 369 (5th Cir.
1968); Greiner v. Chicago & E. I. R. Co., 360 F.2d 891 (7th Cir. 1966).
Cal.Green v. Smith, 261 Cal. App. 2d 392, 67 Cal. Rptr. 796 (4th Dist. 1968).
Fla.Grossman v. Short, 235 So. 2d 11 (Fla. Dist. Ct. App. 3d Dist. 1970), writ discharged, 245 So. 2d 217 (Fla. 1971).
Ala.Montgomery City Lines v. Davis, 261 Ala. 491, 74 So. 2d 923 (1954).
Ga.McAfee v. Fickling & Walker Development Co., 123 Ga. App. 647, 182 S.E.2d 146 (1971).
IowaCurnett v. Wolf, 244 Iowa 683, 57 N.W.2d 915 (1953).
N.Y.Walters v. Geheran, 192 N.Y.S.2d 23 (Sup 1959).
N.Y.Thompson v. Glover, 19 A.D.2d 753, 242 N.Y.S.2d 888 (2d Dep't 1963).
End of Document
447.Ambiguity, inconsistency, or uncertainty, 25A C.J.S. Damages 447

Damages
447. Ambiguity, inconsistency, or uncertainty
The verdict and findings should not be ambiguous, uncertain, or inconsistent.
The verdict and findings should not be ambiguous, 1 uncertain, 2 or inconsistent. 3

In determining the sufficiency of a verdict as to certainty, the instructions of the court and the proof given in
evidence will be considered in connection therewith. 4 A verdict or finding in an action for damages is sufficient
when a computation of the amount of damages can be made, or the language employed is such that the meaning
or intent of the jury to award a specific amount cannot well be misunderstood. 5 Where the verdict in an action
for damages is so uncertain or ambiguous that it is impossible to tell what sum the jury intended to allow, the
verdict cannot stand. 6
Inconsistency.
A verdict is not necessarily inconsistent simply because it fails to award enough money or no money at all; under
such circumstances, there may be an issue as to the adequacy of the award but not its inconsistency with any other
award contained within the verdict. 7 A finding by the court as to damages being "nominal" in the sense of "small"
is not inconsistent with an award of substantial damages. 8 However, a verdict in a tort action awarding a nominal
sum as general damages and a larger sum as special damages is inconsistent. 9 Also, when a jury awards special
damages but nominal general damages and there is sufficient evidence to support an award for pain and suffering,
the verdict is characterized as inconsistent. 10
If a special verdict, in itself consistent, is inconsistent with the general verdict, the latter will be disregarded and
the damages assessed according to the former. 11
A finding of a specified sum as a particular element of loss does not render a general verdict for a larger sum
inconsistent when the latter could properly include in its estimation other proper and legitimate elements of damage
in the case. 12 Moreover, a general verdict for damages should not be disregarded on the ground of inconsistency
with special findings where the latter omitted an item of damages concerning which evidence was produced. 13
Generally, a failure by the jury to award damages for pain and suffering is not necessarily inconsistent with an
award in other damage categories. 14
Although a verdict allowing recovery on a cause of action for personal injuries while denying recovery for property
damage is inconsistent where the plaintiff is entitled to recover on both causes of action, 15 in the absence of a
showing of a compensable injury, a verdict finding the defendant negligent but failing to award damages to the
plaintiff is not inconsistent. 16
Jury verdicts allowing damages to several plaintiffs need not be consistent with respect to the amounts awarded
to each. 17 Furthermore, a jury verdict awarding past medical expenses, lost wages, and pain and suffering but
denying compensation for past or future disability is not inherently impermissibly inconsistent. 18
Cases:
A finding of breach of contract coupled with a finding of zero damages is not necessarily error. Wilson v.
University Community Hosp., Inc., 101 So. 3d 857 (Fla. 2d DCA 2012).
Although it may be unusual for a jury to award damages for medical bills to treat pain, but not for the pain itself,
such a verdict is not itself irrational, invalid, or evidence of a confused jury. Keller v. Serio, 437 Md. 277, 85
A.3d 283 (2014).
[END OF SUPPLEMENT]
Footnotes
AlaskaPatrick v. Sedwick, 413 P.2d 169 (Alaska 1966).
1
Cal.Zagami, Inc. v. James A. Crone, Inc., 160 Cal. App. 4th 1083, 74 Cal. Rptr. 3d 235 (4th Dist. 2008).
Ambiguous verdict form and instructions
U.S.Happel v. Walmart Stores, Inc., 602 F.3d 820 (7th Cir. 2010).
3
4
5
Award of zero damages

A jury verdict finding the issues for the party seeking to recover damages, but awarding zero damages, is inherently
ambiguous.
Conn.Hall v. Bergman, 106 Conn. App. 660, 943 A.2d 515 (2008), judgment aff'd, 296 Conn. 169, 994 A.2d 666
(2010).
U.S.Lettsome v. U.S., 411 F.2d 917 (5th Cir. 1969).
Mere finding for plaintiff insufficient
Pa.Idzojtic v. Catalucci, 222 Pa. Super. 47, 292 A.2d 464 (1972).
Colo.Bonidy v. Vail Valley Center for Aesthetic Dentistry, P.C., 232 P.3d 277 (Colo. App. 2010).
Kan.Schroeder v. Richardson, 196 Kan. 363, 411 P.2d 670 (1966).
U.S.Armstrong v. Commerce Tankers Corp., 311 F. Supp. 1236 (S.D. N.Y. 1969), judgment aff'd, 423 F.2d 957
(2d Cir. 1970).
7
8
9
10
11
12
13
14
15
16
17
18
Ill.Meiners v. Moyer, 119 Ill. App. 2d 94, 255 N.E.2d 201 (2d Dist. 1970).
A.L.R. Library
Propriety of reassembling jury to amend, correct, clarify, or otherwise change verdict after discharge or separation at
conclusion of civil case, 19 A.L.R.5th 622.
Cal.Smith v. Florida Healthy Kids Corp., 27 So. 3d 692 (Fla. Dist. Ct. App. 4th Dist. 2010).
Conn.Buden v. Dombrouskas, 147 Conn. 728, 166 A.2d 157 (1960).
Kan.Schroeder v. Richardson, 196 Kan. 363, 411 P.2d 670 (1966).
Wis.Ziegler v. Wonn, 18 Wis. 2d 382, 118 N.W.2d 706 (1963).
OhioOhio Fuel Gas. Co. v. Ringler, 126 Ohio St. 409, 185 N.E. 553 (1933).
Ill.Balough v. Northeast Illinois Regional Commuter R.R. Corp., 409 Ill. App. 3d 750, 351 Ill. Dec. 184, 950 N.E.2d
680 (1st Dist. 2011).
A.L.R. Library
Validity of verdict awarding medical expenses to personal injury plaintiff, but failing to award damages for pain and
suffering, 55 A.L.R.4th 186.
Nev.Lee v. Baker, 77 Nev. 462, 366 P.2d 513 (1961).
N.J.Watkins v. Myers, 12 N.J. 71, 95 A.2d 705, 36 A.L.R.2d 1330 (1953).
Ark.Erhart v. Hummonds, 232 Ark. 133, 334 S.W.2d 869 (1960).
Ill.Butkewicz v. Chicago Transit Authority, 252 Ill. App. 3d 914, 192 Ill. Dec. 545, 625 N.E.2d 700 (1st Dist. 1993).
End of Document
448.Verdicts as to joint plaintiffs or defendants, 25A C.J.S. Damages 448

Damages
448. Verdicts as to joint plaintiffs or defendants
The jury need not assess separate damages to joint plaintiffs, nor must the jury necessarily apportion
negligence between two defendants.
The jury need not assess separate damages to each of several joint plaintiffs, 1 but an instruction that the jury
so state the separate amounts found for each plaintiff is not fatal error. 2 Although the jury does not apportion
negligence equally between two defendants, an equal division of the plaintiff's disbursements between the
defendants may be proper. 3
Where the rule is not modified by statute, 4 an assessment of damages in an action against joint tortfeasors must
be for a lump sum against those found guilty and cannot be severally apportioned between them. 5 In cases where
punitive damages are sought against two or more joint tortfeasors, the court should use a special verdict that allows
the jury to assess punitive damages individually in separate amounts against each of the several defendants found
to be liable therefor. 6
Cases:
When liability has already been established, it is not necessary for each plaintiff in a class action to prove the
amount of damages on an individualized basis. Moore v. Health Care Authority, 332 P.3d 461 (Wash. 2014).
[END OF SUPPLEMENT]
Footnotes
Wis.Matson v. Dane County, 177 Wis. 649, 189 N.W. 154 (1922).
1
2
As to apportionment of recovery and damages in verdict, generally, see C.J.S., Trial 889 to 895.
Ala.Anderson v. Kemp, 279 Ala. 321, 184 So. 2d 832 (1966).
448.Verdicts as to joint plaintiffs or defendants, 25A C.J.S. Damages 448
3
4
5
Form and requisites of instructions, generally, see 424.

Wis.Bash v. Employers Mut. Liability Ins. Co., 38 Wis. 2d 440, 157 N.W.2d 634 (1968).
Ky.Murphy v. Taxicabs of Louisville, Inc., 330 S.W.2d 395 (Ky. 1959).
Fla.Kellenberger v. Widener, 159 So. 2d 267 (Fla. Dist. Ct. App. 2d Dist. 1963) (disapproved of on other grounds
by, Lehman v. Spencer Ladd's, Inc., 182 So. 2d 402 (Fla. 1965)).
Tenn.Morris v. Ostertag, 52 Tenn. App. 561, 376 S.W.2d 720 (1963).
Computation proper
U.S.Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973).
Fla.Abrams v. Paul, 453 So. 2d 826 (Fla. Dist. Ct. App. 1st Dist. 1984).
End of Document
Research References, 25A C.J.S. Damages X F Refs.
25A C.J.S. Damages X F Refs.

Damages
F. Inquest of Damages
Research References
A.L.R. Library
West's A.L.R. Digest, Damages 222.5 to 224
End of Document
449.Operation and effect of inquest or assessment, 25A C.J.S. Damages 449

Damages
449. Operation and effect of inquest or assessment
Judgments rendered on inquisition of damages may cure whatever defects are cured by judgments rendered
on verdicts.
Under statutes placing judgments rendered on an inquisition of damages on the same footing as those rendered
on the verdict of a jury, whatever defects are cured by the one are also cured by the other. 1
Footnotes
La.Prejean v. U.S. Gypsum Co., 345 So. 2d 181 (La. Ct. App. 3d Cir. 1977).
1
Reasons for finding insufficient evidence to support award required
Wis.Sporleder v. Gonis, 68 Wis. 2d 554, 229 N.W.2d 602 (1975).
End of Document
450.Objections and exceptions to inquest or assessment, 25A C.J.S. Damages 450

Damages
450. Objections and exceptions to inquest or assessment
Objections to inquest or assessment of damages are open to waiver where resting on formal grounds, and
objections and exceptions should be timely.
Exceptions to assessments of damages should be seasonably taken, 1 and objections of a formal character are
subject to waiver. 2 However, a defendant does not waive its right to complain that the plaintiff, who did not
request that the jury assess actual damages, was not entitled to punitive damages even though the defendant does
not object to the jury charge. 3
Footnotes
1
Additur did not correct verdict

Fla.Meana v. St. Petersburg Kennel Club, Inc., 279 So. 2d 329 (Fla. Dist. Ct. App. 2d Dist. 1973).
UtahLangton v. International Transport, Inc., 26 Utah 2d 452, 491 P.2d 1211 (1971).
No waiver
U.S.Rhoades v. Boren, 486 F.2d 132 (5th Cir. 1973).
U.S.Hadley v. VAM P T S, 44 F.3d 372 (5th Cir. 1995).
End of Document
451.Setting aside inquest or assessment, 25A C.J.S. Damages 451

Damages
451. Setting aside inquest or assessment
An inquest or order for the assessment of damages like any other judicial proceeding will be set aside where
injustice is or would be done to a litigant by allowing it to stand.
It is within the discretion of the court to set aside inquests and open defaults to attain a fair trial where the damages
are deemed excessive by the trial court. 1 An inquest or order for the assessment of damages like any other judicial
proceeding will be set aside where injustice is or would be done to a litigant by allowing it to stand. 2
A motion made before judgment to remove a default and set aside an assessment of damages is not a motion for
a new trial, and proceedings governing motions for "new trial" and "setting aside of a verdict," as the latter terms
are used in statutes and rules of court, have no relation to such a motion to set aside an assessment of damages. 3
Footnotes
Pa.Baraonfski v. Malone, 371 Pa. 479, 91 A.2d 908 (1952).
1
Mass.Hurnanen v. Gardner Automobile Co., 225 Mass. 189, 114 N.E. 198 (1916).
2
Lack of notice to defendant

Ga.Williams v. Linn, 108 Ga. App. 629, 133 S.E.2d 892 (1963).
Mass.Hurnanen v. Gardner Automobile Co., 225 Mass. 189, 114 N.E. 198 (1916).
End of Document
Research References, 25A C.J.S. Damages X G Refs.
25A C.J.S. Damages X G Refs.

Damages
G. Computation and Amount of Damages
Research References
A.L.R. Library
End of Document
452.Time to which damages may be recovered, 25A C.J.S. Damages 452

Damages
452. Time to which damages may be recovered
Generally, damages should be assessed as of the date when the action was commenced, or as of the date of
trial, although in some instances, the plaintiff may recover for damages manifesting themselves thereafter
and up to the time of verdict or final judgment.
Excepting trespass and actions founded on an anticipatory breach of contract, 1 it is the general rule that in actions
at law, damages are to be assessed as of the date when the action was brought, 2 or as of the date of trial, 3 and only
such damages as have then accrued may be awarded in actions either of contract 4 or of tort. 5 The plaintiff can
recover only for such damages as are the consequences of what the defendant did before the action was brought. 6
Damages that have accrued after the action was begun may be allowed, as under statute, where they are the
consequence of acts done before the beginning of the action and constituting a part of the cause of action declared
on, 7 but under such a statute, damages may not be recovered for subsequent acts which themselves constitute
new causes of action. 8 In liquidating an anticipatory breach of contract, occurrences up to the time of trial may
be proved and considered that throw light on the damage really suffered, 9 and in such a case, the plaintiff may
be entitled to recover all damages not only up to the time of the commencement of the action but also during the
pendency thereof and down to the date of the trial. 10 While it has been held that to justify recovery of damages
sustained after the institution of the suit the injury should be of a permanent character continuing to produce
loss, 11 the plaintiff may recover for any damage that manifests itself up to the time of the verdict where the thing
complained of is a particular act occasioning a tortious injury to the person, 12 or property, 13 or where the wrong
consists in the breach of a contract. 14
Where the injury sued for is caused by a mere repetition or continuation of acts of the same class, the plaintiff's
recovery is limited to the damages resulting from such of those acts as were done before the bringing of the suit. 15
Thus, where the continuance of an act is not necessarily injurious, then the recovery must be limited to the damage
that has accrued at the time of the action. 16 Where, however, the same wrongful act produces both immediate and
future injury, independent of any subsequent wrongful acts, all damages resulting before or after commencement
of the action may be recovered therein. 17
In equity, damages may be given not only to the date of the writ but also to the date of the entry of the final
decree, 18 and where more damages fall due after a final decree appealed from, the court may give leave to amend
after rescript to cover them. 19
Successive actions.
Where successive actions are brought for a continuing wrong, the damages to be recovered are for the injuries
that have occurred during the period covered by the particular action. 20
Footnotes
Pa.Applebaum v. Manayunk Spinning Mill, 178 Pa. Super. 198, 115 A.2d 876 (1955).
1
D.C.Manes v. Dowling, 375 A.2d 221 (D.C. 1977).
2
IowaDavenport Osteopathic Hospital Ass'n of Davenport, Iowa v. Hospital Service, Inc., of Iowa, 261 Iowa 247,
154 N.W.2d 153 (1967).
U.S.Gradler v. Prudential Property and Cas. Ins. Co., 464 F. Supp. 575 (W.D. Pa. 1979).
Issues raised by application for new trial as part of trial

La.LeBlanc v. Metal Locking of La., Inc., 258 So. 2d 683 (La. Ct. App. 4th Cir. 1972).
N.H.Mansfield v. Federal Services Finance Corp., 99 N.H. 352, 111 A.2d 322 (1955).
Exception to rule for installment contracts
N.Y.Gold Medal Farms, Inc. v. Rutland County Co-op. Creamery, Inc., 9 A.D.2d 473, 195 N.Y.S.2d 179 (3d Dep't
1959).
6
7
8
9
10
11
12
13
14
15
16
17
Award of prospective damages inappropriate

Vt.Ferrisburgh Realty Investors v. Schumacher, 187 Vt. 309, 2010 VT 6, 992 A.2d 1042 (2010).
Ind.Indiana Pipe Line Co. v. Christensen, 188 Ind. 400, 123 N.E. 789 (1919).
Subsidence of land occurring after suit commenced not compensable
Ill.Isaacs v. Superior Coal Co., 20 Ill. App. 2d 599, 156 N.E.2d 769 (3d Dist. 1959).
U.S.Frey & Son v. Cudahy Packing Co., 243 F. 205 (D. Md. 1917).
Ark.Bill C. Harris Const. Co. Inc. v. Powers, 262 Ark. 96, 554 S.W.2d 332, 14 A.L.R.4th 812 (1977).
Ill.Zych v. Jones, 84 Ill. App. 3d 647, 40 Ill. Dec. 369, 406 N.E.2d 70 (1st Dist. 1980).
N.D.Mevorah v. Goodman, 74 N.W.2d 103 (N.D. 1955).
Wis.Galvin v. Lovell, 257 Wis. 82, 42 N.W.2d 456 (1950).
Time of estimating damages for breach of contract, see 122.
Wis.Galvin v. Lovell, 257 Wis. 82, 42 N.W.2d 456 (1950).
Ill.Richards v. Gundlach, 245 Ill. App. 264, 1924 WL 3746 (4th Dist. 1924).
U.S.Rea v. Ford Motor Co., 560 F.2d 554 (3d Cir. 1977).
Ga.Lankford v. Dockery, 85 Ga. App. 86, 67 S.E.2d 800 (1951).
U.S.Flintkote Co. v. Lysfjord, 246 F.2d 368 (9th Cir. 1957).
U.S.Carbonaro v. Johns-Manville Corp., 526 F. Supp. 260 (E.D. Pa. 1981), aff'd, 688 F.2d 821 (3d Cir. 1982) and
aff'd, 688 F.2d 819 (3d Cir. 1982).
Ala.Duckett v. Brooks, 336 So. 2d 1370 (Ala. Civ. App. 1976).
18
19
20
Ill.Industrial Natural Gas Co. v. Sunflower Natural Gasoline Co., 330 Ill. App. 343, 71 N.E.2d 199 (4th Dist. 1947).
Mass.Rooney v. Weeks, 290 Mass. 18, 194 N.E. 666 (1935).
Ga.Lankford v. Dockery, 85 Ga. App. 86, 67 S.E.2d 800 (1951).
End of Document
453.Computation of amount, 25A C.J.S. Damages 453

Damages
453. Computation of amount
Computation of the amount of damages should be made on a fair and reasonable basis adequately reflecting
the injury as revealed by the pleadings and evidence.
The jury must compute the damages according to law, not merely to their own satisfaction, 1 and the amount of
damages should be computed on a fair and reasonable basis in accordance with the pleadings and the evidence
adduced 2 although absolute precision and certainty are not essential. 3 There should be a reasonable uniformity
in awards for damages for personal injuries in the various cases 4 although the trier of fact enjoys a certain degree
of leeway in awarding compensation for medical costs that, as shown by the evidence, are likely to arise in the
future but are not specifically itemized in the testimony. 5
Taxation.
Generally, the incidence of federal or state income taxation may not be considered in computing damages 6 though
other cases hold that it should be considered. 7
Footnotes
Pa.Gregorius v. Safeway Steel Scaffolds Co. of Pittsburgh, 409 Pa. 578, 187 A.2d 646 (1963).
1
No lump sum
U.S.Gretchen v. U.S., 618 F.2d 177 (2d Cir. 1980).
Method under statute

U.S.Youngblood v. Secretary of Dept. of Health and Human Services, 32 F.3d 552 (Fed. Cir. 1994).
Colo.Great West Food Packers, Inc. v. Longmont Foods Co., Inc., 636 P.2d 1331, 33 U.C.C. Rep. Serv. 577 (Colo.
App. 1981).
Fla.Seaboard Coast Line R. Co. v. Garrison, 336 So. 2d 423 (Fla. Dist. Ct. App. 2d Dist. 1976).
Amount of exemplary damages, see 254 to 261.
Liquidated damages, see 211, 212.
453.Computation of amount, 25A C.J.S. Damages 453
Measure of particular elements of compensatory damages, see 156 to 181.

Method of computation upheld
U.S.Saleeby v. Kingsway Tankers, Inc., 531 F. Supp. 879 (S.D. N.Y. 1981); Barnes v. U.S., 516 F. Supp. 1376
(W.D. Pa. 1981), aff'd in part, 678 F.2d 10 (3d Cir. 1982) and judgment aff'd, 685 F.2d 66 (3d Cir. 1982).
Neb.Daniels v. Andersen, 195 Neb. 95, 237 N.W.2d 397 (1975).
4
5
6
A.L.R. Library
Per diem or similar mathematical basis for fixing damages for pain and suffering, 3 A.L.R.4th 940.
Conn.City of Bridgeport v. Aetna Indem. Co., 93 Conn. 277, 105 A. 680 (1919).
Rounding off of amount
Fla.Abbott v. Dorleans, 41 So. 3d 984 (Fla. Dist. Ct. App. 4th Dist. 2010).
Mo.Matta v. Welcher, 387 S.W.2d 265 (Mo. Ct. App. 1965).
U.S.Gerbich v. Evans, 525 F. Supp. 817 (D. Colo. 1981); Caron v. U.S., 410 F. Supp. 378 (D.R.I. 1975), judgment
aff'd, 548 F.2d 366 (1st Cir. 1976).
Kan.Cornejo v. Probst, 6 Kan. App. 2d 529, 630 P.2d 1202 (1981).
Me.Michaud v. Steckino, 390 A.2d 524 (Me. 1978).
Increased tax liability as speculative
U.S.Sandy v. McClure, 676 F. Supp. 2d 866 (N.D. Cal. 2009).
U.S.Flanigan v. Burlington Northern Inc., 632 F.2d 880 (8th Cir. 1980).
Entitled to compensation for taxes
U.S.DeLucca v. U.S., 670 F.2d 843 (9th Cir. 1982).
Damages corrected to yield net, after-tax amount
U.S.Roselli v. Hellenic Lines, Ltd., 524 F. Supp. 2 (S.D. N.Y. 1980).
End of Document
454.Computation of amountPresent value of future damages, 25A C.J.S. Damages ...

Damages
454. Computation of amountPresent value of future damages
While an allowance for future damages must generally be reduced to its present value, the rule is not
universally applied.
As a general rule, an allowance for future damages must be reduced to its present value 1 in order to avoid
overcompensation of the plaintiff. 2 That is, in passing on such damages, the jury may allow only such sum as put
at simple interest would, with interest accumulations, amount to such damages at the time or times in the future
when the jury find from the evidence that they will be sustained. 3 In other words, courts reduce the future loss to
a sum that the plaintiff could invest safely at an interest rate at which the sum would grow to an amount that would
compensate him or her fully for his future loss. 4 The general rule has been applied for instance to future medical
expenses, 5 future loss of life's enjoyment, 6 and future pain and suffering. 7 However, there is also authority that
the discounting requirement does not apply to intangible damages, 8 that is, future noneconomic injuries, 9 such
as future pain and suffering, 10 and the requirement has also been held inapplicable to future medical expenses. 11
Interest.
The rate of interest to be used in computing the present value of future damages may be determined on the basis
of the evidence presented in the case, 12 but it has been held that the legal rate of interest should be employed 13
in the absence of evidence as to the rate of interest that could be fairly expected from safe investments. 14 In
some jurisdictions, the reduction of future damages to present cash value must be calculated using simple interest
rather than compound interest. 15 Given the complexity of the modern economic environment, the reduction of
future damages to present value must be based upon specific economic evidence and not merely upon personal
knowledge the jury may or may not possess. 16
In all cases where it is reasonable to suppose that interest may safely be earned upon the amount that is awarded to
an injured party, the ascertained future benefits ought to be discounted in making up the award and the discount rate
should be based upon the rate of interest that would be earned on the best and safest investments. 17 Furthermore,
the discount rate should represent the after-tax rate of return to the injured worker, and the trier of fact should
apply the discount rate to each of the estimated installments in the lost stream of income and then add up the
discounted installments to determine the total award. 18
Inflation.
The fact finder should consider inflation in determining an appropriate damage award 19 since the inclusion of
an inflation adjustment in future damage awards does not provide additional compensation for a plaintiff above
and beyond the damages already awarded but rather ensures that the passage of time will not devalue the award
because of a general rise in prices for goods and services, including such items as medical care. 20 However, the
courts must not allow the adjustment for inflation to convert the average accident trial into a graduate seminar
on economic forecasting. 21
"Total offset method."

Under the "total offset method," a court does not discount a damages award for lost future earnings to its present
value but assumes that the effect of the future inflation rate will completely offset the interest rate, thereby
eliminating any need to discount the award to its present value. 22
Cases:
Generally, discounting future damages to their value at some point in the past is appropriate because it takes into
account the time value of money. Village of Ilion v. County of Herkimer, 23 N.Y.3d 812, 993 N.Y.S.2d 648, 18
N.E.3d 359 (2014).
[END OF SUPPLEMENT]
Footnotes
U.S.Ammar v. U.S., 342 F.3d 133 (2d Cir. 2003); Reed v. National Council of Boy Scouts of America, Inc., 706
1
F. Supp. 2d 180, 2010 DNH 18 (D.N.H. 2010).
Pa.Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980).
Wis.United Leasing & Financial Services, Inc. v. R. F. Optical, Inc., 103 Wis. 2d 488, 309 N.W.2d 23 (Ct. App.
1981).
Defendant entitled to reduction
N.J.Caldwell v. Haynes, 136 N.J. 422, 643 A.2d 564 (1994).
2
3
4
5
6
As of the date of the filing of the complaint

U.S.Moore v. Townsend, 577 F.2d 424, 25 Fed. R. Serv. 2d 1150 (7th Cir. 1978).
U.S.Kratzer v. Capital Marine Supply, Inc., 490 F. Supp. 222 (M.D. La. 1980), judgment aff'd, 645 F.2d 477 (5th
Cir. 1981).
U.S.U.S. v. Peel, 595 F.3d 763 (7th Cir. 2010), cert. denied, 131 S. Ct. 994, 178 L. Ed. 2d 825 (2011).
U.S.Mavity v. MTD Products, Inc., 714 F. Supp. 2d 577 (W.D. Va. 2010).
U.S.Pierce v. New York Cent. R. Co., 304 F. Supp. 44 (W.D. Mich. 1969).
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
U.S.Dockery v. U.S., 663 F. Supp. 2d 111 (N.D. N.Y. 2009).

Okla.Bready v. Tipton, 1965 OK 158, 407 P.2d 194 (Okla. 1965).
N.J.Friedman v. C & S Car Service, 108 N.J. 72, 527 A.2d 871 (1987).
U.S.Jackson v. U.S., 526 F. Supp. 1149 (E.D. Ark. 1981), aff'd, 696 F.2d 999 (8th Cir. 1982).
Ga.Valdosta Housing Authority v. Finnessee, 160 Ga. App. 552, 287 S.E.2d 569 (1981).
N.C.Johnson v. Brown, 11 N.C. App. 323, 181 S.E.2d 321 (1971).
U.S.Letoski v. U.S., Food and Drug Administration, 488 F. Supp. 952 (M.D. Pa. 1979).
Okla.Gallaspy v. Warner, 1958 OK 30, 324 P.2d 848 (Okla. 1958).
Interest awarded as damages, see 171 to 179.
Instructions relating to interest, see 433.
Reflection of risk
U.S.Elk v. U.S., 87 Fed. Cl. 70 (2009), appeal dismissed, 2010 WL 8231461 (Fed. Cir. 2010).
Ga.Kitchens v. Hall, 116 Ga. App. 41, 156 S.E.2d 920 (1967).
Tex.Mr. Eddie, Inc. v. Ginsberg, 430 S.W.2d 5 (Tex. Civ. App. Eastland 1968), writ refused n.r.e., (Oct. 9, 1968).
Okla.Groendyke Transport, Inc. v. Merchant, 1962 OK 32, 380 P.2d 682 (Okla. 1962).
U.S.Newburgh/Six Mile Limited Partnership II v. Adlabs Films USA, Inc., 724 F. Supp. 2d 740 (E.D. Mich. 2010).
Mich.Nation v. W.D.E. Elec. Co., 454 Mich. 489, 563 N.W.2d 233 (1997).
U.S.Reed v. National Council of Boy Scouts of America, Inc., 706 F. Supp. 2d 180, 2010 DNH 18 (D.N.H. 2010).
U.S.Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S. Ct. 2541, 76 L. Ed. 2d 768 (1983); DiSabatino
v. National R.R. Passenger Corp., 724 F.2d 394 (3d Cir. 1984).
U.S.Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S. Ct. 2541, 76 L. Ed. 2d 768 (1983); DiSabatino
v. National R.R. Passenger Corp., 724 F.2d 394 (3d Cir. 1984).
U.S.Ammar v. U.S., 342 F.3d 133 (2d Cir. 2003); Culver v. Slater Boat Co., 722 F.2d 114 (5th Cir. 1983).
A.L.R. Library
Effect of anticipated inflation on damages for future lossesmodern cases, 21 A.L.R.4th 21.
N.Y.Bryant v. New York City Health and Hospitals Corp., 93 N.Y.2d 592, 695 N.Y.S.2d 39, 716 N.E.2d 1084 (1999).
U.S.Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S. Ct. 2541, 76 L. Ed. 2d 768 (1983); Culver v.
Slater Boat Co., 722 F.2d 114 (5th Cir. 1983).
End of Document
455.Computation of amountForeign currency, 25A C.J.S. Damages 455

Damages
455. Computation of amountForeign currency
Where the plaintiff in a tort or contract action primarily is entitled to recover a sum expressed in foreign
money, in determining the amount of recovery in terms of United States money, it is ordinarily proper to
take the rate of exchange prevailing at the time of the commission of the tort or breach of contract.
Where the plaintiff in a tort or contract action primarily is entitled to recover a sum expressed in foreign money,
in determining the amount of recovery in terms of United States money, it is ordinarily proper to take the rate of
exchange prevailing at the time of the commission of the tort or breach of contract, 1 and in the case of a debt, the
rate prevailing when the debt became due should be adopted. 2 On the other hand, the exchange value on the day of
the judgment is to be used where an obligation is performable in a foreign country in the money of that country, 3
or is governed by foreign law, 4 or the damages are unliquidated and the cause of action is of foreign origin. 5
The exchange rate of the money of a conquering nation may be used in determining damages in terms of United
States money where the money of the conquered nation, which the plaintiff is entitled to recover, is no longer legal
tender therein. 6 The rule that a recovery may be expressed only in the money of the forum 7 does not determine
the rate of exchange at which damages computed in foreign money shall be translated into dollars. 8 Furthermore,
a judgment in a contract action, in the amount of currency of a country that has currency blockage laws, at the
so-called official rates of exchange in dollars, is contrary to the rules governing the damages in such an action. 9
Where currency of a foreign country is subject to currency blockage laws so that its true value is not reflected by
the official rate of exchange, a trial may be required to determine the market or other true values of such currency
at the place of the forum. 10
Footnotes
U.S.Vishipco Line v. Chase Manhattan Bank, N.A., 660 F.2d 854, 32 Fed. R. Serv. 2d 982, 62 A.L.R. Fed. 501
1
(2d Cir. 1981); Compania Engraw Com'l E. Ind. v. Schenley Dist. Corp., 181 F.2d 876 (9th Cir. 1950); Eagle Oil &
Shipping Co. v. The Jim Brown, 104 F. Supp. 271 (S.D. Tex. 1952).
N.Y.Librairie Hachette, S. A. v. Paris Book Center, Inc., 62 Misc. 2d 873, 309 N.Y.S.2d 701 (Sup 1970).
Method of reckoning value of payment to be made in foreign money, see C.J.S., Payment 17, 18.
455.Computation of amountForeign currency, 25A C.J.S. Damages 455
2
3
4
5
6
7
8
9
10
Date of injury rather than date of judgment

U.S.Ventas, Inc. v. HCP, Inc., 647 F.3d 291 (6th Cir. 2011), cert. dismissed, 132 S. Ct. 572 (2011).
U.S.Dante v. Miniggio, 298 F. 845, 33 A.L.R. 1278 (App. D.C. 1924).
U.S.Shaw, Savill, Albion & Co. v. The Fredericksburg, 189 F.2d 952 (2d Cir. 1951).
U.S.Indag, S.A. v. Irridelco Corp., 658 F. Supp. 763 (S.D. N.Y. 1987).
U.S.Shaw, Savill, Albion & Co. v. The Fredericksburg, 189 F.2d 952 (2d Cir. 1951).
N.Y.Sabl v. Laenderbank Wien Aktiengesellschaft, 33 N.Y.S.2d 764 (Sup 1942).
16.
N.Y.Hughes Tool Co. v. United Artists Corp., 279 A.D. 417, 110 N.Y.S.2d 383 (1st Dep't 1952), judgment aff'd,
304 N.Y. 942, 110 N.E.2d 884 (1953).
Minn.Lamke v. Louden, 269 N.W.2d 53 (Minn. 1978).
N.Y.Hughes Tool Co. v. United Artists Corp., 279 A.D. 417, 110 N.Y.S.2d 383 (1st Dep't 1952), judgment aff'd,
304 N.Y. 942, 110 N.E.2d 884 (1953).
End of Document
456.Assessment of multiple damages, 25A C.J.S. Damages 456

Damages
456. Assessment of multiple damages
Multiple damages allowed by statute in some cases refer to multiples of the actual damages sustained and
may be computed by either the court or jury.
Statutes allowing double or treble damages mean double or treble the amount of actual injury specially found by
the jury as damages, 1 and plaintiff is not entitled to multiple damages where no actual damages are recoverable. 2
In some jurisdictions, it is the practice for the jury to assess the actual single damages and for the court to double
or treble them 3 although it has been said that all that is required of the procedure in awarding multiple damages
is certainty in the fixing thereof 4 and that the court may either instruct the jury to find the actual damages and
then multiply them or may instruct them to find the actual damages and then itself multiply them. 5
It must clearly appear that the jury found for the plaintiff under the statutory cause of action in which multiple
damages are authorized, and not for any other cause, in order to permit the imposition of such damages. 6 Where
a complaint contains two causes of action, one under a statute authorizing multiple damages and one as to which
such damages are not allowed, and the verdict is general, the court may not make the multiple award based on
the amount given by the jury. 7
Where there is an inadvertent demand in the prayer for relief for multiple damages in a jurisdiction in which the
jury assesses the actual single damages and the court multiplies them, the court should allow the jury to assess
the damages and then deny a motion for multiple damages. 8
Footnotes
Mich.Howser v. Melcher, 40 Mich. 185, 1879 WL 3046 (1879).
1
Statutes allowing double or treble damages, generally, see 268.
Purpose of statute
Mass.McGrath v. Mishara, 386 Mass. 74, 434 N.E.2d 1215 (1982).
456.Assessment of multiple damages, 25A C.J.S. Damages 456
OhioFrench v. Dwiggins, 9 Ohio St. 3d 32, 458 N.E.2d 827 (1984).
2
3
4
5
6
7
8
Treble damages assessed on only part of award

N.C.Stone v. Paradise Park Homes, Inc., 37 N.C. App. 97, 245 S.E.2d 801 (1978).
IowaClark Bros. v. Anderson & Perry, 211 Iowa 920, 234 N.W. 844 (1931).
N.Y.Kelsey v. Ellis, 259 A.D. 1070, 21 N.Y.S.2d 402 (4th Dep't 1940).
Cal.Kennedy v. Minarets & W. Ry. Co., 90 Cal. App. 563, 266 P. 353 (3d Dist. 1928).
Ariz.Quine v. Godwin, 132 Ariz. 409, 646 P.2d 294 (Ct. App. Div. 1 1982).
U.S.Bray v. Safeway Stores, Inc., 392 F. Supp. 851 (N.D. Cal. 1975); Pappas v. Moss, 303 F. Supp. 1257 (D.N.J.
1969).
Tex.Bell Helicopter Co. v. Bradshaw, 594 S.W.2d 519 (Tex. Civ. App. Corpus Christi 1979), writ refused n.r.e.,
(Mar. 4, 1981) and (disapproved of on other grounds by, Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000)).
Wis.John Mohr & Sons, Inc. v. Jahnke, 55 Wis. 2d 402, 198 N.W.2d 363 (1972).
Conn.Tillinghast v. Leppert, 93 Conn. 247, 105 A. 615 (1919).
N.Y.Kelsey v. Ellis, 259 A.D. 1070, 21 N.Y.S.2d 402 (4th Dep't 1940).
End of Document
Research References, 25A C.J.S. Damages XI A Refs.
25A C.J.S. Damages XI A Refs.

Damages
XI. Judicial Interference with Excessive or Inadequate Awards
A. In General
Research References
A.L.R. Library
West's A.L.R. Digest, Damages 127.1 to 127.6 , 127.8 , 127.9
End of Document
457.Power of court, generally, 25A C.J.S. Damages 457

Damages
A. In General
457. Power of court, generally
A verdict is subject to control or supervision by the court as to amount; however, the judgment of the court
cannot be arbitrarily substituted for that of the jury, and the amount awarded will not be interfered with
unless certain conditions are met.
A verdict is subject to control or supervision by the court as to amount. 1 The verdict is not, however, to be tested
by what the judge would have awarded. 2 Accordingly, the judgment of the court cannot be arbitrarily substituted
for that of the jury. 3
Absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference
that some improper cause invaded the trial, the jury's determination of the amount of damages is inviolate. 4 Thus,
where the recovery is not a mere matter of computation, it will not be interfered with by the court unless so
excessive, or so grossly inadequate, as to be indicative of prejudice, passion, partiality, or corruption on the part
of the jury 5 or unless it appears to be based on an oversight, mistake, misconception, or misinterpretation 6 or
based on a consideration of elements not within the scope of the action. 7
The court is authorized to consider only whether the verdict is fair, reasonable, and in the exercise of sound
discretion under all the circumstances of the case. 8 While there are various particular factors that may be taken
into account in determining the correctness of an award, 9 there is no absolute, 10 definite, or exact 11 rule
for determining whether the damages awarded are reasonable. The courts are governed, in measure, by the
circumstances of the particular case presented for their consideration. 12 Moreover, in assessing a jury's award
of damages, a court looks only at the "bottom line," to make sure that it is reasonable, and will not worry about
the mental process that led there. 13
Footnotes
U.S.Anderson v. Sears, Roebuck & Co., 377 F. Supp. 136 (E.D. La. 1974).
1
457.Power of court, generally, 25A C.J.S. Damages 457
4
5
Conn.Saleh v. Ribeiro Trucking, LLC, 117 Conn. App. 821, 982 A.2d 178 (2009), judgment aff'd, 303 Conn. 276,
2011 WL 6307884 (2011).
Fla.Schmidt v. Tracey, 150 So. 2d 275 (Fla. Dist. Ct. App. 2d Dist. 1963).
Ind.General Outdoor Advertising Co. v. La Salle Realty Corp., 141 Ind. App. 247, 218 N.E.2d 141 (1966).
N.J.Ming Yu He v. Miller, 411 N.J. Super. 15, 983 A.2d 1164 (App. Div. 2009), certification granted, 201 N.J. 446,
992 A.2d 3 (2010) and judgment rev'd on other grounds, 207 N.J. 230, 24 A.3d 251 (2011).
Damages as within the sound discretion of the jury, generally, see 413.
U.S.Dodoo v. Seagate Technology, Inc., 235 F.3d 522 (10th Cir. 2000).
Ind.Kimberlin v. DeLong, 637 N.E.2d 121 (Ind. 1994).
Passion or prejudice
Neb.Poppe v. Siefker, 274 Neb. 1, 735 N.W.2d 784 (2007).
Mere size of verdict does not indicate passion or prejudice
U.S.McGuire v. Davis, 437 F.2d 570 (5th Cir. 1971).
OhioDesai v. Franklin, 177 Ohio App. 3d 679, 2008-Ohio-3957, 895 N.E.2d 875 (9th Dist. Summit County 2008).
A.L.R. Library
Excessiveness or Inadequacy of Damage Awards Against Drunk Drivers, 14 A.L.R.6th 263.
Excessiveness or Adequacy of Damages for Wrongful Termination of At-Will Employee Under State Law, 86
A.L.R.5th 397.
Excessiveness or adequacy of damages awarded for injuries causing mental or psychological damages, 52 A.L.R.5th 1.
Excessiveness or adequacy of damages awarded for injuries to trunk or torso, or internal injuries, 48 A.L.R.5th 129.
Ill.First Nat. Bank, Mattoon v. Standard Paving Co., 15 Ill. App. 3d 7, 303 N.E.2d 29 (4th Dist. 1973).
Mistake
Neb.Poppe v. Siefker, 274 Neb. 1, 735 N.W.2d 784 (2007).
U.S.- Jenkins v. Associated Transport, Inc., 330 F.2d 706 (6th Cir. 1964).
Inadequate verdict; consideration of payment of medical bills by third parties
S.C.Dillon v. Frazer, 383 S.C. 59, 678 S.E.2d 251 (2009).
8
9
10
11
12
13
Curative instruction sufficient

N.J.Dolan v. Sea Transfer Corp., 398 N.J. Super. 313, 942 A.2d 29 (App. Div. 2008).
Wis.Tills v. Elmbrook Memorial Hospital, Inc., 48 Wis. 2d 665, 180 N.W.2d 699 (1970).
461 to 469.
Mont.Parini v. Lanch, 148 Mont. 188, 418 P.2d 861 (1966).
Kan.Merando v. Atchison, Topeka and Santa Fe Ry. Co., 232 Kan. 404, 656 P.2d 154 (1982).
La.Bentley v. Fanguy, 48 So. 3d 381 (La. Ct. App. 3d Cir. 2010), writ denied, 58 So. 3d 457 (La. 2011).
Comparison of amount awarded with evidence
Tex.Myers v. King, 506 S.W.2d 705 (Tex. Civ. App. Houston 1st Dist. 1974), writ refused n.r.e., (July 10, 1974).
U.S.Tuf Racing Products, Inc. v. American Suzuki Motor Corp., 223 F.3d 585, 54 Fed. R. Evid. Serv. 1492 (7th
Cir. 2000).
End of Document
458.Excessive damages, 25A C.J.S. Damages 458

Damages
A. In General
458. Excessive damages
A verdict is presumed to be fair and reasonable unless it is so excessive or outrageous, with reference to the
circumstances of the case, as to demonstrate that the jury acted against the rules of law or suffered their
passions, prejudices, or perverse disregard of justice to mislead them.
Courts are generally reluctant to disturb a verdict on the ground of excessiveness where the damages are
unliquidated, and there is no fixed measure of mathematical certainty. 1 A verdict is presumed to be fair and
reasonable unless it is so excessive or outrageous, with reference to the circumstances of the case, as to demonstrate
that the jury acted against the rules of law or suffered their passions, prejudices, or perverse disregard of justice
to mislead them. 2 It has also been said in this regard that if a damages award is so outrageous as to indicate
that the jury was motivated by passion, prejudice, partiality, or consideration of improper evidence, the award
is excessive. 3 However, while a entitled to reject any and all evidence up until the point at which a verdict is
so disproportionate to the uncontested evidence as to defy common sense and logic, 4 where the circumstances
of the particular case or the evidence produced indicate that the verdict is the result of bias, prejudice, or gross
overestimate, the courts will not hesitate to set it aside. 5 Although a party should be fully compensated for its
loss, it should not recover a windfall, 6 and so, an award will be interfered with by the court where the damages
awarded are so high that it would be a miscarriage of justice to permit the award to stand. 7 However, the mere
fact of a large damages award does not show that the jury was influenced by passion, prejudice, sympathy, or other
circumstances not in evidence; instead, the award must be flagrantly outrageous, extravagant, and so excessive
that it shocks the judicial conscience. 8
Cases:
Upon review of a damages award, a degree of excessiveness less extreme than grossly excessive will support
remanding for a new trial or remittitur of damages. Turley v. ISG Lackawanna, Inc., 774 F.3d 140 (2d Cir. 2014).
458.Excessive damages, 25A C.J.S. Damages 458
Although a review of comparable cases is appropriate when reviewing a damages award, a court need not average
the high and low awards; a court focuses instead on whether the verdict lies within the reasonable range. Zeno v.
Pine Plains Cent. School Dist., 702 F.3d 655 (2d Cir. 2012).
Absent an award that shocks the judicial conscience or raises an irresistible inference that passion, prejudice,
corruption or other improper cause played a part in the jury's damage award, the Court of Appeals will not disturb
the jury's damage award. Ryan Development Co., L.C. v. Indiana Lumbermens Mut. Ins. Co., 711 F.3d 1165
(10th Cir. 2013).
[END OF SUPPLEMENT]
Footnotes
N.J.Hacker v. Statman, 105 N.J. Super. 385, 252 A.2d 406 (App. Div. 1969).
1
N.D.Cook v. Stenslie, 251 N.W.2d 393 (N.D. 1977).
2
3
4
5
6
7
Test
Fla.Cobb v. City of Miami, 254 So. 2d 376 (Fla. Dist. Ct. App. 3d Dist. 1971).
Ind.Cox v. Matthews, 901 N.E.2d 14 (Ind. Ct. App. 2009).
Pa.Neison v. Hines, 539 Pa. 516, 653 A.2d 634 (1995).
U.S.Biotec Biologische Naturverpackungen GmbH & Co. KG v. Biocorp, Inc., 249 F.3d 1341, 184 A.L.R. Fed. 669
(Fed. Cir. 2001).
Mo.Trimble v. Pracna, 167 S.W.3d 706 (Mo. 2005).
U.S.Grajales-Romero v. American Airlines, Inc., 194 F.3d 288, 44 Fed. R. Serv. 3d 1157 (1st Cir. 1999).
Denial of justice
U.S.Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18 (1st Cir. 2010).
Disproportion between special damages and general verdict

Mass.Griffin v. General Motors Corp., 380 Mass. 362, 403 N.E.2d 402, 16 A.L.R.4th 579 (1980).
Tex.Casas v. Paradez, 267 S.W.3d 170 (Tex. App. San Antonio 2008).
Award so high as to shock conscience of the court
U.S.Aponte-Rivera v. DHL Solutions (USA), Inc., 650 F.3d 803 (1st Cir. 2011).
Award not so excessive as to shock conscience
End of Document
459.Excessive damagesRemission of excess, 25A C.J.S. Damages 459

Damages
A. In General
459. Excessive damagesRemission of excess
A remission of the excessive part of a verdict for damages may be made voluntarily by the prevailing party.
Where a verdict is excessive, the prevailing party may voluntarily remit the excess and judgment may be entered
for the residue. 1 A conditional provision for a remittitur is also frequently made by the court. 2 Accordingly,
where the damages are excessive, a trial court has the power to remit, 3 or to require the plaintiff to file a
remittitur, 4 of part of such damages under certain conditions. A court can, however, make only a conditional or
alternative provision for a remittitur at least where the damages cannot be liquidated by any fixed standard of
measurement. 5 The standard for granting a remittitur is whether or not the jury was influenced by bias, prejudice,
or passion or if the damages were contrary to the overwhelming weight of credible evidence. 6 Moreover, a court
is without authority to order or direct a remittitur and render a judgment for a lesser amount against the will, over
the objection, and without the consent, of the plaintiff 7 at least where trial is by jury. 8
Under some authority, when the jury makes an honest mistake in weighing the evidence as to the nature and extent
of the injury and awarding disproportionate damages, remittitur is warranted, but when the jury is biased by trial
misconduct to award grossly excessive damages, only a new trial is warranted. 9
Footnotes
U.S.Nelson v. Keefer, 451 F.2d 289, 15 Fed. R. Serv. 2d 636 (3d Cir. 1971).
1
Factors considered
N.J.Lemaldi v. De Tomaso of America, Inc., 156 N.J. Super. 441, 383 A.2d 1220 (Law Div. 1978).
Order of remittitur defined

An order of remittitur is a judicial determination of recoverable damages, not an agreement among the parties involving
mutual concessions.
U.S.Banks v. Chicago Grain Trimmers Ass'n, 390 U.S. 459, 88 S. Ct. 1140, 20 L. Ed. 2d 30 (1968).
Tex.Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768 (Tex. App. Houston 1st Dist. 1987), writ refused n.r.e., (Nov. 2,
1987) and (disapproved of on other grounds by, Durbin v. Dal-Briar Corp., 871 S.W.2d 263 (Tex. App. El Paso 1994)).
459.Excessive damagesRemission of excess, 25A C.J.S. Damages 459
Remittitur as condition of the denial of a new trial, generally, see C.J.S., New Trial 299.
Remittitur as a condition of an affirmance by the appellate court, generally, see C.J.S., Appeal and Error 1030 to
1040.
U.S.Saleeby v. Kingsway Tankers, Inc., 531 F. Supp. 879 (S.D. N.Y. 1981).
N.C.Lazenby v. Godwin, 40 N.C. App. 487, 253 S.E.2d 489 (1979).
Remittitur improper
4
5
6
7
8
9
Reduction proper where jury award duplicates damages

U.S.Mason v. Oklahoma Turnpike Authority, 115 F.3d 1442, 47 Fed. R. Evid. Serv. 238 (10th Cir. 1997) (overruled
on other grounds by, TW Telecom Holdings Inc. v. Carolina Internet Ltd., 661 F.3d 495 (10th Cir. 2011)).
Ill.First Nat. Bank, Mattoon v. Standard Paving Co., 15 Ill. App. 3d 7, 303 N.E.2d 29 (4th Dist. 1973).
Fla.Burleson v. Stark, 357 So. 2d 1038 (Fla. Dist. Ct. App. 4th Dist. 1978).
Requires option for new trial
Tenn.Smith v. Shelton, 569 S.W.2d 421 (Tenn. 1978) (holding modified on other grounds by, Foster v. Amcon
Intern., Inc., 621 S.W.2d 142 (Tenn. 1981)).
U.S.Power v. Union Pac. R. Co., 655 F.2d 1380 (9th Cir. 1981).
Wis.Dupler v. Seubert, 69 Wis. 2d 373, 230 N.W.2d 626 (1975).
Ill.Horvath v. Spector Freight System, Inc., 102 Ill. App. 2d 112, 243 N.E.2d 471 (1st Dist. 1968).
Remittitur as denial or infringement of right of trial by jury, generally, see C.J.S., Juries 232.
Mo.Chapman v. New Mac Elec. Co-op., Inc., 260 S.W.3d 890 (Mo. Ct. App. S.D. 2008).
End of Document
460.Inadequate damages, 25A C.J.S. Damages 460

Damages
A. In General
460. Inadequate damages
Courts are generally indisposed to increase verdicts for damages rendered by juries, but such verdicts are
subject to the supervision of the court.
Courts are usually indisposed to increase verdicts, rendered by juries, for damages, as juries rarely underestimate
damages, but such verdicts are subject to the supervision of the court. 1 In cases where justice clearly declares
that the jury has failed to perform their duty, 2 or where, in the light of all the evidence, the amount awarded is so
small and at variance with the facts that it is evident that the jury must have overlooked some material element of
damage, or misconceived or misinterpreted the facts that would have guided it to a just conclusion, 3 courts are
authorized to extend relief either by increasing the verdict or granting a new trial. A trial court does not, however,
generally have the power to increase a verdict of the jury arbitrarily without the consent of the party prejudiced. 4
The more general proceeding in such cases is to set aside the verdict as being inadequate under the circumstances. 5
The question as to whether the damages awarded are inadequate must be determined by the facts of the particular
case. 6 The test of inadequacy of an award is what will fairly and reasonably compensate the injured party for
the injuries sustained. 7 The mere fact that a verdict is low or small does not mean that it is inadequate, 8 and the
amount awarded will not be interfered with unless it is so inadequate as to shock the judicial conscience. 9
Additur.
The standard for granting an additur is whether or not the jury was influenced by bias, prejudice, or passion or if
the damages were contrary to the overwhelming weight of credible evidence. 10
Footnotes
Ill.Kelley v. Cross, 79 Ill. App. 2d 342, 223 N.E.2d 555 (3d Dist. 1967).
1
IowaAllbee v. Berry, 254 Iowa 712, 119 N.W.2d 230 (1963).
2
Tenn.Shelton v. Milam, 492 S.W.2d 917 (Tenn. Ct. App. 1972).
3
460.Inadequate damages, 25A C.J.S. Damages 460
Pain and suffering ignored

Mich.Whitson v. Whiteley Poultry Co., 11 Mich. App. 598, 162 N.W.2d 102 (1968).
4
5
8
9
10
Medical expenses
Cal.Miller v. San Diego Gas & Elec. Co., 212 Cal. App. 2d 555, 28 Cal. Rptr. 126 (4th Dist. 1963).
Miss.Woodmansee v. Garrett, 247 Miss. 148, 153 So. 2d 812 (1963).
Minn.Backman v. Fitch, 272 Minn. 143, 137 N.W.2d 574 (1965).
Refusal to set aside award proper
U.S.Martin v. Toye Bros. Airport Service, Inc., 273 F.2d 457 (5th Cir. 1960).
La.Bouquet v. Wal-Mart Stores, Inc., 978 So. 2d 447 (La. Ct. App. 1st Cir. 2007), judgment aff'd in part, rev'd in
part on other grounds, 979 So. 2d 456 (La. 2008) and writ denied, 978 So. 2d 326 (La. 2008).
Whole circumstance of case to be considered
U.S.Cross v. Thompson, 298 F.2d 186 (6th Cir. 1962).
IowaHouseholder v. Town of Clayton, 221 N.W.2d 488 (Iowa 1974).
Other test
The test to be utilized in determining the adequacy of a verdict is whether a jury of reasonable people could have
returned such a verdict.
Fla.Sebold v. Bushman, 230 So. 2d 198 (Fla. Dist. Ct. App. 4th Dist. 1970).
Ill.Romine v. Scott, 130 Ill. App. 2d 649, 264 N.E.2d 537 (2d Dist. 1970).
U.S.Cook v. Rockwell Intern. Corp., 564 F. Supp. 2d 1189 (D. Colo. 2008), judgment entered, (June 2, 2008) and
rev'd on other grounds, 618 F.3d 1127, 77 Fed. R. Serv. 3d 555 (10th Cir. 2010), petition for cert. filed, 79 U.S.L.W.
3662, 80 U.S.L.W. 3017 (U.S. May 6, 2011).
Conn.Fraulo v. Wilcox, 2010 WL 532447 (Conn. Super. Ct. 2010).
OhioKelly v. Northeastern Ohio Univ., 2008-Ohio-4893, 2008 WL 4370264 (Ohio Ct. App. 10th Dist. Franklin
County 2008).
End of Document
Research References, 25A C.J.S. Damages XI B Refs.
25A C.J.S. Damages XI B Refs.

Damages
B. Particular Matters Affecting Decision as to Propriety of Award
Research References
A.L.R. Library
West's A.L.R. Digest, Damages 127.1 , 127.3 , 127.5 , 127.7 to 140.7
End of Document

Damages
461. Generally
Various matters may be given consideration in determining the correctness of an award.
Inasmuch as there is no absolute or definite rule for determining whether the damages awarded are excessive
or inadequate, and the courts must be governed by the circumstances of the particular case, there are various,
particular factors or matters that may be taken into account by the court in the determination of whether an award
is excessive or inadequate. 1 However, the court will not consider matters that have no relevance in determining
the correctness of the award. 2
Footnotes
Ark.Mallett v. Brannon, 246 Ark. 541, 439 S.W.2d 32 (1969).
1
Excessive and inadequate damages, generally, see 457 to 460.
Ratio of special damages to amount of verdict not sole consideration
Ill.Wyer v. McKeown-Phalin Chevrolet, Inc., 74 Ill. App. 2d 283, 219 N.E.2d 355 (2d Dist. 1966).
A.L.R. Library
Excessiveness or Adequacy of Damages for Wrongful Termination of At-Will Employee Under State Law, 86
A.L.R.5th 397.
Excessiveness or adequacy of damages awarded for injuries causing mental or psychological damages, 52 A.L.R.5th 1.
Excessiveness or adequacy of damages awarded for injuries to trunk or torso, or internal injuries, 48 A.L.R.5th 129.
N.Y.MacArthur v. Coxon Real Estate, Inc., 28 A.D.2d 1191, 284 N.Y.S.2d 560 (3d Dep't 1967).
Offer of compromise
N.Y.Quillen v. Board of Ed., 203 Misc. 320, 115 N.Y.S.2d 122 (Sup 1952).
End of Document
462.Nature and extent of injuries and losses, 25A C.J.S. Damages 462

Damages
462. Nature and extent of injuries and losses
In determining whether an award is excessive or inadequate, the court may consider the nature and extent
of the plaintiff's injuries and losses.
In determining whether an award is excessive or inadequate, the court may consider the nature and extent of the
plaintiff's injuries and losses. 1 Thus, the court may consider whether the injuries are permanent; 2 the amount,
if any, of expenses incurred, and those that may be incurred in the future; 3 and the pain and suffering that the
injured party has suffered. 4 A jury verdict will be considered excessive if it is entirely disproportionate to the
injury sustained; 5 the test is whether the verdict fairly and reasonably compensates the plaintiff for the injury
sustained. 6
Cases:
Jury award of $1,600 for future medical expenses to motorist for hand injuries was abuse of discretion, and Court
of Appeal would increase award to $10,000, in motorist's action for injuries suffered in vehicle accident, where
physician testified that motorist would likely need further metacarpal arthroplasty surgery at cost of around $11,00
per hand, that motorist would be in physical therapy for approximately six to nine months, and that motorist's
post-surgery physical therapy costs would range from $5,000 to $15,000. Sloan v. Mouton, 82 So. 3d 364 (La.
Ct. App. 3d Cir. 2011), writ denied, 2012-48 La. 3/9/12, 2012 WL 1026684 (La. 2012).
[END OF SUPPLEMENT]
Footnotes
U.S.Konkel v. Bob Evans Farms Inc., 165 F.3d 275, 42 Fed. R. Serv. 3d 903 (4th Cir. 1999); Taylor v. TECO Barge
1
Line, Inc., 517 F.3d 372 (6th Cir. 2008).
La.Dunomes v. Plaquemines Parish Government, 24 So. 3d 242 (La. Ct. App. 4th Cir. 2009).
462.Nature and extent of injuries and losses, 25A C.J.S. Damages 462
5
6
Type of injury of little significance

La.Brown v. City of Alexandria, 226 So. 2d 600 (La. Ct. App. 3d Cir. 1969).
La.Porter v. Monroe Housing Authority, 986 So. 2d 852 (La. Ct. App. 2d Cir. 2008), writ denied, 996 So. 2d 1078
(La. 2008).
Mo.Strong v. American Cyanamid Co., 261 S.W.3d 493 (Mo. Ct. App. E.D. 2007), retransferred to Mo. Ct. of
Appeals, (Sept. 30, 2008) and opinion adopted and reinstated after retransfer, (Oct. 6, 2008).
Injuries not permanent; award excessive
N.Y.Nolan v. Union College Trust of Schenectady, N.Y., 51 A.D.3d 1253, 858 N.Y.S.2d 427 (3d Dep't 2008).
Cal.Haskins v. Holmes, 252 Cal. App. 2d 580, 60 Cal. Rptr. 659 (2d Dist. 1967).
Medical expenses
Mo.Owens v. ContiGroup Companies, Inc., 344 S.W.3d 717 (Mo. Ct. App. W.D. 2011), reh'g and/or transfer denied,
(May 3, 2011) and transfer denied, (Aug. 30, 2011).
Ala.Allen v. Briggs, 60 So. 3d 899 (Ala. Civ. App. 2010).
Cal.Capelouto v. Kaiser Foundation Hospitals, 7 Cal. 3d 889, 103 Cal. Rptr. 856, 500 P.2d 880 (1972).
Future pain and suffering
Okla.Missouri-Kansas-Texas R. Co. v. Edwards, 1961 OK 92, 361 P.2d 459 (Okla. 1961).
U.S.Vadie v. Mississippi State University, 218 F.3d 365, 145 Ed. Law Rep. 906 (5th Cir. 2000).
U.S.Penney v. Praxair, Inc., 116 F.3d 330, 47 Fed. R. Evid. Serv. 277 (8th Cir. 1997).
End of Document
463.Ability of defendant to pay amount awarded, 25A C.J.S. Damages 463

Damages
463. Ability of defendant to pay amount awarded
In determining the correctness of an award for damages, the court may consider the ability of the defendant
to pay the amount awarded.
In determining the correctness of the award, the court may consider the ability of the defendant to pay the amount
awarded. 1 A verdict against a city, however, will be set aside where it is proportioned to the ability of the defendant
to pay rather than to the injury actually done. 2
Footnotes
La.Nichols v. Aetna Cas. & Sur. Co., 254 So. 2d 159 (La. Ct. App. 2d Cir. 1971), writ refused, 261 La. 229, 259 So.
1
2d 75 (1972) and writ refused, 261 La. 230, 259 So. 2d 76 (1972).
Consideration of defendant's ability to pay award in assessing damages, generally, see 461 to 469.
Ill.City of Decatur v. Fisher, 53 Ill. 407, 1870 WL 6221 (1870).
End of Document

Damages
464. Loss of earnings or impairment of earning capacity
In determining the correctness of an award for damages, the amount of earnings lost by reason of the injury
may be considered, as well as the impairment of the plaintiff's earning capacity.
In determining the correctness of an award for damages, the amount of earnings lost by reason of the injury may be
considered, 1 as well as the impairment of plaintiff's earning capacity. 2 A verdict may be excessive or inadequate
where it is based on erroneous projections. 3 However, a verdict is generally not excessive merely because its
amount, properly invested, will produce a larger income than that which plaintiff earned or was capable of earning
before his or her injury. 4 Such a verdict may, however, be determined to be excessive where it appears that after
the injury, the plaintiff's earning capacity is nearly as great as it was before 5 or has not been entirely destroyed
by the accident, 6 or the award is for loss of earnings and earning capacity alone, 7 or the income alone will
approximate previous annual earnings, and the principal will be intact at the end of the life expectancy. 8 The
fact that the plaintiff receives a larger salary after the injury than he or she did before does not show the award to
be excessive where the damages resulting from mental and physical suffering are sufficient to justify the verdict
without consideration of the question of earning capacity. 9
An award for lost wages may be challenged on the ground that the assumed annual growth rate of the plaintiff's
earnings is excessive. 10
Footnotes
1
2
Tex.Texas & N. O. R. Co. v. Coogler, 209 S.W.2d 778 (Tex. Civ. App. Beaumont 1948), writ refused n.r.e.
U.S.Konkel v. Bob Evans Farms Inc., 165 F.3d 275, 42 Fed. R. Serv. 3d 903 (4th Cir. 1999).
Loss of future earnings
Excessive
N.Y.Janda v. Michael Rienzi Trust, 78 A.D.3d 899, 912 N.Y.S.2d 237 (2d Dep't 2010).
N.J.Haeussler v. Consolidated Stone & Sand Co., 3 N.J. Misc. 159, 127 A. 602 (Sup. Ct. 1925).
Matter may be considered although not controlling

Colo.Colorado Springs & I. Ry. Co. v. Kelley, 65 Colo. 246, 176 P. 307 (1918).
Ill.Lee v. Republic Iron & Steel Co., 148 Ill. App. 585, 1909 WL 1974 (2d Dist. 1909), aff'd, 241 Ill. 372, 89 N.E.
655 (1909).
Ill.Maher v. New York, C. & St. L.R. Co., 286 Ill. App. 609, 3 N.E.2d 349 (1st Dist. 1936).
6
7
8
9
10
Wis.Kramer v. Chicago, M., St. P. & P.R. Co., 226 Wis. 118, 276 N.W. 113 (1937).
Mich.Palmer v. Security Trust Co., 242 Mich. 163, 218 N.W. 677, 60 A.L.R. 1392 (1928).
Tex.Merchants' Transfer Co. v. Wilkinson, 219 S.W. 891 (Tex. Civ. App. San Antonio 1920), writ dismissed w.o.j.,
(Dec. 22, 1920).
3% wage growth estimate "conservative"
N.J.Riley v. Keenan, 406 N.J. Super. 281, 967 A.2d 868 (App. Div. 2009).
4.15% earnings growth rate not unreasonable or excessive
U.S.Okraynets v. Metropolitan Transp. Authority, 555 F. Supp. 2d 420 (S.D. N.Y. 2008).
End of Document
465.Economic conditions; change in purchasing power of..., 25A C.J.S. Damages ...

Damages
465. Economic conditions; change in purchasing power of money
In determining the correctness of an award for damages, the court may consider existing economic
conditions.
In determining the correctness of an award for damages, the court may consider existing economic conditions. 1
In comparing the verdict with other verdicts for similar injuries, or in otherwise determining whether a verdict
for personal injuries is excessive or inadequate, the present purchasing power of money or, as otherwise stated,
the decreased or impaired purchasing power or value of the dollar will generally be considered. 2 The court may,
therefore, consider the increased or high cost of living, or inflation, or inflationary trends. 3
More favorable future economic conditions.

In awarding damages for lost earnings, it is also proper to take into account the potential for more favorable future
economic conditions. 4
Footnotes
Mo.Brown v. Cedar Creek Rod & Gun Club, 298 S.W.3d 14 (Mo. Ct. App. W.D. 2009).
1
Ind.State v. Daley, 153 Ind. App. 330, 287 N.E.2d 552 (1972).
2
Consideration of impaired purchasing power of dollar in assessing damages, generally, see 465.
Comparative ability to furnish the necessities of life

Ky.Crawford v. Alexander, 259 S.W.2d 476 (Ky. 1953).
U.S.Taylor v. TECO Barge Line, Inc., 517 F.3d 372 (6th Cir. 2008).
Ala.W. S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 165 So. 2d 375 (1963).
Increased costs based on projected inflationary trend not considered
U.S.Frankel v. U.S., 321 F. Supp. 1331 (E.D. Pa. 1970), judgment aff'd, 466 F.2d 1226 (3d Cir. 1972).
Colo.Averyt v. Wal-Mart Stores, Inc., 2011 WL 5325525 (Colo. 2011).
465.Economic conditions; change in purchasing power of..., 25A C.J.S. Damages ...
End of Document
466.Claim or estimate of plaintiff or witnesses, 25A C.J.S. Damages 466

Damages
466. Claim or estimate of plaintiff or witnesses
A verdict in excess of the amount claimed is excessive.
A verdict in excess of the amount claimed is excessive. 1 However, the mere fact that a verdict is returned for
the full amount prayed for does not render it excessive 2 or establish that it is returned under a misconception of
duty or because of passion and prejudice. 3 Damages not exceeding the amount demanded in the complaint, and
fairly justifiable by the evidence, are not necessarily excessive although exceeding the plaintiff's own estimate. 4
Where a verdict for the full amount sued for is justified by the evidence, the verdict is not excessive because the
plaintiff has previously brought suit in another court for a lesser amount. 5
Damages are not grossly inadequate merely because a jury awards less than the plaintiff requested. 6 A jury is
entitled to disregard damages asked for if they do not agree with the computations or if other evidence is introduced
from which the jurors could draw their own conclusions. 7 Accordingly, an award of damages will not be deemed
unreasonably low as long as it comports with some rational appraisal or estimate of damages based on evidence
before jury. 8
Footnotes
Mo.Acy v. Inland Sec. Co., 287 S.W.2d 347 (Mo. Ct. App. 1956).
1
Ad damnum clause not test
Vt.Dupona v. Benny, 130 Vt. 281, 291 A.2d 404 (1972).
2
3
4
5
6
Damages requested in complaint factor to be considered in determining whether award excessive

U.S.Konkel v. Bob Evans Farms Inc., 165 F.3d 275, 42 Fed. R. Serv. 3d 903 (4th Cir. 1999).
U.S.Barzelis v. Kulikowski, 418 F.2d 869 (9th Cir. 1969).
Kan.Harrison v. Southwestern Bell Telephone Co., 141 Kan. 275, 40 P.2d 454 (1935).
Minn.Einolf v. Thompson, 95 Minn. 230, 103 N.W. 1026 (1905), aff'd, 95 Minn. 230, 104 N.W. 547 (1905).
Ky.Park v. Schell, 220 Ky. 317, 295 S.W. 161 (1927).
U.S.Shugart v. Central Rural Elec. Co-op., 110 F.3d 1501 (10th Cir. 1997).
466.Claim or estimate of plaintiff or witnesses, 25A C.J.S. Damages 466
7
8
U.S.Shugart v. Central Rural Elec. Co-op., 110 F.3d 1501 (10th Cir. 1997).
U.S.Blinzler v. Marriott Intern., Inc., 81 F.3d 1148 (1st Cir. 1996).
End of Document
467.Previous verdicts in same or similar cases, 25A C.J.S. Damages 467

Damages
467. Previous verdicts in same or similar cases
In determining whether damages are excessive, previous verdicts in the same case may be taken into
consideration.
In determining whether damages are excessive, previous verdicts in the same case may be taken into
consideration. 1 Verdicts greatly in excess of those awarded on former trials of the case may be set aside or
reduced, 2 especially where the successful party does not move to set aside, or assail, or cross-appeal the prior
award as inadequate. 3 However, a mere increase in the amount of the verdict does not indicate that it is excessive 4
since the evidence as to the extent of the injuries on which the damages are based may be stronger on the last
trial. 5 Accordingly, a court is not required to set aside a verdict, as excessive, even though such verdict greatly
exceeds a prior award in the same case where the last trial takes place several years later. 6
In determining whether jury verdict deviates materially from what is reasonable compensation, the court is, in
some jurisdictions, authorized to review the verdicts in similar cases 7 in order to determine whether the award in
the instant case is roughly comparable. 8 However, the existence of smaller damages awards in other jurisdictions,
based upon different factual scenarios, will not render a present damages award grossly excessive. 9 In determining
whether particular award is excessive, some jurisdictions have declined to compare it with amounts awarded in
other cases. 10
Footnotes
Ky.Townsend v. Stamper, 398 S.W.2d 45, 12 A.L.R.3d 108 (Ky. 1965).
1
Cal.Gackstetter v. Market St. Ry. Co., 10 Cal. App. 2d 713, 52 P.2d 998 (1st Dist. 1935).
2
N.Y.Beckhusen v. E. P. Lawson Co., 15 A.D.2d 455, 221 N.Y.S.2d 753 (1st Dep't 1961).
3
Mo.Baker v. City of Independence, 93 Mo. App. 165, 1902 WL 1557 (1902).
4
Ill.Stanton v. Chicago City R. Co., 205 Ill. App. 385, 1917 WL 2300 (1st Dist. 1917), aff'd, 283 Ill. 256, 119 N.E.
5
6
291 (1918).
Kan.Missouri Pac. Ry. Co. v. Johnson, 59 Kan. 776, 53 P. 129 (1898).
467.Previous verdicts in same or similar cases, 25A C.J.S. Damages 467
8
9
10
U.S.Fowler v. Industrial Tire Products, Inc., 2 Fed. Appx. 125 (2d Cir. 2001); Fox v. Hayes, 600 F.3d 819 (7th
Cir. 2010).
Consideration of out-of-state cases proper
U.S.Meyers v. Wal-Mart Stores, East, Inc., 257 F.3d 625, 50 Fed. R. Serv. 3d 1598, 2001 FED App. 0233P (6th
Cir. 2001).
U.S.Pickett v. Sheridan Health Care Center, 610 F.3d 434 (7th Cir. 2010).
U.S.Smith v. Kmart Corp., 177 F.3d 19 (1st Cir. 1999).
End of Document
468.Award to another injured in same event, 25A C.J.S. Damages 468

Damages
468. Award to another injured in same event
An award to one person is not necessarily excessive because it is larger than an award to another person
injured in the same event.
An award to one person is not excessive because it is larger than, and is contended to be inconsistent with, an
award to another person injured in the same event where it is not claimed that the injuries of the two persons
are the same. 1
Footnotes
Cal.Jesse v. Giguiere, 24 Cal. App. 2d 160, 74 P.2d 310 (1st Dist. 1937).
1
End of Document
469.Statutory cap on noneconomic damages, 25A C.J.S. Damages 469

Damages
469. Statutory cap on noneconomic damages
In some jurisdictions, noneconomic damages are subject to a statutory cap.
Subject to certain exceptions, some constitutional provisions prohibit statutory limitations of the amount of
recovery for injuries to person or property. 1 In other jurisdictions, however, a statutory cap on noneconomic
damages is deemed proper as rationally furthering the State's interests in protecting litigants from unrestrained
exercise of judicial discretion and stabilizing liability insurance rates. 2 In such jurisdictions, where a case involves
multiple defendants or a plaintiff who is partially at fault, a court must ascertain the pro rata liability of defendants
and the plaintiff before applying any statutory cap on noneconomic damages as such a cap generally applies to
the liability share of each defendant and does not act as a cap on the total amount that the plaintiff may recover. 3
Cases:
Mississippi statute imposing cap on noneconomic damages can be interpreted not to alter jury's factual damages
determination, but instead to impose strictly legal limitation on judgment that provides remedy for noneconomic
injury. West's A.M.C. 11160(2)(b). Learmonth v. Sears, Roebuck and Co., 710 F.3d 249 (5th Cir. 2013).
Wisconsin's $50,000 statutory damages cap for unlawful acts, other than intentional torts, committed by
government agencies or their employees, did not apply to reduce $133,480 damages award, which was based on
determination that county sheriff's deputies damaged the property by conducting unreasonable search of property
in violation of Fourth Amendment, and conducting negligent search of property, in violation of Wisconsin law;
there was only one injury to the property, the $133,480 was the indivisible consequence of the Fourth Amendment
violation and the state-law violation, and even if there had been no state-law violation, but only the Fourth
Amendment violation, the property owner's damages would have been the same. U.S.C.A. Const.Amend. 4;
W.S.A. 893.80(3). Petkus v. Richland County, Wis., 767 F.3d 647 (7th Cir. 2014).
In determining whether a tortfeasor acted recklessly, such that statutory cap on non-economic damages did not
apply, appropriate standard was objective standard, rather than subjective standard that analyzed tortfeasor's
469.Statutory cap on noneconomic damages, 25A C.J.S. Damages 469
subjective knowledge of a risk, subjective knowledge of probability of harm, and conscious decision to proceed
with course of action; though the tortfeasor was required to make a conscious choice as to his or her course of
action, the tortfeasor was not required to subjectively be actually aware of the risk or the high probability that
harm will result, rather, it was sufficient for a finding of recklessness that the tortfeasor made the choice as to
his or her course of conduct under circumstances where the risk and high probability of harm were objectively
foreseeable. West's I.C.A. 61603. Hennefer v. Blaine County School Dist., 346 P.3d 259 (Idaho 2015).
[END OF SUPPLEMENT]
Footnotes
Pa.Sherwood v. Elgart, 383 Pa. 110, 117 A.2d 899, 63 A.L.R.2d 490 (1955).
1
Provision inapplicable
Ariz.Rail N Ranch Corp. v. State, 7 Ariz. App. 558, 441 P.2d 786 (1968).
Personal injury action cap
N.H.Brannigan v. Usitalo, 134 N.H. 50, 587 A.2d 1232 (1991).
A.L.R. Library
Construction and Application of State Statutory Cap on Punitive Damages in Tort Cases Exclusive of Medical
Malpractice Actions, 8 A.L.R.6th 439.
U.S.Patton v. TIC United Corp., 77 F.3d 1235, 15 A.D.D. 453 (10th Cir. 1996).
Legislative purpose
Maryland's statutory cap on noneconomic damages was intended to address a legislatively identified insurance crisis
in the state at the time of its enactment.
Colo.General Elec. Co. v. Niemet, 866 P.2d 1361 (Colo. 1994).
End of Document
Correlation Table, 24 C.J.S. Damages Correlation Table
24 C.J.S. Damages Correlation Table

Damages
Topic Summary
Correlation Table
Damages
This table shows where the subject matter in the various sections of the former edition of Corpus Juris Secundum
is set forth in this revised volume. This table enables the user to translate references found in the prior edition and
other legal publications into references to this edition.
Where the subject matter of a particular section of the prior edition of the article is now treated in another article, the
title and section of that article is given. The reader should always consult the volume index for detailed information.
2002
1
2
3
3
3
3
3
3
3
4
5
6
7
8
9
10
11
12
13
14
14
15
16
17
18
19
20
21
21
22
23
2012
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
DELETED
17
18
19
24
DELETED
20
21
22
23
24
25
26
26
27
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
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55
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57
57
58
59
60
60
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69
DELETED
27
28
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31
32
33
DELETED
34
35
35
DELETED
36
37
38
39
40
41
42
43
44
45
48
46
47
49
50
51
52
53
54
55
56
77
78
81
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
76
69
72
73
74
70
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117
118
75
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79
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84
85
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88
89
90
91
94
92
93
95
96
97
98
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100
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102
103
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106
108
107
110
110
109
111
112
113
114
115
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118
119
120
121
122
123
124
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126
127
128
129
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131
132
133
119
120
121
122
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130
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133
134
135
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154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
182
183
184
185
186
187
188
189
190
191
175
175
175
175
175
175
175
175
175
176
176
176
177
178
178
179
179
180
180
180
181
181
181
181
181
182
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183
184
184
185
186
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199
200
200
201
204
202
203
204
214
217
205
206
207
194
206
207
208
209
211
212
210
197
199
198
213
DELETED
DELETED
215
216
215
215
218
219
220
221
222
223
224
225
227
229
225
230
231
232
226
233
234
235
DELETED
236
199
200
200
201
202
202
203
203
204
205
206
207
208
208
209
210
211
212
213
213
213
213
213
213
213
213
213
214
215
215
215
215
216
217
217
218
219
219
220
220
220
221
222
223
224
225
225
226
227
228
229
230
230
230
231
232
233
234
237
238
239
240
241
242
242
243
244
245
246
247
248
249
250
251
252
253
254
255
256
257
258
264
265
266
267
DELETED
241
259
260
388
261
262
263
268
269
270
271
272
294
273
DELETED
274
275
276
277
276
277
278
279
281
282
283
280
284
285
286
235
236
237
238
239
240
241
242
243
244
245
246
246
246
246
247
248
248
249
250
251
252
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255
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257
258
259
259
260
261
261
261
262
263
264
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267
268
269
269
269
270
271
272
273
273
274
275
276
276
DELETED
287
288
289
290
271
291
292
293
DELETED
DELETED
294
295
296
310
297
298
299
300
301
302
303
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305
306
307
308
319
309
310
311
312
312
313
314
314
315
316
317
318
319
320
325
326
341
342
334
335
336
338
337
329
330
332
339
340
327
328
277
278
279
280
281
282
282
283
284
284
285
286
286
287
287
288
289
290
290
291
292
293
293
294
294
295
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297
297
298
298
299
300
301
302
303
304
304
305
305
306
307
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309
309
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312
312
313
313
314
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314
315
332
331
333
343
344
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346
347
358
359
360
321
322
323
324
348
349
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352
353
354
357
355
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357
361
362
363
367
349
368
363
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362
365
369
370
371
372
373
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376
377
383
384
385
378
381
379
380
386
387
388
388
316
317
318
319
320
321
322
323
324
325
326
327
328
328
329
329
330
331
332
333
334
335
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337
338
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339
340
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343
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347
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351
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353
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355
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382
389
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422
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End of Document
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Cjs On Damages

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Summary, 24 C.J.S.

24 C.J.S. Damages Summary

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Research References, 25 C.J.S. Damages I Refs.

25 C.J.S. Damages I Refs.

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Research References, 25 C.J.S. Damages I A Refs.

25 C.J.S. Damages I A Refs.

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1.Definitions, 25 C.J.S. Damages 1

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1.Definitions, 25 C.J.S. Damages 1

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2.Distinctions, 25 C.J.S. Damages 2

Costs and attorney's fees.

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2.Distinctions, 25 C.J.S. Damages 2

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Research References, 25 C.J.S. Damages I B Refs.

25 C.J.S. Damages I B Refs.

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3.Actual or compensatory damages, 25 C.J.S. Damages 3

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3.Actual or compensatory damages, 25 C.J.S. Damages 3

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3.Actual or compensatory damages, 25 C.J.S. Damages 3

D.C.Morrissette v. Boiseau, 91 A.2d 130 (Mun. Ct. App. D.C. 1952).

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4.Consequential damages, 25 C.J.S. Damages 4

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4.Consequential damages, 25 C.J.S. Damages 4

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5.Direct damages, 25 C.J.S. Damages 5

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6.Exemplary or punitive damages, 25 C.J.S. Damages 6

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6.Exemplary or punitive damages, 25 C.J.S. Damages 6

IowaGregory v. Sorenson, 214 Iowa 1374, 242 N.W. 91 (1932).

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6.Exemplary or punitive damages, 25 C.J.S. Damages 6

Exemplary damages, generally, see 221 to 267.

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7.General or special damages, 25 C.J.S. Damages 7

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7.General or special damages, 25 C.J.S. Damages 7

Damages for personal injury or property damage

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7.General or special damages, 25 C.J.S. Damages 7

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7.General or special damages, 25 C.J.S. Damages 7

Special character, condition, or circumstance of person wronged

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