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Nominal Damages

An award of nominal damages is a significant legal right.  Courts use the term “nominal damages” to describe two types of awards such as:

  • a “trifling or token allowance” for a technical invasion of a plaintiff’s rights or a breach of a legal duty when no actual injury is shown, or
  • “the very different allowance” made when actual loss or injury is shown, but plaintiff has failed to prove the extent and amount of damages[i].

Nominal damages are presumed to follow as a conclusion of law once a breach of contract has been proven. Generally, the rule as to the measure of damages for breach of contract is the actual loss sustained[ii].  The term nominal damages means a trivial sum awarded to a plaintiff whose legal right has been technically violated[iii].  Nominal damages constitute a subcategory of general damages.  General damages are those which the law presumes to flow from a tortious act.  General damages may be awarded without proof of any specific amount to compensate the claimant for the injury done.  The law infers some damage from the invasion of a property right.  If no evidence is given showing any particular amount of loss, the law declares the right by awarding what it terms nominal damages.  Therefore, a plaintiff’s right to recover nominal damages depends only upon whether the defendant’s liability has been established[iv].

Nominal damages are appropriate only when plaintiffs are unable to prove any amount of damages and are not properly awarded when a plaintiff has established a quantifiable loss of revenue[v].  Nominal damages are a token award, compensatory in nature[vi].  Nominal damages are recoverable where some legal right has been infringed, but no actual loss or substantial injury has been sustained.  Nominal damages are awarded in recognition of the right and of the technical injury resulting from its violation. They have been described as a peg on which to hang the costs.  It is a small trivial sum awarded in recognition of a technical injury which has caused no substantial damage[vii].

Nominal damages are not compensation for loss or injury.  It is the recognition of a violation of rights.  In the absence of authority limiting an award of nominal damages, the nature of “nominal damages” compels that the amount be minimal[viii].  Nominal damages are not equivalent to damages small in amount[ix].  Nominal damages are not only recovered where no actual damage resulted from an ascertained violation of right but also where actual damages have been sustained, the extent of which cannot be determined[x].

To recover damages for an emotional injury greater than nominal damages, a plaintiff must present evidence of an emotional injury’s character and severity.   It requires specific evidence of the nature and extent of the harm.  However, in certain cases, a plaintiff’s testimony may be sufficient proof of mental damages[xi].

[i] Zok v. State, 903 P.2d 574 (Alaska 1995)

[ii] Ross v. Frank W. Dunne Co., 119 Cal. App. 2d 690 (Cal. App. 1953)

[iii] Morrissette v. Boiseau, 91 A.2d 130 (Mun. Ct. App. D.C. 1952)

[iv] Ackley v. Strickland, 173 Ga. App. 784 (Ga. Ct. App. 1985)

[v] In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d 1144 (3d Cir. Pa. 1993)

[vi] Griffin v. Steeltek, Inc., 261 F.3d 1026 (10th Cir. Okla. 2001)

[vii] Hairston v. Atlantic Greyhound Corp., 220 N.C. 642 (N.C. 1942)

[viii] Brown v. Smith, 173 Md. App. 459 (Md. Ct. Spec. App. 2007)

[ix] Younce v. Baker, 9 Ohio App. 2d 259 (Ohio Ct. App., Montgomery County 1966)

[x] Sterling Drug, Inc. v. Benatar, 99 Cal. App. 2d 393 (Cal. App. 1950)

[xi] Campbell v. England, 2005 U.S. Dist. LEXIS 11579 (E.D. La. June 3, 2005)

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