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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

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Research References, 25 C.J.S. Damages I Refs.

25 C.J.S. Damages I Refs.


Corpus Juris Secundum
Database updated June 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.
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

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Research References, 25 C.J.S. Damages I A Refs.

25 C.J.S. Damages I A Refs.


Corpus Juris Secundum
Database updated June 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.
I. Overview
A. Definitions and Distinctions
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
End of Document

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1.Definitions, 25 C.J.S. Damages 1

25 C.J.S. Damages 1
Corpus Juris Secundum
Database updated June 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.
I. Overview
A. Definitions and Distinctions
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).

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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.
1
2
3
4
5
6

8
9
10
11
12
13
14

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).
Colo.Double Oak Const., L.L.C. v. Cornerstone Development Intern., L.L.C., 97 P.3d 140 (Colo. App. 2003).
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

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2.Distinctions, 25 C.J.S. Damages 2

25 C.J.S. Damages 2
Corpus Juris Secundum
Database updated June 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.
I. Overview
A. Definitions and Distinctions
Topic Summary References Correlation Table
2. Distinctions
West's Key Number Digest
West's Key Number Digest, Damages 1
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).

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2.Distinctions, 25 C.J.S. Damages 2

4
5
6

7
8
9
10
11
12
13
14

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).
Wash.State ex rel. Macri v. City of Bremerton, 8 Wash. 2d 93, 111 P.2d 612 (1941).
La.Shreveport Neon Signs, Inc. v. Williams, 5 So. 3d 977 (La. Ct. App. 2d Cir. 2009).

End of Document

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Research References, 25 C.J.S. Damages I B Refs.

25 C.J.S. Damages I B Refs.


Corpus Juris Secundum
Database updated June 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.
I. Overview
B. Particular Classes and Descriptions of Damages
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 5
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3.Actual or compensatory damages, 25 C.J.S. Damages 3

25 C.J.S. Damages 3
Corpus Juris Secundum
Database updated June 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.
I. Overview
B. Particular Classes and Descriptions of Damages
Topic Summary References Correlation Table
3. Actual or compensatory damages
West's Key Number Digest
West's Key Number Digest, Damages 5
"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

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3.Actual or compensatory damages, 25 C.J.S. Damages 3

Footnotes
Ariz.State v. Griswold, 8 Ariz. App. 361, 446 P.2d 467 (1968).
1

2
3

6
7
8

10
11
12

13
14
15

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)).
Conn.Manning v. Pounds, 2 Conn. Cir. Ct. 344, 199 A.2d 188 (App. Div. 1963).
OhioMouse v. Central Sav. & Trust Co., 120 Ohio St. 599, 7 Ohio L. Abs. 334, 167 N.E. 868 (1929).
Conn.Manning v. Pounds, 2 Conn. Cir. Ct. 344, 199 A.2d 188 (App. Div. 1963).
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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3.Actual or compensatory damages, 25 C.J.S. Damages 3

16
17

18
19
20
21
22

23

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).
Va.News Leader Co. v. Kocen, 173 Va. 95, 3 S.E.2d 385, 122 A.L.R. 842 (1939).
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).
Va.News Leader Co. v. Kocen, 173 Va. 95, 3 S.E.2d 385, 122 A.L.R. 842 (1939).
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).
La.Loeblich v. Garnier, 113 So. 2d 95 (La. Ct. App. 1st Cir. 1959).
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)).
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).

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4.Consequential damages, 25 C.J.S. Damages 4

25 C.J.S. Damages 4
Corpus Juris Secundum
Database updated June 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.
I. Overview
B. Particular Classes and Descriptions of Damages
Topic Summary References Correlation Table
4. Consequential damages
West's Key Number Digest
West's Key Number Digest, Damages 5
"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

CUMULATIVE SUPPLEMENT
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).

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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

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5.Direct damages, 25 C.J.S. Damages 5

25 C.J.S. Damages 5
Corpus Juris Secundum
Database updated June 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.
I. Overview
B. Particular Classes and Descriptions of Damages
Topic Summary References Correlation Table
5. Direct damages
West's Key Number Digest
West's Key Number Digest, Damages 5
"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

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6.Exemplary or punitive damages, 25 C.J.S. Damages 6

25 C.J.S. Damages 6
Corpus Juris Secundum
Database updated June 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.
I. Overview
B. Particular Classes and Descriptions of Damages
Topic Summary References Correlation Table
6. Exemplary or punitive damages
West's Key Number Digest
West's Key Number Digest, Damages 5
"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

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6.Exemplary or punitive damages, 25 C.J.S. Damages 6

Footnotes
U.S.Monongahela Nav. Co. v. U S, 148 U.S. 312, 13 S. Ct. 622, 37 L. Ed. 463 (1893).
1

3
4

6
7
8
9

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.
Ark.Manhattan Credit Co. v. Skirvin, 228 Ark. 913, 311 S.W.2d 168 (1958).
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.
La.Loeblich v. Garnier, 113 So. 2d 95 (La. Ct. App. 1st Cir. 1959).
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).
La.Loeblich v. Garnier, 113 So. 2d 95 (La. Ct. App. 1st Cir. 1959).
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).
IowaBrause v. Brause, 190 Iowa 329, 177 N.W. 65 (1920).
IowaBrause v. Brause, 190 Iowa 329, 177 N.W. 65 (1920).
Conn.Shupack v. Gordon, 79 Conn. 298, 64 A. 740 (1906).
IowaBrause v. Brause, 190 Iowa 329, 177 N.W. 65 (1920).
U.S.Monongahela Nav. Co. v. U S, 148 U.S. 312, 13 S. Ct. 622, 37 L. Ed. 463 (1893).
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).

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6.Exemplary or punitive damages, 25 C.J.S. Damages 6

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).
Colo.Murphy v. Hobbs, 7 Colo. 541, 5 P. 119 (1884).

End of Document

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7.General or special damages, 25 C.J.S. Damages 7

25 C.J.S. Damages 7
Corpus Juris Secundum
Database updated June 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.
I. Overview
B. Particular Classes and Descriptions of Damages
Topic Summary References Correlation Table
7. General or special damages
West's Key Number Digest
West's Key Number Digest, Damages 5
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

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7.General or special damages, 25 C.J.S. Damages 7

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

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7.General or special damages, 25 C.J.S. Damages 7

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.
La.McGee v. A C And S, Inc., 933 So. 2d 770 (La. 2006).
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).

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7.General or special damages, 25 C.J.S. Damages 7

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).
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).
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).
N.D.Meyerle v. Pioneer Pub. Co., 45 N.D. 568, 178 N.W. 792 (1920).
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

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8.Liquidated damages, 25 C.J.S. Damages 8

25 C.J.S. Damages 8
Corpus Juris Secundum
Database updated June 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.
I. Overview
B. Particular Classes and Descriptions of Damages
Topic Summary References Correlation Table
8. Liquidated damages
West's Key Number Digest
West's Key Number Digest, Damages 5
"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.

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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

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9.Other kinds of damages, 25 C.J.S. Damages 9

25 C.J.S. Damages 9
Corpus Juris Secundum
Database updated June 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.
I. Overview
B. Particular Classes and Descriptions of Damages
Topic Summary References Correlation Table
9. Other kinds of damages
West's Key Number Digest
West's Key Number Digest, Damages 5
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

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9.Other kinds of damages, 25 C.J.S. Damages 9

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

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9.Other kinds of damages, 25 C.J.S. Damages 9

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

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9.Other kinds of damages, 25 C.J.S. Damages 9

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

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9.Other kinds of damages, 25 C.J.S. Damages 9

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).
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)).
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)).
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).
Mo.Browning v. Wabash Western Ry. Co., 24 S.W. 731 (Mo. 1893), aff'd, 124 Mo. 55, 27 S.W. 644 (1894).
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).
Mo.Browning v. Wabash Western Ry. Co., 24 S.W. 731 (Mo. 1893), aff'd, 124 Mo. 55, 27 S.W. 644 (1894).
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

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9.Other kinds of damages, 25 C.J.S. Damages 9

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).
Colo.Murphy v. Hobbs, 7 Colo. 541, 5 P. 119 (1884).
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).
Colo.Murphy v. Hobbs, 7 Colo. 541, 5 P. 119 (1884).
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

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Research References, 25 C.J.S. Damages II Refs.

25 C.J.S. Damages II Refs.


Corpus Juris Secundum
Database updated June 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.
II. Nature and Existence of Right to Damages in General
Topic Summary Correlation Table
Research References
A.L.R. Library
A.L.R. Index, Damages
A.L.R. Index, Liquidated Damages
A.L.R. Index, Multiple Damages
A.L.R. Index, Nominal Damages
A.L.R. Index, Pain and Suffering
A.L.R. Index, Punitive Damages
West's A.L.R. Digest, Damages 1 to 5 , 7
End of Document

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10.Nature and theory of pecuniary reparation, 25 C.J.S. Damages 10

25 C.J.S. Damages 10
Corpus Juris Secundum
Database updated June 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.
II. Nature and Existence of Right to Damages in General
Topic Summary References Correlation Table
10. Nature and theory of pecuniary reparation
West's Key Number Digest
West's Key Number Digest, Damages 1
"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

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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)).
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).
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.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).
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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

11.Double recovery or double damages, 25 C.J.S. Damages 11

25 C.J.S. Damages 11
Corpus Juris Secundum
Database updated June 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.
II. Nature and Existence of Right to Damages in General
Topic Summary References Correlation Table
11. Double recovery or double damages
West's Key Number Digest
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

CUMULATIVE SUPPLEMENT
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

12.Discretion of court, 25 C.J.S. Damages 12

25 C.J.S. Damages 12
Corpus Juris Secundum
Database updated June 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.
II. Nature and Existence of Right to Damages in General
Topic Summary References Correlation Table
12. Discretion of court
West's Key Number Digest
West's Key Number Digest, Damages 1, 5
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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

13.Character of injury, 25 C.J.S. Damages 13

25 C.J.S. Damages 13
Corpus Juris Secundum
Database updated June 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.
II. Nature and Existence of Right to Damages in General
Topic Summary References Correlation Table
13. Character of injury
West's Key Number Digest
West's Key Number Digest, Damages 3
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

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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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

14.Presumption of damages, 25 C.J.S. Damages 14

25 C.J.S. Damages 14
Corpus Juris Secundum
Database updated June 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.
II. Nature and Existence of Right to Damages in General
Topic Summary References Correlation Table
14. Presumption of damages
West's Key Number Digest
West's Key Number Digest, Damages 4
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

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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).
Or.Hall v. Cornett, 193 Or. 634, 240 P.2d 231 (1952).
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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

15.Property right in damages, 25 C.J.S. Damages 15

25 C.J.S. Damages 15
Corpus Juris Secundum
Database updated June 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.
II. Nature and Existence of Right to Damages in General
Topic Summary References Correlation Table
15. Property right in damages
West's Key Number Digest
West's Key Number Digest, Damages 7
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).
N.D.Meyerle v. Pioneer Pub. Co., 45 N.D. 568, 178 N.W. 792 (1920).
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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

16.What law governs, 25 C.J.S. Damages 16

25 C.J.S. Damages 16
Corpus Juris Secundum
Database updated June 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.
II. Nature and Existence of Right to Damages in General
Topic Summary References Correlation Table
16. What law governs
West's Key Number Digest
West's Key Number Digest, Damages 2
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

16.What law governs, 25 C.J.S. Damages 16

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

CUMULATIVE SUPPLEMENT
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).

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16.What law governs, 25 C.J.S. Damages 16

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).
N.J.Erny v. Estate of Merola, 171 N.J. 86, 792 A.2d 1208 (2002).
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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

Research References, 25 C.J.S. Damages III Refs.

25 C.J.S. Damages III Refs.


Corpus Juris Secundum
Database updated June 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.
III. Nominal Damages
Topic Summary Correlation Table
Research References
A.L.R. Library
A.L.R. Index, Nominal Damages
West's A.L.R. Digest, Damages 8 to 14
End of Document

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2015 Thomson Reuters. No claim to original U.S. Government Works.

Research References, 25 C.J.S. Damages III A Refs.

25 C.J.S. Damages III A Refs.


Corpus Juris Secundum
Database updated June 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.
III. Nominal Damages
A. In General
Topic Summary Correlation Table
Research References
A.L.R. Library
A.L.R. Index, Nominal Damages
West's A.L.R. Digest, Damages 8 , 11 to 14
End of Document

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2015 Thomson Reuters. No claim to original U.S. Government Works.

17.Nature and theory of award, 25 C.J.S. Damages 17

25 C.J.S. Damages 17
Corpus Juris Secundum
Database updated June 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.
III. Nominal Damages
A. In General
Topic Summary References Correlation Table
17. Nature and theory of award
West's Key Number Digest
West's Key Number Digest, Damages 8
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.

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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

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.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

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18.Nominal or substantial damages, 25 C.J.S. Damages 18

25 C.J.S. Damages 18
Corpus Juris Secundum
Database updated June 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.
III. Nominal Damages
A. In General
Topic Summary References Correlation Table
18. Nominal or substantial damages
West's Key Number Digest
West's Key Number Digest, Damages 11, 13
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
U.S.Chesapeake & Potomac Tel. Co. v. Clay, 194 F.2d 888 (D.C. Cir. 1952).
1

2
3

Special and nominal damages


D.C.Morrissette v. Boiseau, 91 A.2d 130 (Mun. Ct. App. D.C. 1952).
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).
Ill.Smith v. WGN, Inc., 47 Ill. App. 2d 183, 197 N.E.2d 482 (1st Dist. 1964).

2015 Thomson Reuters. No claim to original U.S. Government Works.

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).
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

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19.Extent of damages not shown, 25 C.J.S. Damages 19

25 C.J.S. Damages 19
Corpus Juris Secundum
Database updated June 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.
III. Nominal Damages
A. In General
Topic Summary References Correlation Table
19. Extent of damages not shown
West's Key Number Digest
West's Key Number Digest, Damages 12
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).

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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

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20.Wrong resulting in benefit, 25 C.J.S. Damages 20

25 C.J.S. Damages 20
Corpus Juris Secundum
Database updated June 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.
III. Nominal Damages
A. In General
Topic Summary References Correlation Table
20. Wrong resulting in benefit
West's Key Number Digest
West's Key Number Digest, Damages 8
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

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21.Subsequent reparation of loss, 25 C.J.S. Damages 21

25 C.J.S. Damages 21
Corpus Juris Secundum
Database updated June 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.
III. Nominal Damages
A. In General
Topic Summary References Correlation Table
21. Subsequent reparation of loss
West's Key Number Digest
West's Key Number Digest, Damages 8
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

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22.Amount of nominal damages, 25 C.J.S. Damages 22

25 C.J.S. Damages 22
Corpus Juris Secundum
Database updated June 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.
III. Nominal Damages
A. In General
Topic Summary References Correlation Table
22. Amount of nominal damages
West's Key Number Digest
West's Key Number Digest, Damages 14
"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).


U.S.Cummings v. Connell, 402 F.3d 936 (9th Cir. 2005), opinion amended on other grounds, 2005 WL 1154321
(9th Cir. 2005).
Encroachment on neighbors' property

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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).
Mo.Green v. Study, 286 S.W.3d 236 (Mo. Ct. App. S.D. 2009).
Or.Mays v. Vejo, 224 Or. App. 426, 198 P.3d 943 (2008).
Tex.MBM Financial Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660 (Tex. 2009).
U.S.Cummings v. Connell, 402 F.3d 936 (9th Cir. 2005), opinion amended on other grounds, 2005 WL 1154321
(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

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Research References, 25 C.J.S. Damages III B Refs.

25 C.J.S. Damages III B Refs.


Corpus Juris Secundum
Database updated June 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.
III. Nominal Damages
B. Absence of Actual Damage or Proof Thereof
Topic Summary Correlation Table
Research References
A.L.R. Library
A.L.R. Index, Nominal Damages
West's A.L.R. Digest, Damages 9
End of Document

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2015 Thomson Reuters. No claim to original U.S. Government Works.

23.Absence of actual damage, 25 C.J.S. Damages 23

25 C.J.S. Damages 23
Corpus Juris Secundum
Database updated June 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.
III. Nominal Damages
B. Absence of Actual Damage or Proof Thereof
Topic Summary References Correlation Table
23. Absence of actual damage
West's Key Number Digest
West's Key Number Digest, Damages 9
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.

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23.Absence of actual damage, 25 C.J.S. Damages 23

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).
N.M.Sanchez v. Clayton, 117 N.M. 761, 877 P.2d 567, 92 Ed. Law Rep. 1003 (1994).
Mo.Green v. Study, 286 S.W.3d 236 (Mo. Ct. App. S.D. 2009).
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).
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)).
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).
N.M.Sanchez v. Clayton, 117 N.M. 761, 877 P.2d 567, 92 Ed. Law Rep. 1003 (1994).
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

23.Absence of actual damage, 25 C.J.S. Damages 23

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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

24.Absence of proof as to actual damage, 25 C.J.S. Damages 24

25 C.J.S. Damages 24
Corpus Juris Secundum
Database updated June 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.
III. Nominal Damages
B. Absence of Actual Damage or Proof Thereof
Topic Summary References Correlation Table
24. Absence of proof as to actual damage
West's Key Number Digest
West's Key Number Digest, Damages 9
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

24.Absence of proof as to actual damage, 25 C.J.S. Damages 24

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).
Mo.Green v. Study, 286 S.W.3d 236 (Mo. Ct. App. S.D. 2009).
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).
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)).
Wash.Northwestern Equipment Co. v. Sofe, 91 Wash. 118, 157 P. 459 (1916).

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24.Absence of proof as to actual damage, 25 C.J.S. Damages 24

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

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

Research References, 24 C.J.S. Damages IV Refs.

24 C.J.S. Damages IV Refs.


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.
IV. Compensatory Damages
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, Excessive or Inadequate Damages
A.L.R. Index, Future and Prospective Damages
A.L.R. Index, Mitigation or Aggravation of Damages
A.L.R. Index, Nominal Damages
A.L.R. Index, Pain and Suffering
A.L.R. Index, Special Damages
A.L.R. Index, Speculative Damages
West's A.L.R. Digest, Damages 6, 15 to 73, 95 to 140.7
End of Document

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2015 Thomson Reuters. No claim to original U.S. Government Works.

Research References, 24 C.J.S. Damages IV A Refs.

24 C.J.S. Damages IV A Refs.


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.
IV. Compensatory Damages
A. In General
Topic Summary Correlation Table
Research References
A.L.R. Library
A.L.R. Index, Damages
West's A.L.R. Digest, Damages
End of Document

6, 15 to 23, 25 to 29, 62(1) to 62(4)


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2015 Thomson Reuters. No claim to original U.S. Government Works.

25.Nature and theory of compensatory damages, 25 C.J.S. Damages 25

25 C.J.S. Damages 25
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
1. General Considerations
Topic Summary References Correlation Table
25. Nature and theory of compensatory damages
West's Key Number Digest
West's Key Number Digest, Damages 15
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

CUMULATIVE SUPPLEMENT
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).

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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).
IdahoTodd v. Sullivan Const. LLC, 146 Idaho 118, 191 P.3d 196 (2008).
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).
Mo.Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179 (Mo. 2009).
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.
Ala.Slack v. Stream, 988 So. 2d 516, 235 Ed. Law Rep. 1235 (Ala. 2008).
Colo.Stamp v. Vail Corp., 172 P.3d 437 (Colo. 2007).
IdahoTodd v. Sullivan Const. LLC, 146 Idaho 118, 191 P.3d 196 (2008).
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).
Wyo.Vroman v. Town & Country Credit Corp., 2007 WY 82, 158 P.3d 141 (Wyo. 2007).
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).
Wyo.Vroman v. Town & Country Credit Corp., 2007 WY 82, 158 P.3d 141 (Wyo. 2007).
N.J.McAndrew v. Mularchuk, 38 N.J. 156, 183 A.2d 74 (1962).

End of Document

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26.Extent of right to compensatory damages, 24 C.J.S. Damages 26

24 C.J.S. Damages 26
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
1. General Considerations
Topic Summary References Correlation Table
26. Extent of right to compensatory damages
West's Key Number Digest
West's Key Number Digest, Damages 15
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

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26.Extent of right to compensatory damages, 24 C.J.S. Damages 26

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

CUMULATIVE SUPPLEMENT
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).

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26.Extent of right to compensatory damages, 24 C.J.S. Damages 26

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).
IdahoTodd v. Sullivan Const. LLC, 146 Idaho 118, 191 P.3d 196 (2008).
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).
Mo.Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179 (Mo. 2009).
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).

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26.Extent of right to compensatory damages, 24 C.J.S. Damages 26

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).
UtahMahana v. Onyx Acceptance Corp., 2004 UT 59, 96 P.3d 893, 53 U.C.C. Rep. Serv. 2d 1043 (Utah 2004).
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).
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).
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).

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26.Extent of right to compensatory damages, 24 C.J.S. Damages 26

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

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27.Generally, 25 C.J.S. Damages 27

25 C.J.S. Damages 27
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
2. Natural and Proximate Cause
Topic Summary References Correlation Table
27. Generally
West's Key Number Digest
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

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27.Generally, 25 C.J.S. Damages 27

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).
Haw.Kanahele v. Han, 125 Haw. 446, 263 P.3d 726 (2011).
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).
W.Va.Cook v. Cook, 216 W. Va. 353, 607 S.E.2d 459 (2004).
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

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28.Intervening causes, 25 C.J.S. Damages 28

25 C.J.S. Damages 28
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
2. Natural and Proximate Cause
Topic Summary References Correlation Table
28. Intervening causes
West's Key Number Digest
West's Key Number Digest, Damages 19
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

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28.Intervening causes, 25 C.J.S. Damages 28

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.

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28.Intervening causes, 25 C.J.S. Damages 28

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

CUMULATIVE SUPPLEMENT
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).
Okla.Shadden v. Valley View Hosp., 1996 OK 140, 915 P.2d 364 (Okla. 1996).
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

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28.Intervening causes, 25 C.J.S. Damages 28

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).
Okla.Shadden v. Valley View Hosp., 1996 OK 140, 915 P.2d 364 (Okla. 1996).
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

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29.Concurring causes, 25 C.J.S. Damages 29

25 C.J.S. Damages 29
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
2. Natural and Proximate Cause
Topic Summary References Correlation Table
29. Concurring causes
West's Key Number Digest
West's Key Number Digest, Damages 18
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

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29.Concurring causes, 25 C.J.S. Damages 29

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).

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29.Concurring causes, 25 C.J.S. Damages 29

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).
Tenn.Foster v. Baptist Memorial Hospital, 506 S.W.2d 775 (Tenn. Ct. App. 1973).
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).
Tenn.Foster v. Baptist Memorial Hospital, 506 S.W.2d 775 (Tenn. Ct. App. 1973).
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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

30.Generally, 25 C.J.S. Damages 30

25 C.J.S. Damages 30
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
3. Natural and Probable Consequences
a. In General
Topic Summary References Correlation Table
30. Generally
West's Key Number Digest
West's Key Number Digest, Damages 20 to 23
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).

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30.Generally, 25 C.J.S. Damages 30

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

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31.Generally, 24 C.J.S. Damages 31

24 C.J.S. Damages 31
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.
IV. Compensatory Damages
A. In General
3. Natural and Probable Consequences
b. Breach of Contract
Topic Summary References Correlation Table
31. Generally
West's Key Number Digest
West's Key Number Digest, Damages 21 to 23
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

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31.Generally, 24 C.J.S. Damages 31

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

CUMULATIVE SUPPLEMENT
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).
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).
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).

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31.Generally, 24 C.J.S. Damages 31

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).
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).
Colo.Giampapa v. American Family Mut. Ins. Co., 64 P.3d 230 (Colo. 2003).
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).
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).
Pa.Helpin v. Trustees of University of Pennsylvania, 608 Pa. 45, 10 A.3d 267, 262 Ed. Law Rep. 932 (2010).
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).
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).
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).
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).
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.
Tex.Basic Capital Management, Inc. v. Dynex Commercial, Inc., 348 S.W.3d 894 (Tex. 2011).
Ark.Reynolds Health Care Services, Inc. v. HMNH, Inc., 364 Ark. 168, 217 S.W.3d 797 (2005).
Cal.Erlich v. Menezes, 21 Cal. 4th 543, 87 Cal. Rptr. 2d 886, 981 P.2d 978 (1999).

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31.Generally, 24 C.J.S. Damages 31

10

11
12
13
14

Colo.Giampapa v. American Family Mut. Ins. Co., 64 P.3d 230 (Colo. 2003).
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).
Tex.Basic Capital Management, Inc. v. Dynex Commercial, Inc., 348 S.W.3d 894 (Tex. 2011).
Ark.Reynolds Health Care Services, Inc. v. HMNH, Inc., 364 Ark. 168, 217 S.W.3d 797 (2005).
Colo.Giampapa v. American Family Mut. Ins. Co., 64 P.3d 230 (Colo. 2003).
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).
Tex.Basic Capital Management, Inc. v. Dynex Commercial, Inc., 348 S.W.3d 894 (Tex. 2011).
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).
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).
Cal.Ely v. Bottini, 179 Cal. App. 2d 287, 3 Cal. Rptr. 756 (1st Dist. 1960).
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).
Cal.Ely v. Bottini, 179 Cal. App. 2d 287, 3 Cal. Rptr. 756 (1st Dist. 1960).

End of Document

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32.Special circumstances, 25 C.J.S. Damages 32

25 C.J.S. Damages 32
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
3. Natural and Probable Consequences
b. Breach of Contract
Topic Summary References Correlation Table
32. Special circumstances
West's Key Number Digest
West's Key Number Digest, Damages 21 to 23
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

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32.Special circumstances, 25 C.J.S. Damages 32

CUMULATIVE SUPPLEMENT
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).
IowaRoyal Indem. Co. v. Factory Mut. Ins. Co., 786 N.W.2d 839 (Iowa 2010).
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.Erlich v. Menezes, 21 Cal. 4th 543, 87 Cal. Rptr. 2d 886, 981 P.2d 978 (1999).
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.
Cal.Erlich v. Menezes, 21 Cal. 4th 543, 87 Cal. Rptr. 2d 886, 981 P.2d 978 (1999).
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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

33.Collateral contracts and transactions, 25 C.J.S. Damages 33

25 C.J.S. Damages 33
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
3. Natural and Probable Consequences
b. Breach of Contract
Topic Summary References Correlation Table
33. Collateral contracts and transactions
West's Key Number Digest
West's Key Number Digest, Damages 21 to 23
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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

34.Generally, 25 C.J.S. Damages 34

25 C.J.S. Damages 34
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
3. Natural and Probable Consequences
c. Torts
Topic Summary References Correlation Table
34. Generally
West's Key Number Digest
West's Key Number Digest, Damages 20
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).
Me.Estate of Hoch v. Stifel, 2011 ME 24, 16 A.3d 137 (Me. 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).
W.Va.Cook v. Cook, 216 W. Va. 353, 607 S.E.2d 459 (2004).

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34.Generally, 25 C.J.S. Damages 34

2
3

5
6
7

La.McGee v. A C And S, Inc., 933 So. 2d 770 (La. 2006).


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.
Ill.Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 215 Ill. Dec. 108, 662 N.E.2d 1248 (1996).
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

35.Unforeseen and unanticipated consequences, 25 C.J.S. Damages 35

25 C.J.S. Damages 35
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
3. Natural and Probable Consequences
c. Torts
Topic Summary References Correlation Table
35. Unforeseen and unanticipated consequences
West's Key Number Digest
West's Key Number Digest, Damages 20
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

35.Unforeseen and unanticipated consequences, 25 C.J.S. Damages 35

CUMULATIVE SUPPLEMENT
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).
Tenn.Banks v. Elks Club Pride of Tennessee 1102, 301 S.W.3d 214 (Tenn. 2010).
Ill.Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 215 Ill. Dec. 108, 662 N.E.2d 1248 (1996).
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

36.Generally, 25 C.J.S. Damages 36

25 C.J.S. Damages 36
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
4. Uncertain, Speculative, and Contingent Consequences
Topic Summary References Correlation Table
36. Generally
West's Key Number Digest
West's Key Number Digest, Damages 6, 24
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

36.Generally, 25 C.J.S. Damages 36

CUMULATIVE SUPPLEMENT
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).
IowaMiller v. Rohling, 720 N.W.2d 562 (Iowa 2006).
Kan.Martinez v. Milburn Enterprises, Inc., 290 Kan. 572, 233 P.3d 205 (2010).
Me.Estate of Hoch v. Stifel, 2011 ME 24, 16 A.3d 137 (Me. 2011).
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).
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).
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).
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.
U.S.Russell v. City of Wildwood, 428 F.2d 1176 (3d Cir. 1970).
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).

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36.Generally, 25 C.J.S. Damages 36

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

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

37.Degree of certainty required, 25 C.J.S. Damages 37

25 C.J.S. Damages 37
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
4. Uncertain, Speculative, and Contingent Consequences
Topic Summary References Correlation Table
37. Degree of certainty required
West's Key Number Digest
West's Key Number Digest, Damages 6
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

CUMULATIVE SUPPLEMENT
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]

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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

Ala.Martin v. Battistella, 9 So. 3d 1235 (Ala. 2008).


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).
Kan.Martinez v. Milburn Enterprises, Inc., 290 Kan. 572, 233 P.3d 205 (2010).
Me.Jenkins, Inc. v. Walsh Bros., Inc., 2001 ME 98, 776 A.2d 1229 (Me. 2001).
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).
Neb.Gary's Implement, Inc. v. Bridgeport Tractor Parts, Inc., 281 Neb. 281, 799 N.W.2d 249 (2011).
N.D.Langer v. Bartholomay, 2008 ND 40, 745 N.W.2d 649 (N.D. 2008).
Pa.Helpin v. Trustees of University of Pennsylvania, 608 Pa. 45, 10 A.3d 267, 262 Ed. Law Rep. 932 (2010).
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).
N.H.George v. Al Hoyt & Sons, Inc., 162 N.H. 123, 27 A.3d 697 (2011).
UtahTingey v. Christensen, 1999 UT 68, 987 P.2d 588 (Utah 1999).
Va.Nichols Const. Corp. v. Virginia Machine Tool Co., LLC, 276 Va. 81, 661 S.E.2d 467 (2008).
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).
AlaskaCameron v. Chang-Craft, 251 P.3d 1008 (Alaska 2011).
D.C.Trustees of University of Dist. of Columbia v. Vossoughi, 963 A.2d 1162, 241 Ed. Law Rep. 234 (D.C. 2009).
N.H.George v. Al Hoyt & Sons, Inc., 162 N.H. 123, 27 A.3d 697 (2011).
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).
N.H.George v. Al Hoyt & Sons, Inc., 162 N.H. 123, 27 A.3d 697 (2011).
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).
N.H.George v. Al Hoyt & Sons, Inc., 162 N.H. 123, 27 A.3d 697 (2011).
Fla.Twyman v. Roell, 123 Fla. 2, 166 So. 215 (1936).

End of Document

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

38.Uncertainty as to existence or cause, 25 C.J.S. Damages 38

25 C.J.S. Damages 38
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
4. Uncertain, Speculative, and Contingent Consequences
Topic Summary References Correlation Table
38. Uncertainty as to existence or cause
West's Key Number Digest
West's Key Number Digest, Damages 6
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).
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).
Neb.Gary's Implement, Inc. v. Bridgeport Tractor Parts, Inc., 281 Neb. 281, 799 N.W.2d 249 (2011).

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38.Uncertainty as to existence or cause, 25 C.J.S. Damages 38

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.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).
Tenn.Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008).

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).
IowaMiller v. Rohling, 720 N.W.2d 562 (Iowa 2006).
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).
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

39.Uncertainty as to measure or extent, 25 C.J.S. Damages 39

25 C.J.S. Damages 39
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
4. Uncertain, Speculative, and Contingent Consequences
Topic Summary References Correlation Table
39. Uncertainty as to measure or extent
West's Key Number Digest
West's Key Number Digest, Damages 6
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

39.Uncertainty as to measure or extent, 25 C.J.S. Damages 39

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

CUMULATIVE SUPPLEMENT
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).
IowaMiller v. Rohling, 720 N.W.2d 562 (Iowa 2006).
Miss.Kennedy v. Illinois Cent. R. Co., 30 So. 3d 333 (Miss. 2010).
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.D.Langer v. Bartholomay, 2008 ND 40, 745 N.W.2d 649 (N.D. 2008).
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).
Tenn.Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008).
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).

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39.Uncertainty as to measure or extent, 25 C.J.S. Damages 39

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).
UtahTingey v. Christensen, 1999 UT 68, 987 P.2d 588 (Utah 1999).
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).
N.D.Langer v. Bartholomay, 2008 ND 40, 745 N.W.2d 649 (N.D. 2008).
UtahTingey v. Christensen, 1999 UT 68, 987 P.2d 588 (Utah 1999).
Va.Condominium Services, Inc. v. First Owners' Ass'n of Forty Six Hundred Condominium, Inc., 281 Va. 561, 709
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).
S.D.Weekley v. Prostrollo, 2010 SD 13, 778 N.W.2d 823 (S.D. 2010), reh'g granted, (Mar. 10, 2010).
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).
La.Menard v. Lafayette Ins. Co., 31 So. 3d 996 (La. 2010).
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).
Neb.Gary's Implement, Inc. v. Bridgeport Tractor Parts, Inc., 281 Neb. 281, 799 N.W.2d 249 (2011).
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).
Va.Condominium Services, Inc. v. First Owners' Ass'n of Forty Six Hundred Condominium, Inc., 281 Va. 561, 709
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).
Tenn.Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008).
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).
IowaMiller v. Rohling, 720 N.W.2d 562 (Iowa 2006).
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).

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39.Uncertainty as to measure or extent, 25 C.J.S. Damages 39

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).
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).
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

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40.Generally, 25 C.J.S. Damages 40

25 C.J.S. Damages 40
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
5. Prospective and Anticipated Consequences
Topic Summary References Correlation Table
40. Generally
West's Key Number Digest
West's Key Number Digest, Damages 25, 26
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

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41.Breach of contract, 25 C.J.S. Damages 41

25 C.J.S. Damages 41
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
5. Prospective and Anticipated Consequences
Topic Summary References Correlation Table
41. Breach of contract
West's Key Number Digest
West's Key Number Digest, Damages 28, 29
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

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41.Breach of contract, 25 C.J.S. Damages 41

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).
Va.Condominium Services, Inc. v. First Owners' Ass'n of Forty Six Hundred Condominium, Inc., 281 Va. 561, 709
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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

42.Torts, 25 C.J.S. Damages 42

25 C.J.S. Damages 42
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
5. Prospective and Anticipated Consequences
Topic Summary References Correlation Table
42. Torts
West's Key Number Digest
West's Key Number Digest, Damages 27
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).

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42.Torts, 25 C.J.S. Damages 42

4
5

6
7

9
10

UtahRobinson v. Hreinson, 17 Utah 2d 261, 409 P.2d 121 (1965).


U.S.Kapuschinsky v. U.S., 259 F. Supp. 1 (D.S.C. 1966).
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).
Mass.Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 914 N.E.2d 891 (2009).
N.J.Grassi v. Pennsylvania R. Co., 86 N.J. Super. 48, 205 A.2d 895 (App. Div. 1964).
W.Va.Cook v. Cook, 216 W. Va. 353, 607 S.E.2d 459 (2004).
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).
Mo.Meyer ex rel. Coplin v. Fluor Corp., 220 S.W.3d 712 (Mo. 2007).
W.Va.Cook v. Cook, 216 W. Va. 353, 607 S.E.2d 459 (2004).
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

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43.TortsInjury to property, 25 C.J.S. Damages 43

25 C.J.S. Damages 43
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
5. Prospective and Anticipated Consequences
Topic Summary References Correlation Table
43. TortsInjury to property
West's Key Number Digest
West's Key Number Digest, Damages 27
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

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44.Generally, 25 C.J.S. Damages 44

25 C.J.S. Damages 44
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
6. Avoidable Consequences
Topic Summary References Correlation Table
44. Generally
West's Key Number Digest
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).
W.Va.Cook v. Cook, 216 W. Va. 353, 607 S.E.2d 459 (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).

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44.Generally, 25 C.J.S. Damages 44

Failure to prevent or reduce damages as contributory negligence, see C.J.S., Negligence 253.
End of Document

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2015 Thomson Reuters. No claim to original U.S. Government Works.

45.Duty to prevent or reduce damages, 25 C.J.S. Damages 45

25 C.J.S. Damages 45
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
6. Avoidable Consequences
Topic Summary References Correlation Table
45. Duty to prevent or reduce damages
West's Key Number Digest
West's Key Number Digest, Damages 62, 62(1)
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

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45.Duty to prevent or reduce damages, 25 C.J.S. Damages 45

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

CUMULATIVE SUPPLEMENT
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
Ga.R & R Insulation Services, Inc. v. Royal Indem. Co., 307 Ga. App. 419, 705 S.E.2d 223 (2010).
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).

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45.Duty to prevent or reduce damages, 25 C.J.S. Damages 45

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).
W.Va.Cook v. Cook, 216 W. Va. 353, 607 S.E.2d 459 (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).
N.J.Lynch v. Scheininger, 162 N.J. 209, 744 A.2d 113 (2000).
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).
D.C.Trustees of University of Dist. of Columbia v. Vossoughi, 963 A.2d 1162, 241 Ed. Law Rep. 234 (D.C. 2009).
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).
D.C.Trustees of University of Dist. of Columbia v. Vossoughi, 963 A.2d 1162, 241 Ed. Law Rep. 234 (D.C. 2009).
N.D.Coughlin Const. Co., Inc. v. Nu-Tec Industries, Inc., 2008 ND 163, 755 N.W.2d 867 (N.D. 2008).
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).
OhioChicago Title Ins. Co. v. Huntington Natl. Bank, 87 Ohio St. 3d 270, 1999-Ohio-62, 719 N.E.2d 955 (1999).
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).
N.J.Lynch v. Scheininger, 162 N.J. 209, 744 A.2d 113 (2000).
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).
Me.Searles v. Fleetwood Homes Of Pennsylvania, Inc., 2005 ME 94, 878 A.2d 509 (Me. 2005).
N.J.Associated Metals & Minerals Corp. v. Dixon Chemical & Research, Inc., 82 N.J. Super. 281, 197 A.2d 569
(App. Div. 1963).
Wyo.Kerbs v. Walck, 2010 WY 53, 229 P.3d 974 (Wyo. 2010).
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).

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45.Duty to prevent or reduce damages, 25 C.J.S. Damages 45

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).
Mont.Summers v. Crestview Apartments, 2010 MT 164, 357 Mont. 123, 236 P.3d 586 (2010).
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
Colo.Stone v. Satriana, 41 P.3d 705 (Colo. 2002).
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).
Me.In re Hannaford Bros. Co. Customer Data Security Breach Litigation, 2010 ME 93, 4 A.3d 492 (Me. 2010).
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).
N.D.Coughlin Const. Co., Inc. v. Nu-Tec Industries, Inc., 2008 ND 163, 755 N.W.2d 867 (N.D. 2008).
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).
IdahoWeinstein v. Prudential Property and Cas. Ins. Co., 149 Idaho 299, 233 P.3d 1221 (2010).
Miss.Vining v. Smith, 213 Miss. 850, 58 So. 2d 34 (1952).
N.D.Coughlin Const. Co., Inc. v. Nu-Tec Industries, Inc., 2008 ND 163, 755 N.W.2d 867 (N.D. 2008).
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).
Wyo.Thayer v. Smith, 380 P.2d 852 (Wyo. 1963).
Cal.Stiner v. Travelers Indem. Co., 226 Cal. App. 2d 128, 37 Cal. Rptr. 813 (4th Dist. 1964).
Wyo.Thayer v. Smith, 380 P.2d 852 (Wyo. 1963).
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).

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45.Duty to prevent or reduce damages, 25 C.J.S. Damages 45

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46.Breach of contract, 24 C.J.S. Damages 46

24 C.J.S. Damages 46
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.
IV. Compensatory Damages
A. In General
6. Avoidable Consequences
Topic Summary References Correlation Table
46. Breach of contract
West's Key Number Digest
West's Key Number Digest, Damages 62, 62(4)
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

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46.Breach of contract, 24 C.J.S. Damages 46

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

CUMULATIVE SUPPLEMENT
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

IdahoWeinstein v. Prudential Property and Cas. Ins. Co., 149 Idaho 299, 233 P.3d 1221 (2010).
Mass.Krasne v. Tedeschi and Grasso, 436 Mass. 103, 762 N.E.2d 841 (2002).
Mont.Summers v. Crestview Apartments, 2010 MT 164, 357 Mont. 123, 236 P.3d 586 (2010).
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).
D.C.Trustees of University of Dist. of Columbia v. Vossoughi, 963 A.2d 1162, 241 Ed. Law Rep. 234 (D.C. 2009).
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).
Va.Forbes v. Rapp, 269 Va. 374, 611 S.E.2d 592 (2005).
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
Mass.Krasne v. Tedeschi and Grasso, 436 Mass. 103, 762 N.E.2d 841 (2002).
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).
Tex.Gunn Infiniti, Inc. v. O'Byrne, 996 S.W.2d 854 (Tex. 1999).
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).

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46.Breach of contract, 24 C.J.S. Damages 46

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.
Va.Forbes v. Rapp, 269 Va. 374, 611 S.E.2d 592 (2005).

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).
OhioLake Ridge Academy v. Carney, 66 Ohio St. 3d 376, 613 N.E.2d 183, 82 Ed. Law Rep. 1181 (1993).
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).
Tex.Gunn Infiniti, Inc. v. O'Byrne, 996 S.W.2d 854 (Tex. 1999).
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).
Tex.Gunn Infiniti, Inc. v. O'Byrne, 996 S.W.2d 854 (Tex. 1999).
Va.Hiss v. Friedberg, 201 Va. 572, 112 S.E.2d 871, 4 A.L.R.3d 261 (1960).
Wyo.Asbell Bros., Inc. v. Nash-Davis Machinery Co., 382 P.2d 57 (Wyo. 1963).

End of Document

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47.Breach of contractContracts for services or use of..., 25 C.J.S. Damages 47

25 C.J.S. Damages 47
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
6. Avoidable Consequences
Topic Summary References Correlation Table
47. Breach of contractContracts for services or use of instrumentality
West's Key Number Digest
West's Key Number Digest, Damages 62, 62(4)
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.

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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).
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).
Cal.Gollaher v. Midwood Const. Co., 194 Cal. App. 2d 640, 15 Cal. Rptr. 292 (2d Dist. 1961).
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

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48.Injury to property, 25 C.J.S. Damages 48

25 C.J.S. Damages 48
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
6. Avoidable Consequences
Topic Summary References Correlation Table
48. Injury to property
West's Key Number Digest
West's Key Number Digest, Damages 62, 62(3)
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

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48.Injury to property, 25 C.J.S. Damages 48

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).
Mo.Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179 (Mo. 2009).
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).
Mo.Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179 (Mo. 2009).
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

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49.Injury to person, 25 C.J.S. Damages 49

25 C.J.S. Damages 49
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
6. Avoidable Consequences
Topic Summary References Correlation Table
49. Injury to person
West's Key Number Digest
West's Key Number Digest, Damages 62, 62(2)
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
U.S.Toledo Peoria and Western Ry. v. Metro Waste Systems, Inc., 59 F.3d 637 (7th Cir. 1995).
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).
Va.Monahan v. Obici Medical Management Services, Inc., 271 Va. 621, 628 S.E.2d 330 (2006).

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).
U.S.Toledo Peoria and Western Ry. v. Metro Waste Systems, Inc., 59 F.3d 637 (7th Cir. 1995).
Va.Monahan v. Obici Medical Management Services, Inc., 271 Va. 621, 628 S.E.2d 330 (2006).
Failure to prevent or reduce damages as contributory negligence, see C.J.S., Negligence 272.
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).

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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

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50.Injury to personDuty to procure medical attention, 25 C.J.S. Damages 50

25 C.J.S. Damages 50
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
A. In General
6. Avoidable Consequences
Topic Summary References Correlation Table
50. Injury to personDuty to procure medical attention
West's Key Number Digest
West's Key Number Digest, Damages 62, 62(2)
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

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50.Injury to personDuty to procure medical attention, 25 C.J.S. Damages 50

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).
Failure to prevent or reduce damages as contributory negligence, see C.J.S., Negligence 272.
U.S.Savino v. C.P. Hall Co., 199 F.3d 925 (7th Cir. 1999).
Ind.Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006).
IowaShewry v. Heuer, 255 Iowa 147, 121 N.W.2d 529 (1963).
Va.Sawyer v. Comerci, 264 Va. 68, 563 S.E.2d 748 (2002).
U.S.Savino v. C.P. Hall Co., 199 F.3d 925 (7th Cir. 1999).
Ind.Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006).

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50.Injury to personDuty to procure medical attention, 25 C.J.S. Damages 50

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).
IowaShewry v. Heuer, 255 Iowa 147, 121 N.W.2d 529 (1963).
Colo.Intermill v. Heumesser, 154 Colo. 496, 391 P.2d 684 (1964).
Va.Sawyer v. Comerci, 264 Va. 68, 563 S.E.2d 748 (2002).
IowaShewry v. Heuer, 255 Iowa 147, 121 N.W.2d 529 (1963).
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

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Research References, 24 C.J.S. Damages IV B Refs.

24 C.J.S. Damages IV B Refs.


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.
IV. Compensatory Damages
B. Particular Elements of Compensation
Topic Summary Correlation Table
Research References
A.L.R. Library
A.L.R. Index, Consequential Damages
A.L.R. Index, Excessive or Inadequate Damages
A.L.R. Index, Future Damages
A.L.R. Index, Hedonic Damages
A.L.R. Index, Mitigation or Aggravation of Damages
A.L.R. Index, Nominal Damages
A.L.R. Index, Pain and Suffering
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

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51.Generally, 25 C.J.S. Damages 51

25 C.J.S. Damages 51
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
a. In General
Topic Summary References Correlation Table
51. Generally
West's Key Number Digest
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).
Ky.Schulz v. Chadwell, 558 S.W.2d 183 (Ky. Ct. App. 1977).
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).

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51.Generally, 25 C.J.S. Damages 51

U.S.Exxon Shipping Co. v. Baker, 554 U.S. 471, 128 S. Ct. 2605, 171 L. Ed. 2d 570 (2008).

End of Document

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52.Lost time and earnings, 25 C.J.S. Damages 52

25 C.J.S. Damages 52
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
a. In General
Topic Summary References Correlation Table
52. Lost time and earnings
West's Key Number Digest
West's Key Number Digest, Damages 37
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

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52.Lost time and earnings, 25 C.J.S. Damages 52

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).
Me.In re Hannaford Bros. Co. Customer Data Security Breach Litigation, 2010 ME 93, 4 A.3d 492 (Me. 2010).
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
Me.In re Hannaford Bros. Co. Customer Data Security Breach Litigation, 2010 ME 93, 4 A.3d 492 (Me. 2010).

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52.Lost time and earnings, 25 C.J.S. Damages 52

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).
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
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).
Offer of possible employment speculative
R.I.Jackson v. Choquette & Co., Inc., 78 R.I. 164, 80 A.2d 172 (1951).

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52.Lost time and earnings, 25 C.J.S. Damages 52

End of Document

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2015 Thomson Reuters. No claim to original U.S. Government Works.

53.Lost time and earningsFuture earnings, 25 C.J.S. Damages 53

25 C.J.S. Damages 53
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
a. In General
Topic Summary References Correlation Table
53. Lost time and earningsFuture earnings
West's Key Number Digest
West's Key Number Digest, Damages 37
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).
Mo.Seymour v. House, 305 S.W.2d 1 (Mo. 1957).
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).

2015 Thomson Reuters. No claim to original U.S. Government Works.

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

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54.Loss of third person's services, 25 C.J.S. Damages 54

25 C.J.S. Damages 54
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
a. In General
Topic Summary References Correlation Table
54. Loss of third person's services
West's Key Number Digest
West's Key Number Digest, Damages 37
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.

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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

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55.Loss of earning capacity, 25 C.J.S. Damages 55

25 C.J.S. Damages 55
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
a. In General
Topic Summary References Correlation Table
55. Loss of earning capacity
West's Key Number Digest
West's Key Number Digest, Damages 38
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

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55.Loss of earning capacity, 25 C.J.S. Damages 55

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).


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).
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).
Conn.Moiger v. Connecticut Ice Cream Co., 146 Conn. 551, 152 A.2d 925 (1959).
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).

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55.Loss of earning capacity, 25 C.J.S. Damages 55

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).
U.S.Chavez v. U.S., 192 F. Supp. 263 (D. Mont. 1961).
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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

56.Loss of earning capacityRelationship to other forms..., 25 C.J.S. Damages 56

25 C.J.S. Damages 56
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
a. In General
Topic Summary References Correlation Table
56. Loss of earning capacityRelationship to other forms of loss
West's Key Number Digest
West's Key Number Digest, Damages 38
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

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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).
U.S.Chavez v. U.S., 192 F. Supp. 263 (D. Mont. 1961).

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

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57.Generally, 25 C.J.S. Damages 57

25 C.J.S. Damages 57
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
b. Loss of Profits
Topic Summary References Correlation Table
57. Generally
West's Key Number Digest
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

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57.Generally, 25 C.J.S. Damages 57

CUMULATIVE SUPPLEMENT
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).
U.S.Burkhart Grob Luft und Raumfahrt GmbH & Co. KG v. E-Systems, Inc., 257 F.3d 461 (5th Cir. 2001).
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


Tenn.Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008).
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).
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).
Ga.Building Materials Wholesale, Inc. v. Triad Drywall, LLC, 287 Ga. App. 772, 653 S.E.2d 115 (2007).
U.S.Burkhart Grob Luft und Raumfahrt GmbH & Co. KG v. E-Systems, Inc., 257 F.3d 461 (5th Cir. 2001).
Ind.Indianapolis City Market Corp. v. MAV, Inc., 915 N.E.2d 1013 (Ind. Ct. App. 2009).
U.S.Burkhart Grob Luft und Raumfahrt GmbH & Co. KG v. E-Systems, Inc., 257 F.3d 461 (5th Cir. 2001).
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).

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57.Generally, 25 C.J.S. Damages 57

12

13

14

Mo.Gray v. Wabash Ry. Co., 220 Mo. App. 773, 277 S.W. 64 (1925).
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).
U.S.Boston & A. R. Co. v. O'Reilly, 158 U.S. 334, 15 S. Ct. 830, 39 L. Ed. 1006 (1895).
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).
Cal.Grupe v. Glick, 26 Cal. 2d 680, 160 P.2d 832 (1945).

End of Document

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

58.Interruption or destruction of business, 25 C.J.S. Damages 58

25 C.J.S. Damages 58
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
b. Loss of Profits
Topic Summary References Correlation Table
58. Interruption or destruction of business
West's Key Number Digest
West's Key Number Digest, Damages 40(3)
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

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58.Interruption or destruction of business, 25 C.J.S. Damages 58

CUMULATIVE SUPPLEMENT
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).
Fla.Devon Medical, Inc. v. Ryvmed Medical, Inc., 60 So. 3d 1125 (Fla. Dist. Ct. App. 4th Dist. 2011), review denied,
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).
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).
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).
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).
IowaJurgens v. Davenport, R.I. & N. Ry. Co., 249 Iowa 711, 88 N.W.2d 797 (1958).

End of Document

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

59.Breach of contract, 24 C.J.S. Damages 59

24 C.J.S. Damages 59
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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
b. Loss of Profits
Topic Summary References Correlation Table
59. Breach of contract
West's Key Number Digest
West's Key Number Digest, Damages 40(2)
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

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59.Breach of contract, 24 C.J.S. Damages 59

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

CUMULATIVE SUPPLEMENT
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).
Vt.Norton & Lamphere Const. Co. v. Blow & Cote, Inc., 123 Vt. 130, 183 A.2d 230 (1962).

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59.Breach of contract, 24 C.J.S. Damages 59

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

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

60.Breach of contractRequirement of certainty and..., 25 C.J.S. Damages 60

25 C.J.S. Damages 60
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
b. Loss of Profits
Topic Summary References Correlation Table
60. Breach of contractRequirement of certainty and definiteness
West's Key Number Digest
West's Key Number Digest, Damages 40(2)
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
Ala.Martin v. Battistella, 9 So. 3d 1235 (Ala. 2008).
Speculative or conjectural

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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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

61.Breach of contractProfits within contemplation of..., 25 C.J.S. Damages 61

25 C.J.S. Damages 61
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
b. Loss of Profits
Topic Summary References Correlation Table
61. Breach of contractProfits within contemplation of parties when contract was made
West's Key Number Digest
West's Key Number Digest, Damages 40(2)
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

CUMULATIVE SUPPLEMENT
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).

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61.Breach of contractProfits within contemplation of..., 25 C.J.S. Damages 61

[END OF SUPPLEMENT]
Footnotes
U.S.Schonfeld v. Hilliard, 218 F.3d 164 (2d Cir. 2000).
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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

62.Torts, 25 C.J.S. Damages 62

25 C.J.S. Damages 62
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
b. Loss of Profits
Topic Summary References Correlation Table
62. Torts
West's Key Number Digest
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

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62.Torts, 25 C.J.S. Damages 62

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).
IowaShewry v. Heuer, 255 Iowa 147, 121 N.W.2d 529 (1963).
Tex.Kothmann v. Lett, 248 S.W.2d 302 (Tex. Civ. App. Austin 1952), writ refused n.r.e.
IowaShewry v. Heuer, 255 Iowa 147, 121 N.W.2d 529 (1963).
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).
N.C.Smith v. Corsat, 260 N.C. 92, 131 S.E.2d 894 (1963).
N.C.Smith v. Corsat, 260 N.C. 92, 131 S.E.2d 894 (1963).
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).

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62.Torts, 25 C.J.S. Damages 62

End of Document

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2015 Thomson Reuters. No claim to original U.S. Government Works.

63.Generally, 25 C.J.S. Damages 63

25 C.J.S. Damages 63
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(1) In General
Topic Summary References Correlation Table
63. Generally
West's Key Number Digest
West's Key Number Digest, Damages 41, 42
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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

64.Expenses incurred in reducing damages or preventing..., 25 C.J.S. Damages 64

25 C.J.S. Damages 64
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(1) In General
Topic Summary References Correlation Table
64. Expenses incurred in reducing damages or preventing future injury
West's Key Number Digest
West's Key Number Digest, Damages 42
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.

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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
Ky.Schulz v. Chadwell, 558 S.W.2d 183 (Ky. Ct. App. 1977).
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).
Tex.Morgan v. Young, 203 S.W.2d 837 (Tex. Civ. App. Beaumont 1947), writ refused n.r.e.
N.J.State v. Signo Trading Intern., Inc., 130 N.J. 51, 612 A.2d 932 (1992).

End of Document

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

65.Generally, 25 C.J.S. Damages 65

25 C.J.S. Damages 65
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(2) Breach of Contract
Topic Summary References Correlation Table
65. Generally
West's Key Number Digest
West's Key Number Digest, Damages 45
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

65.Generally, 25 C.J.S. Damages 65

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).

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65.Generally, 25 C.J.S. Damages 65

7
8
9
10
11
12
13
14
15
16

Ky.Tri-State Developers, Inc. v. Moore, 343 S.W.2d 812 (Ky. 1961).


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).
N.M.Price v. Van Lint, 46 N.M. 58, 120 P.2d 611 (1941).
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).
U.S.Otis Elevator Co. v. Standard Const. Co., 92 F. Supp. 603 (D. Minn. 1950).

End of Document

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2015 Thomson Reuters. No claim to original U.S. Government Works.

66.Expenses incurred in reliance on contract, 25 C.J.S. Damages 66

25 C.J.S. Damages 66
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(2) Breach of Contract
Topic Summary References Correlation Table
66. Expenses incurred in reliance on contract
West's Key Number Digest
West's Key Number Digest, Damages 45
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

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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
Md.CR-RSC Tower I, LLC v. RSC Tower I, LLC, 2011 WL 5428785 (Md. Ct. Spec. App. 2011).
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).
Tex.Morgan v. Young, 203 S.W.2d 837 (Tex. Civ. App. Beaumont 1947), writ refused n.r.e.
Tex.Morgan v. Young, 203 S.W.2d 837 (Tex. Civ. App. Beaumont 1947), writ refused n.r.e.
U.S.Gruber v. S-M News Co., 126 F. Supp. 442 (S.D. N.Y. 1954).
Md.CR-RSC Tower I, LLC v. RSC Tower I, LLC, 2011 WL 5428785 (Md. Ct. Spec. App. 2011).
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).
Conn.Manning v. Pounds, 2 Conn. Cir. Ct. 344, 199 A.2d 188 (App. Div. 1963).
Ky.Linde v. Ellis, 224 Ky. 649, 6 S.W.2d 1089 (1928).
Conn.Manning v. Pounds, 2 Conn. Cir. Ct. 344, 199 A.2d 188 (App. Div. 1963).
Md.CR-RSC Tower I, LLC v. RSC Tower I, LLC, 2011 WL 5428785 (Md. Ct. Spec. App. 2011).
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).
Md.CR-RSC Tower I, LLC v. RSC Tower I, LLC, 2011 WL 5428785 (Md. Ct. Spec. App. 2011).

End of Document

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2015 Thomson Reuters. No claim to original U.S. Government Works.

67.Generally, 25 C.J.S. Damages 67

25 C.J.S. Damages 67
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(3) Injuries to Person
(a) In General
Topic Summary References Correlation Table
67. Generally
West's Key Number Digest
West's Key Number Digest, Damages 43
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.

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67.Generally, 25 C.J.S. Damages 67

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
Conn.Moiger v. Connecticut Ice Cream Co., 146 Conn. 551, 152 A.2d 925 (1959).
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).
U.S.Chavez v. U.S., 192 F. Supp. 263 (D. Mont. 1961).
U.S.Chavez v. U.S., 192 F. Supp. 263 (D. Mont. 1961).
U.S.Chavez v. U.S., 192 F. Supp. 263 (D. Mont. 1961).
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

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68.Living expenses, 25 C.J.S. Damages 68

25 C.J.S. Damages 68
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(3) Injuries to Person
(a) In General
Topic Summary References Correlation Table
68. Living expenses
West's Key Number Digest
West's Key Number Digest, Damages 43
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

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69.Necessary and reasonable expenses, generally, 25 C.J.S. Damages 69

25 C.J.S. Damages 69
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(3) Injuries to Person
(b) Medical Attention, Medicine, and Nursing
Topic Summary References Correlation Table
69. Necessary and reasonable expenses, generally
West's Key Number Digest
West's Key Number Digest, Damages 43
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

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69.Necessary and reasonable expenses, generally, 25 C.J.S. Damages 69

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

CUMULATIVE SUPPLEMENT
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).

2015 Thomson Reuters. No claim to original U.S. Government Works.

69.Necessary and reasonable expenses, generally, 25 C.J.S. Damages 69

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).
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
Fla.Wise v. Carter, 119 So. 2d 40 (Fla. Dist. Ct. App. 1st Dist. 1960).
Cal.Tomey v. Dyson, 76 Cal. App. 2d 212, 172 P.2d 739 (3d Dist. 1946).
N.C.Mintz v. Atlantic Coast Line R. Co., 233 N.C. 607, 65 S.E.2d 120 (1951).
Fla.Plana v. Sainz, 990 So. 2d 554 (Fla. Dist. Ct. App. 3d Dist. 2008).
Mo.Meyer ex rel. Coplin v. Fluor Corp., 220 S.W.3d 712 (Mo. 2007).
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

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70.Transportation of plaintiff for treatment, 25 C.J.S. Damages 70

25 C.J.S. Damages 70
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(3) Injuries to Person
(b) Medical Attention, Medicine, and Nursing
Topic Summary References Correlation Table
70. Transportation of plaintiff for treatment
West's Key Number Digest
West's Key Number Digest, Damages 43
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).

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70.Transportation of plaintiff for treatment, 25 C.J.S. Damages 70

End of Document

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71.Services in furtherance of lawsuit, 25 C.J.S. Damages 71

25 C.J.S. Damages 71
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(3) Injuries to Person
(b) Medical Attention, Medicine, and Nursing
Topic Summary References Correlation Table
71. Services in furtherance of lawsuit
West's Key Number Digest
West's Key Number Digest, Damages 43
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

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72.Necessity of payment or liability therefor, 25 C.J.S. Damages 72

25 C.J.S. Damages 72
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(3) Injuries to Person
(b) Medical Attention, Medicine, and Nursing
Topic Summary References Correlation Table
72. Necessity of payment or liability therefor
West's Key Number Digest
West's Key Number Digest, Damages 43, 46
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

Cal.Howell v. Hamilton Meats & Provisions, Inc., 52 Cal. 4th 541, 129 Cal. Rptr. 3d 325, 257 P.3d 1130 (2011).
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).
U.S.Evans v. Pennsylvania R Co, 255 F.2d 205, 70 A.L.R.2d 158 (3d Cir. 1958).
Cal.Howell v. Hamilton Meats & Provisions, Inc., 52 Cal. 4th 541, 129 Cal. Rptr. 3d 325, 257 P.3d 1130 (2011).
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).

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72.Necessity of payment or liability therefor, 25 C.J.S. Damages 72

End of Document

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73.Necessity of payment or liability thereforMedical..., 25 C.J.S. Damages 73

25 C.J.S. Damages 73
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(3) Injuries to Person
(b) Medical Attention, Medicine, and Nursing
Topic Summary References Correlation Table
73. Necessity of payment or liability thereforMedical
services provided gratuitously; care by family members
West's Key Number Digest
West's Key Number Digest, Damages 43, 46
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).
U.S.Evans v. Pennsylvania R Co, 255 F.2d 205, 70 A.L.R.2d 158 (3d Cir. 1958).

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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).
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

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74.Necessity of payment or liability thereforCharges..., 25 C.J.S. Damages 74

25 C.J.S. Damages 74
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(3) Injuries to Person
(b) Medical Attention, Medicine, and Nursing
Topic Summary References Correlation Table
74. Necessity of payment or liability thereforCharges paid
or reimbursed by defendant or by other individual or entity
West's Key Number Digest
West's Key Number Digest, Damages 43, 46
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

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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).
Cal.Howell v. Hamilton Meats & Provisions, Inc., 52 Cal. 4th 541, 129 Cal. Rptr. 3d 325, 257 P.3d 1130 (2011).

End of Document

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75.Future expenditures, 25 C.J.S. Damages 75

25 C.J.S. Damages 75
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(3) Injuries to Person
(b) Medical Attention, Medicine, and Nursing
Topic Summary References Correlation Table
75. Future expenditures
West's Key Number Digest
West's Key Number Digest, Damages 43
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

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75.Future expenditures, 25 C.J.S. Damages 75

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

CUMULATIVE SUPPLEMENT
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).

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75.Future expenditures, 25 C.J.S. Damages 75

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

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

76.Future expendituresMedical monitoring, 25 C.J.S. Damages 76

25 C.J.S. Damages 76
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(3) Injuries to Person
(b) Medical Attention, Medicine, and Nursing
Topic Summary References Correlation Table
76. Future expendituresMedical monitoring
West's Key Number Digest
West's Key Number Digest, Damages 43
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

CUMULATIVE SUPPLEMENT
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]

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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
Mass.Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 914 N.E.2d 891 (2009).

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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

77.Generally, 25 C.J.S. Damages 77

25 C.J.S. Damages 77
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(4) Damage to Property
(a) In General
Topic Summary References Correlation Table
77. Generally
West's Key Number Digest
West's Key Number Digest, Damages 44, 46
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

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77.Generally, 25 C.J.S. Damages 77

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).

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77.Generally, 25 C.J.S. Damages 77

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).
U.S.Gaines Towing and Transp., Inc. v. Atlantia Tanker Corp., 191 F.3d 633 (5th Cir. 1999).
Conn.Hedderman v. Robert Hall of Waterbury, Inc., 145 Conn. 410, 144 A.2d 60 (1958).
U.S.Gaines Towing and Transp., Inc. v. Atlantia Tanker Corp., 191 F.3d 633 (5th Cir. 1999).
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).
Conn.Hedderman v. Robert Hall of Waterbury, Inc., 145 Conn. 410, 144 A.2d 60 (1958).
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

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78.Deprivation, or loss of use of property, 25 C.J.S. Damages 78

25 C.J.S. Damages 78
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(4) Damage to Property
(a) In General
Topic Summary References Correlation Table
78. Deprivation, or loss of use of property
West's Key Number Digest
West's Key Number Digest, Damages 39
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.

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78.Deprivation, or loss of use of property, 25 C.J.S. Damages 78

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

CUMULATIVE SUPPLEMENT
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).

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78.Deprivation, or loss of use of property, 25 C.J.S. Damages 78

12
13
14
15

Tex.Powell Elec. Systems, Inc. v. Hewlett Packard Co., 2011 WL 1598758 (Tex. App. Houston 1st Dist. 2011).
U.S.Schonfeld v. Hilliard, 218 F.3d 164 (2d Cir. 2000).
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

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79.Amounts paid out to third persons, 25 C.J.S. Damages 79

25 C.J.S. Damages 79
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(4) Damage to Property
(a) In General
Topic Summary References Correlation Table
79. Amounts paid out to third persons
West's Key Number Digest
West's Key Number Digest, Damages 44, 46
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
N.D.Truscott v. Peterson, 78 N.D. 498, 50 N.W.2d 245 (1951).
2
3
Donations to charity
N.D.Truscott v. Peterson, 78 N.D. 498, 50 N.W.2d 245 (1951).

End of Document

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80.Generally, 25 C.J.S. Damages 80

25 C.J.S. Damages 80
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(4) Damage to Property
(b) Motor Vehicles
Topic Summary References Correlation Table
80. Generally
West's Key Number Digest
West's Key Number Digest, Damages 44, 46
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

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80.Generally, 25 C.J.S. Damages 80

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).
Miss.Vining v. Smith, 213 Miss. 850, 58 So. 2d 34 (1952).
OhioBingham v. Slabach, 2008-Ohio-5555, 2008 WL 4712593 (OhioCt. App. 5th Dist. Stark County 2008).
Miss.Vining v. Smith, 213 Miss. 850, 58 So. 2d 34 (1952).
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

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81.Deprivation or loss of use of vehicle, 25 C.J.S. Damages 81

25 C.J.S. Damages 81
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(4) Damage to Property
(b) Motor Vehicles
Topic Summary References Correlation Table
81. Deprivation or loss of use of vehicle
West's Key Number Digest
West's Key Number Digest, Damages 39
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
U.S.Insurance Co. of North America v. Saltzman, 111 F. Supp. 694 (W.D. Ark. 1953).
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).
Kan.Peterson v. Bachar, 193 Kan. 161, 392 P.2d 853 (1964).
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).

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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
Wash.Holmes v. Raffo, 60 Wash. 2d 421, 374 P.2d 536 (1962).

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
Kan.Peterson v. Bachar, 193 Kan. 161, 392 P.2d 853 (1964).
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).
Tex.Cogbill v. Martin, 308 S.W.2d 269 (Tex. Civ. App. Waco 1957).
La.Le Blanc v. Southern Farm Bureau Cas. Ins. Co., 104 So. 2d 279 (La. Ct. App. 1st Cir. 1958).
Tex.Cogbill v. Martin, 308 S.W.2d 269 (Tex. Civ. App. Waco 1957).

End of Document

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82.Cost of hiring another vehicle and paying wages of driver, 25 C.J.S. Damages 82

25 C.J.S. Damages 82
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(4) Damage to Property
(b) Motor Vehicles
Topic Summary References Correlation Table
82. Cost of hiring another vehicle and paying wages of driver
West's Key Number Digest
West's Key Number Digest, Damages 44, 46
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

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82.Cost of hiring another vehicle and paying wages of driver, 25 C.J.S. Damages 82

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
La.Alderman v. Henderson, 130 So. 2d 157 (La. Ct. App. 2d Cir. 1961).
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).
U.S.Insurance Co. of North America v. Saltzman, 111 F. Supp. 694 (W.D. Ark. 1953).
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).

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82.Cost of hiring another vehicle and paying wages of driver, 25 C.J.S. Damages 82

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.Buchanan v. Leonard, 127 F. Supp. 120 (D. Colo. 1954).
U.S.McDonald v. Patton, 240 F.2d 424 (4th Cir. 1957).
Miss.Vining v. Smith, 213 Miss. 850, 58 So. 2d 34 (1952).
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

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83.Generally, 25 C.J.S. Damages 83

25 C.J.S. Damages 83
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(5) Expenses of Litigation and Attorney's Fees
Topic Summary References Correlation Table
83. Generally
West's Key Number Digest
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

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83.Generally, 25 C.J.S. Damages 83

Losing party.
A losing party is not entitled to attorney's fees. 20

CUMULATIVE SUPPLEMENT
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).
U.S.Amusement Industry, Inc. v. Stern, 786 F. Supp. 2d 741 (S.D. N.Y. 2011).
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).

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83.Generally, 25 C.J.S. Damages 83

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).
Ill.Ritter v. Ritter, 381 Ill. 549, 46 N.E.2d 41 (1943).
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).
Va.Hiss v. Friedberg, 201 Va. 572, 112 S.E.2d 871, 4 A.L.R.3d 261 (1960).
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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

84.Statutory authorization, 25 C.J.S. Damages 84

25 C.J.S. Damages 84
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(5) Expenses of Litigation and Attorney's Fees
Topic Summary References Correlation Table
84. Statutory authorization
West's Key Number Digest
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

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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
U.S.Amusement Industry, Inc. v. Stern, 786 F. Supp. 2d 741 (S.D. N.Y. 2011).
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

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85.Contractual authorization, 25 C.J.S. Damages 85

25 C.J.S. Damages 85
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(5) Expenses of Litigation and Attorney's Fees
Topic Summary References Correlation Table
85. Contractual authorization
West's Key Number Digest
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
U.S.Amusement Industry, Inc. v. Stern, 786 F. Supp. 2d 741 (S.D. N.Y. 2011).
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

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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

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86.In connection with exemplary damages, 25 C.J.S. Damages 86

25 C.J.S. Damages 86
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(5) Expenses of Litigation and Attorney's Fees
Topic Summary References Correlation Table
86. In connection with exemplary damages
West's Key Number Digest
West's Key Number Digest, Damages 70.1, 71
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).

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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

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87.Expenses in collateral proceedings, 24 C.J.S. Damages 87

24 C.J.S. Damages 87
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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
c. Expenses
(5) Expenses of Litigation and Attorney's Fees
Topic Summary References Correlation Table
87. Expenses in collateral proceedings
West's Key Number Digest
West's Key Number Digest, Damages 73
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

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87.Expenses in collateral proceedings, 24 C.J.S. Damages 87

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

CUMULATIVE SUPPLEMENT
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).

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87.Expenses in collateral proceedings, 24 C.J.S. Damages 87

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).
Va.Hiss v. Friedberg, 201 Va. 572, 112 S.E.2d 871, 4 A.L.R.3d 261 (1960).
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).

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87.Expenses in collateral proceedings, 24 C.J.S. Damages 87

12
13
14

15
16
17
18
19
20
21
22
23
24
25

Mo.Essex Contracting, Inc. v. Jefferson County, 277 S.W.3d 647 (Mo. 2009).
Va.Hiss v. Friedberg, 201 Va. 572, 112 S.E.2d 871, 4 A.L.R.3d 261 (1960).
IowaTurner v. Zip Motors, 245 Iowa 1091, 65 N.W.2d 427, 45 A.L.R.2d 1174 (1954).
Mo.Essex Contracting, Inc. v. Jefferson County, 277 S.W.3d 647 (Mo. 2009).
U.S.Amusement Industry, Inc. v. Stern, 786 F. Supp. 2d 741 (S.D. N.Y. 2011).
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).
IowaTurner v. Zip Motors, 245 Iowa 1091, 65 N.W.2d 427, 45 A.L.R.2d 1174 (1954).
IowaTurner v. Zip Motors, 245 Iowa 1091, 65 N.W.2d 427, 45 A.L.R.2d 1174 (1954).
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).
Ill.Ritter v. Ritter, 381 Ill. 549, 46 N.E.2d 41 (1943).
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

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88.Generally, 25 C.J.S. Damages 88

25 C.J.S. Damages 88
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
d. Interest
(1) In General
Topic Summary References Correlation Table
88. Generally
West's Key Number Digest
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

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88.Generally, 25 C.J.S. Damages 88

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
Measure and elements of damages for breach of contract to lend money, 4 A.L.R.4th 682.
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.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).
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).
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.McCullough v. Waterside Associates, 102 Conn. App. 23, 925 A.2d 352 (2007).
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

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89.In equity, 25 C.J.S. Damages 89

25 C.J.S. Damages 89
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
d. Interest
(1) In General
Topic Summary References Correlation Table
89. In equity
West's Key Number Digest
West's Key Number Digest, Damages 67
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

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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

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90.Generally, 25 C.J.S. Damages 90

25 C.J.S. Damages 90
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
d. Interest
(2) Breach of Contract
Topic Summary References Correlation Table
90. Generally
West's Key Number Digest
West's Key Number Digest, Damages 68
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.

2015 Thomson Reuters. No claim to original U.S. Government Works.

90.Generally, 25 C.J.S. Damages 90

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
Measure and elements of damages for breach of contract to lend money, 4 A.L.R.4th 682.
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).
N.Y.Agostini v. State, 255 A.D. 264, 5 N.Y.S.2d 732 (3d Dep't 1938).
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

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91.Time at which right to interest accrues, 25 C.J.S. Damages 91

25 C.J.S. Damages 91
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
d. Interest
(2) Breach of Contract
Topic Summary References Correlation Table
91. Time at which right to interest accrues
West's Key Number Digest
West's Key Number Digest, Damages 68
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
Measure and elements of damages for breach of contract to lend money, 4 A.L.R.4th 682.
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).

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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

2015 Thomson Reuters. No claim to original U.S. Government Works.

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92.Interest and damages distinguished, 25 C.J.S. Damages 92

25 C.J.S. Damages 92
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
d. Interest
(2) Breach of Contract
Topic Summary References Correlation Table
92. Interest and damages distinguished
West's Key Number Digest
West's Key Number Digest, Damages 68
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

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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
Measure and elements of damages for breach of contract to lend money, 4 A.L.R.4th 682.
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).
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).
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

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93.Unliquidated claims, 25 C.J.S. Damages 93

25 C.J.S. Damages 93
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
d. Interest
(2) Breach of Contract
Topic Summary References Correlation Table
93. Unliquidated claims
West's Key Number Digest
West's Key Number Digest, Damages 68
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.

2015 Thomson Reuters. No claim to original U.S. Government Works.

93.Unliquidated claims, 25 C.J.S. Damages 93

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).
Ky.Tri-State Developers, Inc. v. Moore, 343 S.W.2d 812 (Ky. 1961).
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).

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93.Unliquidated claims, 25 C.J.S. Damages 93

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
Measure and elements of damages for breach of contract to lend money, 4 A.L.R.4th 682.
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

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94.Building and construction contracts, 25 C.J.S. Damages 94

25 C.J.S. Damages 94
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
d. Interest
(2) Breach of Contract
Topic Summary References Correlation Table
94. Building and construction contracts
West's Key Number Digest
West's Key Number Digest, Damages 69
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

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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

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95.Generally, 25 C.J.S. Damages 95

25 C.J.S. Damages 95
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
d. Interest
(3) Torts
Topic Summary References Correlation Table
95. Generally
West's Key Number Digest
West's Key Number Digest, Damages 69
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

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95.Generally, 25 C.J.S. Damages 95

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
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

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).
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

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96.Recovery as matter of right or discretion, 25 C.J.S. Damages 96

25 C.J.S. Damages 96
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
d. Interest
(3) Torts
Topic Summary References Correlation Table
96. Recovery as matter of right or discretion
West's Key Number Digest
West's Key Number Digest, Damages 69
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).

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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

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97.Wrongs to person, 25 C.J.S. Damages 97

25 C.J.S. Damages 97
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
d. Interest
(3) Torts
Topic Summary References Correlation Table
97. Wrongs to person
West's Key Number Digest
West's Key Number Digest, Damages 69
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).

2015 Thomson Reuters. No claim to original U.S. Government Works.

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

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98.Wrongs to personal property, 25 C.J.S. Damages 98

25 C.J.S. Damages 98
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
d. Interest
(3) Torts
Topic Summary References Correlation Table
98. Wrongs to personal property
West's Key Number Digest
West's Key Number Digest, Damages 69
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

Unliquidated damages.
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

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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

Pa.Conover v. Bloom., 269 Pa. 548, 112 A. 752 (1921).


Ala.Hunt v. Ward, 262 Ala. 379, 79 So. 2d 20 (1955).
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).
N.H.Emery v. Tilo Roofing Co., 89 N.H. 165, 195 A. 409 (1937).
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).
Ala.Hunt v. Ward, 262 Ala. 379, 79 So. 2d 20 (1955).
N.Y.Johnson v. Scholz, 276 A.D. 163, 93 N.Y.S.2d 334 (2d Dep't 1949).

End of Document

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99.Wrongs to real property, 25 C.J.S. Damages 99

25 C.J.S. Damages 99
Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
1. Pecuniary Losses
d. Interest
(3) Torts
Topic Summary References Correlation Table
99. Wrongs to real property
West's Key Number Digest
West's Key Number Digest, Damages 69
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

Unliquidated damages.

2015 Thomson Reuters. No claim to original U.S. Government Works.

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
Pa.Conover v. Bloom., 269 Pa. 548, 112 A. 752 (1921).
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).
S.C.Knight v. Sullivan Power Co., 140 S.C. 296, 138 S.E. 818 (1927).
S.C.Knight v. Sullivan Power Co., 140 S.C. 296, 138 S.E. 818 (1927).
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

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100.Disease and physical impairment, 25 C.J.S. Damages 100

25 C.J.S. Damages 100


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
2. Physical and Mental Impairment; Exposure to Danger
Topic Summary References Correlation Table
100. Disease and physical impairment
West's Key Number Digest
West's Key Number Digest, Damages 30, 32, 38
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.

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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).
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).
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).
La.Alderman v. Henderson, 130 So. 2d 157 (La. Ct. App. 2d Cir. 1961).
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

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101.Disease and physical impairmentDisfigurement, 25 C.J.S. Damages 101

25 C.J.S. Damages 101


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
2. Physical and Mental Impairment; Exposure to Danger
Topic Summary References Correlation Table
101. Disease and physical impairmentDisfigurement
West's Key Number Digest
West's Key Number Digest, Damages 32
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).
Tenn.Palanki ex rel. Palanki v. Vanderbilt University, 215 S.W.3d 380 (Tenn. Ct. App. 2006).
Tex.Figueroa v. Davis, 318 S.W.3d 53 (Tex. App. Houston 1st Dist. 2010).

End of Document

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102.Impairment of mental faculties, 25 C.J.S. Damages 102

25 C.J.S. Damages 102


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
2. Physical and Mental Impairment; Exposure to Danger
Topic Summary References Correlation Table
102. Impairment of mental faculties
West's Key Number Digest
West's Key Number Digest, Damages 30
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

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103.Exposure to danger, 25 C.J.S. Damages 103

25 C.J.S. Damages 103


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
2. Physical and Mental Impairment; Exposure to Danger
Topic Summary References Correlation Table
103. Exposure to danger
West's Key Number Digest
West's Key Number Digest, Damages 30
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

104.Generally, 25 C.J.S. Damages 104

25 C.J.S. Damages 104


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
3. Physical and Mental Pain and Suffering
a. Physical Pain and Suffering
Topic Summary References Correlation Table
104. Generally
West's Key Number Digest
West's Key Number Digest, Damages 32 to 34
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

104.Generally, 25 C.J.S. Damages 104

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

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

105.Future pain, 25 C.J.S. Damages 105

25 C.J.S. Damages 105


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
3. Physical and Mental Pain and Suffering
a. Physical Pain and Suffering
Topic Summary References Correlation Table
105. Future pain
West's Key Number Digest
West's Key Number Digest, Damages 32
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).
Tenn.Palanki ex rel. Palanki v. Vanderbilt University, 215 S.W.3d 380 (Tenn. Ct. App. 2006).
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).
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).
N.H.Dunham v. Stone, 96 N.H. 138, 71 A.2d 412 (1950).
Wis.Peterson v. Western Cas. & Sur. Co., 5 Wis. 2d 535, 93 N.W.2d 433 (1958).

End of Document

2015 Thomson Reuters. No claim to original U.S. Government Works.

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106.Generally, 25 C.J.S. Damages 106

25 C.J.S. Damages 106


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
3. Physical and Mental Pain and Suffering
b. Mental Pain and Suffering
(1) In General
Topic Summary References Correlation Table
106. Generally
West's Key Number Digest
West's Key Number Digest, Damages 57.1
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.

2015 Thomson Reuters. No claim to original U.S. Government Works.

106.Generally, 25 C.J.S. Damages 106

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

CUMULATIVE SUPPLEMENT
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
Cal.Erlich v. Menezes, 21 Cal. 4th 543, 87 Cal. Rptr. 2d 886, 981 P.2d 978 (1999).

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"

2015 Thomson Reuters. No claim to original U.S. Government Works.

106.Generally, 25 C.J.S. Damages 106

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.
IowaEstate of Pearson ex rel. Latta v. Interstate Power and Light Co., 700 N.W.2d 333 (Iowa 2005).

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
Md.McAlister v. Carl, 233 Md. 446, 197 A.2d 140, 15 A.L.R.3d 496 (1964).
IowaEstate of Pearson ex rel. Latta v. Interstate Power and Light Co., 700 N.W.2d 333 (Iowa 2005).
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

107.As independent ground of recovery, 25 C.J.S. Damages 107

25 C.J.S. Damages 107


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
3. Physical and Mental Pain and Suffering
b. Mental Pain and Suffering
(1) In General
Topic Summary References Correlation Table
107. As independent ground of recovery
West's Key Number Digest
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

107.As independent ground of recovery, 25 C.J.S. Damages 107

CUMULATIVE SUPPLEMENT
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).
U.S.Amos v. Prom, Inc., 115 F. Supp. 127 (N.D. Iowa 1953).
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.

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107.As independent ground of recovery, 25 C.J.S. Damages 107

14

Va.Harris v. Kreutzer, 271 Va. 188, 624 S.E.2d 24 (2006).

End of Document

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108.Persons of unsound mind; imaginary suffering or..., 25 C.J.S. Damages ...

25 C.J.S. Damages 108


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
3. Physical and Mental Pain and Suffering
b. Mental Pain and Suffering
(1) In General
Topic Summary References Correlation Table
108. Persons of unsound mind; imaginary suffering or hypersensitive mental disturbance
West's Key Number Digest
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).

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108.Persons of unsound mind; imaginary suffering or..., 25 C.J.S. Damages ...

End of Document

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109.Disfigurement, 25 C.J.S. Damages 109

25 C.J.S. Damages 109


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
3. Physical and Mental Pain and Suffering
b. Mental Pain and Suffering
(1) In General
Topic Summary References Correlation Table
109. Disfigurement
West's Key Number Digest
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

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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).
Tenn.Palanki ex rel. Palanki v. Vanderbilt University, 215 S.W.3d 380 (Tenn. Ct. App. 2006).
Tex.Figueroa v. Davis, 318 S.W.3d 53 (Tex. App. Houston 1st Dist. 2010).

End of Document

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110.Physical injury to plaintiff, 25 C.J.S. Damages 110

25 C.J.S. Damages 110


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
3. Physical and Mental Pain and Suffering
b. Mental Pain and Suffering
(2) Relationship to Other Injuries or Wrongs
Topic Summary References Correlation Table
110. Physical injury to plaintiff
West's Key Number Digest
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

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110.Physical injury to plaintiff, 25 C.J.S. Damages 110

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
Cal.Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 25 Cal. Rptr. 2d 550, 863 P.2d 795 (1993).

2
3
4
5
6
7

8
9
10
11
12

Inference of mental anguish


Va.Kondaurov v. Kerdasha, 271 Va. 646, 629 S.E.2d 181 (2006).
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).
U.S.Maldonado v. National Acme Co., 73 F.3d 642, 1996 FED App. 0019P (6th Cir. 1996).
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).
U.S.Maldonado v. National Acme Co., 73 F.3d 642, 1996 FED App. 0019P (6th Cir. 1996).
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).
Cal.Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 25 Cal. Rptr. 2d 550, 863 P.2d 795 (1993).
Colo.Gerick v. Brock, 120 Colo. 394, 210 P.2d 214 (1949).

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110.Physical injury to plaintiff, 25 C.J.S. Damages 110

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

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111.Mental pain and suffering of third party, 25 C.J.S. Damages 111

25 C.J.S. Damages 111


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
3. Physical and Mental Pain and Suffering
b. Mental Pain and Suffering
(2) Relationship to Other Injuries or Wrongs
Topic Summary References Correlation Table
111. Mental pain and suffering of third party
West's Key Number Digest
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

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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

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112.Injury to property, 25 C.J.S. Damages 112

25 C.J.S. Damages 112


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
3. Physical and Mental Pain and Suffering
b. Mental Pain and Suffering
(2) Relationship to Other Injuries or Wrongs
Topic Summary References Correlation Table
112. Injury to property
West's Key Number Digest
West's Key Number Digest, Damages 57.37 to 57.39
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

CUMULATIVE SUPPLEMENT
Cases:

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112.Injury to property, 25 C.J.S. Damages 112

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).
Cal.Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 25 Cal. Rptr. 2d 550, 863 P.2d 795 (1993).
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

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112.Injury to property, 25 C.J.S. Damages 112

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

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113.Breach of contract, 25 C.J.S. Damages 113

25 C.J.S. Damages 113


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
3. Physical and Mental Pain and Suffering
b. Mental Pain and Suffering
(2) Relationship to Other Injuries or Wrongs
Topic Summary References Correlation Table
113. Breach of contract
West's Key Number Digest
West's Key Number Digest, Damages 57.42, 57.43
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

113.Breach of contract, 25 C.J.S. Damages 113

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

CUMULATIVE SUPPLEMENT
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).
Cal.Acadia, California, Limited v. Herbert, 54 Cal. 2d 328, 5 Cal. Rptr. 686, 353 P.2d 294 (1960).
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

113.Breach of contract, 25 C.J.S. Damages 113

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).
Mich.Stewart v. Rudner, 349 Mich. 459, 84 N.W.2d 816 (1957).
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).
Cal.Erlich v. Menezes, 21 Cal. 4th 543, 87 Cal. Rptr. 2d 886, 981 P.2d 978 (1999).
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.
Mich.Stewart v. Rudner, 349 Mich. 459, 84 N.W.2d 816 (1957).

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).
Mich.Stewart v. Rudner, 349 Mich. 459, 84 N.W.2d 816 (1957).
Tex.City of Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997).
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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

114.Fright or shock, 25 C.J.S. Damages 114

25 C.J.S. Damages 114


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
3. Physical and Mental Pain and Suffering
b. Mental Pain and Suffering
(3) Particular Forms of Mental Suffering
Topic Summary References Correlation Table
114. Fright or shock
West's Key Number Digest
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

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).
Cal.Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 25 Cal. Rptr. 2d 550, 863 P.2d 795 (1993).
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).
Tex.City of Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997).
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).
Cal.Acadia, California, Limited v. Herbert, 54 Cal. 2d 328, 5 Cal. Rptr. 686, 353 P.2d 294 (1960).
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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

115.Humiliation, indignity, or insult, 25 C.J.S. Damages 115

25 C.J.S. Damages 115


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
3. Physical and Mental Pain and Suffering
b. Mental Pain and Suffering
(3) Particular Forms of Mental Suffering
Topic Summary References Correlation Table
115. Humiliation, indignity, or insult
West's Key Number Digest
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

CUMULATIVE SUPPLEMENT
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

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.

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116.Vexation or inconvenience, 25 C.J.S. Damages 116

25 C.J.S. Damages 116


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
3. Physical and Mental Pain and Suffering
b. Mental Pain and Suffering
(3) Particular Forms of Mental Suffering
Topic Summary References Correlation Table
116. Vexation or inconvenience
West's Key Number Digest
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

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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


Fla.Wald v. Grainger, 64 So. 3d 1201 (Fla. 2011).
U.S.Chesapeake & Potomac Tel. Co. v. Clay, 194 F.2d 888 (D.C. Cir. 1952).
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).
Md.McAlister v. Carl, 233 Md. 446, 197 A.2d 140, 15 A.L.R.3d 496 (1964).

End of Document

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117.Worry or apprehension about future consequences, 25 C.J.S. Damages 117

25 C.J.S. Damages 117


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
B. Particular Elements of Compensation
3. Physical and Mental Pain and Suffering
b. Mental Pain and Suffering
(3) Particular Forms of Mental Suffering
Topic Summary References Correlation Table
117. Worry or apprehension about future consequences
West's Key Number Digest
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

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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

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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

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Research References, 24 C.J.S. Damages IV C Refs.

24 C.J.S. Damages IV C Refs.


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.
IV. Compensatory Damages
C. Measure and Amount
Topic Summary Correlation Table
Research References
A.L.R. Library
A.L.R. Index, Damages
A.L.R. Index, Pain and Suffering
A.L.R. Index, Special Damages
A.L.R. Index, Speculative Damages
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

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118.Generally, 25 C.J.S. Damages 118

25 C.J.S. Damages 118


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
1. In General
Topic Summary References Correlation Table
118. Generally
West's Key Number Digest
West's Key Number Digest, Damages 95
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

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118.Generally, 25 C.J.S. Damages 118

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

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118.Generally, 25 C.J.S. Damages 118

CUMULATIVE SUPPLEMENT
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).
Ark.Young v. Barbera, 366 Ark. 120, 233 S.W.3d 651 (2006).
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).
S.C.Vaught v. A.O. Hardee & Sons, Inc., 366 S.C. 475, 623 S.E.2d 373 (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).
W.Va.Cook v. Cook, 216 W. Va. 353, 607 S.E.2d 459 (2004).
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).
Va.News Leader Co. v. Kocen, 173 Va. 95, 3 S.E.2d 385, 122 A.L.R. 842 (1939).
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).

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118.Generally, 25 C.J.S. Damages 118

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).
Neb.Singles v. Union Pac. R. Co., 174 Neb. 816, 119 N.W.2d 680 (1963).
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).
Md.DRD Pool Service, Inc. v. Freed, 416 Md. 46, 5 A.3d 45 (2010).

End of Document

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119.Discretion as to amount of damages, 25 C.J.S. Damages 119

25 C.J.S. Damages 119


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
1. In General
Topic Summary References Correlation Table
119. Discretion as to amount of damages
West's Key Number Digest
West's Key Number Digest, Damages 96
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).
Mont.Beaver v. Montana Dept. of Natural Resources and Conservation, 2003 MT 287, 318 Mont. 35, 78 P.3d 857
(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).

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119.Discretion as to amount of damages, 25 C.J.S. Damages 119

4
5
6
7
8
9

10
11

Okla.Estrada v. Port City Properties, Inc., 2011 OK 30, 258 P.3d 495 (Okla. 2011).
R.I.Perry v. Alessi, 890 A.2d 463 (R.I. 2006).
Wyo.Kerbs v. Walck, 2010 WY 53, 229 P.3d 974 (Wyo. 2010).
Ga.John Thurmond & Associates, Inc. v. Kennedy, 284 Ga. 469, 668 S.E.2d 666 (2008).
Conn.Commission on Human Rights and Opportunities ex rel. Arnold v. Forvil, 302 Conn. 263, 25 A.3d 632 (2011).
Wyo.Kerbs v. Walck, 2010 WY 53, 229 P.3d 974 (Wyo. 2010).
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.
Tex.Enright v. Goodman Distribution, Inc., 330 S.W.3d 392 (Tex. App. Houston 14th Dist. 2010).
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).

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120.Choice as to method of determination, 25 C.J.S. Damages 120

25 C.J.S. Damages 120


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
1. In General
Topic Summary References Correlation Table
120. Choice as to method of determination
West's Key Number Digest
West's Key Number Digest, Damages 95
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).
Neb.Colvin v. John Powell & Co., 163 Neb. 112, 77 N.W.2d 900 (1956).
Colo.Colorado Bridge & Const. Co. v. Preuit, 75 Colo. 107, 224 P. 222 (1924).
Neb.Colvin v. John Powell & Co., 163 Neb. 112, 77 N.W.2d 900 (1956).
Tex.John Hancock Mut. Life Ins. Co. v. Howard, 85 S.W.2d 986 (Tex. Civ. App. Waco 1935), writ refused.
Neb.Colvin v. John Powell & Co., 163 Neb. 112, 77 N.W.2d 900 (1956).

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120.Choice as to method of determination, 25 C.J.S. Damages 120

N.M.Industrial Supply Co. v. Goen, 58 N.M. 738, 276 P.2d 509 (1954).
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).

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121.Adequacy of award, 25 C.J.S. Damages 121

25 C.J.S. Damages 121


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
1. In General
Topic Summary References Correlation Table
121. Adequacy of award
West's Key Number Digest
West's Key Number Digest, Damages 127.1 to 127.3
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

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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).
D.C.Scott v. Crestar Financial Corp., 928 A.2d 680 (D.C. 2007).
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).
D.C.Scott v. Crestar Financial Corp., 928 A.2d 680 (D.C. 2007).
IdahoWeinstein v. Prudential Property and Cas. Ins. Co., 149 Idaho 299, 233 P.3d 1221 (2010).

End of Document

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122.Failure to perform, 25 C.J.S. Damages 122

25 C.J.S. Damages 122


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
a. Breach of Contract
(1) In General
Topic Summary References Correlation Table
122. Failure to perform
West's Key Number Digest
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

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122.Failure to perform, 25 C.J.S. Damages 122

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

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122.Failure to perform, 25 C.J.S. Damages 122

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

CUMULATIVE SUPPLEMENT
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).

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122.Failure to perform, 25 C.J.S. Damages 122

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
IowaRoyal Indem. Co. v. Factory Mut. Ins. Co., 786 N.W.2d 839 (Iowa 2010).
1
2
3
4
5
6
7

Rights and liabilities on breach of contract, see C.J.S., Contracts 754 to 756.
La.Corbello v. Iowa Production, 850 So. 2d 686 (La. 2003), as clarified on reh'g, (June 20, 2003).
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).
Va.Nichols Const. Corp. v. Virginia Machine Tool Co., LLC, 276 Va. 81, 661 S.E.2d 467 (2008).
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.
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).
Ala.Goolesby v. Koch Farms, LLC, 955 So. 2d 422 (Ala. 2006).
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).
Neb.Gary's Implement, Inc. v. Bridgeport Tractor Parts, Inc., 281 Neb. 281, 799 N.W.2d 249 (2011).
Nev.Dynalectric Co. of Nevada, Inc. v. Clark & Sullivan Constructors, Inc., 255 P.3d 286, 127 Nev. Adv. Op. No.
41 (Nev. 2011).
Pa.Helpin v. Trustees of University of Pennsylvania, 608 Pa. 45, 10 A.3d 267, 262 Ed. Law Rep. 932 (2010).
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.
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).
Ala.Goolesby v. Koch Farms, LLC, 955 So. 2d 422 (Ala. 2006).
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.

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122.Failure to perform, 25 C.J.S. Damages 122

10

Del.Paul v. Deloitte & Touche, LLP, 974 A.2d 140 (Del. 2009).
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).
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).
Colo.Goodyear Tire & Rubber Co. v. Holmes, 193 P.3d 821 (Colo. 2008).
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).
Nev.Dynalectric Co. of Nevada, Inc. v. Clark & Sullivan Constructors, Inc., 255 P.3d 286, 127 Nev. Adv. Op. No.
41 (Nev. 2011).
Conn.Hees v. Burke Const., Inc., 290 Conn. 1, 961 A.2d 373 (2009).
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).
Conn.FCM Group, Inc. v. Miller, 300 Conn. 774, 17 A.3d 40 (2011).
Conn.FCM Group, Inc. v. Miller, 300 Conn. 774, 17 A.3d 40 (2011).
Pa.Helpin v. Trustees of University of Pennsylvania, 608 Pa. 45, 10 A.3d 267, 262 Ed. Law Rep. 932 (2010).
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).

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122.Failure to perform, 25 C.J.S. Damages 122

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).
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).
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).
Cal.Amelco Electric v. City of Thousand Oaks, 27 Cal. 4th 228, 115 Cal. Rptr. 2d 900, 38 P.3d 1120 (2002).
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).
Nev.Dynalectric Co. of Nevada, Inc. v. Clark & Sullivan Constructors, Inc., 255 P.3d 286, 127 Nev. Adv. Op. No.
41 (Nev. 2011).
N.H.Jackson v. Morse, 152 N.H. 48, 871 A.2d 47 (2005).
Nev.Dynalectric Co. of Nevada, Inc. v. Clark & Sullivan Constructors, Inc., 255 P.3d 286, 127 Nev. Adv. Op. No.
41 (Nev. 2011).
N.H.Jackson v. Morse, 152 N.H. 48, 871 A.2d 47 (2005).
Nev.Dynalectric Co. of Nevada, Inc. v. Clark & Sullivan Constructors, Inc., 255 P.3d 286, 127 Nev. Adv. Op. No.
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.
N.H.Jackson v. Morse, 152 N.H. 48, 871 A.2d 47 (2005).
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).
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).
Nev.Dynalectric Co. of Nevada, Inc. v. Clark & Sullivan Constructors, Inc., 255 P.3d 286, 127 Nev. Adv. Op. No.
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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

123.Time of estimation; anticipatory breach, 25 C.J.S. Damages 123

25 C.J.S. Damages 123


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
a. Breach of Contract
(1) In General
Topic Summary References Correlation Table
123. Time of estimation; anticipatory breach
West's Key Number Digest
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.

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123.Time of estimation; anticipatory breach, 25 C.J.S. Damages 123

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

CUMULATIVE SUPPLEMENT
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).
Tex.Pollack v. Pollack, 46 S.W.2d 292 (Tex. Comm'n App. 1932).
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).

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123.Time of estimation; anticipatory breach, 25 C.J.S. Damages 123

Fla.Pallardy-Watrous Ins. Agency v. M. Tucker, Inc., 120 Fla. 895, 163 So. 284 (1935).
End of Document

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2015 Thomson Reuters. No claim to original U.S. Government Works.

124.Contractual stipulations, 25 C.J.S. Damages 124

25 C.J.S. Damages 124


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
a. Breach of Contract
(1) In General
Topic Summary References Correlation Table
124. Contractual stipulations
West's Key Number Digest
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

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124.Contractual stipulations, 25 C.J.S. Damages 124

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

CUMULATIVE SUPPLEMENT
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).

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124.Contractual stipulations, 25 C.J.S. Damages 124

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).
U.S.Otis Elevator Co. v. Standard Const. Co., 92 F. Supp. 603 (D. Minn. 1950).
Mass.Boylston Housing Corp. v. O'Toole, 321 Mass. 538, 74 N.E.2d 288, 172 A.L.R. 1251 (1947).

End of Document

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125.Part performance, 25 C.J.S. Damages 125

25 C.J.S. Damages 125


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
a. Breach of Contract
(1) In General
Topic Summary References Correlation Table
125. Part performance
West's Key Number Digest
West's Key Number Digest, Damages 121
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

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125.Part performance, 25 C.J.S. Damages 125

CUMULATIVE SUPPLEMENT
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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

126.Defective performance, 25 C.J.S. Damages 126

25 C.J.S. Damages 126


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
a. Breach of Contract
(1) In General
Topic Summary References Correlation Table
126. Defective performance
West's Key Number Digest
West's Key Number Digest, Damages 123
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

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126.Defective performance, 25 C.J.S. Damages 126

CUMULATIVE SUPPLEMENT
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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

127.Defective performanceBuilding or construction contract, 25 C.J.S. Damages 127

25 C.J.S. Damages 127


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
a. Breach of Contract
(1) In General
Topic Summary References Correlation Table
127. Defective performanceBuilding or construction contract
West's Key Number Digest
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

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127.Defective performanceBuilding or construction contract, 25 C.J.S. Damages 127

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

CUMULATIVE SUPPLEMENT
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

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127.Defective performanceBuilding or construction contract, 25 C.J.S. Damages 127

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
Va.Nichols Const. Corp. v. Virginia Machine Tool Co., LLC, 276 Va. 81, 661 S.E.2d 467 (2008).
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).
Conn.Hees v. Burke Const., Inc., 290 Conn. 1, 961 A.2d 373 (2009).
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
Va.Nichols Const. Corp. v. Virginia Machine Tool Co., LLC, 276 Va. 81, 661 S.E.2d 467 (2008).
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).
Conn.Naples v. Keystone Bldg. and Development Corp., 295 Conn. 214, 990 A.2d 326 (2010).
Va.Nichols Const. Corp. v. Virginia Machine Tool Co., LLC, 276 Va. 81, 661 S.E.2d 467 (2008).
Va.Nichols Const. Corp. v. Virginia Machine Tool Co., LLC, 276 Va. 81, 661 S.E.2d 467 (2008).
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).
Conn.Naples v. Keystone Bldg. and Development Corp., 295 Conn. 214, 990 A.2d 326 (2010).
Ga.John Thurmond & Associates, Inc. v. Kennedy, 284 Ga. 469, 668 S.E.2d 666 (2008).
IowaLewis Elec. Co. v. Miller, 791 N.W.2d 691 (Iowa 2010).

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127.Defective performanceBuilding or construction contract, 25 C.J.S. Damages 127

End of Document

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

128.Delay in performance, 25 C.J.S. Damages 128

25 C.J.S. Damages 128


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
a. Breach of Contract
(1) In General
Topic Summary References Correlation Table
128. Delay in performance
West's Key Number Digest
West's Key Number Digest, Damages 122
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

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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

CUMULATIVE SUPPLEMENT
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

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129.Prevention of performance, 25 C.J.S. Damages 129

25 C.J.S. Damages 129


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
a. Breach of Contract
(1) In General
Topic Summary References Correlation Table
129. Prevention of performance
West's Key Number Digest
West's Key Number Digest, Damages 124, 124(1) to 124(4)
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

129.Prevention of performance, 25 C.J.S. Damages 129

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.

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129.Prevention of performance, 25 C.J.S. Damages 129

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).
Vt.Norton & Lamphere Const. Co. v. Blow & Cote, Inc., 123 Vt. 130, 183 A.2d 230 (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).
Vt.Norton & Lamphere Const. Co. v. Blow & Cote, Inc., 123 Vt. 130, 183 A.2d 230 (1962).
N.Y.Clement S. Crystal Inc. v. Denberg, 237 N.Y.S.2d 102 (Sup 1962).
Vt.Norton & Lamphere Const. Co. v. Blow & Cote, Inc., 123 Vt. 130, 183 A.2d 230 (1962).
U.S.U.S. v. Purcell Envelope Co., 249 U.S. 313, 39 S. Ct. 300, 63 L. Ed. 620 (1919).
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).
Tenn.Allen v. Elliott Reynolds Motor Co., 33 Tenn. App. 179, 230 S.W.2d 418 (1950).
Cal.Carrier v. Piggly Wiggly of San Francisco, 11 Cal. App. 2d 180, 53 P.2d 400 (1st Dist. 1936).
U.S.U.S. v. Behan, 110 U.S. 338, 4 S. Ct. 81, 28 L. Ed. 168 (1884).
Kan.Taylor v. Spencer, 75 Kan. 152, 88 P. 544 (1907).
Tenn.Allen v. Elliott Reynolds Motor Co., 33 Tenn. App. 179, 230 S.W.2d 418 (1950).
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).
U.S.U.S. v. Behan, 110 U.S. 338, 4 S. Ct. 81, 28 L. Ed. 168 (1884).
Del.United Aircraft Corp. v. Paul Hardeman, Inc., 58 Del. 66, 204 A.2d 396 (Super. Ct. 1964).
Tenn.Allen v. Elliott Reynolds Motor Co., 33 Tenn. App. 179, 230 S.W.2d 418 (1950).
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).
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).

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129.Prevention of performance, 25 C.J.S. Damages 129

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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

130.Work, labor, or services, 25 C.J.S. Damages 130

25 C.J.S. Damages 130


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
a. Breach of Contract
(2) Particular Classes of Contracts
Topic Summary References Correlation Table
130. Work, labor, or services
West's Key Number Digest
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

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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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

131.Board, lodging, or support, 25 C.J.S. Damages 131

25 C.J.S. Damages 131


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
a. Breach of Contract
(2) Particular Classes of Contracts
Topic Summary References Correlation Table
131. Board, lodging, or support
West's Key Number Digest
West's Key Number Digest, Damages 120, 120(5)
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).

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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

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2015 Thomson Reuters. No claim to original U.S. Government Works.

132.Division of profits, losses, or expenses, 25 C.J.S. Damages 132

25 C.J.S. Damages 132


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
a. Breach of Contract
(2) Particular Classes of Contracts
Topic Summary References Correlation Table
132. Division of profits, losses, or expenses
West's Key Number Digest
West's Key Number Digest, Damages 120, 120(6)
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).

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2015 Thomson Reuters. No claim to original U.S. Government Works.

133.Granting special privileges or restraining competition, 25 C.J.S. Damages 133

25 C.J.S. Damages 133


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
a. Breach of Contract
(2) Particular Classes of Contracts
Topic Summary References Correlation Table
133. Granting special privileges or restraining competition
West's Key Number Digest
West's Key Number Digest, Damages 120, 120(7)
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

CUMULATIVE SUPPLEMENT
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

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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
IdahoTrilogy Network Systems, Inc. v. Johnson, 144 Idaho 844, 172 P.3d 1119 (2007).
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).
IdahoTrilogy Network Systems, Inc. v. Johnson, 144 Idaho 844, 172 P.3d 1119 (2007).
UtahTruGreen Companies, L.L.C. v. Mower Brothers, Inc., 2008 UT 81, 199 P.3d 929 (Utah 2008).
Neb.Gary's Implement, Inc. v. Bridgeport Tractor Parts, Inc., 281 Neb. 281, 799 N.W.2d 249 (2011).
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

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134.Payment or loan of money, 25 C.J.S. Damages 134

25 C.J.S. Damages 134


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
a. Breach of Contract
(2) Particular Classes of Contracts
Topic Summary References Correlation Table
134. Payment or loan of money
West's Key Number Digest
West's Key Number Digest, Damages 125
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.

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134.Payment or loan of money, 25 C.J.S. Damages 134

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).
U.S.Henderson v. National Fidelity Life Ins. Co., 257 F.2d 917 (10th Cir. 1958).
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).
N.Y.Agostini v. State, 255 A.D. 264, 5 N.Y.S.2d 732 (3d Dep't 1938).
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).

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134.Payment or loan of money, 25 C.J.S. Damages 134

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).
U.S.Henderson v. National Fidelity Life Ins. Co., 257 F.2d 917 (10th Cir. 1958).
Tex.Pollack v. Pollack, 39 S.W.2d 853 (Tex. Comm'n App. 1931).
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.M.Price v. Van Lint, 46 N.M. 58, 120 P.2d 611 (1941).
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.M.Price v. Van Lint, 46 N.M. 58, 120 P.2d 611 (1941).
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).
N.M.Price v. Van Lint, 46 N.M. 58, 120 P.2d 611 (1941).
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

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135.Payment or delivery of property, 25 C.J.S. Damages 135

25 C.J.S. Damages 135


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
a. Breach of Contract
(2) Particular Classes of Contracts
Topic Summary References Correlation Table
135. Payment or delivery of property
West's Key Number Digest
West's Key Number Digest, Damages 126
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.

2015 Thomson Reuters. No claim to original U.S. Government Works.

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

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

136.Betterment or improvement of land, 25 C.J.S. Damages 136

25 C.J.S. Damages 136


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
a. Breach of Contract
(2) Particular Classes of Contracts
Topic Summary References Correlation Table
136. Betterment or improvement of land
West's Key Number Digest
West's Key Number Digest, Damages 120, 120(3)
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).

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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).
S.C.Martin v. Seaboard Air Line Ry., 70 S.C. 8, 48 S.E. 616 (1904).
S.C.Martin v. Seaboard Air Line Ry., 70 S.C. 8, 48 S.E. 616 (1904).

End of Document

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

137.Generally, 25 C.J.S. Damages 137

25 C.J.S. Damages 137


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
b. Torts
Topic Summary References Correlation Table
137. Generally
West's Key Number Digest
West's Key Number Digest, Damages 95
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

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137.Generally, 25 C.J.S. Damages 137

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
Kan.Ablah v. Eyman, 188 Kan. 665, 365 P.2d 181, 90 A.L.R.2d 766 (1961).
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).
La.Dark v. Brinkman, 136 So. 2d 463 (La. Ct. App. 3d Cir. 1962).
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

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138.Measure for breach of contract compared, 25 C.J.S. Damages 138

25 C.J.S. Damages 138


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
b. Torts
Topic Summary References Correlation Table
138. Measure for breach of contract compared
West's Key Number Digest
West's Key Number Digest, Damages 95
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

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139.Generally, 25 C.J.S. Damages 139

25 C.J.S. Damages 139


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
c. Injuries to Person
Topic Summary References Correlation Table
139. Generally
West's Key Number Digest
West's Key Number Digest, Damages 95, 96
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.

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139.Generally, 25 C.J.S. Damages 139

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.
Me.Estate of Hoch v. Stifel, 2011 ME 24, 16 A.3d 137 (Me. 2011).

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).

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139.Generally, 25 C.J.S. Damages 139

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

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140.Plaintiff's age and condition and other personal factors, 25 C.J.S. Damages 140

25 C.J.S. Damages 140


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
c. Injuries to Person
Topic Summary References Correlation Table
140. Plaintiff's age and condition and other personal factors
West's Key Number Digest
West's Key Number Digest, Damages 95, 96
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).

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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

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141.Permanency of injury and life expectancy, 25 C.J.S. Damages 141

25 C.J.S. Damages 141


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
c. Injuries to Person
Topic Summary References Correlation Table
141. Permanency of injury and life expectancy
West's Key Number Digest
West's Key Number Digest, Damages 95, 96
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

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141.Permanency of injury and life expectancy, 25 C.J.S. Damages 141

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

La.Dark v. Brinkman, 136 So. 2d 463 (La. Ct. App. 3d Cir. 1962).
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).
Pa.Thirkell v. Equitable Gas Co., 307 Pa. 377, 161 A. 313 (1932).
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).
La.Dark v. Brinkman, 136 So. 2d 463 (La. Ct. App. 3d Cir. 1962).
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).

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141.Permanency of injury and life expectancy, 25 C.J.S. Damages 141

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

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142.Mathematical computation or certainty, 25 C.J.S. Damages 142

25 C.J.S. Damages 142


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
c. Injuries to Person
Topic Summary References Correlation Table
142. Mathematical computation or certainty
West's Key Number Digest
West's Key Number Digest, Damages 95, 96
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

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143.Present value, 25 C.J.S. Damages 143

25 C.J.S. Damages 143


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
c. Injuries to Person
Topic Summary References Correlation Table
143. Present value
West's Key Number Digest
West's Key Number Digest, Damages 95, 96
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
N.C.Mintz v. Atlantic Coast Line R. Co., 233 N.C. 607, 65 S.E.2d 120 (1951).
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).

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143.Present value, 25 C.J.S. Damages 143

End of Document

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144.Generally, 24 C.J.S. Damages 144

24 C.J.S. Damages 144


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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
d. Injuries to Property
(1) In General
Topic Summary References Correlation Table
144. Generally
West's Key Number Digest
West's Key Number Digest, Damages 103 to 105
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

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144.Generally, 24 C.J.S. Damages 144

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

CUMULATIVE SUPPLEMENT
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
D.C.American Service Center Associates v. Helton, 867 A.2d 235 (D.C. 2005).
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
D.C.American Service Center Associates v. Helton, 867 A.2d 235 (D.C. 2005).
4
D.C.American Service Center Associates v. Helton, 867 A.2d 235 (D.C. 2005).
5
La.Corbello v. Iowa Production, 850 So. 2d 686 (La. 2003), as clarified on reh'g, (June 20, 2003).
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).

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144.Generally, 24 C.J.S. Damages 144

8
9
10
11
12

13

14
15
16
17

Miss.Mississippi Power Co. v. Harrison, 247 Miss. 400, 152 So. 2d 892 (1963).
La.Adam v. English, 21 So. 2d 633 (La. Ct. App., Orleans 1945).
Miss.Mississippi Power Co. v. Harrison, 247 Miss. 400, 152 So. 2d 892 (1963).
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.
Colo.Goodyear Tire & Rubber Co. v. Holmes, 193 P.3d 821 (Colo. 2008).
Ind.Allgood v. Meridian Sec. Ins. Co., 836 N.E.2d 243 (Ind. 2005).
Mass.Rattigan v. Wile, 445 Mass. 850, 841 N.E.2d 680 (2006).
U.S.Beaufort & Morehead R. Co. v. The Damyank, 122 F. Supp. 82 (E.D. N.C. 1954).
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).
U.S.Beaufort & Morehead R. Co. v. The Damyank, 122 F. Supp. 82 (E.D. N.C. 1954).
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.Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179 (Mo. 2009).
Mo.Collier v. City of Oak Grove, 246 S.W.3d 923 (Mo. 2008).

End of Document

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

145.Deprivation of use, 25 C.J.S. Damages 145

25 C.J.S. Damages 145


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
d. Injuries to Property
(1) In General
Topic Summary References Correlation Table
145. Deprivation of use
West's Key Number Digest
West's Key Number Digest, Damages 106
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

CUMULATIVE SUPPLEMENT
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).

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145.Deprivation of use, 25 C.J.S. Damages 145

End of Document

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

146.Total loss or destruction, 25 C.J.S. Damages 146

25 C.J.S. Damages 146


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
d. Injuries to Property
(2) Injuries to Personal Property
(a) In General
Topic Summary References Correlation Table
146. Total loss or destruction
West's Key Number Digest
West's Key Number Digest, Damages 105, 113
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

146.Total loss or destruction, 25 C.J.S. Damages 146

CUMULATIVE SUPPLEMENT
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.
Mo.Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179 (Mo. 2009).
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.
D.C.Trustees of University of Dist. of Columbia v. Vossoughi, 963 A.2d 1162, 241 Ed. Law Rep. 234 (D.C. 2009).
Tex.Cogbill v. Martin, 308 S.W.2d 269 (Tex. Civ. App. Waco 1957).
Wyo.Wilcox v. Herbst, 75 Wyo. 289, 295 P.2d 755 (1956).
U.S.Buchanan v. Leonard, 127 F. Supp. 120 (D. Colo. 1954).
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).
Kan.Peterson v. Bachar, 193 Kan. 161, 392 P.2d 853 (1964).
Wyo.Rocky Mountain Packing Co. v. Branney, 393 P.2d 131 (Wyo. 1964).
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).
Mo.Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179 (Mo. 2009).
Mo.Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179 (Mo. 2009).
D.C.Trustees of University of Dist. of Columbia v. Vossoughi, 963 A.2d 1162, 241 Ed. Law Rep. 234 (D.C. 2009).

End of Document

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

147.Injuries short of loss or destruction, 24 C.J.S. Damages 147

24 C.J.S. Damages 147


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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
d. Injuries to Property
(2) Injuries to Personal Property
(a) In General
Topic Summary References Correlation Table
147. Injuries short of loss or destruction
West's Key Number Digest
West's Key Number Digest, Damages 113
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

147.Injuries short of loss or destruction, 24 C.J.S. Damages 147

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

CUMULATIVE SUPPLEMENT
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).
Colo.Goodyear Tire & Rubber Co. v. Holmes, 193 P.3d 821 (Colo. 2008).
D.C.American Service Center Associates v. Helton, 867 A.2d 235 (D.C. 2005).
Va.Kondaurov v. Kerdasha, 271 Va. 646, 629 S.E.2d 181 (2006).
W.Va.Carbasho v. Musulin, 217 W. Va. 359, 618 S.E.2d 368 (2005).
Va.Kondaurov v. Kerdasha, 271 Va. 646, 629 S.E.2d 181 (2006).
Colo.Goodyear Tire & Rubber Co. v. Holmes, 193 P.3d 821 (Colo. 2008).
IowaAg Partners, L.L.C. v. Chicago Cent. & Pacific R. Co., 726 N.W.2d 711 (Iowa 2007).
Okla.Brennen v. Aston, 2003 OK 91, 84 P.3d 99 (Okla. 2003).
IowaAg Partners, L.L.C. v. Chicago Cent. & Pacific R. Co., 726 N.W.2d 711 (Iowa 2007).
IowaAg Partners, L.L.C. v. Chicago Cent. & Pacific R. Co., 726 N.W.2d 711 (Iowa 2007).
D.C.American Service Center Associates v. Helton, 867 A.2d 235 (D.C. 2005).
Okla.Brennen v. Aston, 2003 OK 91, 84 P.3d 99 (Okla. 2003).

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147.Injuries short of loss or destruction, 24 C.J.S. Damages 147

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).
IowaAg Partners, L.L.C. v. Chicago Cent. & Pacific R. Co., 726 N.W.2d 711 (Iowa 2007).

End of Document

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

148.Generally, 25 C.J.S. Damages 148

25 C.J.S. Damages 148


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
d. Injuries to Property
(2) Injuries to Personal Property
(b) Detention or Deprivation of Use
Topic Summary References Correlation Table
148. Generally
West's Key Number Digest
West's Key Number Digest, Damages 106, 113
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

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148.Generally, 25 C.J.S. Damages 148

CUMULATIVE SUPPLEMENT
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).
Wash.Holmes v. Raffo, 60 Wash. 2d 421, 374 P.2d 536 (1962).
La.Skinner v. Scott, 238 La. 868, 116 So. 2d 696 (1959).
Miss.Mississippi Power Co. v. Harrison, 247 Miss. 400, 152 So. 2d 892 (1963).
Mo.Orr v. Williams, 379 S.W.2d 181 (Mo. Ct. App. 1964).
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

149.Loss of use of motor vehicle, 25 C.J.S. Damages 149

25 C.J.S. Damages 149


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
d. Injuries to Property
(2) Injuries to Personal Property
(b) Detention or Deprivation of Use
Topic Summary References Correlation Table
149. Loss of use of motor vehicle
West's Key Number Digest
West's Key Number Digest, Damages 106, 113
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,

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149.Loss of use of motor vehicle, 25 C.J.S. Damages 149

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).
Wash.Holmes v. Raffo, 60 Wash. 2d 421, 374 P.2d 536 (1962).
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).

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149.Loss of use of motor vehicle, 25 C.J.S. Damages 149

13
14
15

16
17
18
19
20
21

Cal.Pfingsten v. Westenhaver, 39 Cal. 2d 12, 244 P.2d 395 (1952).


La.Skinner v. Scott, 238 La. 868, 116 So. 2d 696 (1959).
La.Adam v. English, 21 So. 2d 633 (La. Ct. App., Orleans 1945).
IowaPugh v. Queal Lumber Co., 193 Iowa 924, 188 N.W. 1 (1922).
IdahoJaquith v. Stanger, 79 Idaho 49, 310 P.2d 805 (1957).
Miss.National Dairy Products Corp. v. Jumper, 241 Miss. 339, 130 So. 2d 922 (1961).
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).
Miss.National Dairy Products Corp. v. Jumper, 241 Miss. 339, 130 So. 2d 922 (1961).
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).
Wash.Holmes v. Raffo, 60 Wash. 2d 421, 374 P.2d 536 (1962).

End of Document

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150.Generally, 25 C.J.S. Damages 150

25 C.J.S. Damages 150


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
d. Injuries to Property
(3) Injuries to Real Property
(a) In General
Topic Summary References Correlation Table
150. Generally
West's Key Number Digest
West's Key Number Digest, Damages 107 to 110
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

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150.Generally, 25 C.J.S. Damages 150

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

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150.Generally, 25 C.J.S. Damages 150

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

CUMULATIVE SUPPLEMENT
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

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150.Generally, 25 C.J.S. Damages 150

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

IdahoRansom v. Topaz Marketing, L.P., 143 Idaho 641, 152 P.3d 2 (2006).
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).
Mont.Lampi v. Speed, 2011 MT 231, 362 Mont. 122, 261 P.3d 1000 (2011).
Ga.Georgia Northeastern R. Co., Inc. v. Lusk, 277 Ga. 245, 587 S.E.2d 643 (2003).
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).
Ga.Georgia Northeastern R. Co., Inc. v. Lusk, 277 Ga. 245, 587 S.E.2d 643 (2003).
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).
IdahoRansom v. Topaz Marketing, L.P., 143 Idaho 641, 152 P.3d 2 (2006).
Mass.Rattigan v. Wile, 445 Mass. 850, 841 N.E.2d 680 (2006).
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).
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.
Mont.Lampi v. Speed, 2011 MT 231, 362 Mont. 122, 261 P.3d 1000 (2011).
Mass.Rattigan v. Wile, 445 Mass. 850, 841 N.E.2d 680 (2006).
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).

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150.Generally, 25 C.J.S. Damages 150

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).
IdahoRansom v. Topaz Marketing, L.P., 143 Idaho 641, 152 P.3d 2 (2006).
IdahoRansom v. Topaz Marketing, L.P., 143 Idaho 641, 152 P.3d 2 (2006).
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).
IdahoFarr West Investments v. Topaz Marketing L.P., 148 Idaho 272, 220 P.3d 1091 (2009).
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).
U.S.Stanford v. Tennessee Val. Authority, 18 F.R.D. 152 (M.D. Tenn. 1955).
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).
U.S.Stanford v. Tennessee Val. Authority, 18 F.R.D. 152 (M.D. Tenn. 1955).
Kan.Anderson v. Rexroad, 180 Kan. 505, 306 P.2d 137 (1957).
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).
N.H.Barker v. Publishers' Paper Co., 78 N.H. 571, 103 A. 757 (1918).
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

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151.Double damages, 25 C.J.S. Damages 151

25 C.J.S. Damages 151


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
d. Injuries to Property
(3) Injuries to Real Property
(a) In General
Topic Summary References Correlation Table
151. Double damages
West's Key Number Digest
West's Key Number Digest, Damages 107 to 110
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
N.M.Industrial Supply Co. v. Goen, 58 N.M. 738, 276 P.2d 509 (1954).

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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).
N.H.Barker v. Publishers' Paper Co., 78 N.H. 571, 103 A. 757 (1918).
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

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

152.Buildings and other structures, 25 C.J.S. Damages 152

25 C.J.S. Damages 152


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
d. Injuries to Property
(3) Injuries to Real Property
(b) Particular Kinds of Property
Topic Summary References Correlation Table
152. Buildings and other structures
West's Key Number Digest
West's Key Number Digest, Damages 111
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

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152.Buildings and other structures, 25 C.J.S. Damages 152

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

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152.Buildings and other structures, 25 C.J.S. Damages 152

CUMULATIVE SUPPLEMENT
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).
N.M.Snider v. Town of Silver City, 56 N.M. 603, 247 P.2d 178 (1952).
Ky.Stewart v. Sizemore, 306 S.W.2d 821 (Ky. 1957).
Miss.Mississippi Power Co. v. Harrison, 247 Miss. 400, 152 So. 2d 892 (1963).
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).

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152.Buildings and other structures, 25 C.J.S. Damages 152

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).
N.M.Snider v. Town of Silver City, 56 N.M. 603, 247 P.2d 178 (1952).
U.S.Russell v. U.S., 113 F. Supp. 353 (M.D. Pa. 1953).
Miss.Long v. Magnolia Hotel Co., 236 Miss. 655, 111 So. 2d 645 (1959), suggestion of error sustained on other
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).
IowaBritven v. Occidental Ins. Co., San Francisco, Cal., 234 Iowa 682, 13 N.W.2d 791 (1944).
La.Reisz v. Kansas City Southern R. Co., 148 La. 929, 88 So. 120 (1921).
IowaBritven v. Occidental Ins. Co., San Francisco, Cal., 234 Iowa 682, 13 N.W.2d 791 (1944).
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).
Miss.Long v. Magnolia Hotel Co., 236 Miss. 655, 111 So. 2d 645 (1959), suggestion of error sustained on other
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).
N.M.Snider v. Town of Silver City, 56 N.M. 603, 247 P.2d 178 (1952).
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

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153.Crops, 25 C.J.S. Damages 153

25 C.J.S. Damages 153


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
d. Injuries to Property
(3) Injuries to Real Property
(b) Particular Kinds of Property
Topic Summary References Correlation Table
153. Crops
West's Key Number Digest
West's Key Number Digest, Damages 112
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

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153.Crops, 25 C.J.S. Damages 153

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).

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153.Crops, 25 C.J.S. Damages 153

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).
Colo.Smith v. Eichheim, 147 Colo. 180, 363 P.2d 185 (1961).
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).
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).
Okla.Wilcox Oil Co. v. Lawson, 1959 OK 138, 341 P.2d 591 (Okla. 1959).
Cal.Dutra v. Cabral, 80 Cal. App. 2d 114, 181 P.2d 26 (3d Dist. 1947).
La.Trahan v. Bearb, 138 So. 2d 420 (La. Ct. App. 3d Cir. 1962).
Cal.Dutra v. Cabral, 80 Cal. App. 2d 114, 181 P.2d 26 (3d Dist. 1947).
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).
Colo.Smith v. Eichheim, 147 Colo. 180, 363 P.2d 185 (1961).
IdahoCasey v. Nampa and Meridian Irr. Dist., 85 Idaho 299, 379 P.2d 409 (1963).
IdahoCasey v. Nampa and Meridian Irr. Dist., 85 Idaho 299, 379 P.2d 409 (1963).
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).
Neb.Gable v. Pathfinder Irr. Dist., 163 Neb. 349, 79 N.W.2d 708 (1956).
Okla.Wilcox Oil Co. v. Lawson, 1959 OK 138, 341 P.2d 591 (Okla. 1959).
Colo.Smith v. Eichheim, 147 Colo. 180, 363 P.2d 185 (1961).
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).
Neb.Gable v. Pathfinder Irr. Dist., 163 Neb. 349, 79 N.W.2d 708 (1956).
Okla.Wilcox Oil Co. v. Lawson, 1959 OK 138, 341 P.2d 591 (Okla. 1959).
Neb.Gable v. Pathfinder Irr. Dist., 163 Neb. 349, 79 N.W.2d 708 (1956).
Ariz.Gilliland v. Rodriquez, 77 Ariz. 163, 268 P.2d 334 (1954).
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).
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).

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153.Crops, 25 C.J.S. Damages 153

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).
Cal.Dutra v. Cabral, 80 Cal. App. 2d 114, 181 P.2d 26 (3d Dist. 1947).

End of Document

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154.Trees and shrubs, 25 C.J.S. Damages 154

25 C.J.S. Damages 154


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
d. Injuries to Property
(3) Injuries to Real Property
(b) Particular Kinds of Property
Topic Summary References Correlation Table
154. Trees and shrubs
West's Key Number Digest
West's Key Number Digest, Damages 112
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

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154.Trees and shrubs, 25 C.J.S. Damages 154

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

CUMULATIVE SUPPLEMENT
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).
S.C.Vaught v. A.O. Hardee & Sons, Inc., 366 S.C. 475, 623 S.E.2d 373 (2005).
Fla.Watson v. Jones, 160 Fla. 819, 36 So. 2d 788 (1948).

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154.Trees and shrubs, 25 C.J.S. Damages 154

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).
S.C.Vaught v. A.O. Hardee & Sons, Inc., 366 S.C. 475, 623 S.E.2d 373 (2005).
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).
S.C.Vaught v. A.O. Hardee & Sons, Inc., 366 S.C. 475, 623 S.E.2d 373 (2005).
S.C.Vaught v. A.O. Hardee & Sons, Inc., 366 S.C. 475, 623 S.E.2d 373 (2005).
Conn.Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 881 A.2d 937 (2005).

End of Document

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

155.Pasture and meadowland, 25 C.J.S. Damages 155

25 C.J.S. Damages 155


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
2. Measure of Entire Award
d. Injuries to Property
(3) Injuries to Real Property
(b) Particular Kinds of Property
Topic Summary References Correlation Table
155. Pasture and meadowland
West's Key Number Digest
West's Key Number Digest, Damages 112
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).
Mo.Bolton v. Missouri-Kansas-Texas R. Co., 373 S.W.2d 169 (Mo. Ct. App. 1963).
Ark.Farm Bureau Lumber Corp. v. McMillan, 211 Ark. 951, 203 S.W.2d 398, 175 A.L.R. 157 (1947).
Mo.Bolton v. Missouri-Kansas-Texas R. Co., 373 S.W.2d 169 (Mo. Ct. App. 1963).

2015 Thomson Reuters. No claim to original U.S. Government Works.

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

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.

156.Loss of time and earnings, 25 C.J.S. Damages 156

25 C.J.S. Damages 156


Corpus Juris Secundum
Database updated June 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.
IV. Compensatory Damages
C. Measure and Amount
3. Measu