16.8 Tort Damages: Compensatory, Nominal, Punitive & Mitigation
Key Takeaways
- Compensatory damages split into special damages, the economic losses that must be documented and proved with reasonable certainty, and general damages such as pain and suffering, which are inferred from the injury itself.
- Actual damages are an element of negligence, NIED, IIED, strict liability, and trespass to chattels, while battery, assault, false imprisonment, and trespass to land are complete on the invasion and support nominal damages.
- Punitive damages require malice, oppression, fraud, or willful and wanton conscious disregard, must rest on an underlying actual or nominal award, and must bear a reasonable, usually single-digit, ratio to the compensatory damages.
- The avoidable-consequences doctrine reduces recovery for harm the plaintiff could reasonably have avoided after the tort, and differs from comparative fault, which addresses the plaintiff's conduct before or during the injury.
- Under the collateral source rule, benefits from sources independent of the tortfeasor such as health insurance, sick pay, or a gift do not reduce the award, though many states have modified the rule by statute.
Tort Damages: Compensatory, Nominal, Punitive & Mitigation
The State Bar's Torts Content Map opens with Pervasive Issues, and the first item on that list is damages. It sits alongside the statute of limitations and proximate cause because it cuts across every tort in the subject: an intentional tort question, a negligence question, and a products question all end at the same place — what the plaintiff actually recovers. This section collects the rules that are assumed everywhere else in the Torts material.
I. Compensatory Damages: Special and General
Compensatory damages restore the plaintiff to the position they occupied before the tort. They divide into two categories, and the division matters because the proof burdens differ.
| Category | Also called | What it covers | How it is proved |
|---|---|---|---|
| Special damages | Economic, out-of-pocket | Past and future medical expenses, lost earnings and lost earning capacity, property damage, replacement services | Documented and calculated; must be proved with reasonable certainty |
| General damages | Non-economic | Physical pain and suffering, mental anguish, disfigurement, loss of enjoyment of life, loss of consortium | Inferred from the injury itself; no invoice exists, and the jury fixes the amount |
Three rules govern the calculation:
- Reasonable certainty. Future losses must be proved to a reasonable certainty, not to a mathematical one. A plaintiff who shows a permanent injury may recover future earnings even though the exact figure is an estimate; a plaintiff who shows only that some unspecified loss might occur recovers nothing for it.
- Present value. An award of future economic loss is reduced to present value, because the plaintiff receives today money that would have arrived over decades. Future pain and suffering is generally not discounted in the same way.
- A single recovery. The plaintiff recovers once, for past and future harm together. There is no coming back when the injury turns out worse than expected — which is why the extent-of-harm rules matter so much.
Actual damages are an element, not a remedy, in negligence. A negligence claim with a breach and no harm fails at the prima facie case. Contrast the intentional torts below, where the tort is complete on the invasion itself.
II. Nominal Damages: Which Torts Are Actionable Without Harm
| Tort | Actual harm required? | Nominal damages available? |
|---|---|---|
| Battery, assault, false imprisonment | No | Yes |
| Trespass to land | No | Yes |
| Libel and slander per se | No (damages presumed) | Presumed general damages |
| Trespass to chattels | Yes — actual damage, dispossession, or loss of use | No |
| Negligence, NIED, IIED | Yes | No |
| Strict liability and products liability | Yes | No |
Nominal damages are a small sum — a dollar — awarded to vindicate the right where the invasion caused no measurable loss. Their practical significance on this exam is that they can support a punitive award in a jurisdiction that allows it, so a defendant who commits a spiteful trespass causing no actual damage is not automatically beyond reach.
III. Punitive Damages
Punitive damages punish and deter rather than compensate. They require conduct meaningfully worse than carelessness:
- The standard: malice, fraud, oppression, or a willful, wanton, or conscious disregard of a high degree of risk. Ordinary negligence never supports punitive damages; recklessness sometimes does.
- The predicate: the plaintiff must first recover actual or, in most jurisdictions, nominal damages. A punitive award cannot stand alone.
- The constitutional ceiling: the award must bear a reasonable relationship to the compensatory award. The Supreme Court has indicated that few awards exceeding a single-digit ratio to compensatory damages will satisfy due process, and that reprehensibility of the conduct is the most important factor.
- Vicarious punitive liability is narrower. Many jurisdictions will not impose punitive damages on an employer for an employee's malice unless the employer authorised, ratified, or was reckless in employing the wrongdoer.
IV. Mitigation and the Collateral Source Rule
These two doctrines pull in opposite directions and are regularly swapped in answer choices.
Avoidable consequences (mitigation). A plaintiff may not recover for harm they could have avoided by reasonable effort after the tort — by seeking ordinary medical attention, for example, or by taking a reasonable substitute job. The doctrine reduces the award; it never bars the claim. Distinguish it from contributory or comparative fault, which concerns the plaintiff's conduct before or during the injury-producing event.
The collateral source rule. Benefits the plaintiff receives from a source independent of the tortfeasor — health insurance, sick pay, a private disability policy, a gift — do not reduce the recovery under the traditional rule, and evidence of them is generally inadmissible. The wrongdoer does not get the benefit of the plaintiff's foresight in buying insurance. Many states have modified the rule by statute, particularly in medical malpractice, so read any statute the question supplies.
V. Measuring Property Damage
| Situation | Measure |
|---|---|
| Chattel destroyed or converted | Full market value at the time and place of the conversion — the forced-sale rule |
| Chattel damaged but repairable | Cost of repair, or the diminution in value, plus loss of use |
| Land damaged | Usually the diminution in market value; cost of restoration where it is reasonable relative to the value |
Worked example. A negligent driver injures a carpenter, who incurs $40,000 in medical bills, loses $25,000 in wages, and is left with a permanent limp. The carpenter's health insurer pays $30,000 of the medical bills, and the carpenter declines a recommended course of physical therapy that would have shortened the recovery by two months. Under the collateral source rule the insurer's $30,000 payment does not reduce the award, so the full $40,000 in medical specials remains recoverable. The avoidable-consequences doctrine subtracts the portion of the wage loss and suffering attributable to the two months the refused therapy would have saved. The permanent limp supports general damages for disfigurement and loss of enjoyment of life. Punitive damages are unavailable on these facts, because ordinary negligent driving is not willful or wanton conduct.
A delivery driver ran a red light while checking a dispatch screen and struck a cyclist. The cyclist suffered a fractured pelvis, incurred $60,000 in hospital charges, and lost $18,000 in wages. The cyclist's employer-provided health plan paid $48,000 of the hospital charges, and a disability policy the cyclist had purchased personally paid $9,000 in wage replacement. At trial the cyclist seeks the full $60,000 in medical expenses, the full $18,000 in lost wages, an amount for pain and suffering, and punitive damages. Which statement best describes the recovery?