Damage Assessment – how much financial loss was probably caused?

n. pl. (16c)

1. Money claimed by, or ordered to be paid to, a person as compensation for loss or injury <the plaintiff seeks $8,000 in damages from the defendant>. — damage, adj. [1]

1. The sum of money which the law awards or imposes as pecuniary compensation, recompense, or satisfaction for an injury done or a wrong sustained as a consequence either as a breach of a contractual obligation or a tortious act.  22 Am J2d Damg § 1.

The pecuniary compensation or indemnity which may be recovered int eh courts by any person who has suffered loss, detriment, or injury, whether to his person, property, or rights, through the unlawful act or omission or negligence of another.  Aetna Casualty & Surety Co. v Hanna (CA5 Fla) 224 F2d 499, 53 ALR 2d 1125. [2]

1. The sum of money that may be recovered int eh courts as financial reparation for an injury or wrong suffered as a result of breach of contract or a tortious act. [3]

     Excerpt from Martin L. Newell’s A Treatise on the Law of Malicious Prosecution, False Imprisonment, & the Abuse of Legal Process (1892):

     “The term defined: A sum of money adjudged to be paid by one person to another as compensation for a loss sustained by the latter in consequence of an injury committed by the former or the violation of some right.[4]

     Excerpt from Frank Gahan’s The Law of Damages  (1936):

     “Damages are the sum of money which a person
wronged is entitled to receive from the wrongdoer as
compensation for the wrong.[5]

Types of Damages
Organized for Assessment Purposes:

General Terms:

  • actual damages – an amount awarded to a complainant to compensate for a proven injury or loss; damages that repay actual losses.  aka compensatory damagestangible damagesreal damages.
  • lawful damages – those damages fixed by law and ascertained in a court of law.
  • measurable damages – damages whose amount can be determined with a high degree of certainty.
  • speculative damages – damages that are so uncertain to occur that they will not be awarded.  aka remote damages.

Essential Terms for Initial Assessment:

common-law damages – a court ordered monetary award intended to return an injured party, as nearly as possible. to their position that party occupied before suffering harm.

accumulative damages – statutory damages allowed in addition to amounts available under the common law.  aka enhanced damages.

general damages – damages so reasonably expected to result from the type of wrong complained of that they do not need to be proved; specifically compensatory damages for harm that frequently result from the tort for which a party has sued.  aka direct damages. necessary damages.

additional damages – usually provided by statute in addition to direct damages, including expenses resulting from the injury, consequential damages, or punitive damages.

Subsequent Damages that Resulted from the Initial Injury:

consequential damages – losses that do not flow directly and immediately from an injurious act but that result indirectly from the act.  aka indirect damages.

continuing damages – ongoing damages arising from the same injury or series of acts.


compensatory damages sufficient in amount to indemnify the injured person for the loss suffered.

discretionary damages not precisely measurable (i.e. mental anguish, pain and suffering, etc.) but are determined by a jury.

  • cosmetic damages – the amount awarded to compensate for personal disfigurement.

Patent Infringement:

enhanced damagespatent infringement ~3x the compensatory damages depending on defendant’s conduct.

Types of Damages pertaining to a
Breach of Contract:

expectation damages – compensation awarded for the loss of what a person reasonably anticipated from a transaction that was not completed. — aka expectancy damages;  lost-expectation damages;  damages for lost expectations.

foreseeable damages – damages a breaching party knew or should have known when the contract was made would likely result from a breach.

liquidated damages – an amount contractually stipulated as a reasonable estimation of actual damages to be recovered by one party if the other party breaches. — aka stipulated damages; estimated damages.


Excess Damages (1924) Damages awarded to an insured – beyond the coverage provided by an insurance policy -because the insurer did not settle the claim within policy limits.  *  If the insurer acted in bad faith in not settling, the insured may have a claim to recover the excess damages from the insurer. — aka excess-liability damages.

Damage Adjustments:

Damages Ultra (1838) Additional damages claimed by a plaintiff who is not satisfied with the amounts the defendant paid into court.

Excessive Damages (18c) A jury award that grossly exceeds the amount warranted by law based on the facts and circumstances of the case; unreasonable or outrageous damages, which are subject to reduction by remittitur  See REMITTITUR.

Inadequate Damages (18c) Damages insufficient to fully and fairly compensate the parties; damages bearing no reasonable relation to the plaintiff’ s injuries, indicating prejudice, mistake, or other fact to support setting aside a jury’s verdict.

Damages to Real Property:

Fee Damages (1892) Damages awarded to the owner of property abutting an elevated railroad for injury caused by the railroads construction and operation.  *  The term is used because the damage is to the property owner’s easements of light, air, and access, which are parts of the fee.

Land Damages – See just compensation.


Equitable Damages – See equitable remedy under REMEDY.

Future Damages (17c) Money awarded to an injured party for an injury’s residual or projected effects, such as those that reduce the person’s ability to function. * Examples are expected pain and suffering, loss or impairment of earning capacity, and projected medical expenses.

Gross Damages (1845) The total damages found before adjustments and offsets.

Headstart Damages (1988) Damages for profits lost by a corporate plaintiff because of competition from a defendant who misappropriated or misused the plaintiff’s property. – Also termed accelerated-market damages.

Hedonic Damages (1985) Damages that attempt to compensate for the loss of the pleasure of being alive.  * Such damages are not allowed in most jurisdictions. – Also termed (erroneously) hedonistic damages.

Incidental Damages (18c) l. Losses reasonably associated with or related to actual damages. 2. A seller’s commercially reasonable expenses incurred in stopping delivery or in transporting and caring for goods after a buyer’s breach. UCC § 2-710. 3. A buyer’s expenses reasonably incurred in caring for goods after a seller’s breach. UCC § 2-715(1).

     Excerpt from1 James J. White & Robert S. Summers, Uniform Commercial Code 5 10-3, at 561-62 (4th ed. 1995).:

     “What are incidental damages? The Code does not define incidental damages; rather 2415(1) lists many expenses that are included as incidental damages. However, Comment 1 to 2-715 stresses that those listed ‘are not intended to be exhaustive’ but are merely illustrative of the typical kinds of incidental expenses that can be recovered under 2-715:

(1) those associated with rightful rejection (for instance, inspection and storage);
(2) those associated with a proper revocation of acceptance; and
(3) those involved in effecting cover

Intervening Damages (1886) Continuing damages that accrue during the pendency and prosecution of an unsuccessful appeal.  *  A lower court may include intervening damages in an award.

Irreparable Damages (1874) Damages that cannot be easily ascertained because there is no fixed pecuniary standard of measurement, e.g., damages for a repeated public nuisance. – Also termed nonpecuniary damages.


Damages to Businesses:

Lost-Volume Damages – The amount of profit lost because of lower sales.

Moratory Damages (1901) Civil law. Damages for a delay in performing an obligation. La. Civ. Code arts. 1989, 1994.  *  There must be a default before these damages can be recovered, while compensatory damages are recoverable for both a failure of performance and for a defective performance.

> multiple damages. (1927) Statutory damages (such as double or treble damages) that are a multiple of the amount that the fact-finder determines to be owed. —Also termed multiplied damages. See double damages; treble damages. ‘ . ‘

“[T]he statutory multiple damages differ from the common law punitive damages in that punitive damages involved no fixed sum or limit. The fixed limit of multiple damages not only reduces their threat to the defendant and the potential for abuse, it also reduces the possibility of a measured deterrence. Likewise, because the enhancement of the award is fixed by theistatutory multiple, there is no occasion for introducing evidence of the defendant’s wealth as there is in the case of common law punitive damages . .. . . Perhaps a more important distinction is that multiple damages statutes may be enacted for entirely non-punitive purposes. Specifically, some double or treble damages statutes, and also specified ‘civil penalties,’ are intended to provide a kind of liquidated damages for actual losses that cannot be proved or that are otherwise unrecog’ nized by the law.” 1 Dan B. Dobbs, Law of Remedies § 3.12, at 543 (2d ed. 1993).

Nominal Damages (18c) 1. A trifling sum awarded when a legal injury is suffered but there is no substantial loss or injury to be compensated. 2. A small amount fixed as damages for breach of contract without regard to the amount of harm. – Also termed contemptuous damages; diminutive damages. Cf. substantial damages.

     Excerpt fromCharles T. McCormick, Handbook on the Law of Damages § 20, at 85 (1935):

     “Nominal damages are damages awarded for the infraction of a legal right, where the extent of the loss is not shown, or where the right is one not dependent upon loss or damage, as in the case of rights of bodily immunity or rights to have one’s material property undisturbed by direct invasion. The award of nominal damages is made as a judicial declaration that the plaintiff’s right has been violated. 

     Excerpt fromS.M. Waddams, The Law Of Damages 477-78 (3d ed. 1997).:

     “Nominal damages are awarded if the plaintiff establishes a breach of contract or a tort of the kind that is said to be ‘actionable per se’ but fails to establish a loss caused by the wrong. In the case of tort not actionable per se as, for example, negligence, if the plaintiff fails to establish a loss, the action will be dismissed. The practical significance of a judgment for nominal damages is that the plaintiff thereby establishes a legal right. The judgment has the effect of a declaration of legal rights and may deter future infringements or may enable the plaintiff to obtain an injunction to restrain a repetition of‘ the wrong. The obtaining of nominal damages will also, in many cases, entitle a plaintiff to costs . . . . [Also,] nominal damages might serve as a peg upon which to hang an award 0f exemplary damages.

Nonpecuniary Damages (1900) Damages that cannot be measured in money. —Also termed noneconomic damages. See irreparable damages.

Particular Damages. See special damages.

b pecuniary damages (pa-kyoo-nee-er-ee). (17c) Damages that can be estimated and monetarily compensated. 0 Although this phrase appears in many old

cases, it is now widely considered a redundancy since damages are always pecuniary.

> permanent dama es. (1853) Damages for past, present, and future harm t at cannot be avoided or remedied.

> prospective dama es. (1840) Future damages that. based on the facts p eaded and proved by the plaintiff, can reasonably be expected to occur.

p proximate damages. (1870) Compensation for reasonably foreseeable harm that directly, immediately. and naturally results from the act complained of. Cf. speculative damages (1).

Punitive Damages (1848) Damages awarded in addition to actual damages when the defendant acted with recklessness, malice, or deceit; specifically, damages assessed by way of penalizing the wrongdoer or making an example to others.  *  Punitive damages, which are intended to punish and thereby deter blameworthy conduct, are generally not recoverable for breach of contract. The Supreme Court has held that three guidelines help determine whether a punitive-damages award violates constitutional due process: (1) the reprehensibility of the conduct being punished; (2) the reasonableness of the relationship between‘the harm and the award; and (3) the difference between the award and the civil pen~ alties authorized in comparable cases. BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589 (1996). – Also termed exemplary damages; vindictive damages; punitory damages; presumptive damages; added damages; aggravated damages; speculative damages; imaginary damages; smart money; punies.

     “Although compensatory damages and punitive damages are typically awarded at the same time by the same decisionmaker, they serve distinct purposes. The former are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct. The latter, which have been described as ‘quasi-criminal,’ operate as ‘private fines’ intended to punish the defendant and to deter future wrongdoing. A jury’s assessment of the extent of a plaintiff’s injuries is essentially a factual determination, whereas its imposition of punitive damages is an expression of its moral condemnation Cooper Indus.

Véégstherman Tool, 532 U.S. 424, 432, 121 S.Ct. 1678, 1683 ( .

> putative damages. (1897) Damages that are alleged; claimed but unproved damages.

r reliance damages. (1938) Damages awarded for losses incurred by the plaintiff 1n reliance on the contract. 0 Reliance damages restore the plaintiff to the economic

condition the plaintiff enjoyed before the contract was formed.‘

“Reliance damages are . .‘L ‘real’ losses in a much more tangible way than losses of expectations. The distinction is nicely illustrated by McRae v. Commonwealth Disposals Commission . . .. . in this case, . . . the defendants sold a shipwrecked tanker which they advertised as lying on a certain reef in the Pacific, and the plaintiffs spent a substantial sum of money equipping a salvage expedition to go in search of the ship. The ship was wholly non-existent, and the plaintiffs were held entitled to damages. Here it was clear that the plaintiffs had incurred substantial expenses –real losses –in reliance on the contract, and the Australian High Court awarded these reliance damages

to the plaintiffs.” P.S. Atiyah, An Introduction to the Law of Contract 311 (3d ed. 1981).

lost-expectation damages. See expectation damages. >bst-proiits damages. Seé‘LOST-PROFIT‘S  (1).

reliance loss danmges. (2006) A reimbursement for losses or expenses tint the plilntlfl suffers in reliance on the defendant‘s contractual promise that has been breached.

> remote tlmnages. bee speculative damages (1).

>resclssnry damages (rl sls 3 rec or ri slz ). (1974) Damages awarded to restore a plaintiff to the position Occupied before the defendant’s wrongful acts.

> restitution damages. (1939) Damages awarded to a plaintiil‘when the defendant has been unjustly enriched at the plaintiff’ s expense.

“Suppose A pays money to B in pursuance of a contract which turns out to be void, or perhaps is subsequently frus‘v trated: clearly A cannot sue B for breach of contract. B’s promise to perform his side of the bargain is vitiated by the mistake or the frustrating event, so A’s lost expectations are losses which he must just put up with. But his claim to repayment of the money is evidently much stronger: for this money is a tangible loss to A and a tangible enrichment to B. So in this sort of case the money will often be recoverable, though English lawyers think of this as a quasicontractual claim to recover money as on a total failure of consideration, and not a contractual claim to restitution damages. There is, however, no strong reason for refusing to call this a contractual action, any more than there is a reason for calling an action for damages quasi-contractual.” P.S. Atiyah, An Introduction to the Law of Contract 312 (3d ed. 1981). ’

> severance damages. (1853) In a condemnation case, damages awarded to a property owner for diminution in the fair market value of land as a result of severance from the land of the property actually condemned; compensation awarded to a landowner for the loss in

value of the tract that remains after a partial taking of the land.

Special Damages (17c) Damages that are alleged to have been sustained in the circumstances of a particular wrong.  * To be awardable, special damages must be specifically claimed and proved. See Fed. R. Civ. P. 9(g). – Often shortened to specials. -Also termed particular damages; extraordinary damages.

Statutory Damages (1847) Damages provided by statute (such as a wrongful death and survival statute), as distinguished from damages provided under the common law.

Stigma Damages (1985) Damages resulting from a temporary harm that causes the fully restored property to be viewed as less valuable after the harm and produces a permanent loss of value. – Also termed diminution damages.

Substantial Damages (1836) A considerable sum awarded .to compensate for a significant loss or injury. Cf. nominal damages.

     Excerpt fromCharles T. McCormick, Handbook on the Law of Damages § 20, at 85 (1935):

     “Substantial damages . . . are the result of an effort at measured compensation, and are to be contrasted with nominal damages which are in no sense compensatory, but merely symbolic.” 

Temperate Damages (18c) Rare. Reasonable damages,

Temporary Damages (18c) Damages allowed for an intermittent or occasional wrong, such as a real-property injury whose cause can be removed or abated.

Tort Damages – Monetary compensation for tan ible and intangible harm to persons and property as the result of a tort.  See TORT.

Treble Damages (18c) Damages that, by statute, are three times the amount. of actual damages that the fact-finder determines is owed. – Also termed triple damages.

Uncertain Damages (17c) Damages that are not clearly the result of a wrong.  *  The rule against allowing recovery of uncertain damages refers to these damages, not damages that are uncertain only in amount.

Unliquidated Damages (18c) Damages that cannot be determined by a fixed formula and must be established by a judge or jury.

damages, mitigation of. See MITIGATION-OF-DAMAGES DOCTRINE. ‘ , ~ * i‘ i


Damages for Detention See noncontract demurrage under DEMURRAGE (1).

Types of Damages Specifically Related to Breach of Contract:

Contract Damages – remedies available for a breach of contract.  See compensatory damages, consequential damages, liquidated damages, punitive damages.

Benefit-of-the-Bargain Damages (1955) Damages that a breaching party to a contract must pay to the aggrieved party, equal to the amounts that the aggrieved party would have received, including profits, if the contract had been fully performed. -Also termed loss-of-bargain damages; expectation loss.

File a Claim Against a Federal Agency

(State, County, City, & Other coming soon)

  See actual damages; compensatory damages; damage; double damages; exemplary damages; liquidated damages; mitigation of damages; nominal damages; punitive damages; speculative damages. [2]

Compare damage.  See also actual damages; irreparable damages; liquidated damages; mitigation of damages; nominal damages; punitive damages; special damages; speculative damages; treble damages. [3]


All material utilized in accordance with Fair Use.

[1]: All definitions, unless otherwise indicated, from: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6

[2]:  Martin L. Newell, A Treatise on the Law of Malicious
Prosecution, False Imprisonment, & the Abuse of Legal Process 491 (1892)

[3]: Frank Gahan, The Law of Damages 1 (1936)


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