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§5.02 Tort Law—Compensatory and Future Damages

Lesson 5: Tort & Contract Law

Compensatory (“actual”) damages is the money awarded to compensate for the injury suffered, restoring the plaintiff as nearly as possible to his or her former position, or to provide some pecuniary equivalent. [CC §3281.] The measure of compensatory damages is the amount that will compensate for all the detriment proximately caused by the defendant’s breach, whether it could have been anticipated or not. [CC §3333.]

Civil Code §3333 can be summarized as follows: If it is proven that the plaintiff has sustained an injury, which was legally caused by the tortious wrong of another, then the plaintiff is entitled to recover an amount of money that will reasonably compensate for all physical, mental, and emotional detriment attributable to the injury. [See also CC §3359 (“Damages must, in all cases, be reasonable . . .”).]

Future damages: Once liability is established, a plaintiff may recover not only for loss already suffered, but also for loss reasonably certain to occur in the future. [CC §3283.] Future damages may be awarded for future disability or suffering (e.g., future medical expenses and future loss of earning power) in personal injury actions. Future damages are also recoverable from trespass or nuisance actions when the harm is continuing. However, lump-sum prospective damages awards must be discounted to their present cash value.

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Exemplary (or punitive) damages are also available if the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice [CC §3294(a)], but this form of damages is rarely seen in small claims actions.

Nominal damages: When a breach of duty has caused no appreciable detriment to the party affected, he or she may still recover nominal damages. [CC §3360.]

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