Advocate Mar13 DIGITAL_Advocate template 2007.qxd 7/9/2013 1:12 PM Page 44
General damages — continued from Page 42
“Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages.” Civil Code section 3333 defines compensatory damages in a tort action: “For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.” This standard is different from the standard in contract cases because, in torts, it is not necessary that the detriment could have been anticipated. For instance, in a tort action, plaintiff, unbeknownst to defendant, may have a pre-existing condition that makes her unusually susceptible to injury. The law allocates the risk of an unusually susceptible plaintiff to the tortfeasor, inter alia, to deter tortious conduct and to impose its costs on the tortfeasor rather than the victim. The rule is otherwise in contract cases. General (or non-economic damages), are one of the two types of compensatory damages. The other type of compensatory damages consists of special (or economic) damages.
General (non-economic) damages consist of “subjective non-monetary losses including but not limited to pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.” (See Civ. Code, §1431.2(b)(1).) By contrast, special (economic) damages consist of out-of-pocket cost of repair or replacement of things, cost of repair of real property, loss of use of things, value of use of converted real or personal property, past or future medical or other expenses incurred, past or future loss of earnings or earning capacity, loss of economic opportunities, financial damage due to loss of reputation, loss of interest or other sums of money that would have been earned, recovery of value of unauthorized use of name or likeness, loss by a spouse of household services, loss of ability to provide household services, burial costs, and any other “objectively verifiable monetary losses” actually incurred. (See, Civ.Code, § 1431.2(b)(1).)
Many significant limitations
Causation of actual damages is one of the elements of any tort. If there are no damages, there can be no recovery.
(Fields v. Napa Milling Co. (1958) 164 Cal.App.2d 442, 448.) As is noted in the Introduction, many of the rules set forth in this section arise from the requirement of causation.
Actual damages are required for an award
Consistent with the rule that damages must be caused by the tortfeasor to be recoverable, the law has created a rule to distinguish between situations where: 1) we know damages have been caused, but cannot quantify them; and 2) we do not know if they were caused at all. The law deals with the distinction through the mechanism of an award of “nominal” damages. Civil Code section 3360 provides for the recovery of “nominal damages” “[w]hen a breach of duty has caused no appreciable detriment to the party affected . . . .” The statute provides that, in such cases, plaintiff “may yet recover nominal damages.” In other words, if there are damages but they are so trivial from an economic perspective as to be virtually incalculable (not “appreciable”), plaintiff can still succeed on her claim of negligence because there are damages – they are just so small as to be incalculable.
See General damages, Page 46
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