Damage Assessment Made Simple – how much money are you due?

     This page is continued from the Civil Law Self-Help Walkthrough >>>> Section 3:

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damages:
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 in the 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]

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Notice: click any of the following terms for the full definitions from Black’s Law Dictionary 10th Ed. and Ballantine’s Law Dictionary.

General Legal Terms
pertaining to Damages:

accord and satisfaction – an agreement (accord) to substitute for an existing debt some alternative form of discharging that debt, coupled with the actual discharge of the debt by the substituted performance (satisfaction)

  • accord – an agreement, compact, or treaty: an offer to give or to accept a stipulated performance in the future to satisfy an obligor’s existing duty, together with an acceptance of that offer.
  • satisfaction – the giving of something with the intention, express or implied, to substitute the specified performance, in order to extinguish the existing legal or moral obligation.

compensation – payment of damages, or any other act that a court orders to be done by a person who has caused injury to another, in theory making the injured person whole, or remuneration for services rendered (i.e. salary, wages).

  • just compensation – a payment by the government for property it has taken under eminent domain, which must be fair both to the person whose property is taken and to the public, who must pay for it. — aka adequate compensation; due compensation; land damages.
  • recompense – repayment, compensation, remuneration, or retribution for something, especially an injury or loss.
  • remuneration – the act of paying or compensating.

compromise and settlement – a compromise agreement followed by the performance of the promises contained in the agreement.

  • compromise – an agreement between two or more persons to settle matters in dispute between them in which each party surrenders somethings in concession to the other.

Types of Damages
Organized by Category
for Assessment Purposes:

Standard Legal Terms used in the
Initial Assessment of Damages:

compensatory damages – damages recoverable in satisfaction of, or in recompense for, loss or injury sustained, including all damages, except nominal damages, punitive, or exemplary damages aka actual damagestangible damagesreal damages.

  • measurable damages – damages whose amount can be determined with a high degree of certainty.
  • lawful damages – those damages fixed by law and ascertained in a court of law.
  • pecuniary damages – damages that can be estimated and monetarily compensated, as opposed to nonpecuniary damages, which require nonmonetary (equitable) remedies; the term “pecuniary loss” is often used in wrongful death cases.
  • 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.
  • 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.

mitigation-of-damages doctrine – the principle inducing a plaintiff, after an injury or breach of contract, to make reasonable efforts to alleviate the effects of the injury or breach, or else the plaintiff’s recovery may be reduced. — aka avoidable-consequences doctrine.

nominal damages – where no substantial loss occurs, however a tort or breach of contract occurred and the action is filed in order to make the existence of right known, so as to deter future violations.

statutory damages – damages provided by statute as distinguished from damages provided under the common law.

  • accumulative damages – statutory damages allowed in addition to amounts available under the common law.  — aka enhanced damages.
  • multiple damages – statutory damages that are a multiple of the amount that the fact-finder determines to be owed.
    • double damages – damages that, by statute, are twice the amount that the fact-finder determines is owed or twice the amount of actual damages. 
    • treble damages – damages that, by statute, are three times the amount. of actual damages that the fact-finder determines is owed.

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

General Descriptive Terms
for Various Types of Damages:

stigma damages – damages which caused a permanent loss in the value of the property.

substantial damages – a considerable sum awarded to compensate for a significant loss or injury, as opposed to nominal damages.

temperate damages – reasonable damages allowed in certain cases , without proof of actual or special damage, where the wrong done caused actual damage, though, due to the nature of the case, he cannot furnish evidence thereof.

tort damages – monetary compensation for tangible and intangible harm to persons and property as the result of a tort.

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. — aka temporary damages.

  • intervening damages – continuing damages to an appellee that accrue during the pendency and prosecution of an unsuccessful appeal.

prospective damages – future damages that, based on the facts pleaded and proved by the plaintiff, can reasonably be expected to occur.

proximate damages – compensation for reasonably foreseeable harm that directly, immediately. and naturally results from the wrongful act.

unliquidated damages – damages not agreed on by the parties, and that cannot be determined by a fixed formula and must be established by a judge or jury.

Types of Damages That Are Uncertain and Not Immediately Measurable:

speculative damages – damages that are so uncertain to occur that they will not be awarded.  aka remote damages.

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.
  • future damages – awarded to an injured party for an injury’s residual or projected effects (i.e. a reduction in a person’s ability to function, expected pain and suffering, loss or impairment of earning capacity, projected medical expenses).
  • hedonic damages – for loss of enjoyment of life or of life’s pleasures. aka hedonistic damages.

special damages – damages that are alleged to have been sustained in the circumstances of a particular wrong, which must be specifically claimed and proved. — aka specials; particular damages; extraordinary damages.

irreparable (nonpecuniary) damages – in the law of injunctions, an injury that cannot be satisfactorily or completely compensated with money, so that to refuse the injunction would be a denial of justice. — aka nonpecuniary damages; irreparable injury; noneconomic damages.

permanent damages – damages for past, present, and future harm that cannot be avoided or remedied; technically, injury in real estate which is permanent in character, so that all the damages, whether present, past, or prospective must be recovered in a single action.

uncertain damages – damages that are not clearly the result of a wrong; the uncertainty refers to allowing recovery for the damages, not to the amount.

Damages Used When
Defendant Acted with Malicious Intent:

punitive damages – awarded in addition to actual compensatory damages as a fine imposed as a form of punishment when the defendant acted with recklessness, malice, or deceit, or oppression against the plaintiff(s). — aka exemplary damages; vindictive damages; punitory damages; presumptive damages; added damages; aggravated damages; speculative damages; imaginary damages; smart money; punies.

rescissory damages – used primarily when the defendant’s fiduciaries unjustly enriched themselves by exercising their fiduciary authority deliberately to extract a personal financial benefit at the expense of the corporation’s shareholders; the amount of damages measured by the fair value of the stock at the time of judgment, awarded to restore a plaintiff(s) to the position occupied before the defendant’s wrongful acts, including either returning the property to the original owner or if that is not possible then to pay the monetary value of the property to the owner.

restitution damages – awarded to a plaintiff when the defendant has been unjustly enriched at the plaintiff’s expense, often in cases of fraud, theft, and unjust enrichment.

Patent Infringement:

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

Types of Damages pertaining to a
Breach of Contract:

contract damages – remedies available for breach of contract.

benefit-of-the-bargain damages – damages 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. — aka loss-of-bargain damages; expectation loss.

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.

reliance (loss) damages – damages awarded or reimbursed for losses incurred by the plaintiff in reliance on the contract, to restore the plaintiff to the economic condition the plaintiff enjoyed before the contract was formed; violation of trust or confidence that was depended on, actionable as fraud, deceit, and/or a granting of promissory estoppel.

Insurance-Related:

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 Occurring After the Initial Trial:

damages ultra – additional damages claimed by a plaintiff who is not satisfied with the amounts the defendant paid into court.

excessive damages – an award of damages by a verdict which appears to have been given under the influence of passion or prejudice; an award so large as to shock the judicial conscience, out of proportion to the damages proved.

inadequate damages – damages insufficient to fully and fairly compensate the parties; damages bearing no reasonable relation to the plaintiff’ s injuries, indicating prejudice, mistake, etc.

Damages to Real Property:

fee damages – awarded to the owner of property abutting an elevated railroad for injury caused by the railroads construction and operation to compensate damages to property owner’s easements of light, air, and access, which are parts of the fee.

land damages – a payment by the government for property it has taken under eminent domain, which must be fair both to the person whose property is taken and to the public, who must pay for it. — aka adequate compensation; due compensation; just compensation.

severance damages – in a condemnation (eminent domain) case, compensation awarded to a landowner for the loss in value of the tract that remains after a partial taking of the land.

permanent damages – damages for past, present, and future harm that cannot be avoided or remedied; technically, injury in real estate which is permanent in character, so that all the damages, whether present, past, or prospective must be recovered in a single action.

temporary damages – damages for injury to, or trespass on, real property caused by intermittent or occasional wrongs that are continuing in character and would require successive actions to make the plaintiff whole, the amount of the recovery being limited to those damages which have accrued to date of suit.

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

 

Damages relating to Business Agreements and Employee Relations:

doctrine of constructive service – the doctrine that an employee unlawfully dismissed from employment who holds himself ready and willing to perform the work for which he was employed shall be regarded in law as having actually performed it, and may sue on the breached contract for the wages that he or she would have earned during the remaining contract period.

lost-volume damages – amount of profit lost because of lower sales.

headstart damages – damages for profits lost by a corporate plaintiff because of competition from a defendant who misappropriated or misused the plaintiff’s property. — aka accelerated-market damages.

incidental damages – commercial term for consequential damages; losses reasonably associated with or related to actual damages.

lost profits damages – a measure of damages that allows a seller to collect the profits that would have been made on the sale if the buyer had not breached a contract or commit a tort.

 

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.

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

 remote damages – (legal aassistant ver)

Damages Clause – See SURFACE-DAMAGE CLAUSE.

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

vindictive damages –

File a Claim Against a Federal Agency

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

References:

All material utilized in accordance with Fair Use.

[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black, Editor in Chief Bryan A. Garner. ISBN: 978-0-314-61300-4

[2]: Ballantine’s Law Dictionary with Pronunciations
Third Edition
 by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[3]: Ballantine’s Law Dictionary Legal Assistant Edition by Jack Ballantine (James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.

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

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

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