Delaware Trial Handbook § 22:1. COMPENSATORY DAMAGES

The purpose of a damage award is just compensation for the loss or injury sustained.1 Compensatory damages impose satisfaction for an injury done such that an award is directly related to the harm caused.1.1 The traditional measure of damages is that which is utilized in connection with an award of compensatory damages, whose purpose is to compensate a plaintiff for its proven, actual loss caused by the defendant’s wrongful conduct. To achieve that purpose, compensatory damages are measured by the plaintiff’s “out-of-pocket” actual loss.1.2 The damages must be logically and reasonably related to the harm or injury for which compensation is being awarded.1.3

“Nominal” damages are not given as an equivalent for the wrong, but rather merely in recognition of a technical injury and by way of declaring the rights of the plaintiff. Nominal damages are usually assessed in a trivial amount, selected simply for the purpose of declaring an infraction of the plaintiff’s rights and the commission of a wrong.2

“Actual” damages include general damages, special damages and consequential damages.3 General compensatory damages are awarded when the injury caused by the wrongful conduct would not be adequately compensated by mere nominal damages. General compensatory damages are for those injurious consequences which might have been foreseen or foreseeable and are such as the law presumes to be the natural and probable consequence of the defendant’s wrongful conduct. Such damages may be awarded without regard to whether there is evidence of out-of-pocket losses.4

Special damages are those damages that are the natural but not the necessary result of the wrongful acts.5

Consequential damages, a species of special damages, are damages not directly flowing from the breach, but which the defendant knew or should have known would result therefrom.6

1. DeAngelis v. Harrison, 628 A.2d 77, 81 (Del. 1993); Jardel Co. v. Hughes, 523 A.2d 518, 528 (Del. 1987); Mills v. Telenczak, 345 A.2d 424, 426 (Del. 1975); Peterson v. William E. Street, Inc., No. 275, 199, Walsh, J. (Del. March 18, 1992) (ORDER), reported at 609 A.2d 669 (Del. 1992) (TABLE).

1.1. Jardel Co. v. Hughes, 523 A.2d 518, 528 (Del. 1987).

1.2. Strassburger v. Earley, 752 A.2d 557, 559 (Del. Ch. 2000).

1.3. In re J.P. Morgan Chase & Co. Shareholder Litigation, 906 A.2d 766, 773 (Del. 2006).

2. USH Ventures v. Global Telesystems Group, Inc., 796 A.2d 7, 23 (Del.Super.2000), aff’d mem., 781 A.2d 696 (Del. 2001) (citing treatise); Guthridge v. Pen-Mod, Inc., 239 A.2d 709, 714 (Del. Super. 1967).

3. ISTI, Inc. v. Townsend, C.A. No. 91C-08-017, slip op. at 3, Graves, J. (Del. Super. Mar. 31, 1993), app. dismissed mem., 628 A.2d 83 (Del. 1993).

4. Guthridge v. Pen-Mod, Inc., 239 A.2d 709, 714 (Del. Super. 1967); Twin Coach Co. v. Chance Vought Aircraft, Inc., 163 A.2d 278, 286 (Del. Super. 1960); Bullitt v. Delaware Bus Co., 180 A. 519, 520 (Del. Super. 1935); Stidham v. Wachtel, 21 A.2d 282, 283 (Del. Super. 1941); McClain v. Faraone, 369 A.2d 1090, 1092 (Del. Super. 1977); Hajoca Corp. v. Security Trust Co., 25 A.2d.378, 382 (Del. Super. 1942).

5. Twin Coach Co. v. Chance Vought Aircraft, Inc., 163 A.2d 278, 286 (Del. Super. 1960); Bullitt v. Delaware Bus Co.,  (Del. Super. 1935); ISTI, Inc. v. Townsend, C.A. No. 91C-08-017, slip op. at 3, Graves, J. (Del. Super. Mar. 31, 1993), app. dismissed mem., 628 A.2d 83 (Del. 1993).

6. ISTI, Inc. v. Townsend, C.A. No. 91C-08-017, slip op. at 3, Graves, J. (Del. Super. Mar. 31, 1993), app. dismissed mem., 628 A.2d 83 (Del. 1993).

© 2010  David L. Finger