As a general rule, a tortfeasor is liable for damages for all the natural, direct and proximate consequences of his or her wrongful acts or omissions and for all the foreseeable consequences of such wrongful acts or omissions.31 The damages recoverable for tortious conduct must include an amount that will put the plaintiff in the same financial position as he or she was before the injury.32 Beyond economic recovery, a plaintiff is entitled to full compensation for whatever injury he or she has sustained as a result of the tortuous conduct.
Where tortious activity results in injury to property, the measure of damages generally is the difference in value of the property immediately before and immediately after the injury. This measure applies to real property33 as well as personal property.34 Where other values are implicated which justify repair or restoration of the property, the measure of damages may be the cost of repair.35 If the loss In value cannot be remedied by repairs, the measure of damages in an appropriate case is the value of the property just before the injury less its salvage value immediately after the injury.36 An owner may testify as to the value of the property before the accident on the theory that being familiar with the property, the owner is presumed to know its worth in a general way.37 Expert testimony, however, is necessary on the issue of the damaged value of the property.38
Where personal property has no easily ascertainable market value, such as used clothing and similar personal effects, one possible measure of damages is the replacement value of like merchandise that had been in use for the same length of time and in the same condition.39
When injury to property results in a period of non-use, depreciation of the property and loss of any profits that would have been gained by use of the property for the period of non-use are proper elements of damages.40
Except as to measures of damages that are restricted for specific types of actions by statute, the principles discussed above govern all tort actions not involving physical injury. For specific types of actions, listed below, the courts have developed specific measures of damages which are applications of these general principles. However, these rules of thumb should not prevent proof of additional damages in specific situations where the ordinary measure of damages will not provide adequate compensation.
Conversion: The measure of damages for conversion is the value of the property at the time of the conversion.41 When the converted asset has a fluctuating value, the measure of damages is the highest intermediate value of the converted property between the time of conversion and a reasonable time after the owner acquired knowledge of the conversion. The reason for this is that the risk of fluctuation in the market should be borne by the wrongdoer at least during a period sufficient under the particular circumstances for the injured person to replace the property wrongfully taken.42
Defamation: In a defamation action, damages may consist of nominal, general or special compensatory damages. General compensatory damages include damages for loss of reputation, good name and favor, alienation of association and mental suffering.43
False Arrest and Imprisonment: Damages include the expenses incurred in procuring release, loss of time, physical and mental suffering and humiliation resulting from arrest and incarceration.44
Fraud: Damages for fraud include those results injurious to the plaintiff which must be presumed to have been contemplated at the time of the commission of the fraud and any direct and natural consequences of the plaintiff’s activity on the strength of the defendant’s representations.45 Delaware law recognizes two methods of determining damages. The more common and accepted standard is the “benefit of the bargain” rule, in which the plaintiff is entitled to the difference between the actual and represented value of the object of the transaction. This is designed to put the plaintiff in the same financial position that he or she would have been in had the defendant’s representation been true.46 The other measure of damages, applied less frequently, is the “out-of-pocket” measure, i.e., the difference between the price paid and the actual value of the item. This is designed to restore the plaintiff to his or her financial position prior to when the transaction occurred.47 The “out-of-pocket” measurement is usually applied in cases where a person exchanges property for other property, the value of which was misrepresented. The theory of damages minimizes speculation and conjecture in determining damages by focusing the inquiry upon the actual value of the property received.47.1
A plaintiff may elect to proceed on either theory, although the plaintiff may be limited to the theory pleaded in the complaint, subject to the usual rules of amendment. The decision as to which theory to proceed upon may depend on whether the actual value of the item is less or greater than the price paid. If the actual value is less than the price paid, the out-of-pocket measure may be more appropriate. If the price paid is less than the actual value, the benefit of the bargain measure may provide a more meaningful remedy.48
Infliction of Emotional Distress: An individual may not recover for negligent infliction of emotional distress unless that person is in the immediate area of physical danger resulting from the negligent act of another, which in turn produces physical consequences.49 On the other hand, if the infliction of emotional distress is done intentionally, willfully, wantonly or with reckless disregard for the interests of. the plaintiff; such action may provide the legal predicate for an award of damages, even without physical injury, if such conduct is viewed as outrageous.50
Injury to a Pet: Under Delaware law, pets are deemed personal property.50.1 Therefore, if a pet is harmed or killed, the measure of damages is limited to the market value of the pet, and there can be no compensation for the pain and suffering of the pet or its owner. Veterinary expenses may be relevant in pet injury cases as a form of “repair” cost offering a measure of the plaintiff’s property damages, but they are not directly recoverable by analogy to a claim for medical expenses in a personal injury action, and in any event may not exceed the market value of the pet.50.2
Interference With Business Relations: A plaintiff may recover the profits that he or she would have realized but for the wrongful conduct, provided that such profits can be proven with reasonable certainty.51 In some cases, where the actual loss is not easily ascertainable, an unjust enrichment measure of damages may be appropriate, i.e., as the value of the profits earned by the tortfeasor arising from its tortious interference.51.1
Invasion of Privacy: A plaintiff is entitled to at least nominal damages to vindicate the plaintiff’s legal right plus (i) damages for any mental suffering or embarrassment which may be the natural and probable consequence of the defendant’s wrongful conduct, and (ii) compensation for any physical discomfort that is a direct result of the wrongful conduct.52
Loss of Consortium/Alienation of Affections: Damages encompass loss of society, companionship, affection and sexual relationship. This includes aid, assistance, comfort, society, services, companionship, fellowship, solace, conjugal life, all the assistance that accompanies the marital relationship, love, physical and emotional support, contentment, satisfaction, hopes and expectation relating to the marital relationship (and loss of expectation of sharing parenthood) and the emotional distress caused by observing the suffering of an injured spouse.53
Malicious Prosecution: Damages are the expenses incurred by the plaintiff in the defense of the lawsuit.54
Theft of Trade Secrets: Compensatory damages in actions for trade secret misappropriation, and in analogous patent infringement cases, are generally determined by the difference between the plaintiff’s position before and after the misappropriation of his secret. The loss suffered by the plaintiff, such as lost profits, is the usual indicator of damage; but, in cases where a specific injury to the plaintiff cannot be established, the defendant’s actual gain may be considered.54.1
Trespass: Damages equal the difference in value of the land before and after the trespass or, at the plaintiff’s election in the appropriate case, the cost of restoration that has recently been or may soon be incurred, along with compensation for discomfort and annoyance to the plaintiff as occupant.55 In addition, the plaintiff may receive compensation for loss of the use of the land.55.1 If there is no damage to the property, the plaintiff is entitled to nominal damages.56 In certain circumstances, the landowner may also recover damages for discomfort and annoyance resulting from the trespass.56.1
Under the Timber Trespass Statute,56.2, damages for intentional, knowing and willful removal of timber on the property of another equal triple the fair value of the trees removed, plus the cost of litigation, plus exemplary damages equal to triple the fair value of the trees removed. The measure of damages for unintentional removal of timber from the land of another equals the conversion value of the trees taken or damages plus the cost of litigation. 56.3 Where the trees were for personal enjoyment, courts use replacement costs, modified as necessary to reach a just and reasonable result, as the proper measure of damages.56.4 In rebuttal, a defendant may demonstrate that the replacement costs are wholly disproportionate to the damage inflicted, but it is for the fact finder to balance these elements of damages to arrive at a just and reasonable award.56.5
In the case of a continuing trespass, in addition to compensation for past invasions (the measure of which has been described above), the plaintiff may also seek recovery for future invasions, measured as either the decrease in the value of the land, measured at the time the invasion is complete, or the reasonable costs to plaintiff of avoiding future invasions.56.6
31. Gill v. Celotex Corp., 565 A.2d 21, 23 (Del. Super. 1989); Adams v. Hazel, 102 A.2d 919, 920 (Del. Super. 1954).
32. Mills v. Telenczak, 345 A.2d 424, 426 (Del. 1975); Coleman v. Garrison, 281 A.2d 616, 619 (Del. Super. 1971), app. dismissed, 298 A.2d 320 (Del. 1972).
33. Beck v. Kulesza, 156 A. 346, 350 (Del. Super. 1926); Spicer v. Dashiells, 94 A. 901, 903 (Del. Super. 1915); Ponder v. Maryland, D. & V. R. Co., 94 A. 514, 515 (Del. Super. 1915); Layton v. Hudson, 83 A. 134, 136 (Del. Super. 1911); Bullock v. Porter, 77 A. 943, 944 (Del. Super. 1910); Klair v. Day, C.A. No. 81C-AP-79, slip op. at 2, Bifferato, J. (Del. Super. Jan. 12, 1988).
34. Storey v. Castner, 314 A.2d 187, 191 (Del. 1973); Alber v. Wise, 166 A.2d 141, 142 (Del. 1960); Teitsworth v. Kempski, 127 A.2d 237, 238 (Del. 1956); Adams v. Hazel, 102 A.2d 919, 920 (Del. Super. 1954); Gray v. Pennsylvania R. Co., 139 A. 66, 77 (Del. Super. 1926); Cunningham v. Wilmington Ice Mfg. Co., 121 A. 654, 655 (Del. Super. 1923); Morgan Millwork Co. v. Dover Garage Co., 108 A. 62, 64 (Del. Super. 1919); Cecil v. Mundy, 92 A. 850, 852 (Del. Super. 1914); Truitt v. Osler, 90 A. 467, 475 (Del. Super. 1914); Garrett v. People’s R. Co., 64 A. 254, 257 (Del. Super. 1906); Unruh v. Taylor, 43 A. 515, 517 (Del. Super. 1899).
35. Farny v. Bestfield Builders, Inc., 391 A.2d 212, 213-14 (Del. Super. 1978).
36. Storey v. Castner, 314 A.2d 187, 192 (Del. 1973); Fisher v. Benfield, C.A. No. 0038-03-89, slip op. at 2, Trader, J. (Del. Comm. Pls. Nov. 30, 1989).
37. Stuart v. Rizzo, 242 A.2d 477, 480 (Del. 1968).
38. Stuart v. Rizzo, 242 A.2d 477, 480 (Del. 1968); Storey v. Castner, 314 A.2d 187, 192 (Del. 1973).
39. Phillips v. Delaware Power & Light Co., 201 A.2d 160, 161 (Del. Super. 1964).
40. Oliver B. Cannon & Son, Inc. v. Dorr-Oliver, Inc., 394 A.2d 1160, 1163-64 (Del. 1978); Falcon Tankers, Inc. v. Litton Systems, Inc., 380 A.2d 569, 578-80 (Del. Super. 1977); Adams v. Hazel, 102 A.2d 919, 925 (Del. Super. 1954).
41. Rafal v. Rafal, 198 A.2d 177, 178-79 (Del. Ch. 1964); Wyndham, Inc. v. Wilmington Trust Co., 59 A.2d 456, 459 (Del. Super. 1948); Baker v. Spruance, 91 A. 203, 204 (Del. Super. 1914); Vaughn v. Webster, 5 Del. 256, 5 Harr. 256, 257 (Del. Super. 1850); Restaurant Equipment Service v. Cohen, C.A. Nos. 88C-AP-7 & 89C-OC-18, slip op. at 3, Steele, J. (Del. Super. May 29, 1991).
42. Foard v. Lofland, 1 Del. Cas. 429, 430 (Del. 1797); American Gen. Corp. v. Continental Airlines Corp., 622 A.2d 1, 8-9 (Del. Ch. 1992), aff’d mem. 620 A.2d 856 (Del. 1993); Wyndham, Inc. v. Wilmington Trust Co., 59 A.2d 456, 459 (Del. Super. 1948); Cahall v. Burbage, 121 A. 646, 649 (Del. Ch. 1923).
43. Sheeran v. Colpo, 460 A.2d 522, 524 (Del. 1983); Stidham v. Wachtel, 21 A.2d.282, 283 (Del. Super. 1941); Todd v. Every Evening Printing Co., 66 A. 97, 99 (Del. Super. 1907).
44. Marshall v. Cleaver, 56 A. 380, 381 (Del. Super. 1903); Petit v. Colmary, 55 A. 344, 346 (Del. Super. 1903); Murphy v. Countiss, 1 Del. 143, 1 Harr. 143, 144 (Del. Super. 1833).
45. Hannan v. Masoneilan International, Inc., 442 A.2d 487, 499 (Del. 1982); Traylor Engineering & Mfg. Co. v. National Container Corp., 70 A.2d 9, 15 (Del. Super. 1949).
46. Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1076 (Del. 1983). See also Scott-Douglas Corp. v. Greyhound Corp., 304 A.2d 309, 315 (Del. Super. 1973); Nye Odorless Incinerator Corp. v. Felton, 162 A. 504, 512 (Del. Super. 1932); Montgomery v. Jacob Bros. Co., 159 A. 374, 375 (Del. Super. 1931). Cf. Young v. Joyce, 351 A.2d 857, 857-59 (Del. 1975).
47. Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1076 (Del. 1983); Harman v. Masoneilan International, Inc., 442 A.2d 487, 499 (Del. 1982); Poole v. N. V. Deli Maatschappij, 243 A.2d 67, 73 (Del. 1968); Poole v. N. V. Deli Maatschappij, 224 A.2d 260, 262 (Del. 1966); Mackenzie Oil Co. v. Omar Oil & Gas Co., 154 A. 883, 889 (Del. Super. 1929), aff’d sub nom. Phoenix Oil Co. v. Mackenzie Oil Co., 154 A. 894, 902 (Del. 1930); Ranch v. Lynch, 89 A. 134, 137 (Del. Super. 1913).
47.1. Ross Systems Corp. v. Ross, C.A. No. 10378, slip op. at 30, Jacobs, V.C. (Del. Ch. Feb. 19, 1993), aff’d mem. sub nom, Sang v. Ross, 660 A.2d 395 (Del. 1995).
48. Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1076 & n.4 (Del. 1983).
49. Mergenthaler v. Asbestos Corp. of America, 480 A.2d 647, 551 (Del. 1984); Robb v. Pennsylvania R. Co., 210 A.2d 709, 714-15 (Del. 1965). Cf. Garrison v. Medical Center of Delaware, Inc., 581 A.2d 288, 293 (Del. 1989).
50. Cummings v. Pinder, 574 A.2d 843, 845 (Del. 1990); Boyle v. Chandler, 138 A. 273, 276 (Del. Super. 1927).
50.1. 7 Del. C. § 1708.
50.2. Naples v. Miller, C.A. No. 08C-01-093 PLA, slip op. at 4-7, Ableman, J. (Del. Super. Apr. 30, 2009).
51. Wise v. Western Union Tel. Co., 181 A. 302, 304 (Del. Super. 1935).
51.1. Great American Opportunities, Inc. v. Cherrydale Fundraising, Inc., C.A. No. 3718-VCP, slip op. at 76-77 & n. 303 (Del. Ch. Jan. 29, 2010).
52. Guthridge v. Pen-Mod, Inc., 239 A.2d 709, 715 (Del. Super. 1967).
53. Lacy v. G.D. Searle & Co., 484 A.2d 527, 532-33 (Del. Super. 1984). See also Ramsey v. Ramsey, 156 A. 354, 357 (Del. Super. 1931).
54. Herbener v. Crossan, 55 A. 223, 225 (Del. Super. 1902); Anderson v. Calloway, 7 Del. 324, 2 Houst. 324, 326 (Del. Super. 1861).
54.1. Agilent Technologies, Inc. v. Kirkland, C.A. No. 3512-VCS, slip op. at 71-72, Strine, V.C. (Del. Ch. Feb. 22, 2010).
55. Farny v. Bestfield Builders, Inc., 391 A.2d 212, 213 (Del. Super. 1978); Battistini v. Hickman & Willey, Inc., CA No. 88C-JL3, slip op. at 8-9, Lee (Del. Super. July 13, 1989).
55.1. Gordon v. National Railroad Passenger Corp., Cons. C.A. No. 10753, slip op. at 26-27, Chandler, V.C. (Del. Ch. Mar. 19, 1997).
56. Phillips v. Brittingham, 77 A. 964, 965 (Del. Super. 1910); Pennington v. Lewis, 56 A. 378, 379 (Del. Super. 1903).
56.1. Williams v. Manning, C.A. No. 05C-11-209-JOH, slip op. at 19-23, Herlihy, J. (Del. Super. Mar. 13, 2009).
56.2. 25 Del. C. § 1401.
56.3. 25 Del. C. § 1401(b).
56.4. J.S.F. Properties, LLC v. McCann, No. 306, 2009, Steele, J. (Del. Dec. 1, 2009), disposition reported at 985 A.2d 390 (Del. 2009) (TABLE).
56.5. J.S.F. Properties, LLC v. McCann, No. 306, 2009, Steele, J. (Del. Dec. 1, 2009), disposition reported at 985 A.2d 390 (Del. 2009) (TABLE).
56.6. Gordon v. National Railroad Passenger Corp., Cons. C.A. No. 10753, slip op. at 26-27, Chandler, V.C. (Del. Ch. Mar. 19, 1997).
© 2010 David L. Finger