§ 2.2 Recovery of Nominal Damages

• Library: Damages (OSBar) (2016 Ed.)

§ 2.2 RECOVERY OF NOMINAL DAMAGES

§ 2.2-1 General Principles

As a general rule, nominal damages are recoverable on claims in which damages are presumed. See, e.g., Phillips v. Rathbone, 194 Or App 90, 100, 93 P3d 835 (2004) (noting that a plaintiff may be entitled to nominal damages for an intentional trespass because the law "presumes" the plaintiff has been damaged without proof of actual damages (citing Rhodes v. Harwood, 273 Or 903, 926-27, 544 P2d 147 (1975)); Bldg. Structures, Inc. v. Young, 328 Or 100, 105 n 2, 968 P2d 1287 (1998) (listing various claims for which damages are presumed).

But nominal damages are not always recoverable in every case in which a right has been violated, even if the claim is one for which damages are presumed. A court may decline to award nominal damages when "'neither (1) danger of prescription nor (2) substantial loss or injury nor (3) willful wrongdoing by [the] defendant are established.'" Kulm v. Coast-to-Coast Stores Cent. Org., Inc., 248 Or 436, 443, 432 P2d 1006 (1967) (quoting with approval Charles T. McCormick, McCormick on Damages 96 (1935)); accord Allison v. Shepherd, 285 Or 447, 455, 591 P2d 735 (1979) (discussing Kulm and concluding that no good purpose would be served by allowing nominal damages under the particular circumstances of the case).

§ 2.2-2 Breach of Contract

It is not clear whether nominal damages are available in Oregon for breach of contract. In Dean Vincent, Inc. v. Krimm, 285 Or 439, 445, 591 P2d 740 (1979), questioned on other grounds in Illingworth v. Bushong, 297 Or 675, 688 P2d 379 (1984), the Oregon Supreme Court held that there was "no basis for nominal damages" on the plaintiff's breach of contract claim because, in the absence of an actual injury, the plaintiff had "no cause of action." See Chartis Specialty Ins. Co. v. Am. Contractors Ins. Co. Risk Retention Grp., No 3:13-CV-01669-KI, 2015 WL 364315 at *5 (D Or Jan 27, 2015), appeal dismissed (9th Cir Apr 27, 2015) (declining to...