A. Damages Generally

• Library: The South Carolina Law of Torts (SCBar) (2023 Ed.)

A. Damages Generally

A damages award is the law's way of acknowledging a money value, to be awarded in the form of a judgment, to the plaintiff for actionable loss the defendant caused. The basic measure of actual damages is the amount required to compensate plaintiff for the losses proximately caused by defendant's wrong so that plaintiff will be in the same position the plaintiff would have been in if there had been no wrongful injury.¹

Determining damages involves the law of civil procedure and evidence in the context of trial practice in a practical way that is distinctively "lawyer-like."² Thus, it is not surprising that practitioners have written a number of treatises on damages.³ No work of the present scope can supply the detailed information and instruction such treatises provide. The purpose of a chapter on damages in this single volume text is to present a short summary of the law of damages and to relate the recognized elements of the subject to the other aspects of torts discussed in this book. Consistent with this focus, this chapter will not address the topic of "court costs."⁴ Nor will the chapter address the potential problems arising from third-party claims—for example, the claim of an insurance company that has paid for plaintiff's medical expenses.⁵

1. The Three Types of Damages

There are three general types of damages—nominal, compensatory or actual, and punitive. Nominal damages may be a token amount—for example, one dollar—to vindicate a dignitary or intangible interest by establishing that an actionable wrong has occurred even though no monetary injury was sustained. Nominal damages are exceptional because, in most cases, the plaintiff must demonstrate compensable injury to person, property, or economic well-being to establish an actionable wrong.

Compensatory damages are damages to compensate for actual injury sustained.

Punitive damages are awarded in those cases where the conduct of the defendant is so blameworthy that an award of punitive or exemplary damages is justified. The plaintiff must first establish a right to nominal or compensatory damages in order to recover punitive damages. The amount of punitive damages is usually discretionary in common law actions. By contrast, some statutes authorize a punitive award in the form of some multiple of actual damages, typically, in the form of treble damages.

2. Judicial Supervision of the Amount of Verdicts⁶

Though the amount of damages is generally a factual matter for the jury, the jury's discretion is subject to supervision and check by the court.⁷ This subsection addresses the traditional common law scheme for judicial supervision of any award of damages, whether compensatory or punitive. Judicial review of the amount of punitive awards by the jury is addressed as a part of the discussion of punitive damages in Section E below.⁸

Under South Carolina law, requests for post-trial relief in the form of motions under Rule 59, SCRCP, for a new trial nisi or for a new trial absolute are available to parties claiming that a verdict is excessive or inadequate.⁹ These two motions are often made at the same time, in the form of a request for alternative relief. The trial judge must review the jury's damages award and decide if the award is: (1) reasonable, in which case the motions are denied; (2) merely inadequate or excessive, in which case a new trial nisi may be granted; or (3) so grossly inadequate or excessive that they are the result of passion, caprice or prejudice, in which case a new trial absolute must be granted.¹⁰ A new trial absolute may also be granted under the "thirteenth juror" doctrine.¹¹ Where a trial court grants a new trial on more than one basis, the losing party must appeal both grounds.¹²

Though strict logic may not always require it, the courts generally reverse any punitive award along with the compensatory damages award when the compensatory damages are inadequate or excessive.¹³ Where a default judgment is involved, an award that is patently and greatly out of proportion to the wrongs alleged in the complaint may be vacated by the appellate court on general equity principles.¹⁴ There may also be occasions where the trial judge must reconcile inconsistent verdicts;¹⁵ however, the power to reform verdicts is very limited.¹⁶

a. New Trial Nisi

When a party moves for a new trial based on a challenge that the verdict is either excessive or inadequate, the trial judge must distinguish between awards that are merely unduly liberal or conservative and awards that are actuated by passion, caprice, or prejudice.¹⁷ When the verdict indicates that the jury was unduly liberal or conservative in its view of the damages, the trial judge alone has the power to alter the verdict by granting a new trial nisi.¹⁸ However, when the verdict is so grossly excessive or inadequate that the amount awarded is so shockingly disproportionate to the injuries as to indicate that the jury was moved or actuated by passion, caprice, prejudice, or other considerations not found in the evidence, it becomes the duty of the trial judge and the appellate court to set aside the verdict absolutely.¹⁹

If the trial court determines that the verdict is "merely inadequate" or "merely excessive" based on the evidence, the trial court has the authority to increase or reduce the verdict by granting a new trial nisi.²⁰ If the trial court determines that the verdict is "merely inadequate" or "merely insufficient" based on the evidence, it has the authority to increase the verdict by granting a new trial nisi additur.²¹If the trial court determines that the jury's verdict is "merely excessive" based on the evidence, it has the authority to reduce the verdict by granting a new trial nisi remittitur.²²If the trial court grants a new trial nisi, the court must make a finding that the verdict is merely insufficient and set forth compelling reasons which justify invading the jury's province in such a manner.²³

The import of a new trial nisi additur or nisi remittitur is a suggestion on the part of the judge of a settlement figure.²⁴ Thus, the refusal of the nonmoving party to accept the additur or remittitur results in a new trial absolute.²⁵ On the other hand, if the nonmoving party agrees to the suggested amount, that party may not later complain. The prevailing party, having asked for the relief, must likewise be content with the determination.²⁶ Thus, it may be important and wise for the motion requesting relief to be specific about the amount of additur or remittitur desired.²⁷ If the trial court grants remittitur and the plaintiff accepts, the plaintiff is permitted to cross appeal the trial court's ruling if the defendant thereafter appeals.²⁸

The grant or denial of a motion for a new trial nisi on the ground of either excessiveness or inadequacy are within the trial judge's sound discretion²⁹ and will not be reversed on appeal unless the trial judge abused that discretion.³⁰ The trial judge's exercise of such discretion, however, is not absolute, and it is the appellate court's duty in a proper case to review and determine whether there has been an abuse of discretion amounting to error of law.³¹

Riley v. Ford Motor Co. provides a helpful example of the new trial nisi procedure. In a products liability wrongful death case the trial court found it was "compelled to grant [additur] because every element of wrongful death damages was proven by the [estate] and the $300,000 verdict d[id] not reflect the evidence on these issues." The trial court found the estate presented "undisputed, uncontroverted evidence" of economic loss in the amount of $228,605. The estate also presented evidence of a funeral bill for $10,196, which amounted to a total claim of economic loss of $238,801. As to noneconomic damages, the trial court found the estate's "uncontested" evidence showed "the beneficiaries ... suffered each of the compensable elements of [noneconomic] loss," and noted that these damages "were not only established, but shown to be significant through uncontested, emotionally compelling testimony." The trial court went on to summarize the testimony of Riley's family and friends, which the court found "showed that this family of beneficiaries, perhaps more than most wrongful death beneficiaries, suffered great loss" and "left no question as to the grief, emotional turmoil, and loss suffered." The trial court then concluded, "For all of the compelling reasons listed above, it is abundantly clear that the verdict in this case was inadequate, in light of the evidence present[ed] at trial, and a granting of nisi additur is appropriate."

The South Carolina Court of Appeals reversed. The court stated that by subtracting $238,801—the maximum amount of economic loss suffered by the estate—from the jury's verdict of $300,000, the jury awarded at least $61,199 in noneconomic damages so that, in essence, the trial court ruled that $61,199 in noneconomic damages was not enough. In other words, the jury awarded noneconomic damages, but the trial court disagreed as to whether the amount was sufficient. The S.C. Court of Appeals found this was not a "compelling reason" to invade the province of the jury. The court noted this case was different from those in which the appellate court affirmed the granting of additur when the jury altogether failed to award noneconomic damages. The court concluded:

As a general rule, the "determination of reasonable compensation for non [economic] damages ... is ... left to the jury's discretion." The assessment of noneconomic damages "turns on the facts of each case," and the value of these damages "cannot be determined by any fixed yardstick." Our civil justice system is built on the foundation that such determinations are to be made by juries, not judges. Limiting our holding to the facts of this case, we find the jury awarded damages for noneconomic loss, and the trial court's mere disagreement with the jury's determination of the

...