DAMAGES GENERALLY. Chapter 1. Sandra J. Wunderlich* I. General

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1 Sandra J. Wunderlich* Chapter 1 DAMAGES GENERALLY I. General A. ( 1.1) Definition B. ( 1.2) Purpose C. Compensatory Damages 1. ( 1.3) Purpose 2. ( 1.4) Contract Actions 3. ( 1.5) Damage to Real Property D. ( 1.6) General Damages E. ( 1.7) Special Damages F. ( 1.8) Equitable Remedies G. ( 1.9) Liquidated Damages II. Nominal Damages A. ( 1.10) Definition B. ( 1.11) When Awarded C. ( 1.12) Wrongful Death Actions D. ( 1.13) Negligence Actions E. ( 1.14) Jury Instructions III. Mitigation A. ( 1.15) General B. ( 1.16) Personal Injuries C. ( 1.17) Property Damages D. ( 1.18) Contracts E. ( 1.19) Employment F. ( 1.20) Landlord and Tenant G. ( 1.21) Extent of Bar *Ms. Wunderlich received her B.A., 1988, and J.D., 1991, from the University of Missouri-Columbia. She practices in the St. Louis office of the firm of Stinson Morrison Hecker LLP. 1 1

2 DAMAGES GENERALLY IV. Collateral Source Rule A. ( 1.22) General B. Actions to Which Applicable 1. ( 1.23) Torts 2. ( 1.24) Contracts 3. ( 1.25) Other C. Payments to Which Applicable 1. ( 1.26) Insurance 2. ( 1.27) Unemployment Compensation 3. ( 1.28) Workers Compensation 4. ( 1.29) Sick Leave 5. ( 1.30) Gratuities 6. ( 1.31) Income Taxes 7. ( 1.32) Remarriage 8. ( 1.33) Railroad Retirement Act 9. ( 1.34) Free Public Services D. Exceptions 1. ( 1.35) Payments by or for Tortfeasor 2. ( 1.36) Claimant s Insurance 3. ( 1.37) Tortfeasor s Insurance 4. ( 1.38) Treatment by Tortfeasor 5. ( 1.39) Payments by Tortfeasor 6. ( 1.40) Payments by Joint Tortfeasor V. Burden of Proof A. ( 1.41) General B. ( 1.42) Causation C. ( 1.43) Injury D. ( 1.44) Pecuniary Damages E. ( 1.45) Punitive Damages F. ( 1.46) Loss of Earnings 1. ( 1.47) Past Earnings 2. ( 1.48) Future Earnings 3. ( 1.49) Inference of Future Loss G. ( 1.50) Lost Profits 1. ( 1.51) Established Business 2. ( 1.52) Dependent on Personal Skill 3. ( 1.53) Uncertainty 4. ( 1.54) Nature of Loss Prevents Proof 5. ( 1.55) Wrongful Conduct Prevents Proof H. ( 1.56) Medical Expenses I. ( 1.57) Mitigation VI. Choice of Law A. ( 1.58) Tort B. ( 1.59) Contract 1 2

3 DAMAGES GENERALLY 1.3 I. General A. ( 1.1) Definition Webster s New International Dictionary [571 (1993)] defines the word damages as the estimated reparation in money for detriment or injury sustained; compensation or satisfaction imposed by law for a wrong or injury caused by [a] violation of a legal right. The terms reparation and compensation, as commonly understood, carry with them the idea of making whole, or giving an equivalent or substitute of equal value. Jablonowski v. Modern Cap Mfg. Co., 279 S.W. 89, 95 (Mo. banc 1925). B. ( 1.2) Purpose For every actionable injury there is a corresponding right to damages, and injury arises when a legal right is violated. See: Am. Bus. Interiors, Inc. v. Haworth, Inc., 798 F.2d 1135, 1146 (8 th Cir. 1986) Stroud v. Masek, 262 S.W.2d 47, 51 (Mo. 1953) Rusk Farms, Inc. v. Ralston Purina Co., 689 S.W.2d 671, 681 (Mo. App. E.D. 1985) What the law aims at in every case is reasonable compensation to the injured party. Dimick v. Noonan, 242 S.W.2d 599, 603 (Mo. App. W.D. 1951); DeSalme v. Union Elec. Light & Power Co., 102 S.W.2d 779, 782 (Mo. App. E.D. 1937). C. Compensatory Damages 1. ( 1.3) Purpose Actual damages are compensatory and are measured by the loss or injury sustained. Stiffelman v. Abrams, 655 S.W.2d 522, 531 (Mo. banc 1983); Rotermund v. Basic Materials Co., 558 S.W.2d 688, 691 (Mo. App. E.D. 1977). Weeks-Maxwell Construction Co. v. Belger Cartage Service, Inc., 409 S.W.2d 792, 796 (Mo. App. W.D. 1966) (quoting 25 C.J.S. Damages 3, pp (1966)), states: As a general rule, a person who has sustained loss or injury may receive no more than just compensation for the loss or injury sustained. He is not entitled to be made more than whole, and he may not recover from all sources an amount in excess of the damages sustained, or be put in a better condition than he would have been had the wrong not been committed. 1 3

4 1.4 DAMAGES GENERALLY There must be a wrong done to one person by another and a consequent injury or loss to permit recovery because of the wrong committed. Even though the law may presume damages in some cases and allow a nominal recovery, there must be a real injury to sustain a substantial recovery. State ex rel. Armour Packing Co. v. Dickmann, 124 S.W. 29 (Mo. App. E.D. 1910). The ultimate test for damage is whether the award will fairly and reasonably compensate the plaintiff for the injuries. Anderson v. Burlington N. R.R. Co., 700 S.W.2d 469, 476 (Mo. App. E.D. 1985). In Rothenhoefer v. City of St. Louis, 410 S.W.2d 73 (Mo. 1966), the Court held that the burden of proof for damages is on the party claiming damage; when a building improperly razed by the defendant had no value because of an earlier fire, the plaintiff was not entitled to recover damages. 2. ( 1.4) Contract Actions In a breach of contract case, the goal in awarding damages is to put the nonbreaching party in as good a position as he or she would have been in if the contract had been performed. See Williams v. Hubbard, 789 S.W.2d 810 (Mo. App. W.D. 1990). In Hernandez v. Westoak Realty & Investment, Inc., 771 S.W.2d 876, 880 (Mo. App. E.D. 1989), the court held that this goal is usually achieved by awarding damages representing what most nonbreaching parties would suffer in similar circumstances, then adding items of consequential damages that are peculiar to the parties in the particular case. A plaintiff claiming breach of contract has available and does not need to choose between three types of damages actual, consequential, and benefit of the bargain damages. Ullrich v. CADCO, Inc., 244 S.W.3d 772, 779 (Mo. App. E.D. 2008). These types of damages are not necessarily inconsistent with each other, but a plaintiff may not be made whole more than once. Trimble v. Pracna, 167 S.W.3d 706, 711 (Mo. banc 2005). If the damages are the same, the damage award merges so that there is one recovery. Id. Damages for loss of use are regarded as consequential damages. World Enters., Inc. v. Midcoast Aviation Servs., Inc., 713 S.W.2d 606, 610 (Mo. App. E.D. 1986) (a contract provision excluding consequential damages excluded loss of use damages). Consequential damages for breach of contract are those damages that naturally and proximately flowed from the breach of contract, and they must have been reasonably contemplated by the parties at the time of the parties agreement. Ullrich, 1 4

5 DAMAGES GENERALLY S.W.3d at 779. As long as the consequential damages are not duplicative of actual damages, they are recoverable in a claim for breach of contract, provided consequential damages were not excluded. Catroppa v. Metal Bldg. Supply, Inc., 267 S.W.3d 812, (Mo. App. S.D. 2008). 3. ( 1.5) Damage to Real Property Generally, the measure of damage to real property is the difference between the market value of the property immediately before and immediately after the damage is sustained. See Dubinsky v. United States Elevator Corp., 22 S.W.3d 747, 751 (Mo. App. E.D. 2000). When the amount of damage is insignificant compared to the value of the property as a whole and involves only a small part of the property, the measure of damage may be based on the cost of repair; this is an exception to the general rule. Id. To qualify for this exception, the property owner must present evidence that the cost of repair is insignificant compared to the overall market value of the property. Id. When this is shown, the plaintiff is entitled to recover the cost of repairing or replacing the damaged property unless the cost of repair or replacement would constitute an economic waste, in which case the proper measure of damages is the diminished value of the property. Id. at The cost of repair or replacement constitutes economic waste when it is disproportionate to the diminution in property value. Id. Once the plaintiff has come forward with evidence of the cost of repair, the burden is on the defendant to present evidence that the repair constitutes economic waste. Id. D. ( 1.6) General Damages An injury as an invasion of a legally protected right may cause either general or special damages. Porter v. Crawford & Co., 611 S.W.2d 265, 271 (Mo. App. W.D. 1980). Damages both general and special constitute but a single element, albeit a necessary one, of a tort. Id. (quoting Travelers Indem. Co. v. Chumbley, 394 S.W.2d 418, 422 (Mo. App. S.D. 1965)). General damages are those that the law implies or presumes to have occurred as the natural and logical consequence of a defendant s wrongful act. McMahon v. Kansas City Rys. Co., 233 S.W. 64, 66 (Mo. App. W.D. 1921). Special damages are those that actually result from the wrong complained of but are not such a necessary result that they are implied by law. See: 1 5

6 1.6 DAMAGES GENERALLY Parsons Constr. Co. v. Mo. Pub. Serv. Co., 425 S.W.2d 166, 173 (Mo. 1968) Porter, 611 S.W.2d 265 Condos v. Associated Transps., Inc., 453 S.W.2d 682, 688 (Mo. App. E.D. 1970) Travelers Indem. Co., 394 S.W.2d 418 General damages are not limited to those that must necessarily and inevitably result from the wrongful act. It is enough if in a particular instance they do result from the wrongful act directly and proximately and without reference to the special character, condition, or circumstances of the person wronged. The law then, as a matter of course, implies or presumes them as the effect that necessarily results from the wrongful act in a particular instance. Burns v. Burns, 193 S.W.2d 951, 952 (Mo. App. E.D. 1946). Thus, even when the plaintiff has only included skeletal allegations of the damages sustained, general damages are recoverable. Stefl v. Medtronic, Inc., 916 S.W.2d 879, 883 (Mo. App. E.D. 1996). Special damages, however, cannot be recovered when they have not been pled specifically. Id. The courts have held the term general damages to include: loss of use of a vehicle, Parsons Constr., 425 S.W.2d 166; mental anguish, McMahon, 233 S.W. 64; damage to reputation through false arrest and imprisonment, Burns, 193 S.W.2d 951; and market value of an animal injured in the course of transportation, Van Buskirk v. Quincy, O. & K.C. R. Co., 111 S.W. 832, 834 (Mo. App. W.D. 1908). In Prange v. Prange, 755 S.W.2d 581 (Mo. App. E.D. 1987), an assault and battery case, the court held that mental anguish and humiliation were compensable through general damages because they are necessary and natural consequences of assault. See also Brown v. Mercantile Bank of Poplar Bluff, 820 S.W.2d 327, 338 (Mo. App. S.D. 1991); DeLaporte v. Robey Bldg. Supply, Inc., 812 S.W.2d 526, 534 (Mo. App. E.D. 1991) (both citing Parsons Constr., 425 S.W.2d 166; Porter, 611 S.W.2d 265; and McMahon, 233 S.W. 64). 1 6

7 DAMAGES GENERALLY 1.7 E. ( 1.7) Special Damages Special damages are those that are not considered to arise naturally or usually from the wrongful act but that arise from the circumstances peculiar to the specific contract and that should have been contemplated by the parties at the time they contracted. Hernandez v. Westoak Realty & Inv., Inc., 771 S.W.2d 876, 880 (Mo. App. E.D. 1989). Hernandez also holds that items of consequential damages peculiar to the nonbreaching party are special damages that the plaintiff is entitled to if expressly pled. Special damages must have been actually incurred, and they are not implied by law. They are either superadded to general damages from an act injurious in itself or are damages that arise from an act not actionable in itself but that is injurious only in its consequences. Van Buskirk v. Quincy, O. & K.C. R. Co., 111 S.W. 832, 834 (Mo. App. W.D. 1908); Fleddermann v. St. Louis Transit Co., 113 S.W. 1143, 1145 (Mo. App. E.D. 1908) (whether the injury was general or special depends on whether it is taken in law to be a necessary consequence of the tortious acts alleged because a like result so usually follows these acts that it is legally presumed to follow in a particular case). Prejudgment interest in tort cases is not special damage. The right to prejudgment interest in tort does not arise from the wrongful act, but rather from the tortfeasor s rejection of a demand or offer of settlement lower than the eventual judgment. Chambers ex rel. Abel v. Rice, 858 S.W.2d 230, 233 (Mo. App. S.D. 1993). But the demand must be specific enough to trigger the right to prejudgment interest. In Kaplan v. U.S. Bank, N.A., No. ED 85640, 2005 WL (Mo. App. E.D. Nov. 15, 2005) (Kaplan II), transfer ordered February 28, 2006, the appellate court reversed the trial court s award of prejudgment interest in a tort action. In Kaplan II, the plaintiff filed suit against the bank and its contractor for the improper disposal of PCB (polychlorinated biphenyls)-contaminated soil on the plaintiff s property. Before filing suit, as is required by 42 U.S.C of the Resource Conservation and Recovery Act of 1976 (42 U.S.C et seq.), the plaintiff sent the defendant notice that it intended to take corrective action to remove the contaminated soil from its property and that it intended to file suit to recover the costs of the removal plus all other costs associated with the removal, including attorney fees and costs. The appellate court rejected the plaintiff s claim that this notice letter constituted a demand under , now RSMo Supp The court found 1 7

8 1.7 DAMAGES GENERALLY that the plaintiff s demand was neither definite nor readily ascertainable from the context of the letter. Courts have held the following were special damages that must be specifically pled: the professional aid of an attorney to mitigate damages and avoid future losses, Hoffman v. Quality Chrysler Plymouth Sales, Inc., 706 S.W.2d 576, 581 (Mo. App. E.D. 1986); the cost of an operation after physical injury, Condos v. Associated Transps., Inc., 453 S.W.2d 682, 688 (Mo. App. E.D. 1970); medical and hospital expenses, loss of earnings, and diminished capacity to work, Travelers Indem. Co. v. Chumbley, 394 S.W.2d 418, 422 (Mo. App. S.D. 1965); malignancy or cancer resulting from an injury, Murray v. De Luxe Motor Stages of Ill., 133 S.W.2d 1074, 1077 (Mo. App. E.D. 1939); the shortening of the plaintiff s leg following an injury, Fleddermann, 113 S.W insanity and traumatic neurosis, Connor v. Kansas City Rys. Co., 250 S.W. 574, 576 (Mo. 1923); miscarriage and a subsequent infection, Walquist v. Kansas City Rys. Co., 237 S.W. 493, 495 (Mo. 1922); and loss of services and medical bills, Coontz v. Mo. Pac. Ry. Co., 22 S.W. 572, 573 (Mo. 1893). In limited circumstances, attorney fees may be awarded as special damages. In Miller v. Higgins, 452 S.W.2d 121 (Mo. 1970), the Court awarded attorney fees and accountant fees as special damages, noting that these fees were not incurred as part of the plaintiff s effort to litigate his claim; rather, they were incurred in an effort to mitigate damages and avoid future losses. Similarly, in Seidel v. Gordon A. Gundaker Real Estate Co., 904 S.W.2d 357, 364 (Mo. App. E.D. 1995), the court awarded attorney fees to the plaintiff as part of her damages, reasoning that she had been fraudulently induced into signing a contract to purchase a residence but learned of the fraud 1 8

9 DAMAGES GENERALLY 1.9 before closing the sale. The plaintiff was sued by the sellers for specific performance. The plaintiff settled the seller s claim and sought attorney fees and the cost of settlement from the defendant in a subsequent suit. The court agreed that the attorney fees to defend against the seller s claim and the cost of the settlement were the appropriate measure of damage and were special damages that were recoverable under the circumstances. Id. In Lucas Stucco & EIFS Design, LLC v. Landau, 324 S.W.3d 444, 445 (Mo. banc 2010), the Supreme Court of Missouri reiterated that attorney fees must be plead as special damages, but the plaintiff is not required to set forth the statutory basis for the recovery of attorney fees as long as the elements to satisfy the statutory basis for the recovery of fees were pled. F. ( 1.8) Equitable Remedies Although the traditional definition of damages remains the same under the law, some courts have held that equitable remedies that cost money are included in the definition of damages as that term is used in an insurance contract. In Farmland Industries, Inc. v. Republic Insurance Co., 941 S.W.2d 505, 508 (Mo. banc 1997), the Supreme Court of Missouri considered this issue in the context of environmental response costs. The insurance company argued that these costs were in the nature of an equitable remedy and thus not covered by the policy. The Court, however, held that these costs were damages for purposes of the insurance policies at issue, finding no reason to distinguish between an equitable remedy in the form of cost recovery and legal damages. Id. at ; see also Superior Equip. Co. v. Md. Cas. Co., 986 S.W.2d 477, 483 (Mo. App. E.D. 1998); Brown Group, Inc. v. George F. Brown & Sons, Inc., 963 S.W.2d 285, 287 (Mo. App. E.D. 1997). G. ( 1.9) Liquidated Damages A liquidated damages clause in a contract represents the parties stipulation that a particular measure of compensation will represent the damages in the event of a breach. Diffley v. Royal Papers, Inc., 948 S.W.2d 244, 246 (Mo. App. E.D. 1997). Liquidated damages take the place of actual damages. Eureka Dev., Inc. v. Port Jefferson Realty, LLC, No. 4:05CV1281 FRB, 2007 WL , at *2 (E.D. Mo. Oct. 3, 2007) (applying principles of Missouri law). Thus, when there is an enforceable liquidated damages clause, there is no need to prove actual damages, and whether the actual damages are more or less 1 9

10 1.9 DAMAGES GENERALLY than the liquidated damages is of no consequence. Id. But the plaintiff must show at least some actual harm or damage caused by the breach before a liquidated damages clause is triggered. Grand Bissell Towers, Inc. v. Joan Gagnon Enters., Inc., 657 S.W.2d 378, 379 (Mo. App. E.D. 1983). Because the liquidated damages are intended to compensate for the breach and are, in essence, a stipulation as to the amount of actual damages, the plaintiff cannot recover both liquidated damages and actual damages for the same injury. Paragon Group, Inc. v. Ampleman, 878 S.W.2d 878, 882 (Mo. App. E.D. 1994). With a valid liquidated damages clause, the nonbreaching party does not have a duty to mitigate damages. Burst v. R.W. Beal & Co., 771 S.W.2d 87, (Mo. App. E.D. 1989). Thus, there is no right of offset for benefits received by the nonbreaching party or any claim for unjust enrichment by enforcing a valid liquidated damages clause because this would have the effect of eliminating this provision in a contract. Eureka Dev., 2007 WL , at *3. If the agreed-on amount is a reasonable forecast of the harm caused by the breach, and the harm caused by the breach is difficult to accurately measure, a liquidated damages provision is enforceable. Id. Courts, however, require that the liquidated damages provision be compensatory rather than a penalty. Id. If its application is punitive, the courts may refuse to enforce it. Id.; see also Frank v. Sandy Rothschild & Assocs., Inc., 4 S.W.3d 602, (Mo. App. E.D. 1999). In evaluating whether the liquidated damages is penal in nature, courts balance the ability to forecast damages accurately with the requirement that the liquidated damages be a reasonable estimate, and the more difficult it is to measure the actual damages, the less weight is given to the requirement that it be a reasonable forecast. Valentine s, Inc. v. Ngo, 251 S.W.3d 352 (Mo. App. S.D. 2008). Courts look to the intent of the parties as determined from the contract as a whole to determine whether the liquidated damages provision is intended for compensation or is in the nature of a penalty designed to compel performance. Repair Masters Constr., Inc. v. Gary, 277 S.W.3d 854, 859 (Mo. App. E.D. 2009) (the court reversed judgment in favor of the plaintiff for the liquidated damages amount, finding that the provision was unconscionable in that the contract did not include the price or scope of the work to be completed.) Courts have recognized that a liquidated damages clause could render a contract unenforceable. Hawkins v. Foster, 897 S.W.2d 80, 85 (Mo. App. S.D. 1995) (recognizing that Missouri does not enforce 1 10

11 DAMAGES GENERALLY 1.11 unreasonably large liquidated damages on the ground of public policy against penalties, but an unreasonably small amount might be unenforceable as unconscionable). But the mere presence of a liquidated damages clause is not sufficient to make the contract illusory or unenforceable. City of Richmond Heights v. Waite, 280 S.W.3d 770, 777 (Mo. App. E.D. 2009). II. Nominal Damages A. ( 1.10) Definition The term nominal damages means a trivial or trifling amount. Seelig v. Mo., K. & T. Ry. Co., 230 S.W. 94 (Mo. 1921). An award of only $25 per month was held to be actual damages rather than nominal damages. See Davis v. Broughton, 369 S.W.2d 857 (Mo. App. S.D. 1983). Similarly, $1,000 has been held to be excessive to qualify as nominal damages. Green v. Study, 286 S.W.3d 236, 242 (Mo. App. S.D. 2009). Nominal damages are usually fixed at a trivial or trifling amount no more than $1.00, and sometimes less. Id. Nominal damages can be significant because they may determine the right to an award of costs and punitive damages. See: Stroud v. Masek, 262 S.W.2d 47, 51 (Mo. 1953) Clark v. Beverly Enters.-Mo., Inc., 872 S.W.2d 522, (Mo. App. W.D. 1994) Thornbrugh v. Poulin, 679 S.W.2d 416, 418 (Mo. App. S.D. 1984) Wise v. Towse, 366 S.W.2d 506, 509 (Mo. App. W.D. 1963) See also Davis, 369 S.W.2d at 864 (nominal damages are damages in name only, a mere peg to hang costs on ). B. ( 1.11) When Awarded The general theory of nominal damages is that they should be allowed when a legal right has been invaded but no actual damages were suffered or proved, or when there is no evidence from which the value of the damages may be ascertained. See: 1 11

12 1.11 DAMAGES GENERALLY McClellan v. Highland Sales & Inv. Co., 484 S.W.2d 239, 241 (Mo. 1972) (trespass) La Grange Reorganized Sch. Dist. No. R-VI v. Smith, 312 S.W.2d 135, 139 (Mo. 1958) (trespass) Clark v. Beverly Enters.-Mo., Inc., 872 S.W.2d 522 (Mo. App. W.D. 1994) Nominal damages are awarded as a recognition of some breach of a duty owed by the defendant to the plaintiff and not as a measure of compensation for loss or detriment suffered. In Simpkins v. Ryder Freight System, Inc., 855 S.W.2d 416, 422 (Mo. App. W.D. 1993), the court explained that nominal damages are not a species of actual damages because it is the absence of actual damage that renders the defendant s misconduct liable for nominal damages. Nominal damages are imputed to vindicate a right that otherwise would go without redress. But nominal damages cannot be awarded when pecuniary damages are an element of the tort claimed. Tindall v. Holder, 892 S.W.2d 314, 321 (Mo. App. S.D. 1994). For example, pecuniary loss is an intrinsic element of an action sounding in fraud or deceit, and thus, damages must be proven. Id. In actions for breach of contract, proof of the contract and its breach give rise to nominal damages regardless of whether actual damages were suffered. See: Morehouse v. Behlmann Pontiac-GMC Truck Serv., Inc., 31 S.W.3d 55 (Mo. App. E.D. 2000) Kozeny-Wagner, Inc. v. Shark, 709 S.W.2d 149, 152 (Mo. App. E.D. 1986) Sunny Baer Co. v. Slaten, 623 S.W.2d 595, 597 (Mo. App. E.D. 1981) Duncan v. Kelly, 435 S.W.2d 29, 34 (Mo. App. W.D. 1968) Thus, a submissible case is made regardless of the failure to prove actual damages. Kincaid Enters., Inc. v. Porter, 758 S.W.2d 503, 504 (Mo. App. W.D. 1988). See also Farer v. Benton, 740 S.W.2d 676 (Mo. App. E.D. 1987), which held that: 1 12

13 DAMAGES GENERALLY 1.11 when an actionable injury is shown, the plaintiff has a right to damages; and if the evidence is insufficient to provide a basis for calculation of actual damages, the plaintiff is entitled to nominal damages. But see Gilmore v. Chicago Title Ins. Co., 926 S.W.2d 695, 700 (Mo. App. E.D. 1996) (damages were an essential element of a breach of contract action, and the plaintiff s failure to prove he had been damaged resulted in a directed verdict); Rice v. W. End Motors, Co., 905 S.W.2d 541, 542 (Mo. App. E.D. 1995) (the court reversed judgment for the plaintiff, holding that a breach of a contract that causes no loss to the plaintiff will not support a judgment). Recovery of nominal damages has also been allowed without proof of injury in cases involving: tortious interference with business relations, Rusk Farms, Inc. v. Ralston Purina Co., 689 S.W.2d 671, 681 (Mo. App. E.D. 1985); statutory service letters, Rotermund v. Basic Materials Co., 558 S.W.2d 688, 691 (Mo. App. E.D. 1977); Schmidt v. Cent. Hardware Co., 516 S.W.2d 556, 560 (Mo. App. E.D. 1974); Lyons v. St. Joseph Belt Ry. Co., 84 S.W.2d 933, 941 (Mo. App. W.D. 1935); recovery on replevin bonds, Glidewell v. Bennett, 493 S.W.2d 670, 672 (Mo. App. W.D. 1973); ejectment, Curd v. Reaban, 232 S.W.2d 389, 392 (Mo. 1950); Davis v. Broughton, 369 S.W.2d 857, 864 (Mo. App. S.D. 1963); defamation of title, Greenlake Inv. Co. v. Swarthout, 161 S.W.2d 697, 699 (Mo. App. E.D. 1942); wrongful discharge of sewage, Carpenter v. City of Versailles, 65 S.W.2d 957, 958 (Mo. App. W.D. 1933); sheriff s bond for false return, State ex rel. Armour Packing Co. v. Dickmann, 124 S.W. 29, 31 (Mo. App. E.D. 1910); 1 13

14 1.12 DAMAGES GENERALLY fraud and deceit, Auffenberg v. Hafley, 457 S.W.2d 929, 939 (Mo. App. E.D. 1970); slander, Snodgrass v. Headco Indus., Inc., 640 S.W.2d 147, 157 (Mo. App. W.D. 1982); and compensation for services, Seelig v. Mo., K. & T. Ry. Co., 230 S.W. 94 (Mo. 1921). C. ( 1.12) Wrongful Death Actions In wrongful death cases, the law implies pecuniary loss from a decedent s legal duty to support a party or a party s right to receive support from a decedent. See: Stroud v. Masek, 262 S.W.2d 47, 51 (Mo. 1953) (husband) Kastner v. Beech Aircraft Corp., 650 S.W.2d 312, 315 (Mo. App. W.D. 1983) (husband and father) State ex rel. Kansas City Stock Yards Co. of Me. v. Clark, 536 S.W.2d 142, 148 (Mo. banc 1976) (child) Aubuchon v. LaPlant, 435 S.W.2d 648, 652 (Mo. 1968) (child) When a pecuniary benefit from the continued life of a decedent cannot be shown, nominal damages may not be recovered. Auld v. Terminal R.R. Ass n of St. Louis, 463 S.W.2d 297, 300 (Mo. 1970) (brother); Acton v. Shields, 386 S.W.2d 363, 369 (Mo. 1965) (grandparents, aunts, and uncles). D. ( 1.13) Negligence Actions The essential factual elements of a claim for personal injury because of negligence include duty and a breach of that duty, causation, and injury. Because damage is an element of a negligence cause of action, nominal damages cannot be awarded. See: Biscoe v. Kowalski, 290 S.W.2d 133, 138 (Mo. 1956) Eickmann v. St. Louis Pub. Serv. Co., 253 S.W.2d 122 (Mo. 1952) Ponder v. Angel Animal Hosp., Inc., 762 S.W.2d 846, 847 (Mo. App. S.D. 1988) 1 14

15 DAMAGES GENERALLY 1.15 Wise v. Sands, 739 S.W.2d 731, 734 (Mo. App. S.D. 1987) Quick v. All Tel Mo., Inc., 694 S.W.2d 757, 759 (Mo. App. E.D. 1985) Watts v. Handley, 427 S.W.2d 272, 276 (Mo. App. W.D. 1968) Wise v. Towse, 366 S.W.2d 506, 510 (Mo. App. W.D. 1963) But see Johnson v. Summers, 608 S.W.2d 574, 575 (Mo. App. S.D. 1980) (the plaintiffs were entitled to nominal damages in a negligence action when the plaintiffs evidence was insufficient to afford a basis for the calculation of damages but was sufficient to show consequential damages to their automobile). Nominal damages cannot be recovered in a negligence action when no actual loss occurred. Wise, 366 S.W.2d at 510. E. ( 1.14) Jury Instructions When a plaintiff seeks to recover nominal damages, at least one court has approved the use of MAI 4.01 [1980 Revision] (now [2002 Revision]). The court suggests that the following language be added at the end of the damage instruction: [I]f you find in favor of plaintiff, but do not believe plaintiff sustained compensatory damages, you must award plaintiff nominal damages in the amount of one dollar. Clark v. Beverly Enters.-Mo., Inc., 872 S.W.2d 522, 526 (Mo. App. W.D. 1994). III. Mitigation A. ( 1.15) General Mitigation of damages as a generally recognized principle of law is also known as the rule of avoidable consequences. It requires someone who is damaged by another s breach of some legal duty or obligation to make reasonable efforts to minimize the resulting damages. See: Shaughnessy v. Mark Twain State Bank, 715 S.W.2d 944, 954 (Mo. App. E.D. 1986) Fletcher v. City of Independence, 708 S.W.2d 158, 171 (Mo. App. W.D. 1986) Economy Gas Co. v. Bradley, 472 S.W.2d 878, 880 (Mo. App. S.D. 1971) 1 15

16 1.16 DAMAGES GENERALLY The failure to mitigate damages is an affirmative defense that must be pled. See State v. Polley, 2 S.W.3d 887, 892 (Mo. App. W.D. 1999); Blue Ridge Ctr. Ltd. P ship v. Zadeh, 943 S.W.2d 357 (Mo. App. W.D. 1997). B. ( 1.16) Personal Injuries A person who suffers an injury is bound to exercise reasonable care in seeking and accepting medical aid. See: Stipp v. Tsutomi Karasawa, 318 S.W.2d 172, 175 (Mo. 1958) Cline v. City of St. Joseph, 245 S.W.2d 695, 702 (Mo. App. W.D. 1952) Adams v. Carlo, 101 S.W.2d 753, 756 (Mo. App. E.D. 1937) The wrongdoer has a right to complain only if mitigation of damages can be done safely, Kay v. Kansas City Pub. Serv. Co., 23 S.W.2d 1087, 1088 (Mo. App. W.D. 1930), or without risk of serious injury to the injured party, King v. City of St. Louis, 155 S.W.2d 557, 565 (Mo. App. E.D. 1941). If an injury is aggravated by an injured person s neglect in seeking and accepting medical aid, the injured person will not be permitted to recover for injuries and disability that might have been prevented by reasonable efforts. See: Stipp, 318 S.W.2d at 175 Steinmeyer v. Baptist Mem l Hosp., 701 S.W.2d 471 (Mo. App. W.D. 1985) Brown v. Kroger Co., 358 S.W.2d 429, 432 (Mo. App. S.D. 1962) Adams, 101 S.W.2d at 756 Similarly, when a plaintiff neglects to undergo a simple operation that could, without serious danger, relieve the plaintiff of injuries, the damages will be minimized in proportion to the amount the injuries would have been reduced by the operation less the cost of the operation and compensation for the pain occasioned by it. King, 155 S.W.2d at 565. King also held, however, that a person is not required to take the risk of serious surgical operation and hazard his or her life for the benefit of a wrongdoer, and failure to do so cannot be used to reduce the recovery. 1 16

17 DAMAGES GENERALLY 1.18 In Love v. Park Lane Medical Center, 737 S.W.2d 720 (Mo. banc 1987), the Court held that it was appropriate to express mitigation of damages in jury instructions as a percentage of fault, which reduced the plaintiff s recoverable damages. Whether a defendant in a personal injury action is entitled to reduce the plaintiff s damages because of backpay awards depends on whether the plaintiff received compensation from the employer for the period of disability and the character of the compensation. Aaron v. Johnston, 794 S.W.2d 724, 726 (Mo. App. W.D. 1990). Aaron holds that, if the payment was for services currently rendered, the defendant is entitled to the reduction, but if the continued pay is gratuitous or is compensation for sick leave or annual leave, the defendant is not entitled to mitigation under the collateral source rule. C. ( 1.17) Property Damages A property owner has the duty to make repairs to the property to reduce the damage as much as possible before reimbursement is sought from a wrongdoer. Stallman v. Hill, 510 S.W.2d 796, 799 (Mo. App. W.D. 1974). A landowner who is prevented from planting the crop contemplated should not allow a field to lie idle if it is possible and practical to plant another crop. Sullivan v. Winer, 307 S.W.2d 704, 708 (Mo. App. E.D. 1957). As such, the damages will be reduced by the amount of profit the plaintiff could have realized on another crop that could have been planted instead. Id. It is the property owner s duty to minimize damages as far as reasonably possible. Gerst v. Flinn, 615 S.W.2d 628, 631 (Mo. App. E.D. 1981). But, the rule of mitigation bars recovery only of those damages that reasonable precaution could have avoided when the means to mitigate were reasonably known to the plaintiff. Fletcher v. City of Independence, 708 S.W.2d 158, 175 (Mo. App. W.D. 1986). D. ( 1.18) Contracts As a general rule, a person damaged by a breach of contract must make reasonable efforts to minimize the damages. A.G. Edwards & Sons, Inc. v. Drew, 978 S.W.2d 386, 391 (Mo. App. E.D. 1998). For example, in a case involving specific performance of a contract to purchase land, a vendee may not permit the purchase sum to remain unproductive; the vendee must minimize the interest loss by depositing the amount of the purchase price in an interest-bearing account so that any interest earned will be credited to the interest recovery. Arnold v. Smith, 436 S.W.2d 719, 724 (Mo. 1969). 1 17

18 1.19 DAMAGES GENERALLY E. ( 1.19) Employment The rule of avoidable consequences also applies to employment relationships, permitting the employer to reduce damages recoverable by a wrongfully discharged employee by whatever the employee has earned or by reasonable diligence could have earned during the period of wrongful discharge. Wolf v. Mo. State Training Sch. for Boys, 517 S.W.2d 138 (Mo. banc 1974). Wolf also held that, in the absence of a constitutional, charter, or statutory provision that unmistakably dictates a contrary result, the rule applies to civil service and other public employees. A plaintiff wrongfully enjoined from certain employment must attempt to mitigate the damages by seeking other employment during the period in which the plaintiff was enjoined. Id.; Economy Gas Co. v. Bradley, 472 S.W.2d 878, 881 (Mo. App. S.D. 1971). Improperly removed public officials have a duty to take reasonable steps to mitigate damages by doing what they can to earn income during the time they would otherwise be attending to their public duties. Edwards v. Schoemehl, 765 S.W.2d 607, 610 (Mo. banc 1989). When a person who is wrongfully enjoined from certain employment fails to minimize the resulting damages, damages will not be allowed for such loss. Economy Gas, 472 S.W.2d at 881. Those sums that the respondent has earned or could have earned while deprived of employment will be offset against compensation determined to be due. Davis v. Human Dev. Corp., 705 S.W.2d 540, 544 (Mo. App. E.D. 1985); Pollard v. Bd. of Educ. Reorganized Sch. Dist. No. III, Platte Cnty., 533 S.W.2d 667, 671 (Mo. App. W.D. 1976). In Wolf, 517 S.W.2d 138, the Court also held that the attorney fees and expenses the employee incurred to achieve reinstatement should be subtracted from the earnings he received from substitute employment to mitigate the backpay. This holding was overruled by McGhee v. Dixon, 973 S.W.2d 847, (Mo. banc 1998), based on , now RSMo 2000, which authorizes the recovery of attorney fees and expenses in certain agency proceedings. F. ( 1.20) Landlord and Tenant Under Missouri law, a residential landlord has three options when a tenant defaults on a lease. One of these options requires the landlord to: 1 18

19 DAMAGES GENERALLY 1.22 notify the tenant of the landlord s intent to resume possession of the premises; and attempt to relet the premises to mitigate any damages. Blue Ridge Ctr. Ltd. P ship v. Zadeh, 943 S.W.2d 357 (Mo. App. W.D. 1997). Although a residential landlord usually does not have a duty to mitigate damages, a landlord that opts to resume possession and notifies the tenant of the intention to relet the premises has voluntarily assumed a duty to mitigate. JCBC, L.L.C. v. Rollstock, Inc., 22 S.W.3d 197, 200 (Mo. App. W.D. 2000). Once the landlord assumes the duty to mitigate, its attempts must be reasonable. Id. at 201. The tenant bears the burden of proving that the landlord did not make reasonable attempts to mitigate. Id. G. ( 1.21) Extent of Bar A failure to mitigate damages will not bar a recovery but will only prevent the recovery of damages that might have been avoided by reasonable efforts on the plaintiff s part. See: Faire v. Burke, 252 S.W.2d 289, 293 (Mo. 1952) Fletcher v. City of Independence, 708 S.W.2d 158, 174 (Mo. App. W.D. 1986) Whitehorn v. Dickerson, 419 S.W.2d 713, 714 (Mo. App. S.D. 1967) Cline v. City of St. Joseph, 245 S.W.2d 695, 702 (Mo. App. W.D. 1952) IV. Collateral Source Rule A. ( 1.22) General Under the collateral source rule, wrongdoers are not entitled to have damages for which they are liable reduced by proving that a plaintiff has received or will receive compensation or indemnity for the loss from a collateral source that is wholly independent of the wrongdoer. Stated more succinctly, the wrongdoer may not be benefited by collateral payments made to the person wronged. See: 1 19

20 1.23 DAMAGES GENERALLY Iseminger v. Holden, 544 S.W.2d 550, 552 (Mo. banc 1976) Overton v. United States, 619 F.2d 1299, 1306 (8 th Cir. 1980) Hagedorn v. Adams, 854 S.W.2d 470, 476 (Mo. App. W.D. 1993) Beck v. Edison Bros. Stores, Inc., 657 S.W.2d 326, 331 (Mo. App. E.D. 1983) Blessing v. Boy Scouts of Am., 608 S.W.2d 484, 488 (Mo. App. W.D. 1980) The collateral source rule is an exception to the general rule that damages in tort should be compensatory only; it permits recovery against a wrongdoer for the full amount of damages even if the plaintiff is also compensated from a different source if that source is wholly independent of the wrongdoer. McMullin v. Borgers, 806 S.W.2d 724, 731 (Mo. App. E.D. 1991). It also prohibits the introduction of evidence relating to compensation received from a collateral source if that evidence is relevant for no other purpose. See, e.g., Perkins v. Runyan Heating & Cooling Servs., Inc., 933 S.W.2d 837, 840 (Mo. App. W.D. 1996) (evidence of the receipt of workers compensation payments or a third-party settlement for an unrelated injury was relevant when the plaintiff sought lost income for certain years following the accident). Clearly, though, when the plaintiff opens the door to the issue by injecting the plaintiff s financial condition into the case, the defendant is entitled to demonstrate that other financial assistance was available. See Washington ex rel. Washington v. Barnes Hosp., 897 S.W.2d 611 (Mo. banc 1995). B. Actions to Which Applicable 1. ( 1.23) Torts The collateral source rule is well established in the law of damages. It is an exception to the rule in negligence actions that damages must be compensatory. Iseminger v. Holden, 544 S.W.2d 550, 552 (Mo. banc 1976). See 1.56 below for a discussion regarding the amount of medical expenses recoverable in actions for personal injury and the rebuttable presumption related to these amounts. 1 20

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