The Lawletter Vol 35 No 10, July 8, 2011
It is rare (and in some cases prohibited) for a party to recover punitive damages when that party has suffered only nominal damage. "Nominal damages" are defined as "[a] trifling sum awarded when a legal injury is suffered but there is no substantial loss or injury to be compensated." Black's Law Dictionary 447 (9th ed. 2009). Recently, however, in Feld v. Feld, Civ. No. 08-1557 (ESH), 2011 WL 1792783 (D.D.C. May 8, 2011), the U.S. District Court for the District of Columbia held that the counterclaim plaintiff in a trespass action was not automatically barred from recovering punitive damages even though he could establish that he had suffered only nominal damage from the trespass. The holding of the court was limited to an intentional trespass action. In arriving at its decision, the court, citing the Restatement Second of Torts, explained as follows:
The proposition that an award of nominal damages will support an award of punitive damages in a "harmless intentional trespass" action is also supported by the Restatement:
The fact that the actor knows that his entry is without the consent of the possessor and without any other privilege to do so, while not necessary to make him liable, may affect the amount of damages recoverable against him, by showing such a complete disregard of the possessor's legally protected interest in the exclusive possession of his land as to justify the imposition of punitive in addition to nominal damages for even a harmless trespass, or in addition to compensatory damages for one which is harmful.
Restatement (Second) of Torts § 163 cmt. e. The Restatement reiterates this position under the punitive damages section: "[A]n award of nominal damages . . . is enough to support a further award of punitive damages, when a tort, such as trespass to land, is committed for an outrageous purpose, but no significant harm has resulted." Id. § 908 cmt. c.
For the foregoing reasons, the Court will allow defendant Kenneth Feld to seek punitive damages in addition to nominal damages for his trespass claim.
Id. at *2.
Moreover, as explained by the Feld court, other courts have taken the similar approach that punitive damages are available in intentional trespass actions even without proof of actual damages (or when there is a showing of only nominal damages). See, e.g., Rhodes v. Harwood, 544 P.2d 147 (Or. 1975) (in action for trespass of land, the law presumes that plaintiff has been damaged, without the necessity of proof of actual damages; it was thus not necessary to set aside an award of $1,500 punitive damages merely because only $1 in general damages was awarded); Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154 (Wis. 1997) (nominal damages can support punitive damages award in case of intentional trespass to land); Downs v. Lyles, 41 So. 3d 86 (Ala. Civ. App. 2009) (punitive damages are available to a plaintiff in a trespass action, even if only nominal damages are awarded, if the trespass is attended by rudeness, wantonness, recklessness, or an insulting manner or is accompanied by circumstances of fraud and malice, oppression, aggravation, or gross negligence).