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Types of Damages

Damages are awarded to a person who proves that a trespass to his/her property has been committed and thereby actual damage has occurred.  Different types of damages are granted in an action on trespass.  They are:

  • Actual damages;
  • Nominal damages;
  • Consequential damages;
  • Punitive or exemplary damages; and
  • Multiple damages.

A person may recover an amount compensating actual damages incurred.  In order to recover actual damages, it has to be proved clearly that actual damage has occured.  Actual damages are compensatory damages for the actual damage that occurred.

When a possessor of a property is not able to prove actual damages occurred, s/he is entitled to nominal damages in an action for trespass[i].  In order to recover more than nominal damages, actual damages must be shown[ii].  Every unauthorized entry upon the land of another person results in some damages, though it may be nominal[iii].  So, where a trespass has been committed upon a property of another, s/he is entitled at least to nominal damages for the violation of his rights.

Nominal damages are granted irrespective of whether harm occurred to a possessor of a property or not.  Nominal damages are intended not to compensate a plaintiff or to punish a defendant.

Additionally, consequential damages are awarded in an action for trespass for all injuries resulting from a trespass.  A person is responsible for all consequences arising from his/her trespass.  Consequences arising from a trespasser’s conduct may be direct or indirect.  A trespasser on land may be liable for physical harm to a possessor of land or his/her family members, or chattels that occurs during his/her trespass and due to his/her acts.  A trespasser will be liable for physical injury caused due to his/her acts even if s/he has not intended that injury to happen or there is no negligence from his/her part[iv].  However, a trespasser may not be liable for an injury to an owner which resulted from the owner’s negligence itself.  Such injury may not be treated as consequent to a trespass to the land.

In an action for trespass, damages for physical, mental and emotional injury may be recovered by a person[v].  A trespasser may be held liable for physical pain suffered from the acts of trespass.  Damages may be recovered for emotional and mental pain[vi], if a trespass constituted rude language, humiliation, distress and the like.

Interest may also be granted on the amount of damages awarded, from the date of trespass[vii].  Interest is a statutory right in some jurisdictions whereas it is discretionary in some other jurisdictions.  Interest may not be granted on punitive damages awarded in an action for trespass.  Costs may or may not be awarded in trespass actions.

Generally, punitive damages are not a matter of right.  However, a landowner may be entitled to punitive damages as the cost of restoration of the damage inflicted on property[viii].  A landowner was not entitled to compensatory damages for trespass where a trespasser paid to restore the property.  Punitive damages, when granted, are intended as deterrence from further commission of such acts and also to punish a trespasser for his/her conduct[ix].

Multiple damages are provided under certain circumstances in some jurisdictions by statues[x].  But recovery must not amount to a double recovery where awards are based on the same injury.  Multiple damages are provided as deterrence from committing trespass in the future.  The measure of damages may be the market value of a property at the time of trespass.

[i] Smith v. Carbide & Chems. Corp., 226 S.W.3d 52 (Ky. 2007).

[ii] Walker v. Murphree, 722 So. 2d 1277 (Miss. Ct. App. 1998).

[iii] Smith v. Carbide & Chems. Corp., 226 S.W.3d 52 (Ky. 2007).

[iv] United States v. S. Cal. Edison Co., 413 F. Supp. 2d 1101 (E.D. Cal. 2006).

[v] LePrettre v. Progressive Land Corp., 820 So. 2d 1240 (La.App. 3 Cir. June 19, 2002).

[vi] Lacombe v. Carter, 975 So. 2d 687 (La.App. 3 Cir. 2008).

[vii] Iowa, Chi. & E. R.R. Corp. v. Pay Load, Inc., 348 F. Supp. 2d 1045 (N.D. Iowa 2004).

[viii] Whittington v. Grand Valley Lakes, Inc., 547 S.W.2d 241 (Tenn. 1977).

[ix] Rhoads v. Heberling, 306 Pa. Super. 35 (Pa. Super. Ct. 1982).

[x] Marsella v. Shaffer, 324 Ill. App. 3d 134 (Ill. App. Ct. 2d Dist. 2001).

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