O.C.G.A. § 13-6-6 (2019)

Annotations

Law reviews. - For annual survey of construction law, see 56 Mercer L. Rev. 109

(2004). For annual survey of insurance law, see 57 Mercer L. Rev. 221 (2005).

JUDICIAL DECISIONS Reason for awarding nominal damages in contract cases is to carry costs. Foote & Davies Co. v. Malony, 115 Ga. 985, 42 S.E. 413 (1902).

Any breach of contract can give rise to nominal damages. Southeastern Waste Treatment, Inc. v. Chem-Nuclear Sys., 506 F. Supp. 944 (N.D. Ga. 1980).

Although the record established that plaintiffs are not entitled to actual damages sought for the breach of contract dispute against the city for failure to follow certain personnel rules, plaintiffs are entitled to recover nominal damages sufficient to cover the costs of bringing the action. Atkinson v. City of Roswell, 203 Ga. App. 192, 416 S.E.2d 550 (1992). Term nominal damages carries no suggestion of certainty as to amount. - Term nominal damages is purely relative, and carries with the term no suggestion of certainty as to amount, while the term generally refers to a trivial sum awarded. Western Union Tel. Co. v. Glenn, 8 Ga. App. 168, 68 S.E. 881 (1910). Claim for nominal damages inadequately pled in complaint. - Bank was not entitled to nominal damages under O.C.G.A. § 13-6-6 on the bank’s successful breach of contract claim because the bank’s complaint sought equitable, injunctive, and declarative relief only; the complaint’s boilerplate request for ‘‘all other relief that the Court deems just and proper under the circumstances’’ was too vague to support a claim for nominal damages. Keybank Nat’l Ass’n v. Fairpoint, LLC, 2008 U.S. Dist. LEXIS 82158 (N.D. Ga. Oct. 14, 2008). Recovery restricted to nominal damages when evidence insufficient for jury to ascertain actual damages. - If plaintiff fails to furnish sufficient data to enable jury, with reasonable degree of certainty and exactness, to estimate actual damages sustained by purchaser, then the plaintiff ’s recovery will be restricted to nominal damages. Crawford & Assocs. v. Groves-Keen, Inc., 127 Ga. App. 646, 194 S.E.2d 499 (1972). Damages as precluding summary judgment. - Possible recovery of nominal damages to cover the cost of bringing the action is sufficient to preclude summary judgment in a claim for breach of contract, if plaintiff can establish a genuine issue of fact as to liability. Poe v. Sears Roebuck & Co., 1 F. Supp. 2d 1472 (N.D. Ga. 1998). When plaintiff patient sued defendant medical device manufacturer for breach of contract, alleging manufacturer in a letter agreed to pay for third surgery to remove and replace the device, manufacturer’s motion for summary judgment that argued the patient could not prove damages because

the patient’s insurer paid the costs of the surgery was denied because under O.C.G.A. § 13-6-6, even if there was no actual damage, the patient could recover nominal damages sufficient to cover the costs of bringing the action. Trickett v. Advanced Neuromodulation Sys., 542 F. Supp. 2d 1338 (S.D. Ga. 2008). In a breach of contract suit filed under the Perishable Agricultural Commodities Act of 1930, 7 U.S.C. § 499e, by a Chilean sweet onion grower against American produce buyers to determine the amount the buyers owed after a shipment of onions lost value due to delivery delay, summary judgment was not appropriate in favor of the grower on the issue of damages; although the buyers did not provide evidence of damages, under O.C.G.A. § 13-6-6, the buyers were eligible for nominal damages, and the issue could not be decided as a matter of law. HAAC Chile, S.A. v. Bland Farms, LLC, No. 606CV086, 2008 U.S. Dist. LEXIS 81859 (S.D. Ga. Aug. 26, 2008). Healthcare facilities filed counterclaims against a company, alleging the facilities breach of the parties’ contracts caused the facilities lost profits. As the facilities were entitled to nominal damages under O.C.G.A. § 13-6-6 if the facilities proved the company breached the contracts, the company was not entitled to summary judgment on the counterclaims based on the lack of evidence of the facilities’ lost income. Eastview Healthcare, LLC v. Synertx, Inc., 296 Ga. App. 393, 674 S.E.2d 641 (2009). No application when only special or punitive damages are sought. Haber, Blum, Bloch Hat Co. v. Southern Bell Tel. & Tel. Co., 118 Ga. 874, 45 S.E. 696 (1903); Hadden v. Southern Messenger Serv., 135 Ga. 372, 69 S.E. 480 (1910); King v. Cox, 130 Ga. App. 91, 202 S.E.2d 216 (1973); Solon Automated Servs., Inc. v. Pines Assoc., 156 Ga. App. 34, 274 S.E.2d 12 (1980). When allegations are insufficient to authorize recovery of any special damages and there is no prayer for general damages, plaintiff is not entitled to recover nominal damages. East Side Lumber & Coal Co. v. Barfield, 195 Ga. 505, 24 S.E.2d 681 (1943). Rule that in every case of breach of contract the other party has a right to recover nominal damages does not apply when only special damages are sued for and these are

not recoverable. Bennett v. Associated Food Stores, Inc., 118 Ga. App. 711, 165 S.E.2d 581 (1968). Defendant cannot seek nominal damages for breach by plaintiff in order to reduce plaintiff ’s claim. - Defendant cannot recover nominal damages under plea of recoupment to reduce plaintiff ’s claim in consequence of some breach of same contract by plaintiff. Foote & Davies Co. v. Malony, 115 Ga. 985, 42 S.E. 413 (1902). Nominal damages are not available to defendant as defendant is not a party seeking damages. Atlanta Bd. of Educ. v. Oxford Bldg. Servs., 136 Ga. App. 168, 220 S.E.2d 485 (1975). Failure to instruct on nominal damages was error. - Trial court erred in not giving a jury charge requested by a seller in a breach of contract action, to the effect that a party not breaching a contract in a breach of contract action is entitled to at least nominal damages, because the requested charge was a correct statement of law under O.C.G.A. § 13-6-6, it was not substantially included in the instructions given, and the requested charge was adjusted to the evidence in the case; the trial court’s failure to give the requested nominal damages charge, coupled with the use of a verdict form that specified actual damages but not nominal damages, improperly removed the issue of nominal damages from the jury’s consideration. Brock v. King, 279 Ga. App. 335, 629 S.E.2d 829 (2006), aff ’d, 282 Ga. 56, 646 S.E.2d 206 (2007). Award of nominal damages for breach of warranty. - See Taylor v. Allen, 131 Ga. 416, 62 S.E. 291 (1908). Award of nominal damages for breach of contract to carry freight. - See Graham & Ward v. Macon, D. & S.R.R., 120 Ga. 757, 49 S.E. 75 (1904). Award of nominal damages where lease broken before entry by tenant. - See Kenny v. Collier, 79 Ga. 743, 8 S.E. 58 (1887). Award of nominal damages where breach of public duty shown. - See Cole v. Western Union Tel. Co., 23 Ga. App. 479, 98 S.E. 407 (1919).

Award of nominal damages where general damages alleged but not proved. - See Hadden v. Southern Messenger Serv., 135 Ga. 372, 69 S.E. 480 (1910). New trial granted when plaintiff was improperly nonsuited, to enable plaintiff to recover nominal damages. This rule does not apply where reversal of judgment denying new trial is sought. Bloom Sons v. Americus Grocery Co., 116 Ga. 784, 43 S.E. 54 (1902). Award of nominal damages when amount of damages was speculative. - When a lessor showed evidence that premises leased to a lessee were damaged, the lessor’s recovery was properly limited to nominal damages because the evidence as to the amount of damages was speculative. Lay Bros., Inc. v. Golden Pantry Food Stores, Inc., 273 Ga. App. 870, 616 S.E.2d 160 (2005). Cited in Pausch v. Guerrard, 67 Ga. 319 (1881); Barrett v. Verdery, 93 Ga. 526, 21 S.E. 64 (1893); Sutton v. Southern Ry., 101 Ga. 776, 29 S.E. 53 (1897); Cothran v. Witham, 123 Ga. 190, 51 S.E. 285 (1905); Glenn v. Western Union Tel. Co., 1 Ga. App. 821, 58 S.E. 83 (1907); Williams v. Rome Ry. & Light Co., 4 Ga. App. 372, 61 S.E. 495 (1908); Atlantic C.L.R.R. v. Thomas, 14 Ga. App. 619, 82 S.E. 299 (1914); Harris v. Black, 143 Ga. 497, 85 S.E. 742 (1915); Twin City Lumber Co. v. Daniels, 22 Ga. App. 578, 96 S.E. 437 (1918); Jeter v. Davis, 33 Ga. App. 733, 127 S.E. 898 (1925); Robbins v. Hays, 107 Ga. App. 12, 128 S.E.2d 546 (1962); Pure Oil Co. v. Dukes, 107 Ga. App. 326, 130 S.E.2d 234 (1963); Dukes v. Pure Oil Co., 112 Ga. App. 111, 143 S.E.2d 769 (1965); Davis v. Boyd, 118 Ga. App. 198, 162 S.E.2d 880 (1968); Graham Bros. Constr. Co. v. C.W. Matthews Contracting Co., 159 Ga. App. 546, 284 S.E.2d 282 (1981); Crites v. Delta Air Lines, 177 Ga. App. 723, 341 S.E.2d 264 (1986); Don Swann Sales Corp. v. Parr, 189 Ga. App. 222, 375 S.E.2d 466 (1988); Belcher v. Thomson Newspapers, Inc., 190 Ga. App. 466, 379 S.E.2d 204 (1989); Haehn v. Alheit, 212 Ga. App. 252, 441 S.E.2d 529 (1994); McEntyre v. Edwards, 261 Ga. App. 843, 583 S.E.2d 889 (2003).

RESEARCH REFERENCES Am. Jur. 2d. - 22 Am. Jur. 2d, Damages, §§ 5, 6.

C.J.S. - 17A C.J.S., Contracts, §§ 523(1), 641.

ALR. - Rate of exchange to be taken into account in assessing damages for breach of contract, 50 ALR 1273; 105 ALR 640. Damages for breach by seller or former employee of covenant, express or implied, not to engage in like business or enter employment of competitor of covenantee, 127 ALR 1152. Measure and elements of sublessee’s dam-

ages recoverable from sublessor for latter’s failure to exercise option to renew his lease, 94 ALR2d 1345. Liability of real-estate broker for interference with contract between vendor and another real-estate broker, 34 ALR3d 720. Measure and elements of contract to lend money, 4 ALR4th 682.