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AMI419Issues—Claim for Actual Damages Based Upon Intentional Tort—Burden of Proof

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 419
Arkansas Model Jury Instructions-Civil
November 2020 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 4. Intentional Torts and Defamation
AMI 419 Issues—Claim for Actual Damages Based Upon Intentional Tort—Burden of Proof
(Plaintiff) contends, and has the burden of proving that (defendant)'s (description of tort) proximately caused [him][her][it] actual damages, as opposed to nominal damages. “Nominal damages” means a small sum awarded due to a violation of, and to vindicate, a person's legal right.
[If you find from the evidence in this case that (plaintiff) is entitled to recover for the (description of tort), then [he][she][it] is entitled to recover the actual damages shown by the evidence to have been proximately caused by (defendant)'s wrongful conduct. If however, you find that (plaintiff) has failed to prove actual damages, or you cannot ascertain the amount from the evidence, (plaintiff) is nevertheless entitled to recover, and you should award [him][her][it],nominal damages.]
NOTE ON USE
Do not use the bracketed sentence when the case is submitted on interrogatories.
This instruction should be given where the nature of the tort in issue, if proved, would entitle the plaintiff to nominal damages, and where the plaintiff contends that he has sustained actual damages.
A description of the tort in issue, e.g., battery, should be inserted in the indicated blank space.
If this instruction is given, then AMI 2201 and other appropriate instructions from Chapter 22 should be given. AMI 2201 should be modified to indicate that a finding for the plaintiff entitles him to an award of nominal damages, even though no other damages are proved. The following modification of the first paragraph of AMI 2201 is suggested:
“[If you decide for (plaintiff) on the question of liability (against any party [he][she][it] is suing)] [If an interrogatory requires you to assess the damages of (plaintiff)], you should award nominal damages, and, in addition, you must then fix the amount of money [which will reasonably and fairly compensate [him][her][it] for any of the following (number) elements of damage sustained] [which you find were proximately caused by (defendant)].”
COMMENT
In Agracat, Inc. v. AFS-NWA, LLC, 2010 Ark. App. 459, the court discussed the issue of proof necessary for a damage award: “Arkansas has never insisted on exactness of proof in determining damages, and if it is reasonably certain that some loss occurred, it is enough that damages can be stated only approximately.” 2010 Ark. App. 459, at 7. The court noted that while testimony from an expert witness or officer of the plaintiff would have reduced the difficulty of determining the amount of damages, nevertheless damages were not unrecoverable simply because they were problematic to ascertain. Id.
Certain wrongs entitle plaintiff, or the aggrieved party, to an award of nominal damages, even though no actual damages are proved. For discussions of nominal damages, see Cathey v. Ark. Power & Light Co., 193 Ark. 92, 97 S.W.2d 624 (1936) and Baker v. Armstrong, 271 Ark. 878, 611 S.W.2d 743 (1981). See also Fritz v. Baptist Mem. Health Care Corp., 92 Ark. App. 181, 211 S.W.3d 593 (2005) (distinguishing assault claims from negligence claims in holding that the failure to award nominal damages is not reversible error in a negligence case).
The Committee has not attempted to catalog those torts that require an award of nominal damages upon a finding of liability. In Stoner v. Houston, 265 Ark. 928, 582 S.W.2d 28 (1979), it was held that nominal damages will not support an award of punitive damages.
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