Can a Jury Award Too Much Nominal Damages in a Personal Injury Case?
A plaintiff sued Walmart seeking damages for future medical expenses and past and present pain and suffering after two store employees moving a heavy load with a pallet jack crashed into her. The jury returned a verdict in her favor for $1,000,000. Walmart appealed, contending that the nominal damages awarded were excessive as a matter of law.
Background
The plaintiff was shopping with her family at a Walmart in Covington in April 2018. She was 72 and suffered from a myriad of health issues, including chronic obstructive pulmonary disease (COPD), congestive heart failure, and chronic kidney disease. The plaintiff was sitting in a motorized shopping cart as two Walmart employees were using a manual pallet jack to move a 2,000-pound load down an aisle. One employee was pushing and the other was pulling the load backward when they ran into the plaintiff.
When asked to describe the impact, the employee stated, “[v]ery light, not harsh at all,” and said he hit the plaintiff with his shoulder. The employee testified that as he was walking backward, he looked frequently over his shoulder to check the path, but he didn’t see the plaintiff.
Later that evening, the plaintiff went to the ER for head pain and blurred vision. According to the treating physician at the emergency room, a head CT scan showed no sign of injury, and he found no signs of a concussion. The plaintiff was discharged with a diagnosis of “non-specific head injury.”
During her trial testimony, she admitted that she had complained of headaches and neck pain prior to the incident at Walmart. Her daughter, a nurse, testified that after the incident, the plaintiff experienced more severe headaches, became dizzy quickly, and had trouble walking. In addition, she constantly complained of pain in her head and neck, and suffered from nausea. According to the plaintiff’s daughter, the plaintiff’s personality wasn’t the same, she cried a lot and seemed depressed.
The Lawsuit and Trial
In August 2018, the plaintiff filed suit against Walmart, alleging claims of negligence and battery, seeking punitive damages, damages for past and present pain and suffering, medical expenses, and lost wages. She later amended her complaint to allege negligence, negligent training and supervision, and punitive damages. Walmart presented expert testimony that concluded there was very little, if any, trauma to her head.
In closing, the plaintiff’s attorney asked the jury award her $3,679,200 for future pain and suffering and $1,916,968 for future medical care for a total sum of $5,596,168 in damages. However, in its closing, Walmart argued:
The law provides another remedy that you might consider, which is worth considering also. If you believe that [the Walmart employee] shouldn’t have backed into [the plaintiff] and if you believe that he wasn’t careful and if you believe that the injury was slight and not severe trauma, you know, with great force sufficient to cause a concussion, that it was just a bump, if nothing else it was an insult, then the law provides for what’s called nominal damages. … It can be $10, it can be $100, it could be $500, but it should not be [$]3 million. They haven’t proven anything beyond nominal damages. … Nominal damages is the only thing they would be entitled to, if even that.
The trial court charged the jury on nominal damages as follows:
Damages are given as pay or compensation for injury done. When one party is required to pay damages to another, the law seeks to ensure that the damages awarded are fair to both parties. If you believe from a preponderance of the evidence that the plaintiff is entitled to recover, then you should award to plaintiff such sums as you believe are reasonable and just in this case. If the injury is small or mitigating circumstances are strong, only nominal damages are given. What would be the proper amount of nominal damages is a question for you to decide under all the facts and circumstances of the case.
Walmart requested that the verdict form include an option to award nominal damages. The trial court granted Walmart’s request over the plaintiff’s objection. The jury returned a verdict in favor of the plaintiff, awarding $1,000,000 in nominal damages. The jury didn’t award the plaintiff any damages for future medical expenses or past and present pain and suffering.
After the verdict, Walmart filed a motion for new trial, arguing that the jury’s award of only nominal damages to the total exclusion of special or general damages was authorized by the evidence and instruction of the court— but that $1,000,000 in nominal damages of was excessive.
The Decision of the Court of Appeals
Judge E. Trenton Brown III of the Georgia Court of Appeals explained in his opinion that the question of damages is ordinarily one for the jury; and the court shouldn’t interfere with the jury’s verdict unless the damages awarded by the jury are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case,” quoting O.C.G.A. § 51-12-12 (a).
In reviewing a trial court’s denial of a motion for new trial based on an excessive damages argument, Judge Brown said the Court must determine only if the trial court abused its discretion. The general rule on appeal of an award of damages is that a jury’s award can’t be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake on the part of the jurors. As such, Judge Brown explained that even if the evidence presented at trial would authorize a greater or lesser award than that actually made, the appellate court won’t disturb the award “unless it is so flagrant as to shock the conscience.” Furthermore, the trial court’s approval of the verdict creates a presumption of correctness that won’t be disturbed absent compelling evidence.
What are “Nominal Damages”?
Nominal damages are a form of “general damages,” a term that refers to the damages that the law presumes to flow from a tortious act. Nominal damages are awarded:
- Where no actual damages flow from the injury; or
- Where the violation of a right is shown, substantial damages claimed, and some actual loss proved, and yet the damages are not susceptible of reasonable certainty of proof as to their extent.
As to the amount of nominal damages, the proper amount of the award is the prerogative of the trier of fact, whose determination is not to be disturbed on appeal, except in extreme cases. Further, Judge Brown said it’s well established that “even though a verdict for nominal damages may be apparently large in its amount, it cannot be set aside simply because the amount is large, absent evidence of prejudice or bias in any incident at trial or a mistake on the part of the jury,” quoting a 2003 decision.
Judge Brown found that given the conflicting expert testimony in this case, as well as the evidence regarding the interplay of the plaintiff’s many preexisting conditions and her symptoms following the incident, the jury could have concluded that the plaintiff had proved “some actual loss” but that “the damages are not susceptible of reasonable certainty of proof as to their extent.” As to the amount, the plaintiff sought $5,596,168 in damages and the jury awarded her $1,000,000 — less than one-fifth of the amount requested.
The court below didn’t think the damages were excessive, the judge said, and the court trying the case must be given deference on the question of excessive damages. As a result, the Court of Appeals didn’t find the trial court erred in declining to find the verdict excessive. The judgment was affirmed. Walmart Stores East, LP v. Leverette, 2024 Ga. App. LEXIS 183 (Ga. App. May 10, 2024).
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