John M. Kirby
Damages Law in North Carolina
The issue of “damages” in North Carolina raises numerous complicated issues. The damages that are recoverable in a given action depend on several factors. One critical factor is to identify the “claim” (or “cause of action”) for which the damages are awarded. There are also several doctrines that further clarify those damages that are recoverable, and there are sometimes defenses to the recovery of damages. The fundamental purpose of awarding damages in North Carolina is to make the plaintiff “whole.” In practice, however, this raises several problems.
A couple of recent cases illustrate the principle that speculative or conjectural damages are not recoverable. In McAdoo v. UNC, a college football player (Michael McAdoo, at UNC-Chapel Hill) sued the university and others (including the NCAA) and alleged that the defendants (through their actions in prohibiting him from playing college football for his senior season) caused him to lose the chance to enter the NFL through the draft, or at a minimum caused him to lose his senior year and the improvements that would come in that year, and that he sustained damage because he had to sign with a team as a free agent after his Junior year, allegedly resulting in a loss of income (even though he was taken by the Baltimore Ravens for $270,000 per year. The lower court and the North Carolina Court of appeals ruled that these damages were too speculative and were not recoverable. At oral argument, Mr. McAdoo’s lawyers stated that experts were prepared to quantify those damages, but they were nevertheless found too speculative.
In Ward v. Borum Healthcare, a ninety-one year woman went to an adult care home. Her wheelchair overturned, allegedly due to the negligence of the home, and she fractured her arm. About two weeks later she voluntarily decided to cease dialysis treatment, and three days later she died from (among others) end-stage renal failure. A doctor rendered an opinion that the injuries she sustained caused her to become depressed and experienced pain, which caused her to cease her dialysis, which in turn caused her death. The court held that the evidence, notwithstanding the doctor’s testimony, was too speculative to support a claim that her death was cuased by the negligence of the home.
In a recent case decided by the North Carolina Court of Appeals (February 21, 2012), Shera v. N.C. State University Veterniary Teaching Hospital, the court addressed the amount to be awarded to the owner of a dog who died as a result of the negligence of the veterinarian. The dog owner sought “intrinsic” value for the loss of the dog, on the theory that the dog was of very special value to its owners, and had no true market value. The Court, however, rejected this argument, and affirmed the decision of the Industrial Commission, which awarded only $350 which was the replacement cost of a Jack Russell Terrier.
In the recent case of Nguyen v. Taylor (February 21, 2012), the plaintiffs sued various defendants, arising from the defendants’ posting of video of the plaintiffs on the internet. They claimed that the video distorted the plaintiffs’ (police officers’) arrest of a defendant. The lower court awarded damages of $1 million to each plaintiff, and punitive damages of $2 million to each plaintiff. On appeal, the Court of Appeals reversed the award of punitive damages because the lower court’s Order did not specifically state that it found the aggravating factors by “clear and convincing” evidence. It also found that the lower court erred by considering evidence of one defendant’s profits from the video in imposing punitive damages against another defendant.