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Oddo v. Presser6/17/2003
to the children of employees. According to the exhibit, Davidson funds eighty percent of the tuition for an employee's child or the equivalent of seventy percent of Davidson's tuition, if the child elects to attend a different college. Plaintiff argued that the loss of these benefits constituted actual damages suffered by plaintiff as a result of defendant's actions. The exhibit submitted by plaintiff estimated the present value of plaintiff's loss of tuition benefits as $282,122.87. Defendant asserts that these damages were too speculative and should not have been admitted into evidence. On this point, we agree with defendant.
At the time of trial, plaintiff's three children were ten, seven, and three years of age. The oldest child was eight years and the youngest child was fifteen years away from deciding whether to attend or being admitted to any college. Further, plaintiff offered no evidence to indicate that Davidson would continue to offer the same or any tuition benefits eight to fifteen years in the future. "The law disfavors -- and in fact prohibits --recovery for damages based on sheer speculation. . . . Damages must be proved to a reasonable level of certainty, and may not be based on pure conjecture." DiDonato, 320 N.C. at 430-31, 358 S.E.2d at 493. We conclude that the exhibit detailing plaintiff's loss of tuition benefits was overly speculative, and that the trial court erred in submitting it to the jury. Because it is impossible to determine the amount awarded by the jury in compensation of plaintiff's loss of tuition benefits, if any, a new trial on the issue of compensatory damages must be granted. We therefore reverse the judgment in part and remand this case to the trial court for a new trial on the issue of compensatory damages. We otherwise overrule defendant's second assignment of error.
By his third assignment of error, defendant contends there was insufficient evidence of aggravating factors to submit the issue of punitive damages to the jury on plaintiff's claim of alienation of affections. We do not agree.
In actions for alienation of affections, punitive damages are recoverable where the plaintiff alleges and presents evidence that the defendant's conduct is malicious, willful, or of wanton character. See N.C. Gen. Stat. § 1D-15 (2001); Ward v. Beaton, 141 N.C. App. 44, 49, 539 S.E.2d 30, 34 (2000), cert. denied, 353 N.C. 398, 547 S.E.2d 43 (2001). To that end, the plaintiff must present "evidence of circumstances of aggravation in addition to the malice implied by law from the conduct of defendant in alienating the affections between the spouses which was necessary to sustain a recovery of compensatory damages." Chappell v. Redding, 67 N.C. App. 397, 403, 313 S.E.2d 239, 243, disc. review denied, 311 N.C. 399, 319 S.E.2d 268 (1984). "Evidence of `sexual relations' will allow a plaintiff to get to the jury on the issue of punitive damages in a claim for alienation of affections." Ward, 141 N.C. App. at 50, 539 S.E.2d at 34; see also Suzanne Reynolds, Lee's North Carolina Family Law, § 5.48(c) (5th ed. 1993) (concluding that " here there are sexual relations, the plaintiff will get to the jury on punitive damages whether the claim is for alienation of affections or for criminal conversation or, as is often the case, for both").
In the instant case, there was evidence from which the jury could find that defendant engaged in sexual intercourse with plaintiff's wife on two separate occasions prior to her legal separation from plaintiff. As such, the trial court did not err in submitting the issue of punitive damages to the jury. See Ward, 141 N.C. App. at 50, 539 S.E.2d at 34; see also Scott v. Kiker, 59 N.C. App. 458, 464, 297 S.E.2d 142, 147 (1982
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