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Zanakis-Pico v. Cutter Dodge6/14/2002
cterization of the Picos' damage as not "substantial pecuniary damage." It must be observed that the court apparently granted summary judgment regarding all of the Picos' tort claims because, inter alia, it believed that the Picos' claim of three to five dollars for gasoline expenses was not "substantial" enough to satisfy a requirement of "substantial pecuniary damage."
Cutter argued, and the court believed that the special compensatory damages alleged were not "substantial pecuniary damage," and proof of that nature was required in order for the tort claims to proceed. As with the implied threshold in the Picos' characterization of their gasoline expenses as "nominal," the use of the term "substantial" similarly does not connote a threshold, as believed by Cutter and the court. A.
In Hawaii's Thousand Friends v. Anderson, 70 Haw. 276, 768 P.2d 1293 (1989), this court stated that fraud, or the common law tort action of deceit, requires a showing that
(1) false representations were made by defendants, (2) with knowledge of their falsity (or without knowledge of their truth or falsity), (3) in contemplation of plaintiff's reliance upon these false representations, and (4) plaintiff did rely upon them. Further, plaintiff must show that he [or she] suffered substantial pecuniary damage for the aim of compensation in deceit cases is to put the plaintiff in the position he [or she] would have been had he [or she] not been defrauded. Id. at 286, 768 P.2d at 1301 (citations and brackets omitted) (emphasis added).
Ellis considered the issue of damages in deceit cases. See 51 Haw. at 52-53, 451 P.2d at 820. This court defined the required damage as "substantial actual damage, not nominal or speculative." Id. at 52, 451 P.2d at 820 (citation omitted). "The courts have often expressed this requirement in terms of pecuniary damage[.]" Id. (emphasis in original) (citing Hanlon v. MacFadden Pubs., Inc., 302 N.Y. 502, 511, 99 N.E.2d 546, 551 (1951); Toho Bussan Kaisha, Ltd. v. American President Lines, Ltd., 265 F.2d 418, 421 (2d Cir. 1959); Restatement of Torts § 549 (1938)). "The aim of compensation in deceit cases is to put the plaintiff in the position he [or she] would have been had he [or she] not been defrauded." Id. Because a plaintiff may not recover for mental anguish and humiliation not intentionally inflicted, see id., the plaintiff's claims were said to be confined to "pecuniary damage," "which can be accurately calculated in monetary terms such as loss of wages and cost of medical expenses." Id. at 52-53, 451 P.2d at 820.
B.
The element of "substantial pecuniary damage," then, in a deceit action refers to proof of injury , i.e., pecuniary injury rather than the award of damages, as maintained by Cutter and the court. Generally, "substantial damages" are " sum, assessed by way of damages, which is worth having; opposed to nominal damages, which are assessed to satisfy a bare legal right[; c]onsiderable in amount and intended as a real compensation for a real injury." Black's Law Dictionary at 392. See 22 Am. Jur. 2d Damages § 12 (1988). By contrast, "substantial," as it applies to the loss that a plaintiff must show to meet the requirement for damage, means " elonging to substance; actually existing; real; not seeming or imaginary; not illusive; solid; true; veritable." Black's Law Dictionary at 1428. Accordingly, in my view, "substantial actual damage," as adopted by this court in Ellis, 51 Haw. at 52, 451 P.2d at 820, refers to this latter definition -- rather than imposing some sort of threshold as to the amount of damages, the loss sustained by a plaintiff must be substantive or real, rather than speculative.
1.
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