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Price v. Philip Morris12/15/2005
here.
Here, as in Avery, there is no need to remand for a new trial on the damages question. This case does not present a situation in which erroneous rulings by the trial court hampered plaintiffs' ability to fully present their evidence or theory of recovery. The record is complete, and plaintiffs were given wide latitude in developing their damages claim. Further proceedings would serve no purpose. Plaintiffs' claim fails as a matter of law. Because they sustained no actual economic damages, no judgment in their favor under the Consumer Fraud Act could ever stand.
Plaintiffs' consumer fraud claim cannot be revived on the theorythat they might be entitled to an award of nominal damages notwithstanding their inability to show actual damages. Nominal damagescan only be awarded where a plaintiff prevails in a case. As alreadydiscussed, however, a plaintiff cannot sustain a private right of actionunder the Consumer Fraud Act unless he or she has sustained actualdamages. Unless all of the elements of the cause of action, includingthe element of actual damages, are established, nominal damages cannotbe recovered. See Tolve v. Ogden Chrysler Plymouth, Inc., 324 Ill. App. 3d 485, 491-92 (2001). The lack of actual damages would therefore preclude plaintiffs from recovering nominal damages even if the case were remanded.
Similarly, plaintiffs cannot sidestep the lack of actual damages on the grounds that they are nevertheless entitled to an award of punitive damages. Illinois law does not permit an award of punitive damages in the absence of compensatory damages. See Lowe v. Norfolk & Western Ry. Co., 96 Ill. App. 3d 637, 648 (1981). The Consumer Fraud Act is no exception. Punitive damages are in addition to compensatory damages and cannot be allowed unless actual damage is shown. See In re Application of Busse, 124 Ill. App. 3d 433, 438 (1984). Because plaintiffs sustained no actual damages here, their claim for punitive damages must therefore fail as well. See Florsheim v. Travelers Indemnity Co. of Illinois, 75 Ill. App. 3d 298, 310 (1979).
For the foregoing reasons, I fully concur in the result reached by the majority. Plaintiffs cannot recover under the Consumer Fraud Act, and the circuit court's judgment awarding them damages under the Act cannot stand. In reaching this conclusion, I hasten to add, as the majority opinion did, that rejection of plaintiffs' cause of action should in no way be construed as an endorsement of PMUSA's conduct. Our reversal of the circuit court's judgment is not an exoneration of PMUSA. It is merely a conclusion that this particular cause of action by this particular group of claimants seeking this particular form of recovery cannot be sustained under the law of Illinois .
JUSTICE FITZGERALD joins in this special concurrence.
JUSTICE FREEMAN, dissenting:
This is a consumer fraud class action brought under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1998)) and the Uniform Deceptive Trade Practices Act (Deceptive Practices Act) (815 ILCS 510/1 et seq. (West 1998)). The circuit court found Philip Morris USA (PMUSA) liable for consumer fraud for using the materially false and deceptive terms "lights" and "lower tar and nicotine" in marketing its Marlboro Lights and Cambridge Lights cigarettes. This court reverses the judgment on the basis that the action is barred by section 10b(1) of the Consumer Fraud Act, which exempts conduct "specifically authorized by laws administered by any regulatory body or officer acting under statutory authority of this State or the United States." The court holds that the Federal Trade Commission (FTC), through
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