Iadanza v. Harper4/19/2005
on her claim for compensatory damages. She argues that the trial court erred in ordering summary judgment because the evidence raises genuine issues of material fact on the issue of compensatory damages. We agree.
Summary judgment is properly granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C.G.S. § 1A-1, Rule 56(c) (2003). In ruling on summary judgment: a court does not resolve questions of fact but determines whether there is a genuine issue of material fact. . . . Thus a defending party is entitled to summary judgment if he can show that claimant cannot prove the existence of an essential element of his claim or cannot surmount an affirmative defense which would bar the claim.
Ward v. Durham Life Insurance Co., 325 N.C. 202, 209, 381 S.E.2d 698, 702 (1989) (citation omitted). "On appeal, this Court's standard of review involves a two-step determination of whether (1)the relevant evidence establishes the absence of a genuine issue as to any material fact, and (2) either party is entitled to judgment as a matter of law." Guthrie v. Conroy, 152 N.C. App. 15, 21, 567 S.E.2d 403, 408 (2002) (citations omitted).
Plaintiff herein appeals the court's order of summary judgment for defendants on plaintiff's claim for actual, or compensatory, damages. Accordingly, we first review pertinent legal principles governing the award of damages in civil cases.
"We define actual damage to mean some actual loss, hurt or harm resulting from the illegal invasion of a legal right." Hawkins v. Hawkins, 101 N.C. App. 529, 532, 400 S.E.2d 472, 474-75 (1991). Compensatory damages include both general and special damages. "According to our Supreme Court, 'general damages are such as might accrue to any person similarly injured, while special damages are such as did in fact accrue to the particular individual by reason of the particular circumstances of the case.'" Pleasant Valley Promenade v. Lechmere, Inc., 120 N.C. App. 650, 671, 464 S.E.2d 47, 62 (1995) (quoting Penner v. Elliott, 225 N.C. 33, 35, 33 S.E.2d 124, 126 (1945)). Further:
General damages . . . include such matters as mental or physical pain and suffering, inconvenience, or loss of enjoyment which cannot be definitively measured in monetary terms[.] . . . pecial damages are usually synonymous with pecuniary loss. Medical and hospital expenses, as well as loss of earnings . . . are regarded as special damages in personal-injury cases.
22 Am. Jur. 2d Damages § 42 (2003). In the instant case, Iadanza did not allege "special damages" such as medical expenses, lostwages, or other direct financial injury. Defendant argues that, for this reason, the trial court properly granted summary judgment on her claim for actual damages. We disagree.
Defendant contends that plaintiff is not entitled to general damages because she did not offer proof of "physical pain and suffering." "Compensatory damages provide recovery for, inter alia, mental or physical pain and suffering, lost wages and medical expenses." Schenk v. HNA Holdings, Inc., __ N.C. App. __, __, 604 S.E.2d 689, 694 (2004) (citation omitted). Thus, "pain and suffering" may be a discrete basis for recovery. See Sharpe v. Pugh, 270 N.C. 598, 602, 155 S.E.2d 108, 111 (1967) (court erred by striking parent's "separate claim for personal injuries . . . based solely on [child's] pain and suffering"). Moreover, physical injury is only one aspect of "pain and suffering," which also may include emotional suffering:
If plaintiffs pro
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