Nominal Damages in Georgia: When Winning Means Almost Nothing

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Georgia law allows a verdict that finds a defendant liable but awards only a token amount. The damages statute provides for nominal damages where the injury is small or the mitigating circumstances are strong (OCGA 51-12-4). A small verdict can also carry a cost. If the plaintiff turned down a qualifying settlement offer, a judgment below 75 percent of that offer can shift the defendant’s later attorney’s fees to the plaintiff.

What the Statutes Say

“Damages are given as compensation for injury; generally, such compensation is the measure of damages where an injury is of a character capable of being estimated in money. If an injury is small or the mitigating circumstances are strong, nominal damages only are given” (OCGA 51-12-4). The same chapter separates damages the law presumes, which may be recovered without proof of any amount, from damages that actually flow from the wrong and must be proved to be recovered (OCGA 51-12-2).

A Small Award Beside Punitive Damages

A nominal award has been upheld beside a much larger punitive award. In Mack Trucks, Inc. v. Conkle, Nos. S93A0725, S93A0726 (Ga. Nov. 22, 1993), the Supreme Court of Georgia rejected a constitutional challenge to a punitive damages award and described its decision in Hospital Authority v. Jones, 261 Ga. 613 (1991), which had upheld a punitive award of $1.3 million “where the award of nominal damages was $5,000 on the ground that while the actual harm done by the defendant was slight, ‘the potential to harm [others] supports the punitive damages award.'” Punitive damages still require clear and convincing proof of the conduct described in OCGA 51-12-5.1(b).

A Small Verdict and a Rejected Offer

The offer-of-settlement statute can turn a small verdict into a loss. A defendant may serve a written offer, denominated as an offer under the statute, within the period the statute allows (OCGA 9-11-68(a)). If the plaintiff rejects it and the final judgment is one of no liability, or a judgment for the plaintiff that is less than 75 percent of the offer, the defendant is entitled to reasonable attorney’s fees and expenses of litigation incurred from the date of rejection through the entry of judgment (OCGA 9-11-68(b)(1)).

For example, imagine a qualifying defense offer of $20,000 that the plaintiff rejects, followed by a verdict finding the defendant negligent and awarding $1. Seventy-five percent of $20,000 is $15,000, and $1 is less than that, so the fee provision is triggered for fees incurred after the rejection, subject to the court’s authority to find that the offer was not made in good faith.

Frequently Asked Questions

Who receives court costs after the verdict?
“Except where express provision therefor is made in a statute, costs shall be allowed as a matter of course to the prevailing party unless the court otherwise directs,” and costs against the State and its officers, agencies, and political subdivisions are imposed “only to the extent permitted by the law” (OCGA 9-11-54(d)).

Can the court refuse to shift fees under the offer statute?
Yes. The court may find, in an order stating its basis, that an offer was not made in good faith, and it may then disallow the award (OCGA 9-11-68(d)(2)).

When must a defendant serve the offer?
More than 30 days after a summons and complaint are served on a party, and at least 30 days before trial, or 20 days for a counteroffer (OCGA 9-11-68(a)).

  • OCGA 51-12-4; OCGA 51-12-2
  • Mack Trucks, Inc. v. Conkle, Nos. S93A0725, S93A0726 (Ga. Nov. 22, 1993), describing Hospital Authority v. Jones, 261 Ga. 613 (1991); OCGA 51-12-5.1(b)
  • OCGA 9-11-54(d)
  • OCGA 9-11-68(a), (b)(1), (d)(2)

Disclaimer

This article provides general information about nominal damages under Georgia law. It is not legal advice and does not create an attorney-client relationship. The effect of a small verdict depends on the offers made, the costs incurred, and the specific facts. A person considering a claim should consult a licensed Georgia attorney promptly about the particular situation.

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