The opinion
Judge Johnson
concurring.
I concur but write separately to express the following.
In this wrongful death action, the jury determined that plaintiff decedent, Marcia L. Atkinson, was killed as a result of the negligence of defendant; yet, the jury only awarded special damages to cover funeral and ambulance expenses. By failing to award compensatory damages, the jury in essence has said that the life of this vibrant and promising fifteen year old ninth grader was of no value. I find this unconscionable. With our wrongful death statute, North Carolina General Statutes § 28A-18-2 (Cum. Supp. 1994), which allows for such a harsh result, should be revisited by our legislature and rectified.
I agree that the case should be remanded to the trial division for consideration of the issue of nominal damages. Nominal damages are defined as “a trifling sum awarded to a plaintiff in an action, where there is no substantial loss or injury to be compensated, but still the law recognizes a technical invasion of his rights or a breach of the *347 defendant’s duty . . . .” Black’s Law Dictionary 712 (6th ed. 1990). Nominal damages are “a peg on which to hang the costs.” Potts v. Howser, 274 N.C. 49, 61 , 161 S.E.2d 737, 747 (1968) (quoting Hutton v. Cook, 173 N.C. 496, 499 , 92 S.E. 355, 356 (1917)). However, on remand, I believe the issue of nominal damages is an issue for the jury unless the parties stipulate and consent to an amount of nominal damages or to allow the trial judge to set such an amount.
When the jury found that decedent’s death was caused by defendant’s wrongful act but failed to find that such death caused pecuniary loss, the jury did not have the option of choosing whether to award or not to award nominal damages. The jury, as a matter of law, was required to make an award of nominal damages. See Bowen v. Rental Co., 283 N.C. 395 , 196 S.E.2d 789 (1973).
My research reveals that the customary practice has been for the trial court to enter an amount of $1.00 as nominal damages when a jury, after properjury instructions, failed to award an amount of nominal damages. I believe this constitutes an invasion of the province of the jury and the entry of an award of $1.00 by a trial judge is arbitrary unless the parties have stipulated and consented to the trial judge entering an amount for nominal damages. A jury could choose to award nominal damages in an amount greater than $1.00. In Paving Co. v. Highway Commission, 258 N.C. 691 , 129 S.E.2d 245 (1963), the Court held that an award of $900.00 could not be denominated nominal damages. The Court further stated that “[i]nflation has not reached the stage where $900.00 can be called trivial.” Id. at 695 , 129 S.E.2d at 248 . Therefore, in 1963, nominal damages would have been an amount from $1.00 to $899.00. Considering the factor of inflation since 1963, certainly $900.00 today and some amount even above that amount can be denominated as a trivial amount. Therefore, on remand, plaintiff is entitled to have an award of nominal damages, and costs can also be assessed.