The officers respond that even assuming that Zok was entitled to nominal damages, he waived this argument and the court's failure to give a nominal damages instruction is harmless error. In this case, Zok's attorney did not object to the court's failure to provide an instruction regarding nominal damages before the jury retired to consider its verdict. Thus, this court will only review the lack of jury instruction if plain error has occurred. When analyzing plain error in jury instructions we must ultimately determine whether a correct instruction would have likely altered the result of the jury's verdict. Thus, we must determine whether the court's failure to instruct the jury that nominal damages are available as a matter of law to a victim of false arrest likely altered the jury's verdict in a way which resulted in a miscarriage of justice.
False arrest is one way of committing the tort of false imprisonment.
Although this court has never addressed the issue, Zok is correct when he argues that a victim of false arrest is entitled to nominal damages as a matter of law, regardless of whether actual damages have been proven. The reasoning behind this rule is that, as a matter of law, a plaintiff in a false arrest case need offer no proof of actual damages because injury in the sense of monetary loss is not an element of the tort. Thus, once the jury found the officers guilty of unlawful arrest, Zok was entitled at least to nominal damages. Had the jury been instructed that, having found an unlawful arrest, it was required to award Zok nominal damages, the jury would have been legally bound to do so. Zok's right to an award of nominal damages is not insignificant, even though the amount of such an award would have been insignificant.