ADVANTAGES OVER CONTRACT DAMAGES

ADVANTAGES OVER CONTRACT DAMAGES

2. PURPOSE OF TORT DAMAGES

3. REQUIREMENTS

1. “BUT FOR” CAUSATION

   1. PROXIMATE CAUSATION

   2. CERTAINTY (AS TO FACT, not as to the amount)

   3. DAMAGES UNAVOIDABLE

4. TYPES OF DAMAGES RECOVERABLE

1. GENERAL DAMAGES

1. PERSONAL INJURY:

1. PAIN AND SUFFERING

   1. EMOTIONAL DISTRESS

1. PROPERTY DAMAGE:

1. VALUE OF THE ITEM DESTROYED

   1. DIMINISHED VALUE FOR DAMAGED ITEMS

   2. Cost to repair or restore

1. Damage to Real Property (cases don’t agree)

1. Permanent: Value of item destroyed

   1. Temporary: cost to repair or diminished value

1. SPECIAL (CONSEQUENTIAL) DAMAGES

1. PERSONAL INJURY

1. MEDICAL EXPENSES

   1. Lost earnings

   2. Lost earning capacity

   3. depends a lot on the person who is injured (age, earning ability, etc.)

1. PROPERTY DAMAGE

1. LOSS OF USE

   1. Lost profits

5. CAUSES OF ACTION

1. NEGLIGENCE (think duty)

   1. TRESPASS (something that belongs to you ends up on someone else property: golf balls, cement dust)

   2. FRAUD (misrepresentation by D that P relied upon. P suffered damages and P could not prevent the damages)

   3. CONVERSION (intentionally taking something)

6. INJURIES TO PERSONAL PROPERTY

1. Tortious Destruction or Conversion of Chattel PERSONAL PROPERTY (things that are moveable: cars, boats, jewelry, pets, clothing, art) [Gilbert 90]

1. General Damages: FMV immediately before destruction, less salvage + interest computed from time of valuation.

1. Cost of replacement are recoverable, such as shipping, taxes, and financing charges.

1. Special Damages/Loss of use: generally not recoverable, but modern view does award. Assumes injured party will immediately replace, but may recover something if item cannot be replaced quickly after reasonable efforts.

1. DESTROYED: TRADITIONALLY NOT AWARDED

1. PRE-TORT FMV SERVED AS CEILING ON RECOVERY

   1. PREJUDGMENT INTEREST COMPENSATED

   2. THEORETICAL PASSAGE OF TITLE TO THE TORTFEASOR

1. DAMAGED:

1. MEASURED BY COST TO RENT A SUBSTITUTE ITEM

   1. NO ACTUAL RENTAL REQUIRED

1. Punitive damages: limited by the due process rights of D.

2. Restitutionary relief (alternative to tort): Quasi-K (suit in assumpsit, usually for common count of goods sold and delivered) [Gilbert 107]. Conversion is a “forced sale” to D, where P recovers the reasonable value of the property. If D has sold the property, P could sue for money had and received.

1. Measure is contractual, benefit to D, not harm to P.

   1. Includes value of D’s use.

1. Tortious Damage of Chattel PERSONAL PROPERTY [Gilbert 93]

1. General Damages Measure:

1. DIMINUTION IN VALUE: SAFETY NET

   1. COST TO REPAIR

1. ALLOWED IF REPAIR IMPROVES VALUE TO PRE-INJURY VALUE. Allowance must be made for any difference between original value and value after repairs.

   1. LIMITED BY THE MARKET VALUE AT THE TIME OF THE INJURY

   2. REPAIRS ARE ECONOMICALLY FEASIBLE

1. Special Damages:

1. NOT LIMITED BY Proximate Cause (and THE “REASON TO KNOW”) TEST FROM CONTRACTS

   1. LOSS OF USE. Not necessary to actually procure a substitute. [Gilbert 94]

   2. Prejudgment interest

3. Punitive damages: limited by the due process rights of D.

1. Lost vs. Destroyed: Value may be computed in various ways:

1. Market price [Gilbert 91]

1. Ordinary consumer: retail price

   1. Retailers stock of goods: wholesale price

   2. Manufacturer: selling price

   3. Time of valuation: destroyed chattels are valued at the time of destruction.

   4. Other measures: trade-in value, catalog prices

   5. MARKET VALUE RULE: LONG V. MCALLISTER. CAR DAMAGED OR DESTROYED? Court determined that it was destroyed because it was worth less than the cost to repair. Loss of use: Gives loss of use for a reasonable time.

1. COMPARABLE SALES

2. INSURANCE VALUE (appraisal, policy limits)

3. Reproduction costs less deterioration to the extent destroyed chattel has been used.

4. Value to Owner: Ordinarily, evidence of special value are excluded. But, if MV fails to adequately compensate (family keepsakes, pictures, second-hand clothing), evidence may be admitted. Does not apply to cars. [Gilbert 92]

1. Factors to consider: original cost, use, condition, and replacement cost of chattel.

2. Sentimental value: excluded. But sometimes is a factor in awarding greater than replacement value.

3. IS THERE EXPECTANCY INVOLVED? See Note 2 on p. 476 discussing the barge that sunk two days after King Fisher paid $30K for it. Court awarded $230K in damages because Fisher bought the barge to use as a dry dock platform. Prof says that the court probably did this because of the stupidity of the people towing the boat.

1. VALUATION OF HOUSEHOLD ITEMS AND OTHER UNUSUAL ITEMS

1. ANIMALS

1. LIVESTOCK/ ANIMALS HELD FOR RESALE/PETS: GENERAL MEASURE IS THE FMV AT THE TIME OF DEATH

   1. CARBASHO V. MUSULIN: DOG OWNER wanted true and special value used as the measure of her damages.. Tried to put it under umbrella of value to the owner.

   2. Pet injury can get you reasonable medical costs damages.

1. TROPHIES, FAMILY HEIRLOOMS AND SENTIMENTAL ITEMS

1. IF THE ITEM MOSTLY SENTIMENTAL AND A REASONABLE PERSON WOULD ATTACH SENTIMENTAL VALUE, SOME COURTS ALLOW

   1. STANDARD IS “OBJECTIVELY SENTIMENTAL”

   2. LIMIT: CANNOT INCLUDE UNREASONABLE ATTACHMENT TO PERSONAL PROPERTY

   3. Gives you just a little enhancement for sentimental value. Not much. Note 5 p. 493 – Campin case. Nascar rings gave him a little extra because of the sentimentality, but not wedding ring.

3. HOUSEHOLD ITEMS: LANE V. OIL DELIVERY, INC. House burns down. P creates 30-page list of items that were destroyed and was awarded damages for real and personal property. Court says replacement value is a factor in damage measure, but must deduct depreciation, age, wear and tear, etc. Prof: practically speaking, the value should be between the cost to replace and the second-hand store price. Sentimental value: not awarded for most things. Can get it for objectively reasonable sentimental value, family heirlooms, maybe wedding dress. Don’t usually get sentimental value for jewelry (unless it is a trophy, like a superbowl ring). Photographs, mementos like graduation programs: $0.

4. HEWLETT V. BARGE BERTIE: Damaged or destroyed? 2 years ago, barge had sunk and been declared destroyed. Salvager put $1300 into it to make it water tight and was using it for certain jobs. Then, barge gets hit by another boat in a storm and gets a dent. How does the court measure damages to P when the ship is a constructive loss? Court awards cost of repairs. Prof: D didn’t offer any alternative value, which is part of the reason P’s number for cost of repairs is used. Overcompensation? It doesn’t matter because it is fair for D to rectify his wrong and it is P’s choice to pocket the money.

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