Tort Damages

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Tort Damages

• Damages to Personalty
• Damages to Real Property

2
Prestons Crash (436)

• Defendant plows into Prestons car while hes
  transporting his worldly belongings
• (1) Stereo can be fixed but repairs gt FMV
• (2) Clothes are destroyed
• (3) Quilt from his deceased grandma
• (4) Car is repairable, but post-crash FMV will
  be less than pre- even though fully repaired.

3
Destroyed v. Damaged (441)

• If destroyed
• A chattel is destroyed when its cost to repair
  exceeds its _________________________.
• Plaintiff gets _________, less ___________
• If damaged but not destroyed
• Courts split on what amount caps recovery.

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Split on Feasibility to RepairWhat Caps
Repair Cost

• Majority (GA)
• If repairs lt pre-tort FMV, then its feasible and
  plaintiff can get cost to repair.
• Otherwise, only pre-tort FMV.
• So, pre-tort FMV caps maximum repair costs.

• Minority (Dissent in Bergie)
• If repairs lt diminution in FMV, then its
  feasible and plaintiff can get cost of repairs.
• Otherwise, only diminution in FMV.
• So, diminution in FMV caps maximum repair costs.

5
Pulling it Together

• If cost to repair exceed pre-tort FMV
• If cost to repair exceed diminution in value
• Majority GA
• Minority (see Bergie dissent)

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FMV Is there a Market?

• Markets for these?
• Cars
• Used law text books
• Old coins
• Newly found Da Vinci
• Chattel unique
• Chattel not sold very often
• Chattels use to owner is distinct from its
  market use
• Bergie
• King Fisher (442)

• What about non-market evidence?
• Price paid by plaintiff?
• What if plaintiff got a great deal? (451)
• Insurance policy?
• Owners testimony?

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Which Market?

• What if replacement cost varies among markets?
• Your clients used car is destroyed.
• Wholesale? Retail? New?
• My car story
• Your client, a new car dealer, has a car
  destroyed
• Retail value to consumer or wholesale price to
  replace?
• United Rental (443)
• Facts?
• Holding?
• Make sense?

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Determining FMV

• Lane (452)
• Basic facts?
• What is the general rule regarding destroyed
  personalty?
• What is the exception for household items, like
  clothes? Is the measure full replacement value?
• Why?

• Is there a market for used clothing?
• Used sweatshirts on e-bay.
• Does that justify not using Lane measure?
• What are ourts trying to do by awarding less than
  new replacement but more than nothing for clothes
  and the like?
• Hypos
• Delta loses suitcase with your coolest, broken-in
  jeans.
• Delta loses a suitcase with a 100 pair of jeans
  that you hate?

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Determining FMV

• Landers (454)
• Basic facts?
• What did district court say was proper measure of
  damages for photos tapes?
• What did jury award as result instruction?

• 3 measures?
• (1) FMV
• (2)
• Used when
• (3)
• Used when

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How do you determine actual value to owner?

• Does it include sentimental value?

• What does it include?
• Why not replacement cost as measure?
• How can you measure this exactly?

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Loss of Use Damages

• Long (462)
• Basic facts?
• Issue?
• Holding?

• Historically, what fact decided whether or not
  plaintiffs got loss of use damages?
• Does that make sense?
• Is it still followed?

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Repairs And Diminution?

• What if, as is common, the good as fully repaired
  still is worth less?
• Prestons fixed wrecked car is not worth as much
  as it would have been undamaged.

• Rule
• Isnt that over-compensating plaintiff?

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Feasibility (1) Prestons stereo

• Instead, suppose
• New stereo 700
• What if model has been upgraded by Mfr?
• Pre-tort FMV 300
• How determine?
• Post-tort FMV 100
• How determine?
• Repairs 250
• What are Prestons recoveries in both types of
  jurisdictions?

• Suppose stereo is destroyed.
• What award?

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(2) Prestons Clothes (3) Grandmas Quilt

• Defendant plows into Prestons car while hes
  transporting his worldly belongings
• Clothes are destroyed
• What amount? How prove it?
• Quilt from his deceased grandma
• What amount? How prove it?

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(4) Prestons Car (436)

• Defendant plows into Prestons car while hes
  transporting his worldly belongings
• (4) Car is repairable, but FMV will be less even
  though fully repaired.
• Suppose he buys a 2005 Lexus to replace his 1999.
  Which value?
• How do you determine FMV of a car?
• What market do you look at?
• Does he get for renting from Hertz while its
  being repaired?

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FMV Conversion When Measured?

• NY (Our) Rule When property is converted,
  plaintiff gets the greater of either (1) FMV at
  _____ ____________________ or (2) at time when
  ______ ____________________ or for reasonable
  time after that.

• Why is that a good rule?
• Benefits?
• Problems?
• What if FMV is less on day plaintiff discovers
  than on day stolen?

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In November Proving FMV

• Canal Insurance
• Facts?
• Why was FMV of the truck before and after the
  wreck significant at trial?

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In November

• What foundation must you lay to get in testimony
  about market value?

• What foundation must you establish to get in the
  owners testimony as to value?

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Real Property (468)

• Goal is to make plaintiff whole by putting her in
  position she would have been in
• had tort not occurred

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Three Approaches (478-79) (Handout)

• 1. Repair cost capped by diminution
• 2. Repair cost capped by pre-tort FMV
• 3. Restatement

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Discovery November

• Function of owner
• Retailer
• Personal owner
• Intends to sell
• Kind of property damaged
• Physical harm?
• Realty?
• Personal Property?

• What else?