Be sure to bring the jury instruction handout

1
Be sure to bring the jury instruction handout

• Read tort instructions 66.020 and 66.030.
• Also, keep the instructions handy for later in
  semester theyll pop up from time to time.

2
Damages Recoverablefor Tort Claims

• - Caused to Personalty (today)
• - Caused to Real Property (start of next class)
• - Caused to People (next class)

3
The Crash Creates a Negligence Claim

• Defendant plows into Plaintiffs 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.

4
Destroyed v. Damaged

• If destroyed
• A chattel is destroyed when its cost to repair
  exceeds its _________________________.
• Plaintiff gets _________, less ___________
• Usually whether personalty is destroyed is not
  disputed if a stereos smashed to bits, its
  destroyed if its dinged up, its damaged.
• If damaged but not destroyed
• Courts split on what amount caps recovery which
  essentially means they disagree about what
  destruction is, doesnt it?

5
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.

6
Pulling it Together Personalty

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

7
FMV Is there a Market?

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

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

8
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
• Facts?
• Holding?
• Make sense?

9
Determining FMV

• Lane
• 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?

10
Determining FMV

• Landers
• 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

11
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?

12
Loss of Use Damages

• Long
• 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?

13
Repairs And Diminution?

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

• Rule
• Isnt that over-compensating plaintiff?

14
Feasibility (1) the 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 the recoveries in both types of
  jurisdictions?

• Suppose stereo is destroyed.
• What award?

15
(2) His Clothes (3) Grandmas Quilt

• Defendant plows into his 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?

16
(4) His Car

• Defendant plows into his 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?

17
FMV Conversion When Measured?

• NY (Our) Rule When property is converted
  (stolen, intentionally destroyed, etc.),
  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?