C. Property Loss

LibraryThe South Carolina Law of Torts (SCBar) (2023 Ed.)

C. Property Loss

Recovery for damages for wrongful injury to or for the wrongful taking or detention of property is governed by the basic principle underlying recovery in all tort cases: The injured party may recover compensation for losses which are the proximate result of the tortfeasor's wrongful act.

1. Physical Damage and Loss

Where land or a chattel has been physically damaged or destroyed, the most common determination of the value of property is the fair market value of the property at the time in question, and this determination is an issue of fact.232 As a general rule, the owner of property is qualified to testify as to its value.233

Where real property has been damaged, the measure of damages is the difference between the value of the entire premises before and after the injury.234 The value of property on damaged real estate—such as buildings, fences and marketable timber—is measured according to the independent and separate value of the property actually destroyed or damaged.235 If the damaged property is not independent, but is essentially connected with the premises and has value only by reason of that connection, such as fruit and ornamental trees, the measure of the damages is the injury to the premises as a whole, which injury is measured by the difference between the value of the entire premises before and after the loss.236

The damages for injury to personal property are measured similarly to damages for real property. Generally, an owner of personal property injured by another's tortious conduct can recover the difference between the market value immediately before and the market value immediately after the injury.237 Comparably, in the case of defective products, the proper measure of damages is the difference between the fair market value of the product in its defective condition and its fair market value as warranted.238 If goods are wholly lost or destroyed, the owner is entitled to their full worth at the time of such loss or destruction.239

In an action for a willful and intentional conversion the measure of damages is the highest market value of the property with interest up to the time of trial, including any additions or improvements made by the converter.240 However, if the conversion is "innocent," that is, committed without negligence or intent to injure, the measure of damages is the value of the property at the time and place of the taking, and the owner is not entitled to the value of any additions or enhancements made by the converter.241

Where a property owner, in the exercise of his duty to mitigate damage, has had property repaired and restored to condition in which its market value equals or exceeds the market value before injury, the measure of damages is the reasonable cost of restoring property to its previous condition, together with the value of the use of the property during the time reasonably required to repair it.242 On the other hand, where property damaged is repaired but not restored to the condition in which its market value is equal to the market value before injury, the measure is the difference in the market value immediately before injury and the market value immediately thereafter in its condition of partial restoration, together with reasonable cost of repairs made and value of the use of which the owner was deprived during the time reasonably required to make repairs.243

The courts have often been flexible in accommodating the general rule of damages to particular situations. If there is no market value for the destroyed property, then an owner is entitled to recover the property's actual or reasonable value or its special value to him, excluding fanciful or sentimental value which he may place on the item.244 Thus, when green beans were negligently refrigerated and consequently damaged in transit, the court, after finding no market value at the point of destination, fixed the value for the property at the intrinsic or actual value of the damaged goods.245

The owner of damaged property is entitled to be made whole, but only once. Thus, if the owner seeks and receives a recover under a property damage arbitration procedure and subsequently obtains a jury verdict for an amount greater than the arbitration award, the trial court should offset the prior recovery from the verdict to avoid a double recovery.246

2. Consequential Damages

Injured parties may also be compensated for consequential damages which necessarily arise from the injury to the property.247 Thus, where property is negligently damaged, the plaintiff can recover not only the cost of repair248 or depreciation in value (including cost of repair), but also the value of the loss of use.249 Courts have also allowed recovery for deprivation of use of a wrecked automobile for a reasonable time within which repairs could be made.250 Similarly, the cost of renting substitute property may be recovered.251 The owner may also recover loss of profits252 or loss of wages253 under proper circumstances.

In some instances, as in the case of crops grown for market, the measure of damages may require some estimate as to their projected worth. Though such damages are arguably speculative and conjectural, "[t]he measure of [actual] damages . . . is the difference between the value of the probable crop had there been no injury and the value of the actual crop, less expenses of preparing for market the portion of the probable crop prevented from maturing."254 Similarly, the problematic nature of proving lost profits will not prevent recovery where plaintiff can present evidence to support a fair and reasonable approximation.255 For example, in Petty v. Weyerhaeuser Co.,256 the court upheld an award of damages for lost profits sustained when boards installed in a skating rink buckled and made the floor unsuitable for skating.

Generally, in an award for lost profits, the plaintiff is entitled to net profits rather than expected gross profits. Thus, in computing the amount of lost profit, the expenses saved must be subtracted from any recovery.257 However, there may be situations where there are no such savings. For example, as the court noted in Petty v. Weyerhaeuser, "where a plaintiff seeks damages to his business and reputation it is not error for the court to utilize gross revenues to estimate damages, where . . . there is evidence that the operating costs cannot reasonably be reduced by the plaintiff following the defendant's wrongful act."258

Other examples of consequential damages include the total amount of losses sustained during the operation of a restaurant business,259 a judgment against the buyers in a previous action which was a direct result of a fraudulent transaction,260 and the cost of hospital and doctors' bills when an insurance agent misrepresented coverage of insurance policy.261

3. Mitigation of Damages

An injured party has a duty to use reasonable means to mitigate damages in most cases.262 Thus, plaintiff must often obtain a replacement within a reasonable time if a substitute is available.263 The law does not require an individual to exert himself unreasonably or to incur substantial costs to avoid further harm.264 The party who claims damages should have been minimized has the burden of proving they could reasonably have been avoided or reduced.265

Additionally, the bailor of property that is lost or stolen through the negligence of the bailee is not bound to attempt to recover it in order to reduce damages.266 It has also been held that a bailor whose property has been converted is not required to buy replacement goods in order to mitigate his damages.267 This is in line with the courts' flexible approach to the measure of damages in such cases.268

To give only the value at the time of conversion would in some circumstances be equivalent to requiring the owner of the property to sell his property at the time and for a price fixed by the wrongdoer. Requiring the appellant to mitigate his damages by the purchase of replacement goods would result in the harm sought to be prevented.269

The lost volume seller theory allows recovery of lost profits upon breach by the purchasing party despite the seller's ability to mitigate damages by reselling. A volume seller is "one whose willingness and ability to supply is, as a practical matter, unlimited in comparison to the demand for the product."270 Therefore, the lost volume seller theory awards damages to compensate a seller's lost opportunity to profit from the additional unit.271

4. Other Relief

a. Recovery of Property

The South Carolina Code provides that a landowner or his agent may seek ejectment of a trespasser who is still on the property.272 Similarly, a person whose goods have been converted may sue to recover those goods plus damages that may have been involved.273 In addition to these legal remedies, a person whose property rights have been infringed by trespass or conversion may engage in self-help.274

b. Injunction

If a legal remedy is inadequate, an injunction may be allowed. For example, where trespass to land is repeated or continuous, where the mischief is irreparable, or where damages cannot be adequately measured...

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