Supporting Case History
Restatement (Second) of Torts #931, comment (b) p. 552 (1979)
The owner of the subject matter is entitled to recover as damages for the loss of the value of the use, at least the rental value of the chattel or land during the period of deprivation. This is true even though the owner in fact has suffered no harm through the deprivation, as where he was not using the subject matter at the time or had a substitute that he used without additional expense to him.
AT&T Corporation, a New York corporation, Plaintiff, v. Lanzo Construction Co., Florida, a Florida Corporation, and the City of Miami, a Florida municipal corporation, Defendants. Civ No. 98-2203, United States District Court, S.D. Florida. June 14, 1999
Telecommunications company sued city and construction company for damages to fiber optic cable during sewer construction. Construction company mover for partial summary judgment on issue of telecommunications company’s right to recover for loss of use. The District Court, Highsmith, J., held that: (1) damage to cable was complete deprivation of chattel even though telecommunications company could reroute calls, and (2) reasonable rental value was proper measure of damages.
Motion denied.
American Telephone & Telegraph Company, Plaintiff, V. Connecticut Light & Power Company, Defendant. Civ. No. 14918 United States District Court, D. Connecticut. April 16, 1979
Damages – For the purpose of determining damages, “Loss of Use” should be distinguished form “Loss of Profits”; “Loss of Profits” would be measured by the amount of profit that a plaintiff could prove would have been generated had the plaintiff not been deprived of the use of the property, less the amount of profit actually generated during the deprivation, while “Loss of Use” is the loss of an incident of ownership, that is, the right to use.
Robbins Motor Transportation v. Key GMC Truck Sales, 56 Ohio App.2d 165 (1978)
In Robbins Motor Transportation, the Ohio Supreme Court specified the measure of damages for the loss of use:
When a vehicle has been negligently damaged in part and is capable of being repaired within a reasonable period of time, the owner may recover two elements of damage: the loss in value (measured by the difference in value of the vehicle immediately before and immediately after the damage); and the loss of use of the vehicle for such reasonable period of time as is necessary to make the repairs (measured by the reasonable rental value of a vehicle of like kind). (emphasis added)
In Stemper v. Cambell, 155 Ohio St1 (1951), the Supreme Court of Ohio applied the concept of damages for loss of use to an action involving damage to a building and held:
Where a building has been damaged through the negligence of another and is reasonably capable of being repaired within a reasonable time thereafter, the owner may recover not only for the damage to the property but also for the loss of use of the property for such a reasonable period of time as is necessary to make the repairs. (emphasis added)
In its decision in Pasadena State Bank v. Isaac, 228S.W. 127 (Tex. 1950), the Texas Supreme Court set out the law governing recovery of damages for injury to chattels in Texas.
Quoting from the first Restatement of Torts, the Court held that:
The Rule is concisely expressed in…Sec. 928, as follows:
Where a person is entitled to a judgment for harm to chattels not amounting to a total destruction in value, the damages include compensation for (b) the loss of use.
One can (the owner) “recover only the difference in its value before and after the harm, except that if, after the harm, it appears to be economical to repair the chattel, he can elect to recover the cost of repairs, together with the loss of use during the repairs, or other losses which may have resulted during such time.” (emphasis added)
Hayes Freightlines, Inc.. v. Tarver, 148 Ohio St. 82 (1947)
In Hayes Freightlines, the Ohio Supreme Court held:
Where a motor vehicle has been damaged through the negligent acts of another only to such extent that it is reasonably capable of being repaired within a reasonable period of time after it is damaged, the owner may recover not only the difference in value of the vehicle immediately before and immediately after the damage, but may also recover the loss of the use of the vehicle for such reasonable period of time as it is necessary to make repairs. (emphasis added)
“in The Cayuga, 5 F. Cas. 329, 331 (C.C.E.D.N.Y. 1870), aff’d, 81 U.S. 270,278-79 (1872) plaintiff owner/operator of a ferry line in new York, sued for the loss of use of one of its vessels during a 17 day period. While the damaged ship was out of service, the plaintiff substituted a spare boat which was kept for just such circumstances. The trial court awarded damages, despite the lack of uninterrupted service or loss of profits and despite the fact that the substitute ferry would have remained idle and unproductive if not used as a replacement. The plaintiff incurred substantial expenditures to be able to insure that its service to the public would not be interrupted. The court determined that it would be unjust to permit the defendant to benefit gratuitously from the plaintiffs foresight. The Supreme Court in The Cayuga and The Favorita (85 U.S.598) 1873 affirmed the result and reasoning of the lower court’s opinion.”
The Black Prince, 167 English Rep. 258 (ADM. 1862)
An award for Loss of Use was decided by the English High Court of Admiralty in 1862 for the owners of the steam ship Araxas that was damaged in a collision and laid up for repair.
EXODUS 21 Verse 18
When men quarrel and one strikes the other with a stone or with his fist and the man does not die but keeps his bed, then if the man rises again and walks abroad with his staff, he that struck him shall be clear; only he shall pay for the loss of his time and shall have him thoroughly healed.