Small claims judges decide property damage cases regularly. In most cases, the "plaintiff," or person whose property was damaged, sues the "defendant" or the person who caused the damage. The plaintiff must prove that the defendant "negligently" damaged the plaintiff's property. In the lawsuit, the plaintiff asks the court to award a "money judgment" covering the plaintiff's costs or "damages."
In this article, you'll learn how to handle property damage claims, including the elements you must prove in a negligent property damage case and when you should talk to a property damage insurance claim lawyer. This article doesn't specifically apply if the defendant intentionally damaged property; however, intentional damage is briefly addressed at the end.
If the person who damaged your property has insurance to cover their action, you'll likely make a claim against their policy. Otherwise, you can file a lawsuit in small claims court or regular court. We discuss both approaches below.
However, in both instances, you must establish that the person who damaged your property was "negligent." Before you receive money for your insurance claim or receive a court judgment, you'll have to show the person sued wrongfully damaged your property.
Someone will be found negligent if they damaged your property while acting carelessly. Or, stated another way, if they wouldn't have damaged your property had they acted reasonably. If someone damages your property while acting reasonably, you won't be able to recover money from them.
To meet the burden of proving your negligence case, you'll need to demonstrate the following:
If you prove both "elements" or parts, you'll have a valid legal claim based on that person's negligence. You must also prove you incurred costs or "damages." For instance, you'll need receipts or bills showing the cost to fix or replace the property before winning and receiving a money judgment from the small claims court judge. If you forget to prove the cost of your damages, the judge won't award you anything.
Example. Jake knows the brakes on his ancient Saab need repair but does nothing about it. One night, Jake parks the car on a hill, and the brakes fail, causing the car to roll across the street, destroying Keija's persimmon tree. Keija sues Jake for $600, the reasonable value of the tree. At trial, Jake admits to the faulty brake issue, and Keija brings in an estimate proving that the value of the tree is $600. Jake will lose because he did not act with reasonable care under the circumstances, and Keija will receive a money judgment for $600.
Negligence can also occur when a person with a duty or responsibility to act fails to act reasonably. Here are a few everyday situations.
Example 1. Suppose you hired an electrician to check the wiring in a room where you saw frightening sparks shooting out of an outlet. However, the electrician didn't examine the wiring, and the room caught fire later that evening. The small claims court would likely find the electrician negligent for failing to inspect the problem. You'd recover the costs associated with repairing the fire damage.
Example 2. Suppose a car or bus swerves into your traffic lane and sideswipes your fender. Entering your traffic lane without ensuring it is clear would be negligent because drivers have a "duty" to ensure the roadway is clear so they don't damage other vehicles when driving. Assuming you didn't contribute to the accident, you could recover the cost of repairing your car. Find out more about negligence caused by a car accident.
Other examples of people failing to act with reasonable care include the following:
In each example, someone failed to act reasonably under the circumstances or didn't meet their duty of care. Kevin shouldn't have been hitting baseballs into a neighbor's yard. Joshua should have ensured that he was using the proper equipment. And RapidMail, Inc. should have delivered the mail timely and notified the customer of the loss.
Sometimes it's difficult to find negligence. If you can't prove it, you can't recover money.
Example. Suppose your neighbor's tree fell on your house. You'd need to prove the tree was weak due to age, disease, a bad root system, or another issue. You'd also need to establish negligence by proving the neighbor knew about the problem but did nothing about it. Your neighbor might argue that the tree appeared in good health, so there was no reason to know it needed to be removed or supported.
To help you determine whether you have a good case based on someone else's negligence, answer the following questions:
If you are entirely at fault, you can expect to lose. But, if you're partially at fault, you could still win something in most states. Keep reading to find out why.
Comparative or contributory negligence exists when you and one or more other parties are responsible for the damages you suffer. Here's why.
Most courts follow a legal doctrine called comparative negligence. A court following a comparative negligence approach determines how much each involved person contributed to the property damage and subtracts the percentage of negligence from 100%. (Some states don't allow recovery if the suing party was partially at fault—check your state laws.)
Example 1. Suppose your car was damaged in an accident, and the judge finds a speeding driver was 80% at fault for your car's damage. However, the judge finds you 20% at fault because you briefly took your eyes off the road while unwrapping a hamburger. You, the slightly inattentive party, can recover 80% of your loss.
Example 2. Suppose two coworkers are playfully tossing a priceless Ming vase displayed on your office desk. If they drop it, they'd likely both be at fault and liable for the damages. If more than one person might have contributed to your loss, you'd sue them all. You might also bear some percentage of negligence. Why? Because a judge or jury might find it unreasonable to keep a priceless vase at your workstation.
Find out about comparative negligence in a slip and fall accident.
If you have suffered a substantial loss due to someone else's wrongful action, consider speaking with an attorney. You can file a small claims action and represent yourself if the attorney doesn't take your case.
Find out how to start settlement negotiations by writing a demand letter.
Calculating damages in a property damage case is usually straightforward. In most instances, you can recover the money necessary to fix a damaged item or replace a destroyed item. You'll want several reasonable damage estimates indicating the repair or replacement cost. The judge will likely lean toward the most cost-effective option.
Example 1. John plows into Melissa's new BMW, smashing the left rear fender. Melissa is entitled to recover the amount needed to fix the damaged part of her car. Melissa should get several estimates from reputable body shops. If John won't voluntarily pay for the damage, she could sue in small claims and use the estimates to prove her damages.
Example 2. Assume you prove to the judge that the neighbor negligently maintained his sewer pipes by establishing the pipes were old, and your neighbor knew they were leaking. You'd also need to prove how much the repairs to your polluted pool (the sewer overflowed into your yard) would cost you through photos, repair estimates, receipts, or expert testimony.
Find out about presenting evidence and testimony in small claims cases.
When the cost of fixing the item exceeds its total value, you are not entitled to have the damaged item fixed. The most you could recover is the fair market value of a damaged item minus the item's scrap value, if any.
Example. You rear-ended Melissa's fifteen-year-old car and learn that the cost to fix the fender exceeds the vehicle's value. In this situation, Melissa could recover the car's value, not the repair cost.
You probably won't find yourself in small claims court if you're in an auto accident or someone damages your "real property" (land and the structures attached). Most drivers have auto insurance, and landowners have property insurance to cover such losses. If you're sued and have insurance to cover the accident, the insurance company will assign an attorney to represent you.
Your policy might pay if the damage is due to a storm or fire, or accident on the premises or in your vehicle, depending on your homeowners and auto coverage. If someone else caused the property damage, you can file a claim against that person's insurance policy or sue them directly.
You only have so much time to file your property damage case in court, and the timing will depend on the laws of your state. Suppose you don't file your lawsuit before the statute of limitations period runs out. In that case, your opponent can object during the litigation, and your case will get thrown out. If you aren't sure how long you have, one of the first things you'll want to do is find out how much time you have to file your property damage lawsuit in your state.
Not all property damage occurs as a result of an accident. You also have the right to recover money damages if someone intentionally damages your property.
The case would proceed in essentially the same way. However, you'd need to prove that the defendant purposefully caused the damage. Also, insurance policies usually don't cover intentional damages.
Example. Sean and Jemma are both neighbors and prize-winning rose growers. When Sean took first place in the local exotic rose contest, Jemma became angry and retaliated by purposefully leaving her hose running, drowning Sean's roses. Sean should be able to recover the value of his rose bushes from Jemma in a small claims action. It's unlikely that he could recover from Jemma's homeowner insurance policy.