Legal Recourse in Property Damage

Property damage, in simple terms, means injury or damage caused to a property owing to negligence or deliberate action of a person or a natural event. Such a property may be a personal or real property. The former could be understood as a property that is movable and is not affixed to land whereas the latter, also known as real estate, refers to land or anything permanently attached or affixed to it. For example, house, being affixed to land, is real property and the items in the house such as furniture, apparel, etc. is personal property. Broadly speaking, the term “personal property” covers within its ambit the personal belongings such as jewellery, car, heirlooms, home furnishings, phone, et cetera.

How do I classify property damage?

  • Negligent Property Damage: Property damage is considered to be negligent when a person causes damage to one’s property as a consequence of his failure to conduct himself reasonably. To claim damages, the plaintiff needs to produce evidence to prove the accused’s negligent behavior and the ensuing property damage.
  • Intentional Property Damage: When a person damages the property willfully and not owing to his negligent conduct, such property damage is said to be intentional.

Whether the damage is caused intentionally or not, the wrongdoer has the liability to make good the losses caused to the aggrieved owing to such property damage. Such a property damage case may be instituted on a standalone basis or consolidated with a personal injury case, for example in case of auto accident where damage is caused both to the car and the owner of the car.

WHERE TO FILE THE SUIT?

Generally speaking, the suits with respect to property damage are instituted in a Small Claims Court (“small courts”). It is a local court where claims are filed for small amount of money. The amount that can be claimed or recovered by instituting action in a small court has been capped and it varies from state to state. For example, the claim amount has been capped at USD 2,500 in the states of Rhode Island and Kentucky, USD 5,000 in the states of Hawaii and Connecticut and USD 15000 in the states of Georgia and Minnesota.

Acknowledging the expense and time encircling the regular litigation, small courts come to the rescue of those aggrieved, enabling them to resort to a more efficient means to recover money.

WHAT IS THE SMALL COURT PROCEDURE?

When instituting a suit in a small court, the general practice is that the plaintiffs represent their case themselves instead of seeking the services of an attorney. However, it does not mean that the plaintiff should refrain from taking any advisory from an attorney in toto.

Before the aggrieved files any complaint, he must reasonably ascertain the maximum possible recovery amount which may be recovered from the wrongdoer. Discussing the matter in hand with a personal injury attorney would enable the aggrieved to comprehend his case from a legal standpoint and develop a perspective towards the monetary compensation that can be claimed.

Post consultation, once the plaintiff ascertains the possible claim and decides to bring an action in the small court, the steps to the same are as under:

STEP I – The plaintiff should file a complaint in the small court to initiate the property damage proceeding.

STEP II – Once the complaint has been successfully filed, a copy of such complaint must be served to the persons against whom the said action has been brought.

STEP III – The plaintiff is subsequently required to prepare the evidence and arguments in support of his case that he would be presenting before the small court judge.

STEP IV – Upon the commencement of trial, the plaintiff present the case followed by the defendant.

STEP V – After hearing both the parties to the case, a judgment is passed. If the latter defaults in appearing before the court, the judgment is passed in favour of the plaintiff. Upon the conclusion of the proceeding, the plaintiff is required to collect the same.

IS THERE AN ALTERNATIVE TO SMALL COURT?

It must be understood that the primary intention behind offering a legal remedy by way of small court is to prevent the aggrieved from the hassles of the time consuming and complex legal procedure and obliterate the attorney fees in the process. However, there may be instances where the claim amount for the property damage may exceed the cap limit set for small courts and resorting to a remedy via small court may not appear to be adequate. For example, there may be additional damages in the nature of physical injuries or there may be future expenses stemming from such property damage. In such circumstances, instituting a suit in small courts may not be a viable option. Hence, it is pivotal, and widely recommended, to hold a prior consultation with a personal injury attorney to comprehend the position of his case through the eyes of law.

Upon consultation with a personal injury attorney, the aggrieved has a fair understanding of his case. If he realizes that he has a strong case against the accused and that the amount of his claim crosses the maximum amount fixed for a small court, instituting a suit in such a court may not be his best option. In such circumstances, the aggrieved may discuss with a personal injury attorney other viable options and determine the appropriate court for instituting the suit.

HOW DO I DETERMINE THE RECOVERY AMOUNT?

The amount of recovery in case of property damage can be easily estimated. Generally, it is equivalent to the expenses incurred by the aggrieved to repair or replace, as the case may be, the damaged part of the property. However, one must be mindful of the fact the aggrieved is expected to be reasonable while determining his recourse of reparation or replacement. That is to say, the defendant will not be ordered to compensate the plaintiff in toto if the latter pursues an expensive option in lieu of cost-effective ones, and correspondingly, makes an expensive claim.

It should be further noted that there can be circumstances where the court may, instead of granting an order to compensate for the cost of reparation or recovery, order the defendant to pay the fair market value of the property damaged. It generally arises in circumstances where the cost of reparation or replacement exceeds the value of the property immediately before the incident. Ensuring that justice prevails in the end, the court makes conscious attempt to strike a balance between the rights of both, the plaintiff and the defendant, without being unjust to either party.

IS THERE A LIMITATION PERIOD?

The property damage cases are governed by the statute of limitation, i.e., there is a time period specified by law within which a suit may be instituted for property damage cases. The period of limitation for bringing a property damage suit in America varies from state to state. For example, irrespective of the damage being to a personal or real property, the limitation period is four years in the state of Wyoming [Wyoming Statutes Annotated section 1-3-105(a)(iv)], three years in the state of Massachusetts [Massachusetts General Laws Chapter 260 section 2A] and two years in the state of Arizona [Arizona Revised Statutes section 12-542].

If the aggrieved fails to bring an action before the court of law within such period from the date on which the cause of action arises, his right to seek compensation is forfeited by law and the defendant is waived of any liability in this respect.

CONCLUSION

If someone causes harm to another’s property, the latter may either present his case himself before a small court or hire an attorney and proceed before an appropriate court. A consultation with a personal injury attorney should be obtained as a pre-requisite in any property damage case for acquiring a better understanding of the case, the possible outcomes and determining the best course of action.