Booth v. Duffy Homes, Inc., 2009-Ohio-6767, ¶¶ 4-5, 185 Ohio App. 3d 260, 261–62, 923 N.E.2d 1175, 1176. If the property was worth $40,000 before the damage occurred, and given that the property likely still has some value after (the land itself, even if the structure has to be torn down), I submit that paying $50,000 to repair it vs that diminution in value is not reasonable; it would be grossly disproportionate to the loss of value.
If the injury is susceptible of repair, the measure of damages is the reasonable cost of restoration, plus reasonable compensation for the loss of the use of the property between the time of the injury and the restoration, unless such cost of restoration exceeds the difference in the market value of the property before and after the injury, in which case the difference in market value becomes the measure.
Given the property could actually have a negative value in the situstion I posed, i don’t see how awarding the cost of repair to be an issue since the diminution of value could in fact exceed the value of the repair, and the value of the property prior to the damage.
A property with a worthless house can actually have a negative value.
As to you telling the op they may be able to obtain more than the cost of the hdd; I didn’t see that anywhere. All i saw was continually telling the op all he was due, and possibly not even that, was the value a used hdd.
I will continue to maintain the level of damages has nothing to do with the value of the pictures and not only because there aren’t actually any pictures. You are using the value of the wrong thing to determine damages. Obviously there is no real value to a sentimental item but that is irrelevent. The losses to the op is the cost he paid for the data held on the drive. It would be no different than if I hired a person to create a program for me and it was most in similar manner as the op’s data. The program itself has no market value (while it obviously could attempting to place a value will confuse the discussion so we will presume it is an unproven program and as such has no market value) yet the owner has suffered a loss. While the data in the case at hand has no marketable value, the loss of the only copy of the data, which means the op cannot avail themselves of the use of the data, their measure of loss is the cost to procure the data itself.
It would be analogous to a situstion where I paid to have copies of family photos my brother owns so I would have a copy. Then some yahoo comes along and destroys them. Obviously the pictures themselves have no market value and as such, which is the position you take, is that I’m due nothing. The reality is that my damages are actually the costs to have copies made again. Just the same, the op’s damages is measured not in the value of the images themselves but the cost of obtaining the data itself.
And of course the value of the hdd
As to your various challenges such as contributory negligence or the failure to create a copy and others.
No contributory negligence. Op hired a professional service to pack the hdd. Arguing contributory negligence would be the same as saying I have an obligation to advise my doctor on what medicine he prescribed for me when I go there because I’m ill. When you hire a pro to perform a service you are not obligated to tell them how to do their job. In fact advising them to the point they follow your suggestions could actually allow them an escape should their services perform less than acceptable. Their statement of; the customer said they wanted me to do it [this way] means the customer has contributed to the failure and that’s where contributory negligence would attach.
As to being liable for not creating a copy; while it’s smart to make a copy, whether a reasonable man would have done so is a matter for the courts to determine but based on the people I run across, no, the bulk of them would not believe it necessary to create a back up copy and I run with some pretty reasonable guys.
The only real possibility of denying liability I can see would be what the contract included. Even then it may not be enforceable due to the op’s lack of control over the packaging and the fact the packaging as described would be best described as gross negligence in my opinion.