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Where and how to sue DHL for damaged shipment and for the hardship, they caused me due to the way they handled my case? ASK A LAWYER

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callymo2j

Member
I know that the court may not issue a blank check of $8000 but I want to stay on that amount because of the possibility of the data is unrecoverable. Below is an excerpt of the quote from the data recovery center. I am sorry I have not looked at it for a while now as the figures differ slightly from my original stated
The service estimate for the 500GB External Drive (HDD) you described is:
Economy Service ( 5-7 business days ): $700-$2,700
No charge if the data is unrecoverable
Standard Service ( 1-2 business days ): $900-$3,900
No charge if the data is unrecoverable
Priority Service (ASAP): $1,800-$8,900
Attempt fees apply if data is unrecoverable
Then I will add the shipping cost, the customs duty, the tax, computer specialist report, legal fees and insurance
 


justalayman

Senior Member
I know that the court may not issue a blank check of $8000 but I want to stay on that amount because of the possibility of the data is unrecoverable. Below is an excerpt of the quote from the data recovery center. I am sorry I have not looked at it for a while now as the figures differ slightly from my original stated
The service estimate for the 500GB External Drive (HDD) you described is:
Economy Service ( 5-7 business days ): $700-$2,700
No charge if the data is unrecoverable
Standard Service ( 1-2 business days ): $900-$3,900
No charge if the data is unrecoverable
Priority Service (ASAP): $1,800-$8,900
Attempt fees apply if data is unrecoverable
Then I will add the shipping cost, the customs duty, the tax, computer specialist report, legal fees and insurance
Well if the only difference between the first level and the last is the speed which they attempt to retrieve the data, a court is not going to award anything above the first tier.

Customs duty: you won’t get

Computer specialist report (not even sure what that is) but unlikely to get

Legal fees; if this means lawyer consulting fees or lawyers fees to sue; not recoverable.

Insurance: what insurance? If you mean to insure shipping a broken hdd to the repair shop, well a broken hdd isn’t worth but about a nickel for scrap metal so insurance is over kill. If you mean the insurance you paid dhl; not recoverable.


But you can ask for anything you want to. The worst you’ll be told is no
 

Taxing Matters

Overtaxed Member
I know that the court may not issue a blank check of $8000 but I want to stay on that amount because of the possibility of the data is unrecoverable. Below is an excerpt of the quote from the data recovery center. I am sorry I have not looked at it for a while now as the figures differ slightly from my original stated
The service estimate for the 500GB External Drive (HDD) you described is:
Economy Service ( 5-7 business days ): $700-$2,700
No charge if the data is unrecoverable
Standard Service ( 1-2 business days ): $900-$3,900
No charge if the data is unrecoverable
Priority Service (ASAP): $1,800-$8,900
Attempt fees apply if data is unrecoverable
Then I will add the shipping cost, the customs duty, the tax, computer specialist report, legal fees and insurance
I'm sorry, but in a negligence case for damaged property what you get is the lesser of (1) the cost to repair the item back to the condition it was before the damage occurred or (2) the fair market value (FMV) of the property immediately before it was damaged. Fair market value is the value for which you could have sold it to someone else in an arm's length transaction. In other words, the isssue is what would some stranger who had no ties to you be willing to pay for it right before it got damaged?

For example, let’s say Amy's parked car gets hit by Brian due to his negligent driving. Immediately before Brian hit her car, Amy’s car had a FMV of $5,000. Amy gets estimates averaging $9,000 to repair the car back to the condition it was before the accident. If Amy sues Brian for the damage to her car, all she will get is $5,000 — the FMV of her car — because that is less than what it would cost to restore the car to the condition it was before the accident. In short, it's more economical to junk the damaged car, take the $5,000, and buy another car comparble to the one that was totaled in the wreck. And thus the law says that is all the negligent person must pay.

Here, I think the maximum you would get if you sued is the FMV of the hard drive. There is no way a used 500GB hard drive is worth anything close to $8,000. Indeed, Amazon sells new ones for less than $50. So paying anything more than that to repair the damaged drive you won't get.

I understand that to you the wedding videos and photos are priceless. But unfortunately, they have pretty much no market value. People just aren't going to pay much, if anything, for wedding videos and photos of someone they do not know. Thus, the FMV of those videos and photos is likely zero (or close to it) and thus you'd get nothing for those. I realize that sounds like a harsh result, but the fact is that sentimental value does not count. You don't have to take my word for it. The Ohio Court of Appeals explains the law in that state as follows:

The parties have not referred us to, nor has our research disclosed any Ohio cases in which damages may be awarded for the “sentimental value” to the owner. The measure of damages for loss or injury to personal property is generally the reasonable market value of the property at the time of loss. See 30 O. Jur. 3d Sec. 70 at 78 (1981). This general rule is subject to the exception that where the property is of strictly personal nature, such as the items listed above, which would have little or no market value, the measure of damage is the reasonable value to the owner. See Bishop v. East Ohio Gas Co. supra; Employers' Fire Insurance Co. v. United Parcel Service Inc. (1950), 89 Ohio App. 447; Rider v. Gellenbeck (Hamilton Co. C.P. 1941), 21 Ohio Op. 437; 30 O. Jur. 3d Sec. 73 supra. However, it was recognized in Rider v. Gellenbeck supra at 438, that “it is for the article damaged or destroyed which a recovery may be had and not for injury to the personal feelings of the owner.” (Emphasis added). It is further provided at 28 A.L.R. 2d 1002 that:
It has generally been recognized, in such cases, that in assessing the actual value of the property, the plaintiff is not entitled to have considered any sentimental or fanciful value which he attaches to the property.
We find ourselves in agreement with the above cited authority due to the speculative nature of placing a value on an individual's sentimental attachment to an article of personalty.

Craft v. Oney, No. 82-CV-F-1937, 1984 WL 4060, at *3 (Ohio Ct. App. Oct. 17, 1984).

I do not recall seeing in this thread the state in which your wife went to the ship this item with the agent, but the law on this is pretty similiar in most, if not all, states. No doubt to you it is worth a few hundred to a few thousand dollars to recover the photos if you can because they are of a singular important event in your lives, but you won’t get that back in a judgment against DHL or its agent. You'll get the used value of the hard drive, but as the photos have only sentimental value and no real market value, I don't see getting anything more for those.

This is why for things like photos that have purely sentimental value it is critical to make copies that you can keep in a safe place. You cannot replace them if lost otherwise, and you don't get compensated for their loss either.
 

callymo2j

Member
I'm sorry, but in a negligence case for damaged property what you get is the lesser of (1) the cost to repair the item back to the condition it was before the damage occurred or (2) the fair market value (FMV) of the property immediately before it was damaged. Fair market value is the value for which you could have sold it to someone else in an arm's length transaction. In other words, the isssue is what would some stranger who had no ties to you be willing to pay for it right before it got damaged?

For example, let’s say Amy's parked car gets hit by Brian due to his negligent driving. Immediately before Brian hit her car, Amy’s car had a FMV of $5,000. Amy gets estimates averaging $9,000 to repair the car back to the condition it was before the accident. If Amy sues Brian for the damage to her car, all she will get is $5,000 — the FMV of her car — because that is less than what it would cost to restore the car to the condition it was before the accident. In short, it's more economical to junk the damaged car, take the $5,000, and buy another car comparble to the one that was totaled in the wreck. And thus the law says that is all the negligent person must pay.

Here, I think the maximum you would get if you sued is the FMV of the hard drive. There is no way a used 500GB hard drive is worth anything close to $8,000. Indeed, Amazon sells new ones for less than $50. So paying anything more than that to repair the damaged drive you won't get.

I understand that to you the wedding videos and photos are priceless. But unfortunately, they have pretty much no market value. People just aren't going to pay much, if anything, for wedding videos and photos of someone they do not know. Thus, the FMV of those videos and photos is likely zero (or close to it) and thus you'd get nothing for those. I realize that sounds like a harsh result, but the fact is that sentimental value does not count. You don't have to take my word for it. The Ohio Court of Appeals explains the law in that state as follows:

The parties have not referred us to, nor has our research disclosed any Ohio cases in which damages may be awarded for the “sentimental value” to the owner. The measure of damages for loss or injury to personal property is generally the reasonable market value of the property at the time of loss. See 30 O. Jur. 3d Sec. 70 at 78 (1981). This general rule is subject to the exception that where the property is of strictly personal nature, such as the items listed above, which would have little or no market value, the measure of damage is the reasonable value to the owner. See Bishop v. East Ohio Gas Co. supra; Employers' Fire Insurance Co. v. United Parcel Service Inc. (1950), 89 Ohio App. 447; Rider v. Gellenbeck (Hamilton Co. C.P. 1941), 21 Ohio Op. 437; 30 O. Jur. 3d Sec. 73 supra. However, it was recognized in Rider v. Gellenbeck supra at 438, that “it is for the article damaged or destroyed which a recovery may be had and not for injury to the personal feelings of the owner.” (Emphasis added). It is further provided at 28 A.L.R. 2d 1002 that:
It has generally been recognized, in such cases, that in assessing the actual value of the property, the plaintiff is not entitled to have considered any sentimental or fanciful value which he attaches to the property.
We find ourselves in agreement with the above cited authority due to the speculative nature of placing a value on an individual's sentimental attachment to an article of personalty.

Craft v. Oney, No. 82-CV-F-1937, 1984 WL 4060, at *3 (Ohio Ct. App. Oct. 17, 1984).

I do not recall seeing in this thread the state in which your wife went to the ship this item with the agent, but the law on this is pretty similiar in most, if not all, states. No doubt to you it is worth a few hundred to a few thousand dollars to recover the photos if you can because they are of a singular important event in your lives, but you won’t get that back in a judgment against DHL or its agent. You'll get the used value of the hard drive, but as the photos have only sentimental value and no real market value, I don't see getting anything more for those.

This is why for things like photos that have purely sentimental value it is critical to make copies that you can keep in a safe place. You cannot replace them if lost otherwise, and you don't get compensated for their loss either.
Thank you so much for your time and professional contribution. I guess, for one thing, I learned from this and now understand why DHL and her agent are treating me in the manner they are. Now, is there any other way I can get some sort of justice and possibly a deterrent to DHL and her agent that there could be some consequences to their actions.? I always wanted to be a lawyer and this case has made me even more interested. Thank you and thanks to everyone that has contributed to this matter.
 

justalayman

Senior Member
I know TM will want to swat me for this but I disagree. The value of your damages isn’t the value of the images. It is the cost to recover them and the fmv of the hdd.

This is what Ohio includes in its definition of economic damages;

4) Any other expenditures incurred as a result of an injury, death, or loss to person or property that is a subject of a tort action, except expenditures of the injured person, the person whose property was injured or destroyed, or another person on behalf of the injured person or the person whose property was injured or destroyed in relation to the actual preparation or presentation of the claim involved.
 

Taxing Matters

Overtaxed Member
I know TM will want to swat me for this but I disagree. The value of your damages isn’t the value of the images. It is the cost to recover them and the fmv of the hdd.
Sorry, but no. The cost to recover them is not compensable above the value of the images themselves, just as the cost to repair a car is not compensable above the value of the car itself. And the paragraph you quoted says nothing to contrary.
 

Taxing Matters

Overtaxed Member
Now, is there any other way I can get some sort of justice and possibly a deterrent to DHL and her agent that there could be some consequences to their actions.?
My suggestion to you is this: take copies of all the paperwork you have from DHL and the agent and see a personal injury lawyer in your state for advice on what you might do. I don't practice in Ohio and what I've given you here in this thread are the basics of the law that applies. Perhaps something you have not said or some unusual feature Ohio law might give you a claim worth pursuing. I don’t see you getting $8,000 out of this, but you might get something more than just the $50 for a busted hard drive. Many offer free initial consultations and they can tell you what you might realistically get out of this. Be sure to ask the lawyer about the rule against awarding anything for sentimental value (and bring along the copy of the quote from the Ohio case I provided).

Be sure to also discuss the possible problem of contributory negligence as well. Because if I were representing DHL and the agent, one of the arguments I would make is that your own negligence was greater than their negligence and should preclude any negligence claim. You are also expected to act with ordinary care and prudence in protecting your stuff. If your wife had simply backed up the data before shipping the drive, you'd not have lost the photos. That's a very easy and inexpensive thing to do and would have completely prevented the loss of the images. So the argument would be that if these images were so valuable to you, why didn't you back them up? Why should they have to pay for this when you could have easily avoided the loss in the first place? I know that you won't like to hear it, but there is some validity to that point. IMO you do bear some responsibility here for not doing that. Whether that would outweigh their negligence would be an issue for the jury/judge to decide.

You’d need to overcome both those issues to win anything for the images on a negligence claim. You might also have to overcome any provision in the contract that says you waive liability for damage to the goods shipped except to the extent you buy insurance to cover it. I have not shipped with DHL and have not read their shipping contracts, but every other major package delivery company I have used does have that kind of provision and I'd be surprised if DHL did not. If it did, and assuming that the court finds the provision is valid, that alone could kill the negligence claim.

As for the contract claim, what you get for that is highly dependent on the terms of the contract. Typically, as I mentioned before, consequential damages are not available in a contract claim, and very likely the contract itself expressly says that. Moreover, as I mentioned, in shipping contracts the contracts usually say you agree to waive damages for negligence except to the extent that you buy insurance to cover the shipment. In that case, it is the terms of the insurance that determines what you get.


I always wanted to be a lawyer and this case has made me even more interested.
If you have the mind for it, law can be a very enjoyable and rewarding profession. It also can be very stressful and demanding. It is not unusual for lawyers to work a lot more than 40 hours a week. Even if you don't want to practice law, a law degree can open a lot of doors for you. Several of my law school classmates did the dual JD/MBA program and got very good offers from large corporations. But it will change how you think and analyze things. A very logical and detailed mind is essential to be a good lawyer. You also have to be able to detach yourself from the emotion of the case and view things objectively to be successful. You also have to be willing to vigorously fight for your clients even if you do not like what they did or disagree with their position on something. That’s easier to do in some areas of law than others.
 

justalayman

Senior Member
Sorry, but no. The cost to recover them is not compensable above the value of the images themselves, just as the cost to repair a car is not compensable above the value of the car itself. And the paragraph you quoted says nothing to contrary.
The paragraph does say differently. It says any other expenditures caused by the tort. There is an expenditure of recovering the data (you keep calling it images but in fact it is computer data which is different and can have an intrinsic value even with no market value that is not considered sentimental value). Using your argument, if I created a computer program that requires 4000 hours to create and due to a person’s negligence it was caused to cost money to recover or was actually lost, in similar fashion to the scenario at hand, you are stating there is no value in the lost program data. The damages are the cost to either retrieve or recreate the program. Obviously the images cannot be recreated but there is a possibility they can be retrieved.

If nothing else, the losses here are the cost of creating the data. That would be the fees charged by the photographer. I don’t understand why you keep limiting the losses to the value of the images. That is not an accurate accounting of the actual losses incurred.

While you liken it to seeking compensation for a damaged vehicle, it is more accurately described as the costs to repair a house. There are situstions where the cost to repair a house can exceed the value of the house.
An example; a person causes damage to the roof of a home that results in $50,000 in damages. The market value of the home is $40,000. The court is not going to order the tortfeasor to pay $40,000 since based on the market value of the home the owner can just go buy a replacement. They will be ordered to pay the cost to repair the home.

Just the same, some states are recognizing not only intrinsic value but sentimental value in tort claims (Ohio recognizes intrinsic value but not sentimental value)





So, according to you, if some yahoo locked some personal pictures of mine in a safe and nobody has the combination, if the cost of a locksmith exceeds the market value of the items inside I’m sol (and that has nothing to do with time) and the yahoo that locked the stuff in the safe owes me nothing? I think you’re wrong tm.
 

jimnyc

Member
No copy of the content of the hard-drive was made due to time and we did not know that it will get damaged in transit.
Then the loss of the photos was your wife's fault, nobody else's.

It takes only minutes to copy files from one storage media to another and common sense would dictate that she package the drive properly herself.

Sue somebody if you like, but you are almost guaranteed to lose.
Callymo2j,

I'm truly not being sarcastic, I feel for you as similar happened to me once. For future reference, there are some really great backup programs out there, and some where you need not dig for individual files or worry that you forgot something. You simply use thew backup program to make a "clone" backup of your drive. Worst case, you buy a large enough HDD, and re-clone it using this backup. I have a multi-terabyte drive with about a terabyte of space used up. When I do a backup on my machine it takes about 10-15 minutes. AND peace of mind.
 

Taxing Matters

Overtaxed Member
The paragraph does say differently. It says any other expenditures caused by the tort.
It does not say differently. While there are various losses that can be compensated in tort, there are also limits on what that compensation is. You know this — it is not open ended. So while cost to recover the images (or data, the word doesn't change the concept) would potentially be recoverable, there is a limit to what a court will award for that.

An example; a person causes damage to the roof of a home that results in $50,000 in damages. The market value of the home is $40,000. The court is not going to order the tortfeasor to pay $40,000 since based on the market value of the home the owner can just go buy a replacement. They will be ordered to pay the cost to repair the home.
Unlikely. The basic rule in Ohio is that the damages for repair to real estate are limited to the difference between the value of the property before the damage and the value after, i.e. the dimunition in value. There are circumstances in which more might be awarded than the dimunition in value in Ohio, but in those instances the amount awarded cannot be “grossly disproportionate” to that dimuminition in value. The cost must be reasonable.

In our original majority opinion, we held that the trial court failed to properly instruct the jury on the measure of damages applicable to the Booths' breach-of-warranty claim. We held that Ohio Collieries Co. v. Cocke (1923), 107 Ohio St. 238, 140 N.E. 356, stated the general rule for the measure of damages for injuries to real property. That rule is as follows:
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.

Id. at 248–249, 140 N.E. 356.

{¶ 5} We noted, however, that the diminution in market value discussed in Ohio Collieries is not necessarily an absolute limit on the recovery of damages for injury to real property. Where such a limitation would prevent fair compensation, *262 some courts have upheld damage awards that exceeded the diminution in market value of the real property. See, e.g., Thatcher v. Lane Constr. Co. (1970), 21 Ohio App.2d 41, 50 O.O.2d 95, 254 N.E.2d 703; Northwestern Ohio Natural Gas Co. v. First Congregational Church of Toledo (1933), 126 Ohio St. 140, 184 N.E. 512; Prawdzik v. II Ent., Inc., Franklin App. No. 03AP–1044, 2004-Ohio-3318, 2004 WL 1405570, ¶ 13. Nevertheless, we stated that the relationship between the repair costs and the diminution in market value of the real property remains a benchmark consideration for the trier of fact in awarding damages. Therefore, even when there is evidence that might justify a damage award greater than the diminution in market value, the damage award cannot be grossly disproportionate to the value of the real property.
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.

As I said in my earlier reply to the OP, he ought to see an attorney for a realistic take on what he might get. I said he might get more than the cost of the hard drive itself, but under the facts given, not likely to get $8,000 either. I gave him the basic rule: the touchstone here is that generally the value of the property sets the limit on what is recoverable. To the extent you wish to say that in some circumstances the plaintiff might get something more, yes that's correct. But the damages are not open-ended. There is a limit to what the plaintiff can get.

And there are still the other potential issues here that the OP may have to deal with: waiver of liability in the contract, insurance limitations, and the argument of contributory negligence — the failure to take the simple step of copying that data before shipping the drive. This situation makes for a somewhat complex set of legal issues for facts that on their face seem rather simple.
 

justalayman

Senior Member
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.
 

Taxing Matters

Overtaxed Member
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.
No, it is not irrelevant. The value of that data bears on just how reasonable the cost is to restore it. If the data were highly valuable, it would stand to reason one might reasonably incur more cost to restore it. Where the data has little value, not so much. That value provides a measure by which to judge just how reasonable the costs are. That's the point the of the Booth case I cited. You are surely not contending that the damages here are open-ended are you? That the OP would be entitled to the cost incurred to restore the data no matter what that cost was? There is limit to what the court will award; the damages have to be reasonable. You and I may disagree (and apparently do) on what is reasonable, but it is clear in the case law that the value of thing involved — the data and hard drive here — is a key factor in determining what is reasonable.

As to your various challenges such as contributory negligence or the failure to create a copy and others.

No contributory negligence.
I didn't argue the packing. Clearly the OP didn't have to supervise the packing. My argument was that the failure to make the copy was potentially contributory negligence. You could also frame it as a failure to mitigate damages. Either way, the OP could have very easily avoided the loss by simply taking a little time to make a copy. If the OP could not be bothered to take that simple and very cheap precaution, which would have avoided the loss entirely, why should the packing company have to pay for that? I think most prudent people would do just that, especially for something they would find of high sentimental value to them. You evidently would not find that argument persuasive; I on the other hand would. What will any jury the OP gets say? No way to know, and I did not offer a view on how that would turn out. It is certainly not a slam dunk that a jury would take your view (or mine). But it is certainly something I would raise if I were representing the defendants, and thus I think it’s an issue the OP would have to confront if he sued the shipper an the agent.

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.
I didn't offer an opinion of whether shipper would prevail on that. I have not read the contracts involved. But I think it is very likely that a waiver liability was included in the contract, and in that event I said earlier that if the court found it enforceable that could preclude recovery. But again, if I were the shipper, I would argue that point (if there was such a provision) which would make it an issue the OP would have to deal with if he sues.
 

justalayman

Senior Member
You are surely not contending that the damages here are open-ended are you?
not at all.


Again you are considering the value of the data as the level of damages. I am saying the damages are the cost to create the data. It has nothing to do with recovery but the the cost to purchase the data is what the people were charged and that is their measure of losses.

Let me make an analogy that may make my point clearer.

Let’s say I hire an artist to paint a portrait of me. Some yahoo trashes it. Obviously the actual portrait isn’t worth anything to anybody but my wife (my mom is long passed but if she were alive my portrait would be priceless to her). Now your contention is that if the price I paid to have it recreated is anything above $0 it is meaningless and I wouldn’t be due anything. My argument is my losses are the price I paid to have the portrait made. It has nothing to do with the value of the painting the cost to create it. That is what I lost by that yahoo trashing the portrait because that is what it would cost to end up with the portrait again.

My position is the same with the case at hand. The damages aren’t the value of the data but the cost of having somebody provide that data to me. That is the measure required to make me whole and is that not what a court is obligated to do? Granted I can’t have somebody assemble the same configuration of data so I would have to settle for the cash.


Given there are more of “me’s” on a typical jury than there are “you’s” I suggest which of us see your argument as persuasive is suggestive of what a typical jury will see as persuasive.
 

quincy

Senior Member
Your arguments have similarities to the ones made in the suits filed over company data security breaches.

In placing a value on the lost data, included in claimed damages will generally be the cost of hiring a specialist to recover the data.
 

Taxing Matters

Overtaxed Member
Again you are considering the value of the data as the level of damages.
No. You evidently did not read what I said. I said that the damages must be reasonable and that the value of the item lost is an important factor in judging what is reasonable.

I am saying the damages are the cost to create the data. It has nothing to do with recovery but the the cost to purchase the data is what the people were charged and that is their measure of losses.
But again, even with that argument, those damages need to be reasonable, and the value of the data created will significantly inform what one would consider reasonable. Let me be more clear: just because you paid a certain cost to get it does not automatically make that reasonable for damages in your lawsuit.

Given there are more of “me’s” on a typical jury than there are “you’s” I suggest which of us see your argument as persuasive is suggestive of what a typical jury will see as persuasive.
LOL, do you have any objective source to back that up? The question is, of course, rhetorical. There won’t be any such study out there comparing you and me with the wider world of potential jurors in whatever county the OP might try his case. I'm not surprised that you would think more jurors are like you. Human nature is that people tend to think others will agree with their positions more than they will disagree. Moreover, you are more likely to be surrounded by those who share you own view than not. So from your perspective, sure, you may think that more jurors will have a view like yours of what is reasonable. I don't knock you for that because of the factors I just mentioned — it's just human nature to assume it. I will not assume that the jury will necessarily be more like me because someone who has tried and observed a lot of cases, I can tell you juries can run the gamut of views and what kind of jury you think you have may not be the jury you actually got. Bear in mind that juries are not picked simply at random. They start out that more or less that way, but in the jury voir dire process, each side tries to get a jury more sympathetic to their position. Neither you nor I could today reliably say what kind of jury the OP will ultimately get if he sues and has it tried to a jury.
 

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