MEASURE OF DAMAGES
FOR INJURY TO PROPERTY
1. If you find for the plaintiff,
you should award an amount of money that the greater weight of the evidence
shows will fairly and adequately compensate plaintiff for damage to plaintiff’s
property.
In determining damages, you shall
consider the following elements:
a. If you find the injury to plaintiff’s
property is permanent, plaintiff is entitled to the lesser of either: (1)
the diminution in the market value of plaintiff’s property, or (2) the
reasonable cost of rehabilitation or restoration of the property.
The diminution in market value is the difference between the fair market
value of the property immediately before and immediately after the damage
caused by the defendant.
In addition
to the foregoing, you should also take into consideration any loss sustained
by the plaintiff for the temporary loss of use of plaintiff’s property
during the period of time reasonably required for its restoration
or replacement.
b. If you find that the injury to
plaintiff’s property is temporary, plaintiff is entitled to the reasonable
costs [to abate the damage] [restore the property] plus the value of the
loss of use of plaintiff’s property for the duration of the damage.
2. Property damage is temporary
if it is feasible to repair or restore the property to its previous condition
immediately prior to the damage at a reasonable expense, and if the cost
of repair or restoration can be established with reasonable certainty.
However, if the cost of repair or restoration is unreasonable or exceeds
the value of the property immediately before the injury occurred, then
the damage will be considered permanent.
Authority: Davey Compressor
Co. v. Delray Beach, 613 So.2d 60 (Fla. 4th DCA), aff’d, 639 So. 2d 595
(Fla. 1994); but compare, Standard Oil Co. v. Dunagan, 171 So.2d 622 (Fla.
3d DCA 1965) and Crown Cork & Seal Co. v. Vroom, 480 So.2d 108 (Fla.
2d DCA 1985); see also, Nitram Chemicals, Inc. v. Parker, 200 So.2d
220 (Fla. 2d DCA 1967); Exxon Corp. of U.S.A. v. Dunn, 474 So.2d 1269 (Fla.
1st DCA 1985), Clark v. J.W. Conner & Sons, Inc., 441 So.2d 674 (Fla.
2d DCA 1983); Antun Inv. Corp. v. Ergas, 549 So.2d 706 (Fla. 3d DCA 1989).
Comment: As held in Davey Compressor
Co. v. Delray Beach, 639 So. 2d 595 (Fla. 1994), exceptions to the general
measure of damages exist, such as when the plaintiff is a municipality
responsible for supplying potable water to its residents. See RESTATEMENT
(SECOND) OF TORTS,
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