If my drum equipment was left at a friends house I was jamming at for 3 weeks and he broke a cymbal, does he have to replace it?

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If my drum equipment was left at a friends house I was jamming at for 3 weeks and he broke a cymbal, does he have to replace it?

Asked on March 26, 2012 under Bankruptcy Law, Ohio

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

If your friend broke the cymbal intentionally, you could sue him for trespass to chattels which is the intentional taking or damaging of the personal property of another.  Your damages (the amount of compensation you are seeking in your lawsuit) would be the cost of replacement.

If your friend did not break the cymbal intentionally, he would be liable for negligence.  Negligence is the failure to exercise due care (that degree of care that a reasonable person would have exercised under the same or similar circumstances to prevent foreseeable harm).  Your damages in a lawsuit for negligence would be the cost of replacement.

If he doesn't replace the cymbal and you file a lawsuit, it would be advisable to sue for negligence instead of trespass to chattels because with trespass to chattels you would have to prove that he intentionally damaged the cymbal.  With negligence, there is no intentional act.  It is just failure to exercise due care which is easier to prove.  With negligence, you will need to prove duty of due care, breach of duty (failure to exercise due care to prevent the cymbal from being broken), actual cause, proximate cause and damages.  Actual cause means but for your friend's act would the cymbal have broken?  If the answer is no, actual cause has been established.  Proximate cause means were there any unforeseeable, intervening acts which would relieve your friend of liability?  If the answer is no, proximate cause has been established.  Damages as mentioned above would be the cost of replacement.  You will need to mitigate (minimizeJ damages by having the replacement cymbal be comparable to the broken cymbal.  If your replacement is the most expensive cymbal you can find, your damages will be reduced accordingly.  You can file your lawsuit in Small Claims Court.  Your damages in addition to the replacement cost of the cymbal should also include court costs which are the court filing fee and process server fee. 


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