How to Sue for Property Damage in Small Claims Court - dummies

How to Sue for Property Damage in Small Claims Court

By Judge Philip Straniere

One of the most difficult kinds of small claims cases for a plaintiff to prove is property damage claims arising from a flooded basement. Obviously it’s easy enough to prove there was a flood; that’s not the problem. The difficulty arises from establishing what caused the flood and putting a price tag on the amount of damages.

Damage from some types of flooding are recoverable in court, but others aren’t. It may all look like water over the dam to you, but the court sees it differently.

Flood causes: Water mains and sewer backups

The two most common causes of basement flooding other than ground water after rainstorms are water main breaks and sewer backups. These both have a similar proof problem — where is the break or backup?

If it’s on your property before your line hooks into the municipal water or sewer system, you’re responsible for repairs and damages. You usually won’t know this until after you’ve undergone the expense of digging up your lawn to locate and replace the break. This is when you call your homeowner’s insurance carrier to see whether you have coverage.

If the problem is in the municipal system, you still have a difficult case to prove because the law requires that the municipality have some prior notice of a problem with the system. If this is the first time it’s happened, then there’s a good chance that the municipality won’t be held responsible, and you’ll have to absorb not only the water in the basement but also the financial loss.

To prove your case in this situation, subpoena the records of the local water or sewer authority to see whether there have been complaints or repair orders in your neighborhood. You may also be able to do this with a Freedom of Information Law (FOIL) or Act (FOIA) request, depending on how your state labels it.

The problem with a FOIA request is that you may not get the information you seek before the time limit to file a claim expires. You may have to sue first and get the information later with a subpoena.

Remember, because you’re going after a government agency, there may be special rules to follow before you can bring a lawsuit, including whom you have to notify as well as delineated time limits for making such a claim. If you fail to meet these requirements, you may never get to court on the merits of your claim.

This points out why it is important to file complaints about water and sewer backups; complaints put the municipality on notice of a defective condition and may permit you or your neighbor to successfully bring a suit the next time there’s a problem.

Another reason to get the records is to establish that even if the municipality did not have actual notice of a defective condition and knew about it because someone told them about it or because they created the problem, they should have constructive notice — meaning that had they been properly maintaining and inspecting the system in question, they would have known about the condition.

You can argue that had the municipality done even routine maintenance and inspection, they would have discovered the problem and corrected the condition. Records can help prove previous notice or a lack of maintenance and inspection.

With sewers, you may also need to determine whether it’s a storm sewer or a sanitary sewer. In theory, a sanitary sewer is a closed system subject to backups only if it isn’t properly maintained. Therefore, after you get past the notice requirement, the fact that the municipal sewer line is clogged gets to be an easier case.

With storm sewers, the problem often is related to the fact that they’re not closed systems. They can include drainage ditches and conduits to streams and brooks. This means the system is not under the exclusive control of the municipality. Neighbors can throw mattresses and debris into the system causing a backup a great distance away. You need the municipal records showing how often the system is cleaned and inspected.

Finally, if the flooding occurs after particularly heavy rain or unusual snow melting, the municipality will claim the event was an act of God that they had no control over and could not have prevented. If an act of God is established, you can’t recover.

Damages: How to prove the value of property

After you establish that the municipality is responsible for the flooding condition, you still have to prove the monetary value of the personal property you lost.

The measure of damages is the value of the property on the date of loss. It’s not:

  • Replacement value

  • The cost to buy a new object at current market price

  • The price you initially paid for the item

For recovery purposes, you get the value of the property when it was destroyed. A ten-year-old rug is valued as a ten-year-old rug and not a new rug. If you notify your homeowner’s insurance company, they can send out someone who’s an expert at valuing property in casualty loss situations.

If you don’t have insurance or can’t file a claim, you may have to hire a public adjuster — someone who can value the property loss and prepare an estimate for use in court for a fee.