property damage - redress/ options to victims - specifically commercial victims

Question

one thing I've sometimes heard (especially related to items on show in shops is "you break it, you buy it" with the idea being that if someone were to accidentally damage an item intended for display on the shop floor that it is then acceptable for the shop to expect you to then buy the now damaged item, has this ever been a legally recognized form for redress ( either by statute or common law or was it just something my parents told me as a kid in an attempt to stop me touching( and potentially damaging things in shops?

Answer 1

united-states

Damaging good offered for sale is a tort (either negligence or conversion) for which compensatory damages (usually measured by fair market value) are available as damages that can be recovered in a lawsuit. In the case of a negligence action, the damage has to be due to the negligence of the customer (i.e. their failure to act with the care of a reasonable person to avoid harming another person's property in a foreseeable manner). In some U.S. jurisdictions, conversion is a strict liability tort, while in other jurisdictions it is an intentional tort.

It would generally not be a crime to unintentionally damage goods in a shop, so no criminal proceeding would be present and no restitution could be awarded in a criminal case. Intentionally damaging someone else's property is the crime of vandalism (which has a variety of names in different states), which would usually be a misdemeanor and would usually be accompanied by a restitution award equal to the value of the goods damaged.

Title does not shift from the shop owner to the customer when good are damaged prior to sale, contrary to the way that this incident is often described colloquially, under the Uniform Commercial Code.

In practice, given the small dollar amounts involved and the fact that under U.S. law and the fact that the prevailing party is not entitled to attorney fees under U.S. law, these cases rarely proceed to trial, and if they do proceed to trial, usually go to small claims court and are not appealed. So, these cases rarely give rise to binding legal precedents.

Answer 2

Such notices are really intended to caution the public to be careful, and warn that, at the very least, damage is going to lead to a confrontation with the seller involving a demand for payment - which is a confrontation that most people don't want to have.

It clearly isn't intended to say "a sale here is executed by smashing the desired goods", and I don't think a court would accept that either witnessing the notice or the act of accidental damage amounted to an intention to enter legal relations for the sale of goods.

In general, the liability of the public for accidental damage is somewhere between nothing - no liability at all - and negligence if there was something grossly deficient about their behaviour.

In the event of negligence, it is unlikely that the retailer would be entitled to the retail price. More likely, they would be awarded the cost of replacing the damaged goods (i.e. the trade price for the goods).

If there was scrap value retained, this would be deducted, and if the goods were repairable for less than replacement (e.g. if a car has its paint scratched), then the repair cost would be granted.

It also shouldn't be assumed that damage is self-evidently negligent. Usually, traders prefer to put goods in harm's way and encourage the public to handle them, because it's good for business on the whole.

They may also prefer to stack or lay out goods in a way prone to damage, because it is more economical with space and shelving. In classical comedy, the mountain of fragile goods stacked on the floor, that collapses like a house of cards when nudged by a shopping trolley.

Some breakage is therefore to be expected from typical retailing methods, and a retailer would probably have to demonstrate disorderly conduct in order to establish that a single instance of breakage was negligent (and of course if there are multiple instances by multiple customers, it rather suggests the retailer is either being negligent themselves, or taking an intentional risk).

I haven't experienced breakage often, but the last time this happened to me, a bottle of soft drink fell out of a cardboard enclosure, and smashed on the floor.

The cardboard proved to be somewhat looser than the norm in holding the bottles, but I also handled the package in an odd way trying to find details of what the item actually was (it was colourful packaging, but unclear if it was alcoholic beer or what), which led to me trying to look at different sides of the packaging.

I advised the staff that there was a breakage to be cleared up, but I didn't pay, and wouldn't have paid even if it had been demanded, as I didn't see that there was any negligence on my part. Just poor packaging, both structurally and informationally.

Answer 3

Absent negligence or deliberate intention, there is no redress

new-south-wales

Placing products on display where they might be accidentally damaged is a choice the store makes, and they display them at their own risk. Sometimes, the value of the products means they don't take this risk: consider the different choices made by jewellers and greengrocers.

To be liable for damage from a customer, the shop would need to prove at least negligence:

1. that a duty of care existed between the customer and the shop - arguable, there is a duty from the shop as the controller of the premises to the customer as a visitor but a universal duty in the other direction has not been found,
2. that the customer breached that duty - depends on the circumstances but pure accident is not a breach, and
3. that damage was caused - probably a given.

Given the generally low value of such breakages, ain't no one going to court for this.

Even if there was negligence, the customer can raise a partial defence of contributory negligence on the shop if, for example, fragile items were stored on a high shelf or the shop had made a pyramid of glass jars. So, if you were a customer who triggered something like this, you might be liable for one bottle but not more than that.

In any event, you are only liable for the damage, the price the shop bought the goods for, not the price they sell them for.