Loss of use is fundamentally about the denial of property rights regardless of its intended use. Property ownership vests the owner with certain intrinsic rights, including the right to use or not use. When they are deprived of that choice through the tortious conduct of another, that deprivation is compensable. This Article reviews the historical origins of loss of use law to determine that tort victims denied the right to use their property must be compensated regardless of how they would have chosen to use their property. Because these damages do not depend on the owner’s actual use, loss of use should be thought of as loss of right to use. The Article then aims to define fair and reasonable compensation by arguing that the proper measure of damages for loss of right to use is daily market rental value for the period of deprivation. This simplified definition provides courts with a workable measure of damages that alleviates the need for judicial speculation while holding true to the goal of placing tort victims back in their original position.
Recommended CitationMatthew J. Forrest, Understanding Loss of (Right To) Use Damages: Defining Fair and Reasonable Compensation for Loss of Use in Light of Historical Origins and Practical Considerations, 42 Pace L. Rev. 247 (2022)
Available at: https://digitalcommons.pace.edu/plr/vol42/iss2/1