When a bookshelf is more than a bookshelf: sentimental damages in Indiana By Colin E. Flora
n a corner of my apartment stands a bookshelf. On that shelf are books whose combined worth exceeds the market value of the shelf many times over. Yet, were I confronted with the choice of either saving the books or the bookshelf, without hesitation, I would save the bookshelf. What accounts for such an irrational decision? The law has long understood the answer, but just as long has rejected it. That answer is that the bookshelf holds intrinsic sentimental value for me, which cannot be recognized in the marketplace because no one else has a link to the hours of building it alongside my late grandfather. Although each of us can relate to the concept of sentimental value,1 almost every jurisdiction claims to reject it as a factor in setting damages for loss of personal property.2 It may, however, surprise you to learn that Indiana is among the handful of states holding the minority view.3 Although infrequently addressed, since 1984, Indiana caselaw has supported awards for sentimental value in the loss of personal property.4 Still, the circumstances for recovery are, as one court wrote, “severely circumscribed.”5 This article delves into the limited Indiana caselaw and authority from throughout the nation to examine the scope and availability of sentimental damages. As you read, keep in mind one question: Could the author recover for the sentimental loss of his bookshelf? By the end, you should see the answer is anything but clear. In order to understand the exceptional circumstances in which sentimental value may be compensated, we must begin with how damages are traditionally doled out for personal-property injuries.
General views of damages At a basic level, there are usually three methods for deriving damages to personal property. The first is to compensate for the diminution in value from the moment immediately before the injury to after,6 which may include both total destruction of the property as well as accompanying stigma damages that drive down market value.7 The second is the cost to repair.8 And the third is the accompanying consequential damages resulting from loss of use.9 In each of the classic methods for calculating compensation, there is some theoretically objective basis of calculation: the amount of money a reasonable person would pay in the circumstance, i.e., the fair market value. There are, however, two circumstances in which courts routinely depart from market value. One is the instance of household goods and wearing apparel.10 In determining the measure of damages to household goods and wearing apparel, Indiana courts have explained: Fair market value is not a proper standard for the measurement of the value of used wearing apparel or household goods. It is generally held that the amount of recovery for the loss, or conversion of, or injury to wearing apparel or household goods is not limited to the price which could be realized by a sale in the market, but that the owner may recover the value of the goods to him, based on his actual money loss resulting from his being deprived of the property, or the difference in actual value caused by the injury, excluding any fanciful or sentimental values which he might place upon them. In determining the value of used wearing apparel or household goods, it is proper to consider any fact which goes to show the real value, such as the cost, and condition and age, and any damage that has resulted to them through use, decay, or otherwise. The value should not be fixed on the basis of any purely sentimental value of the
owner or any fanciful price which the owner for special reasons might place thereon.11
At the heart of the householdgoods-and-apparel exception, explained one commentator, is the realization that most persons will not turn to the secondary market to replace such goods, instead buying new items to replace lost ones.12 That behavior seems the result of an innate stigma toward household goods; the value of someone else’s used undergarments is decidedly inferior to the value of your own.13 The other generally recognized exception is when the item either lacks a market from which to derive a value or lacks a value in the existing market.14 Most frequently the type of items without an existing market are items such as photographs, personal papers and drawings.15 As one author recognized, the lack of market value stems from the reality that often none but the owner wants to own the item.16 Throughout the nation, the general rule is that damages for loss of property without an existing market value will not encompass the sentimental value of the item.17 Instead, recovery is for the special or intrinsic value to the owner, but not sentimentality.18 That is the position advanced in the Restatement (Second) of Torts: Some things may have no exchange value but may be valuable to the owner; other things may have a comparatively small exchange value but have a special and greater value to the owner. The absence or inadequacy of the exchange value may result from the fact that others could not or would not use the thing for any purpose, or would employ it only in a less useful manner. Thus a personal record or manuscript, an artificial eye or a dog trained to obey only one master, will have substantially no value to others than the owner. The same is true of articles that give enjoyment to the
(continued on page 14) RES GESTÆ • OCTOBER 2018
October 2018 edition of Res Gestae, the journal of the Indiana State Bar Association