Damage to furniture during removal & transportation – problems of burden of presentation & proof
Transport orders often result in damage to the transported goods (transport damage); in the case of removals, it is the damaged furniture (removal damage). In the vast majority of cases, it is very difficult for the client to demonstrate and prove the damage. The problems of the burden of presentation and proof are clearly illustrated in a case decided by the Cologne District Court in 2017. The client of a removal sued the removal company for damages due to alleged damage to the furniture during the removal.
It has been found to be right:
The default judgment of 05.09.2016 is set aside.
The defendant is ordered to pay the plaintiff € 473.90 plus interest in the amount of 5 percentage points above the base interest rate since April 19, 2016 (lis pendens).
The defendant is further ordered to pay the plaintiff pre-trial legal fees in the amount of € 83.54 plus interest in the amount of 5 percentage points above the base interest rate since April 19, 2016 (lis pendens).
The remainder of the action is dismissed.
Orders the plaintiff to pay 88% of the costs and the defendant to pay 12%.
Facts of the case
The parties are in dispute over claims for damages due to damage to removal goods.
The plaintiff commissioned the defendant to carry out a removal, including the dismantling and assembly of the furniture, on 28/09/2015.
The removal goods included a dining table, two matching chairs, two shelves, a garden table, a blue and a white bicycle, a white chest of drawers, a wardrobe (study), a kitchen cupboard, a sofa, a piano and a bedroom sliding door wardrobe. These items were damaged during the move. For details of the condition, reference is made to Annexes K 14 et seq. to the pleading dated 8 July 2016 and, in particular, the statements in the pleading dated 21 October 2016.
The plaintiff is of the opinion that she is entitled to compensation in the amount of € 4,181.00 due to the damage.
After the plaintiff’s representative did not appear at the hearing on 5 September 2016, the court issued a default judgment dismissing the action as requested. In a statement dated 26/09/2016, the plaintiff lodged an objection to the default judgment served to her on 12/09/2016.
The plaintiff now requests that the default judgment of 05.09.2016 be set aside and
I. order the defendant to pay her € 4,181.00 plus interest at a rate of 5 percentage points above the prime rate since 28.09.2015 and
II. further order the defendant to pay to it pre-trial legal costs in the amount of 468.74 plus interest in the amount of 5 percentage points above the base interest rate since the pendency of the action.
The defendant requests that the default judgment of 05.09.2016 be upheld.
The defendant is of the opinion that the plaintiff has not made a sufficiently substantiated factual submission regarding the damage to the furniture, in particular regarding the amount of damage. An estimate of the damage cannot be made on this basis.
For further details of the facts of the case and the dispute, reference is made to the written submissions and annexes submitted by both parties to the court file.
Reasons for the decision
(damage)
The admissible action is only justified to a limited extent.
The plaintiff has a claim for damages against the defendant in the amount of € 473.90 due to the damaged removal goods under §§ 280 f., 823 para. 1, 249 BGB.
Since the extent of the damage described was not disputed at the hearing, the only issue in dispute between the parties is the amount of the existing claim for damages.
With regard to the damage caused to the furniture, the court estimates the damage in accordance with 287 ZPO, taking into account the following proviso: in the case of the lower quality furniture, which can be assigned to the lower or lower-middle price segment, the court assumes that a loss in value of 50% occurs within the first year, already with the first installation and use of the item. Insofar as there is no impairment of use in the present case due to the damage described, only a visual impairment is to be taken into account, which – due to the particular loss in value of used furniture only to a small extent – may reduce the current value. In detail:
-
Dining table
The dining table purchased on 31.03.2015 at a purchase price of € 335.00 still has a maximum current value of € 167.50 at the time of the damage on 28.09.2015 according to this provision. The damage described in the form of 3 x 3 cm and a 7 cm long scratch as well as sanding marks only represent visual impairments. In the absence of photographs of this dining table or additional evidence on the material of the table, the court estimates the damage caused by these visual impairments at a maximum of 20% of the current market value, resulting in a damage amount of € 33.50.
-
Two damaged chairs
The two chairs had a purchase price of € 69.00 each in March 2015, i.e. a total current value of € 69.00 at the time of the damage. There is damage to one chair on the backrest in the form of a 7 cm long sanding mark and two further marks of approx. 0.5 cm and to another chair in the form of a 10 cm long sanding mark. These damages also only represent visual impairments, which result in a loss of value of max. 20% of the current value, i.e. an amount of € 13.80. Taking into account the visual impairment of the four-piece chair ensemble, the court estimates the damage at € 50.00.
-
Two “Maniac” shelves
Two shelves were purchased for € 598.00, meaning that the current value for both shelves is € 299.00 and € 149.50 for one shelf. In a statement dated October 21, 2016, the plaintiff explained that one of the two shelves has a deep dent on the shelf surface, which is approx. 3 cm deep and extends over a length of 5.5 cm. In view of the fact that the shelves are not regularly visible and that this is only a minor visual impairment, the court assumes that an amount of 20% of the current value is appropriate to compensate for the loss in value, but is also completely sufficient, resulting in an amount of € 29.90.
-
White chest of drawers
With regard to the chest of drawers purchased on 09.11.2014 for € 285.00 and delivered in March 2015, damage in the form of a 1 cm chipping in the middle, which goes through to the wood, is described. Photographs are not provided. Due to the extremely minor visual impairment, which can also be easily removed with a touch-up pen or similar, the court assumes, in the absence of better information through photographs or similar, that the plaintiff has only suffered damage in the amount of € 28.50, but in no case higher damage.
-
Study cupboard
With regard to the oak cabinet purchased in May 2015 at a purchase price of € 264.00, which was destroyed during transportation, the court, applying the aforementioned principles on the reduction in value of used furniture, assumes damage amounting to a maximum of € 132.00, i.e. the current value.
-
Kitchen cupboard
For the kitchen cabinet purchased in April 2015 for € 750.00, which was damaged in the form of a 3 cm thick flaking of the wood in the lower front area, the court assumes that, in view of the small area of the flaking, the visual impairment is minor. As no photographs or similar have been submitted, it is not possible to estimate damage in excess of € 75.00 on the basis of this factual presentation.
-
Highboard
With regard to a highboard purchased in December 2013 at a purchase price of € 279.00, which was damaged during transport, as can be seen on the photograph K 16 (p. 50 GA), i.e. in the form of two small abbreviations on a shelf, the court can rule out that the plaintiff has suffered a higher damage than € 25.00 due to this optical impairment.
-
Sofa
The damage described in the form of 7 cm of damage to the fabric on the sofa purchased in April 2015 at a purchase price of 1,659.84 also only represents a visual impairment. On the basis of the photograph submitted as Annex K17 to the statement of claim (p. 51 ff GA), it is clear to the court that it is only a minor visual impairment in the lower area of the sofa. It is not possible to determine from the photographs whether the scratch is on the front or the back of the sofa. Therefore, in the absence of more precise information, the damage caused by the visual impairment is estimated at a maximum of € 50.00 . However, on the basis of the photographs, the court can rule out the possibility that the plaintiff has suffered greater damage.
–
You can find more articles on this topic here.
Do you have further questions about this or a similar issue? Then please here contact us here!
Back to the homepage Lawyers Römer
Comments are closed.