In "L" Investments, Ltd. v. Lynch, 212 Neb. 319, 322 N.W.2d 651 (1982), the defendant had struck a building with an automobile. The owner of the building sued to recover the cost of repair, and the trial court had based its decision on the cost of repair.
Upon appeal to the district court, that court concluded that the applicable measure of damages was the cost of repair, if less than the diminution in value of the real estate measured by the difference in value of the premises before the accident and immediately after the accident.
Since there was no evidence on the diminution of value, the district court reversed the judgment in favor of the plaintiff and dismissed the case.
The Nebraska Supreme Court reversed the district court's decision and remanded the cause with a provision allowing the defendant 20 days to introduce evidence that damages determined in the trial exceeded the pretort value of the property.
The "L" Investments, Ltd. court recognized that existing case law seemed to support the district court's decision, and it reexamined the reasons for the rule in light of the purpose for recovery in tort.
It recognized the situation where an automobile may damage a building and the building would still have the same value after the tort as before, but stated that the owner of the building should still be entitled to have the damage done by the automobile repaired.
It also recognized that an owner of a tortiously damaged building should not be able to recover more when a building is damaged than what that owner could have recovered if that property had been destroyed. After discussing the problems in that area, the court held:
The burden of establishing the cost of repair shall be upon the party seeking recovery. If the party against whom recovery is sought believes that the cost of repair exceeds the market value of the property just before damage, then the burden shall be upon such party to introduce evidence to establish that fact, and it will then be up to the trier of fact to determine which of the two measures of damages should be employed. Absent evidence that the cost of repair or restoration exceeds the market value of the property just before damage, it will be presumed that the cost of repair or restoration does not exceed the market value of the property just before damage. 212 Neb. at 328-29, 322 N.W.2d at 657.