Above Cayuga’s Waters

In a case brought against Cornell University for the destruction of horse semen, the New York Appellate Division for the Second Judicial Department has returned the matter to the trial court

The plaintiff, a horse breeder, commenced this action to recover damages resulting from the defendants’ destruction of a quantity of semen obtained from one of her stallions. The defendants had agreed to collect and freeze the semen for a fee. The frozen semen remained in the defendants’ care for approximately five months, at which time the plaintiff attempted to retrieve it and was informed that somehow it had thawed while in storage and was no longer viable. Following the presentation of evidence at trial, the defendants argued to the court that since the contract between the parties did not encompass storage of the semen, their retention of the semen after it was collected and frozen constituted a gratuitous bailment. The case was submitted to the jury on a theory of gratuitous bailment, and the jury returned a verdict in favor of the plaintiff on the issue of liability and awarding her damages in the principal sum of $212,841.83.

The evidence was sufficient to support the findings on liability but not damages

 the verdict on the issue of damages was contrary to the weight of the evidence and must be set aside. The jury awarded the plaintiff the principal sum of $212,841.83 by calculating that each of the 210 destroyed containers, or “straws,” of semen had a retail value of $1,000, for a total of $210,000, and then added $2,841.83, which was the amount that the defendants had billed the plaintiff for medical and collection services provided for the plaintiff’s stallion. This was error…

the plaintiff submitted evidence of executed contracts for the sale of 16 of the destroyed straws of semen to various breeders at the price of $1,000 per straw. Since the amount of lost profits associated with these contracted sales was certain and definite, the plaintiff was entitled to an award of $16,000 for the loss of these 16 straws (see generally Steitz v Gifford, 280 NY 15, 20; Ever Win, Inc. v 1-10 Indus. Assoc., 111 AD3d at 886). However, with respect to the remaining 194 straws that were destroyed, for which no contracts to purchase had been executed, the proper measure of market value is the price at which they could be replaced with a product of similar quality and characteristics in the market that existed immediately before their loss (see Ever Win, Inc. v 1-10 Indus. Assoc., 111 AD3d at 886). Accordingly, we remit the matter for a new trial and determination limited to that issue.

Information about the plaintiff is linked here. (Mike Frisch)