dissenting.
Without authority, CMES, Inc. sliced through an underground fiber-optic cable owned by MCI, causing hundreds of thousands of phone calls to be blocked and an almost nine-hour disruption of service for a majority percentage of customers who relied on the spliced cable until it could be repaired. Had MCI not had backup lines in place to mitigate, but not eliminate, the loss of the cable, the damage would have been far greater. It is undisputed that, even with MCI’s backup lines, its network could not provide seamless coverage for all affected users during repair of its damaged cable. Under these circumstances, both common sense and general fairness would indicate that MCI should be entitled to loss of use damages for its severed line. Georgia law and the Restatement of Torts indicate the same. Therefore, I respectfully dissent.
As the majority points out, loss of use damages have long been approved in Georgia. For example, in Appling Motors, Inc. v. Todd, 143 Ga. App. 644 (239 SE2d 537) (1977), an owner of a damaged corn combine was allowed to seek loss of use damages based on a substitute combine’s rental value. In Apostle v. Prince, 158 Ga. App. 56 (279 SE2d 304) (1981), it was determined that the owner of a wrecked automobile was entitled to seek loss of use damages equivalent to the reasonable rental value of a comparable car. Likewise, in Southern Crate & Veneer Co. v. McDowell, 163 Ga. App. 153 (293 SE2d 541) (1982), the owner of a damaged pulpwooder was allowed to seek loss of use. damages, even after the owner temporarily replaced the pulpwooder with a smaller truck in his fleet.
The Second Restatement of Torts supports these results. Generally, Section 931 (Detention Or Preventing Use Of Land Or Chattels) *473provides:
If one is entitled to a judgment for the detention of, or for preventing the use of, land or chattels, the damages include compensation for (a) the value of the use during the period of detention or prevention or the value of the use of or the amount paid for a substitute, and (b) harm to the subject matter or other harm of which the detention is the legal cause.
The comments further explain:
b. The owner of the subject matter is entitled to recover as damages for the loss of the value of the use, at least the rental value of the chattel or land during the period of deprivation. This is true even though the owner in fact has suffered no harm through the deprivation, as when he was not using the subject matter at the time or had a substitute that he used without additional expense to him. The use to which the chattel or land is commonly put and the time of year in which the detention or deprivation occurs are, however, to be taken into consideration as far as these factors bear upon the value of the use to the owner or the rental value.
c. Use of substitute. If a person has been deprived of a chattel or land that was being used in a business that would suffer from the deprivation, the rule for avoidable consequences (see § 918) requires that he should make reasonable efforts to procure a substitute to prevent the harm. If he uses a substitute of his own, he is entitled to its reasonable rental value in substitution for the rental value of that of which he was deprived. This is true although its rental value is greater than that of the thing for which it was substituted, unless a cheaper substitute could have been procured or unless the value is greater than the harm that would have been suffered without a substitute. The same rule applies when a substitute is obtained from a third person. The injured person is entitled to indemnity for the amount paid for its use even though this is greater than its reasonable rental value, if there is no alternative except still greater harm to the business.
Based on this case law and the Restatement, it becomes clear that, contrary to the opinion of the majority, MCI may pursue *474loss of use damages in this case. MCI lost use of its cable, was required to use a substitute to restore capacity, and is entitled to the fair rental value of that substitute. This value may easily be calculated. The evidence showed that substitute capacity for damaged fiber-optic cables may be rented on a 30-day basis. The rental rate for 30 days may then be prorated to arrive at an hourly rental rate, which can then be used to determine the fair rental rate for MCI’s nine-hour loss of its cable.
The majority reaches the opposite conclusion by making three fundamental errors. First, it misconstrues the applicable cases cited above by arguing that a fiber-optic cable cannot be analogized to vehicles because it is part of an integrated network that at all times remained in use. This is illogical. For example, if one taxi in a fleet of taxis is damaged, the remaining cabs in the “network” may continue to be used while the single cab is repaired. Assuming that the remaining cabs are incapable of increasing their capacities to cover the loss, the cab company has been damaged by a diminished capacity to perform the functions for which it is in business and should not be prevented from seeking recompense for this damage.
Second, the majority bases its conclusion on the premise that, due to the re-routing of lines, MCI’s network worked “seamlessly.” That is not the case. Although re-routing mitigated the damage, a large percentage of MCI’s customers who relied on the spliced cable had their services interrupted until the cable was put back into use. In short, the damage was mitigated, not eliminated as the majority implies. Therefore, the majority’s reliance on Brooklyn Eastern Dist. Terminal v. United States, 287 U. S. 170 (53 SC 103, 77 LE 240) (1932), is misplaced. Unlike the tugboat company in that case which was able to use its existing boats overtime to keep its business at a normal level after one tug was damaged, MCI was not able to use its existing redundant lines to restore its network to normal levels of functionality.
For a similar reason, the majority’s analogy to a single twin engine plane is misplaced. Properly adjusted to the facts of this case, the proper scenario would be one in which an airline owns one passenger plane with ten seats and one with five seats. The ten-seat plane is used on a daily basis, and the five-seat plane is held in a warehouse only as backup. If, perhaps, a loading truck owned by a separate company crashed into the ten-seat plane negligently and grounded it, the airline could turn to the five-seat plane to mitigate its damages. Nonetheless, assuming full flights, it would lose half of its revenue. It could still perform its function, flying passengers, but it could not perform at its full and usual capacity. As a result, the airline would most certainly be entitled to loss of use damages, just as MCI *475should be entitled to damages for the reduction in capacity for the nine hours of the outage. Again, MCI’s damage was only mitigated, not eliminated.
Decided June 18, 2012 Reconsideration denied July 26, 2012. Elarbee, Thompson, Sapp & Wilson, Brent L. Wilson, William D. Deveney, Hall, Estill, Hardwick, Gable, Golden & Nelson, Anthony J. Jorgensen, James J. Proszek, for appellant. Hall, Booth, Smith & Slover, Jason P. King, for appellee.Third, the majority ignores the Restatement altogether. This is likely because the majority’s opinion is directly contrary to the analysis the Restatement presents. For these reasons, the majority’s analysis is incomplete and incorrect in spite of its otherwise complexity.
Accordingly, I believe that MCI may seek loss of use damages in this case.
I am authorized to state that Presiding Justice Hunstein and Justice Nahmias concur in this opinion.