dissenting:
I dissent because the measure of damages, in my view, is palpably unfair to Panda and deviates from generally accepted principles of damages.
Panda paid approximately $210,000 for rent to Peckham over five years. Peckham knew that Panda would be using the premises as a restaurant and would operate a Mongolian barbecue in its operation. The lease, which Peckham — a sophisticated business partnership — prepared, provided that Panda would return the premises in good condition, ordinary wear and tear excepted.
Of 1,250 floor tiles, Panda damaged only twenty, i.e., less than two percent of the surface. The district court’s award, however, held Panda responsible for all 1,250 tiles. Assuming for sake of argument that Panda’s negligence caused the damage, I cannot agree that Peckham is entitled to a completely new floor at Panda’s expense.
The majority declares that because Panda was negligent in allowing twenty tiles to become scorched by the barbecue, Peck-ham must be compensated in full for the cost of a totally new floor. I disagree. Assuming arguendo that Panda was negligent with regard to twenty tiles, Panda did not damage Peckham to the extent of 1,250 tiles. Rather, Panda’s culpability extends to a fraction of the 1,250 tiles — less than two percent.
The measure of damages for breach of the lessee’s covenant to surrender the premises in a particular condition is generally the cost of putting the premises in the condition in which it should *27have been surrendered. See 51C C.J.S. Landlord & Tenant § 416 (1968) and cases cited therein. In this instance, Panda should have returned the floor in “good” condition; that is, “good” for a five-year-old floor. Indeed, Peckham expected — and agreed— that upon return of the premises, the flooring would be marred by five years of normal wear and tear. Certainly Peckham could not reasonably expect to regain possession of the premises with a brand new floor made up of 1,250 new tiles! Thus, contrary to the majority opinion, Peckham is not entitled to a new floor, but rather a floor five years worn.
Peckham is entitled to damages for the twenty damaged tiles. Alternatively, Peckham is entitled to receive from Panda damages measured by the difference in value between a five-year-old floor with twenty damaged tiles and a five-year-old floor with no damaged tiles. Unfortunately, Panda cannot return a five-year-old floor in “good” condition to Peckham. That fact, however, does not require Panda to return to Peckham an entirely new floor. The majority’s holding smacks of punitive damages, and I cannot agree.